Environmental Contamination: Corps Needs to Reassess Its Determinations That Many Former Defense Sites Do Not Need Cleanup
Released: 2002-09-23T00:00:00

Letter

Background

Under the Defense Environmental Restoration Program, DOD is authorized to identify, investigate, and clean up environmental contamination and other hazards at FUDS. The environmental restoration program was established by section 211 of the Superfund Amendments and Reauthorization Act of 1986 (SARA), which amended the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Under the environmental restoration program, DOD’s activities addressing hazardous substances, pollutants, or contaminants are required to be carried out consistent with section 120 of CERCLA.

DOD delegated its authority for administering the FUDS program to the U.S. Army; in turn, the U.S. Army delegated execution of the program to the Corps. To be eligible for cleanup under the FUDS program, a property must have been owned by, leased to, possessed by, or otherwise controlled by DOD during the activities that caused hazards. These hazards consist of unsafe buildings, structures, or debris, such as leaning or weakened load-bearing walls or supports; open-sided platforms or floors more than 6 feet above the next lower level; and any pit, depression, or tank that can collect or contain standing water, such as underground missile silos, septic tanks, and sewers; hazardous, toxic, and radioactive waste, which includes contaminants such as arsenic, certain paints, some solvents, petroleum and some related products, and toxic pollutants from landfills; containerized hazardous, toxic, and radioactive waste, such as transformers and underground and aboveground storage tanks that contain petroleum, solvents, or other chemicals; and ordnance and explosive waste such as military munitions and chemical warfare agents.

Figure 1 shows examples of the types of hazards that might be found at FUDS properties.

According to DOD’s fiscal year 2001 report on the status of its various environmental cleanup programs, there were 9,181 properties identified by the Corps, the states, or other parties as potentially eligible for cleanup under the FUDS program. To determine if an identified property is eligible for the FUDS program, the Corps conducts a preliminary assessment of eligibility to establish whether the property was ever owned or controlled by DOD and if hazards from DOD’s use are potentially present. Corps officials point out that the preliminary assessment of eligibility is not intended to be a comprehensive evaluation of the FUDS property; instead, it is a screening effort intended to determine if potential hazards caused by DOD exist and, if so, whether additional study or cleanup actions are required to address such hazards. Corps guidance generally calls for staff to use the following procedures when conducting a preliminary assessment of eligibility: obtain available information on the present and prior uses of the site from real estate and archival records; present and former owners; and other federal, state, and local agencies; identify any relevant conditions, such as a release of liability or a requirement to restore the property, in real estate deeds that would affect the federal government’s liability; contact the current owner to obtain permission for an initial survey of the property to determine if DOD-caused hazards are potentially present; and visit the property to examine it for obvious signs of hazards and identify any areas that may require further study or testing.

At the end of the preliminary assessment of eligibility, the Corps determines if any further study or cleanup action is needed. If the Corps determines that no further action is needed, the property is designated as NDAI. According to Corps guidance, the districts must notify current owners of the result of the preliminary assessment of eligibility within 30 to 60 days after the final NDAI determination.

Because FUDS properties may have changed significantly since DOD owned or controlled them, the facilities once present and any potential hazards that may still exist may not be obvious. For example, former DOD facilities at a FUDS property may have been renovated, destroyed, or removed, and areas no longer used may be overgrown with vegetation, making potential hazards more difficult to detect. As a result, key components of the Corps’ preliminary assessment of eligibility are (1) obtaining historical documents, such as maps and photos that can aid Corps staff in identifying and locating the facilities at the property and indicate how the property was used (prior uses and the activities that took place), and (2) conducting an inspection of the property (site visit) to check for existing hazards caused by DOD.

Although DOD guidance states that CERCLA is the statutory framework for the environmental restoration program, in recent years EPA has questioned whether the Corps’ process is consistent with CERCLA, and both EPA and some state regulatory officials have questioned its adequacy. While the Corps is required to carry out the program in consultation with EPA, the Corps is not required to consult with state regulatory agencies until hazards are discovered. Corps guidance now instructs staff to keep EPA and state regulatory agencies informed of the status and disposition of each NDAI determination, but the Corps does not consult with EPA or the states when making its determination because it considers the preliminary assessment of eligibility an internal management process. Figure 2 shows the location of the 4,030 FUDS properties that the Corps has designated as NDAI.

About 38 Percent of the Corps’ Determinations That No DOD Action Is Indicated Are Questionable

Based on our review of NDAI files, we estimate that the Corps does not have a sound basis for about 38 percent or 1,468, of the estimated 3,840 NDAI determinations in our study population because the property files did not contain evidence showing that the Corps consistently reviewed or obtained information that would have allowed it to identify all of the potential hazards at the properties or that it took sufficient steps to assess their presence. In many cases, when attempting to identify potential hazards resulting from DOD activities, the Corps apparently did not obtain relevant information about former DOD activities and facilities at the properties, such as buildings and underground storage tanks constructed and used by DOD. For example, based on our review of Corps files, we estimate that for about 74 percent, or 2,828, of all NDAI determinations, the Corps did not review or obtain site maps, aerial photos, or ground photos that could provide information about potential hazards (e.g., a site map showing an ammunition storage facility could suggest the presence of unexploded ordnance). Furthermore, in a number of cases, it appeared that the Corps overlooked or dismissed information in its possession when it looked for evidence of potential hazards. In addition, we estimate that the Corps did not conduct a site visit at 686, or about 18 percent, of all NDAI properties despite Corps guidance that requires site visits to determine if potential hazards are present. The problems we noted occurred, in part, because Corps guidance is not specific about what documents the Corps should obtain, the level of detail required when seeking information on the prior uses of the FUDS properties and the facilities located at them, or how to assess the presence of potential hazards.

Corps Did Not Consistently Obtain Information Needed to Identify Potential Hazards at FUDS

The files for the NDAI properties that we reviewed did not always indicate that the Corps reviewed or obtained information that would have aided in identifying potential hazards at the properties. Information on what DOD activities occurred, what DOD facilities existed, and where those activities and facilities were located at FUDS can provide leads about potential hazards and where they might be. Such information could be obtained from site maps showing buildings or facilities at the property; aerial and ground photos; current landowners; or federal, state, and local agencies. However, although Corps guidance instructs staff to obtain available information on the present and prior uses of the site, the FUDS manual offers no specific guidelines on what documents or level of detail to obtain. While our review indicates that at some sites Corps staff obtained site maps, aerial or ground photos, or information from owners or other agencies, it appeared that the Corps did not do so consistently; as a result, potential hazards may have been overlooked.

The random sample of NDAI files that we reviewed contained little evidence that Corps staff reviewed or obtained site maps to identify potential hazards. Maps can provide detailed information on the facilities that were present when DOD owned or used the site and could aid the Corps in identifying potential hazards resulting from military activities at the site. For example, although there were no DOD structures remaining at an anti-aircraft artillery site whose file we reviewed, a detailed map showed the exact location of a gun emplacement, an ammunition magazine, a motor pool area, a mess hall, seven barracks, two administrative buildings, a communications building, a drainage area, a septic tank, a grease rack, a 5,000-gallon storage tank, an oil storage facility, a pump house, a grease trap, two generators, a paint shed, a latrine, and a refueling area.

Obtaining such maps for sites could provide knowledge of site facilities and could lead Corps staff to identify potential locations of hazardous substances, ordnance, or unsafe buildings. Without the site map, many of these facilities might not have been identified as features that were likely to be located at an anti-aircraft artillery site. Further, without the map, it might have been difficult to establish the former locations of these facilities because of the size of the property and the length of time that has elapsed between DOD’s use and the Corps’ assessment. However, despite the usefulness of site maps, based on our review, we estimate that for about 77 percent, or 2,972, of all NDAI properties, the files do not contain site maps or references to a map review.

There was also little evidence that the Corps obtained aerial or ground photos of the FUDS to identify potential hazards. Photos, like maps, can provide information that may be useful in identifying potential hazards. In addition to providing information on what facilities existed and where they were located when the military owned or used the site, photos can also provide information on the condition of the facilities when the military was present. This information is particularly important because if a facility was in good condition when the military disposed of the property, but has since been allowed to deteriorate, the Corps is not responsible for cleanup. Photos can also help the Corps identify areas that were used as landfills or other disposal sites. However, based on the information contained in the Corps’ files, we estimate that for about 92 percent, or 3,522, of all NDAI determinations, the files do not contain aerial or ground photos or indicate that photos were reviewed as part of the Corps’ process.

In addition, there was little evidence that the Corps used the current owner (or owners) as a source of information for the majority of the sites that we reviewed. The current owner has the potential to provide information about a FUDS property. If the current owner is the person who first obtained the property from DOD, then the owner might be able to describe the facilities that were present at acquisition and explain what has become of those facilities. Even if the current owner is not familiar with the DOD activities conducted at the site, the owner might be able to describe the current condition of the property and note any hazards present. Based on our review of NDAI files, we estimate that the Corps did not contact all the current owners for about 60 percent, or 2,319, of all NDAI properties in our study population.

Information on FUDS may also be available from various local, state, and federal agencies. For example, during a preliminary assessment for one property in the New York district, the Corps obtained information on the potential presence of ammunition or explosive wastes from the city facilities that may have been at the site during military use from a city environmental office, the port authority transportation department, the city police department, and the national archives; site maps from the city library; and permits issued for underground storage tanks from the city building department.

However, it appears that the Corps seldom asked these kinds of agencies for information. For example, a New Jersey state official told us that his department has 15,000 files on sites within the state, but the Corps has never gone through the department’s files. We estimate that the Corps contacted a local, state, or federal agency to obtain information that could indicate potential hazards for only about 10 percent, or 375, of the 3,840 NDAI properties in our study population.

Camp O’Reilly, a FUDS in Puerto Rico, exemplifies how obtaining historical information on how a site was used or current information on the condition of the property could have helped the Corps identify potential hazards. Camp O’Reilly was a 907-acre military post that included 591 buildings and other facilities and housed about 8,000 troops from August 1942 to June 1945. In September 1992, the Corps determined that there were no hazards at Camp O’Reilly that were eligible for FUDS cleanup and designated the site as NDAI. Yet, there is no evidence in the Corps’ files that the Corps obtained or reviewed maps, archival photos, or studies, or that it contacted the current owners to identify potential hazards during its preliminary assessment of eligibility for Camp O’Reilly. Had the Corps obtained and made use of historical information, it could have identified a number of potential hazards. In July 1997, the University of Puerto Rico, the current owner, contacted the Corps and indicated that several locations on the property contained hazards caused by DOD use. In a second assessment—with the aid of the owner’s information, site maps, and records—the Corps identified three 15,000-gallon underground storage tanks, an area adjacent to a drinking water source that is “highly” contaminated with oil by-products, a 12,000-square-foot landfill, and a concrete structure (15 feet wide, 70 feet long, and 60 feet deep) filled with water that presents a drowning hazard. These hazards have all been determined to result from DOD use of the property and are eligible for cleanup under the FUDS program.

Information on potential hazards found at certain types of FUDS properties may also be useful in identifying potential hazards at other similar properties. For example, in August 1994, the Corps issued “Procedures for Conducting Preliminary Assessments at Potential Ordnance and Explosive Waste Sites.” This document notes that certain types of former sites are highly likely to contain unexploded ordnance and that such sites “must not be determined as unless strong evidence or extenuating circumstances can be presented as to why no contamination is expected.” The sites specified in the document included Army airfields, auxiliary airfields, practice bombing ranges, rifle ranges, and prisoner of war camps. Although these procedures are not referenced in the FUDS Manual, and we cannot show a cause-and-effect relationship between the issuance of the procedures and the more frequent identification of unexploded ordnance as a potential hazard, we found that that Corps staff identified unexploded ordnance as a possible hazard at these types of sites more often after the issuance of these procedures. For example, in our sample, which included 48 auxiliary airfields, unexploded ordnance was identified as a possible hazard at only 8 of 36 sites that the Corps reviewed before the procedures were issued. In contrast, for the 12 auxiliary airfields in our sample that the Corps reviewed after the procedures were issued, the Corps identified unexploded ordnance as a potential hazard at 10 of the airfields. Our sample also included 15 prisoner of war camps. Before the procedures were issued, unexploded ordnance was not identified as a possible hazard at any of the seven sites the Corps reviewed. After the procedures were issued, five of the eight prisoner of war camps in our sample were identified as having potential unexploded ordnance hazards.

The Corps also developed a formal guide for assessing Nike missile sites. In addition we found that a FUDS project manager in the Corps’ Fort Worth district developed an informal guide for assessing 14 different types of FUDS properties that listed the hazards most likely to be found at each. For example, if a property contained a laundry facility, this informal guide indicates that staff should look for dry cleaning solvents and tanks. Similarly, for a property containing an unmanned radar station, staff should look for underground storage tanks. The Fort Worth project manager told us that he developed the guide because he did not know what to look for when he began working in the FUDS program. However, while the use of such procedures or guides appears to be useful in identifying potential hazards at certain types of sites, we were able to identify or obtain only the three guides discussed previously.

Corps Did Not Take Sufficient Steps to Assess the Presence of Potential Hazards

We found that at times Corps officials overlooked or dismissed information in their possession that indicated potential hazards might be present. Often, these problems appear to have involved a failure to act upon information obtained during identification efforts or a failure to consider information from owners or from federal, state, or local environmental agencies. In other cases, the information in the file suggested potential hazards at the site and did not indicate the basis for the Corps’ NDAI determination. We also found instances where it appears that the Corps’ assessment focused on only one of the four potential hazards included in the Corps’ program—unsafe buildings, structures, or debris; hazardous, toxic, and radioactive wastes; containerized hazardous wastes; and ordnance and explosive wastes. According to several headquarters and district officials, the FUDS program was focused primarily on cleaning up unsafe buildings and debris in the early years of the program. Of the NDAI determinations that we believe lack a sound basis, we estimate that the Corps either overlooked or failed to adequately assess the potential for hazardous wastes at about 88 percent of the properties, for containerized hazards at about 78 percent of the properties, and for ordnance and explosive wastes at about 40 percent of the properties. The following cases illustrate situations where the Corps overlooked or dismissed information in its possession that suggested that hazards might be present: The Corps identified a variety of facilities at Fort Casey, an almost 1,050-acre FUDS property in the state of Washington, and developed information on prior uses; yet, the Corps apparently failed to use this information in its assessment of the site. Facilities identified by the Corps included a coal shed, oil and pump houses, a paint shop, a gasoline station, a grease rack location, and a target shelter—indicating, among other things, possible hazardous containerized and ordnance- related wastes. Yet, the file contained no evidence that these facilities and related potential hazards were considered. The potential hazards stemming from the use of these facilities were not addressed in documents or site visit descriptions, and the site was designated as NDAI. Subsequent to our review, we learned that after the Corps completed its assessment, the state environmental agency performed independent reviews in 1999 and 2001, in part to document any threats or potential threats to human health or the environment posed by this site. The state reported finding hazardous wastes exceeding state cleanup levels that were believed to have occurred during DOD ownership of this site. The state also found what appeared to be fill pipes normally associated with underground storage tanks—something the Corps overlooked during its site visit and overall assessment of this site.

Fort Pickens is an approximately 1,600-acre FUDS property on the Florida coast that was used to defend against invasion during World Wars I and II. The Corps identified numerous facilities, including a power plant building, oil houses, ordnance warehouses, an ordnance magazine, search light towers, transformers, electric poles, water and “miscellaneous” facilities, and underground storage tanks. A site visit revealed open manholes, confirmed the presence of underground storage tanks and vent pipes and old ammunition lifts with magazines, and identified a septic tank. The Corps also noted vegetation stress and attributed this to the local drought. The file contained no evidence that the Corps assessed the property for possible chemical contamination. Despite noting the potential hazards associated with these types of facilities and uses during its assessment and site visit, the Corps designated the site as NDAI.

The former Othello Air Force Station (Z-40) was a 77-acre aircraft warning station in the state of Washington. At this site the Corps initially identified approximately 106 facilities, including a diesel plant; an auto maintenance shop; a possible 3,000-gallon underground storage tank and two 25,000-gallon underground storage tanks; a vehicle fueling station and many other oil, grease, ammunition, and paint storage sites; a transformer; and “other structures required for operation of a radar station” that existed during DOD ownership. The presence of these facilities suggests the potential for both containerized and freestanding hazardous wastes and ordnance hazards at the property. However, there was no evidence the Corps considered the former facilities and their characteristics as potential hazards in reaching their NDAI determination, and, according to the file, the site visit was “only a cursory drive-thru inspection.” An independent study of this site by the state found hazards (i.e., petroleum compounds such as gasoline, diesel, lube or hydraulic oil; polychlorinated biphenyls; and pesticides) and some chemicals exceeding state cleanup levels at two locations, which are believed linked to military ownership.

At the Millrock Repair and Storage Depot of New York, the Corps identified potential aboveground storage tanks, gas pumps, a dynamite storage building, and a generator shed. The Corps’ file contained conflicting trip reports, one indicating potential oil and gas spills and another indicating that no hazards were found. The initial Corps proposal for designating the site as NDAI was rejected by the appropriate Corps district office, and a cleanup project was proposed to sample for gasoline-related chemicals at the site of former storage tanks and a gas pump. Subsequently, the proposed project was rejected on the grounds that there was no evidence that the hazards were related to DOD’s use of the site. Despite the presence of potential hazards, the file contains no evidence that the Corps took additional steps to determine the source of the hazards or that it reported their presence to the appropriate regulatory agencies.

At the Mount Vernon Municipal Airport in the state of Washington, a nearly 1,900-acre site previously used by both the Army and the Navy, the Corps overlooked information in its possession indicating possible ordnance hazards. In the preliminary assessment of eligibility for this site, the Corps obtained a map showing conditions of the site on June 30, 1944, which indicated bomb and fuse storage units. Although the Corps assessed the site for unsafe buildings and debris and containerized hazards, the file contained no evidence that the Corps searched for possible unexploded ordnance despite both guidance issued by the Corps in 1994, which states that Army airfields are likely to contain unexploded ordnance, and the presence of the bomb and fuse storage units, which would also indicate the potential presence of unexploded ordnance.

We also found that in some cases the files did not contain evidence that Corps staff conducted a site visit, as required by Corps guidance. A site visit is one of the primary methods used by the Corps to determine if the potential hazards are in fact present at a site. For example, if the Corps identifies underground storage tanks as potential hazards because a site was once used as a motor pool facility, a site visit can be used to determine if underground storage tanks are still in place. A typical site visit would include at least a visual check for signs of filler or vent pipes, which would normally protrude aboveground if tanks were still present. Without a site visit, the Corps cannot check for the continued presence of potential hazards. Based on our review of NDAI files, we estimate that about 18 percent, or 686, of the estimated 3,840 NDAIs in our study population did not receive site visits that met Corps requirements: about 428 properties received no site visits, and about 258 properties received site visits conducted from the air or from a vehicle, which are not appropriate, according to Corps program officials.

The following case illustrates a situation where the Corps conducted the site visit from the air: At the former Kasiana Island Base Station in Alaska, the site visit consisted of an over-flight. Although a bunker was noted during the flyover, the contractor conducting the assessment for the Corps said in its report that the area was heavily overgrown. In addition, the file contained no evidence that the Corps tried to identify power sources (and any associated fuel storage tanks) that were likely present to operate the searchlight positions and seacoast radar stations located at the site. Although it was not possible to determine what, if any, hazards may still exist at the site without being on the ground to check for the presence of hazards, the file contained no evidence that the Corps took any further action before designating the site as an NDAI. Subsequent to designating the site as an NDAI, the Corps revisited the site and found two underground storage tanks, several 55-gallon drums, and a storage battery. Tests conducted in the area of the underground storage tanks showed that diesel products in the groundwater exceeded acceptable limits.

For some files designated as NDAI, it appeared that Corps staff remained in their vehicles and took site visit photos from the site’s periphery. Figures 3, 4, and 5 are examples of such photos for visits to a former Nike missile site and a former gap filler annex.

According to a 1986 guide developed by the Corps for assessing Nike missile sites, hazards typically found at Nike sites include petroleum compounds, paints and solvents, leaking underground storage tanks, and lead from batteries. The guide also notes that dumping of wastes was common at Nike sites. On-site dumps were usually located in secluded areas that “would evade the attention of inspecting military officers,” according to the guide.

Gap filler annexes are typically unmanned radar sites that are remotely located. According to the guide developed by Corps staff in Fort Worth, containerized hazards, such as underground or aboveground storage tanks containing petroleum, are usually found at such sites. Transformers containing toxic wastes (polychlorinated biphenyls) have also been found at similar sites.

Because 30 or more years may pass between the closure of a former defense site and a Corps site visit, it is likely that potential hazards would go unnoticed from a vehicle because the area may be too large to see or may be overgrown with vegetation that could hide any evidence of potential hazards. In fact, one of the many concerns expressed by state and EPA officials was that Corps “windshield” or “drive-by” site visits did not involve a thorough assessment of an entire site. While Corps guidance requires a site visit, the guidance provides no specifics, only a general framework for assessing potential hazards. However, Corps officials told us that site visits conducted from the air or a vehicle are considered inadequate and would not fulfill the requirement to conduct a site visit.

Other Factors Contributed to Inadequate Preliminary Assessments of Eligibility

A number of other factors contributed to inadequate preliminary assessments of eligibility. Corps officials explained that, during the early stages of the FUDS cleanup program, they were hampered by limited knowledge of hazards that might be present. They also explained that the priorities of the program have changed over time. For example, several Corps officials told us that during its early stages, the program’s focus was on identifying unsafe building hazards. Later, the focus changed to identifying and removing containerized hazards—primarily underground storage tanks. As a result of changing priorities, not all of the potential hazards were identified and assessed. Moreover, several Corps officials told us that although hazardous, toxic, and radioactive wastes are one category of hazards covered by the program, they cannot propose a project to clean up such hazards without evidence of their existence. However, since 1990, sampling soil and water has not been allowed during the preliminary assessment of eligibility to determine the presence and type of any contamination that might have been caused by DOD activities. According to these officials, without sampling to indicate the presence of hazardous wastes, it is difficult to develop the evidence needed to justify a cleanup project. As a result, NDAI determinations have been made even when the presence of hazardous waste was suspected. Some Corps officials agreed that some of the older NDAI determinations might not be justified and stated that those determinations may need to be reexamined.

Several district officials indicated that although they would like to reexamine some of the NDAI determinations, the FUDS program is now focused on cleaning up hazards already identified, and limited funds are available for reviewing past NDAI determinations. Although Army guidance on the FUDS program issued in March 2001 authorized the districts to reexamine two to five NDAI determinations annually per state in each of the 22 relevant Corps districts if regulatory agencies request the reexaminations and if funds are available, funding shortfalls already hamper the program, according to program officials. For example, the Corps estimates that at current funding levels—approximately $220 million in fiscal year 2002—cleaning up the hazards already identified will take more than 70 years. In its 2001 Funding Strategies report, the Corps proposed that the Army and DOD increase the annual FUDS program funding by $155 million to approximately $375 million per year. If the increased funding were approved and sustained, the Corps could complete cleanup by 2050.

Corps Did Not Consistently Notify Owners and Regulatory Agencies about NDAI Determinations and Non-DOD Contamination

In the files we reviewed, we found no evidence that the Corps consistently notified owners of its NDAI determinations, as required by Corps guidance. In some cases, the Corps did not notify the owners for several years after it made the NDAI determinations. In addition, while Corps policy calls for reconsidering an NDAI determination if evidence is later discovered, it appeared that the Corps rarely instructed the owners to contact the Corps with such evidence or told them of the Corps’ policy. Furthermore, the Corps did not notify federal and state regulatory agencies of its NDAI determinations because Corps guidance at that time did not require it to do so, even though these agencies might have regulatory responsibilities or could have information that might cause the Corps to reconsider its NDAI determination. The Corps also generally did not notify federal or state regulatory agencies of potential hazards that it identified but determined were not caused by DOD’s use. By not routinely notifying the regulatory agencies of hazards caused by non-DOD users, the Corps lost an opportunity to assist these agencies’ efforts to protect human health and the environment.

Corps Did Not Consistently Notify Owners about NDAI Determinations

According to Corps guidance, the districts must notify current owners of the result of the preliminary assessment of eligibility. However, based on our review of the NDAI files, we estimate that the Corps did not provide this information to all the current owners at about 72 percent, or 2,779, of the NDAI properties included in our study population. At one district, a Corps official stated that owners were sent notification of NDAI determinations only if they requested it. Further, in spite of the requirement that owners be notified within 30 to 60 days after a final NDAI determination, in some cases the Corps did not notify owners for several years. In one district, notification letters were not sent to owners until 1994, although NDAI determinations had been made as many as 8 years before. The late-arriving letters caused many owners to call the district office with questions about their NDAI determinations. As a result, the district decided to stop sending notification letters to owners. In addition, while Corps policy calls for reconsidering an NDAI determination if evidence of potential hazards is discovered later, we found that the Corps rarely instructed the owners to contact the Corps with such evidence or told them of the Corps’ policy. Based on our review of Corps files, we estimate that even when the Corps notified the owners of the NDAI determinations, at about 91 percent of these properties it did not instruct the owners to contact the Corps with evidence of potential hazards, if found later. However, because the preliminary assessment of eligibility is not a comprehensive evaluation of these properties, and the Corps does not routinely review its past NDAI determinations, owners are an essential outside source of new information about potential hazards at a given site. By not notifying owners of the NDAI determinations or advising them to contact the Corps if evidence of potential hazards is discovered, the Corps may be reducing its ability to gather new information about potential hazards and reconsider previous NDAI determinations.

Corps Did Not Consistently Notify EPA and State Regulatory Agencies about NDAI Determinations and Non-DOD Contamination

Even though EPA and state regulatory agencies might have relevant statutory responsibilities or could have information that might cause the Corps to reconsider its NDAI determination, based on our review of Corps files, we estimate that the Corps did not notify the regulatory agencies of the NDAI determinations at the time they were made for about 99 percent of the properties. Although Corps officials told us that they have now provided copies of all the NDAI determinations to the relevant federal and state agencies, some EPA and state officials indicated that they have not yet received copies of the NDAI determinations. Even when notification was provided, it was often done in a way that did not encourage agencies’ involvement. For example, one state regulatory agency received a bulk delivery of Corps FUDS summary documents for past NDAI determinations with no explanation. According to state officials, sending agencies NDAI determinations made several years earlier limits the agencies’ ability to provide timely input about potential hazards at a given site. Sending bulk deliveries of documents with no explanation does not encourage the involvement of state regulators who might be unfamiliar with Corps documentation or procedures.

Notifying EPA and state regulatory agencies of NDAI determinations in a timely and appropriate manner could facilitate regulators’ involvement and address some of the concerns that these agencies have about the adequacy of the Corps’ preliminary assessment of eligibility. State regulators told us that their concurrence with an NDAI determination could increase the credibility of the Corps’ determination and improve its quality. State regulators indicated that, in some cases, they could provide the Corps with information about FUDS sites and properties adjacent to FUDS sites, including sampling data that could assist the Corps in determining if further study or cleanup actions by DOD were needed. State regulators also told us that they could provide the Corps with best practice guidance on conducting site visits and engaging the public in data-gathering. A state official also pointed out that his state could assist the Corps in gaining entry to a property if the owner refused to allow the Corps to conduct a site visit. Typically, if the owner refuses entry, the Corps designates the property as NDAI.

EPA and some state regulatory agencies believe that the involvement of their agencies is crucial to the successful implementation and review of the Corps’ preliminary assessment of eligibility process. One example where state involvement has led to the reconsideration of an NDAI determination is the former Wilkins Air Force Base in Ohio, where a school is now located. Following increased public interest in school sites that were once owned by DOD, the state regulatory agency became concerned about the number of FUDS in the state where schools or school activities are now located and conducted a file review of all FUDS sites with school-related activities. Based on new information from the state agency, and after conducting a joint site visit, the Corps proposed a new project at the former Wilkins Air Force Base. The Army is taking steps to improve communication among the Army, regulators, and other stakeholders. In 2000, the Army created the FUDS Improvement Working Group to (1) address the concerns of regulators and other stakeholders about the FUDS program and (2) identify new or modified policies and procedures that will improve communication.

We also noted during our review of NDAI files that the Corps routinely did not notify regulatory agencies when it identified potential hazards that were not the result of DOD use. Although, according to a Corps official, it is “common sense” that the Corps would notify EPA or state regulatory agencies of non-DOD hazards that it identified during its preliminary assessment of eligibility, we estimate that at about 246 NDAI properties the Corps did not notify EPA or state regulatory agencies of non-DOD hazards. For example, when conducting a site visit in Louisiana in 1986, Corps staff identified an underground diesel oil storage tank of unknown size that held approximately 12 inches of diesel oil. The Corps concluded that this hazard was not the result of DOD activities, but was left by the Coast Guard. However, the file contains no evidence that the Corps notified EPA or state regulators of the suspected hazard. An EPA official told us that the Corps never notified EPA of the hazard at this site, and that EPA became aware of the hazard only in 2000, as the result of an initiative it undertook to review Corps FUDS files. While not notifying regulatory agencies of potential hazards that were not the result of DOD use does not affect the Corps’ NDAI determination, it presents a lost opportunity to assist regulators in their efforts to protect human health and the environment.

Conclusions

The Corps does not have a sound basis for about a third of its NDAI determinations for FUDS properties. In making its determinations, the Corps was handicapped by a lack of information about how these properties were used and which facilities were present when DOD controlled the property. In addition, the Corps, at times, apparently overlooked or dismissed information in its possession that suggested that hazards might be present. In still other cases, the Corps did not conduct an adequate site visit to assess the presence of hazards. Because of inadequacies in the Corps’ process for assessing the presence of DOD- caused hazards at these properties, potential hazards may have gone unnoticed. The Corps also did not consistently notify owners and regulatory agencies of its findings and determinations. By not communicating with these parties, the Corps lost opportunities to obtain information on potential hazards that were not discovered during their preliminary assessment of eligibility, which is not comprehensive.

These shortcomings resulted, in part, because Corps guidance does not specify what documents or level of detail the Corps should obtain when identifying potential hazards. Also, the guidance does not include information about typical hazards that might be present at certain types of properties or specify how to assess the presence of potential hazards. As a result, the Corps’ assessment that almost 4,000 FUDS require no further study or cleanup action may not be accurate. In essence, the Corps does not know the number of additional properties that may require further study or cleanup actions, the hazards that may be present at these properties, or the risk level associated with these hazards. Given that one of the factors used in establishing the Corps’ cleanup priorities is the risk that each property poses to the public or to the environment, unless the Corps improves its guidance and reviews past NDAI determinations to determine which sites should be reassessed, the Corps cannot be reasonably certain that it has identified all hazards that may require further study or cleanup action. Without knowing the full extent of the hazards at these properties, the Corps cannot be assured that the properties it is currently cleaning up or that it plans to clean up in the future are the sites that pose the greatest risk. The Corps also cannot estimate how much additional money and time may be needed to clean up properties that were not properly assessed.

Recommendations for Executive Action

To help ensure that all potential hazards are adequately identified and assessed, we recommend that the Secretary of Defense direct the Corps to develop and consistently implement more specific guidelines and procedures for assessing FUDS properties. These guidelines and procedures should specify the historical documents such as site maps, aerial and ground photos, and comprehensive site histories that the Corps should try to obtain for each property to identify all of the potential hazards that might have been caused by DOD’s use; include a listing of typical hazards that might be present at certain types of properties, such as communication facilities or motor pools, and incorporate the guides already developed for ordnance hazards and Nike missile sites into Corps procedures; require that the Corps contact other interested parties—including federal, state, and local agencies—as well as owners during the preliminary assessment of eligibility to discuss potential hazards at the properties; and provide instructions for conducting site visits to ensure that each site receives an adequate site visit and that all potential hazards are properly assessed.

To further ensure that all hazards caused by DOD at FUDS properties are identified, we recommend that the Secretary of Defense, as an initial step, direct the Corps to use the newly developed guidance and procedures to review the files of FUDS properties that it has determined do not need further study or cleanup action to determine if the files contain adequate evidence to support the NDAI determinations. If there is an insufficient basis for the determination, those properties should be reassessed.

To ensure that all parties are notified of the Corps’ NDAI determinations, we recommend that the Secretary of Defense direct the Corps to develop and consistently implement procedures to ensure that owners and appropriate federal, state, and local environmental agencies are notified of the results of the Corps’ preliminary assessments of eligibility in a timely manner. The Corps should also ensure that owners are aware that the Corps will reconsider an NDAI determination if new evidence of DOD hazards is found. In addition, when preliminary assessments of eligibility identify potential hazards that did not result from DOD activities, the procedures should direct the Corps to notify the appropriate regulatory agencies in a timely manner.

Agency Comments and Our Evaluation

We provided a copy of this report to the DOD for review and comment. In written comments on a draft of this report, DOD disagreed with our conclusions, but partially agreed with each of the three recommendations included in this report.

DOD disagreed with our conclusion that the Corps did not consistently obtain information necessary to identify potential hazards at FUDS properties. While DOD acknowledged that the Corps did not have consistent procedures for evaluating FUDS properties during the early years of the program, the agency stated that it does not believe that such inconsistencies led to inadequate assessments. Our conclusion that the Corps did not consistently obtain information necessary to identify potential hazards at FUDS properties is based on our review of over 600 randomly selected NDAI files at nine Corps district offices. We found numerous instances where the files did not contain evidence that potential hazards associated with the property’s prior uses were identified or that Corps staff looked for hazards other than unsafe buildings or debris. Furthermore, during our review, several district officials told us that they would like to reexamine some of the NDAI determinations, but that limited funding is available for this purpose. DOD also stated that the use of tools developed in the later years of the program, such as checklists for specific types of sites, have contributed to a more consistent approach. We agree that tools such as checklists and guides, which provide information on potential hazards that might be found at certain types of FUDS properties, would be useful. However, as we point out in our report, we identified only three such checklists or guides during our review and they were not referenced in the Corps’ FUDS manual that provides information and guidance to staff. For this reason, we recommended that the Corps develop guidelines and procedures that include a listing of typical hazards that might be present at certain types of facilities and incorporate the guides already developed.

DOD also disagreed that the Corps did not take sufficient steps to assess the presence of potential hazards at FUDS properties. In its comments, DOD stated that the FUDS eligibility determination was never intended as a means to characterize all the hazards at a site and cannot be compared to the CERCLA preliminary assessment/site inspection. We recognize that the preliminary assessment of eligibility is not, nor is it intended to be, a comprehensive evaluation of a FUDS property, and our report does not compare the Corps’ preliminary assessment of eligibility to the CERCLA preliminary assessment/site inspection. DOD also stated that if the Corps determines that a property is eligible for the program, an investigation process is undertaken to determine the extent of DOD-caused hazards at the site. Actually, all eligible FUDS properties do not automatically proceed to the investigative phase. In fact, NDAIs, which account for over 4,000 of the approximately 6,700 properties the Corps has determined are eligible for the FUDS cleanup program, do not undergo further investigation. Only properties eligible for the FUDS program and where the Corps believes that potential hazards caused by DOD may exist undergo further investigation. However, as we point out in our report, we found instances where Corps officials appeared to overlook or dismiss information in their possession that suggested potential hazards might be present, and we included specific examples where this occurred.

DOD partially agreed with our recommendation to develop and consistently implement more specific guidelines and procedures for assessing FUDS properties. DOD pointed out that the Army, through the FUDS Improvement Initiative, is currently evaluating the need for any additional guidance or requirements. Our report describes some of the shortcomings that we found in the Corps’ guidance, and our recommendation identifies key areas where we believe that the Corps’ guidelines and procedures should be made more specific.

DOD also partially agreed with our recommendation to use newly developed guidance and procedures to determine if NDAI files contained adequate evidence to support the Corps’ determinations. DOD noted that the Corps would reevaluate an NDAI determination if additional information were discovered and pointed out that the Army has already agreed to reevaluate two to five NDAIs per year at each state’s request. Our report acknowledges both the Corps’ policy of reconsidering an NDAI determination if evidence of DOD-caused hazards is later found and its plans to reevaluate two to five NDAIs per year at each state’s request. We do not believe that the Corps should wait to be asked to reconsider its past NDAI determinations. Under the Defense Environmental Restoration Program, DOD and the Corps, as the executive agent for the FUDS program, bear the responsibility of identifying, investigating, and cleaning up, if necessary, DOD-caused hazards at FUDS properties. Therefore, we continue to believe that the Corps should undertake a review of NDAI property files and reassess those properties where the Corps’ determinations are not adequately supported.

In response to our recommendation aimed at improving its notification procedures, DOD commented that eligibility determination reports are now routinely provided to the states and, where appropriate, to EPA regional offices, and that recent efforts have increased coordination and communication between regulatory agencies and property owners. DOD also pointed out that the Army plans to include, as part of the FUDS manual revision, guidance that specifically requires notification of landowners and regulatory agencies of all NDAI determinations. While DOD did not specifically comment on our recommendation to develop procedures to direct the Corps to notify the appropriate regulatory agencies when its preliminary assessment of eligibility identifies potential hazards that did not result from DOD activities, DOD indicated in its technical comments that the Corps will notify the proper authorities of such hazards.

In addition to its written comments, DOD also provided a number of technical comments and clarifications, which we incorporated as appropriate. DOD’s comments appear in appendix III.

Scope and Methodology

To determine the extent to which the Corps (1) has a sound basis for its determinations that more than 4,000 formerly used defense sites need no further study or cleanup actions and (2) communicated its NDAI determinations to owners and regulatory agencies that may have responsibilities and notified the owners that it will reconsider an NDAI determination if evidence of DOD-caused hazards is found later, we reviewed a statistical sample of 635 NDAI files at nine Corps districts that execute the FUDS program. The districts selected were (1) Alaska, (2) Fort Worth, (3) Jacksonville, (4) Louisville, (5) New York, (6) Omaha, (7) Sacramento, (8) Savannah, and (9) Seattle. The Alaska district was selected with certainty because it had the highest number of NDAIs when we began our review. The remaining 8 districts were selected at random from 21 of the 22 Corps districts that execute the FUDS program, with the probability of selection proportional to the number of NDAIs in their districts. The Huntington district was excluded from our study population because it only had seven NDAIs and was not considered to be a practical choice to examine if selected. The 21 districts from which we selected our random sample accounted for 99.8 percent of the NDAI files. Thirty-two of the properties whose files we selected for review were excluded from our analysis because the files contained evidence that either the property was not eligible for the FUDS program or that a cleanup project was proposed. Each NDAI selected was subsequently weighted in the analysis to account statistically for all eligible NDAIs in the 21 districts, including those that were not selected.

We obtained and reviewed the Corps’ policies and procedures and program documents to obtain information about the preliminary assessment of eligibility. We also interviewed past and present FUDS program officials from headquarters and district offices to obtain information about the practices followed by Corps staff in completing this phase. From the information provided by these officials and a review of a sample of NDAI files at the Baltimore district, we developed a data collection instrument (DCI). The DCI was used to document, in a consistent manner, the evidence that we abstracted from each file reviewed and our assessment of the soundness of the Corps’ NDAI determination.

We also contacted environmental officials from 17 states that interact with Corps districts on the FUDS program. We judgmentally selected these states to provide a range of opinion and perception of the Corps’ preliminary assessment of eligibility. In addition, we contacted officials from EPA regional offices that interact with the Corps’ districts included in our review. These offices included Atlanta (Region 4); Chicago (Region 5); Dallas (Region 6); Denver (Region 8); Kansas City (Region 7); New York City (Region 2); San Francisco (Region 9); and Seattle (Region 10). Appendix I contains additional details on our scope and methodology, and appendix II presents the results of our review of 603 randomly selected NDAI files.

We conducted our review from May 2001 through June 2002 in accordance with generally accepted government auditing standards.

As arranged with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution of it until 30 days from the date of this letter. We will then send copies to the Secretary of Defense; the Director, Office of Management and Budget; the appropriate congressional committees; and other interested parties. We will also provide copies to others upon request. In addition, the report will be available, at no charge, on the GAO Web site at http://www.gao.gov/.

Additional Details on Our Scope and Methodology

The objectives of our review were to determine the extent to which the U.S. Army Corps of Engineers (Corps) (1) has a sound basis for determining that more than 4,000 formerly used defense sites (FUDS) need no further study or cleanup and for designating those properties as “No Department of Defense (DOD) Action Indicated, Category I” (NDAI) and (2) communicated its NDAI determinations to owners and to the regulatory agencies that may have responsibility and notified the owners that it will reconsider an NDAI determination if evidence of DOD-caused hazards is found later. To address these objectives, we analyzed a statistical sample of 603 NDAI files at nine Corps districts that execute the FUDS program. The districts selected were (1) Alaska, (2) Fort Worth, (3) Jacksonville, (4) Louisville, (5) New York, (6) Omaha, (7) Sacramento, (8) Savannah, and (9) Seattle. The Alaska district was selected with certainty because it had the highest number of NDAIs when we began our review. The remaining districts were randomly selected, with the probability of selection proportional to the number of NDAIs in the district. Table 1 provides additional information on the districts selected for our review, including the states within their boundaries, the number of FUDS properties designated as NDAI, the NDAI files we selected for review, and the number of determinations that we questioned.

We reviewed each selected file to determine if it contained evidence that the Corps (1) reviewed or obtained information on the buildings, structures, and other facilities (such as underground storage tanks) associated with DOD’s use of the site that would allow the Corps to identify the types of hazards potentially resulting from DOD’s use and (2) took sufficient steps to assess the presence of potential hazards.

If we did not find evidence in the file that indicated the Corps reviewed or obtained information on prior DOD uses of the site, we concluded that the Corps did not identify all of the hazards that might be present at the site. However, the absence of a single piece of information, such as a site map or record of contact with an owner, did not automatically cause us to question the adequacy of the Corps’ efforts to identify the prior uses and the associated potential hazards. Rather, we based our assessment of the Corps’ efforts on the totality of the evidence in the file. For example, if the file did not contain a site map, but the file contained evidence that the Corps staff made use of a site map during its assessment, we concluded that the Corps reviewed a site map.

If the file contained evidence that the Corps determined that potential hazards might be present, but did not take certain actions, such as conducting a site visit, we concluded that the Corps did not take sufficient steps to assess the presence of potential hazards at the site. However, if the file contained evidence that a site visit was conducted, such as the date of a site visit, we concluded that the Corps conducted a site visit even if the file did not contain photos or a trip report. If a file contained evidence that the Corps overlooked or dismissed information in its possession that potential hazards might be present, we concluded that the Corps did not take sufficient steps to assess the presence of potential hazards. If we found either or all of these scenarios when reviewing the files, we determined that the NDAI determinations were questionable. Our questioning of an NDAI determination does not mean that the property is contaminated; rather, it indicates that the Corps’ file did not contain evidence that the Corps took steps to identify and assess potential hazards at the property that would support the NDAI determination.

We also reviewed the NDAI files to determine how often the Corps notified owners and regulatory agencies of its NDAI determinations and of its policy of reconsidering the determinations if additional evidence of DOD- caused hazards was found later.

We used a data collection instrument (DCI) to document, in a consistent manner, the evidence that we abstracted from each file and our assessment of the soundness of the Corps’ NDAI determinations. Each DCI was independently reviewed and compared to the original file to ensure that the information documented on the DCI was accurate and that our assessment of the Corps’ determination was reasonable, i.e., that another person looking at the information in the file would come to the same conclusion about the Corps’ determination. We copied the contents of the files to ensure that any further questions or issues could be researched later and that we had sufficient evidence to support the information recorded on the DCI. From the DCIs, we created an electronic database. The members of our team reviewing the files and the person conducting the supervisory review changed for each district. While we rotated staff to reduce bias, we also used this rotation to help increase consistency of judgments. In addition, we conducted an independent quality check of our database entries created from the DCIs. For each of the districts visited, we randomly selected 10 percent of the electronically entered DCIs. An independent verifier checked 100 percent of the data for every question, sub-question, and comment box on the DCI, comparing the “hard copy” of the DCI to the entries found in the database to ensure that there were no data entry errors. Our error rate was 0.379 percent—less than ½ of 1 percent. All errors found were corrected. In addition, we verified 100 percent of the responses to questions and sub-questions on the DCI that were key to supporting our findings.

The information presented in this report consists, in part, of statistical estimates based on our review of randomly selected files. The results of our analysis are projectable to NDAI determinations nationwide, excluding the Huntington district. Because we followed a probability procedure based on random selections, our sample is only one of a large number of samples that we could have drawn. Each sample could have provided different estimates. We therefore express our confidence in the precision of our particular sample’s results as 95 percent confidence intervals. Each of these intervals contains the actual (unknown) population value for 95 percent of the samples we could have drawn. As a result, we are 95 percent confident that each of the confidence intervals in the report will include the true value in the study population.

All percentage estimates from the file review have 95 percent confidence intervals whose width does not exceed plus or minus 10 percentage points, unless otherwise noted. All numerical estimates other than percentages (such as averages or totals) have 95 percent confidence intervals whose width does not exceed 10 percent of the value of those estimates, unless otherwise noted. The widths of the confidence intervals are shown as footnotes to the text, where appropriate.

While the results of our analysis are generally projectable nationwide, we also used our selected samples to develop case examples of the preliminary assessments of eligibility conducted by the Corps. These case examples are for illustration only.

Results of Our Analysis of 603 Randomly Selected NDAI Properties

To determine the extent to which the U.S. Army Corps of Engineers (Corps) has a sound basis for its determinations that more than 4,000 formerly used defense sites (FUDS) need no further Department of Defense (DOD) study or cleanup and for designating those properties as “No DOD Action Indicated” (NDAI), we reviewed and analyzed a statistical sample of 603 NDAI files at nine Corps districts. Table 2 shows the property name, the FUDS number, and whether we found, based on our review of the evidence in the file, that the Corps had a sound basis for its NDAI determination. In those cases where we do not believe that the Corps has a sound basis, the table includes an explanation for our finding. Our questioning of an NDAI determination does not mean that the property is contaminated; rather, it indicates that the Corps’ file did not contain evidence that the Corps took steps to identify and assess potential hazards at the property that would support the NDAI determination. In the table, we use abbreviations for the four types of hazards: building demolition and debris removal (BD/DR); hazardous, toxic, and radioactive waste (HTRW); containerized hazardous, toxic, and radioactive waste (CON/HTRW); and ordnance and explosive waste (OEW).

Comments from the Department of Defense

GAO Contacts and Staff Acknowledgments

GAO Contacts

Acknowledgments

In addition to those named above, Ian Ferguson, Ken Lightner, Sherry McDonald, and Aaron Shiffrin made key contributions to this report. Also contributing to this report were Doreen S. Feldman, Susan W. Irwin, Cynthia Norris, and Sidney Schwartz.

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