Environmental Contamination
DOD Has Taken Steps to Improve Cleanup Coordination at Former Defense Sites but Clearer Guidance Is Needed to Ensure Consistency Gao ID: GAO-03-146 March 28, 2003The U.S. Army Corps of Engineers (Corps) is in charge of addressing cleanup at the more than 9,000 U.S. properties that were formerly owned or controlled by the Department of Defense (DOD) and have been identified as potentially eligible for environmental cleanup. The Corps has determined that more than 4,000 of these properties have no hazards that require further Corps study or cleanup action. However, in recent years, hazards have surfaced at some of these properties, leading state and federal regulators to question whether the Corps has properly assessed and cleaned up these properties. In this context, Congress asked us to (1) analyze federal coordination requirements that apply to the cleanup of these properties, (2) assess recent DOD and Corps efforts to improve coordination, and (3) identify any issues regulators may have about coordination with the Corps.
Federal law requires DOD and the Corps of Engineers to consult with state regulatory agencies and EPA during the process of cleaning up formerly used defense sites (FUDS). However, the law only provides specifics for the cleanup phase for hazardous substances. DOD's Management Guidance and the FUDS Program Manual do not provide clear direction or specific steps for involving regulators in the FUDS program. In addition, both the law and the guidance are silent on the subject of consultation or coordination with regulators during the preliminary assessment phase, when the Corps makes decisions on whether a former defense site is eligible for DOD cleanup and whether further investigation and/or cleanup are needed. DOD and Corps officials told GAO that they would revise their guidance to include specific, but as yet undetermined, instructions for coordination with regulators during such decisions. DOD and the Corps have recently taken several steps to improve coordination. For example, they are working with the regulatory community to develop specific steps that Corps districts can take, such as providing states with updated lists of current and future FUDS program activities in their states and initiating a new pilot program in nine states that has the Corps working side by side with regulators in the cleanup of former defense sites. In addition, several Corps districts have independently taken steps to improve coordination with state regulators. DOD and the Corps will need to assess the effectiveness of these various initiatives to determine which are successful and should be included in program guidance to all districts. Despite the improvements in coordination, regulators still raised two major issues about Corps coordination on the FUDS program. First, some states believe that they lack the information necessary to properly oversee cleanup work at former defense sites and to judge the validity of Corps decisions. For example, 15 of the 27 states GAO contacted believe they need to be involved in knowing what the Corps is doing during the preliminary assessment phase. Also, 9 of the 27 states believe they need to be involved in project closeouts, so that they can ensure that the Corps has met state cleanup standards. Second, EPA believes it should have a larger role in the cleanup of former defense sites. Although states are the primary regulator at the majority of former defense sites and EPA is the primary regulator for only the 21 former defense sites that are on the list of the nation's worst hazardous sites, EPA believes that its role even on the unlisted sites should be greater. The agency believes that this would improve the effectiveness of the cleanups and increase public confidence overall. The Corps disagrees, and the two agencies have been unable to establish an effective working relationship on the cleanup for former defense sites. Commenting on a draft of this report, DOD stated that it generally agreed with the recommendations and was taking or planned to take steps that should, when completed, substantially correct the problems GAO cited.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-03-146, Environmental Contamination: DOD Has Taken Steps to Improve Cleanup Coordination at Former Defense Sites but Clearer Guidance Is Needed to Ensure Consistency
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Report to Congressional Requesters:
United States General Accounting Office:
GAO:
March 2003:
ENVIRONMENTAL CONTAMINATION:
DOD Has Taken Steps to Improve Cleanup Coordination at Former Defense
Sites but Clearer Guidance Is Needed to Ensure Consistency:
GAO-03-146:
GAO Highlights:
Highlights of GAO-03-146, a report to Congressman John D. Dingell,
Ranking Minority Member, U.S. House of Representatives
Why GAO Did This Study:
The U.S. Army Corps of Engineers (Corps) is in charge of addressing
cleanup at the more than 9,000 U.S. properties that were formerly owned
or controlled by the Department of Defense (DOD) and have been
identified as potentially eligible for environmental cleanup.
The Corps has determined that more than 4,000 of these properties have
no hazards that require further Corps study or cleanup action.
However, in recent years, hazards have surfaced at some of these
properties, leading state and federal regulators to question whether
the Corps has properly assessed and cleaned up these properties. In
this context, Congress asked us to (1) analyze federal coordination
requirements that apply to the cleanup of these properties, (2) assess
recent DOD and Corps efforts to improve coordination, and (3) identify
any issues regulators may have about coordination with the Corps.
What GAO Found:
Federal law requires DOD and the Corps of Engineers to consult with
state regulatory agencies and EPA during the process of cleaning up
formerly used defense sites (FUDS). However, the law only provides
specifics for the cleanup phase for hazardous substances. DOD‘s
Management Guidance and the FUDS Program Manual do not provide clear
direction or specific steps for involving regulators in the FUDS
program. In addition, both the law and the guidance are silent on the
subject of consultation or coordination with regulators during the
preliminary assessment phase, when the Corps makes decisions on whether
a former defense site is eligible for DOD cleanup and whether further
investigation and/or cleanup are needed. DOD and Corps officials told
GAO that they would revise their guidance to include specific, but as
yet undetermined, instructions for coordination with regulators during
such decisions.
DOD and the Corps have recently taken several steps to improve
coordination. For example, they are working with the regulatory
community to develop specific steps that Corps districts can take, such
as providing states with updated lists of current and future FUDS
program activities in their states and initiating a new pilot program
in nine states that has the Corps working side by side with regulators
in the cleanup of former defense sites. In addition, several Corps
districts have independently taken steps to improve coordination with
state regulators. DOD and the Corps will need to assess the
effectiveness of these various initiatives to determine which are
successful and should be included in program guidance to all districts.
Despite the improvements in coordination, regulators still raised two
major issues about Corps coordination on the FUDS program. First, some
states believe that they lack the information necessary to properly
oversee cleanup work at former defense sites and to judge the validity
of Corps decisions. For example, 15 of the 27 states GAO contacted
believe they need to be involved in knowing what the Corps is doing
during the preliminary assessment phase. Also, 9 of the 27 states
believe they need to be involved in project closeouts, so that they can
ensure that the Corps has met state cleanup standards. Second, EPA
believes it should have a larger role in the cleanup of former defense
sites. Although states are the primary regulator at the majority of
former defense sites and EPA is the primary regulator for only the 21
former defense sites that are on the list of the nation‘s worst
hazardous sites, EPA believes that its role even on the unlisted sites
should be greater. The agency believes that this would improve the
effectiveness of the cleanups and increase public confidence overall.
The Corps disagrees, and the two agencies have been unable to establish
an effective working relationship on the cleanup for former defense
sites.
Commenting on a draft of this report, DOD stated that it generally
agreed with the recommendations and was taking or planned to take steps
that should, when completed, substantially correct the problems GAO
cited.
What GAO Recommends:
DOD and the Corps should (1) develop clear and specific coordination
guidance that should explicitly include, among other things,
preliminary assessment of eligibility and ordnance and explosive waste;
(2) assess recent efforts to improve coordination at the national as
well as district level and promote wider distribution of best
practices; and (3) work with EPA to clarify their respective roles in
the cleanup of former defense sites that are not on the list of the
nation‘s worst hazardous sites.
www.gao.gov/cgi-bin/getrpt?GAO-03-146.
To view the full report, including the scope
and methodology, click on the link above.
For more information, contact (Ms.) Anu Mittal or Ed Zadjura on (202)
512-3841.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Additional Guidance Would Help Ensure Coordination with Regulators:
DOD and the Corps Have Taken Some Steps to Improve Coordination with
Regulators, but Assessment of These Efforts and Clearer Guidance Is
Needed:
Views of Regulators about FUDS Coordination Activities:
Conclusions:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Additional Details on Our Scope and Methodology:
Appendix II: State and Corps Project Managers' Responses to
Our Survey Regarding Coordination at FUDS:
Appendix III: Comments from the Department of Defense:
Appendix IV: Comments from the Environmental Protection
Agency:
Appendix V: GAO Contacts and Staff Acknowledgments:
Tables:
Table 1: Extent to Which State and Corps Project Managers Believe the
Corps Coordinated with States during Cleanups in Our Sample, by Project
Type:
Table 2: Extent to Which State and Corps Project Managers Believe the
Corps Coordinated with States during Preliminary Assessments of
Eligibility in Our Sample:
Table 3: Number of FUDS Properties and Projects in Our Sample:
Table 4: State Project Managers' Responses Regarding Corps Coordination
with States during Preliminary Assessments of Eligibility in Our Sample:
Table 5: Corps Project Managers' Responses Regarding Corps Coordination
with States during Preliminary Assessments of Eligibility in Our Sample:
Table 6: State Project Managers' Responses Regarding Corps Coordination
with States during Cleanup of Hazardous Waste Projects in Our Sample:
Table 7: Corps Project Managers' Responses Regarding Corps Coordination
With States during Cleanup of Hazardous Waste Projects in Our Sample:
Table 8: State Project Managers' Responses Regarding Corps Coordination
with States during Cleanup of Containerized Waste Projects in Our
Sample:
Table 9: Corps Project Managers' Responses Regarding Corps Coordination
with States during Cleanup of Containerized Waste Projects in Our
Sample 1:
Table 10: State Project Managers' Responses Regarding Corps
Coordination with States during Cleanup of Ordnance and Explosive Waste
Projects in Our Sample:
Table 11: Corps Project Managers' Responses Regarding Corps
Coordination with States during Cleanup of Ordnance and Explosive Waste
Projects in Our Sample:
Abbreviations:
CERCLA: Comprehensive Environmental Response, Compensation,
and Liability Act of 1980:
DOD: Department of Defense:
EPA: Environmental Protection Agency:
FUDS: formerly used defense sites:
NDAI: no DOD action indicated:
SARA: Superfund Amendments and Reauthorization Act of 1986:
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in its entirety without further permission from GAO. It may contain
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copyrighted materials separately from GAO's product.
[End of section]
United States General Accounting Office:
Washington, DC 20548:
March 28, 2003:
The Honorable John D. Dingell
Ranking Minority Member
Committee on Energy and Commerce
House of Representatives:
Dear Mr. Dingell:
More than 9,000 properties throughout the United States that were
formerly owned or controlled by the Department of Defense (DOD) are
potentially eligible for environmental cleanup. These formerly used
defense sites (FUDS) are now owned by states, local governments, and
individuals and are used for parks, schools, farms, and homes. Hazards
at these FUDS may include hazardous, toxic, and radioactive wastes in
soil, water, or containers, such as underground storage tanks; ordnance
and explosive wastes; and unsafe buildings. According to DOD,
identifying, investigating, and cleaning up hazards caused by DOD at
FUDS will cost $15 billion to $20 billion and take more than 70 years.
The FUDS program, which is run by the U.S. Army Corps of Engineers
(Corps), is part of the Defense Environmental Restoration Program. The
Superfund Amendments and Reauthorization Act of 1986 (SARA) established
this program.[Footnote 1] Depending on the types of hazards involved
and their severity, either state environmental regulatory agencies or
the Environmental Protection Agency (EPA) may be responsible for
ensuring that the Corps meets applicable requirements and standards
when cleaning up FUDS. In general, EPA is the primary regulator for the
21 FUDS properties on EPA's list of the most dangerous hazardous waste
sites in the country--the National Priorities List. States are
typically the primary regulators for FUDS properties that have
hazardous and other wastes but have not been placed on the National
Priorities List. Since 1984, the Corps has generally determined without
regulator input that more than 4,000 properties eligible for the FUDS
cleanup program have no hazards that require further Corps study or
cleanup action.[Footnote 2] However, since the late 1990s, hazards have
surfaced at some of these FUDS, leading state and federal environmental
regulators to question whether the Corps has properly assessed and
cleaned up these and other FUDS.
There are many and varied opportunities for the Corps to coordinate
with regulators during the FUDS cleanup program. After a potential FUDS
property is identified, the Corps conducts a preliminary assessment of
eligibility to determine if the property was ever under DOD's control
prior to October 17, 1986, and therefore eligible for the program. Upon
conclusion of the preliminary assessment of eligibility, the Corps
conducts additional studies, tests, and investigations at all
properties eligible for inclusion in the FUDS program where hazards are
suspected to determine if the hazards found were the result of DOD
ownership or control, the extent of any DOD-caused hazards, and the
amount of DOD cleanup that might be warranted. Eventually, for some
properties, the Corps designs, constructs, and operates a cleanup
remedy such as treating contaminated groundwater or removing
contaminated soils. At each phase in the program, the Corps has the
opportunity to inform regulators of what it is doing or proposing,
obtain regulator input on its efforts, or provide regulators with its
results in the form of studies or reports.
In this context, you asked us to (1) analyze federal requirements for
DOD and the Corps to coordinate with state and federal regulators
during the FUDS cleanup program, (2) assess recent steps that DOD and
the Corps have taken to better coordinate, and (3) identify any issues
regulators may have about coordination with the Corps. As part of our
review, we surveyed state and Corps managers about cleanup projects at
519 randomly selected FUDS properties. We also interviewed state FUDS
program officials from the 27 states that account for 80 percent of
FUDS properties. Appendix I contains additional details on our scope
and methodology.
Results in Brief:
Federal law requires DOD and the Corps of Engineers to consult with
state regulatory agencies and EPA during the FUDS cleanup program.
However, the only instance for which federal law provides specifics is
the cleanup phase for hazardous substances.[Footnote 3] Guidance to
carry out federal law is contained in DOD's Management Guidance and the
Corps' FUDS Program Manual. While both documents emphasize the need for
coordination with regulators, neither contains clear direction or
specific steps for involving regulators in the FUDS program. Further,
the law and DOD's Management Guidance and the FUDS Program Manual are
silent on the subject of consultation or coordination with regulators
(1) for hazards such as ordnance and explosive waste, which can pose
serious human safety risks, and (2) during the preliminary assessment
of eligibility phase, which is the first meaningful opportunity during
the FUDS program for coordination with regulators. DOD and Corps
officials told us that the FUDS Program Manual is presently being
revised to include specific instructions for coordination with
regulators, including during the preliminary assessment phase.
Since the late 1990s, DOD and the Corps have taken several steps to
increase coordination with regulators during the various phases of the
FUDS cleanup program, and officials in 20 of the 27 states we contacted
noted an overall improvement in the Corps' coordination with them
during the past few years. For example, DOD, together with the
regulatory community, formed the FUDS Improvement Working Group to
improve coordination. In April 2001, as a result of this group's work,
Army headquarters sent a memo to Corps divisions and districts
responsible for FUDS work requiring them to follow specific steps when
dealing with regulators, such as providing states with updated lists of
all ongoing and future FUDS activities and informing states of any
Corps deviation from planned work. Other parts of the memo are more
general, such as a requirement to involve states in setting priorities
for FUDS work. However, this memo has not yet been made a part of DOD's
Management Guidance or the FUDS Program Manual. Another result of the
working group's efforts was a pilot program that DOD and the Corps have
established for states and EPA to produce Management Action Plans. To
develop these plans, regulators would work jointly with the Corps to
identify FUDS in the state, designate key stakeholders and their roles,
set priorities for FUDS cleanup, and develop work plans for cleanup.
Four states have completed action plans, and nine more are developing
them. Overall, 19 of the 27 state officials we talked to believe that
this initiative would improve Corps coordination with them in the
future. Individual Corps districts have also taken actions to improve
coordination, such as holding quarterly meetings with regulators and
establishing a process to jointly agree on closeouts. DOD and the Corps
will need to assess the success of its pilot program and the efforts of
individual districts to determine which lessons learned from these
activities should be included in program guidance to enhance future
coordination efforts for all districts.
Despite the improvements in coordination with the Corps that they noted
in the last few years, regulators still raised two major issues about
coordination on the FUDS program. First, some states believe they still
do not receive all of the information necessary to properly carry out
their regulatory responsibilities regarding the FUDS cleanup program or
to judge the validity of Corps decisions through different program
stages. For example, although not required, 15 of the 27 states we
contacted believe they need to be involved in knowing what the Corps is
doing during the preliminary assessment of eligibility phase. Further,
9 of the 27 believe they need to be involved in project closeouts, when
cleanup work has been completed, so that they can be assured that the
Corps' actions have met state cleanup requirements. According to DOD,
the Corps recognizes that states need to be involved in preliminary
assessments of eligibility and project closeouts and has included
specific instructions for such involvement in its revisions to the
draft engineering regulation that revises the FUDS Program Manual.
Second, EPA and DOD disagree on EPA's role in the FUDS program.
Although EPA is the primary regulator for the FUDS that are on the list
of the nation's worst hazardous waste sites, the states are typically
the primary regulators for all other FUDS. EPA told us that its role at
some of these unlisted FUDS should be greater because it believes it
can help improve the effectiveness of the cleanups and increase public
confidence in the program. DOD and some states disagree with this
position because they do not believe there is a need for additional EPA
oversight of its work at unlisted FUDS properties where the state is
the lead regulator. DOD disagreed with a March 2002 internal EPA policy
that proposed consultation expectations between the Corps and EPA under
the Defense Environmental Restoration Program. Without an agreement on
roles and responsibilities, the agencies have been unable to establish
an effective working relationship on FUDS.
We are making recommendations to DOD aimed at increasing and improving
Corps coordination with regulators on all phases of the FUDS cleanup
program. In addition, in view of the disagreement over regulatory roles
and responsibilities, DOD and EPA should work together to clarify their
respective roles in the FUDS cleanup program.
In commenting on a draft of this report, DOD generally agreed with
GAO's findings and, particularly, with GAO's assessment that the Corps
has improved overall coordination with regulatory agencies. In
addition, DOD agreed with GAO's recommendations and indicated that it
is currently in the process of implementing changes that will improve
the Corps' coordination with regulators. For example, DOD noted that
the Corps is currently in the process of revising its guidance to
include step-by-step procedures for regulatory coordination at each
phase of FUDS cleanup, including the preliminary assessment of
eligibility phase, and to include unexploded ordnance projects; is
proposing to include best practices that stem from its experience with
Management Action Plans; and will review individual District
coordination efforts to identify other potential best practices. EPA
also reviewed a draft of this report and agreed with our findings and
conclusions.
Background:
The FUDS program is carried out by 22 Corps districts located
throughout the nation. DOD carries out its roles and responsibilities
in cleaning up FUDS primarily under the Defense Environmental
Restoration Program, which was established by section 211 of the
Superfund Amendments and Reauthorization Act of 1986. Under the
environmental restoration program, DOD is authorized to identify,
investigate, and clean up environmental contamination at FUDS. The U.S.
Army, through the Corps, is responsible for these activities and is
carrying out the physical cleanup. DOD is required, under the Defense
Environmental Restoration Program, to consult with the Environmental
Protection Agency (EPA), which has its own authority to act at
properties with hazardous substances. In general, EPA is the primary
regulator for the 21 FUDS properties on EPA's list of the most
dangerous hazardous waste sites in the country--the National Priorities
List. States are typically the primary regulators for FUDS properties
that have hazardous and other wastes but have not been placed on the
National Priorities List.
To determine if a property is eligible for cleanup under the FUDS
program, the Corps conducts a preliminary assessment of eligibility.
This assessment determines if the property was ever owned or controlled
by DOD and if hazards caused by DOD's use may be present. If the Corps
determines that the property was at one time owned or controlled by DOD
but does not find evidence of any hazards caused by DOD, it designates
the property as "no DOD action indicated" (NDAI).[Footnote 4] If,
however, the Corps determines that a DOD-caused hazard that could
require further study may exist on a former DOD-controlled property,
the Corps begins a project to further study and/or clean up the hazard.
FUDS cleanup projects fall into one of four categories, depending on
the type of hazard to be addressed.[Footnote 5]
* Hazardous waste projects address hazardous, toxic, and radioactive
substances, such as paints, solvents, and fuels.
* Containerized waste projects address containerized hazardous, toxic,
and radioactive waste associated with underground and aboveground
storage tanks, transformers, hydraulic systems, and abandoned or
inactive monitoring wells.
* Ordnance and explosive waste projects involve munitions, chemical
warfare agents, and related products.
* Unsafe buildings and debris projects involve demolition and removal
of unsafe buildings and other structures.
The type and extent of the work that the Corps may need to perform at a
project depend on the project category. Hazardous waste and ordnance
and explosive waste projects involve a site inspection to confirm the
presence, extent, and source of hazards; a study of cleanup
alternatives; the design and implementation of the actual cleanup; and
long-term monitoring to ensure the success of the cleanup.
Containerized waste and unsafe buildings and debris projects, on the
other hand, may involve only the design and implementation of the
cleanup.
Additional Guidance Would Help Ensure Coordination with Regulators:
While federal law requires DOD and the Corps to consult with
regulators, including states and EPA, during the FUDS cleanup program,
it does not define consultation. Similarly, the two primary DOD and
Corps guidance documents for implementing the FUDS program emphasize
the need for Corps coordination with regulators but do not provide
clear direction or specific steps for involving regulators in the FUDS
program. Our survey results show a lack of consistent coordination
between the Corps and regulators throughout the history of the program
that could be caused by the lack of specific requirements that state
explicitly what the Corps needs to do to involve regulators. According
to DOD, ongoing development of regulations that will revise the Corps'
FUDS Program Manual will provide clear direction and specific steps for
involving regulators in the FUDS program.
Federal Law and DOD and Corps Guidance Generally Require Coordination
with Regulators but Do Not Contain Specific Requirements:
Federal law requires DOD and the Corps to consult with regulatory
entities in carrying out the FUDS program. Under 10 U.S.C. 2701, the
Corps must carry out the FUDS program "in consultation with" EPA.
However, this section does not define consultation, mention the state
regulators, or prescribe specific steps for the Corps to follow. More
specific language regarding consultation as it relates to the cleanup
of hazardous substances is provided in 10 U.S.C. 2705. At projects
involving hazardous substances, the Corps must notify EPA and
appropriate state officials and provide them an opportunity to review
and comment on activities associated with (1) discovering releases or
threatened releases of hazardous substances at FUDS, (2) determining
the extent of the threat to public health and the environment that may
be associated with such releases, (3) evaluating proposed cleanup
actions, and (4) initiating each distinct phase of cleanup.[Footnote 6]
In addition, CERCLA has specific consultation requirements for
properties on the National Priorities List, including the 21 FUDS on
the list for which EPA is the primary regulator.[Footnote 7] For many
of these FUDS, EPA and DOD have signed a cleanup agreement stating that
the two agencies agree on the nature of the cleanup action and the
schedule for its completion.
DOD and the Corps have two major guidance documents for implementing
the FUDS program: the DOD Management Guidance for the Defense
Environmental Restoration Program and the FUDS Program Manual. The DOD
Management Guidance pertains to all DOD environmental cleanup
activities, including FUDS cleanup. It contains general guidance for
the Corps' coordination activities. According to the guidance, DOD is
fully committed to the substantive involvement of state regulators and
EPA throughout the FUDS cleanup program and encourages cooperative
working relationships. The latest version of the guidance, published in
September 2001, emphasizes a greater need for coordination with
regulators. For example, the guidance states that the Corps shall:
* establish communication channels with regulatory agencies;
* provide regulators access to information, including draft documents;
* establish procedures for obtaining pertinent information from
regulators in a timely manner; and:
* involve regulatory agencies in risk determination, project planning,
completion of cleanup activities, and other tasks.
Although the updated DOD Management Guidance articulates general steps
that, if taken, would improve coordination between the Corps and
regulatory agencies, the guidance does not specify procedures on how to
take these steps. Further, some of the language is ambiguous and open
to broad interpretation. For example, "establish communication
channels" could mean anything from a telephone call once a year to
weekly meetings.
The second guidance document, the FUDS Program Manual, constitutes the
Corps' primary guidance for the program. Regarding coordination, the
manual suggests, and sometimes requires, among other things, that the
Corps:
* notify states and EPA of discovery and cleanup activities related to
hazardous substances;
* ensure that states and EPA have adequate opportunity to participate
in selecting and planning cleanup actions and in defining cleanup
standards for FUDS projects;
* coordinate all cleanup activities with appropriate state regulatory
and EPA officials;
* conduct cleanups of hazardous waste projects consistent with section
120 of CERCLA, which addresses cleanups of federal facilities; and:
* try to meet state and EPA standards, requirements, and criteria for
environmental cleanup where they are consistent with CERCLA.
Beyond generally restating statutory requirements, however, the FUDS
Program Manual provides no clear, specific guidance to its program
managers on how to implement those steps and coordinate consistently
with regulators. For example, "coordinate all cleanup activities" needs
to be defined and how to carry out and maintain such coordination on a
day-to-day basis should be described more clearly. According to DOD and
Corps officials, the draft Engineer Regulation that is being developed
to revise the FUDS Program Manual includes specific instructions for
review of draft preliminary assessments of eligibility by regulators.
Officials added that they are open to further suggestions to improve
coordination and consultation with regulators.
Despite Requirements, Corps Officials Often Did Not Coordinate during
the Cleanup Phase:
Although coordination is required during the cleanup phase for
hazardous and containerized wastes, responses to our survey of FUDS
properties covering FUDS work that took place during the period from
1986 through 2001 indicate that state project managers believe the
Corps coordinated with them, on average, 34 percent of the time during
cleanup, while the Corps believes it coordinated with states an average
of 55 percent of the time during cleanup. Moreover, state and Corps
respondents agree that coordination was better for projects in our
sample that addressed hazardous substances than for projects that did
not. For example, according to state respondents to our survey,
coordination for hazardous waste projects was more than 25 percent
higher than for ordnance and explosive waste projects. (See table 1.)
For additional survey results, such as the percent of cases where
respondents felt there wasn't any coordination or gave "don't know"
responses, see appendix II.
Table 1: Extent to Which State and Corps Project Managers Believe the
Corps Coordinated with States during Cleanups in Our Sample, by Project
Type:
Examples of coordination during project activities: Corps informed
states of upcoming work; Project Type: Hazardous waste (percentage):
State: 53; Project Type: Hazardous waste (percentage): Corps: 72;
Project Type: Containerized waste (percentage): State: 40; Project
Type: Containerized waste (percentage): Corps: 57; Project Type:
Ordnance and explosive waste (percentage): State: 18; Project Type:
Ordnance and explosive waste (percentage): Corps: 42.
Examples of coordination during project activities: Corps asked for
states' input and participation; Project Type: Hazardous waste
(percentage): State: 50; Project Type: Hazardous waste (percentage):
Corps: 67; Project Type: Containerized waste (percentage): State: 25;
Project Type: Containerized waste (percentage): Corps: 51; Project
Type: Ordnance and explosive waste (percentage): State: 18; Project
Type: Ordnance and explosive waste (percentage): Corps: 39.
Examples of coordination during project activities: Corps informed
states of interim results; Project Type: Hazardous waste (percentage):
State: 49; Project Type: Hazardous waste (percentage): Corps: 73;
Project Type: Containerized waste (percentage): State: 25; Project
Type: Containerized waste (percentage): Corps: 51; Project Type:
Ordnance and explosive waste (percentage): State: 13; Project Type:
Ordnance and explosive waste (percentage): Corps: 24.
Examples of coordination during project activities: Corps provided
states with draft reports; Project Type: Hazardous waste (percentage):
State: 46; Project Type: Hazardous waste (percentage): Corps: 59;
Project Type: Containerized waste (percentage): State: 27; Project
Type: Containerized waste (percentage): Corps: 49; Project Type:
Ordnance and explosive waste (percentage): State: 23; Project Type:
Ordnance and explosive waste (percentage): Corps: 25.
Examples of coordination during project activities: Corps provided
states with final reports; Project Type: Hazardous waste (percentage):
State: 44; Project Type: Hazardous waste (percentage): Corps: 57;
Project Type: Containerized waste (percentage): State: 36; Project
Type: Containerized waste (percentage): Corps: 63; Project Type:
Ordnance and explosive waste (percentage): State: 44; Project Type:
Ordnance and explosive waste (percentage): Corps: 33.
Examples of coordination during project activities: Weighted average;
Project Type: Hazardous waste (percentage): State: 48; Project Type:
Hazardous waste (percentage): Corps: 66; Project Type: Containerized
waste (percentage): State: 30; Project Type: Containerized waste
(percentage): Corps: 54; Project Type: Ordnance and explosive waste
(percentage): State: 23; Project Type: Ordnance and explosive waste
(percentage): Corps: 34.
Source: GAO.
Note: States' and Corps' responses to GAO's FUDS survey.
[End of table]
Despite the greater coordination for projects addressing hazardous
substances, the Corps is not involving the states consistently. For
example, for projects addressing hazardous substances, the Corps is
required by law to inform states before starting each phase of any
action and to provide states an opportunity to review and comment on
proposed cleanup actions. However, according to the states, the Corps
informed them of upcoming work at these hazardous waste projects 53
percent of the time and requested states' input and participation 50
percent of the time. As shown in table 1, while the Corps thought it
had coordinated at a higher rate, it was still less than the required
100 percent. The fact that DOD and Corps guidance does not offer
specific requirements that describe exactly how the Corps should
involve regulators could be a factor behind the historical lack of
consistency in Corps coordination with regulators.
Guidance Does Not Cover the Preliminary Assessment of Eligibility and
Very Little Coordination Took Place During This Phase:
The DOD Management Guidance and FUDS Program Manual are silent on
regulators' roles in preliminary assessments of eligibility, during
which decisions on property eligibility and the need for cleanup are
made, in part because the law requiring consultation with regulators is
broad and does not mention consultation with the states, only with EPA.
The Corps has historically regarded preliminary assessments of
eligibility as an internal matter that does not require coordination
with regulators. However, according to DOD, the draft Engineer
Regulation, which will revise the FUDS Program Manual, will require the
Corps to share information with the states, EPA, and local authorities
during the development of the preliminary assessment of eligibility and
will solicit their input. According to the results of our survey, the
state project managers believe the Corps coordinated with them about 6
percent of the time, and the Corps project managers believe the Corps
coordinated with states about 27 percent of the time. (See table 2.) As
a result, there is no consistent coordination at this stage of the FUDS
program. For additional survey results, such as the percent of cases
where respondents felt there wasn't any coordination or gave "don't
know" responses, see appendix II.
Table 2: Extent to Which State and Corps Project Managers Believe the
Corps Coordinated with States during Preliminary Assessments of
Eligibility in Our Sample:
Examples of coordination during the
preliminary assessment of eligibility: Corps informed states that it
was starting
preliminary assessment of eligibility; State project managers
(percentage): 6; Corps project managers (percentage): 24.
Examples of coordination during the
preliminary assessment of eligibility: Corps asked states for
information or input on
Corps approach; State project managers (percentage): 6; Corps project
managers (percentage): 27.
Examples of coordination during the
preliminary assessment of eligibility: Corps asked for state
participation; State project managers (percentage): 5; Corps project
managers (percentage): 16.
Examples of coordination during the
preliminary assessment of eligibility: Corps informed states of interim
results as work progressed; State project managers (percentage): 5;
Corps project managers (percentage): 15.
Examples of coordination during the
preliminary assessment of eligibility: Corps provided states with a
draft of the report summarizing the results of the preliminary
assessment of eligibility; State project managers (percentage): 4;
Corps project managers (percentage): 7.
Source: GAO.
Note: States' and Corps' responses to GAO's FUDS survey.
[End of table]
Also, according to state and Corps respondents to our current survey,
the Corps provided final reports on its preliminary assessments of
eligibility to state regulators in 48 and 56 percent of the cases,
respectively. In the past, states were only notified after the fact
about the results of preliminary assessments of eligibility; however,
the Corps said that although not required in its current guidance, its
current practice is to coordinate all new preliminary assessments of
eligibility with states. Subsequently, according to FUDS program
officials in 12 of the 27 states we contacted, there has been some
improvement in overall Corps coordination during the preliminary
assessment of eligibility over the last 3 years. In particular, those
states told us that while the Corps is still not required to coordinate
with them during its preliminary assessments of eligibility, it has
been doing a better job of providing them with draft and final reports
on the outcomes of preliminary assessments of eligibility.
DOD and the Corps Have Taken Some Steps to Improve Coordination with
Regulators, but Assessment of These Efforts and Clearer Guidance Is
Needed:
Over approximately the last 3 years, states have noted an overall
improvement in the Corps' coordination with them. For example, FUDS
program officials in 20 of the 27 states we contacted reported that,
overall, Corps coordination with them has improved during this time.
The main factors state officials cited for the improvement include an
increase in the number of meetings they were invited to attend with
Corps project managers on specific project tasks, more information
provided by the Corps to the states regarding project work, and better
coordination in setting work priorities. DOD and the Corps started to
take steps to address the coordination issue in response to the
concerns that the states began to voice in the late 1990s about their
lack of involvement in the FUDS program. Initially, DOD's efforts
consisted of steps such as sponsoring conferences to encourage greater
coordination between the Corps and regulators. Individual Corps
districts also took steps to improve coordination.
As part of the efforts to improve coordination, the Deputy Assistant
Secretary of the Army for Environment, Safety and Occupational Health,
along with members of the regulatory community, formed the FUDS
Improvement Working Group in October 2000 to address FUDS program
concerns and to improve communication among the Corps, the regulators,
and other parties with an interest in FUDS cleanup. The working group,
which consisted of DOD, Corps, state, EPA, and tribal representatives,
compiled a list of issues to be addressed through better communication
and consistent coordination, including the role of regulators in
setting priorities and planning work at FUDS properties and in the
final closeout of properties after cleanup.[Footnote 8]
Two results of the working group's efforts to improve coordination are
new Army guidance and a pilot program. First, in April 2001, Army
headquarters sent a memorandum to Corps divisions and districts
responsible for FUDS work requiring them to follow specific steps when
dealing with regulators during the FUDS cleanup program. For example,
the memorandum required the Corps to:
* inform states of FUDS that are likely to go through a preliminary
assessment of eligibility,
* provide states with updated lists of all ongoing and future
activities at FUDS,
* involve states in setting priorities for FUDS work,
* provide states a final list of FUDS that will undergo some type of
work in the coming year,
* inform states of any Corps deviation from planned work and provide
them with the rationale for any such changes, and:
* involve states in developing the final report of the preliminary
assessment of eligibility.
The Corps considers this directive to be a first step in improving the
states' somewhat negative perceptions of the FUDS program and overall
communication between the Corps and the states. The directive addresses
many state concerns, including lack of:
* information about which FUDS properties the Corps is working on,
* involvement in and information about preliminary assessments of
eligibility and their outcomes, and:
* state regulatory involvement in setting priorities for Corps FUDS
work.
However, after almost 2 years, the memo's conclusions have not been
incorporated in either DOD's Management Guidance or the Corps' FUDS
Program Manual. According to DOD, the Corps is now in the process of
revising the FUDS Program Manual as an Engineer Regulation to include
specific requirements for Corps district coordination with EPA and
state regulators.
The second result from the working group is a pilot program developed
by the Army in March 2001 under which the Corps and regulatory
agencies, including states and EPA, jointly prepare statewide
Management Action Plans for FUDS properties. Specifically, for each
state participating in the pilot, information provided by EPA, state
regulators, and other relevant parties is consolidated on each FUDS
property in the state to prepare a statewide Management Action Plan.
Each state plan provides a coordinated strategy for investigating and
cleaning up FUDS that:
* identifies the key participants and their roles at FUDS cleanups,
* provides an inventory of all FUDS located in the state,
* sets priorities for cleaning up FUDS properties and projects, and:
* develops statewide work plans.
Overall state reaction to this pilot has been favorable. FUDS project
managers in 19 of the 27 states that we contacted believe that this
pilot will improve future communication between the Corps and the
states.
To date, the four states that participated in the initial phase of the
pilot--Colorado, Kansas, Ohio, and South Dakota--have statewide plans.
The plans' approaches vary to address each state's unique
circumstances. For example, the Kansas plan was very detailed, covering
the status of state and federal environmental programs, the status of
the FUDS program, and providing details about Kansas FUDS properties.
Conversely, the South Dakota and Colorado plans focused only on
regulator and budget issues. Corps officials stated that they receive
input from state representatives of organizations in the working group
regarding whether the pilot has been successful. Recognizing that the
variation in state approaches as to how these Management Action Plans
are developed might be appropriate, DOD says that it plans to work with
the FUDS Improvement Working Group to evaluate the success of the pilot
and determine best practices that could be shared with the nine
additional states that participated in the second round of the pilot
during fiscal year 2002: Alaska, Arizona, Massachusetts, Missouri,
North Carolina, South Carolina, Texas, Virginia, and Wyoming. DOD views
the pilot as a success and plans to continue the development of
statewide Management Action Plans for an additional six states during
fiscal year 2003, including Alabama, Hawaii, Michigan, New Mexico, New
York, and Washington. As part of this effort, DOD plans to develop a
format that meets the needs of each particular state. Corps officials
stated that the Corps will highlight the minimum elements that must be
in a Statewide Management Action Plan but will not dictate the plan's
exact format.
In addition to the DOD and Corps efforts taken to improve coordination,
individual Corps districts also took steps to improve coordination with
the states in which they operate, as follows:
* The Alaska district began sharing with state regulators backup
documents related to its preliminary assessments of eligibility and
inviting regulators to accompany district officials on site visits
during the preliminary assessments of eligibility. The Alaska district
now also involves state regulators in developing work plans and is in
the process of establishing formal procedures to achieve project and
property closeouts that are jointly agreed upon by the Corps and the
state.
* The Louisville district, in response to state concerns, began to
reassess its previous NDAI determinations at Nike missile sites.
* Since 1998, the Kansas City district has been holding quarterly
meetings with states and EPA to establish lines of communication
between the Corps and regulators; the district has also entered into
memorandums of agreement with states and EPA outlining roles and
responsibilities for each.
* The Fort Worth district invited interested parties, including
officials from another district and state regulators, to its June 2001
meeting to set priorities and plan FUDS work for the upcoming year.
* The Honolulu district and EPA Region 9 cochair meetings semi-annually
to foster communication on the FUDS program in the Pacific area.
* The Baltimore district provided electronic copies of all preliminary
assessment of eligibility reports to Delaware, Maryland, Pennsylvania,
and Washington, D.C., in 1999; similarly, the Norfolk district provided
most, if not all, such reports to the state of Virginia.
While these individual district efforts may yield positive results, the
Corps has not assessed these efforts to determine if any might be
candidates for Corps-wide implementation. The Corps believes it is a
best practice to allow individual districts and regulators to work out
mutually agreed to levels of coordination. However, without adequate
guidance, direction, and a menu of best practices for districts to
choose from, inconsistent and inadequate coordination may result. To
better promote greater and more consistent coordination with
regulators, DOD and the Corps will need to assess the success of
individual district efforts to determine which lessons learned from
these activities should be included in program guidance.
Views of Regulators about FUDS Coordination Activities:
Some state regulators, who are responsible for ensuring that applicable
environmental standards are met at most FUDS properties, believe that
inadequate Corps coordination has made it more difficult for them to
carry out their regulatory responsibilities. Also, state regulatory
officials told us that they have frequently questioned Corps cleanup
decisions because they have often not been involved in or informed
about Corps actions at FUDS. Conversely, they told us that when Corps
coordination has occurred, states have been more likely to agree with
Corps decisions. At the federal level, EPA and the Corps do not share
the same view on EPA's role in the FUDS program. EPA believes that it
should play a greater role at the 9,000 FUDS that are not on the
National Priorities List, while the Corps believes that EPA's role
should remain limited to those FUDS that are on the National Priorities
List.
Some State Regulators Believe Poor Coordination by the Corps Makes It
Difficult for Them to Ensure That Environmental Standards Are Met:
Some state regulators we contacted believe that when the Corps does not
inform them of its FUDS cleanup activities or involve them in the
various stages of the FUDS program, they do not have the information
necessary to ensure that applicable cleanup standards have been met and
that the cleanup actions will protect human health and the environment.
They were particularly concerned about the preliminary assessment of
eligibility stage of the program and hazards such as ordnance and
explosive waste, for which the requirement in law (10 U.S.C. 2701)
"consultation with EPA" is very broad and without definition. Further,
the law does not mention consultation or coordination with state
regulators. Discussions with state regulators raised the issue that
coordination through all stages of the program was valuable and helped
regulators develop confidence in Corps decisions.
With regard to the preliminary assessment of eligibility, FUDS program
officials in 15 of the 27 states we contacted expressed specific
concerns regarding their limited involvement during this stage of the
program. One concern, which was raised by 12 of these officials, was
that Corps activities are taking place without their knowledge or
involvement. Our past work has shown the results of this lack of
coordination. Our August 2002 report[Footnote 9] noted that because the
Corps historically did not consult states during its preliminary
assessment of eligibility, states did not discover until after the
fact, in some cases years later, that the Corps had determined that
more than 4,000 properties required no further DOD study or cleanup
action. Moreover, in several cases in which DOD had made an NDAI
determination without involving the states, DOD-caused hazards were
later identified, and the Corps had to reassess the properties and
conduct cleanup work. At Camp O'Reilly in Puerto Rico, for example, the
Corps made an NDAI determination after it conducted a preliminary
assessment of eligibility that did not include a review of state
historical information on the use of the property. Several years later,
the then-owner of the property identified DOD-caused hazards at the
property. This led to a more comprehensive Corps assessment that found
serious threats to drinking water sources and other hazards that
required cleanup under the FUDS program.
Another concern about the preliminary assessment of eligibility voiced
by officials in 17 of the 27 states we contacted is that the Corps has
not adequately supported and documented its NDAI decisions, and it has
not involved states in developing them. Because of their lack of
involvement and what states perceive as a lack of adequate support for
such Corps decisions, these states believe they have little assurance
that the Corps performed adequate work during its preliminary
assessments of eligibility and that NDAI properties are, in fact, free
of DOD-caused hazards. Our survey of 519 FUDS properties also showed
that, historically, states approved of Corps NDAI determinations in
only 10 percent of the cases; in 70 percent of the cases, state
respondents could not say whether they agreed or disagreed with the
determination.
With regard to ordnance and explosive waste projects, one of the types
of projects states told us were most important to them, interviews with
the 27 state FUDS program officials indicated that they were satisfied
with the Corps' work on such projects in only 11 percent of the cases.
This lack of satisfaction could be, at least partially, the result of
the relatively low levels of state involvement in these projects.
According to state survey respondents, the Corps involved them, on
average, in 23 percent of ordnance and explosive waste projects. Corps
guidance currently focuses coordination on hazardous waste and does not
specifically address coordination of ordnance and explosive waste
projects. However, according to DOD, the draft Engineer Regulation that
revises the FUDS Program Manual includes specific requirements for
district coordination with regulators on such projects.
States also have various concerns about their limited involvement in
the FUDS work that occurs after the preliminary assessment of
eligibility. For example, FUDS program officials in 7 of the 27 states
believe that being more involved in setting priorities for the Corps'
project work could help ensure that riskier sites were addressed in a
timely manner. Further, officials in 9 of the states we contacted said
that when they are not involved in project and property closeouts--the
points at which the Corps concludes that all its cleanup work has been
completed--state regulatory agencies have no assurance that Corps
actions have met state cleanup requirements.
Finally, when the Corps has coordinated with states, states have been
less likely to doubt the validity of Corps decisions and the adequacy
of Corps cleanup activities. According to our survey results, for
example, when states received final reports from the Corps, they agreed
with Corps decisions regarding the risk posed by a hazard, the
characteristics of the site, and the cleanup standards selected in 53
percent of the cases and disagreed in only 13 percent.[Footnote 10] On
the other hand, when states did not receive such documentation, they
agreed with Corps decisions in only 11 percent of the cases, disagreed
in 15 percent, and did not know enough to offer an opinion in 74
percent of the cases. Similarly, according to some state FUDS program
officials, as Corps coordination with states has improved over the past
3 years, states' acceptance of Corps decisions has increased. For
example, only one of the 27 state FUDS program officials we contacted
generally agreed with Corps NDAI decisions that were made before the
last 3 years. On the other hand, eight of these officials told us that
they agree with recent NDAI decisions that were made during the last 3
years.
EPA and the Corps Have Differing Views about Their Respective Roles and
Management of the FUDS Program:
EPA has historically had little involvement in the cleanup of the
approximately 9,000 FUDS that are not on its National Priorities List
and for which EPA is usually not the primary regulator.[Footnote 11] In
the late 1990s, at the request of some states, tribes, members of the
general public, and others, EPA increased its focus on environmental
investigations and cleanups of privately owned FUDS. In some cases,
this has led to disagreements between EPA and the Corps and required
added efforts on the parts of both agencies to reach agreement on how
cleanup should be conducted.
As EPA's knowledge of the FUDS program and how it is carried out by the
Corps grew, EPA focused its attention on various issues, including the
following:
* EPA, the Corps, and state regulators all have differing views of
EPA's role at FUDS that are not on the National Priorities List. EPA
believes that, in certain instances, it should have a greater role at
FUDS that are not on the National Priorities List. DOD, citing its
statutory responsibility to carry out the FUDS program and a delegation
of CERCLA authority under an executive order, maintains that it is the
sole administrator of the FUDS program. States, which are responsible
for regulating cleanup at most FUDS, have varying opinions on what
EPA's role in FUDS cleanup should be. Several states would like to see
EPA become more involved in the cleanup process, for example, by
participating in preliminary assessments of eligibility or providing
states with funds to review Corps work. Other states believe EPA's role
is about right or that EPA has no role in the process unless a state
invites it to participate.
* The way the Corps is to administer the FUDS cleanup program has also
been interpreted differently by the agencies. Specifically, 10 U.S.C.
2701 requires that the Corps perform work at FUDS projects involving
hazardous substances "subject to and in a manner consistent with"
section 120 of CERCLA, which addresses the cleanup of federal
facilities. Section 2701 also requires the Corps to carry out response
actions involving hazardous substances in accordance with the
provisions of the Defense Environmental Restoration Program and CERCLA.
However, EPA and the Corps disagree on the meaning of these
requirements. EPA contends that the Corps should follow CERCLA
regulations (the National Contingency Plan) and the EPA guidance used
to clean up non-FUDS properties under CERCLA. DOD maintains its right
to establish and follow its own procedures for determining project
eligibility under the Defense Environmental Restoration Program, as
long it performs response actions in a manner consistent with its
authorities under the Defense Environmental Restoration Program and
CERCLA.
* EPA believes that DOD's preliminary assessments of eligibility should
be as comprehensive as the preliminary assessments that EPA conducts on
non-FUDS properties. EPA's CERCLA-based preliminary assessments
investigate entire properties for hazards, identifying the source and
the nature of hazards and the associated risks to human health and the
environment--information EPA needs to determine whether properties
qualify for placement on the National Priorities List. In contrast,
DOD's preliminary assessments of eligibility focus on determining
whether the properties are eligible for cleanup under the FUDS program
and whether DOD-caused hazards may exist. According to DOD, it collects
information limited to DOD-related hazards in accordance with the
limits of its authorities under the Defense Environmental Restoration
Program. The FUDS Program Manual states that DOD's preliminary
assessment of eligibility is not intended to be equivalent to the
CERCLA preliminary assessment. DOD officials said that the draft
Engineer Regulation, which revises the FUDS Program Manual, addresses
EPA concerns about coordination during the preliminary assessment of
eligibility.
* DOD views preliminary assessments of eligibility as internal agency
documents for which there is no coordination requirement and has
generally not coordinated these assessments with EPA. As a result,
according to EPA officials, EPA often does not have access to the
information necessary for deciding whether a property should be
included on the National Priorities List. Consequently, EPA cannot be
assured that significant hazards to human health and the environment
that could warrant listing do not exist at a property, and EPA may need
to conduct its own, more comprehensive, preliminary assessment under
CERCLA.
Because of its focus on these issues, EPA re-evaluated its approach to
addressing privately owned FUDS, and, in March 2002, issued a policy
for addressing privately owned FUDS that are not on the National
Priorities List.[Footnote 12] The policy, issued to EPA's regional
offices to clarify the agency's role at these FUDS, outlines a
framework for coordinating with the Corps and EPA's expectations for
Corps consultation with them under the Defense Environmental
Restoration Program. For example, EPA would like to see the Corps:
* involve it to a greater extent in FUDS work, such as preliminary
assessments of eligibility;
* provide EPA, state regulatory agencies, and other interested parties
reasonable opportunities for meaningful review of and comment on major
decision documents, as well as documents associated with carrying out
specific FUDS activities, such as work plans and sampling and analysis
plans; and:
* respond in writing to comments from EPA, the states, and others and
show how it has addressed the comments or, if it has not, explain why
not.
Overall, EPA believes that a better-coordinated effort among all
parties, as discussed in its policy, would improve the effectiveness of
cleanup at FUDS and increase public confidence in the actions taken at
these sites. EPA's policy also emphasizes that EPA does not expect its
involvement to be consistent across all phases of work; rather, it
would increase its involvement at a site when conditions warranted--for
example, if there were "imminent and substantial endangerment" or if
EPA had concerns about the appropriateness of the cleanup.
DOD disagrees with much of EPA's new policy. For example, in commenting
on EPA's draft policy, DOD requested that EPA delete from it numerous
references to EPA's "oversight" and "review." DOD, citing its statutory
responsibility to carry out the FUDS program and referring to a
delegation of CERCLA authority under an executive order, maintains that
the FUDS program is solely its program to administer. DOD also
maintains that 10 U.S.C. 2701, which provides for EPA's consultation
role under the FUDS program, does not provide authority for EPA
concurrence or oversight of the program. According to DOD, EPA's role
should be limited to FUDS for which EPA is the lead regulator--that is,
primarily FUDS that are on the National Priorities List.
Without an agreement on roles and responsibilities, DOD and EPA have
been unable to establish an effective working relationship on FUDS or
have had to undertake extra efforts to come to an agreement on how a
cleanup should be conducted. An example of this is the Spring Valley
FUDS in Washington, D.C., where the U.S. Army operated a research
facility to test chemical weapons and explosives during World War I.
Because the site was a formerly used defense site, DOD has
responsibility for cleaning up the site under the Defense Environmental
Restoration Program. However, under CERCLA, EPA has its own authority
to act at the site, including conducting investigations and removal
actions. Further, under EPA's FUDS policy, EPA can take a more active
role at FUDS if conditions warrant. According to EPA officials, if a
site is not listed as a national priorities site or there is no
imminent danger to the public or environment, EPA may limit its role.
Early in the 1980s, the specific role of the two federal agencies at
the Spring Valley site led to some confusion and disagreement about the
cleanup approach and the standards to be applied. Over time, the
federal agencies and the District of Columbia government formed a
partnership to reach agreements on cleanup at the site. While the
partners have not agreed on all cleanup decisions, they acknowledged,
as of June 2002, that the partnership was operating effectively.
Further, officials acknowledge that forming the partnership has
provided a means to foster communication and collaboration.
Conclusions:
While state regulators reported to us that the Corps has improved its
coordination with them, more can be done in five areas to build on
those successes. First, our work has shown that many states would like
to be more involved in the preliminary assessment of eligibility stage
of the program. The program guidance is silent on regulators' roles in
preliminary assessments of eligibility, in part because the law
requiring consultation with regulators is broad and does not mention
consultation with the states, only with EPA. The Corps has regarded
preliminary assessments of eligibility as an internal matter and has
done little to coordinate with regulators during the assessment. As a
result, regulators believe their ability to ensure that decisions about
FUDS properties and projects meet environmental standards and protect
the public from environmental contamination has been hindered. As we
were completing our work, DOD and Corps officials told us that they are
in the process of revising the FUDS Program Manual as an Engineer
Regulation that would include requirements for coordination during
preliminary assessments. Following through with this plan is critical
to clearly establish that coordination is required and lay out what
steps need to be taken to ensure that it occurs.
Second, as it updates its program guidance, incorporating the more
specific requirements sent out in an April 2001 memorandum would help
to ensure that coordination requirements are clear. Better clarity
could also result from a re-examination and clarification of existing
DOD and Corps FUDS program guidance documents that are general in
nature and contain ambiguous language. Third, DOD and Corps efforts
have been directed at improving coordination on hazardous waste
projects but could be enhanced by also requiring coordination for
ordnance and explosive wastes cleanup that can pose significant safety
and health risks and in which many of the states want to be more
involved. However, DOD states that it addresses coordination
requirements at ordnance and explosive waste projects in its draft
Engineer Regulation, which replaces the FUDS Program Manual.
Fourth, while the Corps has made various agencywide efforts to improve
coordination with regulators, such as its state management plans pilot
program, many beneficial coordination efforts have also occurred at
Corps districts through the initiative of individual Corps personnel.
Evaluating these district efforts and agencywide initiatives to
incorporate successful ones into its operating procedures for the FUDS
program as a whole would establish best practices and result in the
entire program benefiting from individual efforts.
Finally, at the federal level, EPA and the Corps disagree about EPA's
role in the cleanup of more than 9,000 FUDS that are not on the
National Priorities List. Reaching agreement on these roles and
expectations for coordination is essential for establishing an
effective working relationship on FUDS. The lack of a good working
relationship between two federal cleanup agencies may hamper efforts to
properly assess properties for cleanup and may, in some cases, result
in some duplication of effort--for example, when EPA has to reassess
the properties to determine if they merit placement on the National
Priorities List. In addition, while the partnership formed by the two
agencies at the Spring Valley FUDS demonstrates that the agencies can
work together, that is not the norm for the FUDS program as evidenced
by EPA's March 2002 FUDS policy and DOD's response to it. Further, even
if the agencies were able to negotiate partnerships or memoranda of
understanding for individual FUDS properties, that is neither an
efficient nor cost effective approach given that there are thousands of
FUDS properties needing cleanup.
Recommendations for Executive Action:
To help ensure consistent coordination with regulators during all
phases of FUDS investigation and cleanup, we recommend that the
Secretary of the Department of Defense direct the Secretary of the
Department of the Army to follow through on its plans to develop and
incorporate clear and specific guidance in the Corps' FUDS Program
Manual as to how, when, and to what extent coordination with regulators
should take place, including during preliminary assessments of
eligibility. Moreover, in view of the states' concerns and hazards
posed by ordnance and explosive waste, the coordination guidance should
address these types of projects as well, not just those involving
hazardous waste. In developing the guidance, the Army should work with
regulators to develop a consensus on how, when, and to what extent
coordination should take place.
As a starting point, we recommend that the Secretary of the Department
of Defense direct the Secretary of the Department of Army to:
* assess the impact of the Corps' recent efforts to improve
coordination through actions such as directives and the Management
Action Plan pilot program and incorporate the successful components as
requirements into its FUDS Program Manual, and:
* assess practices individual Corps districts have used to coordinate
with regulators and develop a list of best practices for dissemination
throughout the Corps that districts might use to improve their
coordination.
In addition, in view of the need for federal agencies to ensure that
cleanup efforts are done properly and that scarce resources are best
utilized, DOD and EPA should work together to clarify their respective
roles in the FUDS cleanup program for properties that are not listed on
the National Priorities List. The agencies should agree on a time frame
to establish a memorandum of understanding that will lay out an overall
framework for how they will work together, including their roles and
responsibilities, during the assessment and cleanup of FUDS properties.
Agency Comments and Our Evaluation:
We provided DOD and EPA with a draft of this report for their review
and comment. DOD and EPA agreed with our findings and conclusions. In
addition, DOD agreed with two of the report's recommendations and
partially agreed with the third, and indicated that it had begun or was
planning on taking actions to address all of them.
In response to our recommendation that DOD follow through on its plans
to develop and incorporate clear and specific guidance in the FUDS
Program Manual as to how, when, and to what extent coordination with
regulators should take place, including during the preliminary
assessment of eligibility phase and for ordnance and explosive waste
projects, DOD indicated that it is in the process of addressing this
issue. Specifically, the Corps is revising the FUDS Program Manual as
an engineering regulation that will include step-by-step procedures for
regulatory coordination at each phase of FUDS cleanup, including the
preliminary assessment of eligibility process, and for unexploded
ordnance projects.
DOD also indicated that it is taking actions that should address our
recommendations that DOD assess the impact of recent Corps' efforts to
improve coordination through actions such as the Management Action Plan
pilot program and incorporate the successful components as requirements
into its FUDS guidance. DOD is also assessing practices that individual
Corps districts have used to coordinate with regulators and developing
a list of best practices for dissemination and use throughout the
Corps. DOD stated that it is proposing to include best practices from
the Management Action Plan pilot in its engineering regulation and will
review individual District efforts aimed at improving coordination with
regulators to see if additional best practices should be developed.
In response to our recommendation that DOD and EPA work together to
clarify their respective roles in the FUDS cleanup program by
establishing a memorandum of understanding that will lay out an overall
framework, DOD is proposing to incorporate coordination and
consultation requirements in the appropriate procedural sections of the
upcoming engineering regulation, rather than using a memorandum of
understanding.
Overall, the steps being taken or planned by DOD to improve
coordination with regulators could, when completed, constitute a
significant improvement over current processes and should go a long way
toward addressing the problems identified in this report that were the
subject of our recommendations.
EPA did not comment specifically on the individual recommendations in
the report but did state that report did an excellent job of presenting
substantive information relative to DOD's efforts to consult with
regulatory agencies.
In addition to their written comments, DOD and EPA also provided a
number of technical comments and clarifications, which we incorporated
as appropriate. DOD's comments appear in appendix III and EPA's
comments appear in appendix IV.
We conducted our review from March 2001 to September 2002 in accordance
with generally accepted government auditing standards.
:
As arranged with your offices, unless you publicly announce the
contents of this report earlier, we plan no further distribution of it
until 30 days from the date of this letter. We will then send copies to
the Secretary of Defense; the Director, Office of Management and
Budget; appropriate congressional committees; and other interested
parties. We will also provide copies to others upon request. In
addition, the report will be available, at no charge, on the GAO Web
site at http://www.gao.gov/.
If you or your staff have any questions, please call me or Edward
Zadjura at (202) 512-3841. Contributors to this report are listed in
appendix V.
Sincerely yours,
(Ms.) Anu K. Mittal
Acting Director, Natural Resources and Environment:
Signed by Anu K. Mittal:
[End of section]
Appendix I: Additional Details on Our Scope and Methodology:
The objectives of our review were to (1) identify federal requirements
for DOD and the Corps to coordinate with state and federal regulators
during the FUDS cleanup program, (2) determine the extent to which the
Corps has coordinated with state regulators since the start of the FUDS
program and assess the recent steps it has taken to better coordinate,
and (3) identify any concerns regulators may have about coordination
with the Corps.
To identify federal requirements that DOD and the Corps must meet in
coordinating with regulators, we obtained and reviewed the Superfund
Amendments and Reauthorization Act of 1986. To identify related DOD and
Corps guidance, we interviewed FUDS program officials and Corps
officials in various Corps districts and divisions. We then obtained
and reviewed the guidance documents, including the Defense Management
Guidance for the Defense Environmental Restoration Program, the Corps
FUDS Program Manual, and other related documents.
To determine how the Corps coordinates with state regulators during the
assessment and cleanup of FUDS, we conducted a survey. First, we drew a
stratified, random sample of 519 FUDS properties from the Corps' FUDS
database, as of February 2001. The survey results cover FUDS program
activities that took place from 1986 through 2001. The sample consisted
of 150 properties that did not have any projects associated with them
and an additional 369 properties that had at least one project with at
least one specific work phase completed. The following table summarizes
our sample in terms of the number of properties represented, as well as
the number and types of projects.
Table 3: Number of FUDS Properties and Projects in Our Sample:
FUDS Properties: Properties without projects; Population: FUDS
Properties: 4,002; Sample: FUDS Properties: 150.
FUDS Properties: Properties with projects; Population: FUDS Properties:
2,762; Sample: FUDS Properties: 369.
FUDS Properties: Total FUDS properties; Population: FUDS Properties:
6,764; Sample: FUDS Properties: 519.
FUDS Properties: FUDS Projects.
FUDS Properties: Project Category; Population: FUDS Properties:
[Empty]; Sample: FUDS Properties: [Empty].
FUDS Properties: * Hazardous waste; Population: FUDS Properties: 1,009;
Sample: FUDS Properties: 96.
FUDS Properties: * Containerized waste; Population: FUDS Properties:
1,274; Sample: FUDS Properties: 106.
FUDS Properties: * Ordnance and explosive waste; Population: FUDS
Properties: 1,629; Sample: FUDS Properties: 144.
FUDS Properties: * Unsafe buildings and debris; Population: FUDS
Properties: 470; Sample: FUDS Properties: 32.
FUDS Properties: * Potentially responsible party; Population: FUDS
Properties: 201; Sample: FUDS Properties: 21.
FUDS Properties: * Other; Population: FUDS Properties: 2; Sample: FUDS
Properties: 0.
FUDS Properties: Total FUDS projects.
Source: GAO.
[A] Some properties with projects had multiple projects.
[End of table]:
We obtained information from the Corps' FUDS database to customize the
surveys depending on their cleanup phase as well as the types of
projects, if any, that were in the survey. At the property level,
questions varied depending upon whether 1) the Corps had determined
that no DOD action was indicated, 2) the database showed no projects
associated with the property and DOD had not made a determination that
no DOD action was indicated, and 3) the Corps had proceeded with at
least some type of project work. Project level questions varied
depending on 1) the type of project--for example, hazardous waste
projects received a more complex questionnaire than unsafe buildings
and debris projects because hazardous waste projects must go through
more investigation and cleanup phases and 2) how many of the
investigation and cleanup phases the Corps had completed at a project-
-as indicated by the Corps FUDS database.[Footnote 13] For example, not
all hazardous waste projects in our sample have gone through all
applicable phases. Based on information that the Corps provided to us,
we determined which phases were completed in such projects and only
asked questions related to the completed phases. We then sent similar
questionnaires to the current Corps and state project managers of the
properties in our sample to obtain the views of both regarding
coordination.
To obtain information on DOD efforts to improve coordination with
regulators and address their concerns, we interviewed DOD and Corps
headquarters officials and reviewed documents that they provided. In
addition, we contacted FUDS program officials at several Corps
divisions and districts, including the Great Lakes and Ohio River,
North Atlantic, South Atlantic, and Southwestern divisions, and the
Alaska, Louisville, Norfolk, Seattle, and Tulsa districts.
To obtain information on state regulators' concerns regarding Corps
coordination with them regarding the FUDS program, we conducted
structured interviews with FUDS program managers in the 27 states that
account for most of the FUDS work. To determine which states to call,
we used the Corps FUDS database to identify the 20 states that had the
greatest number of FUDS properties. Because properties vary in terms of
the amount of work they involve--for example, the number of projects at
FUDS properties ranged between 1 and 43---we also identified the 20
states that had the most FUDS projects. There were 27 states that fell
into at least one of these two categories, and they accounted for
approximately 80 percent of all FUDS properties and all FUDS projects.
To document consistently the information we obtained from the FUDS
managers in the 27 states, we developed a data collection instrument to
guide our interviews.
To obtain information on the Corps' coordination with EPA and its
concerns regarding its role in the program, we interviewed officials at
EPA headquarters, including those from the Office of Solid Waste and
Emergency Response responsible for developing EPA's guidance for FUDS,
and we reviewed documentation they provided. In addition, we developed
a data collection instrument to conduct structured interviews with
federal facilities officials who deal with FUDS issues at all 10 EPA
regions.
[End of section]
Appendix II: State and Corps Project Managers' Responses to Our Survey
Regarding Coordination at FUDS:
Table 4: State Project Managers' Responses Regarding Corps Coordination
with States during Preliminary Assessments of Eligibility in Our
Sample:
Did the Corps inform states that it was starting preliminary assessment
of eligibility?; Yes: (percentage): 6; No: (percentage): 81; Don't
know: (percentage): 13; Total: responses: 444.
Did the Corps ask states for information or input on its approach?;
Yes: (percentage): 6; No: (percentage): 80; Don't know: (percentage):
14; Total: responses: 886[A].
Did the Corps ask for state participation?; Yes: (percentage): 5; No:
(percentage): 84; Don't know: (percentage): 11; Total: responses: 441.
Did the Corps inform states of interim results as work progressed?;
Yes: (percentage): 5; No: (percentage): 83; Don't know: (percentage):
12; Total: responses: 441.
Did the Corps provide states with a draft of the report summarizing the
results of the preliminary assessment of eligibility?; Yes:
(percentage): 4; No: (percentage): 84; Don't know: (percentage): 12;
Total: responses: 441.
Did the Corps provide states with the final report on the preliminary
assessment of eligibility?; Yes: (percentage): 48; No: (percentage):
43; Don't know: (percentage): 9; Total: responses: 442.
Source: GAO.
[A] Combined total responses for two questions.
Note: States' responses to FUDS survey.
[End of table]
Table 5: Corps Project Managers' Responses Regarding Corps Coordination
with States during Preliminary Assessments of Eligibility in Our
Sample:
Did the Corps inform states that it was starting preliminary assessment
of eligibility?; Yes: (percentage): 24; No: (percentage): 58; Don't
know: (percentage): 18; Total: responses: 481.
Did the Corps ask states for information or input on its approach?;
Yes: (percentage): 27; No: (percentage): 53; Don't know: (percentage):
20; Total: responses: 965.
Did the Corps ask for state participation?; Yes: (percentage): 16; No:
(percentage): 64; Don't know: (percentage): 20; Total: responses: 481.
Did the Corps inform states of interim results as work progressed?;
Yes: (percentage): 15; No: (percentage): 65; Don't know: (percentage):
20; Total: responses: 478.
Did the Corps provide states with a draft of the report summarizing the
results of the preliminary assessment of eligibility?; Yes:
(percentage): 7; No: (percentage): 79; Don't know: (percentage): 14;
Total: responses: 481.
Did the Corps provide states with the final report on the preliminary
assessment of eligibility?; Yes: (percentage): 56; No: (percentage):
30; Don't know: (percentage): 14; Total: responses: 477.
Source: GAO.
[A] Combined total responses for two questions.
Note: Corps' responses to FUDS survey.
[End of table]
Table 6: State Project Managers' Responses Regarding Corps Coordination
with States during Cleanup of Hazardous Waste Projects in Our Sample:
Did the Corps inform states of upcoming work?; Yes: (percentage): 53;
No: (percentage): 31; Don't know: (percentage): 16; Total responses:
86.
Did the Corps ask for states' input and participation?; Yes:
(percentage): 50; No: (percentage): 33; Don't know: (percentage): 17;
Total responses: 169[A].
Did the Corps inform states of interim results?; Yes: (percentage): 49;
No: (percentage): 35; Don't know: (percentage): 16; Total responses:
84.
Did the Corps provide states with draft reports?; Yes: (percentage):
46; No: (percentage): 43; Don't know: (percentage): 11; Total
responses: 98.
Did the Corps provide states with final reports?; Yes: (percentage):
44; No: (percentage): 41; Don't know: (percentage): 15; Total
responses: 91.
Source: GAO.
[A] Combined total responses for two questions.
Note: States' responses to FUDS survey.
[End of table]
Table 7: Corps Project Managers' Responses Regarding Corps Coordination
with States during Cleanup of Hazardous Waste Projects in Our Sample:
Did the Corps inform states of upcoming work?; Yes: (percentage): 72;
No: (percentage): 12; Don't know: (percentage): 16; Total Responses:
99.
Did the Corps ask for states' input and participation?; Yes:
(percentage): 67; No: (percentage): 14; Don't know: (percentage): 19;
Total Responses: 195[A].
Did the Corps inform states of interim results?; Yes: (percentage): 73;
No: (percentage): 11; Don't know: (percentage): 16; Total Responses:
95.
Did the Corps provide states with draft reports?; Yes: (percentage):
59; No: (percentage): 25; Don't know: (percentage): 16; Total
Responses: 108.
Did the Corps provide states with final reports?; Yes: (percentage):
57; No: (percentage): 21; Don't know: (percentage): 22; Total
Responses: 101.
Source: GAO.
[A] Combined total responses for two questions.
Note: Corps' responses to FUDS survey.
[End of table]:
Table 8: State Project Managers' Responses Regarding Corps Coordination
with States during Cleanup of Containerized Waste Projects in Our
Sample:
Did the Corps inform states of upcoming work?; Yes: (percentage): 40;
No: (percentage): 48; Don't know: (percentage): 12; Total Responses:
86.
Did the Corps ask for states' input and participation?; Yes:
(percentage): 25; No: (percentage): 60; Don't know: (percentage): 15;
Total Responses: 168[A].
Did the Corps inform states of interim results?; Yes: (percentage): 25;
No: (percentage): 53; Don't know: (percentage): 22; Total Responses:
80.
Did the Corps provide states with draft reports?; Yes: (percentage):
27; No: (percentage): 61; Don't know: (percentage): 12; Total
Responses: 83.
Did the Corps provide states with final reports?; Yes: (percentage):
36; No: (percentage): 50; Don't know: (percentage): 14; Total
Responses: 84.
Source: GAO.
[A] Combined total responses for two questions.
Note: States' responses to its FUDS survey.
[End of table]
Table 9: Corps Project Managers' Responses Regarding Corps Coordination
with States during Cleanup of Containerized Waste Projects in Our
Sample:
Did the Corps inform states of upcoming work?; Yes: (percentage): 57;
No: (percentage): 20; Don't know: (percentage): 23; Total Responses:
109.
Did the Corps ask for states' input and participation?; Yes:
(percentage): 51; No: (percentage): 21; Don't know: (percentage): 28;
Total Responses: 216.
Did the Corps inform states of interim results?; Yes: (percentage): 51;
No: (percentage): 24; Don't know: (percentage): 25; Total Responses:
108.
Did the Corps provide states with draft reports?; Yes: (percentage):
49; No: (percentage): 28; Don't know: (percentage): 23; Total
Responses: 105.
Did the Corps provide states with final reports?; Yes: (percentage):
63; No: (percentage): 19; Don't know: (percentage): 18; Total
Responses: 106.
Source: GAO.
[A] Combined total responses for two questions.
Note: Corps' responses to FUDS survey.
[End of table]
Table 10: State Project Managers' Responses Regarding Corps
Coordination with States during Cleanup of Ordnance and Explosive Waste
Projects in Our Sample:
Did the Corps inform states of upcoming work?; Yes: (percentage): 18;
No: (percentage): 67; Don't know: (percentage): 15; Total Responses:
39.
Did the Corps ask for states' input and participation?; Yes:
(percentage): 18; No: (percentage): 71; Don't know: (percentage): 11;
Total Responses: 78[A].
Did the Corps inform states of interim results?; Yes: (percentage): 13;
No: (percentage): 76; Don't know: (percentage): 11; Total Responses:
38.
Did the Corps provide states with draft reports?; Yes: (percentage):
23; No: (percentage): 70; Don't know: (percentage): 7; Total Responses:
47.
Did the Corps provide states with final reports?; Yes: (percentage):
44; No: (percentage): 53; Don't know: (percentage): 3; Total Responses:
45.
Source: GAO.
[A] Combined total responses for two questions.
Note: States' responses to FUDS survey.
[End of table]
Table 11: Corps Project Managers' Responses Regarding Corps
Coordination with States during Cleanup of Ordnance and Explosive Waste
Projects in Our Sample:
Did the Corps inform states of upcoming work?; Yes: (percentage): 42;
No: (percentage): 21; Don't know: (percentage): 37; Total Responses:
33.
Did the Corps ask for states' input and participation?; Yes:
(percentage): 39; No: (percentage): 23; Don't know: (percentage): 38;
Total Responses: 66a.
Did the Corps inform states of interim results?; Yes: (percentage): 24;
No: (percentage): 27; Don't know: (percentage): 49; Total Responses:
33.
Did the Corps provide states with draft reports?; Yes: (percentage):
25; No: (percentage): 33; Don't know: (percentage): 42; Total
Responses: 36.
Did the Corps provide states with final reports?; Yes: (percentage):
33; No: (percentage): 50; Don't know: (percentage): 17; Total
Responses: 36.
Source: GAO.
[A] Combined total responses for two questions.
Note: Corps' responses to FUDS survey.
[End of table]
[End of section]
Appendix III: Comments from the Department of Defense:
ACQUISITION, TECHNOLOGY AND LOGISTICS:
OFFICE OF THE UNDER SECRETARY OF DEFENSE:
3000 DEFENSE PENTAGON WASHINGTON, DC 20301-3000:
MAR 11 2003:
Ms. Gary L. Jones:
Director, Natural Resources and Environment U.S. General Accounting
Office Washington, D.C. 20548:
Dear Ms. Jones:
This is the Department of Defense (DoD) response to the GAO draft
report, GAO-03-146, "ENVIRONMENTAL CONTAMINATION: DoD has Taken Steps
to Improve Cleanup Coordination at Former Defense Sites, but Clearer
Guidance is Needed to Assure Consistency", (GAO Code 360046).
In the attached comments, we agree with GAO's assessment that the Army
Corps of Engineers has improved overall coordination with regulatory
agencies. As recommended, we intend to continue to build on that
success, through the Army's Formerly Used Defense Sites (FUDS)
Improvement Workgroup initiative. The workgroup is currently overseeing
development of statewide management action plans (MAPS) in 19 different
States, and plans to incorporate best practices from Corps Districts
and agreements made by States and the US Environmental Protection
Agency (EPA) on regulatory coordination, in their revisions to policy
and guidance.
In regard to GAO's first recommendation that the Corps specify steps to
be used in regulatory coordination in guidance and policy, the Corps is
revising the FUDS manual, as an engineering regulation (ER), to include
step-by-step procedures for regulatory coordination at each phase of
FUDS cleanup, including the preliminary assessment of eligibility
process and unexploded ordnance sites, consistent with comments
submitted by States and EPA. Specific changes to the FUDS ER are
described in detail in our attached response to recommendations.
We agree with GAO's second recommendation that the Corps promote wider
distribution of MAPs and specific improvements initiated by individual
Corps Districts. MAPS, developed cooperatively between EPA regions,
States, and the Corps, which further refine regulatory roles and
responsibilities for each site within a State, have been completed in
Missouri, Wyoming, Arizona, Kansas, Colorado, Ohio, South Dakota, and
Alaska and are under development in Massachusetts, Virginia, North and
South Carolina, and Texas. Six additional MAPS are planned for Fiscal
Year 2003 for New York, Alabama, Michigan, New Mexico, Hawaii, and
Washington. The Corps is also proposing:
to include best practices in the draft FUDS ER, as well as undertake
review of other suggested District improvements through the FUDS
Improvement Workgroup.
We partially agree with GAO's third and final recommendation that DoD
resolve differences with EPA over authority for FUDS through a
memorandum of understanding for FUDS not on the National Priorities
List (NPL) or non-NPL FUDS. Rather than negotiating authorities
delegated by the President and authorized by Congress through informal
agreements, we will redouble our efforts to ensure that the legally
mandated consultation role with EPA, defined by 10 U.S.C. 2701, is
articulated in the draft ER.
My point of contact on this matter, Mr. Kurt Kratz (703) 697-5372, is
available to discuss our responses to recommendations and the
additional technical comments attached to our responses.
Sincerely,
Philip W. Grone:
Principal Assistant Deputy Under Secretary of Defense (Installations
and Environment):
Signed by Philip W. Grone:
Enclosure:
GAO DRAFT REPORT DATED FEBRUARY 5, 2003:
(GAO CODE 360046):
"ENVIRONMENTAL CONTAMINATION: DOD Has Taken Steps to Improve Cleanup
Coordination at Former Defense Sites but Clearer Guidance Is Needed to
Assure Consistency":
DEPARTMENT OF DEFENSE COMMENTS TO THE GAO RECOMMENDATIONS:
RECOMMENDATION 1: Recommend the Secretary of Defense and Secretary of
the Army follow through on its plans to develop and incorporate clear
and specific guidance in the Formerly Used Defense Sites (FUDS) Program
Manual as to how, when, and to what extent coordination with regulators
should take place, including during preliminary assessments of
eligibility and projects involving ordnance and explosive waste.
DoD RESPONSE: Agree. The Corps is in the process of revising the FUDS
Program Manual in coordination with the U.S. Environmental Protection
Agency (EPA) and States. Comments from the EPA and States through the
Association of State and Territorial Solid Waste Management officials
are being incorporated into the draft manual, which will be issued as a
Corps Engineering Regulation, ER 200-3-1. Chapter 9 of the draft FUDS
Engineering Regulation (ER) has been revised significantly to provide
for consultation and notification of the regulatory agencies in all
project phases of project execution. Coordination requirements are the
same for both hazardous waste projects and munitions response (ordnance
and explosive waste) projects. Specific examples of coordination
required by the draft ER include:
a. General: Coordination Requirements:
* Provide the lead regulatory agency, whether it be EPA, State, or
Tribes, with the following for non-Potentially Responsible Party (PRP)
projects:
* Project Management Plans (PMP), Property Specific Management Action
Plans, and Statewide Management Action Plans (MAPs),
* Timely information relative to FUDS Inventory Project Reports (INPRs),
categorical exclusions, No DoD Action Indicated (NDAI) determinations,
and available relevant information regarding non-DoD contamination at
FUDS,
* Reasonable opportunities for meaningful regulatory review of and
comment on the results of Relative Risk and unexploded ordnance Risk
Assessment Code (RAC) scores, and on major project documents,
including, but not limited to, the INPR, site specific work plans,
scopes of work, sampling and analysis plans, investigatory/study
reports (Preliminary Assessment (PA), Site Inspection (SI), or Archival
Search Report), remedial investigation/feasibility study (RI/FS)
reports, engineering evaluations/cost analyses (EE/CA), decision
documents, and remedial design/remedial action (RD/RA) documents,
operations and maintenance workplans, land use control implementation
plans, and 5 year review reports.
* Provide written response to comments from EPA/States/Tribes along with
final project documents.
* Provide EPA, States, or Tribes, on an annual basis, with a list of
FUDS PRP sites.
* Coordination shall begin during the FURS inventory project phase. The
geographic Military Corps District shall notify current landowners,
stakeholders, and the lead regulatory agency of proposed actions at the
earliest opportunity and when funding is available for the approved
project or projects in accordance with the annual workplan. This
coordination and consultation shall be exercised in all subsequent
phases of project performance and at all levels within the Corps of
Engineers.
The Corps shall provide notice and opportunity for comment on all
response activities performed under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA) and the National
Contingency Plan (NCP) to the lead regulatory agency. o The Corps shall
takes such steps as necessary and appropriate to promptly notify the
lead regulatory agency, in accordance with 10 U.S.C. 2705 for each of
the of the following: * The discovery of releases or threatened releases
of hazardous substances at the property.
* The extent of the threat to public health and the environment which
may be associated with any such release or threatened release.
* Proposals to carry out response actions with respect to any such
release or threatened release.
Initiation of any response action with respect to such release or
threatened release and the commencement of each distinct phase of such
activities. The Corps District Commanders are responsible for ensuring
the prompt notification of these agencies for actions being taken in
their geographical area.
* The lead Corps District at each FUDS shall consult EPA, State, and
local authorities regarding regulatory standards, providing the notice
and opportunity for comment as appropriate in accordance with 10 U.S.C.
2705(a) and (b). Efforts shall be made to attain standards,
requirements, or criteria requested by these authorities where they are
consistent with CERCLA Section 120 (42 USC 9620) and the NCP processes
and criteria and contaminants in the FURS program (10 U.S.C.
2701(a)(2)). Counsel shall be consulted on all issues related to the
extent of Federal or State authority.
* The Corps should strive to achieve a consensus opinion with the lead
regulator and stakeholders, particularly in selection of a response
action.
b. Inventory Project Report and Preliminary Assessment of Eligibility
(PAE):
The draft FUDS ER requires that INPR preparation and review be
coordinated with the lead regulatory agency. Joint participation in
PAEs by States through the Defense State Memorandum of Agreement
(DSMOA) program, assists the Corps in gathering historical information
on past uses at the property, and accessing records from other
entities, adding to the overall knowledge of the property.
c. Property and project closeout:
Chapter 3 of the draft FUDS ER requires regulatory coordination for
closeout of a FUDS property or projects. Prior to making property
closeout determinations, the Corps District shall provide the EPA,
state, affected Tribes, and local authorities with notice and
opportunity to comment on the determination.
d. No DoD Action Indicated determinations:
The draft FUDS ER requires the Corps provide notice and opportunity for
comment by regulators regarding FUDS NDAI determinations. Through
DSMOA, the Corps shall fund States for regulatory review of NDAIs as
well as site visits, identification of applicable, relevant, and
appropriate requirements (ARARs), and participation in technical review
committees. The program also provides for state participation in the
development of MAPS and review of five previous NDAI's annually, which
are reopened at the State's request.
RECOMMENDATION 2: Recommend that the Secretary of Defense direct the
Secretary of the Army to assess the impact of the Corps' recent efforts
to improve coordination through actions such as directives and the
Management Action Plan pilot program and incorporate the successful
components as requirements into its FURS Program Manual, and assess
practices individual Corps Districts have used to coordinate with
regulators and develop a list of best practices for dissemination
throughout the Corps that Districts might use to improve their
coordination.
DoD RESPONSE: Agree. The Corps has developed specific guidance for
coordination with regulators. Examples include the Corps Engineer
Pamphlet 1110-3-8, Public Participation in the DERP for FURS, and the
Corps Engineer Manual 200-1-2, Technical Project Planning. The EM can
be found on www usace.army.mil/publications/eng-manuals/cemn.htm.]
The pilot for statewide MAPs has been expanded to 19 states in Fiscal
Year 2003. The FUDS Improvement Workgroup is monitoring development of
the pilot, and the Corps is reviewing each plan to assess the extent of
and success of stakeholder involvement in each state.
The draft ER requires that MAPs be the primary means used to identify
all FUDS cleanup activities in coordination with States, EPA, and other
stakeholders, including representative members from communities
surrounding FUDS properties. MAPs will be regarded as living documents
that can used by stakeholders as a resource to quickly and effectively
evaluate the status of each FUDS property within a state. Key
activities undertaken cooperatively by the Corps District, EPA Region,
and State in MAP development include identification of each FUDS site
within a state, determining clean-up priorities for each site, defining
lead regulator at each site, funding provided for each project, and
development of strategies for property/project closeout.
Lastly, the Corps is proposing to include improvements from individual
Corps Districts, deemed as best practices, in the draft ER. The FUDS
Improvement Workgroup also plans to undertake a review of other Corps
District practices, to determine if wider application is recommended.
RECOMMENDATION 3: Recommend DoD and EPA work together to clarify their
respective roles in the FUDS cleanup program for properties not listed
on the National Priorities List. The agencies should agree on a
timeframe to establish a memorandum of understanding that will layout a
framework for how they will work together, including their roles and
responsibilities during the assessment and cleanup of FUDS properties.
DoD RESPONSE: Partially Agree. Rather than negotiating authorities
delegated by the President and authorized by Congress through informal
agreements, we will redouble our efforts:
to ensure that the legally mandated consultation role with EPA, defined
by 10 U.S.C 2701, is articulated in the draft ER. In addition, language
agreed to by States, EPA, and DoD, prior to EPA's departure from the
FUDS Improvement Workgroup, has been incorporated in the draft FUDS ER:
States or Tribes will generally be the lead regulator for environmental
investigations and response at non-NPL FUDS. In certain circumstances,
EPA may serve as lead regulator where the State or Tribe requests that
EPA assume the lead or when EPA chooses to exert its lead regulator
role. In instances where EPA assumes lead regulatory agency authority,
roles should be documented and all parties notified.
In cases where a non-NPL FUDS is on or affecting tribal land, the lead
regulator role generally falls to the affected tribe. Project-specific
circumstances may warrant assumption of the lead regulator role by EPA.
In such cases, specific roles and responsibilities of the agencies
involved should be negotiated between the state or tribe and EPA and
documented and communicated to all parties.
When a FUDS is either proposed for inclusion or listed on the NPL, EPA
is the lead regulator. If arrangements exist involving lead regulatory
agency issues at the time of proposal for inclusion on the NPL, those
arrangements should be considered when determining lead regulatory
agency following NPL listing.
[End of section]
Appendix IV: Comments from the Environmental Protection Agency:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460:
OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE:
Gary L. Jones:
Director, Natural Resources and Environment United States General
Accounting Office (GAO) Washington, D.C. 20548:
Dear Ms. Jones:
Thank you for the opportunity to review and comment on the draft report
entitled, "Environmental Contamination - DOD Has Taken Steps to Improve
Cleanup Coordination at Former Defense Sites but Clearer Guidance is
Needed to Assure Consistency" (GAO-03-146). This letter transmits our
comments on the draft report.
The U.S Environmental Protection Agency (EPA) believes the report has
done an excellent job presenting substantive information related to the
Department of Defense's (DOD's) and the Corps of Engineers (Corps)
efforts to consult with state regulatory agencies and EPA:
when addressing Formerly Used Defense Sites (FUDS). EPA appreciates the
effort made by the GAO in developing an accurate and unbiased appraisal
of the issue. The enclosed document contains EPA's comments that are
intended to clarify statements about EPA's FUDS policy and its role in
the FUDS Improvement Working Group (FIWG).
In addition to providing specific comments, EPA wants to acknowledge
recent efforts by the Corps, states and EPA to improve communication
and coordination. These efforts demonstrate that working together on
FUDS can achieve results and serve as a model for future endeavors.
All comments included in the enclosure are intended to improve the
accuracy of the draft report. If you have any questions about these
comments, please contact Renee P. Wynn, of my staff, at (703) 603-0049.
Sincerely,
Marianne Lamont Horinko,
Assistant Administrator:
Signed by Marianne Lamont Horinko:
Enclosure:
[End of section]
Appendix V: GAO Contacts and Staff Acknowledgments:
Ms. Anu K. Mittal, (202) 512-9846:
Edward Zadjura, (202) 512-9914:
Acknowledgments:
In addition to those named above, Gary L. Jones, Glenn C. Fischer,
James Musial, and Pauline Seretakis made key contributions to this
report. Also contributing to this report were Doreen S. Feldman, Art
James, Nancy Crothers, and Laura Shumway.
FOOTNOTES
[1] The Defense Environmental Restoration Program was established by
section 211 of SARA and is codified at 10 U.S.C. 2701 et. seq. SARA
amended the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA). CERCLA, as amended by SARA, governs the
cleanup of the nation's most severely contaminated federal and
nonfederal hazardous waste sites.
[2] According to DOD, because it recognized the importance of regulator
involvement in the program, in the early 1990s it established the
Defense and State Memorandum of Agreement Program to facilitate
coordination with regulators during the cleanup process. However, this
program does not apply to preliminary assessments of eligibility, the
phase during which the Corps determined that more than 4,000 eligible
properties required no further Corps study or cleanup action.
[3] See 10 U.S.C. 2701 and 2705.
[4] Before fiscal year 2001, the Corps used the term "no further
action."
[5] The FUDS program has a fifth project category, potentially
responsible party, which is used when DOD shares responsibility for a
hazard with another entity. Because this category accounts for only
about 4 percent of all FUDS projects, we did not address it in this
report.
[6] The requirement to consult on response actions does not apply if
the action is an emergency removal taken because of imminent and
substantial endangerment to human health or the environment and
consultation would be impractical.
[7] We used the term "coordination" to describe the Corps' consultation
actions. In addition, the FUDS Manual, which is the official guidance
for the program, uses the term "coordination."
[8] EPA withdrew from the working group in April 2002.
[9] Environmental Contamination: Corps Needs to Reassess Its
Determinations That Many Former Defense Sites Do Not Need Cleanup,
GAO-02-658 (Washington D.C.: Aug. 23, 2002).
[10] Percentages do not total 100 because some respondents answered
"neither agree or disagree" or "don't know."
[11] At the 21 FUDS that are on the National Priorities List, Corps
coordination is addressed by the CERCLA requirement to enter into an
interagency agreement with EPA.
[12] U.S. Environmental Protection Agency, EPA Policy Towards
Privately-Owned Formerly Used Defense Sites (Washington, D.C.: March
2002).
[13] Specifically, a hazardous waste project can go through several
investigation and cleanup phases, including a site inspection to
confirm the presence, extent, and source(s) of the hazards; a study to
evaluate the risk associated with the hazard, determine whether cleanup
is needed, and if so, select alternative cleanup approaches; and
design, construction, operation, and long-term monitoring of the
selected cleanup, if necessary. Ordnance and explosive waste projects
can go through similar phases, with the exception of the "operation" of
the cleanup phase. Containerized waste and unsafe buildings and debris
projects may only go through design and construction of the cleanup.
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