Superfund: Interagency Agreements and Improved Project Management Needed to Achieve Cleanup Progress at Key Defense Installations
Published: 2010-07-15T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Before the passage of federal environmental legislation in the 1970s and 1980s, Department of Defense (DOD) activities contaminated millions of acres of soil and water on and near DOD sites. The Environmental Protection Agency (EPA) has certain oversight authorities for cleaning up contaminants on federal property, and has placed 1,620 of the most contaminated sites--including 141 DOD installations--on its National Priorities List (NPL). As of February 2009, after 10 or more years on the NPL, 11 DOD installations had not signed the required interagency agreements (IAG) to guide cleanup with EPA. GAO was asked to examine (1) the status of DOD cleanup of hazardous substances at selected installations that lacked IAGs, and (2) obstacles, if any, to cleanup at these installations. GAO selected and visited three installations, reviewed relevant statutes and agency documents, and interviewed agency officials.
section_title: What GAO Found
paragraphs: EPA and DOD use different terms and metrics to report cleanup progress; therefore, the status of cleanup at Fort Meade Army Base, McGuire Air Force Base (AFB), and Tyndall AFB is unclear. EPA reports that cleanup at all three installations is in the early investigative phases, while DOD's data suggest that cleanup is further along and, in some cases, in mature stages. EPA and DOD have differing interpretations of cleanup progress because they describe and assess cleanup differently. In particular, while both agencies divide installations into smaller cleanup projects, DOD divides them into units generally smaller than EPA's; therefore, DOD measures its progress in smaller increments. Further, because DOD did not obtain EPA's approval for key cleanup decisions, EPA does not recognize them. Unless key cleanup decisions are justified, documented, and available to the public for review and comment, they are not sufficient under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and once an IAG is in place, some DOD cleanup work may have to be redone. When an agency refuses to enter into an IAG and cleanup progress lags, because of statutory and other limitations, EPA cannot take steps--such as issuing and enforcing orders--to compel CERCLA cleanup as it would for a private party. A variety of obstacles have delayed cleanup progress at these installations. First, DOD's persistent failure to enter IAGs, despite reaching agreement with EPA on the basic terms, has made managing site cleanup and addressing routine matters challenging at these installations. For example, in the absence of IAGs, DOD may fund work at other sites ahead of these NPL sites. Second, DOD failed to disclose some contamination to EPA and the public in a timely fashion, including lead shot on a playground, delaying cleanup and putting human health at risk. Third, the extensive use of performance-based contracts at these installations has created pressure to operate within price caps and fixed deadlines. In some cases, these pressures may have contributed to installations not exploring the full range of cleanup remedies, or relying on nonconstruction remedies, such as allowing contaminated groundwater to attenuate over time rather than being cleaned up. In particular, Tyndall AFB's long-standing lack of full compliance with environmental cleanup requirements, such as notification of hazardous releases and EPA's 2007 administrative order, has been an obstacle to verifiable cleanup of that installation.
section_title: What GAO Recommends
paragraphs: GAO is recommending, among other things, that EPA and DOD identify options that would provide a uniform method for reporting cleanup progress at the installations and allow for transparency to Congress and the public. EPA and DOD agreed with the recommendations directed at them. GAO is also suggesting that Congress may want to consider giving EPA certain tools to enforce CERCLA at federal facilities without IAGs. DOD disagreed with this suggestion. GAO believes EPA needs additional authority to ensure timely and proper cleanup at such sites.

section_title: Letter
paragraphs: Before federal environmental legislation was enacted in the 1970s and  1980s regulating the generation, storage, treatment, and disposal of  hazardous waste, Department of Defense (DOD) activities and industrial  facilities contaminated millions of acres of soil and water on and near  DOD properties in the United States and its territories. DOD properties  released hazardous substances to the environment primarily through  industrial operations to repair and maintain military equipment, and the  manufacturing and testing of weapons at ammunition plants and proving  grounds. From 1986 to 2008, DOD spent $29.8 billion on environmental  cleanup and restoration activities at its properties in response to such  hazardous releases. Furthermore, in its most recent annual report to  Congress, DOD expressed its commitment to full and sustained  compliance with federal, state, and local environmental laws and  regulations that protect human health and preserve natural resources.
To address the cleanup of hazardous releases at both private and  government facilities nationwide, in 1980, Congress passed the  Comprehensive Environmental Response, Compensation, and Liability Act  (CERCLA), better known as “Superfund.” Under CERCLA, as amended,  the Environmental Protection Agency (EPA) has certain oversight  authorities for cleaning up releases of hazardous substances, pollutants, or  contaminants on federal properties. As of April 2010, 1,620 Superfund sites  were on EPA’s National Priorities List (NPL), which identifies some of the  most seriously contaminated sites in the nation, of which 141 or almost 9  percent were DOD properties. As of February 2009, 11 of these properties  did not have an interagency agreement (IAG) despite CERCLA’s  requirement that federal agencies enter into IAGs with EPA within a  certain time frame to clean up sites on the NPL. DOD and EPA signed  IAGs for 7 of these installations between March 2009 and January 2010,  but as of June 2010, DOD had not signed IAGs for 4 of these properties,  even though they are required under CERCLA.
You asked us to review activities at selected DOD installations on the NPL  that lacked IAGs as of February 2009. Accordingly, this report examines  (1) the status of DOD cleanup of hazardous substances at selected DOD  installations that lacked IAGs and (2) obstacles, if any, to progress in  cleanup at these selected installations and the causes of such obstacles.
To select installations for review, from the 11 without IAGs at the start of  our review, we focused on the 4 that received EPA administrative cleanup  orders—Air Force Plant 44 in Arizona, Fort Meade Army Base in  Maryland, McGuire Air Force Base (AFB) in New Jersey, and Tyndall AFB  in Florida. EPA and DOD agreed that one of these—Air Force Plant 44— was near completion of the ordered cleanup and we therefore eliminated it  from our selection of installations. To determine the status of DOD  cleanup of hazardous substances at the three remaining installations, we  reviewed numerous technical documents and interviewed officials from  DOD, EPA, the Agency for Toxic Substances and Disease Registry  (ATSDR)—created by CERCLA to help determine the public health  consequences of the worst hazardous waste sites—and DOD contractors.  To identify any obstacles to progress in cleanup at the selected  installations and the causes of such obstacles, we reviewed federal  contracting guidelines and technical documents developed by DOD  installations and EPA regions, and interviewed officials from DOD, EPA,  ATSDR, the Fish and Wildlife Service, and the Architect of the Capitol as  well as state officials from Florida, Maryland, and New Jersey. We also  reviewed relevant laws, regulations, and policies. Appendix I includes  additional information about our selection criteria, scope, and  methodology. We conducted this performance audit from January 2009 to  July 2010 in accordance with generally accepted government auditing  standards. 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.
subsections: section_title: Background
paragraphs: This section discusses key aspects of relevant laws and history related to  the implementation of Superfund and the reporting and cleanup of  hazardous substances and hazardous waste at DOD installations.
subsections: section_title: Relevant Laws and Executive Orders
subsections: section_title: Resource Conservation and Recovery Act
paragraphs: In 1976, Congress passed the Resource Conservation and Recovery Act  (RCRA), establishing requirements, as well as giving EPA regulatory  authority, for the generation, transportation, treatment, storage, and  disposal of hazardous waste. Section 7003 authorizes EPA to issue  administrative cleanup orders where an imminent and substantial  endangerment to health and the environment may exist; if a nonfederal  recipient fails to comply, EPA can enforce the order, including fines, by  requesting that the Department of Justice (DOJ) file suit in federal court.  RCRA also authorizes citizen and state suits, including those to enforce an  administrative cleanup order.
section_title: Comprehensive Environmental Response, Compensation, and Liability Act
paragraphs: The passage of CERCLA in 1980 gave 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. EPA’s program implementing CERCLA is better known as  “Superfund” because Congress established a trust fund that is used to pay  for, among other things, remedial actions at nonfederal installations on the  NPL. Federal agencies cannot use the Superfund trust fund to finance their  cleanups and must, instead, use their own or other appropriations.
CERCLA does not establish regulatory standards for the cleanup of  specific substances, but requires that remedial actions—which are long- term cleanups—comply with “applicable or relevant and appropriate  requirements.” These requirements may include a host of federal and  state standards that generally regulate exposure to contaminants. CERCLA  also establishes authorities for removals, including expeditious response  actions by EPA and DOD to reduce dangers to human health, welfare, or  the environment such as an emergency response required within hours or  days to address acute situations involving actual or potential threat to  human health, the environment, or real or personal property due to the  release or threatened release of a hazardous substance. Generally,  removals are quicker, short-term responses to reduce risks, while remedial  actions are the culmination of the full CERCLA process to provide long- term protection of human health and the environment.
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 for cleanup at  defense installations. CERCLA requires DOD to comply with the law and the  NCP to the same extent as a nonfederal entity; thus, the same process and  standards for cleanup apply. Where there has been a release of a hazardous  substance where DOD is the lead agency, CERCLA section 103 requires  DOD to report such releases above reportable quantities as soon as it has  knowledge of such release to the National Response Center, and section  111(g) requires DOD to notify potentially injured parties of such release, and  promulgate regulations pertaining to notification. In addition, DOD 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 at NPL installations if it disagrees with DOD’s proposed remedy.
CERCLA section 120 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 a remedial action by the agency head and  EPA (or, if unable to reach agreement, selection by EPA); (2) the schedule  for completing the remedial action; and (3) arrangements for long-term  operations and maintenance at the installation. Federal agencies 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 (RI/FS) at  an installation. An RI/FS is performed at the site, typically after a site is  listed on the NPL. The RI serves as the mechanism for collecting data to  characterize site conditions; determine the nature of the waste; assess risk  to human health and the environment; and conduct treatability testing to  evaluate the potential performance and cost of the treatment technologies  that are being considered. The FS is the mechanism for the development,  screening, and detailed evaluation of alternative remedial actions. Because  such study culminates in a record of decision (ROD), EPA has interpreted  this requirement as triggered by the first ROD at an NPL site with multiple  cleanup activities. EPA and federal agencies often enter IAGs earlier so the  agreement may guide the study process as well.
IAGs between EPA and DOD include a site management plan, which is an  annually amended document providing schedules and prioritization for  cleanup of the installation, addressing all response activities and  associated documentation, as well as milestones. IAGs also specify  requirements for documents throughout the cleanup process, addressing  DOD’s submission, EPA’s review, and DOD’s response to EPA’s  comments. For “primary” documents, such as the site management plan,  RI/FS work plans and reports, RODs, final remedial action designs, and  remedial action work plans, the IAG establishes a review and comment  process intended to result in no further comment––essentially agency  agreement on the document; if either agency disagrees, it can submit the  issue to dispute resolution procedures. Hence, for purposes of this report  we consider that formal EPA approval is effectively required for these key  steps. IAGs do not subject removals to formal EPA approval, although  submission of certain documents is required (unless shown impracticable)  before an action is taken to allow EPA to comment. Removals are  intended to prevent, minimize, or mitigate a release or threat of release,  and are not subject to required cleanup goals, whereas a remedial action is  intended to implement remedies that eliminate, reduce, or control risks to  human health and the environment and generally involve establishing  numerical cleanup goals. Removals do not relieve DOD of completing  additional steps––such as RI/FS completion––or the full cleanup process  for the site with formal EPA approval, if required to ensure long-term  protection of human health and the environment. In some cases,  however, a removal action does fully address the threat posed by the  release, and additional cleanup is not necessary.
section_title: Superfund Amendments and Reauthorization Act
paragraphs: In 1986, the Superfund Amendments and Reauthorization Act (SARA)  added provisions to CERCLA—including section 120—specifically  governing the cleanup of federal facilities. Under section 120 of CERCLA,  as amended, a preliminary site assessment is to be completed by the  responsible agency for each property where the agency has reported  generation, storage, treatment, or disposal of hazardous waste. This  preliminary assessment is reviewed by EPA, together with additional  information, to determine whether the site poses a threat to human health  and the environment or requires further investigation or assessment for  potential proposal to the NPL.
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  involvement 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 cleanup orders are under RCRA and, as such, are subject  to SARA’s citizen suit and penalties provisions. Thus, IAGs can provide for  the assessment of penalties against federal agencies for violating terms of  the agreements. However, at installations without IAGs, EPA effectively  has only a limited number of enforcement tools to use in compelling a  recalcitrant agency to comply with CERCLA; similarly, states and citizens  also lack a key mechanism to enforce CERCLA.
section_title: Defense Environmental Restoration Program
paragraphs: Section 211 of SARA established DOD’s Defense Environmental  Restoration Program (DERP), providing legal authority and responsibility  to DOD for cleanup activities at DOD installations and properties,  including former defense sites. The statute requires DOD to carry out the  program subject to and consistent with CERCLA section 120. Among other  things, the DERP provisions require the Secretary of Defense to take  necessary actions to ensure that EPA and state authorities receive prompt  notice of the discovery of a release or threatened release, the associated  extent of the threat to public health and the environment, proposals to  respond to such release, and initiation of any response.
section_title: Executive Order 12580
paragraphs: Executive Order (E.O.) 12580, Superfund Implementation, was issued in  1987 to respond to SARA. E.O. 12580 delegates to EPA certain regulatory  authorities that the statute assigns to the President, while delegating to  DOD authority for removal and remedial actions at its facilities, subject to  section 120 and other provisions of CERCLA. The E.O. also constrains  EPA’s authorities under CERCLA section 106(a) to issue cleanup orders  and under section 104(e)(5)(A) to issue compliance orders for access,  entry, and inspections by the requirement that the Attorney General, DOJ  concur in such actions. In practice, EPA told us it has requested DOJ  concurrence approximately 15 times on unilateral section 106 orders to  federal agencies and, to date, DOJ has concurred only once, when the  recipient federal agency did not object.
section_title: Federal Law and Policy Affecting EPA Judicial Actions Against Other Federal Agencies
paragraphs: CERCLA authorizes the filing of civil actions to assess and collect  penalties for certain violations—such as failing to provide notice of a  release—and section 120 makes each federal department subject to the  full procedures and substance of CERCLA. RCRA similarly authorizes the  filing of civil actions to enforce— including by assessing fines—orders  issued under its imminent and substantial endangerment provision.  Nonetheless, as a practical matter, court action is not an available  enforcement tool to EPA against another federal agency. Federal law  generally reserves the conduct of litigation in which the United States is a  party exclusively to DOJ. EPA officials told us the agency has not sought  DOJ assistance for such actions because it is DOJ’s policy that one  department of the executive branch will not sue another in court.
subsections: section_title: Federal Facility Compliance Act
paragraphs: The Federal Facility Compliance Act of 1992, which amended RCRA,  authorizes EPA to initiate RCRA administrative enforcement actions  against a federal agency for the cleanup of contaminated properties,  among other things, as well as subjects federal agencies to RCRA’s  existing fines and penalties provisions. The act directs EPA to initiate  administrative enforcement actions against federal agencies as it would  against a private party.
section_title: History of Disputes Related to IAGs and Administrative Orders
paragraphs: In March 2009, we issued a report that suggested Congress may wish to  consider expanding EPA’s enforcement authority to give the agency more  leverage to better satisfy statutory responsibilities with agencies that are  unwilling to enter into IAGs where required under CERCLA. The report  was issued following DOD’s February 2009 agreement with EPA that  appeared to resolve a long dispute by determining that the 11 IAGs  outstanding at the time would be completed using an IAG between the  Army and EPA for Fort Eustis, Virginia, as a template. In addition, EPA  agreed to rescind each administrative cleanup order upon the effective  date of an installation’s IAG.
Soon after this approach for resolving outstanding disputes was agreed to  by EPA and DOD leadership, some progress was made in signing IAGs. For  example, the Army signed an IAG for Fort Meade Army Base in June 2009.  Likewise, the Air Force signed IAGs for McGuire AFB, Brandywine  Defense Reutilization and Marketing Office Salvage Yard, Langley AFB,  and Hanscom Field AFB, by November 2009.
In the absence of the required IAGs, DOD, at some installations, took a few  actions toward cleanup and, at others, proceeded with some cleanup  activities—including investigations, removals, and remedial actions— without EPA approvals, according to EPA officials. To address continued  challenges, EPA issued administrative cleanup orders at four DOD  installations, either under EPA’s RCRA authority, or under EPA’s Safe  Drinking Water Act authority. According to EPA officials, the agency  took the unusual step of issuing the orders because it needed them to  fulfill EPA’s cleanup oversight responsibilities at the sites in the absence  of IAGs. These administrative cleanup orders were issued as final in 2007  and 2008. In response, DOD challenged the validity of the administrative  cleanup orders and asked DOJ to resolve certain questions in dispute  between DOD and EPA over the terms of the IAGs and the circumstances  under which EPA may issue administrative cleanup orders at such NPL  installations. In December 2008, DOJ issued a letter upholding EPA’s  authority to issue administrative cleanup orders at DOD NPL installations  in general, without discussing whether the facts supported these specific  orders. DOJ’s letter also supported including provisions in IAGs, such as  the types of provisions that EPA regularly includes in its cleanup  agreements with private parties, in addition to those specifically in  CERCLA, while stating the opinion that DOD does not necessarily have to  agree to all extra-statutory terms.
After DOJ’s letter, the Fort Meade Army Base recognized EPA’s 2007  administrative cleanup order under RCRA and gave formal notice to EPA  that the Army would comply with the order. However, at about the same  time, the state of Maryland filed a lawsuit in December of 2008 against the  Army “to force the Army to investigate fully and remediate soil and  groundwater contamination resulting from years of mismanagement of  hazardous substances, solid waste, and hazardous waste,” and to enforce  EPA’s 2007 administrative cleanup order. In November 2009, the state  voluntarily withdrew the suit after the Army, EPA, and two other federal  agencies signed an IAG for Fort Meade. By the terms of the IAG, EPA  withdrew the administrative cleanup order in October 2009.
In contrast, Air Force officials at Tyndall AFB and McGuire AFB did not  give formal notice of intent to comply with EPA’s administrative cleanup  orders and never complied with the terms of the orders. For example, the  Air Force stated in a May 2008 letter to EPA regarding the Tyndall order,  “the Air Force continues to challenge this Order as lacking legal and  factual basis…I have directed my staff and Tyndall AFB to continue to  conduct cleanup actions under  using our lead agency functions,  authorities and responsibilities delegated to DOD.” The Air Force  continues to assert that the IAG proposed by EPA does not match the  agreed-to template, whereas EPA asserts the IAG does follow the  template; both EPA and DOD officials told us the dispute over the IAG  relates to the appendices listing the areas to be investigated and, if  required, cleaned up. McGuire AFB’s IAG was since signed and became  effective December 2009, and EPA’s 2008 administrative cleanup order  was withdrawn. While Tyndall remains without an IAG and its  administrative cleanup order is still in effect, the Air Force counsel has  asserted they are continuing “substantive compliance” with the  administrative cleanup order using the CERCLA process—although EPA’s  order specifically requires Tyndall to use the RCRA process. EPA  officials stated that the agency cannot on its own impose penalties or  otherwise compel compliance with the administrative cleanup order at Tyndall; to do so would require concurrence from DOJ to proceed with court action against another federal agency, which is contrary to fed policy.
A summary of the current status of IAGs is provided in Table 1. In  summary, seven IAGs have been signed and have become effective. There  are also four installations that do not yet have signed IAGs as of June 2010 These installations have continued to lack the IAGs required by CERCLA  for an extended time frame, and include three Air Force installations and .
section_title: Because of Differing EPA and DOD Performance Metrics and DOD’s Failure to Obtain EPA Approvals, Status of DOD Cleanup Is Unclear
paragraphs: Because EPA and DOD use different terminology and metrics to report  investigative and remedial work at defense installations, determining the  status of cleanup at Fort Meade, McGuire AFB, and Tyndall AFB is  challenging. EPA’s data suggest that DOD’s progress at these installations  was limited primarily to the early study or investigative phase, whereas  DOD’s data suggest that some work in the later remedial action or cleanup  phase has taken place at these installations. As DOD did not obtain EPA’s  concurrence with some of the cleanup actions it took at these  installations, it may need to conduct additional work even on reported  completed actions as a result of EPA requirements.
subsections: section_title: Cleanup Work Has Begun, but EPA’s and DOD’s Differing Performance Metrics and Reporting Practices Result in Differing Interpretations of Progress
paragraphs: Twenty or more years after contamination was first reported at Fort  Meade, McGuire AFB, and Tyndall AFB, EPA reports that environmental  cleanup generally remains in the early, investigative phases of the  CERCLA process, with little progress in achieving long-term remediation  of contaminated sites at these installations. While DOD’s data suggest that  some remedial action work has taken place, EPA and DOD have differing  interpretations of the level of cleanup achieved at these installations, in  part because the agencies use different terminology and performance  metrics to assess cleanup. EPA’s terminology and metrics are based on the  Superfund program, including some that are unique to federal facilities,  while DOD’s terminology and metrics are based on the DERP program,  which DOD is directed to conduct in accordance with CERCLA.  Specifically:    EPA divides installations into numbered “operable units” (OU), which may  represent the type of action to be taken, such as the removal of drums and  tanks from the surface of an installation; the geographic boundaries of the  contamination; or the medium that is contaminated, such as groundwater.
DOD divides installations into smaller geographic areas of contamination  called “sites.” These sites are typically scoped narrowly to allow for  targeting work on actions that can be accomplished efficiently—for  example, a building or waste disposal area where a potential or actual  release of hazardous substances, pollutants, or contaminants may have  occurred may be considered a “site,” while adjacent buildings with similar  operations are considered as separate sites. DOD’s sites are sometimes  smaller than EPA’s OUs; therefore there may be multiple DOD sites in one  EPA OU.
The differing nomenclature can make it difficult to interpret and compare  the information DOD reports annually to Congress with what EPA lists in  its Comprehensive Environmental Response, Compensation, and Liability  Information System (CERCLIS) database on the status of environmental  cleanup at NPL sites. For example, as seen in figure 1, EPA reports the  progress of cleanup at McGuire AFB by tracking advancements achieved  at the installation’s 8 EPA OUs, while DOD reports progress according to  advancements achieved at 36 DOD sites. EPA, as the regulator under  CERCLA, must track progress made under the statute, and EPA officials  said that units in program regulations must have precedence over DOD’s  internal system of measuring progress.
According to EPA data, most of the OUs at Fort Meade, McGuire AFB, and  Tyndall AFB are in the RI/FS phase of environmental cleanup, which as  seen in figure 2 occurs early in the CERCLA cleanup process. While the  RI/FS phase historically has an average duration of 5.2 years for EPA OUs  at federal facility sites on the NPL, many EPA OUs at these three bases  have already been in the RI/FS phase for twice that long and are not yet  complete. In fact only 3 of a total 37 OUs at these three installations have  completed the RI/FS phase of the CERCLA process; those 3 EPA OUs are  located at Fort Meade, and none of the OUs at McGuire AFB or Tyndall  AFB have completed the RI/FS phase according to EPA.
DOD, on the other hand, reports that cleanup is further along at all three  of these installations. For example, officials at Fort Meade said that  environmental cleanup at their installation is at a very mature stage. In a  2008 report to Congress, DOD reported that Fort Meade had achieved  response complete at 61 percent of its 54 sites. The achievement of  “response complete,” a DOD term, occurs either late in the CERCLA  process after the remedy selected in the RI/FS phase is implemented, or at  any time when DOD deems cleanup goals have been met and no further  action is required at the site. As we previously reported, we are  concerned about the lack of clarity in DOD’s use of this term to describe  sites that have been administratively closed, with no physical cleanup.
In addition, EPA and DOD report dissimilar pictures of cleanup progress  because each agency reports cleanup progress in a different way. For  example, DOD reports on removals, which CERCLA defines as short-term  and emergency actions to reduce risk, and for which EPA’s formal  approval is not required unless specified in an enforceable agreement.  These actions are not necessarily designed to provide long-term  protectiveness of human health and the environment, and sites where a  removal has been conducted are still subject to the full CERCLA process,  until no further action is appropriate. EPA tracks removals through its  CERCLIS database, which also shows the remaining steps in the full  CERCLA process; a removal may be the first response action taken,  although one can occur at any time during the process.
Furthermore, EPA tracks approved cleanup actions under CERCLA that  have been completed or are under way for an entire EPA OU, and records  these cleanup actions by EPA OU in the CERCLIS database, where key  information is made available to the public on EPA’s Web site. Also,  EPA’s current reporting system does not show cleanup progress unless the  action has been achieved at all DOD sites within that OU. In contrast, DOD  tracks cleanup by site through various cleanup phases as defined in the  DERP, which generally aligns with CERCLA but includes additional  milestones, and then reports the number of sites in each cleanup phase in  its annual report to Congress. For example, Tyndall AFB includes 12 EPA  OUs with 12 DOD sites, with an additional 39 other sites that are not  contained within any EPA OU. These additional sites are still in stages of  preliminary investigation under CERCLA, according to EPA officials; DOD  officials said that a number of these are regulated completely as petroleum  sites under a separate program that is administered by the state of Florida,  but EPA officials said they want to evaluate all of them under CERCLA, to  ensure that any non-petroleum contamination that may exist is accounted  for and cleaned up under CERCLA. According to EPA officials, Tyndall  AFB has achieved no completed cleanup actions at the base, and it  recognizes only one RI/FS action as ongoing. In contrast, DOD reported in  fiscal year 2008 that Tyndall staff had completed 36 of 51 study actions for  sites at Tyndall AFB, amounting to 71 percent of the study phase complete  at the base. The fact that DOD measures progress in smaller increments  can lead to differing interpretations of cleanup. As we said earlier, DOD  counts as progress the completion of each contaminated DOD site located  within an EPA OU, although EPA does not count progress until action is  taken at all DOD sites in that OU.
In June 2009, EPA and DOD formed a working group to review and  harmonize both agencies’ environmental cleanup goals and metrics, with  the goal of better communication between the agencies regarding cleanup  progress at DOD installations on the NPL. DOD officials said they hope  that the working group will minimize the inconsistencies between DOD’s  and EPA’s goals and metrics. EPA officials said they believe the  recommendations of the working group will ultimately result in fewer  misunderstandings and surprises between parties that can stall cleanup  actions in the future. The proposed timeline for the working group  suggests the drafting of proposed recommendations in June 2011.
section_title: Status of Cleanup at These Installations Is Unclear Because DOD Did Not Obtain EPA Concurrence with Some Cleanup Actions and May Need to Do Additional Work
paragraphs: EPA and DOD also report very different cleanup progress at defense  installations because some of DOD’s reported claims of completed  cleanup phases were never approved by EPA, and therefore EPA does not  recognize them. In addition, where DOD has already taken actions, EPA  has in some cases found that DOD’s supporting documentation in the  record is insufficient for EPA to approve the cleanup actions that DOD has  already taken. Specifically at Tyndall, after a change in personnel at EPA,  the new project manager reviewed the files and found the documentation  was insufficient to support many of the previous decisions made at the  base. EPA officials told us that once IAGs are in place at these  installations, any unilateral cleanup actions previously taken are likely to  be revisited and EPA may require work to be redone.
According to EPA officials, DOD and EPA have long agreed that, because  EPA has ultimate authority under CERCLA for remedies at DOD NPL  installations, EPA approval of key steps toward remedy selection is  required. In practice, according to EPA officials, it is difficult for a federal  facility to obtain EPA concurrence on its cleanup decisions in the absence  of a signed IAG for several reasons. First, from a project management  perspective, EPA lacks assurance that it has had adequate involvement in  key steps in the process. Second, from a compliance standpoint, EPA told  us it must incorporate, among other things, an enforceable schedule and  arrangements for long-term management of a remedy into a ROD, in order  to approve the selected remedy at a federal facility without an IAG.
At least one installation has gained EPA’s concurrence with cleanup  actions without an IAG through effective interagency cooperation.  However, two of the three DOD installations we examined for this  report—Tyndall AFB and Fort Meade—moved forward with cleanup  actions, including remedies, without a signed IAG or ROD. For example,  EPA’s records for Tyndall AFB show that DOD made decisions at a  number of sites without the required concurrence of EPA.
Despite the lack of IAGs, DOD submitted a variety of documents for EPA  review at each of the three selected installations. However, without an  IAG, there are no agreed-upon time frames for review and comment and  no overall work plan to provide predictable schedules for DOD or EPA.  With an IAG, EPA’s typical primary document review times would be 60  days; however, DOD officials told us that EPA reviews sometimes take  longer, with or without an IAG. As a result, DOD officials said that, in  some cases, DOD moved forward without EPA concurrence, while in  other cases DOD may have delayed planned actions. For example, EPA  provided comments on a preliminary assessment of munitions sites at  Tyndall AFB that included concerns about how the munitions at these  sites could affect other nearby hazardous substances sites. However, EPA  took approximately 4 months after receiving the assessment from DOD to  submit the comments. As a result, DOD officials told us they finalized the  preliminary assessment before receiving EPA’s comments because they  wanted to close out the contract. On the other hand, without the  predictable schedules provided by an IAG, EPA officials told us they could  not predict the flow of documents from DOD they would have to review.  EPA officials told us that DOD at times submitted few documents for  review, while at other times, an overwhelming number of documents,  making it difficult for EPA to allocate resources for review and comment.  We could not verify long-term trends in the volume of document  submission and in document review times because neither EPA nor DOD  maintains a consistent, verifiable, and long-term management system for  tracking documents submitted or reviewed. For example, DOD said that  the three installations have only maintained document tracking systems  for the last 2 to 4 years.
DOD officials told us they received EPA approval of some cleanup actions  in informal meetings—referred to as partnering meetings—but could not  provide documentation. EPA officials noted that these meetings were  never intended to replace the formal process mandated by CERCLA and  that such decisions were not formally documented, as needed for EPA to  approve the proposed remedy selection and as required for the  administrative record. CERCLA requires the lead agency, in this case DOD,  to establish an administrative record upon which DOD bases the selection  of a response action. This record (1) serves as the basis for judicial review  of the adequacy of the response action and (2) acts as a vehicle for public  participation, since it must be made available for public inspection and  comment during appropriate comment periods.
section_title: A Variety of Obstacles Have Delayed Cleanup Progress
paragraphs: Several obstacles have delayed cleanup at the three selected DOD  installations in our review. First, the lack of IAGs has made managing  installation cleanup and addressing routine matters challenging for both  EPA and DOD. DOD contract management issues at some installations  have affected how the work at these installations has been scoped and  conducted and placed effective and efficient use of the public’s resources  at risk, further undermining cleanup progress. In addition, at Fort Meade  Army Base, a lack of coordination with EPA and incomplete record  reviews resulted in DOD personnel occupying housing at risk of  contamination until they were evacuated. Further, the Air Force has failed  to disclose some contamination risks at Tyndall AFB promptly, resulting in  delays in taking cleanup action. We also found particular problems at  Tyndall AFB, where long-standing noncompliance regarding  environmental cleanup and notification has contributed to the lack of  cleanup progress. Finally, EPA’s ability to address noncompliance by  federal facilities is limited by provisions in law, executive order, and  executive branch policy.
subsections: section_title: Lack of IAGs Has Made Managing Installation Cleanup and Addressing Routine Matters Challenging, thus Delaying EPA-approved Cleanup Progress
paragraphs: The lack of IAGs has contributed to delays in cleanup progress at the three  installations in our review. Without an IAG, EPA lacks the mechanisms to  ensure that cleanup by an installation proceeds expeditiously, is properly  done, and has public input, as required by CERCLA. For example, DOD  officials said that EPA reviewed the proposed remedial action and provided  written agreement for the Army’s decision to use monitored natural  attenuation—relying on natural processes to reduce the contamination in  soil or groundwater without human intervention—as the remedy for  groundwater contamination at the Ordnance Demolition Area at Fort  Meade, which had been historically used for the demolition of unexploded  munitions. However, Fort Meade did not have EPA’s signature on the ROD  and did not seek formal public comment. EPA officials said that additional  documentation was needed to support the use of that remedy and advised  Fort Meade that it was exceeding its authority. The IAG for Fort Meade  provided that Fort Meade withdraw this decision document and submit a  new one for EPA’s review, which could result in the Army being required to  carry out additional cleanup actions for that site.
Whereas an IAG would provide for negotiated deadlines designed to  reflect the specific complexities at an installation, DOD’s national cleanup  goals may drive installations to take actions without EPA approval to meet  deadlines. In particular, DOD recently set a cleanup goal for reducing risk  or achieving remedy in place or response complete by 2014 for sites under  DOD’s Installation Restoration Program at active installations, including  those at NPL-listed installations. The Air Force set an even more stringent  deadline of 2012 for its sites, which Air Force officials have said is a  “stretch goal” imposed to ensure that the 2014 goal is met. These deadlines  were not based on evaluations of field conditions, and therefore do not  necessarily reflect remaining required cleanup actions. However, DOD’s  use of these deadlines has acted as an incentive for DOD to proceed with  actions that have not been fully vetted with EPA and the public, according  to EPA officials. For example, EPA officials said that, under the pressure  of the 2012 deadline, McGuire AFB has proposed monitored natural  attenuation, which EPA has not approved, as a remedy for contaminated  groundwater at the installation despite not having performed required  analyses. EPA typically only approves monitored natural attenuation as a  remedy when certain conditions exist, such as a low potential for  contaminant migration and a time frame comparable to other methods of  remediation. EPA said DOD did not provide evidence of these conditions  to EPA, which is necessary for EPA to concur in the remedy selection, as  required by CERCLA. One consequence of this gap is that the public lacks  assurance that human health and the environment are adequately  protected by DOD’s remedy.
At installations with IAGs, the Site Management Plans include detailed  schedules and become part of the IAG, thus providing a legal basis for  when DOD must complete the work. Moreover, with IAGs to provide an  enforceable cleanup schedule, DOD must move forward with cleanup or  there will be consequences, such as penalties, for violating the terms of the  agreements. These legal obligations are a key factor in DOD’s sequencing  of cleanup activities for funding. DOD officials told us that, in the early  1990s, the installations that had IAGs were moved to the top of the list for  funding, while other installations were considered a lower priority. Also,  DOD headquarters makes its funding decisions from budget requests  submitted by installations; therefore, if an installation does not have an  IAG and does not submit a request for funding for a particular  contaminated area, DOD does not consider it in its national funding  decisions.
section_title: DOD Contract Management Issues Have Undermined Cleanup Progress
paragraphs: DOD contracting management issues have affected how the cleanup work  at the selected installations was scoped and conducted, placing effective  and efficient use of the public’s resources at risk, and further undermining  cleanup progress. Specifically, two of the installations, Tyndall and Fort  Meade, have relied extensively on performance-based contracts (PBC) to  clean up installations. The third, McGuire, in 2008 awarded a PBC for 21  sites. However, PBCs can create pressure on contractors to operate within  price caps and meet deadlines, which may conflict with regulatory review  times and encourage DOD to take shortcuts. Both EPA and DOD officials  told us that PBCs may frequently be inappropriate for some Superfund  cleanup work—particularly in the investigative stages—since there can be  a great deal of uncertainty in these phases. For example, initial sampling  during a site investigation may lead to the need for extensive follow-up  sampling that was not anticipated and therefore not provided for in the  contract incentives.
While the federal government has advocated the use of PBCs in recent  years for procurement of most services, federal acquisition regulations  generally requiring the use of PBCs specifically exclude engineering  services from this requirement. DOD policy directs the services to use  PBCs whenever possible—establishing the goal that PBCs be used for 50  percent of service acquisitions—but acknowledges that not all acquisitions  for services can be conducted using PBCs. According to federal  guidelines, PBCs are not generally appropriate for work that involves a  great deal of uncertainty concerning the parameters of the work to be  performed. For example, Air Force guidance establishes the first step in  using PBCs is to screen the particular project for suitability, noting that in  general, a PBC may not be the right approach when the site is poorly  characterized or the project would pose inordinately high risk to  contractors, among other characteristics. PBCs are generally better  suited to work that has highly prescribed goals, such as the provision of  food service or janitorial services. The general intent of PBCs is to allow  contractors to determine the best way to achieve specific goals within a  certain time frame for a fixed cost. When used in appropriate  circumstances, PBCs can reduce costs by allowing contractors flexibility  in how they provide the services.
EPA officials cited a number of problems resulting from the use of PBCs  for cleanup at these three installations. One problem cited is that, when  PBCs are used, the contractor typically may not explore the full range of  alternatives during the remedial investigation and feasibility study due to  the pressure of PBC price caps to reduce the costs involved in developing  these alternatives. In addition, EPA officials said, the remedies or  proposals put forward by the PBCs tend to be those that do not require  construction, such as monitored natural attenuation for groundwater  contamination, in order to save money on the contract. For example, EPA  officials said that the sole PBC contractor for 21 DOD-designated sites at  McGuire AFB proposed in its contract a remedy of “no further action” for  soil, sediment, and groundwater for nearly all 21 sites, along with  monitored natural attenuation for groundwater at many of the sites; these  approaches to address contamination at the sites were proposed prior to  completing the remedial investigation, which would include a human and  ecological risk assessment, feasibility study, proposed plan, public  meeting, and ROD. In addition, EPA has specific guidelines on the  selection of monitored natural attenuation as a remedy.
Other problems that EPA cited with using PBCs for environmental cleanup  work include    contractor’s inability to carry out cleanup-related work required by EPA or  other stakeholders that was not contained in the original PBC contract,  such as installing monitoring wells, without contract amendment;    unrealistic time frames for cleanup work that have not been agreed to by  EPA or other stakeholders and that create an incentive for rushed work,  resulting in possible rework later on;    poor quality of documents submitted to EPA, including lack of legal  review and routine failure of the installation to perform quality reviews of  contractors’ work, which EPA officials said were due to pressure to meet  the fixed price aspect of these contracts, and which result in significant  redrafting by EPA’s legal staff; and    PBC contractors—rather than DOD officials—acting as project managers  to the point of decision making, rather than supporting DOD, when critical  cleanup decisions require interaction between EPA and DOD officials.
In responding to a draft of this report, DOD noted that the department  believes it has successfully used PBCs for some environmental  remediation and munitions response activities. According to DOD, the  PBCs include identifiable and measurable costs, schedules, and outcomes,  such as acceptance by DOD and the regulatory agencies. DOD stated PBCs  can benefit DOD by    providing flexibility of scope, rather than prescriptive methods;    allowing DOD to benefit from the expertise and emerging technologies of  the private sector in solving problems during various phases of the  cleanup process;    ensuring cost control with known outcomes at the completion of the    encouraging contractors to look for ways to reduce time and cost.
Nonetheless, Tyndall AFB officials told us that after shifting toward PBCs  for cleanup work in 2004, they are now migrating away from them because  there is too much uncertainty in the cleanup work needed at the base.  Conversely, the Army told us that in its view, PBCs are better suited for  complex work because they foster innovation from the private sector.
section_title: Poor Coordination with Regulators and Incomplete Record Reviews Resulted in DOD Personnel Occupying Base Housing at Risk of Methane Contamination until Being Evacuated at Fort Meade
paragraphs: At Fort Meade Army Base, a lack of coordination with EPA and  incomplete record reviews led to the necessity to evacuate military  personnel from housing that was at risk of methane contamination due to  its construction near a dump. A contractor for Fort Meade building  military housing on the base—as part of the Army’s new national  privatized housing construction effort—in 2003 discovered an old dump  site in the area of the new housing and near an existing elementary school.  Prior to construction, the Army Corps of Engineers prepared an  environmental baseline survey, but it was later determined that the Corps  apparently did not review key historical maps in the possession of Fort  Meade indicating a former dump and incinerator in the area. The Corps, in  conducting the survey, also apparently failed to use a relevant EPA report,  which provided an interpretation of historical aerial photographs to  identify potential hazards. According to Fort Meade documentation, once  the dump was discovered, the housing contractor attempted to determine  the limits of the dump and continued with construction, avoiding building  directly on top of the dump site. However, according to EPA officials, Fort  Meade did not involve EPA in these assessments prior to construction  after the dump was discovered. Nonetheless, EPA, which had an on-site  manager at the Fort Meade installation, was aware of the discovery of the  dump and did not assert a role in decisions about where to locate housing.  For example, EPA did not provide any written advice concerning the  matter to Fort Meade. After construction was completed and the housing  was occupied, methane fumes were found in 2004 below the ground in  soils adjacent to the 20 houses that were built nearest the dump site and  elementary school. The Army installed and operated a methane abatement  system but in 2005 determined that methane was reaching the homes, and  families were evacuated. These houses remain empty, and DOD is  monitoring both the houses and the school for methane gas intrusion into  indoor air. Thus far methane gas has not been found at an unacceptable  level in the school. In addition to methane, Fort Meade has documented  other contamination at the dump site, including volatile organic  compounds (VOC) in the groundwater, and heavy metals,  polychlorinated biphenyls (PCB), and VOCs in soil. Fort Meade has since  prepared a preliminary assessment and site inspection(PA/SI) and a draft RI, which EPA has reviewed. While the Army has a policy requiring  that  the environmental conditions of properties be assessed, it is unclear  whether local Fort Meade officials were adequately involved in the  preconstruction assessment, which was performed by a contractor to the  Corps under the Army’s national housing privatization initiative. While the  Army has acknowledged that the preconstruction assessment apparently  missed evidence pointing to the incinerator and dump, the Army has not  explained the source of the omission—for example whether lack of  adherence to policy or shortcomings in coordination and review were  contributing factors. As such, it is unclear how the Army could prevent a  recurrence of this situation in which review of key documents available to  the Army may have averted construction of housing near a waste site.
section_title: Tyndall AFB’s Long- standing Noncompliance Regarding Environmental Cleanup and Notification Contributed to the Lack of Cleanup Progress
paragraphs: Of the three installations we selected to review, only Tyndall AFB remains  without an IAG. Furthermore, Tyndall has delayed cleanup progress by  generally demonstrating a pattern of not complying with federal laws and  regulations concerning environmental cleanup. In addition, Tyndall has on  multiple occasions delayed disclosures about newly found contaminants  or associated risks for months or failed to disclose them entirely,  furthering delay of cleanup.
subsections: section_title: The Air Force’s Failure to Sign an IAG and Pattern of Noncompliance with Federal Laws and Regulations Concerning Environmental Cleanup Have Delayed Cleanup Progress at Tyndall
paragraphs: After 13 years on the NPL, Tyndall AFB stands out as the only one of the  three installations that received EPA administrative cleanup orders for  sitewide cleanup and has not signed an IAG even though IAGs are required  under CERCLA. Following DOD’s issuance in February 2009 of a letter to  EPA indicating its willingness to sign IAGs for the 11 installations that did  not have them, most of the other installations have resolved differences  with EPA and signed IAGs or are close to signing them.
As previously noted, in the absence of a signed IAG, Tyndall has delayed  cleanup progress by generally demonstrating a pattern of not complying  with federal laws and regulations concerning environmental cleanup  under CERCLA. For example, Tyndall    proceeded with remedies with which EPA had not concurred,    did not seek required public input,  failed to disclose contamination risks in a timely fashion, and  refused to comply with the terms of the EPA-issued administrative cleanup  order.
EPA officials told us DOD proceeded with cleanup remedies without  EPA’s written concurrence—such as signed RODs or other form of  documented agreement—to protect human health and the environment,  despite knowing that the work may need to be redone. Whereas the  CERCLA process requires regulator oversight at federal NPL properties  during cleanup activities to provide assurance of such protection, DOD  officials said they relied on quarterly partnering meetings with EPA in lieu  of written approvals. Tyndall has also issued contracts for work for which  EPA hasn’t formally concurred, potentially resulting in rework and  jeopardizing public resources. For example, Tyndall authorized a PBC in  June 2006 that included selecting and putting a remedy in place at a DDT- contaminated bayou within 5 years without having obtained EPA  concurrence on how to proceed with the work. At an informal meeting in  April 2003 that included officials from Tyndall, the Army Corps of  Engineers, Fish and Wildlife Service, and the National Oceanic and  Atmospheric Administration, but at which EPA officials were not present,  Tyndall reportedly reached the initial decision to leave the DDT- contaminated sediment in place, with the rationale that having the DDT  trapped in the sediment would be preferable to a release that could result  from removing the sediment. In January 2009, Tyndall officials put forth  the option to EPA officials of dredging the DDT-contaminated sediments  from the bayou with the highest concentrations of contamination,  proposing to carry out this ecologically sensitive and potentially risky  action as a removal action for which Tyndall would not need concurrence  from EPA. EPA said that a human and ecological risk assessment—which  would estimate how threatening a hazardous waste site is to human health  and the environment—would be needed for EPA to evaluate the proposed  Air Force removal action and to determine whether it would protect the  local population who catch and eat fish from the bayou. Without this  information, the adequacy and protectiveness of the response action is in  question.
section_title: The Air Force Failed to Identify or Disclose Some Contamination Risks at Tyndall in a Timely Fashion, which Delayed Cleanup Action
paragraphs: Tyndall AFB delayed disclosures about newly found contaminants or  associated risks for months or failed to disclose them entirely. The DERP  provisions of SARA require defense installations to promptly notify EPA  and state regulatory agencies of the discovery of releases or threatened  releases of hazardous substances, as well as the extent of the associated  threat to public health and the environment. However, we found that  Tyndall failed to make such reports. Tyndall was also required to  immediately report releases of hazardous substances to EPA according to  the RCRA administrative cleanup orders, but did not do so. It also did not  provide potentially affected individuals with information on such releases  in a timely manner, despite the requirement in CERCLA. Because Tyndall  AFB failed to notify EPA of newly discovered releases, cleanup was  delayed or conducted without regulatory agency oversight in recent  incidents, potentially putting human health and the environment at risk.
An example of Tyndall’s failure to notify EPA concerns the presence of  lead—a hazardous substance under CERCLA—at the Tyndall Elementary  School. Tyndall’s actions have included failing to promptly report to  regulators key information about the lead and its threat to public health;  failing to take action to prevent children’s exposure to lead shot; and  potentially representing inaccurately its actions related to a cleanup, as  detailed below:  In 1992, children discovered lead shot in their playground at Tyndall  Elementary School. Despite the discovery and the SARA requirement,  Tyndall AFB officials did not notify EPA. Instead, Tyndall officials worked  with county health officials to collect soil samples and Tyndall officials  assured the public that the area was safe for children.
From 1997 to 2000, ATSDR conducted a health assessment, which was  triggered by Tyndall’s listing on the NPL. According to ATSDR officials,  ATSDR examined Tyndall records that said the lead shot was removed and  clean sand was deposited. As such, ATSDR based its assessment solely on  the soil sampling results from 1992, found the contamination below levels  of concern, and concurred with Tyndall taking no further action. Tyndall  did not conduct any follow-up surveying or sampling of the school area.
In 2007, Tyndall issued a base-wide report—the Comprehensive Site  Evaluation Phase I—that, based on a records search and visual site survey,  identified inactive areas of the base where munitions, munitions  constituents, and unexploded munitions may have been released. The  report noted that Tyndall Elementary School is located on a portion of a  former target range.
In 2008, Tyndall initiated the next phase of work, commencing with a site  walk. Tyndall representatives observed lead shot and clay target debris on  the ground surface of the playground, but Tyndall did not notify EPA of  this information and did not take any other action to ensure protection of  the health of the children attending the school. In March 2009, officials  from the Air Force Center for Engineering and the Environment (AFCEE)  visited the base and became aware of the situation and pressed Tyndall to  expedite sampling that would assess potential risks. As a result, sampling  of the school yard was included in the next phase of work.
Once these samples were taken in May 2009, they showed elevated lead in  the soils exceeding state standards. The base did not notify EPA until 22  days later—in contrast to the DERP statute’s requirement of prompt  notification of a threat, as well as the RCRA order’s requirement, which  states that the EPA must be notified immediately of any release of a  hazardous substance.
Once notified, EPA officials said they called for Tyndall to take  appropriate action, including an emergency removal to reduce risk and  notifying students’ parents. Tyndall officials told us they initiated funding  for a removal action before notifying EPA of sampling results and  discussing the action with EPA.
In 2009, ATSDR also became involved at the site again, and is currently  conducting a health consultation. According to ATSDR officials, EPA  requested the consultation in June 2009. Following the request, ATSDR  notified its Air Force liaison, who then initiated the formal request on July  7, 2009.
When asked about these events, Tyndall officials stated they had always  known lead shot could be there, and said they believed EPA also knew of  this potential. Tyndall officials told us they did not conduct a cleanup  following the 1992 discovery, although they agree that lead shot was found  in the playground in 1992 and Tyndall officials subsequently assured  parents that the area was safe. Furthermore, Tyndall representatives  disagreed with ATSDR’s account that the lead shot had been removed and  clean sand placed in the area – information upon which ATSDR relied in  focusing its 2000 review on lead in soil exclusively and concluding the site  did not pose a health hazard. In 1992, CERCLA and the DERP statute were  in effect and well-established, and since lead is a CERCLA hazardous  substance, DOD was legally required to conduct any response in  accordance with CERCLA and its standards. Thus, Tyndall officials either  left the lead shot in place with essentially no response other than to  reassure parents of the schoolchildren, or conducted a response outside of  CERCLA. While Tyndall officials now state that the lack of response with  respect to the lead shot itself was based on its belief that ATSDR found the  lead shot not to pose a health hazard, the ATSDR report was not issued  until 2000 while Tyndall decided not to conduct a response action years  earlier, in 1992.
Regarding Tyndall’s lack of action on the discovery of lead shot, Tyndall  officials did not take steps until 2009 to protect children from potential  exposure, despite their statements that they knew from 1992 forward that  lead shot could be present at the school, because they did not believe  there were any health risks. Tyndall officials further stated that they  believed the ATSDR health assessment found no health risk from the lead  shot. However, because ATSDR understood the lead shot had been  removed, the ATSDR assessment was based solely on the soil lead levels  reported by the Air Force to have been found in 1992 and did not address  any subsequent risks from the presence of lead shot after 1992 (e.g., from  direct contact and the possibility of increased soil levels from leaching).  Moreover, the ATSDR assessment had a narrow objective—to evaluate the  potential human health effects associated with exposure to certain  environmental conditions at several areas on the base—and was not  intended as a substitute for the CERCLA process, which provides for  investigations to determine whether a remedial action is required based on  both human health and the environment. For example, as ATSDR focused  on the likely exposure of children, it discounted certain soil samples with  lead levels above its screening values because the agency determined  children were unlikely to play in those areas; however, those samples are  relevant for CERCLA purposes.
Finally, while Tyndall officials have not denied knowledge of the presence  of lead shot in the playground prior to June 2009 (when Tyndall reported  high lead levels in the soil), they were unable to identify or document  when base officials or contractors became aware of the lead shot and clay  target debris on the ground surface of the playground. Because Tyndall  failed to promptly notify EPA of the release observed prior to March 2009,  as required by the administrative cleanup order as well as the DERP  provisions of SARA, EPA did not have the information needed to ensure  Tyndall’s actions were protective of the health of the schoolchildren.  Only at the urging of the Air Force Center for Engineering and the  Environment did the base conduct sampling, and only when the results  showed high levels of lead in soils did the base inform EPA of the lead  shot. In summary, the base failed to take appropriate action to prevent  lead exposure until June 2009—months after discovering the debris at the  surface during the school year, when children were potentially exposed to  lead in this material. Figure 3 shows how visible the lead shot was on the  school playground.
Tyndall’s failure to disclose the lead at the schoolyard is not an isolated  failure to disclose contamination risks.
In late 2007, Tyndall discovered the Mississippi Road Landfill but delayed  a year before reporting the discovery to EPA in October 2008.
Tyndall discovered discarded smoke signal flares, which are hazardous  waste under RCRA, in late October 2009 and delayed reporting this to EPA  for about a month until November 2009.
section_title: EPA Is Limited in How It May Respond to Noncompliance by Federal Facilities
paragraphs: EPA’s ability to pursue enforcement actions against federal agencies is  limited by provisions of law, executive order, and executive branch policy.  Specifically, EPA may issue CERCLA orders seeking information, entry,  inspection, samples, or response actions from federal agencies only with  DOJ’s concurrence. In practice, EPA told us it has requested DOJ  concurrence approximately 15 times on unilateral section 106 orders to  federal agencies and, to date, DOJ has concurred only once, when the  recipient federal agency did not object. Moreover, under federal law,  DOJ—and not EPA—is the sole representative authorized to conduct  litigation on behalf of the federal government in judicial proceedings,  including those arising under CERCLA. This provision, in conjunction with  a long-standing DOJ policy against one federal agency suing another in  court, has effectively precluded EPA judicial actions against sister federal  agencies. However, EPA retains whatever enforcement provisions are  contained within an IAG, such as stipulated penalties that may be  established within a penalty provision in the agreement. For those  installations without an IAG, EPA effectively has no enforcement tools  available, without DOJ concurrence, to compel agency compliance with  CERCLA.
section_title: Conclusions
paragraphs: Cleaning up the most seriously contaminated DOD installations is a  daunting task, especially when these properties are in ongoing use by DOD  components. We recognize that DOD’s primary mission is ensuring the  nation’s defense, and that DOD is currently focused on ensuring its  components’ readiness for wars in Iraq and Afghanistan. Nonetheless, the  environmental problems at the three installations addressed in this report  have persisted for more than 20 years since laws requiring their cleanup  were enacted. DOD and its components have environmental  responsibilities to EPA as well as responsibilities to the public and the  military personnel stationed at its installations. Despite some progress in  the early investigative stages made by the installations we reviewed, we  believe that DOD, the Air Force, and the Army are not fully upholding  these responsibilities at the three installations.
DOD has expressed its commitment to full and sustained compliance with  federal, state, and local environmental laws and regulations that protect  human health and preserve natural resources. However, until the current  challenges—including the lack of uniform measures for DOD and EPA to  report cleanup progress, the absence of IAGs at some installations, the  failure to disclose newly discovered contamination at some installations as  required by provisions in SARA, and the continued disagreement over  proposals for the use of monitored natural attenuation and other  nonconstruction remedies, and over DOD’s use of PBCs—are addressed,  delays in cleaning up these three installations will likely persist.
Section 120 of CERCLA was enacted in 1986 amidst concerns that federal  facilities on the NPL were taking too long to get cleaned up and contained  key provisions aimed at eliminating stalemates, such as those that were  occurring over IAGs. Yet, the IAGs required by law are still outstanding at  several NPL installations after more than a decade of effort. While EPA is  charged with regulating cleanup of federal NPL sites, without IAGs and  lacking independent authority to enforce CERCLA, EPA has little leverage  to facilitate compliance at such sites. While EPA ultimately issued  administrative cleanup orders at these three installations under other  environmental laws, the agency is nonetheless limited in its ability to  enforce these orders because DOJ policy generally precludes bringing suit  on behalf of one federal agency against another.
In the absence of the IAGs, EPA attempted to work with the services over  the past decade by offering technical support and in many cases  participating in informal meetings with DOD officials, while the services  provided numerous documents to EPA. However, we believe that these  interactions, while well intentioned, contributed to a less rigorous  approach that interfered with the collection of documents such as formal  approvals for the administrative record, and led to insufficient  communication between the agencies on significant issues such as risk  and approvals. Further, without the more predictable time frames as  would be provided with an IAG, EPA and DOD resorted to less formal  document review processes—including a lack of clarity on document  review times and on whether agreements had been reached on key  decisions—leading DOD to sometimes move forward in the cleanup  process without EPA’s concurrence. Together, these informal approaches  contributed to disagreements between the agencies, further delayed  cleanup, and resulted in a lack of transparency and accountability to  Congress and the public.
section_title: Recommendations for Executive Action
paragraphs: We are making six recommendations, as follows:  To provide greater assurance that cleanup progress is being measured  accurately and consistently, and to build off of the existing DOD and EPA  working group’s initial efforts, we recommend that the Secretary of  Defense and Administrator of EPA develop a plan with schedules and  milestones to identify and implement a uniform method for reporting  cleanup progress at the installations and allow for transparency to  Congress and the public.
To ensure that outstanding CERCLA section 120 IAGs are negotiated  expeditiously, should the agencies continue to be unable to execute a  signed IAG within 60 days of this report, we recommend the Administrator  of EPA pursue amendments to E.O. 12580 to (1) delegate to EPA  unconditionally the independent authority to issue unilateral  administrative orders under section 106(a) to executive agencies, and (2)  cause the existing delegation of CERCLA remedial action authorities at  NPL-listed sites to DOD to be conditional on, for example, the existence of  a signed IAG or on DOD’s submission of detailed monthly reports to CEQ  and Congress concerning the status of IAG negotiations at such sites.
To ensure that DOD promptly reports new hazardous releases to EPA and  other stakeholders (including potentially injured parties, the National  Response Center, and the states), we recommend that the Secretary of  Defense develop guidance for components concerning the proper  notification when a new release is discovered or significant new  information about a previously known release is obtained. The guidance  should at a minimum address timing and contents of such notice, as well  as meet the requirements of CERCLA § 103(a) and 111(g) and 10 U.S.C. §  2705(a).
To improve project management at DOD NPL sites regarding the use of  contractors, we recommend that the Secretary of Defense ensure that the  services make a determination of appropriateness, using Office of  Management and Budget criteria and service guidance, before using PBCs  for Superfund cleanup.
To ensure that DOD NPL sites utilize monitored natural attenuation as the  sole remedy at contaminated sites only when it is documented to meet  remediation objectives that are protective of human health and the  environment, we recommend that the Secretary of Defense direct the  services to document compliance with relevant EPA guidance when  selecting monitored natural attenuation.
To ensure that the document review process is used effectively and to  facilitate oversight and transparency between DOD and EPA, even where  there are no IAGs in effect, we recommend that the Administrator of EPA  establish a record-keeping system for DOD NPL sites, consistent across all  regions, to accurately track documents submitted for review, including the  status of approvals.
section_title: Matter for Congressional Consideration
paragraphs: While EPA is charged with regulating cleanup of federal NPL sites, it has  little leverage to facilitate compliance at such sites. Specifically, when a  federal agency refuses to enter an IAG at an NPL site or to comply with an  administrative cleanup order issued pursuant to RCRA’s imminent hazard  provision, EPA cannot take steps to enforce the law, such as initiating a  court action to assess fines, as it would do in the case of a private party. As  we suggested in 2009, Congress may want to consider amending section  120 of CERCLA to authorize EPA—after an appropriate notification  period—to administratively impose penalties to enforce cleanup  requirements at federal facilities. This review provides further reason to  emphasize such authorities to facilitate more timely and efficient  compliance at federal facilities.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to the EPA Administrator and the  Secretary of Defense for their review and comment. In written comments,  EPA’s Assistant Administrator for the Office of Solid Waste and  Emergency Response and Assistant Administrator for the Office of  Enforcement and Compliance Assurance indicated agreement with the  three recommendations directed at EPA and discussed actions that EPA is  taking to address one of them. EPA indicated general agreement with our  findings and conclusions, noting in particular that our observations are  consistent with its experience at Tyndall AFB. EPA also provided  technical comments, which we addressed, as appropriate. EPA’s written  comments are included in appendix VI.
In written comments, the Deputy Under Secretary of Defense agreed with  all recommendations directed to the Secretary of Defense, noting that our  report raises several good points, some of which DOD has already  implemented. The Deputy Under Secretary also commented on our  recommendations directed at EPA, disagreeing with one of them as well as  with our Matter for Congressional Consideration. In its disagreement with  our recommendation that EPA pursue amendments to Executive Order  12580 if outstanding CERCLA section 120 IAGs are not negotiated  expeditiously, DOD suggested that we incorrectly characterized the entire  IAG process as flawed due to five outstanding site agreements that  represent more complex cleanup issues than most sites. However, we  disagree because while we acknowledge that IAGs have successfully been  entered into at most DOD NPL sites, DOD’s refusal to enter into IAGs — required by CERCLA section 120—for more than a decade at four of the  five sites nonetheless suggests, in our view, that there is a significant  problem requiring additional attention by the Administration. DOD  disagreed with our Matter for Congressional Consideration that Congress  consider amending section 120 of CERCLA to provide additional  enforcement authority to EPA because it believes EPA has adequate  existing means—including informal tools such as interagency dispute  mechanisms, and statutory authorities—to enforce cleanup requirements  at federal facilities without a negotiated IAG. However, we disagree with  DOD’s position for a number of reasons. For example, despite the informal  tools pursued by EPA, a decade passed without negotiated IAGs at the  three installations. EPA then resorted to more formal means to attempt to  compel cleanup at these installations. Nonetheless, even when EPA  attempted to use its RCRA authority, DOD initially refused to comply with  RCRA cleanup orders issued by EPA at the three installations and is still in  noncompliance at one installation. Moreover, while EPA has remedy  selection authority under CERCLA, it has no enforceable schedule to  ensure DOD installations make progress on the technical steps leading up  to a remedy decision. We therefore believe it is critically important that  Congress consider additional EPA enforcement authority to ensure that  cleanup is being pursued properly at federal facility NPL sites. In addition,  DOD provided technical comments, which we addressed, as appropriate.  DOD’s written comments and our responses are included in appendix VII.
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 of this report to the  appropriate congressional committees, the Secretary of Defense, the  Administrator of EPA, and other interested parties. In addition, the report  will 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 VIII.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: We were asked to determine (1) the status of Department of Defense  (DOD) cleanup of hazardous substances at selected DOD installations  subject to administrative orders and (2) obstacles, if any, to progress in  cleanup at these selected sites and the causes of such obstacles.
To select installations for more detailed study from the 11 installations  that were out of compliance with the Comprehensive Environmental  Response, Compensation, and Liability Information System (CERCLA) in  February 2009 because they did not have interagency agreements (IAG),  we reviewed the 4 that were issued additional Environmental Protection  Agency (EPA) cleanup orders under the Resource Conservation and  Recovery Act (RCRA) or under the Safe Drinking Water Act (SDWA).  These 4 installations are Air Force Plant 44 in Arizona, Fort Meade Army  Base in Maryland, McGuire Air Force Base (AFB) in New Jersey, and  Tyndall AFB in Florida. EPA and DOD agreed that one of these—Air Force  Plant 44, the only 1 of the 4 installations that was issued the SDWA  order—was near cleanup completion and we therefore eliminated it from  our selection of installations.
To determine the status of DOD cleanup of hazardous substances at the  three selected installations, we toured the three installations; interviewed  officials from DOD, EPA, DOD contractors, and the Public Employees for  Environmental Responsibility, a public interest group; and attended an  installation’s Restoration Advisory Board meeting. We reviewed numerous  laws, guidance, and technical documents, including CERCLA, RCRA, DOD  Defense Environmental Restoration Program (DERP) guidance and annual  reports to Congress, decision documents, and correspondence between  EPA and DOD. We reviewed and analyzed information on cleanup  progress from EPA’s Comprehensive Environmental Response,  Compensation, and Liability Information System (CERCLIS) information  system, the three EPA regions that monitor cleanup at the installations,  and from the individual DOD installations.
To identify any obstacles to progress in cleanup at the selected  installations and the causes of such obstacles, we interviewed officials  from DOD, EPA, the Agency for Toxic Substances Disease Registry  (ATSDR), the Fish and Wildlife Service, and the Architect of the Capitol, as  well as state officials from Florida, Maryland, and New Jersey, and the  Public Employees for Environmental Responsibility. We reviewed  numerous laws, guidance, orders, and technical documents, including EPA  guidance on the appropriate selection of cleanup remedies; decision  documents; correspondence between EPA and DOD; internal EPA and  DOD documents; ATSDR reports; federal contracting guidelines; and GAO  reports on government contracting and project management.
We conducted this performance audit from January 2009 to July 2010 in  accordance with generally accepted government auditing standards. 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.
section_title: Appendix II: Cleanup Progress (according to EPA) at DOD Sites Lacking IAGs in Early 2009
paragraphs: In February 2009 DOD sent EPA an e-mail indicating its renewed  willingness to accept the Fort Eustis Federal Facility Agreement as the  model for DOD’s remaining site agreements under CERCLA. At that time  EPA reported there were 12 DOD installations on the National Priorities  List (NPL) without agreed-upon IAGs, as required under CERCLA. (Since  then, DOE and EPA acknowledge there are only 11 installations without  IAGs for which DOD is responsible. They exclude the Middlesex Sampling  Plant, which is the responsibility of the Army Corps of Engineers.) For a  detailed list of the 11 DOD installations, see table 2.
EPA told us that since February 2009, progress has been made and IAGs  were signed and made effective for Fort Meade in Maryland, Naval  Computer and Telecommunications Area Master Station in Hawaii, and  Whiting Field in Florida. In addition, as of June 2010 the remaining four  installations that lack signed IAGs include Andrews AFB in Maryland,  Tyndall AFB in Florida, Redstone Arsenal in Alabama, and Air Force Plant  44 in Arizona.
section_title: Appendix III: Profile of Fort G. Meade Army Installation in Maryland/EPA Region 3
subsections: section_title: Background on Installation
paragraphs: The Fort Meade Army Installation is located approximately halfway  between Baltimore, Maryland, and Washington, D.C., near Odenton,  Maryland, and has been a permanent United States Army Installation since  1917. Fort Meade once occupied approximately 13,500 acres of land, but  currently occupies approximately 5,142 acres after parcels of land were  transferred to the U.S. Department of the Interior, the U.S. Architect of the  Capitol, and Anne Arundel County, Maryland. Fort Meade’s mission is to  provide base operations support for activities of over 80 partner  organizations from all four Department of Defense (DOD) military services  and several federal agencies. Some of the major tenant agencies include the  National Security Agency, the Defense Information School, the U.S. Army  Intelligence and Security Command, the Naval Security Group Activity, the  70th Intelligence Wing (Air Force), the 902nd Military Intelligence Group  (Army), and the U.S. Environmental Protection Agency (EPA).
section_title: NPL Listing History and Known Contaminants
paragraphs: The EPA placed Fort Meade on the National Priority List (NPL) on July 28,  1998, after an evaluation of contamination due to past storage and disposal  of hazardous substances at the Defense Reutilization and Marketing  Office, Closed Sanitary Landfill, Clean Fill Dump, and Post Laundry  Facility. Contamination at these sites included solvents, pesticides,  polychlorinated biphenyls (PCB), heavy metals, waste fuels, and waste  oils. Moreover, elevated levels of volatile organic compounds (VOC),  pesticides, and explosives compounds have been detected in underlying  aquifers and low levels of VOCs, including tetrachloroethylene (PCE) and  trichloroethylene (TCE), and pesticides have been detected in residential  wells located off-base in Odenton, Maryland.
section_title: Issuance of RCRA 7003 Order
paragraphs: On August 27, 2007, EPA issued a unilateral Administrative Order under  the Resource Conservation and Recovery Act (RCRA) section 7003 for  Fort Meade under its authority to address solid and hazardous wastes that  may present an imminent and substantial endangerment to health or the  environment. The RCRA Order requires the Army to assess the nature and  extent of contamination, determine appropriate corrective measures, and  implement those measures. The Order was motivated by the absence of a  signed interagency agreement (IAG) between EPA and DOD, as required  by section 120 of CERCLA, and which would establish a framework for  EPA’s involvement. EPA and the Army could not come to an agreement on  the IAG due to several issues. For many years, the Army maintained the  position that since EPA took only four sites into consideration for listing  Fort Meade on the NPL, it would negotiate an IAG for only those four  sites. EPA’s position on the other hand has been that the 14 Areas of  Concern on the Fort Meade property and 3 Areas of Concern on the  adjacent transferred property should be included in the language of the  IAG. Another major disagreement centers on groundwater contamination  issues at the base, a common problem on DOD installations. The RCRA  Order consequently required the Army to move forward with cleanup of all  these hazardous waste sites. Fort Meade officials accepted the order in  December 2008.
section_title: Recent Developments in IAG Negotiation
paragraphs: While as of March 2009, Fort Meade was out of compliance with the RCRA  Order, in June of 2009, DOD and EPA reached an agreement and an IAG  for Fort Meade was signed by all parties. The IAG became effective in  October of 2009, after the required public comment period. Per the terms  of the IAG, the EPA has rescinded the RCRA Order at Fort Meade.
section_title: Appendix IV: Profile of McGuire Air Force Base in New Jersey/EPA Region 2
subsections: section_title: Background on Installation
paragraphs: McGuire Air Force Base (AFB) is located in south-central New Jersey near  the town of Wrightstown, which is approximately 20 miles southeast of  Trenton, and occupies about 3,536 acres within the boundaries of the  Pinelands National Reserve. McGuire AFB began operations in 1937  functioning under the control of the U.S. Army until 1948 when the  facility’s jurisdiction was transferred to the Air Force. McGuire AFB is  home to five units of command, including the 87th Air Base Wing (the host  wing), 108th Air Refueling Wing, 305th Air Mobility Wing, 514th Air  Mobility Wing, and 621st Contingency Response Wing. McGuire AFB’s  mission is to provide joint installation support for McGuire AFB, Fort Dix  (Army), and the Naval Air Engineering Station Lakehurst. McGuire AFB is  the Department of Defense’s (DOD) first and only joint base to consolidate  Air Force, Army, and Navy installations. The base provides airlift  capabilities to place military forces into combat situations.
section_title: NPL Listing History and Known Contaminants
paragraphs: The Environmental Protection Agency (EPA) placed McGuire AFB on the  National Priorities List (NPL) on October 22, 1999. The initial sites  responsible for McGuire AFB’s inclusion on the NPL include: (1) Zone 1  Landfills (comprised of Landfill Nos. 4, 5, and 6; (2) Landfill No. 2; (3)  Landfill No. 3; and (4) the Defense Reutilization and Marketing Office.  Examples of contaminants found on McGuire AFB sites include volatile  organic compounds; polychlorinated biphenyls; trichloroethylene;  semivolatile organic compounds; polycyclic aromatic hydrocarbons; total  petroleum hydrocarbons; pesticides; and metals, such as nickel and  mercury. There are 42 contamination sites in total at McGuire AFB, where  36 sites are located on the base and 6 sites, which are not included in  McGuire AFB’s NPL listing, are located at the Boeing Michigan  Aeronautical Research Center Missile Facility. According to McGuire AFB  officials, the sites that have the greatest priority for cleanup include the  landfill sites, which were responsible for McGuire AFB’s listing on the  NPL, the Bulk Fuel Storage Area, the Triangle area, the Defense  Reutilization and Marketing Office site, the C-17 Hangar site, the Fuel  Hydrant Area, and the Pesticide Shop Area.
section_title: Issuance of RCRA 7003 Order
paragraphs: On July 13, 2007, EPA issued a RCRA Administrative Order under section  7003 for McGuire AFB, which became effective on November 26, 2007.  EPA issued the order under its RCRA authority to address solid and  hazardous wastes that may present an imminent and substantial  endangerment to health or the environment. The RCRA Order requires  McGuire AFB to assess the nature and extent of contamination, determine  appropriate corrective measures, and implement those measures. The  Order was motivated by the absence of an IAG between EPA and DOD at  McGuire AFB, according to EPA officials.
section_title: Recent Developments in IAG Negotiation
paragraphs: On December 7, 2007, the Air Force notified EPA by letter that it considered  the RCRA Order for McGuire AFB to be invalid. The Air Force officials said  that the contamination sites listed in the Order, which were also included in  a draft IAG for the base, had not been updated since 2001. According to  EPA, the RCRA Order was based on site information from McGuire AFB’s  outdated documents, since those were the only sources of the information  available to EPA at the time. In addition, the officials at McGuire AFB  believed that EPA’s issuance of the RCRA Order was politically motivated  and that it slowed cleanup progress at the base. For example, they believed  that EPA did not approve McGuire AFB’s site management plan (SMP)—  related to cleanups under the Comprehensive Environmental Response,  Compensation, and Liability Act (CERCLA)—because the RCRA Order was  in place. However, prior to the issuance of the RCRA Order, McGuire AFB  had not submitted an SMP and only provided EPA with individual fact  sheets for contamination sites on the base. McGuire AFB submitted a  revised draft SMP in July 2009. Officials from the Air Force said that the Air  Force would continue to exercise its CERCLA responsibilities at McGuire  AFB to accomplish the substantive cleanup work that EPA sought to impose  in the RCRA Order. However, this did not stop EPA’s involvement with the  cleanup activities at McGuire AFB, as EPA continued to work with Air  Force officials on the RCRA Facility Investigation phase at McGuire AFB.  According to EPA officials, McGuire AFB was not in compliance with the  RCRA Order as it had not complied with deadlines set forth in the Order and  refused to follow the outlined cleanup process. It is EPA’s opinion that only  after EPA’s issuance of the RCRA Order did McGuire AFB begin submitting  the required documentation. However, McGuire AFB overwhelmed EPA’s  document review process by submitting the required documents all at once.  Following DOJ’s letter upholding EPA authority to issue the RCRA Order, as  a matter of law, DOD asserted that fulfilling CERCLA requirements fulfilled  the Order’s RCRA requirements. Nonetheless, progress was made on the  IAG negotiations at McGuire AFB. In October 2009, an IAG was signed by all  the appropriate parties for McGuire AFB and it became effective on  December 1, 2009, following a public comment period.
section_title: Appendix V: Profile of Tyndall Air Force Base in Florida/EPA Region 4
subsections: section_title: Background on Installation
paragraphs: Tyndall Air Force Base (AFB) occupies approximately 29,000 acres on a  peninsula near Panama City, Florida. The base was initially activated in  1941 as a gunnery school for the Army Air Corps, then as an air tactical  training school in 1946, and finally designated as an Air Force base in 1947.  Currently, Tyndall AFB contains the 325th Fighter Wing, which has a  mission of pilot and maintenance training for the F-15 Eagle and F-22  Raptor fighter jet squadrons, weapons system controllers training, and the  601st Air Operations Center activities. Tyndall AFB is also part of the Air  Education and Training Center.
section_title: NPL Listing History and Known Contaminants
paragraphs: The Environmental Protection Agency (EPA) placed Tyndall AFB on the  National Priorities List (NPL) on April 1, 1997, primarily due to DDT  contamination in the sediment of Shoal Point Bayou. Shoal Point Bayou is  a tidal creek used as a waterway for barges and small ships to deliver  petroleum, oil, lubricant products, and building supplies to the base. In  October 1985, the U.S. Fish and Wildlife Service conducted sediment  sampling throughout St. Andrew Bay, including Shoal Point Bayou, and  found the presence of DDT and DDT metabolites. Then in 1990, the same  contaminants were detected in fish, soil, and sediment throughout the  Bayou. After multiple investigations, a remedial investigation (RI) was  completed for this site in 2002 by the Department of Defense (DOD);  however, EPA later deemed the investigation insufficient. Additional  investigations have been completed, which found higher concentrations of  DDT and metabolites than previously determined. However EPA officials  report that the new information on the contamination at Shoal Point  Bayou was never integrated into the previous RI findings. Other areas of  contamination at Tyndall AFB include the flight line and aircraft  maintenance areas, oil/water separators, landfills, fire training pits,  petroleum release sites, and munitions testing, disposal, and burial areas.  The other contaminants of concern in soil, sediment, surface water, and  groundwater at Tyndall AFB include petroleum, DDT, chlordane, TCE,  vinyl chloride, pesticides, lead, benzene, arsenic, chromium, barium, and  munitions constituents. DOD officials claim that Tyndall AFB currently  has 16 active contamination sites after beginning its Installation  Restoration Program with 39 sites.
Tyndall AFB has many cleanup challenges due to its geography and  topography, which cover approximately 110 miles of coastal shoreline with  a maximum elevation of less than 30 feet above mean sea level. In addition,  approximately 40 percent of the land on Tyndall AFB is wetlands and there  are three underlying groundwater aquifers on the base. Tyndall AFB is  proceeding at many of the sites by employing a cleanup remedy of natural  attenuation. One challenge is that the groundwater at the installation is  highly susceptible to contamination and is used as a drinking water source  on base. Another challenge is protecting Tyndall AFB’s extensive wetlands  and bayous, which includes protecting over 40 species of threatened and  endangered plant and animal species. Finally, it is a challenge to control  civilian, military, visitor, and trespasser access to areas of contamination on  the base. For example, Tyndall AFB has over 110 miles of uncontrolled  shoreline where recreational boaters and trespassers may gain access and  be exposed to contamination. Furthermore, military and civilian workers  may access areas of contamination throughout Tyndall AFB because the  installation does not have a land use controls program or physical barriers,  such as fences, to prevent unacceptable exposures.
section_title: Issuance of RCRA 7003 Order
paragraphs: Tyndall AFB cleanup and remedial investigation activities have continued in  the absence of a signed IAG and without EPA concurrence. On November  21, 2007, EPA issued an Administrative Order under RCRA section 7003 for  Tyndall AFB to provide EPA with an instrument to enforce cleanup and  which EPA hoped would lead to a signed IAG. EPA issued the Order, which  was finalized in May 2008, under its Resource Conservation and Recovery  Act (RCRA) authority to address solid and hazardous wastes that may  present an imminent and substantial endangerment to health or the  environment. The RCRA Order requires Tyndall AFB to assess the nature  and extent of contamination, determine appropriate corrective measures,  and implement those measures. Tyndall AFB has maintained progress  schedules for individual sites, but EPA officials say that Tyndall AFB has not  submitted an integrated site cleanup schedule as part of a larger site  management plan (SMP) for the entire base.
section_title: Recent Developments in IAG Negotiation
paragraphs: EPA officials stated that outside of their goal to reach an agreed-upon IAG,  one of their other priorities is to get Tyndall AFB to submit a draft SMP in  the near future. Tyndall AFB submitted one in the past, but according to  EPA officials it was deficient, lacked integrated schedules, and only  addressed approximately 30 contaminants on the base. However,  according to EPA, Tyndall AFB is currently out of compliance with the  deadlines and scope of work requirements as defined in the RCRA Order.  In addition EPA officials said the Air Force has denied the Order’s  legitimacy by calling it a “potential Order.” As of June 2010, Tyndall AFB  still does not have a signed IAG.
section_title: Appendix VI: Comments from the Environmental Protection Agency
section_title: Appendix VII: Comments from the Department of Defense
paragraphs: The following are GAO’s comments on the Department of Defense’s letter,  dated July 5, 2010.
subsections: section_title: GAO Comments
paragraphs: 1.  For this recommendation DOD agreed that it is vitally important to  track cleanup progress at its installations and to make that information  available to Congress and the public in a manner that is transparent  and easily understandable. DOD also discussed working actively with  EPA through a federal working group. However, DOD indicated that if  the working group decides a common metric is essential, DOD would  require that the metric meet DOD criteria, such as continuing use of  DOD’s site level measure as compared to EPA’s operating unit level of  measure, suggesting the agencies are unlikely to implement a uniform  method for reporting cleanup progress at the installations. We  continue to believe that such uniformity is essential to provide greater  assurance that cleanup progress is being measured accurately and  consistently across all Superfund sites, and to provide for transparency  to Congress and the public. An agency may need more detailed  information for management purposes, but information comparable to  other Superfund sites is essential to providing adequate transparency.  2.  DOD disagreed with our recommendation that EPA pursue  amendments to Executive Order 12580 to condition delegation of  CERCLA authorities to DOD on the existence of a signed IAG. DOD  stated that because all but 5 of the 141 IAGs remain in negotiation,  DOD should maintain lead agency CERCLA authority so it can  continue executing cleanup actions pending resolution of any IAG  issues and indicated its intention to sign the remaining 5 IAGs using as  a template an IAG between the Army and EPA for Fort Eustis, Virginia,  as has been agreed upon by the agencies. However, given that 4  remaining agreements have been pending for over a decade, we  continue to believe that outstanding CERCLA Section 120 IAGs need to  be negotiated expeditiously and that amendments to Executive Order  12580 could facilitate such action.  3.  For this recommendation, the Deputy Under Secretary agreed that  proper notification of new releases that exceed statutory thresholds  and significant new information about previously known releases is  necessary. DOD noted that DOD guidance on this issue is already in  existence; however, GAO reviewed these documents during the  engagement and found them to lack adequate specificity for use by  installation personnel, particularly in the area of new information  about previous releases. Although the Deputy Under Secretary notes  that when DOD personnel obtain new information about a previously  known release they are already required to review and evaluate any  potential impacts to the cleanup process in consultation with relevant  stakeholders, to include regulators, we found several instances where  DOD personnel did not share such information with regulators in a  timely fashion. When we asked why, installation personnel stated they  were not required to provide regulators with such information. For  example, our report highlights an example of Tyndall’s failure to notify  EPA about the presence of lead—a hazardous substance under  CERCLA—at the Tyndall elementary school, and failure to take action  to prevent children’s exposure to lead shot, among other issues.  4.  For this recommendation, DOD agreed and referenced its policy.
However, our review found inconsistencies in how this policy was  interpreted. While federal guidelines indicate that performance-based  contracts (PBC) are not generally appropriate for work that involves a  great deal of uncertainty, officials from the Army told us that in their  view, PBCs are better suited for complex work because they foster  innovation from the private sector. DOD policy directs the services to  use PBCs whenever possible—establishing the goal that PBCs be used  for 50 percent of service acquisitions. Nonetheless, Tyndall AFB  officials told us that after shifting toward PBCs for cleanup work in  2004, they are no longer using them for new contracts because of the  uncertainty in the cleanup work needed at the base.  5.  For this recommendation, DOD agreed and referenced its DERP  guidance, which outlines the process for developing and proposing  remedies. The guidance, however, does not provide specific  requirements regarding monitored natural attenuation. As DOD notes,  when DOD selects monitored natural attenuation as its remedy, DOD  is to present the basis for its selection in a ROD or proposed plan.  However, DOD and its contractors are not uniformly demonstrating  that EPA’s specific criteria for selection of monitored natural  attenuation are met before selecting such a remedial alternative,  according to EPA. These criteria require that certain conditions exist  such as a low potential for contaminant migration and a time frame  comparable to other methods of remediation.  6.  The Deputy Under Secretary of Defense disagreed with our Matter for  Congressional Consideration, in which we suggested that Congress  should consider amending section 120 of CERCLA to authorize EPA to  administratively impose penalties to enforce cleanup requirements at  federal facilities without a negotiated CERCLA interagency agreement.  DOD presented several reasons for its position, including its belief that  EPA has existing statutory enforcement tools under the Resources  Conservation Recovery Act (RCRA) and the Safe Drinking Water Act  (SDWA). However, there is little evidence that these other mechanisms  have been effective.  For example, in 2007 EPA issued administrative  cleanup orders under RCRA at all three installations that the services  disagreed with and they all initially refused to comply while DOD sought  DOJ review of the orders’ validity. 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 and  clean up. The Air Force and Army did not notify EPA of their intent to  comply with the order within the time frame required and stated they  would continue to clean up the sites under their CERCLA removal and  lead agency authority. After DOJ issued a letter stating its opinion that  EPA had the authority to issue the orders, as a matter of law, the Army  informed EPA of its intent to comply and initiated work under RCRA at  Fort Meade, while the Air Force did not take similar actions for its  installations. Subsequent negotiations between DOD and EPA resulted  in IAGs at Fort Meade and McGuire AFB. However, at Tyndall AFB,  where there is still no signed IAG, DOD continues to refuse to comply  with the RCRA order. In regards to SDWA, we recognize there can be  installations with contamination that do not threaten a public water  supply, and therefore SDWA would not apply. DOD also commented  that EPA has authority to negotiate administrative penalties in IAGs  under CERCLA and that existing IAGS include stipulated penalties.  However, as we stated previously, several of the most challenging sites  do not yet have IAGs, including Tyndall AFB. For more than a decade  DOD has failed to enter into IAGs required by CERCLA section 120 to  clean up DOD National Priorities List (NPL) sites. As we note in our  report, without an IAG EPA lacks the mechanisms to ensure that  cleanup by an installation proceeds expeditiously, is properly done, and  has public input, as required by CERCLA. We disagree that providing  EPA with the authority to issue CERCLA penalties at facilities without  an IAG will be a disincentive to EPA’s negotiating interagency  agreements. EPA has stated on numerous occasions its commitment to  complete negotiations for such agreements. Finally, DOD noted that  EPA has remedy selection authority at NPL installations regardless of  whether the installation has a signed IAG. Despite having authority for  choosing a final cleanup remedy, EPA has not been able to force  progress toward remedy selection because it has no enforceable  schedule to ensure DOD installations make progress on the technical  steps leading up to the ROD, which documents the remedy selected for  cleanup. Hence, as at the three installations reviewed in this report,  installations may not complete cleanup for a decade or more without an  IAG. We believe our report demonstrates that EPA has experienced  considerable difficulty employing its existing enforcement authorities  and that DOD has resisted EPA’s use of such authority to compel DOD  to enter into IAGs at NPL sites. Hence, we continue to assert that an  expansion in EPA’s enforcement authority is warranted.
section_title: Appendix VIII: 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; Pamela Davidson; Michele Fejfar; Justin  Mausel; Alison D. O’Neill; Ilga Semeiks; and Amy Ward-Meier made major  contributions to this report. Vasiliki Theodoropoulos also made key  contributions.
section_title: Glossary
paragraphs: This glossary is provided for reader convenience. It is not intended as a  definitive, comprehensive glossary of all aspects of the Comprehensive  Environmental Response, Compensation, and Liability Act (CERCLA)  process for the cleanup of environmental contamination at Superfund sites.
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 RCRA or 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 has had some type of  hazardous substance release or spill. EPA updates the docket periodically.
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 these preliminary assessments to determine whether  the information is sufficient to 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.
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.
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 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.
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.
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, provides 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 (ROD) that documents the selected  remedial action cleanup objectives, the technologies to be used during cleanup, and the  analysis supporting the remedy selection.
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.
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.
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.