Environmental Contamination: DOD Has Taken Steps to Improve Cleanup Coordination at Former Defense Sites but Clearer Guidance Is Needed to Ensure Consistency
Published: 2003-03-28T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The U.S. Army Corps of Engineers (Corps) is in charge of addressing cleanup at the more than 9,000 U.S. properties that were formerly owned or controlled by the Department of Defense (DOD) and have been identified as potentially eligible for environmental cleanup. The Corps has determined that more than 4,000 of these properties have no hazards that require further Corps study or cleanup action. However, in recent years, hazards have surfaced at some of these properties, leading state and federal regulators to question whether the Corps has properly assessed and cleaned up these properties. In this context, Congress asked us to (1) analyze federal coordination requirements that apply to the cleanup of these properties, (2) assess recent DOD and Corps efforts to improve coordination, and (3) identify any issues regulators may have about coordination with the Corps.
section_title: What GAO Found
paragraphs: Federal law requires DOD and the Corps of Engineers to consult with state regulatory agencies and EPA during the process of cleaning up formerly used defense sites (FUDS). However, the law only provides specifics for the cleanup phase for hazardous substances. DOD's Management Guidance and the FUDS Program Manual do not provide clear direction or specific steps for involving regulators in the FUDS program. In addition, both the law and the guidance are silent on the subject of consultation or coordination with regulators during the preliminary assessment phase, when the Corps makes decisions on whether a former defense site is eligible for DOD cleanup and whether further investigation and/or cleanup are needed. DOD and Corps officials told GAO that they would revise their guidance to include specific, but as yet undetermined, instructions for coordination with regulators during such decisions. DOD and the Corps have recently taken several steps to improve coordination. For example, they are working with the regulatory community to develop specific steps that Corps districts can take, such as providing states with updated lists of current and future FUDS program activities in their states and initiating a new pilot program in nine states that has the Corps working side by side with regulators in the cleanup of former defense sites. In addition, several Corps districts have independently taken steps to improve coordination with state regulators. DOD and the Corps will need to assess the effectiveness of these various initiatives to determine which are successful and should be included in program guidance to all districts. Despite the improvements in coordination, regulators still raised two major issues about Corps coordination on the FUDS program. First, some states believe that they lack the information necessary to properly oversee cleanup work at former defense sites and to judge the validity of Corps decisions. For example, 15 of the 27 states GAO contacted believe they need to be involved in knowing what the Corps is doing during the preliminary assessment phase. Also, 9 of the 27 states believe they need to be involved in project closeouts, so that they can ensure that the Corps has met state cleanup standards. Second, EPA believes it should have a larger role in the cleanup of former defense sites. Although states are the primary regulator at the majority of former defense sites and EPA is the primary regulator for only the 21 former defense sites that are on the list of the nation's worst hazardous sites, EPA believes that its role even on the unlisted sites should be greater. The agency believes that this would improve the effectiveness of the cleanups and increase public confidence overall. The Corps disagrees, and the two agencies have been unable to establish an effective working relationship on the cleanup for former defense sites. Commenting on a draft of this report, DOD stated that it generally agreed with the recommendations and was taking or planned to take steps that should, when completed, substantially correct the problems GAO cited.

section_title: Letter
paragraphs: More than 9,000 properties throughout the United States that were  formerly owned or controlled by the Department of Defense (DOD) are  potentially eligible for environmental cleanup. These formerly used  defense sites (FUDS) are now owned by states, local governments, and  individuals and are used for parks, schools, farms, and homes. Hazards at  these FUDS may include hazardous, toxic, and radioactive wastes in soil,  water, or containers, such as underground storage tanks; ordnance and  explosive wastes; and unsafe buildings. According to DOD, identifying,  investigating, and cleaning up hazards caused by DOD at FUDS will cost  $15 billion to $20 billion and take more than 70 years.
The FUDS program, which is run by the U.S. Army Corps of Engineers  (Corps), is part of the Defense Environmental Restoration Program. The  Superfund Amendments and Reauthorization Act of 1986 (SARA)  established this program. Depending on the types of hazards involved and  their severity, either state environmental regulatory agencies or the  Environmental Protection Agency (EPA) may be responsible for ensuring  that the Corps meets applicable requirements and standards when  cleaning up FUDS. In general, EPA is the primary regulator for the 21  FUDS properties on EPA’s list of the most dangerous hazardous waste  sites in the country—the National Priorities List. States are typically the  primary regulators for FUDS properties that have hazardous and other  wastes but have not been placed on the National Priorities List. Since  1984, the Corps has generally determined without regulator input that  more than 4,000 properties eligible for the FUDS cleanup program have no  hazards that require further Corps study or cleanup action. However,  since the late 1990s, hazards have surfaced at some of these FUDS, leading  state and federal environmental regulators to question whether the Corps  has properly assessed and cleaned up these and other FUDS.
There are many and varied opportunities for the Corps to coordinate with  regulators during the FUDS cleanup program. After a potential FUDS  property is identified, the Corps conducts a preliminary assessment of  eligibility to determine if the property was ever under DOD’s control prior  to October 17, 1986, and therefore eligible for the program. Upon  conclusion of the preliminary assessment of eligibility, the Corps conducts  additional studies, tests, and investigations at all properties eligible for  inclusion in the FUDS program where hazards are suspected to determine  if the hazards found were the result of DOD ownership or control, the  extent of any DOD-caused hazards, and the amount of DOD cleanup that  might be warranted. Eventually, for some properties, the Corps designs,  constructs, and operates a cleanup remedy such as treating contaminated  groundwater or removing contaminated soils. At each phase in the  program, the Corps has the opportunity to inform regulators of what it is  doing or proposing, obtain regulator input on its efforts, or provide  regulators with its results in the form of studies or reports.
In this context, you asked us to (1) analyze federal requirements for DOD  and the Corps to coordinate with state and federal regulators during the  FUDS cleanup program, (2) assess recent steps that DOD and the Corps  have taken to better coordinate, and (3) identify any issues regulators may  have about coordination with the Corps. As part of our review, we  surveyed state and Corps managers about cleanup projects at 519  randomly selected FUDS properties. We also interviewed state FUDS  program officials from the 27 states that account for 80 percent of FUDS  properties. Appendix I contains additional details on our scope and  methodology.
subsections: section_title: Background
paragraphs: The FUDS program is carried out by 22 Corps districts located throughout  the nation. DOD carries out its roles and responsibilities in cleaning up  FUDS primarily under the Defense Environmental Restoration Program,  which was established by section 211 of the Superfund Amendments and  Reauthorization Act of 1986. Under the environmental restoration  program, DOD is authorized to identify, investigate, and clean up  environmental contamination at FUDS. The U.S. Army, through the Corps,  is responsible for these activities and is carrying out the physical cleanup.  DOD is required, under the Defense Environmental Restoration Program,  to consult with the Environmental Protection Agency (EPA), which has its  own authority to act at properties with hazardous substances. In general,  EPA is the primary regulator for the 21 FUDS properties on EPA’s list of  the most dangerous hazardous waste sites in the country—the National  Priorities List. States are typically the primary regulators for FUDS  properties that have hazardous and other wastes but have not been placed  on the National Priorities List.
To determine if a property is eligible for cleanup under the FUDS program,  the Corps conducts a preliminary assessment of eligibility. This  assessment determines if the property was ever owned or controlled by  DOD and if hazards caused by DOD’s use may be present. If the Corps  determines that the property was at one time owned or controlled by DOD  but does not find evidence of any hazards caused by DOD, it designates  the property as “no DOD action indicated” (NDAI). If, however, the Corps  determines that a DOD-caused hazard that could require further study may  exist on a former DOD-controlled property, the Corps begins a project to  further study and/or clean up the hazard.
FUDS cleanup projects fall into one of four categories, depending on the  type of hazard to be addressed.
Hazardous waste projects address hazardous, toxic, and radioactive  substances, such as paints, solvents, and fuels.
Containerized waste projects address containerized hazardous,  toxic, and radioactive waste associated with underground and  aboveground storage tanks, transformers, hydraulic systems, and  abandoned or inactive monitoring wells.
Ordnance and explosive waste projects involve munitions, chemical  warfare agents, and related products.
Unsafe buildings and debris projects involve demolition and removal  of unsafe buildings and other structures.
The type and extent of the work that the Corps may need to perform at a  project depend on the project category. Hazardous waste and ordnance  and explosive waste projects involve a site inspection to confirm the  presence, extent, and source of hazards; a study of cleanup alternatives;  the design and implementation of the actual cleanup; and long-term  monitoring to ensure the success of the cleanup. Containerized waste and  unsafe buildings and debris projects, on the other hand, may involve only  the design and implementation of the cleanup.
section_title: Additional Guidance Would Help Ensure Coordination with Regulators
paragraphs: While federal law requires DOD and the Corps to consult with regulators,  including states and EPA, during the FUDS cleanup program, it does not  define consultation. Similarly, the two primary DOD and Corps guidance  documents for implementing the FUDS program emphasize the need for  Corps coordination with regulators but do not provide clear direction or  specific steps for involving regulators in the FUDS program. Our survey  results show a lack of consistent coordination between the Corps and  regulators throughout the history of the program that could be caused by  the lack of specific requirements that state explicitly what the Corps needs  to do to involve regulators. According to DOD, ongoing development of  regulations that will revise the Corps’ FUDS Program Manual will provide  clear direction and specific steps for involving regulators in the FUDS  program.
subsections: section_title: Federal Law and DOD and Corps Guidance Generally Require Coordination with Regulators but Do Not Contain Specific Requirements
paragraphs: Federal law requires DOD and the Corps to consult with regulatory  entities in carrying out the FUDS program. Under 10 U.S.C. 2701, the  Corps must carry out the FUDS program “in consultation with” EPA.  However, this section does not define consultation, mention the state  regulators, or prescribe specific steps for the Corps to follow. More  specific language regarding consultation as it relates to the cleanup of  hazardous substances is provided in 10 U.S.C. 2705. At projects involving  hazardous substances, the Corps must notify EPA and appropriate state  officials and provide them an opportunity to review and comment on  activities associated with (1) discovering releases or threatened releases  of hazardous substances at FUDS, (2) determining the extent of the threat  to public health and the environment that may be associated with such  releases, (3) evaluating proposed cleanup actions, and (4) initiating each  distinct phase of cleanup. In addition, CERCLA has specific consultation  requirements for properties on the National Priorities List, including the 21  FUDS on the list for which EPA is the primary regulator. For many of  these FUDS, EPA and DOD have signed a cleanup agreement stating that  the two agencies agree on the nature of the cleanup action and the  schedule for its completion.
DOD and the Corps have two major guidance documents for implementing  the FUDS program: the DOD Management Guidance for the Defense  Environmental Restoration Program and the FUDS Program Manual. The  DOD Management Guidance pertains to all DOD environmental cleanup  activities, including FUDS cleanup. It contains general guidance for the  Corps’ coordination activities. According to the guidance, DOD is fully  committed to the substantive involvement of state regulators and EPA  throughout the FUDS cleanup program and encourages cooperative  working relationships. The latest version of the guidance, published in  September 2001, emphasizes a greater need for coordination with  regulators. For example, the guidance states that the Corps shall    establish communication channels with regulatory agencies;   provide regulators access to information, including draft documents;   establish procedures for obtaining pertinent information from  regulators in a timely manner; and  involve regulatory agencies in risk determination, project planning,  completion of cleanup activities, and other tasks.
Although the updated DOD Management Guidance articulates general  steps that, if taken, would improve coordination between the Corps and  regulatory agencies, the guidance does not specify procedures on how to  take these steps. Further, some of the language is ambiguous and open to  broad interpretation. For example, “establish communication channels”  could mean anything from a telephone call once a year to weekly  meetings.
The second guidance document, the FUDS Program Manual, constitutes  the Corps’ primary guidance for the program. Regarding coordination, the  manual suggests, and sometimes requires, among other things, that the  Corps    notify states and EPA of discovery and cleanup activities related to    ensure that states and EPA have adequate opportunity to participate in  selecting and planning cleanup actions and in defining cleanup  standards for FUDS projects;    coordinate all cleanup activities with  appropriate state regulatory and    conduct cleanups of hazardous waste projects consistent with section  120 of CERCLA, which addresses cleanups of federal facilities; and  try to meet state and EPA standards, requirements, and criteria for  environmental cleanup where they are consistent with CERCLA.
Beyond generally restating statutory requirements, however, the FUDS  Program Manual provides no clear, specific guidance to its program  managers on how to implement those steps and coordinate consistently  with regulators. For example, “coordinate all cleanup activities” needs to  be defined and how to carry out and maintain such coordination on a day- to-day basis should be described more clearly. According to DOD and  Corps officials, the draft Engineer Regulation that is being developed to  revise the FUDS Program Manual includes specific instructions for review  of draft preliminary assessments of eligibility by regulators. Officials  added that they are open to further suggestions to improve coordination  and consultation with regulators.
section_title: Despite Requirements, Corps Officials Often Did Not Coordinate during the Cleanup Phase
paragraphs: Although coordination is required during the cleanup phase for hazardous  and containerized wastes, responses to our survey of FUDS properties  covering FUDS work that took place during the period from 1986 through  2001 indicate that state project managers believe the Corps coordinated  with them, on average, 34 percent of the time during cleanup, while the  Corps believes it coordinated with states an average of 55 percent of the  time during cleanup. Moreover, state and Corps respondents agree that  coordination was better for projects in our sample that addressed  hazardous substances than for projects that did not. For example,  according to state respondents to our survey, coordination for hazardous  waste projects was more than 25 percent higher than for ordnance and  explosive waste projects. (See table 1.) For additional survey results, such  as the percent of cases where respondents felt there wasn’t any  coordination or gave “don’t know” responses, see appendix II.
Despite the greater coordination for projects addressing hazardous  substances, the Corps is not involving the states consistently. For  example, for projects addressing hazardous substances, the Corps is  required by law to inform states before starting each phase of any action  and to provide states an opportunity to review and comment on proposed  cleanup actions. However, according to the states, the Corps informed  them of upcoming work at these hazardous waste projects 53 percent of  the time and requested states’ input and participation 50 percent of the  time. As shown in table 1, while the Corps thought it had coordinated at a  higher rate, it was still less than the required 100 percent. The fact that  DOD and Corps guidance does not offer specific requirements that  describe exactly how the Corps should involve regulators could be a factor  behind the historical lack of consistency in Corps coordination with  regulators.
section_title: Guidance Does Not Cover the Preliminary Assessment of Eligibility and Very Little Coordination Took Place During This Phase
paragraphs: The DOD Management Guidance and FUDS Program Manual are silent on  regulators’ roles in preliminary assessments of eligibility, during which  decisions on property eligibility and the need for cleanup are made, in part  because the law requiring consultation with regulators is broad and does  not mention consultation with the states, only with EPA. The Corps has  historically regarded preliminary assessments of eligibility as an internal  matter that does not require coordination with regulators. However,  according to DOD, the draft Engineer Regulation, which will revise the  FUDS Program Manual, will require the Corps to share information with  the states, EPA, and local authorities during the development of the  preliminary assessment of eligibility and will solicit their input. According  to the results of our survey, the state project managers believe the Corps  coordinated with them about 6 percent of the time, and the Corps project  managers believe the Corps coordinated with states about 27 percent of  the time. (See table 2.)  As a result, there is no consistent coordination at  this stage of the FUDS program. For additional survey results, such as the  percent of cases where respondents felt there wasn’t any coordination or  gave “don’t know” responses, see appendix II.
Also, according to state and Corps respondents to our current survey, the  Corps provided final reports on its preliminary assessments of eligibility to  state regulators in 48 and 56 percent of the cases, respectively. In the past,  states were only notified after the fact about the results of preliminary  assessments of eligibility; however, the Corps said that although not  required in its current guidance, its current practice is to coordinate all  new preliminary assessments of eligibility with states. Subsequently,  according to FUDS program officials in 12 of the 27 states we contacted,  there has been some improvement in overall Corps coordination during  the preliminary assessment of eligibility over the last 3 years. In particular,  those states told us that while the Corps is still not required to coordinate  with them during its preliminary assessments of eligibility, it has been  doing a better job of providing them with draft and final reports on the  outcomes of preliminary assessments of eligibility.
section_title: DOD and the Corps Have Taken Some Steps to Improve Coordination with Regulators, but Assessment of These Efforts and Clearer Guidance Is Needed
paragraphs: Over approximately the last 3 years, states have noted an overall  improvement in the Corps’ coordination with them. For example, FUDS  program officials in 20 of the 27 states we contacted reported that, overall,  Corps coordination with them has improved during this time. The main  factors state officials cited for the improvement include an increase in the  number of meetings they were invited to attend with Corps project  managers on specific project tasks, more information provided by the  Corps to the states regarding project work, and better coordination in  setting work priorities. DOD and the Corps started to take steps to address  the coordination issue in response to the concerns that the states began to  voice in the late 1990s about their lack of involvement in the FUDS  program. Initially, DOD’s efforts consisted of steps such as sponsoring  conferences to encourage greater coordination between the Corps and  regulators. Individual Corps districts also took steps to improve  coordination.
As part of the efforts to improve coordination, the Deputy Assistant  Secretary of the Army for Environment, Safety and Occupational Health,  along with members of the regulatory community, formed the FUDS  Improvement Working Group in October 2000 to address FUDS program  concerns and to improve communication among the Corps, the regulators,  and other parties with an interest in FUDS cleanup. The working group,  which consisted of DOD, Corps, state, EPA, and tribal representatives,  compiled a list of issues to be addressed through better communication  and consistent coordination, including the role of regulators in setting  priorities and planning work at FUDS properties and in the final closeout  of properties after cleanup.
Two results of the working group’s efforts to improve coordination are  new Army guidance and a pilot program. First, in April 2001, Army  headquarters sent a memorandum to Corps divisions and districts  responsible for FUDS work requiring them to follow specific steps when  dealing with regulators during the FUDS cleanup program. For example,  the memorandum required the Corps to  inform states of FUDS that are likely to go through a preliminary  assessment of eligibility,    provide states with updated lists of all ongoing and future activities at   involve states in setting priorities for FUDS work,    provide states a final list of FUDS that will undergo some type of work  in the coming year,  inform states of any Corps deviation from planned work and provide  them with the rationale for any such changes, and  involve states in developing the final report of the preliminary  assessment of eligibility.
The Corps considers this directive to be a first step in improving the states’  somewhat negative perceptions of the FUDS program and overall  communication between the Corps and the states. The directive addresses  many state concerns, including lack of  information about which FUDS properties the Corps is working on,  involvement in and information about preliminary assessments of  eligibility and their outcomes, and    state regulatory involvement in setting priorities for Corps FUDS work.
However, after almost 2 years, the memo’s conclusions have not been  incorporated in either DOD’s Management Guidance or the Corps’ FUDS  Program Manual. According to DOD, the Corps is now in the process of  revising the FUDS Program Manual as an Engineer Regulation to include  specific requirements for Corps district coordination with EPA and state  regulators.
The second result from the working group is a pilot program developed by  the Army in March 2001 under which the Corps and regulatory agencies,  including states and EPA, jointly prepare statewide Management Action  Plans for FUDS properties. Specifically, for each state participating in the  pilot, information provided by EPA, state regulators, and other relevant  parties is consolidated on each FUDS property in the state to prepare a  statewide Management Action Plan. Each state plan provides a  coordinated strategy for investigating and cleaning up FUDS that  identifies the key participants and their roles at FUDS cleanups,    provides an inventory of all FUDS located in the state,   sets priorities for cleaning up FUDS properties and projects, and   develops statewide work plans.
Overall state reaction to this pilot has been favorable. FUDS project  managers in 19 of the 27 states that we contacted believe that this pilot  will improve future communication between the Corps and the states.
To date, the four states that participated in the initial phase of the pilot— Colorado, Kansas, Ohio, and South Dakota—have statewide plans. The  plans’ approaches vary to address each state’s unique circumstances. For  example, the Kansas plan was very detailed, covering the status of state  and federal environmental programs, the status of the FUDS program, and  providing details about Kansas FUDS properties. Conversely, the South  Dakota and Colorado plans focused only on regulator and budget issues.  Corps officials stated that they receive input from state representatives of  organizations in the working group regarding whether the pilot has been  successful. Recognizing that the variation in state approaches as to how  these Management Action Plans are developed might be appropriate, DOD  says that it plans to work with the FUDS Improvement Working Group to  evaluate the success of the pilot and determine best practices that could  be shared with the nine additional states that participated in the second  round of the pilot during fiscal year 2002: Alaska, Arizona, Massachusetts,  Missouri, North Carolina, South Carolina, Texas, Virginia, and Wyoming.  DOD views the pilot as a success and plans to continue the development  of statewide Management Action Plans for an additional six states during  fiscal year 2003, including Alabama, Hawaii, Michigan, New Mexico, New  York, and Washington. As part of this effort, DOD plans to develop a  format that meets the needs of each particular state. Corps officials stated  that the Corps will highlight the minimum elements that must be in a  Statewide Management Action Plan but will not dictate the plan’s exact  format.
In addition to the DOD and Corps efforts taken to improve coordination,  individual Corps districts also took steps to improve coordination with the  states in which they operate, as follows:    The Alaska district began sharing with state regulators backup  documents related to its preliminary assessments of eligibility and  inviting regulators to accompany district officials on site visits during  the preliminary assessments of eligibility. The Alaska district now also  involves state regulators in developing work plans and is in the process  of establishing formal procedures to achieve project and property  closeouts that are jointly agreed upon by the Corps and the state.
The Louisville district, in response to state concerns, began to reassess  its previous NDAI determinations at Nike missile sites.
Since 1998, the Kansas City district has been holding quarterly  meetings with states and EPA to establish lines of communication  between the Corps and regulators; the district has also entered into  memorandums of agreement with states and EPA outlining roles and  responsibilities for each.
The Fort Worth district invited interested parties, including officials  from another district and state regulators, to its June 2001 meeting to  set priorities and plan FUDS work for the upcoming year.
The Honolulu district and EPA Region 9 cochair meetings semi- annually to foster communication on the FUDS program in the Pacific  area.
The Baltimore district provided electronic copies of all preliminary  assessment of eligibility reports to Delaware, Maryland, Pennsylvania,  and Washington, D.C., in 1999; similarly, the Norfolk district provided  most, if not all, such reports to the state of Virginia.
While these individual district efforts may yield positive results, the Corps  has not assessed these efforts to determine if any might be candidates for  Corps-wide implementation. The Corps believes it is a best practice to  allow individual districts and regulators to work out mutually agreed to  levels of coordination. However, without adequate guidance, direction,  and a menu of best practices for districts to choose from, inconsistent and  inadequate coordination may result. To better promote greater and more  consistent coordination with regulators, DOD and the Corps will need to  assess the success of individual district efforts to determine which lessons  learned from these activities should be included in program guidance.
section_title: Views of Regulators about FUDS Coordination Activities
paragraphs: Some state regulators, who are responsible for ensuring that applicable  environmental standards are met at most FUDS properties, believe that  inadequate Corps coordination has made it more difficult for them to carry  out their regulatory responsibilities. Also, state regulatory officials told us  that they have frequently questioned Corps cleanup decisions because  they have often not been involved in or informed about Corps actions at  FUDS. Conversely, they told us that when Corps coordination has  occurred, states have been more likely to agree with Corps decisions. At  the federal level, EPA and the Corps do not share the same view on EPA’s  role in the FUDS program. EPA believes that it should play a greater role  at the 9,000 FUDS that are not on the National Priorities List, while the  Corps believes that EPA’s role should remain limited to those FUDS that  are on the National Priorities List.
subsections: section_title: Some State Regulators Believe Poor Coordination by the Corps Makes It Difficult for Them to Ensure That Environmental Standards Are Met
paragraphs: Some state regulators we contacted believe that when the Corps does not  inform them of its FUDS cleanup activities or involve them in the various  stages of the FUDS program, they do not have the information necessary  to ensure that applicable cleanup standards have been met and that the  cleanup actions will protect human health and the environment. They  were particularly concerned about the preliminary assessment of  eligibility stage of the program and hazards such as ordnance and  explosive waste, for which the requirement in law (10 U.S.C. 2701)  “consultation with EPA” is very broad and without definition. Further, the  law does not mention consultation or coordination with state regulators.  Discussions with state regulators raised the issue that coordination  through all stages of the program was valuable and helped regulators  develop confidence in Corps decisions.
With regard to the preliminary assessment of eligibility, FUDS program  officials in 15 of the 27 states we contacted expressed specific concerns  regarding their limited involvement during this stage of the program. One  concern, which was raised by 12 of these officials, was that Corps  activities are taking place without their knowledge or involvement. Our  past work has shown the results of this lack of coordination. Our August  2002 report noted that because the Corps historically did not consult  states during its preliminary assessment of eligibility, states did not  discover until after the fact, in some cases years later, that the Corps had  determined that more than 4,000 properties required no further DOD study  or cleanup action. Moreover, in several cases in which DOD had made an  NDAI determination without involving the states, DOD-caused hazards  were later identified, and the Corps had to reassess the properties and  conduct cleanup work. At Camp O’Reilly in Puerto Rico, for example, the  Corps made an NDAI determination after it conducted a preliminary  assessment of eligibility that did not include a review of state historical  information on the use of the property. Several years later, the then-owner  of the property identified DOD-caused hazards at the property. This led to  a more comprehensive Corps assessment that found serious threats to  drinking water sources and other hazards that required cleanup under the  FUDS program.
Another concern about the preliminary assessment of eligibility voiced by  officials in 17 of the 27 states we contacted is that the Corps has not  adequately supported and documented its NDAI decisions, and it has not  involved states in developing them. Because of their lack of involvement  and what states perceive as a lack of adequate support for such Corps  decisions, these states believe they have little assurance that the Corps  performed adequate work during its preliminary assessments of eligibility  and that NDAI properties are, in fact, free of DOD-caused hazards. Our  survey of 519 FUDS properties also showed that, historically, states  approved of Corps NDAI determinations in only 10 percent of the cases; in  70 percent of the cases, state respondents could not say whether they  agreed or disagreed with the determination.
With regard to ordnance and explosive waste projects, one of the types of  projects states told us were most important to them, interviews with the  27 state FUDS program officials indicated that they were satisfied with the  Corps’ work on such projects in only 11 percent of the cases. This lack of  satisfaction could be, at least partially, the result of the relatively low  levels of state involvement in these projects. According to state survey  respondents, the Corps involved them, on average, in 23 percent of  ordnance and explosive waste projects. Corps guidance currently focuses  coordination on hazardous waste and does not specifically address  coordination of ordnance and explosive waste projects. However,  according to DOD, the draft Engineer Regulation that revises the FUDS  Program Manual includes specific requirements for district coordination  with regulators on such projects.
States also have various concerns about their limited involvement in the  FUDS work that occurs after the preliminary assessment of eligibility. For  example, FUDS program officials in 7 of the 27 states believe that being  more involved in setting priorities for the Corps’ project work could help  ensure that riskier sites were addressed in a timely manner. Further,  officials in 9 of the states we contacted said that when they are not  involved in project and property closeouts—the points at which the Corps  concludes that all its cleanup work has been completed—state regulatory  agencies have no assurance that Corps actions have met state cleanup  requirements.
Finally, when the Corps has coordinated with states, states have been less  likely to doubt the validity of Corps decisions and the adequacy of Corps  cleanup activities. According to our survey results, for example, when  states received final reports from the Corps, they agreed with Corps  decisions regarding the risk posed by a hazard, the characteristics of the  site, and the cleanup standards selected in 53 percent of the cases and  disagreed in only 13 percent. On the other hand, when states did not  receive such documentation, they agreed with Corps decisions in only 11  percent of the cases, disagreed in 15 percent, and did not know enough to  offer an opinion in 74 percent of the cases. Similarly, according to some  state FUDS program officials, as Corps coordination with states has  improved over the past 3 years, states’ acceptance of Corps decisions has  increased. For example, only one of the 27 state FUDS program officials  we contacted generally agreed with Corps NDAI decisions that were made  before the last 3 years. On the other hand, eight of these officials told us  that they agree with recent NDAI decisions that were made during the last  3 years.
section_title: EPA and the Corps Have Differing Views about Their Respective Roles and Management of the FUDS Program
paragraphs: EPA has historically had little involvement in the cleanup of the  approximately 9,000 FUDS that are not on its National Priorities List and  for which EPA is usually not the primary regulator. In the late 1990s, at  the request of some states, tribes, members of the general public, and  others, EPA increased its focus on environmental investigations and  cleanups of privately owned FUDS. In some cases, this has led to  disagreements between EPA and the Corps and required added efforts on  the parts of both agencies to reach agreement on how cleanup should be  conducted.
As EPA’s knowledge of the FUDS program and how it is carried out by the  Corps grew, EPA focused its attention on various issues, including the  following:    EPA, the Corps, and state regulators all have differing views of EPA’s  role at FUDS that are not on the National Priorities List. EPA believes  that, in certain instances, it should have a greater role at FUDS that are  not on the National Priorities List. DOD, citing its statutory  responsibility to carry out the FUDS program and a delegation of  CERCLA authority under an executive order, maintains that it is the  sole administrator of the FUDS program. States, which are responsible  for regulating cleanup at most FUDS, have varying opinions on what  EPA’s role in FUDS cleanup should be. Several states would like to see  EPA become more involved in the cleanup process, for example, by  participating in preliminary assessments of eligibility or providing  states with funds to review Corps work. Other states believe EPA’s role  is about right or that EPA has no role in the process unless a state  invites it to participate.
The way the Corps is to administer the FUDS cleanup program has also  been interpreted differently by the agencies. Specifically, 10 U.S.C. 2701  requires that the Corps perform work at FUDS projects involving  hazardous substances “subject to and in a manner consistent with”  section 120 of CERCLA, which addresses the cleanup of federal  facilities. Section 2701 also requires the Corps to carry out response  actions involving hazardous substances in accordance with the  provisions of the Defense Environmental Restoration Program and  CERCLA. However, EPA and the Corps disagree on the meaning of  these requirements. EPA contends that the Corps should follow  CERCLA regulations (the National Contingency Plan) and the EPA  guidance used to clean up non-FUDS properties under CERCLA. DOD  maintains its right to establish and follow its own procedures for  determining project eligibility under the Defense Environmental  Restoration Program, as long it performs response actions in a manner  consistent with its authorities under the Defense Environmental  Restoration Program and CERCLA.
EPA believes that DOD’s preliminary assessments of eligibility should  be as comprehensive as the preliminary assessments that EPA  conducts on non-FUDS properties. EPA’s CERCLA-based preliminary  assessments investigate entire properties for hazards, identifying the  source and the nature of hazards and the associated risks to human  health and the environment—information EPA needs to determine  whether properties qualify for placement on the National Priorities List.  In contrast, DOD’s preliminary assessments of eligibility focus on  determining whether the properties are eligible for cleanup under the  FUDS program and whether DOD-caused hazards may exist. According  to DOD, it collects information limited to DOD-related hazards in  accordance with the limits of its authorities under the Defense  Environmental Restoration Program. The FUDS Program Manual states  that DOD’s preliminary assessment of eligibility is not intended to be  equivalent to the CERCLA preliminary assessment. DOD officials said  that the draft Engineer Regulation, which revises the FUDS Program  Manual, addresses EPA concerns about coordination during the  preliminary assessment of eligibility.
DOD views preliminary assessments of eligibility as internal agency  documents for which there is no coordination requirement and has  generally not coordinated these assessments with EPA. As a result,  according to EPA officials, EPA often does not have access to the  information necessary for deciding whether a property should be  included on the National Priorities List. Consequently, EPA cannot be  assured that significant hazards to human health and the environment  that could warrant listing do not exist at a property, and EPA may need  to conduct its own, more comprehensive, preliminary assessment  under CERCLA.
Because of its focus on these issues, EPA re-evaluated its approach to  addressing privately owned FUDS, and, in March 2002, issued a policy for  addressing privately owned FUDS that are not on the National Priorities  List. The policy, issued to EPA’s regional offices to clarify the agency’s  role at these FUDS, outlines a framework for coordinating with the Corps  and EPA’s expectations for Corps consultation with them under the  Defense Environmental Restoration Program. For example, EPA would  like to see the Corps  involve it to a greater extent in FUDS work, such as preliminary  assessments of eligibility;    provide EPA, state regulatory agencies, and other interested parties  reasonable opportunities for meaningful review of and comment on  major decision documents, as well as documents associated with  carrying out specific FUDS activities, such as work plans and sampling  and analysis plans; and  respond in writing to comments from EPA, the states, and others and  show how it has addressed the comments or, if it has not, explain why  not.
Overall, EPA believes that a better-coordinated effort among all parties, as  discussed in its policy, would improve the effectiveness of cleanup at  FUDS and increase public confidence in the actions taken at these sites.  EPA’s policy also emphasizes that EPA does not expect its involvement to  be consistent across all phases of work; rather, it would increase its  involvement at a site when conditions warranted—for example, if there  were “imminent and substantial endangerment” or if EPA had concerns  about the appropriateness of the cleanup.
DOD disagrees with much of EPA’s new policy. For example, in  commenting on EPA’s draft policy, DOD requested that EPA delete from it  numerous references to EPA’s “oversight” and “review.” DOD, citing its  statutory responsibility to carry out the FUDS program and referring to a  delegation of CERCLA authority under an executive order, maintains that  the FUDS program is solely its program to administer. DOD also maintains  that 10 U.S.C. 2701, which provides for EPA’s consultation role under the  FUDS program, does not provide authority for EPA concurrence or  oversight of the program. According to DOD, EPA’s role should be limited  to FUDS for which EPA is the lead regulator—that is, primarily FUDS that  are on the National Priorities List.
Without an agreement on roles and responsibilities, DOD and EPA have  been unable to establish an effective working relationship on FUDS or  have had to undertake extra efforts to come to an agreement on how a  cleanup should be conducted. An example of this is the Spring Valley  FUDS in Washington, D.C., where the U.S. Army operated a research  facility to test chemical weapons and explosives during World War I.  Because the site was a formerly used defense site, DOD has responsibility  for cleaning up the site under the Defense Environmental Restoration  Program. However, under CERCLA, EPA has its own authority to act at  the site, including conducting investigations and removal actions. Further,  under EPA’s FUDS policy, EPA can take a more active role at FUDS if  conditions warrant. According to EPA officials, if a site is not listed as a  national priorities site or there is no imminent danger to the public or  environment, EPA may limit its role. Early in the 1980s, the specific role of  the two federal agencies at the Spring Valley site led to some confusion  and disagreement about the cleanup approach and the standards to be  applied. Over time, the federal agencies and the District of Columbia  government formed a partnership to reach agreements on cleanup at the  site. While the partners have not agreed on all cleanup decisions, they  acknowledged, as of June 2002, that the partnership was operating  effectively. Further, officials acknowledge that forming the partnership  has provided a means to foster communication and collaboration.
section_title: Conclusions
paragraphs: While state regulators reported to us that the Corps has improved its  coordination with them, more can be done in five areas to build on those  successes. First, our work has shown that many states would like to be  more involved in the preliminary assessment of eligibility stage of the  program. The program guidance is silent on regulators’ roles in  preliminary assessments of eligibility, in part because the law requiring  consultation with regulators is broad and does not mention consultation  with the states, only with EPA. The Corps has regarded preliminary  assessments of eligibility as an internal matter and has done little to  coordinate with regulators during the assessment. As a result, regulators  believe their ability to ensure that decisions about FUDS properties and  projects meet environmental standards and protect the public from  environmental contamination has been hindered. As we were completing  our work, DOD and Corps officials told us that they are in the process of  revising the FUDS Program Manual as an Engineer Regulation that would  include requirements for coordination during preliminary assessments.  Following through with this plan is critical to clearly establish that  coordination is required and lay out what steps need to be taken to ensure  that it occurs.
Second, as it updates its program guidance, incorporating the more  specific requirements sent out in an April 2001 memorandum would help  to ensure that coordination requirements are clear. Better clarity could  also result from a re-examination and clarification of existing DOD and  Corps FUDS program guidance documents that are general in nature and  contain ambiguous language. Third, DOD and Corps efforts have been  directed at improving coordination on hazardous waste projects but could  be enhanced by also requiring coordination for ordnance and explosive  wastes cleanup that can pose significant safety and health risks and in  which many of the states want to be more involved. However, DOD states  that it addresses coordination requirements at ordnance and explosive  waste projects in its draft Engineer Regulation, which replaces the FUDS  Program Manual.
Fourth, while the Corps has made various agencywide efforts to improve  coordination with regulators, such as its state management plans pilot  program, many beneficial coordination efforts have also occurred at Corps  districts through the initiative of individual Corps personnel. Evaluating  these district efforts and agencywide initiatives to incorporate successful  ones into its operating procedures for the FUDS program as a whole  would establish best practices and result in the entire program benefiting  from individual efforts.
Finally, at the federal level, EPA and the Corps disagree about EPA’s role  in the cleanup of more than 9,000 FUDS that are not on the National  Priorities List. Reaching agreement on these roles and expectations for  coordination is essential for establishing an effective working relationship  on FUDS. The lack of a good working relationship between two federal  cleanup agencies may hamper efforts to properly assess properties for  cleanup and may, in some cases, result in some duplication of effort—for  example, when EPA has to reassess the properties to determine if they  merit placement on the National Priorities List. In addition, while the  partnership formed by the two agencies at the Spring Valley FUDS  demonstrates that the agencies can work together, that is not the norm for  the FUDS program as evidenced by EPA’s March 2002 FUDS policy and  DOD’s response to it. Further, even if the agencies were able to negotiate  partnerships or memoranda of understanding for individual FUDS  properties, that is neither an efficient nor cost effective approach given  that there are thousands of FUDS properties needing cleanup.
section_title: Recommendations for Executive Action
paragraphs: To help ensure consistent coordination with regulators during all phases  of FUDS investigation and cleanup, we recommend that the Secretary of  the Department of Defense direct the Secretary of the Department of the  Army to follow through on its plans to develop and incorporate clear and  specific guidance in the Corps’ FUDS Program Manual as to how, when,  and to what extent coordination with regulators should take place,  including during preliminary assessments of eligibility. Moreover, in view  of the states’ concerns and hazards posed by ordnance and explosive  waste, the coordination guidance should address these types of projects as  well, not just those involving hazardous waste. In developing the guidance,  the Army should work with regulators to develop a consensus on how,  when, and to what extent coordination should take place.
As a starting point, we recommend that the Secretary of the Department of  Defense direct the Secretary of the Department of Army to    assess the impact of the Corps’ recent efforts to improve coordination  through actions such as directives and the Management Action Plan  pilot program and incorporate the successful components as  requirements into its FUDS Program Manual, and    assess practices individual Corps districts have used to coordinate with  regulators and develop a list of best practices for dissemination  throughout the Corps that districts might use to improve their  coordination.
In addition, in view of the need for federal agencies to ensure that cleanup  efforts are done properly and that scarce resources are best utilized, DOD  and EPA should work together to clarify their respective roles in the FUDS  cleanup program for properties that are not listed on the National  Priorities List. The agencies should agree on a time frame to establish a  memorandum of understanding that will lay out an overall framework for  how they will work together, including their roles and responsibilities,  during the assessment and cleanup of FUDS properties.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided DOD and EPA with a draft of this report for their review and  comment. DOD and EPA agreed with our findings and conclusions. In  addition, DOD agreed with two of the report’s recommendations and  partially agreed with the third, and indicated that it had begun or was  planning on taking actions to address all of them.
In response to our recommendation that DOD follow through on its plans  to develop and incorporate clear and specific guidance in the FUDS  Program Manual as to how, when, and to what extent coordination with  regulators should take place, including during the preliminary assessment  of eligibility phase and for ordnance and explosive waste projects, DOD  indicated that it is in the process of addressing this issue. Specifically, the  Corps is revising the FUDS Program Manual as an engineering regulation  that will include step-by-step procedures for regulatory coordination at  each phase of FUDS cleanup, including the preliminary assessment of  eligibility process, and for unexploded ordnance projects.
DOD also indicated that it is taking actions that should address our  recommendations that DOD assess the impact of recent Corps’ efforts to  improve coordination through actions such as the Management Action  Plan pilot program and incorporate the successful components as  requirements into its FUDS guidance. DOD is also assessing practices that  individual Corps districts have used to coordinate with regulators and  developing a list of best practices for dissemination and use throughout  the Corps. DOD stated that it is proposing to include best practices from  the Management Action Plan pilot in its engineering regulation and will  review individual District efforts aimed at improving coordination with  regulators to see if additional best practices should be developed.
In response to our recommendation that DOD and EPA work together to  clarify their respective roles in the FUDS cleanup program by establishing  a memorandum of understanding that will lay out an overall framework,  DOD is proposing to incorporate coordination and consultation  requirements in the appropriate procedural sections of the upcoming  engineering regulation, rather than using a memorandum of  understanding.
Overall, the steps being taken or planned by DOD to improve coordination  with regulators could, when completed, constitute a significant  improvement over current processes and should go a long way toward  addressing the problems identified in this report that were the subject of  our recommendations.
EPA did not comment specifically on the individual recommendations in  the report but did state that report did an excellent job of presenting  substantive information relative to DOD’s efforts to consult with  regulatory agencies.
In addition to their written comments, DOD and EPA also provided a  number of technical comments and clarifications, which we incorporated  as appropriate. DOD’s comments appear in appendix III and EPA’s  comments appear in appendix IV.
We conducted our review from March 2001 to September 2002 in  accordance with generally accepted government auditing standards.
As arranged with your offices, unless you publicly announce the contents  of this report earlier, we plan no further distribution of it until 30 days  from the date of this letter. We will then send copies to the Secretary of  Defense; the Director, Office of Management and Budget; appropriate  congressional committees; and other interested parties. We will also  provide copies to others upon request. In addition, the report will be  available, at no charge, on the GAO Web site at http://www.gao.gov/.
section_title: Appendix I: Additional Details on Our Scope and Methodology
paragraphs: The objectives of our review were to (1) identify federal requirements for  DOD and the Corps to coordinate with state and federal regulators during  the FUDS cleanup program, (2) determine the extent to which the Corps  has coordinated with state regulators since the start of the FUDS program  and assess the recent steps it has taken to better coordinate, and (3)  identify any concerns regulators may have about coordination with the  Corps.
To identify federal requirements that DOD and the Corps must meet in  coordinating with regulators, we obtained and reviewed the Superfund  Amendments and Reauthorization Act of 1986. To identify related DOD  and Corps guidance, we interviewed FUDS program officials and Corps  officials in various Corps districts and divisions. We then obtained and  reviewed the guidance documents, including the Defense Management  Guidance for the Defense Environmental Restoration Program, the Corps  FUDS Program Manual, and other related documents.
To determine how the Corps coordinates with state regulators during the  assessment and cleanup of FUDS, we conducted a survey. First, we drew a  stratified, random sample of 519 FUDS properties from the Corps’ FUDS  database, as of February 2001. The survey results cover FUDS program  activities that took place from 1986 through 2001. The sample consisted of  150 properties that did not have any projects associated with them and an  additional 369 properties that had at least one project with at least one  specific work phase completed. The following table summarizes our  sample in terms of the number of properties represented, as well as the  number and types of projects.
We obtained information from the Corps’ FUDS database to customize the  surveys depending on their cleanup phase as well as the types of projects,  if any, that were in the survey. At the property level, questions varied  depending upon whether 1) the Corps had determined that no DOD action  was indicated, 2) the database showed no projects associated with the  property and DOD had not made a determination that no DOD action was  indicated, and 3) the Corps had proceeded with at least some type of  project work. Project level questions varied depending on 1) the type of  project—for example, hazardous waste projects received a more complex  questionnaire than unsafe buildings and debris projects because  hazardous waste projects must go through more investigation and cleanup  phases and 2) how many of the investigation and cleanup phases the  Corps had completed at a project—as indicated by the Corps FUDS  database. For example, not all hazardous waste projects in our sample  have gone through all applicable phases. Based on information that the  Corps provided to us, we determined which phases were completed in  such projects and only asked questions related to the completed phases.  We then sent similar questionnaires to the current Corps and state project  managers of the properties in our sample to obtain the views of both  regarding coordination.
To obtain information on DOD efforts to improve coordination with  regulators and address their concerns, we interviewed DOD and Corps  headquarters officials and reviewed documents that they provided. In  addition, we contacted FUDS program officials at several Corps divisions  and districts, including the Great Lakes and Ohio River, North Atlantic,  South Atlantic, and Southwestern divisions, and the Alaska, Louisville,  Norfolk, Seattle, and Tulsa districts.
To obtain information on state regulators’ concerns regarding Corps  coordination with them regarding the FUDS program, we conducted  structured interviews with FUDS program managers in the 27 states that  account for most of the FUDS work. To determine which states to call, we  used the Corps FUDS database to identify the 20 states that had the  greatest number of FUDS properties. Because properties vary in terms of  the amount of work they involve—for example, the number of projects at  FUDS properties ranged between 1 and 43—-we also identified the 20  states that had the most FUDS projects. There were 27 states that fell into  at least one of these two categories, and they accounted for approximately  80 percent of all FUDS properties and all FUDS projects. To document  consistently the information we obtained from the FUDS managers in the  27 states, we developed a data collection instrument to guide our  interviews.
To obtain information on the Corps’ coordination with EPA and its  concerns regarding its role in the program, we interviewed officials at EPA  headquarters, including those from the Office of Solid Waste and  Emergency Response responsible for developing EPA’s guidance for  FUDS, and we reviewed documentation they provided. In addition, we  developed a data collection instrument to conduct structured interviews  with federal facilities officials who deal with FUDS issues at all 10 EPA  regions.
section_title: Appendix II: State and Corps Project Managers’ Responses to Our Survey Regarding Coordination at FUDS
paragraphs: Appendix II: State and Corps Project  Managers’ Responses to Our Survey  Regarding Coordination at FUDS  Combined total responses for two questions.
Combined total responses for two questions.
Combined total responses for two questions.
section_title: Appendix III: Comments from the Department of Defense
section_title: Appendix IV: Comments from the Environmental Protection Agency
section_title: Appendix V: GAO Contacts and Staff Acknowledgments
subsections: section_title: GAO Contacts
section_title: Acknowledgments
paragraphs: In addition to those named above, Gary L. Jones, Glenn C. Fischer, James  Musial, and Pauline Seretakis made key contributions to this report. Also  contributing to this report were Doreen S. Feldman, Art James, Nancy  Crothers, and Laura Shumway.