Superfund: Greater EPA Enforcement and Reporting Are Needed to Enhance Cleanup at DOD Sites
Published: 2009-03-13T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Prior to the 1980s and the passage of environmental legislation--particularly the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) governing environmental cleanup--Department of Defense (DOD) activities contaminated millions of acres of soil and water on and near DOD sites. The Environmental Protection Agency (EPA), which enforces CERCLA, places the most contaminated sites on its National Priorities List (NPL) and requires that they be cleaned up in accordance with CERCLA. EPA has placed 140 DOD sites on the NPL. Disputes have recently arisen between EPA and DOD on agreements to clean up some of these sites. In addition, most sites were placed on the NPL before 1991; since fiscal year 2000, EPA has added five DOD sites. In this context, we agreed to determine (1) the extent of EPA's oversight during assessment and cleanup at DOD sites and (2) why EPA has proposed fewer DOD sites for the NPL since the early 1990s. GAO interviewed officials at EPA and DOD and reviewed site file documentation at four EPA regions.
section_title: What GAO Found
paragraphs: EPA evaluates DOD's preliminary assessments of contaminated DOD sites but has little to no oversight of the cleanup of the majority of these sites because most are not on the NPL. Of the 985 DOD sites requiring cleanup of hazardous substances, EPA has oversight authority of the 140 on the NPL; the remaining 845 non-NPL sites are overseen by other cleanup authorities--usually the states. Our review of 389 non-NPL DOD sites showed that EPA decided not to list 56 percent because it determined the condition of the sites did not satisfy the criteria for listing or because it deferred the sites to other programs, most often the Resource Conservation and Recovery Act--another federal statute that governs activities involving hazardous waste. However, EPA regional officials were unable to provide a rationale for not listing the remaining 44 percent because site files documenting EPA's decisions were missing or inconclusive. In addition, EPA has agreements with DOD for cleaning up 129 of the 140 NPL sites and is generally satisfied with the cleanup of these sites. However, DOD does not have agreements for the remaining 11 sites, even though they are required under CERCLA. It was not until more than 10 years after these sites were placed on the NPL that EPA, in 2007, pursued enforcement action against DOD by issuing administrative orders at 4 of the 11 sites. Since the mid-1990s, EPA has placed fewer DOD sites on the NPL than in previous years for three key reasons. First, EPA does not generally list DOD sites that are being addressed under other federal or state programs to avoid duplication. Second, DOD and EPA officials told us that, because DOD has been identifying and cleaning up hazardous releases for more than two decades, and improved its management of waste generated during its ongoing operations, DOD has discovered fewer hazardous substance releases in recent years, making fewer sites available for listing. Third, in a few instances, state officials or others have objected to EPA's proposal to list contaminated DOD sites, and EPA has usually declined to proceed further. For example, in five instances EPA proposed contaminated DOD sites for the NPL that were not ultimately placed on the list. At four of these sites, the states' governors did not support listing, citing the perceived stigma of inclusion on the NPL and potential adverse economic effect. EPA did not list the fifth site because, according to EPA regional officials, DOD objected and appealed to the Office of Management and Budget, which recommended deferring this listing for 6 months to give DOD time to address personnel and contractor changes and demonstrate remediation progress. EPA officials recently told us that cleanup has taken place at these sites and that it was unlikely or unclear whether they would qualify for placement on the NPL based on their current condition.

section_title: Letter
paragraphs: Prior to the 1980s and the passage of environmental legislation regulating  Prior to the 1980s and the passage of environmental legislation regulating  the generation, storage, and disposal of hazardous waste, Department of  the generation, storage, and disposal of hazardous waste, Department of  Defense (DOD) activities and industrial facilities contaminated millions of  Defense (DOD) activities and industrial facilities contaminated millions of  acres of soil and water on and near DOD sites in the United States and its  acres of soil and water on and near DOD sites in the United States and its  territories. DOD installations generate hazardous wastes primarily through  territories. DOD installations generate hazardous wastes primarily through  industrial operations to repair and maintain military equipment.  industrial operations to repair and maintain military equipment.  Manufacturing and testing weapons at Army ammunition plants and  Manufacturing and testing weapons at Army ammunition plants and  proving grounds have caused some serious contamination problems as  proving grounds have caused some serious contamination problems as  well. To address the cleanup of hazardous substance releases nationwide,  well. To address the cleanup of hazardous substance releases nationwide,  in 1980, Congress passed the Comprehensive Environmental Response,  in 1980, Congress passed the Comprehensive Environmental Response,  Compensation, and Liability Act (CERCLA), better known as “Superfund.”  Compensation, and Liability Act (CERCLA), better known as “Superfund.”
In 1986, CERCLA was amended by the Superfund Amendments and  In 1986, CERCLA was amended by the Superfund Amendments and  Reauthorization Act (SARA). SARA reflected concern with the adequacy  Reauthorization Act (SARA). SARA reflected concern with the adequacy  and timeliness of DOD and other federal agency cleanups, which was  and timeliness of DOD and other federal agency cleanups, which was  compounded by the Environmental Protection Agency’s (EPA)  compounded by the Environmental Protection Agency’s (EPA)  unwillingness or inability to carry out enforcement actions against other  unwillingness or inability to carry out enforcement actions against other  federal agencies. SARA addresses this problem by (1) requiring DOD and  federal agencies. SARA addresses this problem by (1) requiring DOD and  other federal agencies to comply with CERCLA; (2) providing EPA with  other federal agencies to comply with CERCLA; (2) providing EPA with  the authority to select remedies at federal facility National Priorities List  the authority to select remedies at federal facility National Priorities List  (NPL) sites if agreement cannot be reached on the remedy to be selected;  (NPL) sites if agreement cannot be reached on the remedy to be selected;  and (3) requiring federal agencies to enter into interagency agreements  and (3) requiring federal agencies to enter into interagency agreements  (IAG) with EPA at NPL sites. SARA also added a citizen suit provision to  (IAG) with EPA at NPL sites. SARA also added a citizen suit provision to  CERCLA specifically authorizing nonfederal parties such as states and  CERCLA specifically authorizing nonfederal parties such as states and  citizens’ groups to sue DOD and other federal agencies to enforce the  citizens’ groups to sue DOD and other federal agencies to enforce the  terms of IAGs, among other things; and established a Defense  terms of IAGs, among other things; and established a Defense  Environmental Restoration Program along with separate Department of  Environmental Restoration Program along with separate Department of  the Treasury accounts specifically for DOD environmental cleanup  the Treasury accounts specifically for DOD environmental cleanup  activities—to better ensure cleanup funding availability—and requiring  activities—to better ensure cleanup funding availability—and requiring  DOD to carry out those activities in accordance with CERCLA.  DOD to carry out those activities in accordance with CERCLA.
Section 120 of CERCLA, as amended, requires federal agencies to comply  with CERCLA and submit information to EPA on certain potentially  hazardous releases. EPA maintains this information in a Federal Agency  Hazardous Waste Compliance Docket which includes a history of federal  facilities that generate, transport, store, or dispose of hazardous waste or  that have had some type of hazardous substance release or spill.
For each site on the docket, CERCLA Section 120 requires EPA to take  steps to ensure that a preliminary site assessment is conducted by the  responsible federal agency. The preliminary assessment, which is  generally based on site records and other information regarding hazardous  substances stored or disposed of at the facility, forms the basis for EPA to  evaluate the site for listing on the NPL. EPA reviews preliminary site  assessments to determine whether a site poses little or no threat to human  health and the environment or requires further investigation or assessment  for possible cleanup. Based on this assessment, EPA may then score and  rank the site based on whether the contamination presents a potential  threat to human health and the environment. If a site scores at or above a  minimum threshold for cleanup under CERCLA, EPA may place the site on  the NPL or defer it to another regulatory authority, such as a state agency,  for cleanup under other statutory authorities or programs, such as the  Resource Conservation and Recovery Act (RCRA). As of November 2008,  the NPL included 1,587 sites. Of these, according to EPA officials, 140  were federal DOD sites, representing almost 9 percent of the NPL.
Section 120 of CERCLA also establishes specific procedures for cleaning  up federal facilities on the NPL. As part of its oversight responsibility, EPA  works with DOD to evaluate the nature and extent of contamination at a  site, select a remedy, track cleanup and monitor the remedy’s  effectiveness in protecting human health and the environment. Under  Section 120 of CERCLA, DOD and EPA are required to enter into an IAG  within 180 days of the completion of EPA’s review of the remedial  investigation and feasibility study at a site. According to EPA officials,  shortly after Section 120 was enacted, EPA and DOD acknowledged that  regulatory oversight during the investigation phase was required if EPA  was to meet its statutory obligation regarding remedy selection at NPL  sites. Beginning in 1988, EPA and DOD agreed to model language for IAGs  which included a provision to enter into IAGs earlier than mandated by  statute—prior to the remedial investigation stage—to establish the roles  and responsibilities of EPA and DOD to investigate and clean up sites.  IAGs are required to include, at a minimum, a review of the alternative  remedies considered and the selected remedy, a schedule for cleanup, and  plans for long-term operations and maintenance. The Federal Facility  Compliance Act, among other things, authorized EPA to order the cleanup  of contaminated sites by initiating administrative enforcement actions  against a federal agency under RCRA, on the same basis as they would be  applied to private parties.
Disputes have recently arisen between EPA and DOD regarding the terms  of IAGs governing cleanup and whether EPA had a sufficient basis for  administrative enforcement actions at several DOD sites. In addition, in  recent years, EPA has added fewer sites to the NPL. According to EPA’s  2007 annual report on Superfund, more than 75 percent of all sites listed  on the NPL—both federal and nonfederal—were listed before 1991. Since  fiscal year 2000, EPA added five DOD sites to the NPL (see fig. 1).
In this context, we agreed to determine (1) the extent of EPA’s oversight  during assessment and cleanup at DOD NPL and non-NPL sites and (2)  why EPA has proposed fewer DOD sites for the NPL since the early 1990s.
To determine the extent of EPA’s oversight during assessment and cleanup  at NPL and non-NPL DOD sites, we reviewed EPA policies and  documentation on oversight processes, and interviewed officials at EPA  headquarters and four regional offices to determine the extent to which  the agency helps to ensure that the most contaminated DOD sites are  expeditiously assessed and cleaned up. We also reviewed documentation  and interviewed DOD officials on the agency’s environmental restoration  program and efforts to clean up contaminated DOD sites. To determine  why EPA has proposed fewer DOD sites for the NPL since the early 1990s,  we reviewed EPA’s file documentation on contaminated DOD sites and  interviewed officials at EPA headquarters and selected EPA regions. We  excluded from our review sites under DOD’s military munitions response  program due to the ongoing uncertainty associated with defining  unexploded ordnance as hazardous substances and the fact that GAO has  ongoing work in this area.
We conducted work at four EPA regions—Atlanta, Chicago, Dallas, and  San Francisco—which, taken together, are responsible for about half of all  DOD sites in EPA’s database of contaminated federal facilities. We  selected the Atlanta and Chicago regions because they are responsible for  five DOD sites that EPA proposed for the NPL but which were not listed.  We selected the San Francisco region because it has the largest number of  contaminated DOD sites. We selected the Dallas region to pretest our  review methodology because it was geographically convenient. We  conducted this performance audit in accordance with generally accepted  government auditing standards between January 2008 and March 2009.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives. More detail on the scope and  methodology of our review is presented in appendix I.
subsections: section_title: Background
paragraphs: Various environmental statutes, including CERCLA and RCRA, govern the  reporting and cleanup of hazardous substances and hazardous waste at  DOD sites. Specific provisions in these laws establish requirements for  addressing hazardous waste cleanup or management. Key aspects of these  requirements for federal facilities are described below:  Comprehensive Environmental Response, Compensation, and Liability  Act. The Comprehensive Environmental Response, Compensation, and  Liability Act (CERCLA) of 1980 was passed to give the federal government  the authority to respond to actual and threatened releases of hazardous  substances, pollutants, and contaminants that may endanger public health  and the environment. The EPA program under CERCLA is better known as  “Superfund” because Congress established a large trust fund that is used  to pay for, among other things, remedial actions at nonfederal sites on the  NPL. Federal agencies are prohibited from using the Superfund trust fund  to finance their cleanups and must, instead, use their own or other  appropriations.
Figure 2 depicts the number of NPL sites listed by EPA as of November  2008, which totals 1,587 sites. Of these, 140 were DOD NPL sites,  representing the majority of federal facility sites on the NPL. According to  EPA’s 2007 annual report on Superfund, more than 75 percent of all sites  on the NPL—both federal and private—were listed before 1991. Since  fiscal year 2000, EPA has added five DOD sites to the NPL.
CERCLA does not establish regulatory standards for the cleanup of  specific substances, but requires that long-term cleanups comply with  applicable or relevant, and appropriate requirements. These may include a  host of federal and state standards that generally regulate exposure to  contaminants. The National Oil and Hazardous Substances Pollution  Contingency Plan (NCP) outlines procedures and standards for  implementing the Superfund program. The NCP designates DOD as the  lead agency at defense sites, though as described below, it must carry out  its responsibilities consistent with EPA’s oversight role under Section 120  of CERCLA, including EPA’s final authority to select a remedial action if it  disagrees with DOD regarding the remedy to be selected.
In 1986, the Superfund Amendments and Reauthorization Act (SARA)  added provisions to CERCLA specifically governing the cleanup of federal  facilities. Under Section 120 of CERCLA, as amended, EPA must take steps  that assure completion of a preliminary site assessment by the responsible  agency for each site in the Federal Agency Hazardous Waste Compliance  Docket. This preliminary assessment is reviewed by EPA, together with  additional information, to determine whether the site poses little or no  threat to human health and the environment or requires further  investigation or assessment for potential proposal to the NPL. SARA also  added Section 211 of CERCLA, which established DOD’s Defense  Environmental Restoration Program providing legal authority governing  cleanup activities at DOD installations and properties.
CERCLA Section 120 also establishes specific requirements governing  IAGs between EPA and federal agencies. The contents of the IAGs must  include at least the following three items: (1) a review of the alternative  remedies considered and the selection of the remedy, known as a remedial  action; (2) the schedule for completing the remedial action; and (3)  arrangements for long-term operations and maintenance at the site. DOD  and EPA are required to enter into an IAG within 180 days of the  completion of EPA’s review of the remedial investigation and feasibility  study at a site.
SARA’s legislative history explains that, while the law already established  that federal agencies are subject to and must comply with CERCLA, the  addition of Section 120 provides the public, states, and EPA increased  authority and a greater role in assuring the problems of hazardous  substance releases at federal facilities are dealt with by expeditious and  appropriate response actions. The relevant congressional conference  committee report establishes that IAGs provide a mechanism for (1) EPA  to independently evaluate the other federal agency’s selected cleanup  remedy, and (2) states and citizens to enforce federal agency cleanup  obligations, memorialized in IAGs, in court.  Specifically, the report states  that while EPA and the other federal agency share remedy selection  responsibilities, EPA has the additional responsibility to make an  independent determination that the selected remedial action is consistent  with the NCP and is the most appropriate remedial action for the affected  facility. The report also observes that IAGs are enforceable documents just  as administrative orders under RCRA and, as such, are subject to SARA’s  citizen suit and penalties provisions. Thus, penalties can be assessed  against federal agencies for violating terms of agreements with EPA.  However, at sites without IAGs, EPA has only a limited number of  enforcement tools to use in compelling compliance by a recalcitrant  agency; similarly, states and citizens also lack a mechanism to enforce  CERCLA.
Resource Conservation and Recovery Act. In 1976, Congress passed the  Resource Conservation and Recovery Act (RCRA) giving EPA the  authority to regulate the generation, transportation, treatment, storage,  and disposal of hazardous waste. Under RCRA, EPA may authorize states  to carry out many of the functions of the statute in lieu of EPA under a  state’s hazardous waste programs and laws. Almost all states are  authorized to implement some portion of the RCRA program. Forty-eight  states are currently authorized to implement the RCRA base program to  manage hazardous waste treatment, storage, and disposal. (Only Alaska  and Iowa are not authorized to implement the RCRA base program.) Forty- three states are authorized to implement the RCRA corrective action  program which expands a state’s RCRA authority to include managing the  cleanup of releases of hazardous waste and hazardous constituents.
EPA has a policy to defer sites, which are being managed under RCRA,  from placement on the NPL, known as the RCRA deferral policy. Where  this policy is applied, cleanup proceeds under RCRA, generally through an  authorized state corrective action program, rather than CERCLA. EPA  regions may defer a federal facility site to RCRA even if the site is eligible  for the NPL. In 1996, Congress amended CERCLA to authorize EPA to  consider non-CERCLA cleanup authorities when making a listing  determination for federal facility sites if the site is already subject to an  approved federal or state cleanup plan. According to EPA policy, the  criteria to defer a federal facility site from the NPL to RCRA are: (1) the  CERCLA site is currently being addressed by RCRA Subtitle C corrective  action authorities under an existing enforceable order or permit  containing corrective action provisions; (2) the response under RCRA is  progressing adequately; and (3) the state and community support deferral  of NPL listing. According to EPA, deferral from one program to another is  often the most efficient and desirable way to address overlapping  requirements, and deferrals to RCRA may free CERCLA oversight  resources for use in situations where another authority is unavailable. In  these instances, state agencies or another regulatory authority, rather than  EPA, oversee the cleanup of hazardous substance releases.
Other non-CERCLA cleanup authorities EPA considers in deciding  whether to list a site include state cleanup programs (often referred to as  voluntary cleanup programs) and DOD’s environmental response program.  See appendix II for a summary of these cleanup programs.
The NCP provides the methods and criteria for carrying out site discovery,  assessment, and cleanup activities under CERCLA. Figure 3 depicts the  process by which EPA and federal agencies assess a site for inclusion on  the NPL and address contamination at federal NPL sites.
The CERCLA cleanup process is made up of a series of steps, during  which specific activities take place or decisions are made. The key steps in  this process are included in figure 3.
Site discovery. When a federal agency identifies an actual or suspected  release or threatened release to the environment on a federal site, it  notifies EPA, which then lists the site on its Federal Agency Hazardous  Waste Compliance Docket. The docket is a listing of all federal facilities  that have reported hazardous waste activities under three provisions of  RCRA or one provision of CERCLA. RCRA and CERCLA require federal  agencies to submit to EPA information on their facilities that generate,  transport, store, or dispose of hazardous waste or that have had some type  of hazardous substance release or spill. EPA updates the docket  periodically.
Preliminary assessment. The lead agency (DOD, in this case) conducts a  preliminary assessment of the site by reviewing existing information, such  as facility records, to determine whether hazardous substance  contamination is present and poses a potential threat to public health or  the environment. EPA regions review preliminary assessments to  determine whether the information is sufficient to assess the likelihood of  a hazardous substance release, a contamination pathway, and potential  receptors. EPA regions are encouraged to complete their review of  preliminary assessments of federal facility sites listed in EPA’s CERCLA  database within 18 months of the date the site was listed on the federal  docket. EPA may determine the site does not pose a significant threat to  human health or the environment and no further action is required. If the  preliminary assessment indicates that a long-term response may be  needed, EPA may request that DOD perform a site inspection to gather  more detailed information.
Site inspection. The lead agency (DOD, in this case) samples soil,  groundwater, surface water, and sediment, as appropriate, and analyzes  the results to prepare a report that describes the contaminants at the site,  past waste handling practices, migration pathways for contaminants, and  receptors at or near the site. EPA reviews the site inspection report and, if  it determines the release poses no significant threat, EPA may eliminate it  from further consideration. If EPA determines that hazardous substances,  pollutants, or contaminants have been released at the site, EPA will use  the information collected during the preliminary assessment and site  inspection to calculate a preliminary HRS score.
HRS scoring. If EPA determines that a significant hazardous substance  release has occurred, the EPA region prepares an HRS scoring package.  EPA’s HRS assesses the potential of a release to threaten human health or  the environment by assigning a value to factors related to the release such  as (1) the likelihood that a hazardous release has occurred; (2) the  characteristics of the waste, such as toxicity and the amount; and (3)  people or sensitive environments affected by the release.
National Priorities List. If the release scores an HRS score of 28.50 or  higher, EPA determines whether to propose the site for placement on the  NPL. CERCLA requires EPA to update the NPL at least once a year.
Governor’s concurrence. Before placing a site on the NPL, the EPA  Regional Administrator sends a written inquiry to the governor seeking a  written response from the state addressing whether it will support a listing  decision. According to EPA regional officials, EPA usually contacts the  governor before calculating the HRS score due to the high cost and length  of time required to prepare a scoring package. If EPA calculates an HRS  score of 28.50 or higher and the governor agrees with EPA to list the site,  the site is eligible for inclusion on the NPL. However, where the governor  does not support listing, but the EPA region firmly believes listing is  necessary, a process, involving OMB for federal facilities, is followed  before a listing decision is made.
Following the decision to place a site on the NPL, several steps lead to the  selection of a cleanup remedy and its long-term operation and  maintenance. These steps are described below:  Remedial investigation and feasibility study. Within 6 months after EPA  places a site on the NPL, the lead agency (DOD, in this case) is required to  begin a remedial investigation and feasibility study to assess the nature  and extent of the contamination. The remedial investigation and feasibility  study process includes the collection of data on site conditions, waste  characteristics, and risks to human health and the environment; the  development of remedial alternatives; and testing and analysis of  alternative cleanup methods to evaluate their potential effectiveness and  relative cost. EPA, and frequently the state, provide oversight during the  remedial investigation and feasibility study and the development of a  proposed plan, which outlines a preferred cleanup alternative. After a  public comment period on the proposed plan, EPA and the federal facility  sign a record of decision that documents the selected remedial action  cleanup objectives, the technologies to be used during cleanup, and the  analysis supporting the remedy selection.
Interagency agreement. Within 6 months of EPA’s review of DOD’s  remedial investigation and feasibility study, CERCLA, as amended,  requires that DOD enter into an IAG with EPA for the expeditious  completion of all remedial action at the facility. (EPA’s policy however, is  for federal facilities to enter into an IAG after EPA places the site on the  NPL.) The IAG is an enforceable document that must contain, at a  minimum, three provisions: (1) a review of remedial alternatives and the  selection of the remedy by DOD and EPA, or remedy selection by EPA if  agreement is not reached; (2) schedules for completion of each remedy;  and (3) arrangements for the long-term operation and maintenance of the  facility.
Remedial design and remedial action. During the remedial design and  remedial action process, the lead agency (DOD, in this case) develops and  implements a permanent remedy on the site as outlined in the record of  decision and IAG.
Monitoring. Long-term monitoring occurs at every site following  construction of the remedial action. This includes the collection and  analysis of data related to chemical, physical, and biological  characteristics at the site to determine whether the selected remedy meets  CERCLA objectives to protect human health and the environment. For  NPL or non-NPL sites where hazardous substances, pollutants, or  contaminants were left in place above levels that do not allow for  unlimited use and unrestricted exposure, every 5 years following the  initiation of the remedy, the lead agency (DOD, in this case) must review  its sites. The purpose of a 5-year review, similar to long-term monitoring, is  to assure that the remedy continues to meet the requirements contained in  the record of decision and is protective of human health and the  environment.
Federal Facility Compliance Act. The Federal Facility Compliance Act of  1992, which amended RCRA, authorizes EPA to order the cleanup of  contaminated sites by initiating administrative enforcement actions  against a federal agency under RCRA, including the imposition of fines and  penalties. The act authorizes EPA to initiate administrative enforcement  actions against federal agencies in the same manner and under the same  circumstances as actions would be initiated against a person.
Enforcement. Several factors hinder the enforcement of cleanup  requirements at federal facilities. DOJ has taken the position that EPA may  not sue another federal agency to enforce cleanup requirements. EPA may  not issue cleanup orders under CERCLA to other federal agencies without  DOJ’s concurrence. EPA may issue cleanup orders to other federal  agencies under RCRA and the Safe Drinking Water Act, but not all RCRA  orders can provide for administrative penalties. IAGs also generally  contain administrative penalty provisions. Third parties, such as states and  citizens groups, may sue to enforce IAGs and administrative orders under  the “citizen suit” and other public participation provisions of CERCLA,  RCRA, and Safe Drinking Water Act, but such litigation can be time  consuming.
section_title: EPA Evaluates All Potentially Contaminated DOD Sites for Listing, but Does Not Oversee Cleanup at Most Hazardous Waste DOD Sites
paragraphs: While EPA oversees and evaluates DOD’s preliminary assessments of all  DOD sites suspected of having a hazardous release, the agency has little to  no oversight of the cleanup of most of these sites because most are not on  the NPL. EPA reviews DOD sites to determine whether to propose  placement on the NPL. However, only 140 of the 985 current DOD sites  with hazardous waste appear on the NPL. EPA and DOD have not finalized  IAGs for the remaining 11 sites, which impedes EPA’s ability to enforce  cleanup, such as approving detailed cleanup schedules and applying  administrative penalties. EPA only recently began using enforcement  action at DOD NPL sites where an IAG is not in place. State agencies,  rather than EPA, oversee the cleanup of hazardous waste at most DOD  sites.
subsections: section_title: EPA Reviews DOD Sites to Determine whether to Propose NPL Listing
paragraphs: DOD performs preliminary assessments of all federal DOD sites on the  Federal Agency Hazardous Waste Compliance Docket. EPA regions review  the assessments to determine whether releases pose a threat to human  health and the environment and if so, whether hazardous substances are  being released into the environment. DOD’s preliminary assessments are  based on readily available and historical data of suspected releases on  DOD sites. DOD reports the results of preliminary assessments to EPA,  which often requests additional information such as data on site  geography, prior activities at the site, and the source and destination of the  hazardous release. According to EPA guidance, EPA regions should  complete their review of preliminary assessments within 18 months of  when the site was listed on the federal docket; however, EPA officials  from two regions told us that DOD may take 2 to 3 years to complete a  preliminary assessment because EPA does not have an independent  authority under CERCLA to enforce a time line for completion of the  preliminary assessment. Based on their review of the preliminary  assessment, EPA regional officials may determine that no further action is  needed at the site or request that DOD perform a more comprehensive site  inspection by sampling groundwater and other media on site. Following  DOD’s investigation, EPA regional officials may: determine that no further  action is needed at the site; defer the site to another regulatory authority,  such as a state agency, for cleanup; or begin the process to propose the  site for placement on the NPL.
section_title: Few Hazardous Waste DOD Sites Considered for Listing Are Ultimately Placed on the NPL
paragraphs: Of the 985 DOD sites contaminated with hazardous substances, EPA  placed 140 sites—about 15 percent—on the NPL; the remaining 845 sites  are generally overseen by a cleanup authority other than EPA. Sites on the  NPL are considered among the most dangerous of all hazardous substance  sites, based on the evaluation criteria used by EPA. EPA may propose to  list sites that (1) have an HRS score of 28.50 or higher; (2) a state  designates as its top priority, regardless of the HRS score; or (3) are  subject to a health advisory issued by the Agency for Toxic Substances  and Disease Registry and meet certain other criteria. In practice,  however, few sites meet these criteria. Further, even if a site is eligible for  placement on the NPL based on the HRS score, EPA may choose to defer  the site to RCRA. As we discuss later in this report, our review of non-NPL  DOD sites in four EPA regions demonstrated that available data  supporting these decisions is limited. EPA regional officials were unable to  provide a rationale for EPA’s decision to not list almost one-half of the 389  sites that we reviewed because site file documentation was inconclusive  or missing. For the remaining sites, EPA did not propose listing because  officials determined the sites did not satisfy the criteria to score a high  HRS score or deferred them to another regulatory authority.
section_title: More than a Decade after Listing, 11 DOD NPL Sites Do Not Have IAGs, Impeding EPA’s Ability to Enforce Cleanup Actions at Those Sites
paragraphs: Although EPA has IAGs in place with DOD for 129 of the 140 DOD sites on  the NPL, IAGs have not been finalized at the remaining 11 sites remaining.  According to an EPA headquarters official, EPA is generally satisfied with  the cleanup of DOD NPL sites where DOD has signed IAGs. EPA has  encountered few problems at these sites, the EPA official said, because  DOD is held accountable for compliance with the provisions of the IAGs  and if differences arise, the agreements provide EPA with an enforceable  process to address the issue. EPA and DOD have not finalized IAGs for the  remaining 11 DOD NPL sites, however. As a result, DOD has been cleaning  up 11 sites without IAGs, inhibiting EPA’s ability to seek enforcement  actions that compel attention to schedules and milestones. Under  CERCLA, as amended, EPA and DOD must enter into negotiated IAGs for  the expeditious completion of all necessary remedial action at each DOD  site on the NPL. IAGs must include, at a minimum, the alternative  remedies and the selected remedy, a schedule for completing the remedial  action, and arrangements for long-term operation and maintenance of the  facility. According to EPA, the schedule is enforceable and often found in  a site management plan that documents and provides for re-evaluation of  schedules and priorities for cleanup.  In addition, EPA officials indicated  that IAGs generally also include consultative provisions that document  time frames for review and comment on documents by each agency as  well as administrative penalties for DOD’s failure to comply with the  agreed-upon cleanup tasks and milestones. The IAG therefore documents  EPA’s expectations of DOD, and provides for administrative penalties  against the department when it does not comply with the activities agreed  to in the document. Without the IAG, EPA does not have the needed  criteria, or a foundation upon which an enforcement action may be taken,  and has limited ability to sanction DOD without going to court, which DOJ  does not allow it to do. The 11 DOD NPL sites—2 Army, 2 Navy, and 7 Air  Force facilities—were placed on the NPL at least a decade ago, between  1994 and 1999, except for 1 of the Air Force sites, which was listed in  1983. As of early March 2009, however, DOD has not finalized IAGs for  any of these sites. In its most recent report to Congress for fiscal year  2007, EPA indicated the number of NPL sites with IAGs and facilities  where EPA had issued enforcement orders. However, EPA’s report did not  clearly indicate that there were 11 DOD NPL sites without IAGs and the  reasons why.
There is a long history of EPA and DOD efforts to negotiate IAGs,  beginning in 1988. Key actions taken by these agencies are listed in table 1.
Although CERCLA requires that federal agencies enter into IAGs with EPA  to govern the cleanup of NPL sites within 180 days of EPA’s review of the  remedial investigation and feasibility study, DOD officials told us they  have not finalized IAGs for 11 NPL sites because DOD disagreed with  some of the terms of the provisions contained in the agreements. DOD  also indicated they feel that EPA has adequate authority through its  remedy selection process and that the IAG serves primarily as an  administrative roadmap. Although the Defense Environmental  Restoration Program statute requires DOD to take actions that provide  EPA with adequate opportunity to review and comment at key phases of  cleanup, there are no formal ramifications when DOD does not comply.  Without an IAG, EPA lacks a documentation roadmap that demonstrates  review and comment on key decisions. An IAG would identify areas of  concern at a site and the process being used to address them. At DOD NPL  sites without IAGs, such as at Langley Air Force Base in Maryland, DOD  did not obtain EPA concurrence before signing a unilateral record of  decision that identifies the remedial action. As a result, according to EPA,  the agency cannot confirm whether all areas of contamination have been  identified or whether they are being addressed properly. In 1988 and  supplemented in 1999 and 2003, DOD and EPA developed model language  for specific provisions representing the most contentious issues  encountered in earlier negotiations. Although DOD agreed to the model  language, it has disagreed with some of the specific terms contained in the  provisions of agreements based on these models, such as those that, in  DOD’s opinion, conflict with or go beyond CERCLA or its regulatory  requirements. DOD officials also stated that EPA has been unwilling to  negotiate the terms of these provisions with DOD.
Although EPA has some oversight of the cleanup of NPL sites where DOD  has not entered into an IAG, EPA officials told us the agency has only  limited ability to carry out cleanup enforcement actions at federal  facilities. For example, at sites where DOD has entered into an IAG, EPA  has the authority to approve and modify a sites’ sampling plan. In contrast,  at NPL sites without an IAG, although DOD may send copies of draft plans  and reports to EPA, it is often without regard to schedule or a process for  vetting issues back and forth as defined in IAG provisions. Therefore,  EPA’s role is limited to reviewing many plans after they are finalized  without the opportunity to provide input to the cleanup process.  According to EPA headquarters officials, EPA is not seeking excessive  enforcement authority at DOD NPL sites but intends to hold DOD to the  same enforceable oversight it has at private sites. In fact, federal agencies  are more often subject to much less stringent enforcement provisions.  DOJ has taken the position that EPA may not sue another federal agency  to enforce cleanup requirements, which effectively restricts EPA’s ability  to compel compliance through civil judicial litigation. According to EPA,  enforcement provisions contained in the agreements, such as stipulated  penalties, are generally less onerous for federal facilities than they are for  private parties. The terms of the provisions, regardless of whether they are  based on model language agreed upon between DOD and EPA, are  necessary for EPA to carry out its role to enforce the cleanup process,  EPA officials said. The IAG is not simply an administrative document but  an essential tool, without which EPA and the states cannot assure the  public that DOD is properly identifying and addressing hazardous waste at  contaminated DOD sites.
section_title: EPA Only Recently Used Enforcement Action at DOD NPL Sites Without IAGs
paragraphs: Although EPA may initiate enforcement actions to compel the cleanup of  contaminated sites, EPA only recently began to use this authority at DOD  NPL sites without IAGs. In 2007, EPA issued four administrative cleanup  orders—three under RCRA and one under the Safe Drinking Water Act— to four DOD NPL sites––Tyndall Air Force Base in Florida, McGuire Air  Force Base in New Jersey, Air Force Plant 44 in Arizona, and Fort Meade  in Maryland—that do not have IAGs. The orders stated that an imminent  and substantial endangerment from contamination may be present on the  sites and required DOD to notify EPA of its intent to comply with the  orders and clean up. The Air Force did not agree with EPA’s assertion that  an imminent and substantial endangerment existed at Air Force Plant 44,  but agreed to perform the work required by the order. At the remaining  two Air Force sites and one Army site, the services disagreed with EPA’s  assertion that an imminent and substantial endangerment existed and  indicated that the failure to enter into an IAG at the site was an  inappropriate basis for issuing an order. The Air Force also argued that  compliance with the orders would not accelerate study and cleanup but,  rather, that the additional paperwork required for compliance would delay  implementation of ongoing investigation and cleanup. The Air Force and  Army did not notify EPA of their intent to comply with the orders within  the time frame required and stated they would continue to clean up these  sites under their CERCLA removal and lead agency authority. According to  DOD, some of these sites are nearly cleaned up. For example, as of July  2008, DOD estimated that three of the four sites had cleaned up about two- thirds or more of the contamination on site. According to EPA  headquarters officials, DOD’s estimation of the cleanup at these sites is  inconsistent with EPA’s assessment and there is still much work to be  performed at each of these sites. For example, according to EPA  headquarters officials, Tyndall Air Force Base has not completed a single  record of decision for work to be performed and McGuire Air Force Base  has not completed a single investigation.
In May 2008, DOD requested that DOJ and OMB resolve the disagreement  between DOD and EPA as to the basis upon which EPA may issue  imminent and substantial endangerment orders under RCRA and the Safe  Drinking Water Act, and the terms of federal facility agreements regarding  cleanup at DOD NPL sites. As of November 2008, OMB was noncommittal  regarding its involvement. On December 1, 2008, DOJ issued a letter  upholding EPA’s authority to issue administrative cleanup orders at DOD  NPL sites in appropriate circumstances. Specifically, the letter stated,  among other things, that    EPA may issue imminent and substantial endangerment orders to DOD in  accordance with RCRA and the Safe Drinking Water Act;    EPA may issue such orders at a site even if it would not have done so had  there been an IAG under CERCLA for the site; and   while IAGs are consensual undertakings, and DOD is not necessarily  required to agree to all IAG terms EPA seeks beyond those enumerated in  CERCLA, EPA may require DOD to agree in an IAG to follow EPA  guidelines, rules, and criteria in the same manner, and to the same extent  as these apply to private parties.
As of early March 2009, the Air Force and Army did not have IAGs for  these four sites, including the site being cleaned up under the Safe  Drinking Water Act order.
section_title: State Agencies Oversee the Cleanup of Hazardous Waste at Most DOD Sites
paragraphs: Because the majority of contaminated DOD sites are not on the NPL, most  DOD site cleanups are overseen by state agencies rather than EPA, as  allowed by CERCLA. CERCLA provides that state cleanup and  enforcement laws apply to federal facilities not included on the NPL.  Under CERCLA, EPA may choose to defer a federal facility site to another  cleanup authority, such as RCRA, even though the site is eligible for  placement on the NPL. Of the 845 DOD sites not on the NPL, EPA  generally determined that no further action was needed at the sites either  because (1) the sites did not have hazards that would score high enough  for NPL listing or (2) EPA deferred oversight of DOD’s response at the  sites to the states or other regulatory authorities. Most states have their  own cleanup programs to address hazardous waste sites and RCRA  corrective action authority to clean up RCRA sites. While EPA regions  have some oversight of states’ RCRA programs by reviewing site files and  providing technical advice to the state, EPA defers oversight authority to  states for the cleanup of non-NPL RCRA sites. EPA does not exercise day- to-day oversight of state cleanup programs but has entered into  memorandums of understanding or agreement with some states. For  example, EPA and the state of Ohio entered into a memorandum of  agreement that defined the roles and responsibilities of EPA and the state  for non-RCRA cleanups.
section_title: EPA Proposes Few Contaminated DOD Sites Based on EPA Policy and DOD’s Maturing Inventory of Hazardous Waste Sites
paragraphs: Since the 1990s, EPA has proposed fewer DOD sites for the NPL than in  previous years for three key reasons. First, EPA defers the majority of  DOD sites to other statutory authorities for cleanup under state oversight,  and to avoid duplicating efforts, it does not list these sites. Second, over  the years, DOD has discovered fewer hazardous substance releases,  resulting in fewer sites for assessment and potential proposal for the NPL.  Third, state officials or other federal agencies may, on occasion, object to  EPA’s proposal to list contaminated DOD sites, and while EPA can still  propose listing the site, it usually does not. Based on our review of 389  unlisted DOD sites from four EPA regions, we found EPA did not list  about half of these sites because EPA determined that little to no  hazardous release had occurred or it deferred the site to a state for  oversight, often because a contamination response was already underway.
subsections: section_title: EPA Does Not List DOD Sites That Are Cleaned Up under RCRA or Other Programs
paragraphs: In 1996, Congress amended CERCLA to specify that a response under  another cleanup authority is an appropriate factor to consider when  making a determination whether to list a federal site. Since then, EPA has  generally not proposed listing contaminated DOD sites that are being  cleaned up under other federal or state programs. Under EPA’s deferral  policy, it may choose to defer sites to RCRA, even if sites are eligible for  the NPL, where (1) the CERCLA site is currently being addressed by RCRA  Subtitle C corrective action authorities under an existing enforceable  order or permit containing corrective action provisions, (2) the response is  progressing adequately, and (3) the state supports deferral of placement  on the NPL. According to EPA headquarters officials, during the early  years of CERCLA, the Superfund program was the primary means by  which EPA assured that contamination at federal facilities was assessed  and cleaned up. In recent years, however, other cleanup programs such as  RCRA have evolved and matured so that placement on the NPL is just one  of several tools available to address contamination. EPA policy allows  regions to defer a federal facility site to RCRA even though the site is  eligible for the NPL. Officials from two EPA regions said that almost all of  the region’s DOD sites were being cleaned up under RCRA at the time they  were assessed and to avoid adding unnecessary and redundant regulatory  oversight, the regions chose to leave them under RCRA for cleanup. EPA  regions also defer sites from the NPL that are being cleaned up under a  state cleanup program. EPA headquarters officials said that many sites  proposed for placement on the NPL were referred to EPA by the states but  that, over the years, states developed their own cleanup programs and did  not refer as many sites to EPA. As a result, EPA headquarters officials said  that EPA is not proposing to list as many sites based on states’ referrals.
section_title: DOD Is Identifying Fewer Contaminated Sites
paragraphs: DOD is discovering and reporting fewer new or additional hazardous  substance releases because, over the years, many potentially contaminated  waste sites have been identified and cleaned up and waste management  practices have changed. Discovery of new DOD sites has been infrequent,  making fewer sites available to EPA for assessment and proposal for  inclusion on the NPL. According to Army officials, beginning in the early  1980s, the Army conducted initial assessments to identify potentially  contaminated sites. As a result, Army officials said, the Army’s installation  restoration program inventory is mature and, for the most part, complete.  According to a Navy official, during the 1980s and 1990s, the Navy also  conducted assessments to identify and catalog the majority of  contaminated Navy sites. DOD officials also stated that because of  controls placed on the management of hazardous materials and wastes as  a result of well-established laws, there are relatively fewer releases or  threats of release, and operational releases are immediately addressed.  EPA officials generally agreed that DOD has identified fewer contaminated  DOD sites in recent years because, EPA officials said, the services have a  fairly well-inventoried universe of sites, and old or abandoned DOD sites  are no longer being discovered. Further, EPA headquarters officials said,  DOD has cleaned up hazardous waste sites over the years, has tremendous  cleanup efforts underway, and has the budgets to fund them.
section_title: States May Object to EPA’s Proposal to List Contaminated DOD Sites
paragraphs: EPA policy recommends states’ governors to be included in the decision  whether to list sites on the NPL and, in cases where a state does not agree  that EPA should list a site, EPA’s policy recommends that a region work  closely with the state to resolve the state’s concerns. If the region is unable  to resolve the state’s concerns and EPA believes it has sufficient reasons  to proceed with listing, EPA may list the site on the NPL without the  state’s concurrence; however, according to EPA headquarters officials,  EPA will not list a site without agreement from the state.
On rare occasions, EPA proposed but ultimately did not list some  contaminated DOD sites. Four sites were not listed because the states’  governors did not support listing. EPA did not list a fifth site because OMB  recommended against listing. Although these five sites were not listed,  EPA regional officials said that all five sites are being cleaned up, have a  remedy in place that is protective of human health and the environment, or  the site has been cleaned up to the point that it no longer meets the  requirements for placement on the NPL. Specifically:  Rickenbacker Air National Guard Base. In 1994, DOD closed the  remaining portions of the Rickenbacker Air National Guard Base in  Lockbourne, Ohio, which had been in use since 1942 providing aircraft  refueling operations. Fuel contamination and chemical releases were  found around underground fuel lines and tanks and near former storage  areas and buildings. Trichloroethylene (TCE) has been found in soil and  near groundwater. In January 1994, EPA proposed placing the site on the  NPL but did not do so because the governor did not agree, citing the  stigma that NPL listing would have on current, planned, and future  economic development as well as the potential to adversely affect the  economic development of adjacent sites. The governor also proposed that  the Ohio EPA oversee investigation and cleanup activities at the site under  the state’s cleanup program. Today, portions of the site are being cleaned  up under RCRA while other portions are being cleaned up under CERCLA  and DOD’s Base Realignment and Closure program, with state oversight.  According to EPA headquarters officials, EPA and the Air Force agreed  the site should be cleaned up for commercial-industrial use. The Air Force  transferred portions of the facility to another state agency for cleanup and  signed an agreement with the state to clean up the remaining lands, in  accordance with CERCLA. However, the Air Force has refused to include  land use restrictions in its selected remedy, as EPA would normally do for  sites on the NPL. Nonetheless, cleanup at the site is proceeding, EPA  regional officials said, and the site no longer meets the requirements for  the NPL.
Air Force Plant 85. Air Force Plant 85 in Columbus, Ohio, manufactured  and tested aircraft and missile systems between 1941 and 1994. Wastes  produced from these operations included acids from metal cleaning and  electroplating, cyanide wastes, and paint strippers. From 1984 to 1990, the  Air Force identified multiple sources of potential hazardous waste  contamination, including two nearby streams and a creek. TCE and other  chlorinated solvents were found in groundwater; polychlorinated  biphenyls (PCB), solvents, and metals were found in soil; and various  metals and solvents were found in sediment. In January 1994, EPA  proposed placing the site on the NPL but did not do so because the  governor objected, again citing the stigma of listing and its potential  effects on economic development. The governor also proposed that the  Ohio EPA oversee investigation and cleanup activities at the site under the  state’s cleanup program. Air Force Plant 85 is being cleaned up under  Ohio’s Voluntary Cleanup Program which, according to EPA officials,  follows the CERCLA process. According to EPA regional and Air Force  officials, the Air Force has cleaned up or has a remedy in place at 11 of the  13 sources of hazardous substances releases at the site and is expected to  have all remedies in place by 2011.
Arnold Engineering Development Center. The Arnold Engineering  Development Center near Tullahoma and Manchester, Tennessee, is an Air  Force test and research organization that simulates flight conditions in  ground-test facilities. The site contains contaminated landfills, leaching  pits, and testing areas. Jet and rocket fuels, solvents, and other shop  wastes have been detected in the main testing area. PCBs also have been  detected in soil samples collected in the main testing area and in  wastewater and surface water runoff in a retention reservoir. In August  1994, EPA proposed placing the site on the NPL but did not do so because  the governor did not concur. EPA regional officials said that state officials  told them Tennessee preferred to clean up the site under a state cleanup  program and speculated that many states may prefer this arrangement  because of the perception of a stigma associated the NPL. Further, the  Arnold Engineering Development Center was competing with a DOD  facility in another state to install a wind tunnel and the Tennessee  governor’s office was concerned that NPL listing would hurt the site’s  chances. The Air Force is cleaning up the Arnold Engineering  Development Center under RCRA with EPA and state oversight. EPA  regional officials said that Air Force actions to date on the site are  protective of human health and control the migration of contaminated  groundwater. While Air Force officials said they expect all remedies to be  in place by the end of fiscal year 2011, EPA regional officials indicated the  goal for final construction of the remedy is 2020.
Wurtsmith Air Force Base. Wurtsmith Air Force Base, a 5,000-acre site  near Oscoda, Michigan, has performed various air support missions since  it was established in the early 1920s, such as aircraft and vehicle  maintenance and air refueling. In 1977, the Air Force sampled drinking  water and monitoring wells on the site and found solvents, including TCE.  The U.S. Geological Survey also sampled and found TCE in the  groundwater. The base closed in June 1993 and in January 1994, EPA  proposed placing the site on the NPL. However, EPA did not list the site  because the state did not support listing after DOD placed the site in the  Base Realignment and Closure program and progressed with cleanup  under state oversight. Although TCE is still present in groundwater  plumes, EPA regional officials said the site has been cleaned up to the  point that it would no longer meet the requirements for the NPL.
Chanute Air Force Base. Chanute Air Force Base in Rantoul, Illinois,  provided military and technical training for Air Force and civilian  personnel on the operation and maintenance of military aircraft and  ground support equipment until DOD closed the base in 1990. The primary  sources of hazardous waste on the site include various landfills, fire  training areas and buildings that contained oil-water separators,  underground storage tanks, and sludge pits. The primary concern was the  potential for this contamination to migrate into a nearby creek. In April  2000, the governor wrote to the EPA region to express his support for  placing Chanute Air Force Base on the NPL, citing the state’s concern  about past operation and disposal practices at the site and because the  state was unable to reach an agreement with the Air Force on how the site  should be cleaned up. In December 2000, EPA proposed placing the site on  the NPL but the Air Force objected, citing a perception that listing was a  stigma and argued it could clean up the site by 2005 and on schedule if it  did not have to suspend cleanup to negotiate the provisions of an IAG. The  Air Force asked OMB to mediate the dispute. EPA presented its case for  listing the site to OMB, pointing out that the site’s HRS score supported a  proposal for listing, the governor of the state concurred, and listing would  help to assure that DOD would enter into an IAG with EPA to clean up. In  2003, OMB determined that EPA should not proceed with listing. OMB  encouraged EPA to defer listing the site for 6 months to provide DOD with  time to address personnel and contractor changes and demonstrate  remediation progress. If, after that time, progress was not forthcoming,  then listing was to be pursued, but in fact, never was. Although EPA  officials told us that cleanup at Chanute has progressed slowly, milestones  were met and EPA did not list the site. The Air Force estimates that it will  have all remedies in place by the end of fiscal year 2012 and all property  transferred from Air Force control by the end of fiscal year 2014. Although  cleanup is behind schedule, according to EPA regional officials, the site  has been cleaned up to the point that it is unclear whether the site would  score for the NPL if the listing process was started today. For example,  three of the four landfills have been capped and are no longer active.  Remedial investigation reports of the creek do not show the levels of  contamination detected when EPA proposed listing the site. Despite the  slow progress to clean up, EPA regional officials said they believe that  proposing the site for listing ultimately helped to start the cleanup process.
section_title: Four EPA Regions Did not List Sites Due to a Lack of Contamination or Hazardous Release or Because Sites Were Deferred to Another Cleanup Authority
paragraphs: As part of our review, we asked officials from four EPA regions to provide  the primary basis for their decision to not propose placing 389 DOD sites  under their jurisdiction on the NPL. (See fig. 4.) Based on a review of site  records and interviews with EPA regional officials, we found EPA did not  propose listing almost one-third of these sites (121 of 389, or 31 percent)  because site assessments found little to no contamination or hazardous  release on the site or no contamination exposure pathway or receptor. In  instances where EPA scored these sites, the HRS score was below the  minimum hazard ranking threshold for the NPL. One-quarter of these sites  (96 of 389, or 25 percent) were not proposed for the NPL because EPA  deferred them to another authority, such as a state agency under its RCRA  authority. We were unable to determine the rationale for EPA’s decision to  not list less than half of these sites (172 of 389, or 44 percent) because site  file records were missing, inconclusive, or not up to date. For example,  some site files showed that EPA had not yet determined whether to  propose listing, even though the site assessment was conducted decades  ago. According to EPA region officials, record-keeping practices have  varied over the years so that, in some cases, site files and the basis for  EPA’s decisions were not well documented or maintained.
section_title: Conclusions
paragraphs: While the number of DOD sites considered for placement on the NPL has  declined over the past decade, DOD sites still account for 9 percent of all  NPL sites. Despite years of negotiations, DOD and EPA have not finalized  IAGs to clean up 11 of the 140 DOD NPL sites. Most are more than a  decade overdue, yet EPA has made few efforts to use its enforcement  authority under CERCLA to compel parties to enter into IAGs, and to  select remedies at sites without agreements. While the Federal Facility  Compliance Act authorizes EPA to apply the same RCRA enforcement  policies to federal facilities as it does to nonfederal facilities, EPA has not  taken enforcement action at most federal sites. In light of prolonged  disagreements between DOD and EPA over the terms of the IAGs, and the  absence of any statutory consequences for failing to enter into an IAG,  now may be the time to reconsider the provisions required by CERCLA for  effective EPA oversight. While the law offers accountability through  citizen suits, transparency through public participation provisions, legal  recourse through enforceable schedules, and mechanisms for addressing  conflicts through dispute resolution provisions, at sites without IAGs EPA  lacks the leverage needed to provide strong environmental stewardship.  Bringing the parties together for further discussions with relevant  oversight committees may facilitate resolution at the sites without IAGs.  While the pattern of delays in DOD’s preliminary assessment process  appeared to go unchallenged by EPA, we believe EPA’s failure to enforce a  time line for completion further exacerbated this process. These  conditions suggest a need for stronger enforcement and reporting as well  as a serious commitment to address ongoing challenges.
We believe Congress should be kept apprised of the situations where  agreements are lacking. However, EPA has not used its annual report to  Congress to provide this information. Moreover, because EPA was unable  to make available documentation of the basis for its decisions whether to  list or not list DOD sites, it is impossible for EPA to provide a justification  for its decisions for many of the sites placed on or left off of the NPL.
section_title: Matter for Congressional Consideration
paragraphs: Given the critical nature of Superfund cleanup for protecting public health,  and the long-term commitment necessary to maintain strong  environmental stewardship at federal facilities, we encourage Congress to  ensure accountability by DOD and EPA by raising concerns about the  impasse between these federal agencies, if IAGS are not finalized within 60  days following issuance of this report. Specifically, Congress should  consider amending CERCLA Section 120 to authorize EPA to impose  administrative penalties at federal facilities placed on the NPL that lack  IAGs within the CERCLA-imposed deadline of 6 months after completion  of the remedial investigation and feasibility study. This leverage could help  EPA better satisfy its statutory responsibilities with agencies that are  unwilling to enter into agreements where required under CERCLA Section  120. In addition, Congress may wish to consider amending Section 120 to  authorize EPA to require agencies to complete preliminary assessments  within specified time frames.
section_title: Recommendations for Executive Action
paragraphs: To facilitate congressional oversight of the Superfund program and  provide greater transparency to the public on the cleanup of DOD sites, we  recommend that the Administrator of EPA improve its record keeping in  the following manner. Consistent with good management practices  defined in EPA’s Superfund program implementation manual and to  ensure that meaningful data are available for the agency’s reports to  Congress, EPA should establish a record-keeping system, consistent  across all regions, to accurately document EPA decisions regarding the  proposal of DOD sites for inclusion or exclusion on the NPL and the basis  for each decision.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to EPA and DOD for review and  comment. In its letter, EPA agreed with our recommendation that  Congress should provide greater enforcement authority under CERCLA to  impose administrative penalties at federal facilities placed on the NPL,  stating that greater authority would help to assure timely and protective  cleanup of NPL sites. EPA did not comment specifically on our  recommendation that EPA improve its record keeping but acknowledged  that some file data supporting EPA’s decisions regarding the proposal of  DOD sites for NPL listing are missing or otherwise insufficient. In general,  EPA agreed with the findings and conclusions of our report. EPA also  provided general comments related to the declining number of DOD sites  proposed for listing; specifically, whether state objections and the  declining number of newly discovered hazardous substance releases in  recent years has caused a reduction in the number of DOD sites proposed.  In addition, while EPA agrees with GAO that typical sources of  contamination on DOD sites have been fairly well characterized, it adds  that other areas have not been evaluated, and there may still be sites with  undiscovered sources of contamination, such as military munitions sites.  GAO has made changes to the report to respond to these comments. We  also addressed EPA’s technical changes, throughout the report, as  appropriate. See appendix III for EPA’s letter.
In its letter commenting on the findings and conclusions of our report,  DOD disagreed with our assertion that additional EPA oversight or  enforcement authority was needed and, if provided, would help assure  that NPL sites are cleaned up. According to DOD, EPA is actively involved  in reviewing response actions at DOD NPL sites, regardless of whether an  IAG is in place. Further, DOD stated that GAO’s report provides no  evidence that the lack of an IAG at any DOD NPL site has delayed,  diminished, or reduced the timeliness or quality of DOD’s response and  that EPA does not need additional oversight enforcement authority but,  rather, should strive to more effectively implement its authority under  existing law.
We continue to assert that an expansion in EPA’s enforcement authority is  warranted. According to recent discussions with EPA officials, the agency  cannot confirm whether all areas of contamination have been identified or  whether they are being addressed properly at NPL sites without IAGs,  particularly where DOD signed unilateral records of decision without EPA  concurrence, such as at Langley Air Force Base in Maryland. Further, we  believe our report demonstrates that EPA has experienced considerable  difficulty employing its existing enforcement authorities, and that DOD  has resisted EPA’s decision to use its existing authority to require that  DOD enter into IAGs at NPL sites. DOD’s comments notwithstanding, the  issue is DOD’s refusal for more than a decade to enter into IAGs required  by CERCLA Section 120 to clean up DOD NPL sites. As EPA officials have  noted, without an IAG, the agency does not have the enforcement  authority to assure that DOD cleans up according to an agreed-upon  remedy. Further, the question is not whether DOD believes that EPA is  sufficiently involved at DOD NPL sites, but whether the statutory  requirements for EPA’s involvement have been satisfied. CERCLA Section  120 provides for independent EPA oversight, not mere opportunity for  EPA review and comment. The procedures in Section 120 may not be  disregarded simply because some cleanup progress is occurring. As  mentioned in our report, Maryland’s December 2008 suit against the Army  seeking to compel compliance with EPA’s administrative order at Fort  Meade is evidence that at least one state disagrees with DOD’s assertion  that the progress of cleanup is unaffected by the lack of an IAG. Therefore,  we continue to believe that additional EPA enforcement authority is  needed to ensure that cleanup is being pursued properly at federal facility  NPL sites.
DOD’s letter also provided some technical comments which we  incorporated throughout the report along with DOD’s technical changes,  as appropriate. See appendix IV for DOD’s letter.
As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the Administrator of EPA,  the Secretary of DOD, and interested congressional committees. The  report will also be available at no charge on the GAO Web site at  http://www.gao.gov.
If you or your staffs have any questions about this report, please contact  me at (202) 512-3841 or stephensonj@gao.gov. Contact points for our  offices of Congressional Relations and Public Affairs may be found on the  last page of this report. GAO staff who made major contributions to this  report are listed in appendix V.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: We were asked to determine (1) the extent of the Environmental  Protection Agency’s (EPA) oversight during assessment and cleanup at  Department of Defense (DOD) National Priority List (NPL) and non-NPL  sites and (2) why EPA has proposed fewer DOD sites for inclusion on the  NPL since the early 1990s.
To examine the extent of EPA’s oversight during assessment and cleanup  of DOD NPL and non-NPL sites, we reviewed the Comprehensive  Environmental Response, Compensation, and Liability Act (CERCLA) and  other legislation governing the cleanup of federal hazardous waste sites, as  well as EPA Superfund program policy and guidance, to determine the  roles and responsibilities of EPA and federal agencies, such as DOD, to  implement the CERCLA process and assess and clean up hazardous waste.  We reviewed EPA and DOD reports to the Congress on the Superfund and  Defense Environmental programs, respectively. We reviewed EPA and  DOD policy and guidance on interagency agreements (IAG), including the  model agreements, and correspondence relating to the negotiation of IAGs  for selected DOD sites. We conducted several interviews with EPA and  DOD headquarters officials on issues related to IAGs and enforcement. At  GAO’s request, EPA provided data from its computerized CERCLA  information database of actual and potential hazardous releases at federal  and private sites. Based on these data, we worked with EPA to identify the  universe of DOD sites and obtain certain information on these sites, such  as NPL status. To determine the reliability of the CERCLA information  database, an EPA headquarters official contacted each EPA region and  asked them to verify selected information, such as the number of DOD  sites and their NPL status. During site visits to selected EPA regions, we  also confirmed certain information in the CERCLA information database  by reviewing site file documentation, where available, and interviewing  EPA region officials. Based on this work, we determined that these data  were sufficiently reliable for the purposes of this report. We interviewed  EPA headquarters officials on the agency’s policies and processes under  the Superfund program to ensure that contaminated federal DOD sites,  both NPL and non-NPL, are assessed and cleaned up. We interviewed DOD  headquarters officials on DOD’s role and responsibilities to identify,  report, assess, and clean up, as necessary, hazardous releases at NPL and  non-NPL DOD sites. We also interviewed officials at four EPA regions on  their oversight of contaminated federal DOD sites, both NPL and non-NPL,  to assure that sites are assessed and cleaned up. We conducted our work  at four EPA regions—Atlanta, Chicago, Dallas, and San Francisco—which,  taken together, were responsible for about half of the 845 non-NPL DOD  sites. We selected the Atlanta and Chicago regions because they were  responsible for five DOD sites that EPA proposed for NPL inclusion but  which were not listed. We selected the San Francisco region because it  had the largest number of non-NPL DOD sites. We selected the Dallas  region to pretest our review methodology because it was geographically  convenient.
To determine why EPA has proposed fewer DOD sites for NPL inclusion  since the early 1990s, we reviewed EPA policy and guidance on proposing  sites for the NPL and interviewed EPA headquarters and regional officials  on the reasons why EPA has proposed fewer sites. We interviewed DOD  headquarters officials on its progress to identify and assess potentially  contaminated DOD sites and the reasons why fewer hazardous releases  have been identified. We interviewed EPA and DOD officials on  contaminated DOD sites that EPA proposed for the NPL, why some were  not listed, and the status of cleanup at these sites. Finally, for selected  DOD sites, we evaluated the basis for EPA’s decision to not propose listing  certain contaminated DOD sites by reviewing site file documentation and  interviewing EPA regional officials regarding all non-NPL DOD sites at  four EPA regions. We excluded from our review sites under DOD’s military  munitions response program because of the ongoing uncertainty  concerning the degree to which spent military munitions are subject to  RCRA and CERCLA, and the fact that GAO has ongoing work in this area.  Based on our review of contaminated DOD sites at four EPA regions, we  attempted to determine the primary basis for EPA’s decision to not  propose to list the site. However, we were unable to confirm the basis for  EPA’s decision to not propose listing less than one-half of the sites  surveyed (172 of 389, or 44 percent) because site file documentation, such  as records of EPA’s decisions and recommendations concerning sites, was  missing or inconclusive. For example, officials at one EPA region told us  they could not determine how many sites required no further action after  either a preliminary assessment or site inspection because, prior to 1990,  the region did not document the basis for determining that no further  action was required.
section_title: Appendix II: Other Cleanup Programs
paragraphs: In addition to the Comprehensive Environmental Response,  Compensation, and Liability Act (CERCLA), there are a number of other  cleanup authorities EPA considers in deciding whether to list a site  include state cleanup programs (often referred to as voluntary cleanup  programs) and the Defense Environmental Restoration program.  Specifically:  State Cleanup Programs. Over the years, most states have developed their  own cleanup programs, often referred to as voluntary state cleanup  programs. Some state cleanup programs address hazardous waste sites  independent of a state’s Resource Conservation and Recovery Act (RCRA)  program. Often, state cleanup projects begin with a preliminary site  assessment and if contamination is suspected, an on-site investigation is  conducted. EPA does not have oversight of state cleanup programs but  has entered into memoranda of agreement or understanding with some  states, recognizing the use of the state’s cleanup program to address  hazardous waste sites under a state’s non-RCRA authority.
Defense Environmental Restoration Program. In 1986, Congress amended  CERCLA and required that DOD establish an environmental restoration  program under which all response actions at hazardous waste  contaminated sites—such as site identification, investigation, and  cleanup—must be conducted consistent with Section 120 of CERCLA.  More than 15 years later, the National Defense Authorization Act for Fiscal  Year 2002 required that DOD also develop an inventory of all DOD sites  known or suspected to contain unexploded ordnance, military munitions,  or munitions constituents throughout the United States and develop a  methodology for prioritizing response actions at these sites. Today, DOD’s  environmental response program includes an installation restoration  program, which in 1985 began addressing hazardous releases resulting  from past practices, and a military munitions response program,  established as a separate program in 2001, to address safety and  environmental hazards from unexploded ordnance and munitions on  other-than-operational ranges (ranges that are closed, transferred or  transferring). As of fiscal year 2007, DOD reported there were 27,950  installation restoration program sites on DOD facilities and former defense  sites, of which 23,980, or 86 percent, had achieved “remedy in place” or  “response complete” status. At 3,537 munitions response sites at current  DOD facilities and former defense sites, a total of 940, or 27 percent, had  achieved “remedy in place” or “response complete” status. DOD completed  an initial inventory of munitions response sites in fiscal year 2002. Since  then, DOD has been working to reconcile its inventory which includes  conducting site assessments (preliminary assessments and, if needed, site  inspections) of all sites. DOD estimates it will complete site assessments  for all munitions response sites by the end of fiscal year 2010 except for  sites on former defense sites. Former defense sites represent the majority  of sites with suspected munitions response sites and, according to DOD,  site assessments for munitions sites on former defense sites will not be  completed until about 2013.
Under the Defense Environmental Restoration Program, DOD cleans up  environmental hazards and contamination on active installations,  installations being closed under DOD’s Base Realignment and Closure  program, and at formerly used defense sites. DOD is required to carry out  response cleanup actions under the program, subject to, and in a manner  consistent with, Section 120 of CERCLA. DOD is required to report  annually to Congress on its environmental restoration programs. As of  fiscal year 2007, DOD reported that its goal was to clean up all known  releases (or achieve a “remedy in place” status) on active installations by  the end of fiscal year 2014 and all sites on formerly used defense sites by  the end of fiscal year 2020.
section_title: Appendix III: Comments from the Environmental Protection Agency
section_title: Appendix IV: Comments from the Department of Defense
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Diane B. Raynes, Assistant  Director; Elizabeth Beardsley; Christine D. Frye; Richard Johnson; and  Alison O’Neill made major contributions to this report. Amy Ward-Meier  also made key contributions.