Superfund
Interagency Agreements and Improved Project Management Needed to Achieve Cleanup Progress at Key Defense Installations Gao ID: GAO-10-348 July 15, 2010Before the passage of federal environmental legislation in the 1970s and 1980s, Department of Defense (DOD) activities contaminated millions of acres of soil and water on and near DOD sites. The Environmental Protection Agency (EPA) has certain oversight authorities for cleaning up contaminants on federal property, and has placed 1,620 of the most contaminated sites--including 141 DOD installations--on its National Priorities List (NPL). As of February 2009, after 10 or more years on the NPL, 11 DOD installations had not signed the required interagency agreements (IAG) to guide cleanup with EPA. GAO was asked to examine (1) the status of DOD cleanup of hazardous substances at selected installations that lacked IAGs, and (2) obstacles, if any, to cleanup at these installations. GAO selected and visited three installations, reviewed relevant statutes and agency documents, and interviewed agency officials.
EPA and DOD use different terms and metrics to report cleanup progress; therefore, the status of cleanup at Fort Meade Army Base, McGuire Air Force Base (AFB), and Tyndall AFB is unclear. EPA reports that cleanup at all three installations is in the early investigative phases, while DOD's data suggest that cleanup is further along and, in some cases, in mature stages. EPA and DOD have differing interpretations of cleanup progress because they describe and assess cleanup differently. In particular, while both agencies divide installations into smaller cleanup projects, DOD divides them into units generally smaller than EPA's; therefore, DOD measures its progress in smaller increments. Further, because DOD did not obtain EPA's approval for key cleanup decisions, EPA does not recognize them. Unless key cleanup decisions are justified, documented, and available to the public for review and comment, they are not sufficient under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and once an IAG is in place, some DOD cleanup work may have to be redone. When an agency refuses to enter into an IAG and cleanup progress lags, because of statutory and other limitations, EPA cannot take steps--such as issuing and enforcing orders--to compel CERCLA cleanup as it would for a private party. A variety of obstacles have delayed cleanup progress at these installations. First, DOD's persistent failure to enter IAGs, despite reaching agreement with EPA on the basic terms, has made managing site cleanup and addressing routine matters challenging at these installations. For example, in the absence of IAGs, DOD may fund work at other sites ahead of these NPL sites. Second, DOD failed to disclose some contamination to EPA and the public in a timely fashion, including lead shot on a playground, delaying cleanup and putting human health at risk. Third, the extensive use of performance-based contracts at these installations has created pressure to operate within price caps and fixed deadlines. In some cases, these pressures may have contributed to installations not exploring the full range of cleanup remedies, or relying on nonconstruction remedies, such as allowing contaminated groundwater to attenuate over time rather than being cleaned up. In particular, Tyndall AFB's long-standing lack of full compliance with environmental cleanup requirements, such as notification of hazardous releases and EPA's 2007 administrative order, has been an obstacle to verifiable cleanup of that installation. GAO is recommending, among other things, that EPA and DOD identify options that would provide a uniform method for reporting cleanup progress at the installations and allow for transparency to Congress and the public. EPA and DOD agreed with the recommendations directed at them. GAO is also suggesting that Congress may want to consider giving EPA certain tools to enforce CERCLA at federal facilities without IAGs. DOD disagreed with this suggestion. GAO believes EPA needs additional authority to ensure timely and proper cleanup at such sites.
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: John B. Stephenson Team: Government Accountability Office: Natural Resources and Environment Phone: (202) 512-6225GAO-10-348, Superfund: Interagency Agreements and Improved Project Management Needed to Achieve Cleanup Progress at Key Defense Installations
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
July 2010:
Superfund:
Interagency Agreements and Improved Project Management Needed to
Achieve Cleanup Progress at Key Defense Installations:
GAO-10-348:
GAO Highlights:
Highlights of GAO-10-348, a report to congressional requesters.
Why GAO Did This Study:
Before the passage of federal environmental legislation in the 1970s
and 1980s, Department of Defense (DOD) activities contaminated
millions of acres of soil and water on and near DOD sites. The
Environmental Protection Agency (EPA) has certain oversight
authorities for cleaning up contaminants on federal property, and has
placed 1,620 of the most contaminated sites––including 141 DOD
installations––on its National Priorities List (NPL). As of February
2009, after 10 or more years on the NPL, 11 DOD installations had not
signed the required interagency agreements (IAG) to guide cleanup with
EPA. GAO was asked to examine (1) the status of DOD cleanup of
hazardous substances at selected installations that lacked IAGs, and
(2) obstacles, if any, to cleanup at these installations. GAO selected
and visited three installations, reviewed relevant statutes and agency
documents, and interviewed agency officials.
What GAO Found:
EPA and DOD use different terms and metrics to report cleanup
progress; therefore, the status of cleanup at Fort Meade Army Base,
McGuire Air Force Base (AFB), and Tyndall AFB is unclear. EPA reports
that cleanup at all three installations is in the early investigative
phases, while DOD‘s data suggest that cleanup is further along and, in
some cases, in mature stages. EPA and DOD have differing
interpretations of cleanup progress because they describe and assess
cleanup differently. In particular, while both agencies divide
installations into smaller cleanup projects, DOD divides them into
units generally smaller than EPA‘s; therefore, DOD measures its
progress in smaller increments. Further, because DOD did not obtain EPA‘
s approval for key cleanup decisions, EPA does not recognize them.
Unless key cleanup decisions are justified, documented, and available
to the public for review and comment, they are not sufficient under
the Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), and once an IAG is in place, some DOD cleanup work may
have to be redone. When an agency refuses to enter into an IAG and
cleanup progress lags, because of statutory and other limitations, EPA
cannot take steps––such as issuing and enforcing orders––to compel
CERCLA cleanup as it would for a private party.
A variety of obstacles have delayed cleanup progress at these
installations. First, DOD‘s persistent failure to enter IAGs, despite
reaching agreement with EPA on the basic terms, has made managing site
cleanup and addressing routine matters challenging at these
installations. For example, in the absence of IAGs, DOD may fund work
at other sites ahead of these NPL sites. Second, DOD failed to
disclose some contamination to EPA and the public in a timely fashion,
including lead shot on a playground, delaying cleanup and putting
human health at risk. Third, the extensive use of performance-based
contracts at these installations has created pressure to operate
within price caps and fixed deadlines. In some cases, these pressures
may have contributed to installations not exploring the full range of
cleanup remedies, or relying on nonconstruction remedies, such as
allowing contaminated groundwater to attenuate over time rather than
being cleaned up. In particular, Tyndall AFB‘s long-standing lack of
full compliance with environmental cleanup requirements, such as
notification of hazardous releases and EPA‘s 2007 administrative
order, has been an obstacle to verifiable cleanup of that installation.
Figure: Lead Shot on School Playground at Tyndall Air Force Base in
June 2009:
[Refer to PDF for image: photograph]
Source: EPA.
[End of figure]
What GAO Recommends:
GAO is recommending, among other things, that EPA and DOD identify
options that would provide a uniform method for reporting cleanup
progress at the installations and allow for transparency to Congress
and the public. EPA and DOD agreed with the recommendations directed
at them. GAO is also suggesting that Congress may want to consider
giving EPA certain tools to enforce CERCLA at federal facilities
without IAGs. DOD disagreed with this suggestion. GAO believes EPA
needs additional authority to ensure timely and proper cleanup at such
sites.
View [hyperlink, http://www.gao.gov/products/GAO-10-348] or key
components. For more information, contact John Stephenson at (202) 512-
3841 or stephensonj@gao.gov.
[End of section]
Contents:
Letter:
Background:
Because of Differing EPA and DOD Performance Metrics and DOD's Failure
to Obtain EPA Approvals, Status of DOD Cleanup Is Unclear:
A Variety of Obstacles Have Delayed Cleanup Progress:
Conclusions:
Recommendations for Executive Action:
Matter for Congressional Consideration:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Cleanup Progress (according to EPA) at DOD Sites Lacking
IAGs in Early 2009:
Appendix III: Profile of Fort G. Meade Army Installation in
Maryland/EPA Region 3:
Appendix IV: Profile of McGuire Air Force Base in New Jersey/EPA
Region 2:
Appendix V: Profile of Tyndall Air Force Base in Florida/EPA Region 4:
Appendix VI: Comments from the Environmental Protection Agency:
Appendix VII: Comments from the Department of Defense:
Appendix VIII: GAO Contact and Staff Acknowledgments:
Glossary:
Tables:
Table 1: Status of IAGs for 11 DOD NPL Installations Lacking IAGs as
of February 2009:
Table 2: IAG Status and Other Details for 11 DOD Installations on the
NPL that Lacked IAGs as of February 2009:
Figures:
Figure 1: Map of McGuire AFB depicting EPA's and DOD's Designations of
Cleanup Areas:
Figure 2: Environmental Cleanup Process for NPL Sites:
Figure 3: Lead Shot on School Playground at Tyndall Air Force Base in
June 2009:
Abbreviations:
AFB: Air Force Base:
ATSDR: Agency for Toxic Substances Disease Registry:
CERCLA: Comprehensive Environmental Response, Compensation, and
Liability Act:
CERCLIS: Comprehensive Environmental Response, Compensation, and
Liability Information System:
DERP: Defense Environmental Restoration Program:
DOD: Department of Defense:
DOJ: Department of Justice:
E.O. executive order:
EPA: Environmental Protection Agency:
IAG: interagency agreement:
NCP: National Oil and Hazardous Substances Pollution Contingency Plan:
NPL: National Priorities List:
OU: operable unit:
PA/SI: preliminary assessment and site inspection:
PBC: performance-based contract:
PCB: polychlorinated biphenyls:
PCE: tetrachloroethylene:
RCRA: Resource Conservation and Recovery Act:
RI/FS: remedial investigation and feasibility study:
ROD: record of decision:
SARA: Superfund Amendments and Reauthorization Act:
SDWA: Safe Drinking Water Act:
SMP: site management plan:
TCE: trichloroethylene:
VOC: volatile organic compound:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
July 15, 2010:
The Honorable Frank R. Lautenberg:
Chairman:
Subcommittee on Transportation Safety, Infrastructure Security, and
Water Quality:
Committee on Environment and Public Works:
United States Senate:
The Honorable Robert Menendez:
United States Senate:
The Honorable Bill Nelson:
United States Senate:
The Honorable Benjamin L. Cardin:
United States Senate:
Before federal environmental legislation was enacted in the 1970s and
1980s regulating the generation, storage, treatment, and disposal of
hazardous waste, Department of Defense (DOD) activities and industrial
facilities contaminated millions of acres of soil and water on and
near DOD properties in the United States and its territories. DOD
properties released hazardous substances to the environment primarily
through industrial operations to repair and maintain military
equipment, and the manufacturing and testing of weapons at ammunition
plants and proving grounds. From 1986 to 2008, DOD spent $29.8 billion
on environmental cleanup and restoration activities at its properties
in response to such hazardous releases.[Footnote 1] Furthermore, in
its most recent annual report to Congress, DOD expressed its
commitment to full and sustained compliance with federal, state, and
local environmental laws and regulations that protect human health and
preserve natural resources.
To address the cleanup of hazardous releases at both private and
government facilities nationwide, in 1980, Congress passed the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), better known as "Superfund."[Footnote 2] Under CERCLA, as
amended, the Environmental Protection Agency (EPA) has certain
oversight authorities for cleaning up releases of hazardous
substances, pollutants, or contaminants on federal properties. As of
April 2010, 1,620 Superfund sites were on EPA's National Priorities
List (NPL), which identifies some of the most seriously contaminated
sites in the nation, of which 141 or almost 9 percent were DOD
properties.[Footnote 3] As of February 2009, 11 of these properties
did not have an interagency agreement (IAG)[Footnote 4] despite
CERCLA's requirement that federal agencies enter into IAGs with EPA
within a certain time frame to clean up sites on the NPL.[Footnote 5]
DOD and EPA signed IAGs for 7 of these installations between March
2009 and January 2010, but as of June 2010, DOD had not signed IAGs
for 4 of these properties, even though they are required under CERCLA.
You asked us to review activities at selected DOD installations on the
NPL that lacked IAGs as of February 2009. Accordingly, this report
examines (1) the status of DOD cleanup of hazardous substances at
selected DOD installations that lacked IAGs and (2) obstacles, if any,
to progress in cleanup at these selected installations and the causes
of such obstacles.
To select installations for review,[Footnote 6] from the 11 without
IAGs at the start of our review, we focused on the 4 that received EPA
administrative cleanup orders--Air Force Plant 44 in Arizona, Fort
Meade Army Base in Maryland,[Footnote 7] McGuire Air Force Base (AFB)
in New Jersey, and Tyndall AFB in Florida.[Footnote 8] EPA and DOD
agreed that one of these--Air Force Plant 44[Footnote 9]--was near
completion of the ordered cleanup and we therefore eliminated it from
our selection of installations. To determine the status of DOD cleanup
of hazardous substances at the three remaining installations, we
reviewed numerous technical documents and interviewed officials from
DOD, EPA, the Agency for Toxic Substances and Disease Registry
(ATSDR)--created by CERCLA to help determine the public health
consequences of the worst hazardous waste sites--and DOD contractors.
To identify any obstacles to progress in cleanup at the selected
installations and the causes of such obstacles, we reviewed federal
contracting guidelines and technical documents developed by DOD
installations and EPA regions, and interviewed officials from DOD,
EPA, ATSDR, the Fish and Wildlife Service, and the Architect of the
Capitol as well as state officials from Florida, Maryland, and New
Jersey. We also reviewed relevant laws, regulations, and policies.
Appendix I includes additional information about our selection
criteria, scope, and methodology. We conducted this performance audit
from January 2009 to July 2010 in accordance with generally accepted
government auditing standards. Those standards require that we plan
and perform the audit to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based on
our audit objectives. We believe that the evidence obtained provides a
reasonable basis for our findings and conclusions based on our audit
objectives.
Background:
This section discusses key aspects of relevant laws and history
related to the implementation of Superfund and the reporting and
cleanup of hazardous substances and hazardous waste at DOD
installations.
Relevant Laws and Executive Orders:
Resource Conservation and Recovery Act:
In 1976, Congress passed the Resource Conservation and Recovery Act
(RCRA), establishing requirements, as well as giving EPA regulatory
authority, for the generation, transportation, treatment, storage, and
disposal of hazardous waste.[Footnote 10] Section 7003 authorizes EPA
to issue administrative cleanup orders where an imminent and
substantial endangerment to health and the environment may exist;
[Footnote 11] if a nonfederal recipient fails to comply, EPA can
enforce the order, including fines, by requesting that the Department
of Justice (DOJ) file suit in federal court. RCRA also authorizes
citizen and state suits, including those to enforce an administrative
cleanup order.
Comprehensive Environmental Response, Compensation, and Liability Act:
The passage of CERCLA in 1980 gave the federal government the
authority to respond to actual and threatened releases of hazardous
substances, pollutants, and contaminants that may endanger public
health and the environment. EPA's program implementing CERCLA is
better known as "Superfund" because Congress established a trust fund
that is used to pay for, among other things, remedial actions at
nonfederal installations on the NPL. Federal agencies cannot use the
Superfund trust fund to finance their cleanups and must, instead, use
their own or other appropriations.
CERCLA does not establish regulatory standards for the cleanup of
specific substances, but requires that remedial actions--which are
long-term cleanups--comply with "applicable or relevant and
appropriate requirements."[Footnote 12] These requirements may include
a host of federal and state standards that generally regulate exposure
to contaminants. CERCLA also establishes authorities for removals,
including expeditious response actions by EPA and DOD to reduce
dangers to human health, welfare, or the environment such as an
emergency response required within hours or days to address acute
situations involving actual or potential threat to human health, the
environment, or real or personal property due to the release or
threatened release of a hazardous substance.[Footnote 13] Generally,
removals are quicker, short-term responses to reduce risks, while
remedial actions are the culmination of the full CERCLA process to
provide long-term protection of human health and the environment.
The National Oil and Hazardous Substances Pollution Contingency Plan
(NCP) outlines procedures and standards for implementing the Superfund
program. The NCP designates DOD as the lead agency for cleanup at
defense installations. CERCLA requires DOD to comply with the law and
the NCP to the same extent as a nonfederal entity; thus, the same
process and standards for cleanup apply. Where there has been a
release of a hazardous substance where DOD is the lead agency, CERCLA
section 103 requires DOD to report such releases above reportable
quantities as soon as it has knowledge of such release to the National
Response Center,[Footnote 14] and section 111(g) requires DOD to
notify potentially injured parties of such release, and promulgate
regulations pertaining to notification. In addition, DOD must carry
out its responsibilities consistent with EPA's oversight role under
section 120 of CERCLA, including EPA's final authority to select a
remedial action at NPL installations if it disagrees with DOD's
proposed remedy.
CERCLA section 120 establishes specific requirements governing IAGs
between EPA and federal agencies. The contents of the IAGs must
include at least the following three items: (1) a review of the
alternative remedies considered and the selection of a remedial action
by the agency head and EPA (or, if unable to reach agreement,
selection by EPA); (2) the schedule for completing the remedial
action; and (3) arrangements for long-term operations and maintenance
at the installation.[Footnote 15] Federal agencies and EPA are
required to enter into an IAG within 180 days of the completion of
EPA's review of the remedial investigation and feasibility study
(RI/FS) at an installation. An RI/FS is performed at the site,
typically after a site is listed on the NPL. The RI serves as the
mechanism for collecting data to characterize site conditions;
determine the nature of the waste; assess risk to human health and the
environment; and conduct treatability testing to evaluate the
potential performance and cost of the treatment technologies that are
being considered. The FS is the mechanism for the development,
screening, and detailed evaluation of alternative remedial actions.
Because such study culminates in a record of decision (ROD), EPA has
interpreted this requirement as triggered by the first ROD at an NPL
site with multiple cleanup activities. EPA and federal agencies often
enter IAGs earlier so the agreement may guide the study process as
well.
IAGs between EPA and DOD[Footnote 16] include a site management plan,
which is an annually amended document providing schedules and
prioritization for cleanup of the installation, addressing all
response activities and associated documentation, as well as
milestones. IAGs also specify requirements for documents throughout
the cleanup process, addressing DOD's submission, EPA's review, and
DOD's response to EPA's comments. For "primary" documents, such as the
site management plan, RI/FS work plans and reports, RODs, final
remedial action designs, and remedial action work plans, the IAG
establishes a review and comment process intended to result in no
further comment--essentially agency agreement on the document; if
either agency disagrees, it can submit the issue to dispute resolution
procedures. Hence, for purposes of this report we consider that formal
EPA approval is effectively required for these key steps. IAGs do not
subject removals to formal EPA approval, although submission of
certain documents is required (unless shown impracticable) before an
action is taken to allow EPA to comment.[Footnote 17] Removals are
intended to prevent, minimize, or mitigate a release or threat of
release, and are not subject to required cleanup goals, whereas a
remedial action is intended to implement remedies that eliminate,
reduce, or control risks to human health and the environment and
generally involve establishing numerical cleanup goals. Removals do
not relieve DOD of completing additional steps--such as RI/FS
completion--or the full cleanup process for the site with formal EPA
approval, if required to ensure long-term protection of human health
and the environment.[Footnote 18] In some cases, however, a removal
action does fully address the threat posed by the release, and
additional cleanup is not necessary.
Superfund Amendments and Reauthorization Act:
In 1986, the Superfund Amendments and Reauthorization Act (SARA) added
provisions to CERCLA--including section 120--specifically governing
the cleanup of federal facilities. Under section 120 of CERCLA, as
amended, a preliminary site assessment is to be completed by the
responsible agency for each property where the agency has reported
generation, storage, treatment, or disposal of hazardous waste. This
preliminary assessment is reviewed by EPA, together with additional
information, to determine whether the site poses a threat to human
health and the environment or requires further investigation or
assessment for potential proposal to the NPL.
SARA's legislative history explains that, while the law already
established that federal agencies are subject to and must comply with
CERCLA, the addition of section 120 provides the public, states, and
EPA increased involvement and a greater role in assuring the problems
of hazardous substance releases at federal facilities are dealt with
by expeditious and appropriate response actions.[Footnote 19] The
relevant congressional conference committee report establishes that
IAGs provide a mechanism for (1) EPA to independently evaluate the
other federal agency's selected cleanup remedy, and (2) states and
citizens to enforce federal agency cleanup obligations, memorialized
in IAGs, in court.[Footnote 20] Specifically, the report states that
while EPA and the other federal agency share remedy selection
responsibilities, EPA has the additional responsibility to make an
independent determination that the selected remedial action is
consistent with the NCP and is the most appropriate remedial action
for the affected facility. The report also observes that IAGs are
enforceable documents just as administrative cleanup orders are under
RCRA and, as such, are subject to SARA's citizen suit and penalties
provisions. Thus, IAGs can provide for the assessment of penalties
against federal agencies for violating terms of the agreements.
However, at installations without IAGs, EPA effectively has only a
limited number of enforcement tools to use in compelling a
recalcitrant agency to comply with CERCLA; similarly, states and
citizens also lack a key mechanism to enforce CERCLA.[Footnote 21]
Defense Environmental Restoration Program:
Section 211 of SARA established DOD's Defense Environmental
Restoration Program (DERP), providing legal authority and
responsibility to DOD for cleanup activities at DOD installations and
properties, including former defense sites.[Footnote 22] The statute
requires DOD to carry out the program subject to and consistent with
CERCLA section 120. Among other things, the DERP provisions require
the Secretary of Defense to take necessary actions to ensure that EPA
and state authorities receive prompt notice of the discovery of a
release or threatened release, the associated extent of the threat to
public health and the environment, proposals to respond to such
release, and initiation of any response.[Footnote 23]
Executive Order 12580:
Executive Order (E.O.) 12580, Superfund Implementation,[Footnote 24]
was issued in 1987 to respond to SARA. E.O. 12580 delegates to EPA
certain regulatory authorities that the statute assigns to the
President, while delegating to DOD authority for removal and remedial
actions at its facilities, subject to section 120 and other provisions
of CERCLA. The E.O. also constrains EPA's authorities under CERCLA
section 106(a) to issue cleanup orders and under section 104(e)(5)(A)
to issue compliance orders for access, entry, and inspections by the
requirement that the Attorney General, DOJ concur in such actions. In
practice, EPA told us it has requested DOJ concurrence approximately
15 times on unilateral section 106 orders to federal agencies and, to
date, DOJ has concurred only once, when the recipient federal agency
did not object.
Federal Law and Policy Affecting EPA Judicial Actions Against Other
Federal Agencies:
CERCLA authorizes the filing of civil actions to assess and collect
penalties for certain violations--such as failing to provide notice of
a release--and section 120 makes each federal department subject to
the full procedures and substance of CERCLA. RCRA similarly authorizes
the filing of civil actions to enforce--including by assessing fines--
orders issued under its imminent and substantial endangerment
provision. Nonetheless, as a practical matter, court action is not an
available enforcement tool to EPA against another federal agency.
Federal law generally reserves the conduct of litigation in which the
United States is a party exclusively to DOJ.[Footnote 25] EPA
officials told us the agency has not sought DOJ assistance for such
actions because it is DOJ's policy that one department of the
executive branch will not sue another in court.[Footnote 26]
Federal Facility Compliance Act:
The Federal Facility Compliance Act of 1992,[Footnote 27] which
amended RCRA, authorizes EPA to initiate RCRA administrative
enforcement actions against a federal agency for the cleanup of
contaminated properties, among other things, as well as subjects
federal agencies to RCRA's existing fines and penalties provisions.
The act directs EPA to initiate administrative enforcement actions
against federal agencies as it would against a private party.
History of Disputes Related to IAGs and Administrative Orders:
In March 2009, we issued a report that suggested Congress may wish to
consider expanding EPA's enforcement authority to give the agency more
leverage to better satisfy statutory responsibilities with agencies
that are unwilling to enter into IAGs where required under CERCLA.
[Footnote 28] The report was issued following DOD's February 2009
agreement with EPA that appeared to resolve a long dispute by
determining that the 11 IAGs outstanding at the time would be
completed using an IAG between the Army and EPA for Fort Eustis,
Virginia, as a template. In addition, EPA agreed to rescind each
administrative cleanup order upon the effective date of an
installation's IAG.
Soon after this approach for resolving outstanding disputes was agreed
to by EPA and DOD leadership, some progress was made in signing IAGs.
For example, the Army signed an IAG for Fort Meade Army Base in June
2009. Likewise, the Air Force signed IAGs for McGuire AFB, Brandywine
Defense Reutilization and Marketing Office Salvage Yard, Langley AFB,
and Hanscom Field AFB, by November 2009.
In the absence of the required IAGs, DOD, at some installations, took
a few actions toward cleanup and, at others, proceeded with some
cleanup activities--including investigations, removals, and remedial
actions--without EPA approvals, according to EPA officials.[Footnote
29] To address continued challenges, EPA issued administrative cleanup
orders at four DOD installations, either under EPA's RCRA authority,
[Footnote 30] or under EPA's Safe Drinking Water Act authority.
[Footnote 31] According to EPA officials, the agency took the unusual
step of issuing the orders because it needed them to fulfill EPA's
cleanup oversight responsibilities at the sites in the absence of
IAGs. These administrative cleanup orders were issued as final in 2007
and 2008. In response, DOD challenged the validity of the
administrative cleanup orders and asked DOJ to resolve certain
questions in dispute between DOD and EPA over the terms of the IAGs
and the circumstances under which EPA may issue administrative cleanup
orders at such NPL installations. In December 2008, DOJ issued a
letter upholding EPA's authority to issue administrative cleanup
orders at DOD NPL installations in general, without discussing whether
the facts supported these specific orders. DOJ's letter also supported
including provisions in IAGs, such as the types of provisions that EPA
regularly includes in its cleanup agreements with private parties, in
addition to those specifically in CERCLA, while stating the opinion
that DOD does not necessarily have to agree to all extra-statutory
terms.[Footnote 32]
After DOJ's letter, the Fort Meade Army Base recognized EPA's 2007
administrative cleanup order under RCRA and gave formal notice to EPA
that the Army would comply with the order. However, at about the same
time, the state of Maryland filed a lawsuit in December of 2008
against the Army "to force the Army to investigate fully and remediate
soil and groundwater contamination resulting from years of
mismanagement of hazardous substances, solid waste, and hazardous
waste," and to enforce EPA's 2007 administrative cleanup order. In
November 2009, the state voluntarily withdrew the suit after the Army,
EPA, and two other federal agencies signed an IAG for Fort Meade. By
the terms of the IAG, EPA withdrew the administrative cleanup order in
October 2009.
In contrast, Air Force officials at Tyndall AFB and McGuire AFB did
not give formal notice of intent to comply with EPA's administrative
cleanup orders and never complied with the terms of the orders. For
example, the Air Force stated in a May 2008 letter to EPA regarding
the Tyndall order, "the Air Force continues to challenge this Order as
lacking legal and factual basis—I have directed my staff and Tyndall
AFB to continue to conduct cleanup actions under [CERCLA] using our
lead agency functions, authorities and responsibilities delegated to
DOD."[Footnote 33] The Air Force continues to assert that the IAG
proposed by EPA does not match the agreed-to template, whereas EPA
asserts the IAG does follow the template; both EPA and DOD officials
told us the dispute over the IAG relates to the appendices listing the
areas to be investigated and, if required, cleaned up. McGuire AFB's
IAG was since signed and became effective December 2009, and EPA's
2008 administrative cleanup order was withdrawn. While Tyndall remains
without an IAG and its administrative cleanup order is still in
effect, the Air Force counsel has asserted they are continuing
"substantive compliance" with the administrative cleanup order using
the CERCLA process--although EPA's order specifically requires Tyndall
to use the RCRA process.[Footnote 34] EPA officials stated that the
agency cannot on its own impose penalties or otherwise compel
compliance with the administrative cleanup order at Tyndall; to do so
would require concurrence from DOJ to proceed with court action
against another federal agency, which is contrary to federal policy.
A summary of the current status of IAGs is provided in Table 1. In
summary, seven IAGs have been signed and have become effective. There
are also four installations that do not yet have signed IAGs as of
June 2010. These installations have continued to lack the IAGs
required by CERCLA for an extended time frame, and include three Air
Force installations and one Army base: Air Force Plant 44 in Arizona,
Andrews AFB in Maryland, Tyndall AFB in Florida, and Redstone Arsenal
in Alabama. For summary information on the source of contamination and
status of cleanup at these 11 NPL installations, see appendix II.
Table 1: Status of IAGs for 11 DOD NPL Installations Lacking IAGs as
of February 2009:
State: Alabama;
Installation: Redstone Arsenal (Army);
Status of IAG: Under negotiation;
Date added to the NPL: 05/31/94;
Date IAG signed: [A];
Effective date of IAG: [B].
State: Arizona;
Installation: Air Force Plant 44 Air Force Base (Tucson Int'l Airport
Area);
Status of IAG: Under negotiation;
Date added to the NPL: 09/08/83;
Date IAG signed: [C];
Effective date of IAG: [B].
State: Florida;
Installation: Naval Air Station Whiting Field;
Status of IAG: Signed and in effect;
Date added to the NPL: 05/31/94;
Date IAG signed: 03/09/09;
Effective date of IAG: 07/10/09.
State: Florida;
Installation: Tyndall Air Force Base;
Status of IAG: Under negotiation;
Date added to the NPL: 04/01/97;
Date IAG signed: [C];
Effective date of IAG: [B].
State: Hawaii;
Installation: Naval Computer Telecommunication Area Administrative
Master Station;
Status of IAG: Signed and in effect;
Date added to the NPL: 05/31/94;
Date IAG signed: 03/24/09;
Effective date of IAG: 07/28/09.
State: Massachusetts;
Installation: Hanscom Field (Air Force);
Status of IAG: Signed and in effect;
Date added to the NPL: 05/31/94;
Date IAG signed: 09/18/09;
Effective date of IAG: 12/02/09.
State: Maryland;
Installation: Fort Meade (Army);
Status of IAG: Signed and in effect;
Date added to the NPL: 07/28/98;
Date IAG signed: 06/19/09;
Effective date of IAG: 10/06/09.
State: Maryland;
Installation: Andrews Air Force Base;
Status of IAG: Under negotiation;
Date added to the NPL: 05/10/99;
Date IAG signed: [A];
Effective date of IAG: [B].
State: Maryland;
Installation: Brandywine Defense Reutilization and Marketing Office
Salvage Yard (Air Force);
Status of IAG: Signed and in effect;
Date added to the NPL: 05/10/99;
Date IAG signed: 11/25/09;
Effective date of IAG: 3/30/10.
State: New Jersey;
Installation: McGuire Air Force Base;
Status of IAG: Signed and in effect;
Date added to the NPL: 10/22/99;
Date IAG signed: 09/15/09;
Effective date of IAG: 12/01/09.
State: Virginia;
Installation: Langley Air Force Base;
Status of IAG: Signed and in effect;
Date added to the NPL: 05/31/94;
Date IAG signed: 09/30/09;
Effective date of IAG: 12/21/09.
Source: GAO analysis of EPA data.
[A] Signed by EPA; awaiting DOD signature.
[B] Not in effect.
[C] Not signed.
Notes:
GAO found in a prior report that as of February 2009, these
installations lacked IAGs. Since February 2009, EPA has added another
DOD property, Fort Detrick Area B Ground Water in Maryland, to the
NPL; see 74 Fed. Reg. 16126 (2009). See GAO, Superfund: Greater EPA
Enforcement and Reporting Are Needed to Enhance Cleanup at DOD Sites,
GAO-09-278 (Washington, D.C.: Mar. 13, 2009).
CERCLA § 120 provides that within 6 months of a federal property's
listing on the NPL, the lead agency shall commence an RI/FS. 42 U.S.C.
§ 9620(e)(1) (2010). Then, within 180 days following EPA's review of
the RI/FS report, the head of the lead department "shall enter into an
interagency agreement with the Administrator for the expeditious
completion by such department—of all necessary remedial action at such
facility." 42 U.S.C. § 9620(e)(2) (2010). As noted previously, since
the RI/FS culminates in a ROD, EPA has interpreted the IAG trigger as
the first signed ROD at a federal property, but seeks IAGs as early as
practicable, so as to guide all steps in the cleanup process.
[End of table]
Because of Differing EPA and DOD Performance Metrics and DOD's Failure
to Obtain EPA Approvals, Status of DOD Cleanup Is Unclear:
Because EPA and DOD use different terminology and metrics to report
investigative and remedial work at defense installations, determining
the status of cleanup at Fort Meade, McGuire AFB, and Tyndall AFB is
challenging. EPA's data suggest that DOD's progress at these
installations was limited primarily to the early study or
investigative phase, whereas DOD's data suggest that some work in the
later remedial action or cleanup phase has taken place at these
installations. As DOD did not obtain EPA's concurrence with some of
the cleanup actions it took at these installations, it may need to
conduct additional work even on reported completed actions as a result
of EPA requirements.
Cleanup Work Has Begun, but EPA's and DOD's Differing Performance
Metrics and Reporting Practices Result in Differing Interpretations of
Progress:
Twenty or more years after contamination was first reported at Fort
Meade, McGuire AFB, and Tyndall AFB, EPA reports that environmental
cleanup generally remains in the early, investigative phases of the
CERCLA process, with little progress in achieving long-term
remediation of contaminated sites at these installations. While DOD's
data suggest that some remedial action work has taken place, EPA and
DOD have differing interpretations of the level of cleanup achieved at
these installations, in part because the agencies use different
terminology and performance metrics to assess cleanup. EPA's
terminology and metrics are based on the Superfund program, including
some that are unique to federal facilities, while DOD's terminology
and metrics are based on the DERP program, which DOD is directed to
conduct in accordance with CERCLA. Specifically:
* EPA divides installations into numbered "operable units" (OU), which
may represent the type of action to be taken, such as the removal of
drums and tanks from the surface of an installation; the geographic
boundaries of the contamination; or the medium that is contaminated,
such as groundwater.
* DOD divides installations into smaller geographic areas of
contamination called "sites." These sites are typically scoped
narrowly to allow for targeting work on actions that can be
accomplished efficiently--for example, a building or waste disposal
area where a potential or actual release of hazardous substances,
pollutants, or contaminants may have occurred may be considered a
"site," while adjacent buildings with similar operations are
considered as separate sites. DOD's sites are sometimes smaller than
EPA's OUs; therefore there may be multiple DOD sites in one EPA OU.
The differing nomenclature can make it difficult to interpret and
compare the information DOD reports annually to Congress with what EPA
lists in its Comprehensive Environmental Response, Compensation, and
Liability Information System (CERCLIS) database on the status of
environmental cleanup at NPL sites.[Footnote 35] For example, as seen
in figure 1, EPA reports the progress of cleanup at McGuire AFB by
tracking advancements achieved at the installation's 8 EPA OUs, while
DOD reports progress according to advancements achieved at 36 DOD
sites. EPA, as the regulator under CERCLA, must track progress made
under the statute, and EPA officials said that units in program
regulations must have precedence over DOD's internal system of
measuring progress.
Figure 1: Map of McGuire AFB depicting EPA's and DOD's Designations of
Cleanup Areas:
[Refer to PDF for image: illustrated map]
EPA OU1:
* Landfill No. 3; DOD LF-04;
* Defense Reutilization and Marketing Office; DOD ST-07;
* Landfill No. 2; DOD LF-03.
EPA OU2:
* Building 3300 Series and Building 3362; DOD SS-39;
* Building 2300 Series and 3200 Series; DOD SS-36;
* Building 2101; DOD SS-42;
* Building 3001; DOD SS-38;
* Building 2415; DOD SS-37;
* Building 1708 and 1800 Series; DOD SS-34;
* Landfill No. 1; DOD LF-23;
* Buildings 1940, 1942, and 1943; DOD SS-41;
* Buildings 1908, 1925, 1929, 1931, 1932, and 1937; DOD SS-35.
EPA OU3:
* Landfill No. 5; DOD LF-19;
* Landfill No. 4; DOD LF-02;
* Waste Water Treatment Plant; Sludge Disposal Area; DOD WP-21;
* Landfill No. 4; DOD LF-20.
EPA OU4:
* Fire Training Area No. 3; DOD FT-13;
* Bulk Fuel Storage Area; DOD ST-09.
EPA OU5:
* Former Building 3205, 3207, and 3208; Entomology Shops; DOD SS-25;
* Building 2227; DOD SS-24;
* Former Golf Course Pesticide Mixing Shop; DOD SS-26.
EPA OU6:
* Buildings 1750 and 1751; DOD SS-33;
* Buildings 2251 and Hydrant System South of Buildings 2251 and 2253;
DOD SS-30;
* Aircraft Apron Fuel Leak; DOD SS-22;
* Hydrant System South of Building 1706; DOD SS-31;
* Underground Surface Water Pipes, Former Stream Beds, and Hydrant
Line Crossings; DOD SS-32.
EPA OU7:
* Civil Engineering Compound; DOD OT-10;
* Former Roads and Grounds Pesticide Mixing Shop; DOD SS-27;
* Pesticide Wash Area; DOD OT-06;
* Building 3401; DOD SS-40.
EPA OU8:
* Fire Training Area No. 1; DOD FT-08;
* Suspected Fire Training Area No. 4; DOD AT-28;
* NDI Shop Drain Field; DOD OT-14;
* Fire Training Area No. 2; DOD FT-11;
* Suspected Fire Training Area No. 5; DOD AT-29.
No EPA OU:
* PCB Spill Area; DOD SS-18.
Sources: EPA, DOD, and GAO.
Notes:
DOD Site Identification Codes: AT - All Training; FT - Fire Training;
LF - Landfill; OT - Other; SS - Spill Site; ST - Storage; WP - Waste
Pits.
EPA and DOD assign separate designations to the contaminated areas
being cleaned up under CERCLA at DOD installations on the NPL. As seen
in figure 1, EPA assigns names and consecutive numbers to the
contaminated areas, which it refers to as "operable units" (OU). DOD
delineates the same contaminated areas into smaller parts that they
refer to as "sites." These sites are given both a title and a number
by DOD. One EPA OU is often composed of several DOD sites. Figure 1
demonstrates the overlap and confusion caused by the various terms
used to describe the same contaminated areas.
[End of figure]
According to EPA data, most of the OUs at Fort Meade, McGuire AFB, and
Tyndall AFB are in the RI/FS phase of environmental cleanup, which as
seen in figure 2 occurs early in the CERCLA cleanup process. While the
RI/FS phase historically has an average duration of 5.2 years for EPA
OUs at federal facility sites on the NPL, many EPA OUs at these three
bases have already been in the RI/FS phase for twice that long and are
not yet complete. In fact only 3 of a total 37 OUs at these three
installations have completed the RI/FS phase of the CERCLA process;
those 3 EPA OUs are located at Fort Meade, and none of the OUs at
McGuire AFB or Tyndall AFB have completed the RI/FS phase according to
EPA.
Figure 2: Environmental Cleanup Process for NPL Sites:
[Refer to PDF for image: illustration]
Milestone: NPL Listing;
Phase: Site Study;
* Remedial Investigation;
* Feasibility Study.
Milestone: Record of Decision;
Phase: Remedial Action;
* Remedial design;
* Remedial action.
Milestone: Construction Complete;
Phase: Operations and Maintenance.
Milestone: Deletion from NPL.
Source: GAO analysis based upon EPA data.
Note: This figure shows the general progression of steps in the NCP
process under CERCLA that occur during the environmental cleanup of
DOD and other sites on the NPL.
[End of figure]
DOD, on the other hand, reports that cleanup is further along at all
three of these installations. For example, officials at Fort Meade
said that environmental cleanup at their installation is at a very
mature stage. In a 2008 report to Congress,[Footnote 36] DOD reported
that Fort Meade had achieved response complete at 61 percent of its 54
sites.[Footnote 37] The achievement of "response complete," a DOD
term, occurs either late in the CERCLA process after the remedy
selected in the RI/FS phase is implemented, or at any time when DOD
deems cleanup goals have been met and no further action is required at
the site. As we previously reported,[Footnote 38] we are concerned
about the lack of clarity in DOD's use of this term to describe sites
that have been administratively closed, with no physical cleanup.
In addition, EPA and DOD report dissimilar pictures of cleanup
progress because each agency reports cleanup progress in a different
way. For example, DOD reports on removals, which CERCLA defines as
short-term and emergency actions to reduce risk, and for which EPA's
formal approval is not required unless specified in an enforceable
agreement. These actions are not necessarily designed to provide long-
term protectiveness of human health and the environment, and sites
where a removal has been conducted are still subject to the full
CERCLA process, until no further action is appropriate. EPA tracks
removals through its CERCLIS database, which also shows the remaining
steps in the full CERCLA process; a removal may be the first response
action taken, although one can occur at any time during the process.
Furthermore, EPA tracks approved cleanup actions under CERCLA that
have been completed or are under way for an entire EPA OU, and records
these cleanup actions by EPA OU in the CERCLIS database, where key
information is made available to the public on EPA's Web site.
[Footnote 39] Also, EPA's current reporting system does not show
cleanup progress unless the action has been achieved at all DOD sites
within that OU. In contrast, DOD tracks cleanup by site through
various cleanup phases as defined in the DERP, which generally aligns
with CERCLA but includes additional milestones, and then reports the
number of sites in each cleanup phase in its annual report to
Congress.[Footnote 40] For example, Tyndall AFB includes 12 EPA OUs
with 12 DOD sites, with an additional 39 other sites that are not
contained within any EPA OU. These additional sites are still in
stages of preliminary investigation under CERCLA, according to EPA
officials; DOD officials said that a number of these are regulated
completely as petroleum sites under a separate program that is
administered by the state of Florida, but EPA officials said they want
to evaluate all of them under CERCLA, to ensure that any non-petroleum
contamination that may exist is accounted for and cleaned up under
CERCLA. According to EPA officials, Tyndall AFB has achieved no
completed cleanup actions at the base, and it recognizes only one
RI/FS action as ongoing. In contrast, DOD reported in fiscal year 2008
that Tyndall staff had completed 36 of 51 study actions for sites at
Tyndall AFB, amounting to 71 percent of the study phase complete at
the base.[Footnote 41] The fact that DOD measures progress in smaller
increments can lead to differing interpretations of cleanup. As we
said earlier, DOD counts as progress the completion of each
contaminated DOD site located within an EPA OU, although EPA does not
count progress until action is taken at all DOD sites in that OU.
[Footnote 42]
In June 2009, EPA and DOD formed a working group to review and
harmonize both agencies' environmental cleanup goals and metrics, with
the goal of better communication between the agencies regarding
cleanup progress at DOD installations on the NPL. DOD officials said
they hope that the working group will minimize the inconsistencies
between DOD's and EPA's goals and metrics. EPA officials said they
believe the recommendations of the working group will ultimately
result in fewer misunderstandings and surprises between parties that
can stall cleanup actions in the future. The proposed timeline for the
working group suggests the drafting of proposed recommendations in
June 2011.
Status of Cleanup at These Installations Is Unclear Because DOD Did
Not Obtain EPA Concurrence with Some Cleanup Actions and May Need to
Do Additional Work:
EPA and DOD also report very different cleanup progress at defense
installations because some of DOD's reported claims of completed
cleanup phases were never approved by EPA, and therefore EPA does not
recognize them. In addition, where DOD has already taken actions, EPA
has in some cases found that DOD's supporting documentation in the
record is insufficient for EPA to approve the cleanup actions that DOD
has already taken. Specifically at Tyndall, after a change in
personnel at EPA, the new project manager reviewed the files and found
the documentation was insufficient to support many of the previous
decisions made at the base. EPA officials told us that once IAGs are
in place at these installations, any unilateral cleanup actions
previously taken are likely to be revisited and EPA may require work
to be redone.
According to EPA officials, DOD and EPA have long agreed that, because
EPA has ultimate authority under CERCLA for remedies at DOD NPL
installations, EPA approval of key steps toward remedy selection is
required. In practice, according to EPA officials, it is difficult for
a federal facility to obtain EPA concurrence on its cleanup decisions
in the absence of a signed IAG for several reasons.[Footnote 43]
First, from a project management perspective, EPA lacks assurance that
it has had adequate involvement in key steps in the process. Second,
from a compliance standpoint, EPA told us it must incorporate, among
other things, an enforceable schedule and arrangements for long-term
management of a remedy into a ROD, in order to approve the selected
remedy at a federal facility without an IAG.[Footnote 44]
At least one installation has gained EPA's concurrence with cleanup
actions without an IAG through effective interagency cooperation.
However, two of the three DOD installations we examined for this
report--Tyndall AFB and Fort Meade--moved forward with cleanup
actions, including remedies, without a signed IAG or ROD. For example,
EPA's records for Tyndall AFB show that DOD made decisions at a number
of sites without the required concurrence of EPA.
Despite the lack of IAGs, DOD submitted a variety of documents for EPA
review at each of the three selected installations. However, without
an IAG, there are no agreed-upon time frames for review and comment
and no overall work plan to provide predictable schedules for DOD or
EPA. With an IAG, EPA's typical primary document review times would be
60 days; however, DOD officials told us that EPA reviews sometimes
take longer, with or without an IAG. As a result, DOD officials said
that, in some cases, DOD moved forward without EPA concurrence, while
in other cases DOD may have delayed planned actions. For example, EPA
provided comments on a preliminary assessment of munitions sites at
Tyndall AFB that included concerns about how the munitions at these
sites could affect other nearby hazardous substances sites. However,
EPA took approximately 4 months after receiving the assessment from
DOD to submit the comments. As a result, DOD officials told us they
finalized the preliminary assessment before receiving EPA's comments
because they wanted to close out the contract.[Footnote 45] On the
other hand, without the predictable schedules provided by an IAG, EPA
officials told us they could not predict the flow of documents from
DOD they would have to review. EPA officials told us that DOD at times
submitted few documents for review, while at other times, an
overwhelming number of documents, making it difficult for EPA to
allocate resources for review and comment.[Footnote 46] We could not
verify long-term trends in the volume of document submission and in
document review times because neither EPA nor DOD maintains a
consistent, verifiable, and long-term management system for tracking
documents submitted or reviewed. For example, DOD said that the three
installations have only maintained document tracking systems for the
last 2 to 4 years.
DOD officials told us they received EPA approval of some cleanup
actions in informal meetings--referred to as partnering meetings--but
could not provide documentation. EPA officials noted that these
meetings were never intended to replace the formal process mandated by
CERCLA and that such decisions were not formally documented, as needed
for EPA to approve the proposed remedy selection and as required for
the administrative record. CERCLA requires the lead agency, in this
case DOD, to establish an administrative record upon which DOD bases
the selection of a response action. This record (1) serves as the
basis for judicial review of the adequacy of the response action and
(2) acts as a vehicle for public participation, since it must be made
available for public inspection and comment during appropriate comment
periods.[Footnote 47]
A Variety of Obstacles Have Delayed Cleanup Progress:
Several obstacles have delayed cleanup at the three selected DOD
installations in our review. First, the lack of IAGs has made managing
installation cleanup and addressing routine matters challenging for
both EPA and DOD. DOD contract management issues at some installations
have affected how the work at these installations has been scoped and
conducted and placed effective and efficient use of the public's
resources at risk, further undermining cleanup progress. In addition,
at Fort Meade Army Base, a lack of coordination with EPA and
incomplete record reviews resulted in DOD personnel occupying housing
at risk of contamination until they were evacuated. Further, the Air
Force has failed to disclose some contamination risks at Tyndall AFB
promptly, resulting in delays in taking cleanup action. We also found
particular problems at Tyndall AFB, where long-standing noncompliance
regarding environmental cleanup and notification has contributed to
the lack of cleanup progress. Finally, EPA's ability to address
noncompliance by federal facilities is limited by provisions in law,
executive order, and executive branch policy.
Lack of IAGs Has Made Managing Installation Cleanup and Addressing
Routine Matters Challenging, thus Delaying EPA-approved Cleanup
Progress:
The lack of IAGs has contributed to delays in cleanup progress at the
three installations in our review. Without an IAG, EPA lacks the
mechanisms to ensure that cleanup by an installation proceeds
expeditiously, is properly done, and has public input, as required by
CERCLA. For example, DOD officials said that EPA reviewed the proposed
remedial action and provided written agreement for the Army's decision
to use monitored natural attenuation--relying on natural processes to
reduce the contamination in soil or groundwater without human
intervention--as the remedy for groundwater contamination at the
Ordnance Demolition Area at Fort Meade, which had been historically
used for the demolition of unexploded munitions. However, Fort Meade
did not have EPA's signature on the ROD and did not seek formal public
comment. EPA officials said that additional documentation was needed
to support the use of that remedy and advised Fort Meade that it was
exceeding its authority. The IAG for Fort Meade provided that Fort
Meade withdraw this decision document and submit a new one for EPA's
review, which could result in the Army being required to carry out
additional cleanup actions for that site.
Whereas an IAG would provide for negotiated deadlines designed to
reflect the specific complexities at an installation, DOD's national
cleanup goals may drive installations to take actions without EPA
approval to meet deadlines. In particular, DOD recently set a cleanup
goal for reducing risk or achieving remedy in place or response
complete by 2014 for sites under DOD's Installation Restoration
Program at active installations, including those at NPL-listed
installations. The Air Force set an even more stringent deadline of
2012 for its sites, which Air Force officials have said is a "stretch
goal" imposed to ensure that the 2014 goal is met. These deadlines
were not based on evaluations of field conditions, and therefore do
not necessarily reflect remaining required cleanup actions. However,
DOD's use of these deadlines has acted as an incentive for DOD to
proceed with actions that have not been fully vetted with EPA and the
public, according to EPA officials. For example, EPA officials said
that, under the pressure of the 2012 deadline, McGuire AFB has
proposed monitored natural attenuation, which EPA has not approved, as
a remedy for contaminated groundwater at the installation despite not
having performed required analyses. EPA typically only approves
monitored natural attenuation as a remedy when certain conditions
exist, such as a low potential for contaminant migration and a time
frame comparable to other methods of remediation. EPA said DOD did not
provide evidence of these conditions to EPA, which is necessary for
EPA to concur in the remedy selection, as required by CERCLA. One
consequence of this gap is that the public lacks assurance that human
health and the environment are adequately protected by DOD's remedy.
At installations with IAGs, the Site Management Plans include detailed
schedules and become part of the IAG, thus providing a legal basis for
when DOD must complete the work. Moreover, with IAGs to provide an
enforceable cleanup schedule, DOD must move forward with cleanup or
there will be consequences, such as penalties, for violating the terms
of the agreements. These legal obligations are a key factor in DOD's
sequencing of cleanup activities for funding. DOD officials told us
that, in the early 1990s, the installations that had IAGs were moved
to the top of the list for funding, while other installations were
considered a lower priority. Also, DOD headquarters makes its funding
decisions from budget requests submitted by installations; therefore,
if an installation does not have an IAG and does not submit a request
for funding for a particular contaminated area, DOD does not consider
it in its national funding decisions.
DOD Contract Management Issues Have Undermined Cleanup Progress:
DOD contracting management issues have affected how the cleanup work
at the selected installations was scoped and conducted, placing
effective and efficient use of the public's resources at risk, and
further undermining cleanup progress. Specifically, two of the
installations, Tyndall and Fort Meade, have relied extensively on
performance-based contracts (PBC) to clean up installations. The
third, McGuire, in 2008 awarded a PBC for 21 sites. However, PBCs can
create pressure on contractors to operate within price caps and meet
deadlines, which may conflict with regulatory review times and
encourage DOD to take shortcuts. Both EPA and DOD officials told us
that PBCs may frequently be inappropriate for some Superfund cleanup
work--particularly in the investigative stages--since there can be a
great deal of uncertainty in these phases. For example, initial
sampling during a site investigation may lead to the need for
extensive follow-up sampling that was not anticipated and therefore
not provided for in the contract incentives.
While the federal government has advocated the use of PBCs in recent
years for procurement of most services, federal acquisition
regulations generally requiring the use of PBCs specifically exclude
engineering services from this requirement.[Footnote 48] DOD policy
directs the services to use PBCs whenever possible--establishing the
goal that PBCs be used for 50 percent of service acquisitions--but
acknowledges that not all acquisitions for services can be conducted
using PBCs.[Footnote 49] According to federal guidelines, PBCs are not
generally appropriate for work that involves a great deal of
uncertainty concerning the parameters of the work to be performed. For
example, Air Force guidance establishes the first step in using PBCs
is to screen the particular project for suitability, noting that in
general, a PBC may not be the right approach when the site is poorly
characterized or the project would pose inordinately high risk to
contractors, among other characteristics.[Footnote 50] PBCs are
generally better suited to work that has highly prescribed goals, such
as the provision of food service or janitorial services. The general
intent of PBCs is to allow contractors to determine the best way to
achieve specific goals within a certain time frame for a fixed cost.
When used in appropriate circumstances, PBCs can reduce costs by
allowing contractors flexibility in how they provide the services.
EPA officials cited a number of problems resulting from the use of
PBCs for cleanup at these three installations.[Footnote 51] One
problem cited is that, when PBCs are used, the contractor typically
may not explore the full range of alternatives during the remedial
investigation and feasibility study due to the pressure of PBC price
caps to reduce the costs involved in developing these alternatives. In
addition, EPA officials said, the remedies or proposals put forward by
the PBCs tend to be those that do not require construction, such as
monitored natural attenuation for groundwater contamination, in order
to save money on the contract. For example, EPA officials said that
the sole PBC contractor for 21 DOD-designated sites at McGuire AFB
proposed in its contract a remedy of "no further action" for soil,
sediment, and groundwater for nearly all 21 sites, along with
monitored natural attenuation for groundwater at many of the sites;
these approaches to address contamination at the sites were proposed
prior to completing the remedial investigation, which would include a
human and ecological risk assessment, feasibility study, proposed
plan, public meeting, and ROD. In addition, EPA has specific
guidelines on the selection of monitored natural attenuation as a
remedy.
Other problems that EPA cited with using PBCs for environmental
cleanup work include:
* contractor's inability to carry out cleanup-related work required by
EPA or other stakeholders that was not contained in the original PBC
contract, such as installing monitoring wells, without contract
amendment;
* unrealistic time frames for cleanup work that have not been agreed
to by EPA or other stakeholders and that create an incentive for
rushed work, resulting in possible rework later on;
* poor quality of documents submitted to EPA, including lack of legal
review and routine failure of the installation to perform quality
reviews of contractors' work, which EPA officials said were due to
pressure to meet the fixed price aspect of these contracts, and which
result in significant redrafting by EPA's legal staff; and:
* PBC contractors--rather than DOD officials--acting as project
managers to the point of decision making, rather than supporting DOD,
when critical cleanup decisions require interaction between EPA and
DOD officials.
In responding to a draft of this report, DOD noted that the department
believes it has successfully used PBCs for some environmental
remediation and munitions response activities. According to DOD, the
PBCs include identifiable and measurable costs, schedules, and
outcomes, such as acceptance by DOD and the regulatory agencies. DOD
stated PBCs can benefit DOD by:
* providing flexibility of scope, rather than prescriptive methods;
* allowing DOD to benefit from the expertise and emerging technologies
of the private sector in solving problems during various phases of the
cleanup process;
* ensuring cost control with known outcomes at the completion of the
contract; and:
* encouraging contractors to look for ways to reduce time and cost.
Nonetheless, Tyndall AFB officials told us that after shifting toward
PBCs for cleanup work in 2004, they are now migrating away from them
because there is too much uncertainty in the cleanup work needed at
the base. Conversely, the Army told us that in its view, PBCs are
better suited for complex work because they foster innovation from the
private sector.
Poor Coordination with Regulators and Incomplete Record Reviews
Resulted in DOD Personnel Occupying Base Housing at Risk of Methane
Contamination until Being Evacuated at Fort Meade:
At Fort Meade Army Base, a lack of coordination with EPA and
incomplete record reviews led to the necessity to evacuate military
personnel from housing that was at risk of methane contamination due
to its construction near a dump. A contractor for Fort Meade building
military housing on the base--as part of the Army's new national
privatized housing construction effort--in 2003 discovered an old dump
site in the area of the new housing and near an existing elementary
school. Prior to construction, the Army Corps of Engineers prepared an
environmental baseline survey, but it was later determined that the
Corps apparently did not review key historical maps in the possession
of Fort Meade indicating a former dump and incinerator in the area.
The Corps, in conducting the survey, also apparently failed to use a
relevant EPA report, which provided an interpretation of historical
aerial photographs to identify potential hazards. According to Fort
Meade documentation, once the dump was discovered, the housing
contractor attempted to determine the limits of the dump and continued
with construction, avoiding building directly on top of the dump site.
However, according to EPA officials, Fort Meade did not involve EPA in
these assessments prior to construction after the dump was discovered.
Nonetheless, EPA, which had an on-site manager at the Fort Meade
installation, was aware of the discovery of the dump and did not
assert a role in decisions about where to locate housing. For example,
EPA did not provide any written advice concerning the matter to Fort
Meade. After construction was completed and the housing was occupied,
methane fumes were found in 2004 below the ground in soils adjacent to
the 20 houses that were built nearest the dump site and elementary
school. The Army installed and operated a methane abatement system but
in 2005 determined that methane was reaching the homes, and families
were evacuated. These houses remain empty, and DOD is monitoring both
the houses and the school for methane gas intrusion into indoor air.
Thus far methane gas has not been found at an unacceptable level in
the school. In addition to methane, Fort Meade has documented other
contamination at the dump site, including volatile organic compounds
[Footnote 52] (VOC) in the groundwater, and heavy metals,
polychlorinated biphenyls[Footnote 53] (PCB), and VOCs in soil. Fort
Meade has since prepared a preliminary assessment and site
inspection[Footnote 54](PA/SI) and a draft RI, which EPA has reviewed.
While the Army has a policy requiring that the environmental
conditions of properties be assessed,[Footnote 55] it is unclear
whether local Fort Meade officials were adequately involved in the
preconstruction assessment, which was performed by a contractor to the
Corps under the Army's national housing privatization initiative.
While the Army has acknowledged that the preconstruction assessment
apparently missed evidence pointing to the incinerator and dump, the
Army has not explained the source of the omission--for example whether
lack of adherence to policy or shortcomings in coordination and review
were contributing factors. As such, it is unclear how the Army could
prevent a recurrence of this situation in which review of key
documents available to the Army may have averted construction of
housing near a waste site.
Tyndall AFB's Long-standing Noncompliance Regarding Environmental
Cleanup and Notification Contributed to the Lack of Cleanup Progress:
Of the three installations we selected to review, only Tyndall AFB
remains without an IAG. Furthermore, Tyndall has delayed cleanup
progress by generally demonstrating a pattern of not complying with
federal laws and regulations concerning environmental cleanup. In
addition, Tyndall has on multiple occasions delayed disclosures about
newly found contaminants or associated risks for months or failed to
disclose them entirely, furthering delay of cleanup.
The Air Force's Failure to Sign an IAG and Pattern of Noncompliance
with Federal Laws and Regulations Concerning Environmental Cleanup
Have Delayed Cleanup Progress at Tyndall:
After 13 years on the NPL, Tyndall AFB stands out as the only one of
the three installations that received EPA administrative cleanup
orders for sitewide cleanup and has not signed an IAG even though IAGs
are required under CERCLA. Following DOD's issuance in February 2009
of a letter to EPA indicating its willingness to sign IAGs for the 11
installations that did not have them, most of the other installations
have resolved differences with EPA and signed IAGs or are close to
signing them.
As previously noted, in the absence of a signed IAG, Tyndall has
delayed cleanup progress by generally demonstrating a pattern of not
complying with federal laws and regulations concerning environmental
cleanup under CERCLA. For example, Tyndall:
* proceeded with remedies with which EPA had not concurred,
* did not seek required public input,
* failed to disclose contamination risks in a timely fashion, and:
* refused to comply with the terms of the EPA-issued administrative
cleanup order.
EPA officials told us DOD proceeded with cleanup remedies without
EPA's written concurrence--such as signed RODs or other form of
documented agreement--to protect human health and the environment,
despite knowing that the work may need to be redone. Whereas the
CERCLA process requires regulator oversight at federal NPL properties
during cleanup activities to provide assurance of such protection, DOD
officials said they relied on quarterly partnering meetings with EPA
in lieu of written approvals. Tyndall has also issued contracts for
work for which EPA hasn't formally concurred, potentially resulting in
rework and jeopardizing public resources. For example, Tyndall
authorized a PBC in June 2006 that included selecting and putting a
remedy in place at a DDT-contaminated bayou within 5 years without
having obtained EPA concurrence on how to proceed with the work. At an
informal meeting in April 2003 that included officials from Tyndall,
the Army Corps of Engineers, Fish and Wildlife Service, and the
National Oceanic and Atmospheric Administration, but at which EPA
officials were not present, Tyndall reportedly reached the initial
decision to leave the DDT-contaminated sediment in place, with the
rationale that having the DDT trapped in the sediment would be
preferable to a release that could result from removing the sediment.
In January 2009, Tyndall officials put forth the option to EPA
officials of dredging the DDT-contaminated sediments from the bayou
with the highest concentrations of contamination, proposing to carry
out this ecologically sensitive and potentially risky action as a
removal action for which Tyndall would not need concurrence from EPA.
EPA said that a human and ecological risk assessment--which would
estimate how threatening a hazardous waste site is to human health and
the environment--would be needed for EPA to evaluate the proposed Air
Force removal action and to determine whether it would protect the
local population who catch and eat fish from the bayou. Without this
information, the adequacy and protectiveness of the response action is
in question.
The Air Force Failed to Identify or Disclose Some Contamination Risks
at Tyndall in a Timely Fashion, which Delayed Cleanup Action:
Tyndall AFB delayed disclosures about newly found contaminants or
associated risks for months or failed to disclose them entirely. The
DERP provisions of SARA require defense installations to promptly
notify EPA and state regulatory agencies of the discovery of releases
or threatened releases of hazardous substances, as well as the extent
of the associated threat to public health and the environment.
[Footnote 56] However, we found that Tyndall failed to make such
reports. Tyndall was also required to immediately report releases of
hazardous substances to EPA according to the RCRA administrative
cleanup orders,[Footnote 57] but did not do so. It also did not
provide potentially affected individuals with information on such
releases in a timely manner, despite the requirement in CERCLA.
Because Tyndall AFB failed to notify EPA of newly discovered releases,
cleanup was delayed or conducted without regulatory agency oversight
in recent incidents, potentially putting human health and the
environment at risk.
An example of Tyndall's failure to notify EPA concerns the presence of
lead--a hazardous substance under CERCLA--at the Tyndall Elementary
School. Tyndall's actions have included failing to promptly report to
regulators key information about the lead and its threat to public
health; failing to take action to prevent children's exposure to lead
shot; and potentially representing inaccurately its actions related to
a cleanup, as detailed below:
* In 1992, children discovered lead shot in their playground at
Tyndall Elementary School. Despite the discovery and the SARA
requirement, Tyndall AFB officials did not notify EPA. Instead,
Tyndall officials worked with county health officials to collect soil
samples and Tyndall officials assured the public that the area was
safe for children.
* From 1997 to 2000, ATSDR[Footnote 58] conducted a health assessment,
which was triggered by Tyndall's listing on the NPL. According to
ATSDR officials, ATSDR examined Tyndall records that said the lead
shot was removed and clean sand was deposited. As such, ATSDR based
its assessment solely on the soil sampling results from 1992, found
the contamination below levels of concern, and concurred with Tyndall
taking no further action.[Footnote 59] Tyndall did not conduct any
follow-up surveying or sampling of the school area.
* In 2007, Tyndall issued a base-wide report--the Comprehensive Site
Evaluation Phase I--that, based on a records search and visual site
survey, identified inactive areas of the base where munitions,
munitions constituents,[Footnote 60] and unexploded munitions may have
been released.[Footnote 61] The report noted that Tyndall Elementary
School is located on a portion of a former target range.[Footnote 62]
* In 2008, Tyndall initiated the next phase of work, commencing with a
site walk. Tyndall representatives observed lead shot and clay target
debris on the ground surface of the playground,[Footnote 63] but
Tyndall did not notify EPA of this information and did not take any
other action to ensure protection of the health of the children
attending the school. In March 2009, officials from the Air Force
Center for Engineering and the Environment (AFCEE) visited the base
and became aware of the situation and pressed Tyndall to expedite
sampling that would assess potential risks. As a result, sampling of
the school yard was included in the next phase of work.
* Once these samples were taken in May 2009, they showed elevated lead
in the soils exceeding state standards. The base did not notify EPA
until 22 days later--in contrast to the DERP statute's requirement of
prompt notification of a threat, as well as the RCRA order's
requirement, which states that the EPA must be notified immediately of
any release of a hazardous substance.
* Once notified, EPA officials said they called for Tyndall to take
appropriate action, including an emergency removal to reduce risk and
notifying students' parents. Tyndall officials told us they initiated
funding for a removal action before notifying EPA of sampling results
and discussing the action with EPA.
* In 2009, ATSDR also became involved at the site again, and is
currently conducting a health consultation. According to ATSDR
officials, EPA requested the consultation in June 2009. Following the
request, ATSDR notified its Air Force liaison, who then initiated the
formal request on July 7, 2009.
When asked about these events, Tyndall officials stated they had
always known lead shot could be there, and said they believed EPA also
knew of this potential. Tyndall officials told us they did not conduct
a cleanup following the 1992 discovery, although they agree that lead
shot was found in the playground in 1992 and Tyndall officials
subsequently assured parents that the area was safe.[Footnote 64]
Furthermore, Tyndall representatives disagreed with ATSDR's account
that the lead shot had been removed and clean sand placed in the
area - information upon which ATSDR relied in focusing its 2000 review
on lead in soil exclusively and concluding the site did not pose a
health hazard. In 1992, CERCLA and the DERP statute were in effect and
well-established, and since lead is a CERCLA hazardous substance, DOD
was legally required to conduct any response in accordance with CERCLA
and its standards. Thus, Tyndall officials either left the lead shot
in place with essentially no response other than to reassure parents
of the schoolchildren, or conducted a response outside of CERCLA.
While Tyndall officials now state that the lack of response with
respect to the lead shot itself was based on its belief that ATSDR
found the lead shot not to pose a health hazard, the ATSDR report was
not issued until 2000 while Tyndall decided not to conduct a response
action years earlier, in 1992.
Regarding Tyndall's lack of action on the discovery of lead shot,
Tyndall officials did not take steps until 2009 to protect children
from potential exposure, despite their statements that they knew from
1992 forward that lead shot could be present at the school, because
they did not believe there were any health risks.[Footnote 65] Tyndall
officials further stated that they believed the ATSDR health
assessment found no health risk from the lead shot. However, because
ATSDR understood the lead shot had been removed, the ATSDR assessment
was based solely on the soil lead levels reported by the Air Force to
have been found in 1992 and did not address any subsequent risks from
the presence of lead shot after 1992 (e.g., from direct contact and
the possibility of increased soil levels from leaching).[Footnote 66]
Moreover, the ATSDR assessment had a narrow objective--to evaluate the
potential human health effects associated with exposure to certain
environmental conditions at several areas on the base--and was not
intended as a substitute for the CERCLA process, which provides for
investigations to determine whether a remedial action is required
based on both human health and the environment. For example, as ATSDR
focused on the likely exposure of children, it discounted certain soil
samples with lead levels above its screening values because the agency
determined children were unlikely to play in those areas; however,
those samples are relevant for CERCLA purposes.
Finally, while Tyndall officials have not denied knowledge of the
presence of lead shot in the playground prior to June 2009 (when
Tyndall reported high lead levels in the soil), they were unable to
identify or document when base officials or contractors became aware
of the lead shot and clay target debris on the ground surface of the
playground. Because Tyndall failed to promptly notify EPA of the
release observed prior to March 2009, as required by the
administrative cleanup order as well as the DERP provisions of SARA,
EPA did not have the information needed to ensure Tyndall's actions
were protective of the health of the schoolchildren.[Footnote 67] Only
at the urging of the Air Force Center for Engineering and the
Environment did the base conduct sampling, and only when the results
showed high levels of lead in soils did the base inform EPA of the
lead shot. In summary, the base failed to take appropriate action to
prevent lead exposure until June 2009--months after discovering the
debris at the surface during the school year, when children were
potentially exposed to lead in this material.[Footnote 68] Figure 3
shows how visible the lead shot was on the school playground.
Figure 3: Lead Shot on School Playground at Tyndall Air Force Base in
June 2009:
[Refer to PDF for image: photograph]
Source: EPA.
[End of figure]
Tyndall's failure to disclose the lead at the schoolyard is not an
isolated failure to disclose contamination risks.
* In late 2007, Tyndall discovered the Mississippi Road Landfill but
delayed a year before reporting the discovery to EPA in October 2008.
* Tyndall discovered discarded smoke signal flares, which are
hazardous waste under RCRA, in late October 2009 and delayed reporting
this to EPA for about a month until November 2009.
EPA Is Limited in How It May Respond to Noncompliance by Federal
Facilities:
EPA's ability to pursue enforcement actions against federal agencies
is limited by provisions of law, executive order, and executive branch
policy. Specifically, EPA may issue CERCLA orders seeking information,
entry, inspection, samples, or response actions from federal agencies
only with DOJ's concurrence.[Footnote 69] In practice, EPA told us it
has requested DOJ concurrence approximately 15 times on unilateral
section 106 orders to federal agencies and, to date, DOJ has concurred
only once, when the recipient federal agency did not object. Moreover,
under federal law, DOJ--and not EPA--is the sole representative
authorized to conduct litigation on behalf of the federal government
in judicial proceedings, including those arising under CERCLA. This
provision, in conjunction with a long-standing DOJ policy against one
federal agency suing another in court, has effectively precluded EPA
judicial actions against sister federal agencies. However, EPA retains
whatever enforcement provisions are contained within an IAG, such as
stipulated penalties that may be established within a penalty
provision in the agreement. For those installations without an IAG,
EPA effectively has no enforcement tools available, without DOJ
concurrence, to compel agency compliance with CERCLA.[Footnote 70]
Conclusions:
Cleaning up the most seriously contaminated DOD installations is a
daunting task, especially when these properties are in ongoing use by
DOD components. We recognize that DOD's primary mission is ensuring
the nation's defense, and that DOD is currently focused on ensuring
its components' readiness for wars in Iraq and Afghanistan.
Nonetheless, the environmental problems at the three installations
addressed in this report have persisted for more than 20 years since
laws requiring their cleanup were enacted. DOD and its components have
environmental responsibilities to EPA as well as responsibilities to
the public and the military personnel stationed at its installations.
Despite some progress in the early investigative stages made by the
installations we reviewed, we believe that DOD, the Air Force, and the
Army are not fully upholding these responsibilities at the three
installations.
DOD has expressed its commitment to full and sustained compliance with
federal, state, and local environmental laws and regulations that
protect human health and preserve natural resources. However, until
the current challenges--including the lack of uniform measures for DOD
and EPA to report cleanup progress, the absence of IAGs at some
installations, the failure to disclose newly discovered contamination
at some installations as required by provisions in SARA, and the
continued disagreement over proposals for the use of monitored natural
attenuation and other nonconstruction remedies, and over DOD's use of
PBCs--are addressed, delays in cleaning up these three installations
will likely persist.
Section 120 of CERCLA was enacted in 1986 amidst concerns that federal
facilities on the NPL were taking too long to get cleaned up and
contained key provisions aimed at eliminating stalemates, such as
those that were occurring over IAGs. Yet, the IAGs required by law are
still outstanding at several NPL installations after more than a
decade of effort. While EPA is charged with regulating cleanup of
federal NPL sites, without IAGs and lacking independent authority to
enforce CERCLA, EPA has little leverage to facilitate compliance at
such sites. While EPA ultimately issued administrative cleanup orders
at these three installations under other environmental laws, the
agency is nonetheless limited in its ability to enforce these orders
because DOJ policy generally precludes bringing suit on behalf of one
federal agency against another.
In the absence of the IAGs, EPA attempted to work with the services
over the past decade by offering technical support and in many cases
participating in informal meetings with DOD officials, while the
services provided numerous documents to EPA. However, we believe that
these interactions, while well intentioned, contributed to a less
rigorous approach that interfered with the collection of documents
such as formal approvals for the administrative record, and led to
insufficient communication between the agencies on significant issues
such as risk and approvals. Further, without the more predictable time
frames as would be provided with an IAG, EPA and DOD resorted to less
formal document review processes--including a lack of clarity on
document review times and on whether agreements had been reached on
key decisions--leading DOD to sometimes move forward in the cleanup
process without EPA's concurrence. Together, these informal approaches
contributed to disagreements between the agencies, further delayed
cleanup, and resulted in a lack of transparency and accountability to
Congress and the public.
Recommendations for Executive Action:
We are making six recommendations, as follows:
To provide greater assurance that cleanup progress is being measured
accurately and consistently, and to build off of the existing DOD and
EPA working group's initial efforts, we recommend that the Secretary
of Defense and Administrator of EPA develop a plan with schedules and
milestones to identify and implement a uniform method for reporting
cleanup progress at the installations and allow for transparency to
Congress and the public.
To ensure that outstanding CERCLA section 120 IAGs are negotiated
expeditiously, should the agencies continue to be unable to execute a
signed IAG within 60 days of this report, we recommend the
Administrator of EPA pursue amendments to E.O. 12580 to (1) delegate
to EPA unconditionally the independent authority to issue unilateral
administrative orders under section 106(a) to executive agencies, and
(2) cause the existing delegation of CERCLA remedial action
authorities at NPL-listed sites to DOD to be conditional on, for
example, the existence of a signed IAG or on DOD's submission of
detailed monthly reports to CEQ and Congress concerning the status of
IAG negotiations at such sites.
To ensure that DOD promptly reports new hazardous releases to EPA and
other stakeholders (including potentially injured parties, the
National Response Center, and the states), we recommend that the
Secretary of Defense develop guidance for components concerning the
proper notification when a new release is discovered or significant
new information about a previously known release is obtained. The
guidance should at a minimum address timing and contents of such
notice, as well as meet the requirements of CERCLA § 103(a) and 111(g)
and 10 U.S.C. § 2705(a).[Footnote 71]
To improve project management at DOD NPL sites regarding the use of
contractors, we recommend that the Secretary of Defense ensure that
the services make a determination of appropriateness, using Office of
Management and Budget criteria and service guidance, before using PBCs
for Superfund cleanup.
To ensure that DOD NPL sites utilize monitored natural attenuation as
the sole remedy at contaminated sites only when it is documented to
meet remediation objectives that are protective of human health and
the environment, we recommend that the Secretary of Defense direct the
services to document compliance with relevant EPA guidance when
selecting monitored natural attenuation.
To ensure that the document review process is used effectively and to
facilitate oversight and transparency between DOD and EPA, even where
there are no IAGs in effect, we recommend that the Administrator of
EPA establish a record-keeping system for DOD NPL sites, consistent
across all regions, to accurately track documents submitted for
review, including the status of approvals.
Matter for Congressional Consideration:
While EPA is charged with regulating cleanup of federal NPL sites, it
has little leverage to facilitate compliance at such sites.
Specifically, when a federal agency refuses to enter an IAG at an NPL
site or to comply with an administrative cleanup order issued pursuant
to RCRA's imminent hazard provision, EPA cannot take steps to enforce
the law, such as initiating a court action to assess fines, as it
would do in the case of a private party. As we suggested in 2009,
[Footnote 72] Congress may want to consider amending section 120 of
CERCLA to authorize EPA--after an appropriate notification period--to
administratively impose penalties to enforce cleanup requirements at
federal facilities. This review provides further reason to emphasize
such authorities to facilitate more timely and efficient compliance at
federal facilities.
Agency Comments and Our Evaluation:
We provided a draft of this report to the EPA Administrator and the
Secretary of Defense for their review and comment. In written
comments, EPA's Assistant Administrator for the Office of Solid Waste
and Emergency Response and Assistant Administrator for the Office of
Enforcement and Compliance Assurance indicated agreement with the
three recommendations directed at EPA and discussed actions that EPA
is taking to address one of them. EPA indicated general agreement with
our findings and conclusions, noting in particular that our
observations are consistent with its experience at Tyndall AFB. EPA
also provided technical comments, which we addressed, as appropriate.
EPA's written comments are included in appendix VI.
In written comments, the Deputy Under Secretary of Defense agreed with
all recommendations directed to the Secretary of Defense, noting that
our report raises several good points, some of which DOD has already
implemented. The Deputy Under Secretary also commented on our
recommendations directed at EPA, disagreeing with one of them as well
as with our Matter for Congressional Consideration. In its
disagreement with our recommendation that EPA pursue amendments to
Executive Order 12580 if outstanding CERCLA section 120 IAGs are not
negotiated expeditiously, DOD suggested that we incorrectly
characterized the entire IAG process as flawed due to five outstanding
site agreements that represent more complex cleanup issues than most
sites. However, we disagree because while we acknowledge that IAGs
have successfully been entered into at most DOD NPL sites, DOD's
refusal to enter into IAGs--required by CERCLA section 120--for more
than a decade at four of the five sites nonetheless suggests, in our
view, that there is a significant problem requiring additional
attention by the Administration. DOD disagreed with our Matter for
Congressional Consideration that Congress consider amending section
120 of CERCLA to provide additional enforcement authority to EPA
because it believes EPA has adequate existing means--including
informal tools such as interagency dispute mechanisms, and statutory
authorities--to enforce cleanup requirements at federal facilities
without a negotiated IAG. However, we disagree with DOD's position for
a number of reasons. For example, despite the informal tools pursued
by EPA, a decade passed without negotiated IAGs at the three
installations. EPA then resorted to more formal means to attempt to
compel cleanup at these installations. Nonetheless, even when EPA
attempted to use its RCRA authority, DOD initially refused to comply
with RCRA cleanup orders issued by EPA at the three installations and
is still in noncompliance at one installation. Moreover, while EPA has
remedy selection authority under CERCLA, it has no enforceable
schedule to ensure DOD installations make progress on the technical
steps leading up to a remedy decision. We therefore believe it is
critically important that Congress consider additional EPA enforcement
authority to ensure that cleanup is being pursued properly at federal
facility NPL sites. In addition, DOD provided technical comments,
which we addressed, as appropriate. DOD's written comments and our
responses are included in appendix VII.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to the appropriate congressional committees, the Secretary of Defense,
the Administrator of EPA, and other interested parties. In addition,
the report will be available at no charge on the GAO Web site at
[hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-3841 or stephensonj@gao.gov. Contact points
for our Offices of Congressional Relations and Public Affairs may be
found on the last page of this report. GAO staff who made major
contributions to this report are listed in appendix VIII.
Signed by:
John B. Stephenson:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
We were asked to determine (1) the status of Department of Defense
(DOD) cleanup of hazardous substances at selected DOD installations
subject to administrative orders and (2) obstacles, if any, to
progress in cleanup at these selected sites and the causes of such
obstacles.
To select installations for more detailed study from the 11
installations that were out of compliance with the Comprehensive
Environmental Response, Compensation, and Liability Information System
(CERCLA) in February 2009 because they did not have interagency
agreements (IAG), we reviewed the 4 that were issued additional
Environmental Protection Agency (EPA) cleanup orders under the
Resource Conservation and Recovery Act (RCRA) or under the Safe
Drinking Water Act (SDWA). These 4 installations are Air Force Plant
44 in Arizona, Fort Meade Army Base in Maryland, McGuire Air Force
Base (AFB) in New Jersey, and Tyndall AFB in Florida. EPA and DOD
agreed that one of these--Air Force Plant 44, the only 1 of the 4
installations that was issued the SDWA order--was near cleanup
completion and we therefore eliminated it from our selection of
installations.
To determine the status of DOD cleanup of hazardous substances at the
three selected installations, we toured the three installations;
interviewed officials from DOD, EPA, DOD contractors, and the Public
Employees for Environmental Responsibility, a public interest group;
and attended an installation's Restoration Advisory Board meeting. We
reviewed numerous laws, guidance, and technical documents, including
CERCLA, RCRA, DOD Defense Environmental Restoration Program (DERP)
guidance and annual reports to Congress, decision documents, and
correspondence between EPA and DOD. We reviewed and analyzed
information on cleanup progress from EPA's Comprehensive Environmental
Response, Compensation, and Liability Information System (CERCLIS)
information system, the three EPA regions that monitor cleanup at the
installations, and from the individual DOD installations.
To identify any obstacles to progress in cleanup at the selected
installations and the causes of such obstacles, we interviewed
officials from DOD, EPA, the Agency for Toxic Substances Disease
Registry (ATSDR), the Fish and Wildlife Service, and the Architect of
the Capitol, as well as state officials from Florida, Maryland, and
New Jersey, and the Public Employees for Environmental Responsibility.
We reviewed numerous laws, guidance, orders, and technical documents,
including EPA guidance on the appropriate selection of cleanup
remedies; decision documents; correspondence between EPA and DOD;
internal EPA and DOD documents; ATSDR reports; federal contracting
guidelines; and GAO reports on government contracting and project
management.
We conducted this performance audit from January 2009 to July 2010 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe
that the evidence obtained provides a reasonable basis for our
findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Cleanup Progress (according to EPA) at DOD Sites Lacking
IAGs in Early 2009:
In February 2009 DOD sent EPA an e-mail indicating its renewed
willingness to accept the Fort Eustis Federal Facility Agreement as
the model for DOD's remaining site agreements under CERCLA. At that
time EPA reported there were 12 DOD installations on the National
Priorities List (NPL) without agreed-upon IAGs, as required under
CERCLA. (Since then, DOE and EPA acknowledge there are only 11
installations without IAGs for which DOD is responsible. They exclude
the Middlesex Sampling Plant, which is the responsibility of the Army
Corps of Engineers.) For a detailed list of the 11 DOD installations,
see table 2.
EPA told us that since February 2009, progress has been made and IAGs
were signed and made effective for Fort Meade in Maryland, Naval
Computer and Telecommunications Area Master Station in Hawaii, and
Whiting Field in Florida. In addition, as of June 2010 the remaining
four installations that lack signed IAGs include Andrews AFB in
Maryland, Tyndall AFB in Florida, Redstone Arsenal in Alabama, and Air
Force Plant 44 in Arizona.
Table 2: IAG Status and Other Details for 11 DOD Installations on the
NPL that Lacked IAGs as of February 2009:
Installation name and state: Andrews Air Force Base (Md.);
Discovery date: 6/1/1981;
Final listing on the NPL: 5/10/1999;
IAG status: Signatures expected soon;
EPA operable units: 14;
DOD sites[A]: 29;
Completed cleanup progress installation-wide: 7 RI/FS actions, 7 RODs,
3 remedial designs, 3 remedial actions;
Ongoing cleanup progress installation-wide: 7 RI/FS actions, 1
remedial design, and 1 remedial action;
Examples of known contaminants: Lead, mercury, chromium, cadmium,
VOCs, semi-VOCs, polynuclear aromatic hydrocarbons, and PCBs.
Installation name and state: Brandywine Defense Reutilization and
Marketing Office (DRMO) (Md.);
Discovery date: 7/24/1991;
Final listing on the NPL: 5/10/1999;
IAG status: Signed and effective;
EPA operable units: 3;
DOD sites[A]: 3;
Completed cleanup progress installation-wide: 1 removal, 1 RI/FS, 1
ROD, 1 remedial design;
Ongoing cleanup progress installation-wide: 1 removal, 1 remedial
action;
Examples of known contaminants: PCBs, semi-VOCs, VOCs, PCE, TCE, and
iron.
Installation name and state: Fort George G. Meade (Md.);
Discovery date: 12/1/1979;
Final listing on the NPL: 7/28/1998;
IAG status: Signed and effective;
EPA operable units: 17;
DOD sites[A]: 54;
Completed cleanup progress installation-wide: 7 removals, 3 RI/FS
actions, 3 RODs, 1 remedial design;
Ongoing cleanup progress installation-wide: 13 RI/FS actions;
Examples of known contaminants: VOCs, pesticides, explosive compounds,
PCE, TCE, and pesticides.
Installation name and state: Hanscom Field/Hanscom Air Force Base
(Mass.);
Discovery date: 6/1/1981;
Final listing on the NPL: 5/31/1994;
IAG status: Signed and effective;
EPA operable units: 2;
DOD sites[A]: 22;
Completed cleanup progress installation-wide: Construction complete;
Ongoing cleanup progress installation-wide: [Empty];
Examples of known contaminants: Chlorinated solvents, jet fuel, PCBs,
VOCs, and other petroleum compounds.
Installation name and state: Langley Air Force Base/NASA Langley
Research Center (Va.);
Discovery date: 10/17/1989;
Final listing on the NPL: 5/31/1994;
IAG status: Signed and effective;
EPA operable units: 29;
DOD sites[A]: 66;
Completed cleanup progress installation-wide: 4 removals, 16 RI/FS
actions, 18 RODs, 18 remedial designs, 9 remedial actions;
Ongoing cleanup progress installation-wide: 1 removal, 4 RI/FS
actions, 1 remedial design, 7 remedial actions;
Examples of known contaminants: PCBs, PCTs, photofinishing wastes,
solvents, lubricating oils, hydraulic fluids, mercury, and pesticides.
Installation name and state: McGuire Air Force Base (N.J.);
Discovery date: 11/1/1974;
Final listing on the NPL: 10/22/1999;
IAG status: Signed and effective;
EPA operable units: 8;
DOD sites[A]: 36;
Completed cleanup progress installation-wide: 4 removals;
Ongoing cleanup progress installation-wide: 8 RI actions;
Examples of known contaminants: VOCs, PCBs, inorganic hazardous
substances, nickel, and mercury.
Installation name and state: Naval Computer and Telecommunications
Area Master Station Eastern Pacific (Hawaii);
Discovery date: 5/1/1987;
Final listing on the NPL: 5/31/1994;
IAG status: Signed and effective;
EPA operable units: 5;
DOD sites[A]: 30;
Completed cleanup progress installation-wide: 6 RI/FS, 2 RODs, 2
remedial designs, 2 remedial actions;
Ongoing cleanup progress installation-wide: 2 RI/FS. 4 RODs;
Examples of known contaminants: PCBs, creosote, mercury, chlorinated
and nonchlorinated solvents, hydraulic fluid, paint thinners, and TCE.
Installation name and state: Tucson International Airport Area of Air
Force Plant #44 (Ariz.);
Discovery date: 12/1/1979;
Final listing on the NPL: 9/8/1983;
IAG status: Not signed, in negotiation;
EPA operable units: 2;
DOD sites[A]: 13;
Completed cleanup progress installation-wide: 7 removals, 2 RI/FS
actions, 4 RODs, 2 remedial designs, 5 remedial actions;
Ongoing cleanup progress installation-wide: 1 remedial action;
Examples of known contaminants: TCE, chromium, arsenic, chloroform,
lead, PCBs, and VOCs.
Installation name and state: Tyndall Air Force Base (Fla.);
Discovery date: 2/12/1988;
Final listing on the NPL: 4/1/1997;
IAG status: Not signed, in negotiation;
EPA operable units: 12;
DOD sites[A]: 51;
Completed cleanup progress installation-wide: In dispute;
Ongoing cleanup progress installation-wide: In dispute;
Examples of known contaminants: DDT, TCE, lead, arsenic, chromium,
munitions constituents, and jet fuels.
Installation name and state: US ARMY/NASA Redstone Arsenal (Ala.);
Discovery date: 11/16/1988;
Final listing on the NPL: 5/31/1994;
IAG status: Not signed, in negotiation;
EPA operable units: 17;
DOD sites[A]: 271;
Completed cleanup progress installation-wide: 6 removals, 12 RI/FS
actions, 11 RODs, 1 remedial design, 1 remedial action;
Ongoing cleanup progress installation-wide: 27 RI/FS actions, 2
remedial actions;
Examples of known contaminants: DDT, arsenic, mercury, perchlorate,
and TCE.
Installation name and state: Whiting Field Naval Station (Fla.);
Discovery date: 2/12/1988;
Final listing on the NPL: 5/31/1994;
IAG status: Signed and effective;
EPA operable units: 27;
DOD sites[A]: 47;
Completed cleanup progress installation-wide: 5 removals, 22 RI/FS
actions, 22 RODs, 17 remedial actions;
Ongoing cleanup progress installation-wide: 3 RI/FS actions;
Examples of known contaminants: TCE, arsenic, barium, copper, lead,
mercury, waste solvents, fuels, and machine fluids.
Source: EPA.
Note: DDT = dichlorodiphenyltrichloroethane;
PCB = polychlorinated biphenyls;
PCE = tetrachloroethylene;
RI/FS = remedial investigation and feasibility study;
ROD = record of decision;
TCE = trichloroethylene;
VOC = volatile organic compound.
[A] Number of sites is as of the end of 2008.
[End of table]
[End of section]
Appendix III: Profile of Fort G. Meade Army Installation in Maryland/
EPA Region 3:
Background on Installation:
The Fort Meade Army Installation is located approximately halfway
between Baltimore, Maryland, and Washington, D.C., near Odenton,
Maryland, and has been a permanent United States Army Installation
since 1917. Fort Meade once occupied approximately 13,500 acres of
land, but currently occupies approximately 5,142 acres after parcels
of land were transferred to the U.S. Department of the Interior, the
U.S. Architect of the Capitol, and Anne Arundel County, Maryland. Fort
Meade's mission is to provide base operations support for activities
of over 80 partner organizations from all four Department of Defense
(DOD) military services and several federal agencies. Some of the
major tenant agencies include the National Security Agency, the
Defense Information School, the U.S. Army Intelligence and Security
Command, the Naval Security Group Activity, the 70th Intelligence Wing
(Air Force), the 902nd Military Intelligence Group (Army), and the
U.S. Environmental Protection Agency (EPA).
NPL Listing History and Known Contaminants:
The EPA placed Fort Meade on the National Priority List (NPL) on July
28, 1998, after an evaluation of contamination due to past storage and
disposal of hazardous substances at the Defense Reutilization and
Marketing Office, Closed Sanitary Landfill, Clean Fill Dump, and Post
Laundry Facility. Contamination at these sites included solvents,
pesticides, polychlorinated biphenyls (PCB), heavy metals, waste
fuels, and waste oils. Moreover, elevated levels of volatile organic
compounds (VOC), pesticides, and explosives compounds have been
detected in underlying aquifers and low levels of VOCs, including
tetrachloroethylene (PCE) and trichloroethylene (TCE), and pesticides
have been detected in residential wells located off-base in Odenton,
Maryland.
Issuance of RCRA 7003 Order:
[End of section]
On August 27, 2007, EPA issued a unilateral Administrative Order under
the Resource Conservation and Recovery Act (RCRA) section 7003 for
Fort Meade under its authority to address solid and hazardous wastes
that may present an imminent and substantial endangerment to health or
the environment. The RCRA Order requires the Army to assess the nature
and extent of contamination, determine appropriate corrective
measures, and implement those measures. The Order was motivated by the
absence of a signed interagency agreement (IAG) between EPA and DOD,
as required by section 120 of CERCLA, and which would establish a
framework for EPA's involvement. EPA and the Army could not come to an
agreement on the IAG due to several issues. For many years, the Army
maintained the position that since EPA took only four sites into
consideration for listing Fort Meade on the NPL, it would negotiate an
IAG for only those four sites.[Footnote 73] EPA's position on the
other hand has been that the 14 Areas of Concern on the Fort Meade
property and 3 Areas of Concern on the adjacent transferred property
should be included in the language of the IAG. Another major
disagreement centers on groundwater contamination issues at the base,
a common problem on DOD installations. The RCRA Order consequently
required the Army to move forward with cleanup of all these hazardous
waste sites. Fort Meade officials accepted the order in December 2008.
Recent Developments in IAG Negotiation:
While as of March 2009, Fort Meade was out of compliance with the RCRA
Order, in June of 2009, DOD and EPA reached an agreement and an IAG
for Fort Meade was signed by all parties.[Footnote 74] The IAG became
effective in October of 2009, after the required public comment
period. Per the terms of the IAG, the EPA has rescinded the RCRA Order
at Fort Meade.
[End of section]
Appendix IV: Profile of McGuire Air Force Base in New Jersey/EPA
Region 2:
Background on Installation:
McGuire Air Force Base (AFB) is located in south-central New Jersey
near the town of Wrightstown, which is approximately 20 miles
southeast of Trenton, and occupies about 3,536 acres within the
boundaries of the Pinelands National Reserve. McGuire AFB began
operations in 1937 functioning under the control of the U.S. Army
until 1948 when the facility's jurisdiction was transferred to the Air
Force. McGuire AFB is home to five units of command, including the
87th Air Base Wing (the host wing), 108th Air Refueling Wing, 305th
Air Mobility Wing, 514th Air Mobility Wing, and 621st Contingency
Response Wing. McGuire AFB's mission is to provide joint installation
support for McGuire AFB, Fort Dix (Army), and the Naval Air
Engineering Station Lakehurst. McGuire AFB is the Department of
Defense's (DOD) first and only joint base to consolidate Air Force,
Army, and Navy installations. The base provides airlift capabilities
to place military forces into combat situations.
NPL Listing History and Known Contaminants:
The Environmental Protection Agency (EPA) placed McGuire AFB on the
National Priorities List (NPL) on October 22, 1999. The initial sites
responsible for McGuire AFB's inclusion on the NPL include: (1) Zone 1
Landfills (comprised of Landfill Nos. 4, 5, and 6; (2) Landfill No. 2;
(3) Landfill No. 3; and (4) the Defense Reutilization and Marketing
Office. Examples of contaminants found on McGuire AFB sites include
volatile organic compounds; polychlorinated biphenyls;
trichloroethylene; semivolatile organic compounds; polycyclic aromatic
hydrocarbons; total petroleum hydrocarbons; pesticides; and metals,
such as nickel and mercury. There are 42 contamination sites[Footnote
75] in total at McGuire AFB, where 36 sites are located on the base
and 6 sites, which are not included in McGuire AFB's NPL listing, are
located at the Boeing Michigan Aeronautical Research Center Missile
Facility. According to McGuire AFB officials, the sites that have the
greatest priority for cleanup include the landfill sites, which were
responsible for McGuire AFB's listing on the NPL, the Bulk Fuel
Storage Area, the Triangle area, the Defense Reutilization and
Marketing Office site, the C-17 Hangar site, the Fuel Hydrant Area,
and the Pesticide Shop Area.
Issuance of RCRA 7003 Order:
On July 13, 2007, EPA issued a RCRA Administrative Order under section
7003 for McGuire AFB, which became effective on November 26, 2007. EPA
issued the order under its RCRA authority to address solid and
hazardous wastes that may present an imminent and substantial
endangerment to health or the environment. The RCRA Order requires
McGuire AFB to assess the nature and extent of contamination,
determine appropriate corrective measures, and implement those
measures. The Order was motivated by the absence of an IAG between EPA
and DOD at McGuire AFB, according to EPA officials.
Recent Developments in IAG Negotiation:
On December 7, 2007, the Air Force notified EPA by letter that it
considered the RCRA Order for McGuire AFB to be invalid. The Air Force
officials said that the contamination sites listed in the Order, which
were also included in a draft IAG for the base, had not been updated
since 2001. According to EPA, the RCRA Order was based on site
information from McGuire AFB's outdated documents, since those were
the only sources of the information available to EPA at the time. In
addition, the officials at McGuire AFB believed that EPA's issuance of
the RCRA Order was politically motivated and that it slowed cleanup
progress at the base. For example, they believed that EPA did not
approve McGuire AFB's site management plan (SMP)--related to cleanups
under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA)--because the RCRA Order was in place. However,
prior to the issuance of the RCRA Order, McGuire AFB had not submitted
an SMP and only provided EPA with individual fact sheets for
contamination sites on the base. McGuire AFB submitted a revised draft
SMP in July 2009. Officials from the Air Force said that the Air Force
would continue to exercise its CERCLA responsibilities at McGuire AFB
to accomplish the substantive cleanup work that EPA sought to impose
in the RCRA Order. However, this did not stop EPA's involvement with
the cleanup activities at McGuire AFB, as EPA continued to work with
Air Force officials on the RCRA Facility Investigation phase at
McGuire AFB. According to EPA officials, McGuire AFB was not in
compliance with the RCRA Order as it had not complied with deadlines
set forth in the Order and refused to follow the outlined cleanup
process. It is EPA's opinion that only after EPA's issuance of the
RCRA Order did McGuire AFB begin submitting the required
documentation. However, McGuire AFB overwhelmed EPA's document review
process by submitting the required documents all at once. Following
DOJ's letter upholding EPA authority to issue the RCRA Order, as a
matter of law, DOD asserted that fulfilling CERCLA requirements
fulfilled the Order's RCRA requirements. Nonetheless, progress was
made on the IAG negotiations at McGuire AFB. In October 2009, an IAG
was signed by all the appropriate parties for McGuire AFB and it
became effective on December 1, 2009, following a public comment
period.
[End of section]
Appendix V: Profile of Tyndall Air Force Base in Florida/EPA Region 4:
Background on Installation:
Tyndall Air Force Base (AFB) occupies approximately 29,000 acres on a
peninsula near Panama City, Florida. The base was initially activated
in 1941 as a gunnery school for the Army Air Corps, then as an air
tactical training school in 1946, and finally designated as an Air
Force base in 1947. Currently, Tyndall AFB contains the 325th Fighter
Wing, which has a mission of pilot and maintenance training for the F-
15 Eagle and F-22 Raptor fighter jet squadrons, weapons system
controllers training, and the 601st Air Operations Center activities.
Tyndall AFB is also part of the Air Education and Training Center.
NPL Listing History and Known Contaminants:
The Environmental Protection Agency (EPA) placed Tyndall AFB on the
National Priorities List (NPL) on April 1, 1997, primarily due to DDT
contamination in the sediment of Shoal Point Bayou. Shoal Point Bayou
is a tidal creek used as a waterway for barges and small ships to
deliver petroleum, oil, lubricant products, and building supplies to
the base. In October 1985, the U.S. Fish and Wildlife Service
conducted sediment sampling throughout St. Andrew Bay, including Shoal
Point Bayou, and found the presence of DDT and DDT metabolites. Then
in 1990, the same contaminants were detected in fish, soil, and
sediment throughout the Bayou. After multiple investigations, a
remedial investigation (RI) was completed for this site in 2002 by the
Department of Defense (DOD); however, EPA later deemed the
investigation insufficient. Additional investigations have been
completed, which found higher concentrations of DDT and metabolites
than previously determined. However EPA officials report that the new
information on the contamination at Shoal Point Bayou was never
integrated into the previous RI findings. Other areas of contamination
at Tyndall AFB include the flight line and aircraft maintenance areas,
oil/water separators, landfills, fire training pits, petroleum release
sites, and munitions testing, disposal, and burial areas. The other
contaminants of concern in soil, sediment, surface water, and
groundwater at Tyndall AFB include petroleum, DDT, chlordane, TCE,
vinyl chloride, pesticides, lead, benzene, arsenic, chromium, barium,
and munitions constituents. DOD officials claim that Tyndall AFB
currently has 16 active contamination sites after beginning its
Installation Restoration Program with 39 sites.
Tyndall AFB has many cleanup challenges due to its geography and
topography, which cover approximately 110 miles of coastal shoreline
with a maximum elevation of less than 30 feet above mean sea level. In
addition, approximately 40 percent of the land on Tyndall AFB is
wetlands and there are three underlying groundwater aquifers on the
base. Tyndall AFB is proceeding at many of the sites by employing a
cleanup remedy of natural attenuation. One challenge is that the
groundwater at the installation is highly susceptible to contamination
and is used as a drinking water source on base. Another challenge is
protecting Tyndall AFB's extensive wetlands and bayous, which includes
protecting over 40 species of threatened and endangered plant and
animal species. Finally, it is a challenge to control civilian,
military, visitor, and trespasser access to areas of contamination on
the base. For example, Tyndall AFB has over 110 miles of uncontrolled
shoreline where recreational boaters and trespassers may gain access
and be exposed to contamination. Furthermore, military and civilian
workers may access areas of contamination throughout Tyndall AFB
because the installation does not have a land use controls program or
physical barriers, such as fences, to prevent unacceptable exposures.
Issuance of RCRA 7003 Order:
Tyndall AFB cleanup and remedial investigation activities have
continued in the absence of a signed IAG and without EPA concurrence.
On November 21, 2007, EPA issued an Administrative Order under RCRA
section 7003 for Tyndall AFB to provide EPA with an instrument to
enforce cleanup and which EPA hoped would lead to a signed IAG. EPA
issued the Order, which was finalized in May 2008, under its Resource
Conservation and Recovery Act (RCRA) authority to address solid and
hazardous wastes that may present an imminent and substantial
endangerment to health or the environment. The RCRA Order requires
Tyndall AFB to assess the nature and extent of contamination,
determine appropriate corrective measures, and implement those
measures. Tyndall AFB has maintained progress schedules for individual
sites, but EPA officials say that Tyndall AFB has not submitted an
integrated site cleanup schedule as part of a larger site management
plan (SMP) for the entire base.
Recent Developments in IAG Negotiation:
EPA officials stated that outside of their goal to reach an agreed-
upon IAG, one of their other priorities is to get Tyndall AFB to
submit a draft SMP in the near future. Tyndall AFB submitted one in
the past, but according to EPA officials it was deficient, lacked
integrated schedules, and only addressed approximately 30 contaminants
on the base. However, according to EPA, Tyndall AFB is currently out
of compliance with the deadlines and scope of work requirements as
defined in the RCRA Order. In addition EPA officials said the Air
Force has denied the Order's legitimacy by calling it a "potential
Order." As of June 2010, Tyndall AFB still does not have a signed IAG.
[End of section]
Appendix VI: Comments from the Environmental Protection Agency:
United States Environmental Protection Agency:
Washington, D.C 20460:
[hyperlink: http://www.epa.gov]
June 23, 2010:
Mr. John B. Stephenson:
Director:
Natural Resources and Environment:
U.S. Government Accountability Office:
Washington, DC 20548:
Re: EPA comments on June 2010 Draft GAO Report titled, Interagency
Agreements and Improved Project Management Needed to Achieve Cleanup
Progress at Key Defense Installations; GAO-10-348.
Dear Mr. Stephenson:
Thank you for the opportunity to review GAO's draft report entitled
Interagency Agreements and Improved Protect Management Needed to
Achieve Cleanup Progress at Key Defense Installations (GAO)-10-348.
GAO reviewed the status of Department of Defense (DoD) cleanup of
hazardous substances at three installations - McGuire Air Force Base
in New Jersey, Tyndall Air Force Base in Florida, and Fort George G.
Meade in Maryland - which, at the time of your study, lacked
interagency agreements required under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA).
GAO observed that Interagency Agreements (IAGs) are now in place at
McGuire Air Force Base and Fort Meade. but that Tyndall Air Force Base
"has delayed cleanup progress by generally demonstrating a pattern of
not complying with federal laws and regulations concerning
environmental cleanup" (draft, pp. 28-29), In addition. Tyndall
officials "...delayed disclosures about newly found contaminants or
associated risks for months or failed to disclose them entirely"
(draft, p. 30). These findings are consistent with EPA's experience at
this site, which remains out of compliance with a 2007
imminent and substantial endangerment order under the Resource
Conservation and Recovery Act. GAO went on to observe that "...in the
absence of 1ACis, EPA attempted to work with the services over the
pas( decade by offering technical support and in many cases
participating in informal meetings with DOD officials" that "while
well intentioned. contributed to a less rigorous approach" (draft, p,
37). GAO concluded that these informal approaches contributed to
disagreements between the agencies, further delayed cleanup and
resulted in a lack of transparency and accountability to Congress and
the public" (draft. pp. 37-38).
In light of these and other observations, GAO made three
recommendations to EPA (draft pages 38-39):
1) "To provide greater assurance that cleanup progress is being
measured accurately and consistently. and to build off of the existing
DOD and EPA working group's initial efforts, we recommend that the
Secretary of Defense and Administrator of EPA develop a plan with
schedules and milestones to identify and implement a uniform method
for reporting cleanup progress at the installations and allow for
transparency to the Congress and the public."
EPA agrees with this recommendation. and we are pursuing it through
the goal harmonization project supported by DOD and EPA. Schedules and
milestones for the EPA/DoD Goal Harmonization Workgroup could provide
stronger cross agency support, collaboration toward performance
results, and greater transparency in setting goals for cleanup
milestones.
2) "To ensure that outstanding CERCLA Section 120 interagency
agreements are negotiated expeditiously, should the agencies continue
to be unable to execute a signed LAG within 60 days of report. we
recommend the Administrator of EPA, pursue amendments to Executive
Order 12580 to (1) condition the delegation of CERCL4 authorities to
DOD for its NPL-listed sites on the existence of a signed 1AG, and (2)
delegate to EPA unconditionally the independent authority to issue
unilateral administrative orders under section 106(a) to executive
agencies."
EPA agrees that providing EPA with independent order authority under
CERCIA Section 106 would strengthen EPA's ability to take appropriate
enforcement against federal agencies consistent with the law's
direction to apply the statute "in the same manner and to the same
extent" to federal entities.
3) "To ensure that the document review process is used effectively and
to facilitate oversight and transparency between DOD and EPA, even
where there are no IAGs in effect. we recommend that the Administrator
of EPA establish a record-keeping ,system for DOD NPL sites,
consistent across all regions. to accurately track documents submitted
for review, including the status of approvals."
We agree that to promote proper oversight and ensure transparency. EPA
needs an improved record keeping system. particularly for the status
of approvals. FPA will examine a range of implementation options for
accomplishing this goal.
Again, thank you for the opportunity to comment. Please contact me if
I can be of assistance, or your staff may call Bobbie Trent in EPA's
Office of the Chief Financial Officer at 202 566-0983.
Sincerely,
Signed by:
Mathy Stanislaus:
Assistant Administrator:
Office of Solid Waste and Emergency Response:
Cynthia Giles:
Assistant Administrator:
Office of Enforcement and Compliance Assurance:
Enclosures (2):
[End of section]
Appendix VII: Comments from the Department of Defense:
Note: GAO comments supplementing those in the report text appear at
the end of this appendix.
Office Of The Under Secretary Of Defense:
Acquisition, Technology And Logistics:
3000 Defense Pentagon:
Washington, DC 20301-3000:
July 5, 2010:
Mr. John B. Stephenson:
Director, Natural Resources and Environment:
U.S. Government Accountability Office (GAO):
441 G Street, N.W.
Washington, D.C. 20548:
Dear Mr. Stephenson:
This is the Department of Defense (DoD) response to the GAO Draft
Report, GAO-10-348, "Superfund: Interagency Agreements and Improved
Project Management Needed to Achieve Cleanup Progress at Key Defense
Installations," dated June 2010 (GAO Code 361033). Our detailed
responses to the GAO recommendations and the matter for Congressional
consideration are provided in enclosure 1. Enclosure 2 summarizes
additional substantive issues that DoD has with the GAO draft report,
and enclosure 3 provides our technical comments.
The Department concurs with GAO's recommendations to the Secretary of
Defense. We are committed to signing negotiated Federal Facilities
Agreements (FFAs) at all 141 of our facilities listed on the National
Priorities List (NPL). We have signed FFAs at 136 facilities to date,
and we are actively negotiating with the Environmental Protection
Agency (EPA) Regions to sign the remaining five FFAs. Following the
DoD-EPA agreement to use the Fort Eustis template FFA, we signed seven
of the 11 agreements that were more than 10 years overdue, and we
continue to work to get agreement on the remaining four plus another
more recent agreement.
Your report raises several good points, and we have already
implemented solutions to many of the problems it highlights. (The
report identifies some actions taken by Tyndall Air Force Base (AFB)
that we are going to investigate and assess the need for further
action.) Additionally, the report points out that we have proceeded with
some cleanup actions even without EPA approval. We have generally done
this either because the actions did not require EPA approval or
because EPA did not provide comments within a reasonable timeframe and
we felt it was critical for us to proceed in order to protect human
health and the environment. Moreover, some of the issues raised
in the report are specific to Tyndall AFB and Fort Meade and are not
representative of all DoD installations.
The Department does not concur with GAO's suggestion that Congress
consider amending section 120 of Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) to authorize EPA to
administratively impose penalties to enforce cleanup requirements at
federal facilities without a negotiated CERCLA interagency agreement.
EPA has enforcement tools under existing environmental statutes, such
as CERCLA section 109, the Resource Conservation and Recovery Act, and
the Safe Drinking Water Act. Moreover, DoD has made significant
progress in the last year. Thus, congressional action is not
necessary, in our view.
Thank you for the opportunity to provide the Department's views.
Sincerely,
Signed by:
Dorothy Robyn:
Deputy Under Secretary of Defense (Installations and Environment):
Enclosures: As stated:
[End of letter]
Enclosure 1:
GAO Draft Report Dated June 2010:
GAO-10-348 (GAO CODE 361033):
"Superfund: Interagency Agreements and Improved Project Management
Needed to Achieve Cleanup Progress at Key Defense Installations"
Department Of Defense Comments To The GAO Recommendations:
Recommendation 1: The GAO recommends that the Secretary of Defense,
and the Administrator of the Environmental Protection Agency, develop
a plan with schedules and milestones to identify and implement a
uniform method for reporting cleanup progress at the installations and
allow for transparency to the Congress and the public. (See page
38/GAO Draft Report.)
DoD Response: DoD concurs. DoD agrees that it is vitally important to
track cleanup progress at our installations and to make that
information available to Congress and the public in a manner that is
transparent and easily understandable. DoD acknowledges that this is a
challenge because DoD and EPA currently use different terms and
metrics to report progress. For example, DoD tracks progress at
discreet areas known as sites, while EPA tracks progress at operable
units (OUs). [See comment 1]
That is why in June 2009, DoD began actively working with EPA through
a federal working group to improve communication and better correlate
reporting of cleanup progress using existing performance measures at
NPL installations. If the working group decides that a common metric
is essential, the measure must meet certain criteria, including the
evaluation of progress at DoD's site level rather than at OUs. In the
late 1980's, DoD considered measuring progress at the OU level. Based
on a pilot test, DoD decided measuring progress at the site level
provided the fidelity and precision that DoD required to most
efficiently manage cleanup. [See comment 1]
Recommendation 2: The GAO recommends that the Administrator of EPA
pursue amendments to Executive Order 12580 to (1) condition the
delegation of CERCLA authorities to DoD for its NPL-listed sites on
the existence of a signed interagency agreement (IAG), and (2)
delegate to EPA unconditionally the independent authority to issue
unilateral administrative orders under section 106(a) to executive
agencies.
DoD Response: DoD nonconcurs. DoD disagrees that Executive Order 12580
should be amended to address CERCLA lAGs, especially since 136 of 141
DoD-EPA IAGs have been finalized and only 5 remain in negotiation. The
signed 1AGs represent great progress. It would be inappropriate to
characterize the entire lAG process as flawed based on the 5 remaining
agreements under negotiation, which address more complex cleanup
issues. Additionally, keeping lead agency authority with DoD allows
DoD to continue executing cleanup actions pending resolution of any
IAG issues, which supports protection of human health and the
environment. DoD looks forward to working with EPA to sign the
remaining 5 1AGs using the agreed on Fort Eustis template, as GAO
references on pages 10 and 44 of their draft report. [See comment 2]
Recommendation 3: The GAO recommends that the Secretary of Defense
develop guidance for components concerning the proper notification
when a new release is discovered or significant new information about
a previously known release is obtained. The guidance should at a
minimum address timing and contents of such notice, as well as meet
the requirements of CERCLA 103(a) and 10 U.S.C. 2705(a). (See page
38/GAO Draft Report.)
DoD Response: DoD concurs. DoD agrees that the identified statutes
provide mandatory notification and that proper notification of new
releases that exceed statutory limits and significant new information
about a previously known release is necessary. That is why DoD has
issued the following guidance on the subject: [See comment 3]
* DoD Instruction entitled Environmental Compliance, dated April 1996
(GAO extracted the document from the DENIX web site);
* DoD Safe Drinking Water Act Compliance Guidance, dated September
1999;
* Management Guidance for the Defense Environmental Restoration
Program (DERP), dated September 2001 (provided to GAO on July 21, 2008
and February 12, 2009);
* Final Rule of the Munitions Response Site Prioritization Protocol
(32 CFR Part 179), dated October 2005 (GAO extracted the document from
the DENIX web site).
Currently, the DoD Components must notify OSD of significant
environmental events involving compliance with environmental statutes,
environmental enforcement actions, and chemical emergencies or spills.
Furthermore, the DoD Components must notify the public if a public
water system does not meet the Safe Drinking Water Act standards. If
the DoD Components obtain new information about a previously known
release, they are already required to review and evaluate any
potential impacts to the cleanup process in consultation with relevant
stakeholders, to include regulators. [See comment 3]
Recommendation 4: The GAO recommends that the Secretary of Defense
ensure that the Services make a determination of appropriateness using
Office of Management and Budget criteria and Service guidance, before
using performance-based contracts (PBCs) for Superfund cleanup. (See
page 39/GAO Draft Report.)
DoD Response: DoD concurs. In June 2007, OSD released the internal
publication entitled Performance-Based Acquisition of Environmental
Restoration Services, which addresses the suitability of PBCs. The
handbook specifically states that PBCs "may not be appropriate for all
environmental restoration projects," especially site characterization.
It identifies risk and uncertainty as the primary considerations in
determining the suitability of a project for PBC and elaborates on
these issues. [See comment 4]
Recommendation 5: The GAO recommends that the Secretary of Defense
direct the Services to document compliance with relevant EPA guidance
when selecting monitored natural attenuation to ensure that DoD NPL
sites utilize monitored natural attenuation as the sole remedy at
contaminated sites only when it is documented to meet remediation
objectives that are protective of human health and the environment.
(See page 39/GAO Draft Report.)
DoD Response: DoD concurs. DoD provided guidance on remedy selection
and monitored natural attenuation in the Management Guidance for the
DERP, dated September 2001 (provided to GAO on July 21, 2008 and
February 12, 2009). The DERP guidance requires the DoD Components to
consider appropriate treatment technologies, permanent solutions,
containment strategies, land use controls, and alternate water
supplies when evaluating groundwater remedial alternatives during the
Feasibility Study phase. Monitored natural attenuation (MNA) may be
selected as the preferred remedial alternative only if the site
conditions support MNA as a viable remedy. The DoD Components document
the preferred remedial alternative in a proposed plan, along with a
brief description of the remedial alternatives evaluated. Regulators
and the public review and comment on the proposed plan. Once a
remedial action is selected, the DoD Component prepares a Record of
Decision (ROD). The ROD defines the remedial action objectives and
describes how the selected remedy is protective of human health and
the environment. At NPL sites, EPA must sign the ROD, and thus concur
that the remedy is protective of human health and the environment.
[See comment 5]
Recommendation 6: The GAO recommends that the Administrator of EPA
establish a record-keeping system for DOD NPL sites, consistent across
all regions, to accurately track documents submitted for review,
including the status of approvals.
DoD Response: DoD concurs. DoD agrees that accurate data and effective
documentation management is critical to EPA's ability to provide
oversight of cleanup at NPL installations. As part of the joint effort
to improve communication and better correlate reporting of cleanup
progress (see DoD's response to Recommendation 1), DoD and EPA are
currently reviewing information in and the capabilities of existing
databases.
Matter for Congressional Consideration: The GAO recommends that
Congress may want to consider amending section 120 of CERCLA to
authorize EPA”after an appropriate notification period”to
administratively impose penalties to enforce cleanup requirements at
federal facilities.
DoD Response: DoD nonconcurs. DoD does not agree that Congress should
consider amending section 120 of CERCLA to authorize EPA to
administratively impose penalties to enforce cleanup requirements at
federal facilities without a negotiated CERCLA LAG for the following
reasons: [See comment 6]
* EPA currently has existing statutory enforcement tools, such as
imminent and substantial endangerment orders under RCRA or the SDWA.
* EPA has authority to negotiate administrative penalties in IAGs
under CERCLA. DoD-EPA LAGs have included stipulated penalties for a
number of years. Providing EPA the authority to issue CERCLA penalties
at facilities without an LAG may prove to be a disincentive to EPA
negotiating these interagency agreements.
* EPA has significant authority at NPL installations without
administrative orders and penalties. EPA has remedy selection
authority at NPL installations regardless of whether the installation
has a signed LAG.
We are pleased to note that 136 of 141 DoD-EPA FFAs have been
finalized and only 5 remain in negotiation. DoD is committed to
continuing its progress on negotiating FFAs with EPA under the current
framework.
The following are GAO's comments on the Department of Defense's
letter, dated July 5, 2010.
GAO Comments:
1. For this recommendation DOD agreed that it is vitally important to
track cleanup progress at its installations and to make that
information available to Congress and the public in a manner that is
transparent and easily understandable. DOD also discussed working
actively with EPA through a federal working group. However, DOD
indicated that if the working group decides a common metric is
essential, DOD would require that the metric meet DOD criteria, such
as continuing use of DOD's site level measure as compared to EPA's
operating unit level of measure, suggesting the agencies are unlikely
to implement a uniform method for reporting cleanup progress at the
installations. We continue to believe that such uniformity is
essential to provide greater assurance that cleanup progress is being
measured accurately and consistently across all Superfund sites, and
to provide for transparency to Congress and the public. An agency may
need more detailed information for management purposes, but
information comparable to other Superfund sites is essential to
providing adequate transparency.
2. DOD disagreed with our recommendation that EPA pursue amendments to
Executive Order 12580 to condition delegation of CERCLA authorities to
DOD on the existence of a signed IAG. DOD stated that because all but
5 of the 141 IAGs remain in negotiation, DOD should maintain lead
agency CERCLA authority so it can continue executing cleanup actions
pending resolution of any IAG issues and indicated its intention to
sign the remaining 5 IAGs using as a template an IAG between the Army
and EPA for Fort Eustis, Virginia, as has been agreed upon by the
agencies. However, given that 4 remaining agreements have been pending
for over a decade, we continue to believe that outstanding CERCLA
Section 120 IAGs need to be negotiated expeditiously and that
amendments to Executive Order 12580 could facilitate such action.
3. For this recommendation, the Deputy Under Secretary agreed that
proper notification of new releases that exceed statutory thresholds
and significant new information about previously known releases is
necessary. DOD noted that DOD guidance on this issue is already in
existence; however, GAO reviewed these documents during the engagement
and found them to lack adequate specificity for use by installation
personnel, particularly in the area of new information about previous
releases. Although the Deputy Under Secretary notes that when DOD
personnel obtain new information about a previously known release they
are already required to review and evaluate any potential impacts to
the cleanup process in consultation with relevant stakeholders, to
include regulators, we found several instances where DOD personnel did
not share such information with regulators in a timely fashion. When
we asked why, installation personnel stated they were not required to
provide regulators with such information. For example, our report
highlights an example of Tyndall's failure to notify EPA about the
presence of lead--a hazardous substance under CERCLA--at the Tyndall
elementary school, and failure to take action to prevent children's
exposure to lead shot, among other issues.
4. For this recommendation, DOD agreed and referenced its policy.
However, our review found inconsistencies in how this policy was
interpreted. While federal guidelines indicate that performance-based
contracts (PBC) are not generally appropriate for work that involves a
great deal of uncertainty, officials from the Army told us that in
their view, PBCs are better suited for complex work because they
foster innovation from the private sector. DOD policy directs the
services to use PBCs whenever possible--establishing the goal that
PBCs be used for 50 percent of service acquisitions. Nonetheless,
Tyndall AFB officials told us that after shifting toward PBCs for
cleanup work in 2004, they are no longer using them for new contracts
because of the uncertainty in the cleanup work needed at the base.
5. For this recommendation, DOD agreed and referenced its DERP
guidance, which outlines the process for developing and proposing
remedies. The guidance, however, does not provide specific
requirements regarding monitored natural attenuation. As DOD notes,
when DOD selects monitored natural attenuation as its remedy, DOD is
to present the basis for its selection in a ROD or proposed plan.
However, DOD and its contractors are not uniformly demonstrating that
EPA's specific criteria for selection of monitored natural attenuation
are met before selecting such a remedial alternative, according to
EPA. These criteria require that certain conditions exist such as a
low potential for contaminant migration and a time frame comparable to
other methods of remediation.
6. The Deputy Under Secretary of Defense disagreed with our Matter for
Congressional Consideration, in which we suggested that Congress
should consider amending section 120 of CERCLA to authorize EPA to
administratively impose penalties to enforce cleanup requirements at
federal facilities without a negotiated CERCLA interagency agreement.
DOD presented several reasons for its position, including its belief
that EPA has existing statutory enforcement tools under the Resources
Conservation Recovery Act (RCRA) and the Safe Drinking Water Act
(SDWA). However, there is little evidence that these other mechanisms
have been effective. For example, in 2007 EPA issued administrative
cleanup orders under RCRA at all three installations that the services
disagreed with and they all initially refused to comply while DOD
sought DOJ review of the orders' validity. The orders stated that an
imminent and substantial endangerment from contamination may be
present on the sites and required DOD to notify EPA of its intent to
comply and clean up. The Air Force and Army did not notify EPA of
their intent to comply with the order within the time frame required
and stated they would continue to clean up the sites under their
CERCLA removal and lead agency authority. After DOJ issued a letter
stating its opinion that EPA had the authority to issue the orders, as
a matter of law, the Army informed EPA of its intent to comply and
initiated work under RCRA at Fort Meade, while the Air Force did not
take similar actions for its installations. Subsequent negotiations
between DOD and EPA resulted in IAGs at Fort Meade and McGuire AFB.
However, at Tyndall AFB, where there is still no signed IAG, DOD
continues to refuse to comply with the RCRA order. In regards to SDWA,
we recognize there can be installations with contamination that do not
threaten a public water supply, and therefore SDWA would not apply.
DOD also commented that EPA has authority to negotiate administrative
penalties in IAGs under CERCLA and that existing IAGS include
stipulated penalties. However, as we stated previously, several of the
most challenging sites do not yet have IAGs, including Tyndall AFB.
For more than a decade DOD has failed to enter into IAGs required by
CERCLA section 120 to clean up DOD National Priorities List (NPL)
sites. As we note in our report, without an IAG EPA lacks the
mechanisms to ensure that cleanup by an installation proceeds
expeditiously, is properly done, and has public input, as required by
CERCLA. We disagree that providing EPA with the authority to issue
CERCLA penalties at facilities without an IAG will be a disincentive
to EPA's negotiating interagency agreements. EPA has stated on
numerous occasions its commitment to complete negotiations for such
agreements. Finally, DOD noted that EPA has remedy selection authority
at NPL installations regardless of whether the installation has a
signed IAG. Despite having authority for choosing a final cleanup
remedy, EPA has not been able to force progress toward remedy
selection because it has no enforceable schedule to ensure DOD
installations make progress on the technical steps leading up to the
ROD, which documents the remedy selected for cleanup. Hence, as at the
three installations reviewed in this report, installations may not
complete cleanup for a decade or more without an IAG. We believe our
report demonstrates that EPA has experienced considerable difficulty
employing its existing enforcement authorities and that DOD has
resisted EPA's use of such authority to compel DOD to enter into IAGs
at NPL sites. Hence, we continue to assert that an expansion in EPA's
enforcement authority is warranted.
[End of section]
Appendix VII: GAO Contact and Staff Acknowledgments:
GAO Contact:
John B. Stephenson, (202) 512-3841 or stephensonj@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Diane B. Raynes, Assistant
Director; Elizabeth Beardsley; Pamela Davidson; Michele Fejfar; Justin
Mausel; Alison D. O'Neill; Ilga Semeiks; and Amy Ward-Meier made major
contributions to this report. Vasiliki Theodoropoulos also made key
contributions.
[End of section]
Glossary:
This glossary is provided for reader convenience. It is not intended
as a definitive, comprehensive glossary of all aspects of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) process for the cleanup of environmental contamination at
Superfund sites.
Site discovery: When a federal agency identifies an actual or
suspected release or threatened release to the environment on a
federal site, it notifies EPA, which then lists the site on its
Federal Agency Hazardous Waste Compliance Docket. The docket is a
listing of all federal facilities that have reported hazardous waste
activities under RCRA or CERCLA. RCRA and CERCLA require federal
agencies to submit to EPA information on their facilities that
generate, transport, store, or dispose of hazardous waste or that has
had some type of hazardous substance release or spill. EPA updates the
docket periodically.
Preliminary assessment: The lead agency (DOD, in this case) conducts a
preliminary assessment of the site by reviewing existing information,
such as facility records, to determine whether hazardous substance
contamination is present and poses a potential threat to public health
or the environment. EPA regions review these preliminary assessments
to determine whether the information is sufficient to the likelihood
of a hazardous substance release, a contamination pathway, and
potential receptors. EPA regions are encouraged to complete their
review of preliminary assessments of federal facility sites listed in
EPA's CERCLA database within 18 months of the date the site was listed
on the federal docket. EPA may determine the site does not pose a
significant threat to human health or the environment and no further
action is required. If the preliminary assessment indicates that a
long-term response may be needed, EPA may request that DOD perform a
site inspection to gather more detailed information.
Site inspection: The lead agency (DOD, in this case) samples soil,
groundwater, surface water, and sediment, as appropriate, and analyzes
the results to prepare a report that describes the contaminants at the
site, past waste handling practices, migration pathways for
contaminants, and receptors at or near the site. EPA reviews the site
inspection report and, if it determines the release poses no
significant threat, EPA may eliminate it from further consideration.
If EPA determines that hazardous substances, pollutants, or
contaminants have been released at the site, EPA will use the
information collected during the preliminary assessment and site
inspection to calculate a preliminary HRS score.
Hazard Ranking System scoring: If EPA determines that a significant
hazardous substance release has occurred, the EPA region prepares an
HRS scoring package. EPA's HRS assesses the potential of a release to
threaten human health or the environment by assigning a value to
factors such as (1) the likelihood that a hazardous release has
occurred; (2) the characteristics of the waste, such as toxicity and
the amount; and (3) people or sensitive environments affected by the
release.
National Priorities List: If the release scores an HRS score of 28.50
or higher, EPA determines whether to propose the site for placement on
the NPL. CERCLA requires EPA to update the NPL at least once a year.
Remedial investigation and feasibility study: Within 6 months after
EPA places a site on the NPL, the lead agency (DOD, in this case) is
required to begin a remedial investigation and feasibility study to
assess the nature and extent of the contamination. The remedial
investigation and feasibility study process includes the collection of
data on site conditions, waste characteristics, and risks to human
health and the environment; the development of remedial alternatives;
and testing and analysis of alternative cleanup methods to evaluate
their potential effectiveness and relative cost. EPA, and frequently
the state, provides oversight during the remedial investigation and
feasibility study and the development of a proposed plan, which
outlines a preferred cleanup alternative. After a public comment
period on the proposed plan, EPA and the federal facility sign a
record of decision (ROD) that documents the selected remedial action
cleanup objectives, the technologies to be used during cleanup, and
the analysis supporting the remedy selection.
Interagency agreement: Within 6 months of EPA's review of DOD's
remedial investigation and feasibility study, CERCLA, as amended,
requires that DOD enter into an IAG with EPA for the expeditious
completion of all remedial action at the facility. (EPA's policy
however, is for federal facilities to enter into an IAG after EPA
places the site on the NPL.) The IAG is an enforceable document that
must contain, at a minimum, three provisions: (1) a review of remedial
alternatives and the selection of the remedy by DOD and EPA, or remedy
selection by EPA if agreement is not reached; (2) schedules for
completion of each remedy; and (3) arrangements for the long-term
operation and maintenance of the facility.
Remedial design and remedial action: During the remedial design and
remedial action process, the lead agency (DOD, in this case) develops
and implements a permanent remedy on the site as outlined in the
record of decision and IAG.
Monitoring: Long-term monitoring occurs at every site following
construction of the remedial action. This includes the collection and
analysis of data related to chemical, physical, and biological
characteristics at the site to determine whether the selected remedy
meets CERCLA objectives to protect human health and the environment.
For NPL or non-NPL sites where hazardous substances, pollutants, or
contaminants were left in place above levels that do not allow for
unlimited use and unrestricted exposure, every 5 years following the
initiation of the remedy, the lead agency (DOD, in this case) must
review its sites. The purpose of a 5-year review, similar to long-term
monitoring, is to assure that the remedy continues to meet the
requirements contained in the record of decision and is protective of
human health and the environment.
[End of section]
Footnotes:
[1] The environmental restoration expenditures total does not include
program management and other support costs. Under its Defense
Environmental Restoration Program, DOD's authority for environmental
cleanup includes each facility or site owned by, leased to, or
otherwise possessed by the United States and under the jurisdiction of
DOD, as well as those that were as such at the time of actions leading
to contamination by hazardous substances or other hazards prior to
October 17, 1986. DOD notes that this jurisdiction extends to
governmental entities that are the legal predecessors of DOD or the
components--Army, Navy, Marine Corps, and Air Force.
[2] Pub. L. No. 96-510 (1980), codified as amended at 42 U.S.C.§§ 9601-
9675 (2010).
[3] The NPL is composed of 1,279 final sites and 341 deleted sites.
There are an additional 61 proposed sites.
[4] GAO, Superfund: Greater EPA Enforcement and Reporting Are Needed
to Enhance Cleanup at DOD Sites, [hyperlink,
http://www.gao.gov/products/GAO-09-278] (Washington, D.C.: Mar. 13,
2009).
[5] CERCLA, Pub. L. No. 96-510 § 120(e), as amended by the Superfund
Amendments and Reauthorization Act, Pub. L. No. 99-499 (1986);
codified at 42 U.S.C. § 9620(e) (2010).
[6] For purposes of this report, the term "installation" refers
generally to a property under the jurisdiction of DOD, and for which
it has cleanup responsibility, or specifically to one of the three
properties under review. DOD has other definitions for the term.
[7] We refer to Fort George G. Meade as "Fort Meade" throughout this
report.
[8] Each of the four installations received administrative orders
where an imminent and substantial endangerment to health and the
environment may exist under the authority of the Resource Conservation
and Recovery Act or under the authority of the Safe Drinking Water Act.
[9] Although Air Force Plant 44 is near completion of the cleanup
required under the Safe Drinking Water Act, the IAG remains unsigned.
[10] Pub. L. No. 94-580 (1976), amending the Solid Waste Disposal Act,
codified as amended at 42 U.S.C. §§ 6921 - 6992k (2010).
[11] Section 2 of RCRA added section 7003 to the Solid Waste Disposal
Act, but the imminent hazard authority is nonetheless often referred
to as "RCRA Section 7003." See 42 U.S.C. § 6973 (2010).
[12] Applicable or relevant and appropriate requirements include
standards promulgated under any federal environmental law, in addition
to standards promulgated under certain state laws or regulations that
are more stringent than corresponding federal law and are identified
to the entity leading the cleanup in a timely manner. See National Oil
and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Pt. 300
(2010).
[13] For purposes of this report, we refer to "removals" as defined in
the NCP and EPA's Superfund Program Implementation Manual, and as
distinct from the other steps such as the remedial investigation and
feasibility study (RI/FS). However, EPA notes that in some contexts,
the agency considers removals to include all phases of work from
preliminary assessment through the RI/FS.
[14] The National Response Center is the sole federal point of contact
for reporting all hazardous substances and oil spills that trigger
federal notification requirements under several laws. Information
reported to the Center is disseminated to other agencies, such as EPA,
as well as to states.
[15] 42 U.S.C. §§ 9620(e)(4) (2010).
[16] As we explain in this report, by agreement of the agencies, all
IAGs between EPA and DOD entered after February 2009 follow as a
template the IAG executed in March 2008 by the Army and EPA for Fort
Eustis, Va. Our general description of IAGs is based on the Fort
Eustis template, although some features were also included in IAGs
predating this template. For example, site management plans have been
included in IAGs since 1999.
[17] The key difference is that for these and other secondary
documents there is no provision for dispute resolution, and thus DOD
need not address all EPA comments to EPA's satisfaction. For purposes
of this report, we refer to the approvals subject to dispute
resolution as formal EPA approval.
[18] Any removal action should, to the extent practicable, contribute
to the efficient performance of any long-term remedial action with
respect to the release or threatened release concerned. 42 U.S.C. §
9604(a)(2) (2010). For example, the IAG for McGuire AFB establishes
that the agreement does not affect the Air Force authority under
CERCLA section 104 to conduct removals. Under the IAG, removal-related
documents such as Non-Time Critical Removal Action Plans and Removal
Action Memoranda, are secondary documents. While the IAG provides that
the Air Force and EPA have certain obligations regarding submission,
review, and response to comments for such documents, these documents
are not expressly subject to dispute resolution unless they are feeder
or input documents to a primary document, such as a remedial action.
According to DOD officials, this distinction means that the federal
facility may conduct a removal action without formal concurrence from
EPA. Nonetheless, EPA officials stated that due to its authorities for
remedy selection, it has an interest in ensuring, at a minimum, that a
removal action does not interfere with a remedial action work plan, as
included in the Fort Eustis IAG template.
[19] H.R. Rep. No. 99-253, pt. 1 at 95 (1985).
[20] H.R. Conf. Rep. No. 99-962 at 242 (1986).
[21] CERCLA's citizen suit provision, codified at 42 U.S.C. § 9659,
authorizes such suits to enforce any standard, regulation, condition,
requirement, or order, including any provision of an IAG, effective
under CERCLA. At a federal NPL site without an IAG, this provision
would grant a right to sue where a federal agency has violated, for
example, a ROD, to the extent it contains an enforceable standard,
condition, or requirement; however, judicial review regarding choice
of a remedy could not occur until after all activities in the ROD were
completed. Moreover, as discussed later in this report, sites without
IAGs may not achieve RODs, and/or may take many years to achieve RODs,
thus limiting the role of citizen suits as a pragmatic enforcement
mechanism for such sites. At such sites, a federal agency could either
delay cleanup or IAGs indefinitely, without risk of a citizen suit or
conduct removals without RODs.
[22] Formerly used defense sites are located on properties that were
under the jurisdiction of DOD and owned by, leased to, or otherwise
possessed by the United States prior to October 17, 1986, but have
since been transferred to states, local governments, other federal
entities, or private parties. See 10 U.S.C. § 2701(c)(1)(B) (2010);
see also footnote 1.
[23] 10 U.S.C. § 2705(a) (2010) ("Expedited notice").
[24] E.O. No. 12580, 52 Fed. Reg. 2923 (Jan. 23, 1987).
[25] The E.O. reflects this, stating that "[t]he conduct and control
of all litigation arising under [CERCLA] shall be the responsibility
of the Attorney General." Exec. Order No. 12,580 § 6(a).
[26] See Environmental Compliance by Federal Agencies: Hearing Before
the Subcommittee on Oversight and Investigations of the House
Committee on Energy and Commerce, 100th Congress 668, 675 (1987)
(memorandum from John Harmon, Assistant Attorney General, Office of
Legal Counsel, to Michael J. Egan, Associate Attorney General, June
23, 1978) (stating DOJ view that allowing EPA to sue another agency
would violate established principle that "no man can create a
justiciable controversy against himself").
[27] Pub. L. No. 102-386.
[28] [hyperlink, http://www.gao.gov/products/GAO-09-278].
[29] DOD notes that when it proceeded with removals for which it has
authority to proceed without formal EPA approval, it did so in order
to protect human health and the environment. These types of actions
typically are used to reduce immediate risks, and do not replace the
full CERCLA process which ensures long-term protectiveness and is
subject to formal EPA approval via RODs and other documents.
[30] RCRA provides EPA with the authority to issue administrative
enforcement orders to address solid and hazardous wastes that may
present an imminent and substantial endangerment to public health or
the environment.
[31] The Safe Drinking Water Act provides EPA with authority to take
action to protect human health from contamination present or likely to
enter a public water system which may present an imminent and
substantial endangerment.
[32] DOJ stated that EPA may require DOD to agree in the IAG to
follow, "in the same manner and to the same extent" as they apply to
private parties, any "guidelines, rules, regulations, and criteria"
established by EPA and made applicable to nonfederal facilities under
CERCLA, noting that EPA's model agreements for federal facilities and
for private parties may inform the content of such terms.
[33] Letter, William C. Anderson, Assistant Secretary for
Installations, Environment and Logistics, Department of the Air Force,
to Granta Nakayama, Assistant Administrator for Office of Enforcement
and Compliance Assurance, EPA, May 28, 2008.
[34] While the cleanup processes under CERCLA and RCRA have many
analogous steps, there are distinctions between the two regulatory
processes. DOD notes that in other RCRA contexts, such as closure of a
RCRA-permitted waste facility, EPA has recognized cleanup work
conducted under CERCLA, consistent with EPA guidance.
[35] CERCLIS is the database and data management system that EPA uses
to track activities at Superfund sites.
[36] U.S. Department of Defense. Fiscal Year 2008 Defense
Environmental Programs Annual Report to Congress. (Washington, D.C.,
July 16, 2009).
[37] DOD's term "response complete" means the remedy is in place and
required remedial action operations, if any, have been completed. DOD
categorizes as "response complete" sites where the agency has
determined no cleanup remedy is required, as well as sites where a
cleanup remedy has been fully implemented. See also DOD DERP Guidance
(2001).
[38] GAO, Military Munitions Response Program: Opportunities Exist to
Improve Program Management, [hyperlink,
http://www.gao.gov/products/GAO-10-384] (Washington, D.C.: Apr. 9,
2010); Environmental Contamination: Cleanup Actions at Formerly Used
Defense Sites, [hyperlink, http://www.gao.gov/products/GAO-01-557]
(Washington, D.C.: July 31, 2001).
[39] In addition, EPA provided us with a copy of other documents
developed by the installations, such as cleanup schedules, which also
included planned actions anticipated in the near future.
[40] The DERP statute directs DOD to carry out its hazardous
substances cleanup program in accordance with CERCLA, and CERCLA is
DOD's preferred framework for environmental restoration.
[41] DOD's Annual Report to Congress for Fiscal Year 2008 defines the
"study" phase as comprised of three investigation phases: preliminary
assessment, site inspection, and RI/FS.
[42] According to EPA officials, DOD developed its own environmental
reporting metrics without consulting EPA.
[43] In commenting on this report, DOD stated that it believes it is
difficult to obtain EPA concurrence on cleanup decisions at such sites
because of lack of resources, delays in review, and sometimes
disagreement over issues specific to the ROD.
[44] See 42 USC § 9620(e)(4)(B)-(C) (2010) (providing that IAGs shall
contain "[a] schedule for the completion of each such remedial action
and arrangements for long-term operation and maintenance of the
facility").
[45] DOD responded to EPA comments in a letter approximately 1 year
later.
[46] In commenting on this report, DOD acknowledged that the volume of
submissions may vary substantially over time, but stated that
schedules prepared for other purposes--such as DOD agreements with
states--typically identify time frames for submittal of many of these
documents.
[47] CERCLA requires specific community involvement activities that
must occur at certain points throughout the cleanup process. These
activities include, but are not limited to, public meetings, requests
for public comment, and availability of Superfund decision documents.
42 U.S.C. §§ 9613(k), 9620(e)(2), 9617(a)-(b), 9620(f), 9621(f)(1)
(2010).
[48] 48 C.F.R. 37.102(a)(1)(i) (FAR) (2010).
[49] DOD Guidebook (2000), available at [hyperlink,
https://www.acquisition.gov/SevenSteps/library/DODguidebook-pbsa.pdf].
(last accessed May 26, 2010).
[50] Air Force Center for Environmental Excellence, Environmental
Restoration Performance Based Contracting (PBC) Concept of Operations
(February 2007), p. 12-14.
[51] EPA issued a memorandum in 2006 regarding EPA's role and
responsibilities with respect to federal agencies' use of PBCs for
federal facility cleanups. See OSWER Guidance 9272.0-21. The
memorandum reflects the federal government preference for PBCs, while
observing that federal agencies using PBCs may tend to provide less
oversight of contractors than they had using traditional contracts,
among other concerns. The memorandum also states that PBCs should
clearly define performance objectives, and that general objectives
such as "work with regulators to obtain approval" are not appropriate.
[52] VOCs are emitted as gases from certain solids or liquids. VOCs
include substances--some of which may have short-and long-term adverse
health effects--such as benzene, toluene, methylene chloride, and
methyl chloroform.
[53] PCBs belong to a broad family of synthetic organic chemicals
known as chlorinated hydrocarbons. PCBs were domestically manufactured
from 1929 until their manufacture was banned in 1979. PCBs have been
demonstrated to cause a variety of adverse health effects, including
cancer and other serious non-cancer effects.
[54] The PA/SI is used by EPA as well as the lead agency to evaluate
whether the site may pose a threat to public health or the environment
and whether there is any potential need for removal action, and to
collect data to evaluate the release of hazardous substances from a
site.
[55] AR 200-1 § 15-5 (2007).
[56] 10 U.S.C. § 2705(a) (2010) ("Expedited notice").
[57] Paragraph 66(b) of the order states that "[i]n the event of any
release of a hazardous substance from the facility, [Tyndall AFB]
shall immediately notify" the EPA RPM, EPA Region 4, and the National
Response Center, and submit a written report within 7 days.
[58] The U.S. Department of Health and Human Services ATSDR is a
federal public health agency that is charged by CERCLA to assess the
presence of health hazards at Superfund sites and to provide
information about risks relevant to the need to reduce further
exposure to those hazards. This requirement is not limited to the
threshold reportable quantities established in CERCLA regulations.
[59] For copies of ATSDR's reports for Tyndall, see: [hyperlink,
http://www.atsdr.cdc.gov/HAC/PHA/HCPHA.asp?State=FL].
[60] Munitions constituents are defined as any materials originating
from unexploded ordnance, discarded military munitions, or other
military munitions, including explosive and nonexplosive materials,
and emission, degradation, or breakdown elements of such ordnance or
munitions (10 U.S.C. § 2710 (e)(4) (2010).
[61] The Phase I report identified the Stationary Target Range as one
such area, and noted that the Tyndall Elementary School is located on
a portion of the former range. The report further stated that lead
shot was observed on the ground in some places, and that lead shot had
previously been found at the school, but did not state specifically
whether the school property was inspected.
[62] The CSE Phase 1 Report was provided to EPA in mid-2007, but
Tyndall proceeded before receiving EPA's review, which was provided
later in 2007, or concurrence.
[63] According to EPA, Tyndall's contractor told EPA they observed
lead shot and clay target debris on the playground during a kickoff
site walk in August 2008, but the contractor denied this when
questioned by GAO. While the officials did not enter the school
property during the site walk, they were adjacent to the property and
could see the ground through or over a chain link fence at the
property boundary. Further, by AFCEE's March 2009 visit, Tyndall
representatives acknowledged they had recently observed lead shot at
the school.
[64] According to Air Force Center for Engineering and the Environment
officials, Tyndall AFB is responsible for any hazardous substances
response at the school, even though it is leased to the county.
[65] In contrast, Fort Meade officials conducted periodic surveys to
ensure that the Army identified any unexploded ordnance at the surface
of the Patuxent National Wildlife Refuge.
[66] In commenting on this report, DOD disagreed with GAO's
characterization of the ATSDR report, and asserts that the report
found that the lead shot did not present a health hazard. However,
ATSDR officials based the health assessment on their understanding
that no ongoing exposure to the shot itself was occurring.
[67] DOD notes that according to ATSDR guidance, EPA should have
received a copy of the 2000 ATSDR report, and asserts that this should
have alerted EPA to the presence of lead pellets at the school.
[68] EPA officials stated that a preliminary assessment, and
potentially a removal action, was indicated based on the data Tyndall
AFB had in 1992. Similarly, once Tyndall officials observed the lead
shot on the playground at some time prior to March 2009, Tyndall
should have undertaken further investigation right away, which would
have led to soil sampling and the removal as were eventually
conducted, as well as short-term measures to prevent children's
exposure. ATSDR officials told us that if they knew that lead shot
remained in the playground after 1992, they would have assessed its
risk in their 2000 assessment.
[69] E.O. No. 12580 § 4(e) (1987).
[70] In commenting on this report, DOD noted that the requirement for
DOJ concurrence provides a check on EPA authority which DOD asserts is
analogous to a private party's right to challenge an EPA order in
court--a mechanism not available to federal agencies for the same
reasons that EPA cannot bring a federal agency into court to enforce
an order. DOD further notes that EPA has "informal tools" such as
political pressure and interagency dispute mechanisms. However, GAO
believes that in some instances--such as the three sites studied here,
where DOD has failed to enter IAGs for over a decade--these tools are
insufficient given EPA's special role as the regulator--rather than a
response agency--under CERCLA.
[71] Where there has been a release of a hazardous substance where DOD
is the lead agency, CERCLA section 103(a) requires DOD to report such
releases above reportable quantities to the National Response Center.
CERCLA section 111(g), as delegated by E.O. 12580 § 8(b), requires DOD
to promulgate rules and regulations regarding notification of
potentially injured parties of such release, and until such
promulgation, requires reasonable notice to potential injured parties
by publication in local newspapers serving the affected area. Finally,
10 U.S.C. § 2705(a) requires the Secretary of Defense to take
necessary actions to ensure that EPA and state authorities receive
prompt notice of the discovery of a release or threatened release, the
associated extent of the threat to public health and the environment,
proposals to respond to such release, and initiation of any response.
[72] [hyperlink, http://www.gao.gov/products/GAO-09-278].
[73] As previously mentioned these four sites include the Defense
Reutilization and Marketing Office, Closed Sanitary Landfill, Clean
Fill Dump, and Post Laundry Facility.
[74] The signatories of the Federal Facility Agreement/IAG for Fort
Meade include EPA Region 3, the Army, Department of the Interior, and
Architect of the Capitol.
[75] The number of sites is as of the end of 2008.
[End of section]
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