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Report to Congressional Requesters: 

United States Government Accountability Office: 
GAO: 

March 2009: 

Superfund: 

Greater EPA Enforcement and Reporting Are Needed to Enhance Cleanup at 
DOD Sites: 

GAO-09-278: 

GAO Highlights: 

Highlights of GAO-09-278, a report to congressional requesters. 

Why GAO Did This Study: 

Prior to the 1980s and the passage of environmental legislation— 
particularly the Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA) governing environmental cleanup––Department 
of Defense (DOD) activities contaminated millions of acres of soil and 
water on and near DOD sites. The Environmental Protection Agency (EPA), 
which enforces CERCLA, places the most contaminated sites on its 
National Priorities List (NPL) and requires that they be cleaned up in 
accordance with CERCLA. EPA has placed 140 DOD sites on the NPL. 
Disputes have recently arisen between EPA and DOD on agreements to 
clean up some of these sites. In addition, most sites were placed on 
the NPL before 1991; since fiscal year 2000, EPA has added five DOD 
sites. In this context, we agreed to determine (1) the extent of EPA’s 
oversight during assessment and cleanup at DOD sites and (2) why EPA 
has proposed fewer DOD sites for the NPL since the early 1990s. GAO 
interviewed officials at EPA and DOD and reviewed site file 
documentation at four EPA regions. 

What GAO Found: 

EPA evaluates DOD’s preliminary assessments of contaminated DOD sites 
but has little to no oversight of the cleanup of the majority of these 
sites because most are not on the NPL. Of the 985 DOD sites requiring 
cleanup of hazardous substances, EPA has oversight authority of the 140 
on the NPL; the remaining 845 non-NPL sites are overseen by other 
cleanup authorities—usually the states. Our review of 389 non-NPL DOD 
sites showed that EPA decided not to list 56 percent because it 
determined the condition of the sites did not satisfy the criteria for 
listing or because it deferred the sites to other programs, most often 
the Resource Conservation and Recovery Act––another federal statute 
that governs activities involving hazardous waste. However, EPA 
regional officials were unable to provide a rationale for not listing 
the remaining 44 percent because site files documenting EPA’s decisions 
were missing or inconclusive. In addition, EPA has agreements with DOD 
for cleaning up 129 of the 140 NPL sites and is generally satisfied 
with the cleanup of these sites. However, DOD does not have agreements 
for the remaining 11 sites, even though they are required under CERCLA. 
It was not until more than 10 years after these sites were placed on 
the NPL that EPA, in 2007, pursued enforcement action against DOD by 
issuing administrative orders at 4 of the 11 sites. 

Since the mid-1990s, EPA has placed fewer DOD sites on the NPL than in 
previous years for three key reasons. First, EPA does not generally 
list DOD sites that are being addressed under other federal or state 
programs to avoid duplication. Second, DOD and EPA officials told us 
that, because DOD has been identifying and cleaning up hazardous 
releases for more than two decades, and improved its management of 
waste generated during its ongoing operations, DOD has discovered fewer 
hazardous substance releases in recent years, making fewer sites 
available for listing. Third, in a few instances, state officials or 
others have objected to EPA’s proposal to list contaminated DOD sites, 
and EPA has usually declined to proceed further. For example, in five 
instances EPA proposed contaminated DOD sites for the NPL that were not 
ultimately placed on the list. At four of these sites, the states’ 
governors did not support listing, citing the perceived stigma of 
inclusion on the NPL and potential adverse economic effect. EPA did not 
list the fifth site because, according to EPA regional officials, DOD 
objected and appealed to the Office of Management and Budget, which 
recommended deferring this listing for 6 months to give DOD time to 
address personnel and contractor changes and demonstrate remediation 
progress. EPA officials recently told us that cleanup has taken place 
at these sites and that it was unlikely or unclear whether they would 
qualify for placement on the NPL based on their current condition. 

What GAO Recommends: 

GAO suggests that Congress consider amending CERCLA to expand EPA’s 
enforcement authority. EPA agreed that such authority would help assure 
timely and protective cleanup. DOD disagreed, stating that EPA has 
sufficient involvement. We continue to assert that EPA needs additional 
authority to ensure that cleanups are being done properly. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.gao.gov/products/GAO-09-278]. For more 
information, contact John Stephenson at (202) 512-3841 or 
stephensonj@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

EPA Evaluates All Potentially Contaminated DOD Sites for Listing, but 
Does Not Oversee Cleanup at Most Hazardous Waste DOD Sites: 

EPA Proposes Few Contaminated DOD Sites Based on EPA Policy and DOD's 
Maturing Inventory of Hazardous Waste Sites: 

Conclusions: 

Matter for Congressional Consideration: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Other Cleanup Programs: 

Appendix III: Comments from the Environmental Protection Agency: 

Appendix IV: Comments from the Department of Defense: 

Appendix V: GAO Contact and Staff Acknowledgments: 

Table: 

Table 1: Chronology of Events to Negotiate IAGs for DOD NPL Sites: 

Figures: 

Figure 1: Annual Number of DOD Sites Placed on the NPL Has Declined 
Since the 1990s, Fiscal Years 1980-2008: 

Figure 2: Private, Federal, and DOD Sites on the NPL: 

Figure 3: Key Stages of the CERCLA Process to Address and Clean Up 
Hazardous Waste at Federal Facilities: 

Figure 4: Findings from GAO's Review of 389 DOD Sites: 

Abbreviations: 

CERCLA: Comprehensive Environmental Response, Compensation, and 
Liability Act: 

DOD: Department of Defense: 

DOJ: Department of Justice: 

EPA: Environmental Protection Agency: 

HRS: Hazard Ranking System: 

IAG: interagency agreement: 

NCP: National Oil and Hazardous Substances Pollution Contingency Plan 
(National Contingency Plan): 

NPL: National Priorities List: 

OMB: Office of Management and Budget: 

PCB: polychlorinated biphenyl: 

RCRA: Resource Conservation and Recovery Act: 

SARA: Superfund Amendments and Reauthorization Act: 

TCE: trichloroethylene: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

March 13, 2009: 

The Honorable Edward J. Markey: 
Chairman: 
Subcommittee on Energy and Environment: 
Committee on Energy and Commerce: 
House of Representatives: 

The Honorable John D. Dingell: 
The Honorable Gene Green: 
House of Representatives: 

Prior to the 1980s and the passage of environmental legislation 
regulating the generation, storage, 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 sites 
in the United States and its territories. DOD installations generate 
hazardous wastes primarily through industrial operations to repair and 
maintain military equipment. Manufacturing and testing weapons at Army 
ammunition plants and proving grounds have caused some serious 
contamination problems as well. To address the cleanup of hazardous 
substance releases nationwide, in 1980, Congress passed the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(CERCLA), better known as "Superfund." 

In 1986, CERCLA was amended by the Superfund Amendments and 
Reauthorization Act (SARA). SARA reflected concern with the adequacy 
and timeliness of DOD and other federal agency cleanups, which was 
compounded by the Environmental Protection Agency's (EPA) unwillingness 
or inability to carry out enforcement actions against other federal 
agencies. SARA addresses this problem by (1) requiring DOD and other 
federal agencies to comply with CERCLA; (2) providing EPA with the 
authority to select remedies at federal facility National Priorities 
List (NPL) sites if agreement cannot be reached on the remedy to be 
selected; and (3) requiring federal agencies to enter into interagency 
agreements (IAG) with EPA at NPL sites. SARA also added a citizen suit 
provision to CERCLA specifically authorizing nonfederal parties such as 
states and citizens' groups to sue DOD and other federal agencies to 
enforce the terms of IAGs, among other things; and established a 
Defense Environmental Restoration Program along with separate 
Department of the Treasury accounts specifically for DOD environmental 
cleanup activities--to better ensure cleanup funding availability--and 
requiring DOD to carry out those activities in accordance with CERCLA. 

Section 120 of CERCLA, as amended, requires federal agencies to comply 
with CERCLA and submit information to EPA on certain potentially 
hazardous releases. EPA maintains this information in a Federal Agency 
Hazardous Waste Compliance Docket which includes a history of federal 
facilities that generate, transport, store, or dispose of hazardous 
waste or that have had some type of hazardous substance release or 
spill. 

For each site on the docket, CERCLA Section 120 requires EPA to take 
steps to ensure that a preliminary site assessment is conducted by the 
responsible federal agency.[Footnote 1] The preliminary assessment, 
which is generally based on site records and other information 
regarding hazardous substances stored or disposed of at the facility, 
forms the basis for EPA to evaluate the site for listing on the NPL. 
EPA reviews preliminary site assessments to determine whether a site 
poses little or no threat to human health and the environment or 
requires further investigation or assessment for possible cleanup. 
Based on this assessment, EPA may then score and rank the site based on 
whether the contamination presents a potential threat to human health 
and the environment.[Footnote 2] If a site scores at or above a minimum 
threshold for cleanup under CERCLA, EPA may place the site on the NPL 
or defer it to another regulatory authority, such as a state agency, 
for cleanup under other statutory authorities or programs, such as the 
Resource Conservation and Recovery Act (RCRA). As of November 2008, the 
NPL included 1,587 sites.[Footnote 3] Of these, according to EPA 
officials, 140 were federal DOD sites, representing almost 9 percent of 
the NPL.[Footnote 4] 

Section 120 of CERCLA also establishes specific procedures for cleaning 
up federal facilities on the NPL. As part of its oversight 
responsibility, EPA works with DOD to evaluate the nature and extent of 
contamination at a site, select a remedy, track cleanup and monitor the 
remedy's effectiveness in protecting human health and the environment. 
Under Section 120 of CERCLA, DOD 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 at a site. According to EPA 
officials, shortly after Section 120 was enacted, EPA and DOD 
acknowledged that regulatory oversight during the investigation phase 
was required if EPA was to meet its statutory obligation regarding 
remedy selection at NPL sites. Beginning in 1988, EPA and DOD agreed to 
model language for IAGs which included a provision to enter into IAGs 
earlier than mandated by statute--prior to the remedial investigation 
stage--to establish the roles and responsibilities of EPA and DOD to 
investigate and clean up sites. IAGs are required to include, at a 
minimum, a review of the alternative remedies considered and the 
selected remedy, a schedule for cleanup, and plans for long-term 
operations and maintenance. The Federal Facility Compliance Act, among 
other things, authorized EPA to order the cleanup of contaminated sites 
by initiating administrative enforcement actions against a federal 
agency under RCRA, on the same basis as they would be applied to 
private parties. 

Disputes have recently arisen between EPA and DOD regarding the terms 
of IAGs governing cleanup and whether EPA had a sufficient basis for 
administrative enforcement actions at several DOD sites. In addition, 
in recent years, EPA has added fewer sites to the NPL. According to 
EPA's 2007 annual report on Superfund, more than 75 percent of all 
sites listed on the NPL--both federal and nonfederal--were listed 
before 1991. Since fiscal year 2000, EPA added five DOD sites to the 
NPL (see figure 1). 

Figure 1: Annual Number of DOD Sites Placed on the NPL Has Declined 
Since the 1990s, Fiscal Years 1980-2008: 

[Refer to PDF for image: vertical bar graph] 

Fiscal year: 1979; 
Sites Placed on the NPL: 0. 

Fiscal year: 1980; 
Sites Placed on the NPL: 0. 

Fiscal year: 1981l 
Sites Placed on the NPL: 0. 

Fiscal year: 1982; 
Sites Placed on the NPL: 0. 

Fiscal year: 1983; 
Sites Placed on the NPL: 2. 

Fiscal year: 1984; 
Sites Placed on the NPL: 1. 

Fiscal year: 1985; 
Sites Placed on the NPL: 0. 

Fiscal year: 1986; 
Sites Placed on the NPL: 0. 

Fiscal year: 1987; 
Sites Placed on the NPL: 29. 

Fiscal year: 1988; 
Sites Placed on the NPL: 0. 

Fiscal year: 1989; 
Sites Placed on the NPL: 7. 

Fiscal year: 1990l 
Sites Placed on the NPL: 57. 

Fiscal year: 1991; 
Sites Placed on the NPL: 0. 

Fiscal year: 1992; 
Sites Placed on the NPL: 0. 

Fiscal year: 1993; 
Sites Placed on the NPL: 6. 

Fiscal year: 1994; 
Sites Placed on the NPL: 18. 

Fiscal year: 1995; 
Sites Placed on the NPL: 6. 

Fiscal year: 1996; 
Sites Placed on the NPL: 0. 

Fiscal year: 1997; 
Sites Placed on the NPL: 2. 

Fiscal year: 1998; 
Sites Placed on the NPL: 2. 

Fiscal year: 1999; 
Sites Placed on the NPL: 5. 

Fiscal year: 2000; 
Sites Placed on the NPL: 2. 

Fiscal year: 2001; 
Sites Placed on the NPL: 1. 

Fiscal year: 2002; 
Sites Placed on the NPL: 1. 

Fiscal year: 2003; 
Sites Placed on the NPL: 0. 

Fiscal year: 2004; 
Sites Placed on the NPL: 0. 

Fiscal year: 2005; 
Sites Placed on the NPL: 1. 

Fiscal year: 2006; 
Sites Placed on the NPL: 0. 

Fiscal year: 2007; 
Sites Placed on the NPL: 0. 

Fiscal year: 2008; 
Sites Placed on the NPL: 0. 

Source: EPA data. 

[End of figure] 

In this context, we agreed to determine (1) the extent of EPA's 
oversight during assessment and cleanup at DOD NPL and non-NPL sites 
and (2) why EPA has proposed fewer DOD sites for the NPL since the 
early 1990s. 

To determine the extent of EPA's oversight during assessment and 
cleanup at NPL and non-NPL DOD sites, we reviewed EPA policies and 
documentation on oversight processes, and interviewed officials at EPA 
headquarters and four regional offices to determine the extent to which 
the agency helps to ensure that the most contaminated DOD sites are 
expeditiously assessed and cleaned up. We also reviewed documentation 
and interviewed DOD officials on the agency's environmental restoration 
program and efforts to clean up contaminated DOD sites. To determine 
why EPA has proposed fewer DOD sites for the NPL since the early 1990s, 
we reviewed EPA's file documentation on contaminated DOD sites and 
interviewed officials at EPA headquarters and selected EPA regions. We 
excluded from our review sites under DOD's military munitions response 
program due to the ongoing uncertainty associated with defining 
unexploded ordnance as hazardous substances and the fact that GAO has 
ongoing work in this area. 

We conducted work at four EPA regions--Atlanta, Chicago, Dallas, and 
San Francisco--which, taken together, are responsible for about half of 
all DOD sites in EPA's database of contaminated federal facilities. We 
selected the Atlanta and Chicago regions because they are responsible 
for five DOD sites that EPA proposed for the NPL but which were not 
listed. We selected the San Francisco region because it has the largest 
number of contaminated DOD sites. We selected the Dallas region to 
pretest our review methodology because it was geographically 
convenient. We conducted this performance audit in accordance with 
generally accepted government auditing standards between January 2008 
and March 2009. 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. 
More detail on the scope and methodology of our review is presented in 
appendix I. 

Results in Brief: 

While EPA evaluates DOD's preliminary assessments of all DOD sites on 
the Hazardous Waste Compliance Docket, according to EPA officials, the 
agency has little to no enforceable oversight authority under Section 
120 of the cleanup of the majority of these sites because most are not 
on the NPL. Of the 985 current hazardous release DOD sites, EPA has 
oversight authority of the 140 DOD sites on the NPL; 11 of these NPL 
sites do not have IAGs in place that CERCLA Section 120 requires to 
guide cleanup activity, DOD choosing instead to conduct cleanup with 
minimal, if any, EPA oversight. The remaining 845 DOD sites are 
overseen by other cleanup authorities--primarily the states--or 
required no further action under CERCLA following assessment. 
Therefore, state agencies or another regulatory authority, rather than 
EPA, oversee the cleanup of hazardous substance releases at most 
contaminated DOD sites. Most states have their own cleanup programs to 
address hazardous waste sites and RCRA corrective action authority to 
clean up RCRA sites. While EPA regions have some oversight of states' 
RCRA programs by reviewing site files and providing technical advice to 
states, EPA defers oversight authority to states for the cleanup of 
individual RCRA sites. Our review of 389 non-NPL DOD sites at four EPA 
regions showed that for more than one-half of these sites, EPA 
generally did not propose to list these sites because it determined 
that the condition of the sites did not satisfy the criteria to score a 
high Hazard Ranking System (HRS) score--that is, little to no hazardous 
release or the potential for a hazardous release was found--or because 
it deferred the sites to another cleanup program, most often RCRA. EPA 
regional officials were unable to provide documentation for the 
agency's decision not to list the remaining sites we reviewed, however, 
because original site file records were missing or inconclusive. EPA 
has IAGs with DOD in place for most of its NPL sites--129 of the 140 
DOD sites on the NPL. According to an EPA headquarters official, EPA is 
generally satisfied with the cleanup of DOD NPL sites where there is an 
IAG. However, the remaining 11 sites do not have IAGs because DOD has 
disagreed with the terms of the provisions contained in the agreements, 
stating the terms conflict with or go beyond CERCLA or its regulatory 
requirements. Despite the CERCLA requirement for IAGs at all NPL 
federal facility sites, CERCLA Section 120 imposes no specific 
sanctions if a federal agency refuses to enter into an IAG. Although 
EPA may initiate administrative enforcement actions, in appropriate 
circumstances, under other laws, such as RCRA and the Safe Drinking 
Water Act, to compel DOD to clean up contaminated sites, EPA chose not 
to pursue enforcement actions until 2007, more than 10 years after 
these sites were listed on the NPL. In its most recent report to 
Congress in 2007, EPA noted the number of NPL sites with IAGs but did 
not explain the basis for the 11 DOD sites without IAGs. Later that 
year, the agency issued administrative enforcement orders under RCRA 
and the Safe Drinking Water Act against four of these sites. Each order 
stated that contamination at the respective sites may present an 
imminent and substantial endangerment to health or the environment and 
directed DOD to carry out certain cleanup and related actions. In May 
2008, DOD sent a memorandum to the Department of Justice (DOJ) asking 
DOJ to resolve a dispute over EPA's authority to issue the orders. In 
December 2008, DOJ issued a letter upholding EPA's authority to issue 
administrative cleanup orders at DOD NPL sites in appropriate 
circumstances, and to include in IAGs certain provisions other than 
those specifically enumerated in CERCLA[Footnote 5].: 

Since the mid-1990s, EPA has listed fewer DOD sites on the NPL than in 
previous years for three key reasons. First, EPA does not generally 
list DOD sites that are being addressed under other federal or state 
programs to avoid duplication of remedial actions. Second, DOD and EPA 
officials told us that over the years, DOD has discovered fewer 
hazardous substance releases, making fewer sites available for listing. 
Fewer sites have been discovered, in part because DOD has been 
identifying and cleaning up hazardous releases for more than two 
decades, and because DOD has improved its management of waste generated 
during its ongoing operations. Finally, in rare instances, EPA did not 
list some contaminated defense sites due to the objections of other 
interested parties. For example, although EPA proposed listing five DOD 
sites between 1994 and 2000, the agency ultimately chose not to 
complete the listing process for them. At four sites, the states' 
governors did not support placement of these sites on the NPL. The 
governors for three of these sites cited the perceived stigma of NPL 
listing and potential adverse economic effect as the reasons why the 
state did not support listing. The governor did not support listing the 
fourth site after it was closed under the Base Realignment and Closure 
program and DOD began to clean up the site. Although EPA may list sites 
over the objections of a governor, EPA officials told us they generally 
do not list federal sites without a governor's concurrence. According 
to EPA regional officials, EPA did not list the fifth DOD site because 
DOD objected, and the Office of Management and Budget (OMB) recommended 
against listing. OMB officials encouraged EPA to defer listing for 6 
months to provide DOD with more time to address personnel and 
contractor changes and demonstrate remediation progress. If after that 
time, progress was not forthcoming, then listing was to be pursued, but 
in fact, never was. EPA officials said that cleanup has taken place at 
all five sites and that it was either unlikely or unclear that the 
sites would qualify for listing on the NPL based on the current 
conditions at the sites. 

We provided a draft of this report to EPA and DOD for review and 
comment. In general, EPA agreed with the findings and conclusions of 
our report and supported our suggestion that Congress consider amending 
CERCLA to expand the agency's enforcement authority. While EPA stated 
that such authority would help assure timely and protective cleanup, 
DOD disagreed stating that EPA has sufficient involvement at NPL sites 
regardless of whether IAGs are in place and should strive to more 
effectively implement its authority under existing law. Despite DOD's 
position that EPA is sufficiently involved at DOD NPL sites without 
IAGs, EPA disagrees. Statutory requirements provide for independent EPA 
oversight, not a mere opportunity for EPA review and comment. 
Therefore, we assert that expanding EPA's enforcement authority is 
appropriate to ensure that cleanups are being done properly at federal 
facility NPL sites. 

Background: 

Various environmental statutes, including CERCLA and RCRA, govern the 
reporting and cleanup of hazardous substances and hazardous waste at 
DOD sites. Specific provisions in these laws establish requirements for 
addressing hazardous waste cleanup or management. Key aspects of these 
requirements for federal facilities are described below: 

Comprehensive Environmental Response, Compensation, and Liability Act. 
The Comprehensive Environmental Response, Compensation, and Liability 
Act (CERCLA) of 1980 was passed to give 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. The EPA program under CERCLA is better 
known as "Superfund" because Congress established a large trust fund 
that is used to pay for, among other things, remedial actions at 
nonfederal sites on the NPL.[Footnote 6] Federal agencies are 
prohibited from using the Superfund trust fund to finance their 
cleanups and must, instead, use their own or other appropriations. 
[Footnote 7] 

Figure 2 depicts the number of NPL sites listed by EPA as of November 
2008, which totals 1,587 sites. Of these, 140 were DOD NPL sites, 
representing the majority of federal facility sites on the NPL. 
According to EPA's 2007 annual report on Superfund, more than 75 
percent of all sites on the NPL--both federal and private--were listed 
before 1991. Since fiscal year 2000, EPA has added five DOD sites to 
the NPL. 

Figure 2: Private, Federal, and DOD Sites on the NPL: 

[Refer to PDF for image: pie-chart] 

Private sites: 1,415 (89%); 
Defense sites: 140 (9%); 
Other federal sites: 32 (2%). 

Source: EPA’s CERCLA database. 

Note: As of November 2008, the total number of federal facilities and 
private sites on the NPL was 1,587. The 32 other federal NPL sites 
included 21 Department of Energy sites, 2 Department of Agriculture 
sites, 1 Federal Aviation Administration site, 1 Coast Guard site, 2 
National Aeronautics and Space Administration sites, 1 Small Business 
Administration site, 2 Department of the Interior sites, 1 Department 
of Transportation site, and 1 EPA site. 

[End of figure] 

CERCLA does not establish regulatory standards for the cleanup of 
specific substances, but requires that long-term cleanups comply with 
applicable or relevant, and appropriate requirements. These may include 
a host of federal and state standards that generally regulate exposure 
to contaminants. 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 at defense sites, though as described below, it 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 if it disagrees with DOD regarding the remedy to be selected. 
[Footnote 8] 

In 1986, the Superfund Amendments and Reauthorization Act (SARA) added 
provisions to CERCLA specifically governing the cleanup of federal 
facilities. Under Section 120 of CERCLA, as amended, EPA must take 
steps that assure completion of a preliminary site assessment by the 
responsible agency for each site in the Federal Agency Hazardous Waste 
Compliance Docket.[Footnote 9] This preliminary assessment is reviewed 
by EPA, together with additional information, to determine whether the 
site poses little or no threat to human health and the environment or 
requires further investigation or assessment for potential proposal to 
the NPL. SARA also added Section 211 of CERCLA, which established DOD's 
Defense Environmental Restoration Program providing legal authority 
governing cleanup activities at DOD installations and properties. 

CERCLA Section 120 also 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 the remedy, known 
as a remedial action; (2) the schedule for completing the remedial 
action; and (3) arrangements for long-term operations and maintenance 
at the site. DOD 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 at a site. 

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 authority 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 10] 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 11] 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 orders under RCRA and, as such, are subject to SARA's 
citizen suit and penalties provisions. Thus, penalties can be assessed 
against federal agencies for violating terms of agreements with 
EPA.[Footnote 12] However, at sites without IAGs, EPA has only a 
limited number of enforcement tools to use in compelling compliance by 
a recalcitrant agency; similarly, states and citizens also lack a 
mechanism to enforce CERCLA. 

Resource Conservation and Recovery Act. In 1976, Congress passed the 
Resource Conservation and Recovery Act (RCRA) giving EPA the authority 
to regulate the generation, transportation, treatment, storage, and 
disposal of hazardous waste. Under RCRA, EPA may authorize states to 
carry out many of the functions of the statute in lieu of EPA under a 
state's hazardous waste programs and laws. Almost all states are 
authorized to implement some portion of the RCRA program. Forty-eight 
states are currently authorized to implement the RCRA base program to 
manage hazardous waste treatment, storage, and disposal. (Only Alaska 
and Iowa are not authorized to implement the RCRA base program.) Forty- 
three states are authorized to implement the RCRA corrective action 
program which expands a state's RCRA authority to include managing the 
cleanup of releases of hazardous waste and hazardous constituents. 

EPA has a policy to defer sites, which are being managed under RCRA, 
from placement on the NPL, known as the RCRA deferral policy. Where 
this policy is applied, cleanup proceeds under RCRA, generally through 
an authorized state corrective action program, rather than CERCLA. EPA 
regions may defer a federal facility site to RCRA even if the site is 
eligible for the NPL. In 1996, Congress amended CERCLA to authorize EPA 
to consider non-CERCLA cleanup authorities when making a listing 
determination for federal facility sites if the site is already subject 
to an approved federal or state cleanup plan. According to EPA policy, 
the criteria to defer a federal facility site from the NPL to RCRA are: 
(1) the CERCLA site is currently being addressed by RCRA Subtitle C 
corrective action authorities under an existing enforceable order or 
permit containing corrective action provisions; (2) the response under 
RCRA is progressing adequately; and (3) the state and community support 
deferral of NPL listing. According to EPA, deferral from one program to 
another is often the most efficient and desirable way to address 
overlapping requirements, and deferrals to RCRA may free CERCLA 
oversight resources for use in situations where another authority is 
unavailable. In these instances, state agencies or another regulatory 
authority, rather than EPA, oversee the cleanup of hazardous substance 
releases. 

Other non-CERCLA cleanup authorities EPA considers in deciding whether 
to list a site include state cleanup programs (often referred to as 
voluntary cleanup programs) and DOD's environmental response program. 
See appendix II for a summary of these cleanup programs. 

The NCP provides the methods and criteria for carrying out site 
discovery, assessment, and cleanup activities under CERCLA. Figure 3 
depicts the process by which EPA and federal agencies assess a site for 
inclusion on the NPL and address contamination at federal NPL sites. 

The CERCLA cleanup process is made up of a series of steps, during 
which specific activities take place or decisions are made. The key 
steps in this process are included in figure 3. 

Figure 3: Key Stages of the CERCLA Process to Address and Clean Up 
Hazardous Waste at Federal Facilities: 

[Refer to PDF for image: illustration] 

Site Assessment: 

1) Federal agency discovers hazardous release site; 

2) EPA places site in federal docket; 

3) Preliminary Assessment (performed for every site in docket): 
Is the preliminary HRS score greater than 28.5? 
No: No further remedial action planned (defer site). 
Yes: Proceed. 

4) Site Inspection: 
Is the preliminary HRS score greater than 28.5? 
No: No further remedial action planned (defer site). 
Yes: Proceed. 

5) Are there other cleanup alternatives? 
Yes: 
* Pursue non-NPL cleanup alternatives; 
* Provide information to states and other regulatory programs; 
No: Proceed. 

6) Seek governor concurrence; Complete HRS package; Propose site for 
listing. 

7) National Priorities List (NPL). 

Remediation: 

8) Remedial Investigation/Feasibility Study (conducted within 6 months 
of listing on NPL); 

9) Interagency Agreement (signed within6 months of RI/FS); 

10) Record of Decision; 

11) Remedial Design/Remedial Action. 

Monitoring: 

12) Long-term monitoring (if contamination left in place); 

13) Are there contaminants left in place? 
Yes: 5-year reviews must take place; 
No: Long-term monitoring continues. 

Source: EPA. 

[End of figure] 

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 three 
provisions of RCRA or one provision of 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 have 
had some type of hazardous substance release or spill. EPA updates the 
docket periodically. 

[Text box: Docket Reporting Categories: 

The categories for listing a facility on the docket provide an initial 
basis for assessing hazardous waste contamination. The four reporting 
categories are: 

* RCRA Section 3005: facilities for which agencies have applied for an 
EPA permit for hazardous waste treatment, storage, or disposal. 

* RCRA Section 3010: facilities where hazardous materials are 
generated, transported, treated, stored, or disposed. 

* RCRA Section 3016: facilities with hazardous waste activities that 
federal agencies have reported in their inventories. 

* CERCLA Section 103: facilities for which agencies have reported any 
releases or spills of a hazardous substance. 

Every 6 months, EPA is also required to publish in the Federal Register 
a list of the federal facilities that were added to the docket during 
the preceding 6-month period and notify regions of any actual or 
threatened hazardous substance release. At about the same time, EPA 
also lists these sites in its computerized CERCLA information database, 
an inventory of actual and potential hazardous releases at federal and 
private sites. As of October 2008, EPA’s CERCLA information database 
listed 12,621 federal and private sites. End of text box] 

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 preliminary assessments to 
determine whether the information is sufficient to assess 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. 

HRS 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 related to the 
release 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. 

Governor's concurrence. Before placing a site on the NPL, the EPA 
Regional Administrator sends a written inquiry to the governor seeking 
a written response from the state addressing whether it will support a 
listing decision. According to EPA regional officials, EPA usually 
contacts the governor before calculating the HRS score due to the high 
cost and length of time required to prepare a scoring package. If EPA 
calculates an HRS score of 28.50 or higher and the governor agrees with 
EPA to list the site, the site is eligible for inclusion on the NPL. 
However, where the governor does not support listing, but the EPA 
region firmly believes listing is necessary, a process, involving OMB 
for federal facilities, is followed before a listing decision is made. 

Following the decision to place a site on the NPL, several steps lead 
to the selection of a cleanup remedy and its long-term operation and 
maintenance. These steps are described below: 

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, provide 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 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. 

Federal Facility Compliance Act. The Federal Facility Compliance Act of 
1992, which amended RCRA, authorizes EPA to order the cleanup of 
contaminated sites by initiating administrative enforcement actions 
against a federal agency under RCRA, including the imposition of fines 
and penalties. The act authorizes EPA to initiate administrative 
enforcement actions against federal agencies in the same manner and 
under the same circumstances as actions would be initiated against a 
person. 

Enforcement. Several factors hinder the enforcement of cleanup 
requirements at federal facilities. DOJ has taken the position that EPA 
may not sue another federal agency to enforce cleanup requirements. EPA 
may not issue cleanup orders under CERCLA to other federal agencies 
without DOJ's concurrence. EPA may issue cleanup orders to other 
federal agencies under RCRA and the Safe Drinking Water Act, but not 
all RCRA orders can provide for administrative penalties. IAGs also 
generally contain administrative penalty provisions. Third parties, 
such as states and citizens groups, may sue to enforce IAGs and 
administrative orders under the "citizen suit" and other public 
participation provisions of CERCLA, RCRA, and Safe Drinking Water Act, 
but such litigation can be time consuming.[Footnote 13] 

[Text box: DERP: 

Under the Defense Environmental Restoration Program, DOD must ensure 
that EPA and appropriate state and local officials have notice and an 
adequate opportunity to comment on (1) the discovery of releases or 
threatened releases of hazardous substances at a facility; (2) the 
extent of the threat to public health and the environment which may be 
associated with any such release or threatened release; (3) DOD 
proposals to carry out response actions with respect to any such 
release or threatened release; and (4) the initiation of any response 
action with respect to such release or threatened release and the 
commencement of each distinct phase of such activities. The Defense 
Environmental Restoration Program does not require DOD to respond to 
the comments or provide a mechanism for EPA or other officials to 
compel a response or other action if they believe DOD's proposed 
activities are inadequate. End of text box] 

EPA Evaluates All Potentially Contaminated DOD Sites for Listing, but 
Does Not Oversee Cleanup at Most Hazardous Waste DOD Sites: 

While EPA oversees and evaluates DOD's preliminary assessments of all 
DOD sites suspected of having a hazardous release, the agency has 
little to no oversight of the cleanup of most of these sites because 
most are not on the NPL. EPA reviews DOD sites to determine whether to 
propose placement on the NPL. However, only 140 of the 985 current DOD 
sites with hazardous waste appear on the NPL. EPA and DOD have not 
finalized IAGs for the remaining 11 sites, which impedes EPA's ability 
to enforce cleanup, such as approving detailed cleanup schedules and 
applying administrative penalties. EPA only recently began using 
enforcement action at DOD NPL sites where an IAG is not in place. State 
agencies, rather than EPA, oversee the cleanup of hazardous waste at 
most DOD sites. 

EPA Reviews DOD Sites to Determine whether to Propose NPL Listing: 

DOD performs preliminary assessments of all federal DOD sites on the 
Federal Agency Hazardous Waste Compliance Docket. EPA regions review 
the assessments to determine whether releases pose a threat to human 
health and the environment and if so, whether hazardous substances are 
being released into the environment. DOD's preliminary assessments are 
based on readily available and historical data of suspected releases on 
DOD sites. DOD reports the results of preliminary assessments to EPA, 
which often requests additional information such as data on site 
geography, prior activities at the site, and the source and destination 
of the hazardous release. According to EPA guidance, EPA regions should 
complete their review of preliminary assessments within 18 months of 
when the site was listed on the federal docket; however, EPA officials 
from two regions told us that DOD may take 2 to 3 years to complete a 
preliminary assessment because EPA does not have an independent 
authority under CERCLA to enforce a time line for completion of the 
preliminary assessment. Based on their review of the preliminary 
assessment, EPA regional officials may determine that no further action 
is needed at the site or request that DOD perform a more comprehensive 
site inspection by sampling groundwater and other media on site. 
Following DOD's investigation, EPA regional officials may: determine 
that no further action is needed at the site; defer the site to another 
regulatory authority, such as a state agency, for cleanup; or begin the 
process to propose the site for placement on the NPL. 

Few Hazardous Waste DOD Sites Considered for Listing Are Ultimately 
Placed on the NPL: 

Of the 985 DOD sites contaminated with hazardous substances, EPA placed 
140 sites--about 15 percent--on the NPL; the remaining 845 sites are 
generally overseen by a cleanup authority other than EPA. Sites on the 
NPL are considered among the most dangerous of all hazardous substance 
sites, based on the evaluation criteria used by EPA. EPA may propose to 
list sites that (1) have an HRS score of 28.50 or higher; (2) a state 
designates as its top priority, regardless of the HRS score; or (3) are 
subject to a health advisory issued by the Agency for Toxic Substances 
and Disease Registry and meet certain other criteria.[Footnote 14] In 
practice, however, few sites meet these criteria. Further, even if a 
site is eligible for placement on the NPL based on the HRS score, EPA 
may choose to defer the site to RCRA. As we discuss later in this 
report, our review of non-NPL DOD sites in four EPA regions 
demonstrated that available data supporting these decisions is limited. 
EPA regional officials were unable to provide a rationale for EPA's 
decision to not list almost one-half of the 389 sites that we reviewed 
because site file documentation was inconclusive or missing. For the 
remaining sites, EPA did not propose listing because officials 
determined the sites did not satisfy the criteria to score a high HRS 
score or deferred them to another regulatory authority. 

More than a Decade after Listing, 11 DOD NPL Sites Do Not Have IAGs, 
Impeding EPA's Ability to Enforce Cleanup Actions at Those Sites: 

Although EPA has IAGs in place with DOD for 129 of the 140 DOD sites on 
the NPL, IAGs have not been finalized at the remaining 11 sites 
remaining. According to an EPA headquarters official, EPA is generally 
satisfied with the cleanup of DOD NPL sites where DOD has signed IAGs. 
EPA has encountered few problems at these sites, the EPA official said, 
because DOD is held accountable for compliance with the provisions of 
the IAGs and if differences arise, the agreements provide EPA with an 
enforceable process to address the issue. EPA and DOD have not 
finalized IAGs for the remaining 11 DOD NPL sites, however. As a 
result, DOD has been cleaning up 11 sites without IAGs, inhibiting 
EPA's ability to seek enforcement actions that compel attention to 
schedules and milestones. Under CERCLA, as amended, EPA and DOD must 
enter into negotiated IAGs for the expeditious completion of all 
necessary remedial action at each DOD site on the NPL. IAGs must 
include, at a minimum, the alternative remedies and the selected 
remedy, a schedule for completing the remedial action, and arrangements 
for long-term operation and maintenance of the facility. According to 
EPA, the schedule is enforceable and often found in a site management 
plan that documents and provides for re-evaluation of schedules and 
priorities for cleanup. In addition, EPA officials indicated that IAGs 
generally also include consultative provisions that document time 
frames for review and comment on documents by each agency as well as 
administrative penalties for DOD's failure to comply with the agreed- 
upon cleanup tasks and milestones. The IAG therefore documents EPA's 
expectations of DOD, and provides for administrative penalties against 
the department when it does not comply with the activities agreed to in 
the document. Without the IAG, EPA does not have the needed criteria, 
or a foundation upon which an enforcement action may be taken, and has 
limited ability to sanction DOD without going to court, which DOJ does 
not allow it to do. The 11 DOD NPL sites--2 Army, 2 Navy, and 7 Air 
Force facilities--were placed on the NPL at least a decade ago, between 
1994 and 1999, except for 1 of the Air Force sites, which was listed in 
1983.[Footnote 15] As of early March 2009, however, DOD has not 
finalized IAGs for any of these sites.[Footnote 16] In its most recent 
report to Congress for fiscal year 2007, EPA indicated the number of 
NPL sites with IAGs and facilities where EPA had issued enforcement 
orders. However, EPA's report did not clearly indicate that there were 
11 DOD NPL sites without IAGs and the reasons why. 

There is a long history of EPA and DOD efforts to negotiate IAGs, 
beginning in 1988. Key actions taken by these agencies are listed in 
table 1. 

Table 1: Chronology of Events to Negotiate IAGs for DOD NPL Sites: 

Date: 1987-1988; 
Event: Following the passage of SARA in 1986, DOD finalized IAGs with 
EPA at 4 NPL sites. 

Date: June 1988; 
Event: To facilitate negotiation of additional IAGs, EPA and DOD 
approved a model agreement that included: 
* Standard language for 11 provisions--such as dispute resolution, 
enforcement, and stipulated penalties--to address fines for failure to 
submit certain documents or comply with the terms and conditions of the 
agreement; 
* A list of 27 other provisions--such as remedial action, site access, 
and transfer of property--where the specific terms were left to be 
negotiated for each site. 

Date: 1989-1998; 
Event: One hundred-three DOD NPL sites finalized IAGs with EPA. 

Date: February 1999; 
Event: EPA and DOD agreed to modify the model agreement in light of 
changes to DOD's budget and increasing costs of operations to include: 
* Modified provisions for deadlines (near-term milestones) and funding; 
* New provisions for a site management plan, budget development, and 
scheduling. 

Date: 1999-2003; 
Event: Twelve DOD NPL sites finalized IAGs with EPA. 

Date: October 2003; 
Event: EPA and DOD agreed to the following: 
* Modified the model agreement to add provisions for institutional and 
engineering controls to ensure that contaminants do not pose an 
unacceptable risk to human health or the environment at sites where 
contamination is left in place; 
* Established a "dual-track" approach whereby EPA and DOD allow the 
military services to negotiate land use control provisions for sites 
with EPA following one of two approaches[A]. 

Date: 2004-2008; 
Event: Ten DOD NPL sites finalized IAGs with EPA. 

Date: July-November 2007; 
Event: EPA issued administrative cleanup orders to four DOD NPL sites 
that did not have IAGs. 

Date: December 2007; 
Event: While the military services were allowed to continue to 
negotiate IAGs with EPA, the Office of the Secretary of Defense 
directed that they must follow the model agreement, and any additional 
provisions added to the IAG must first be approved by OSD and the other 
services. Further, any changes to the provisions of the model IAG would 
be allowed only through negotiations between OSD and EPA. 

Date: May 2008; 
Event: DOD asked DOJ and OMB to resolve a dispute between DOD and EPA 
over the terms of the IAGs and the circumstances under which EPA may 
issue administrative orders. 

Date: December 2008; 
Event: DOJ issued a letter upholding EPA's authority to issue 
administrative cleanup orders at DOD NPL sites in appropriate 
circumstances, and to include in IAGs certain provisions other than 
those specifically enumerated in CERCLA. 

Date: January 2009; 
Event: Eleven DOD NPL sites do not have IAGs. 

Date: February 2009; 
Event: The Deputy Under Secretary of Defense notifies EPA that DOD is 
willing to accept the latest IAG for Fort Eustis in Virginia as the new 
model for the remaining DOD NPL sites without IAGs and instructs the 
military services to begin negotiations with EPA. 

Date: March 2009; 
Event: On March 4, the Navy signed IAGs for the Naval Air Station 
Whiting Field in Florida and the Naval Computer Telecommunication Area 
Administrative Master Station in Hawaii. Since EPA also signed these 
IAGs, the next steps required before the agreements are effective 
include acquiring the states' signatures and completing a public 
comment period and EPA review. 

Source: DOD and GAO's analysis of relevant documents and interviews 
with agency personnel. 

[A] The dual-track approach is a set of two principles for negotiating 
land use control provisions. Based on Navy and Air Force principles, 
the Navy's approach was to negotiate terms beyond the model agreement 
while the Air Force's approach was to add language to a record of 
decision without changing the language of the provision in the 
agreement. 

[End of table] 

Although CERCLA requires that federal agencies enter into IAGs with EPA 
to govern the cleanup of NPL sites within 180 days of EPA's review of 
the remedial investigation and feasibility study, DOD officials told us 
they have not finalized IAGs for 11 NPL sites because DOD disagreed 
with some of the terms of the provisions contained in the agreements. 
DOD also indicated they feel that EPA has adequate authority through 
its remedy selection process and that the IAG serves primarily as an 
administrative roadmap.[Footnote 17] Although the Defense Environmental 
Restoration Program statute requires DOD to take actions that provide 
EPA with adequate opportunity to review and comment at key phases of 
cleanup, there are no formal ramifications when DOD does not comply. 
Without an IAG, EPA lacks a documentation roadmap that demonstrates 
review and comment on key decisions. An IAG would identify areas of 
concern at a site and the process being used to address them. At DOD 
NPL sites without IAGs, such as at Langley Air Force Base in Maryland, 
DOD did not obtain EPA concurrence before signing a unilateral record 
of decision that identifies the remedial action. As a result, according 
to EPA, the agency cannot confirm whether all areas of contamination 
have been identified or whether they are being addressed properly. In 
1988 and supplemented in 1999 and 2003, DOD and EPA developed model 
language for specific provisions representing the most contentious 
issues encountered in earlier negotiations. Although DOD agreed to the 
model language, it has disagreed with some of the specific terms 
contained in the provisions of agreements based on these models, such 
as those that, in DOD's opinion, conflict with or go beyond CERCLA or 
its regulatory requirements. DOD officials also stated that EPA has 
been unwilling to negotiate the terms of these provisions with DOD. 

Although EPA has some oversight of the cleanup of NPL sites where DOD 
has not entered into an IAG, EPA officials told us the agency has only 
limited ability to carry out cleanup enforcement actions at federal 
facilities. For example, at sites where DOD has entered into an IAG, 
EPA has the authority to approve and modify a sites' sampling plan. In 
contrast, at NPL sites without an IAG, although DOD may send copies of 
draft plans and reports to EPA, it is often without regard to schedule 
or a process for vetting issues back and forth as defined in IAG 
provisions. Therefore, EPA's role is limited to reviewing many plans 
after they are finalized without the opportunity to provide input to 
the cleanup process. According to EPA headquarters officials, EPA is 
not seeking excessive enforcement authority at DOD NPL sites but 
intends to hold DOD to the same enforceable oversight it has at private 
sites. In fact, federal agencies are more often subject to much less 
stringent enforcement provisions. DOJ has taken the position that EPA 
may not sue another federal agency to enforce cleanup requirements, 
which effectively restricts EPA's ability to compel compliance through 
civil judicial litigation. According to EPA, enforcement provisions 
contained in the agreements, such as stipulated penalties, are 
generally less onerous for federal facilities than they are for private 
parties. The terms of the provisions, regardless of whether they are 
based on model language agreed upon between DOD and EPA, are necessary 
for EPA to carry out its role to enforce the cleanup process, EPA 
officials said. The IAG is not simply an administrative document but an 
essential tool, without which EPA and the states cannot assure the 
public that DOD is properly identifying and addressing hazardous waste 
at contaminated DOD sites.[Footnote 18] 

EPA Only Recently Used Enforcement Action at DOD NPL Sites Without 
IAGs: 

Although EPA may initiate enforcement actions to compel the cleanup of 
contaminated sites, EPA only recently began to use this authority at 
DOD NPL sites without IAGs. In 2007, EPA issued four administrative 
cleanup orders--three under RCRA and one under the Safe Drinking Water 
Act[Footnote 19]--to four DOD NPL sites--Tyndall Air Force Base in 
Florida, McGuire Air Force Base in New Jersey, Air Force Plant 44 in 
Arizona, and Fort Meade in Maryland--that do not have IAGs. 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 with the orders and clean up. The Air Force did not 
agree with EPA's assertion that an imminent and substantial 
endangerment existed at Air Force Plant 44, but agreed to perform the 
work required by the order. At the remaining two Air Force sites and 
one Army site, the services disagreed with EPA's assertion that an 
imminent and substantial endangerment existed and indicated that the 
failure to enter into an IAG at the site was an inappropriate basis for 
issuing an order. The Air Force also argued that compliance with the 
orders would not accelerate study and cleanup but, rather, that the 
additional paperwork required for compliance would delay implementation 
of ongoing investigation and cleanup. The Air Force and Army did not 
notify EPA of their intent to comply with the orders within the time 
frame required and stated they would continue to clean up these sites 
under their CERCLA removal and lead agency authority. According to DOD, 
some of these sites are nearly cleaned up. For example, as of July 
2008, DOD estimated that three of the four sites had cleaned up about 
two-thirds or more of the contamination on site. According to EPA 
headquarters officials, DOD's estimation of the cleanup at these sites 
is inconsistent with EPA's assessment and there is still much work to 
be performed at each of these sites. For example, according to EPA 
headquarters officials, Tyndall Air Force Base has not completed a 
single record of decision for work to be performed and McGuire Air 
Force Base has not completed a single investigation. 

In May 2008, DOD requested that DOJ and OMB resolve the disagreement 
between DOD and EPA as to the basis upon which EPA may issue imminent 
and substantial endangerment orders under RCRA and the Safe Drinking 
Water Act, and the terms of federal facility agreements regarding 
cleanup at DOD NPL sites. As of November 2008, OMB was noncommittal 
regarding its involvement. On December 1, 2008, DOJ issued a letter 
upholding EPA's authority to issue administrative cleanup orders at DOD 
NPL sites in appropriate circumstances. Specifically, the letter 
stated, among other things, that: 

* EPA may issue imminent and substantial endangerment orders to DOD in 
accordance with RCRA and the Safe Drinking Water Act; 

* EPA may issue such orders at a site even if it would not have done so 
had there been an IAG under CERCLA for the site; and: 

* while IAGs are consensual undertakings, and DOD is not necessarily 
required to agree to all IAG terms EPA seeks beyond those enumerated in 
CERCLA, EPA may require DOD to agree in an IAG to follow EPA 
guidelines, rules, and criteria in the same manner, and to the same 
extent as these apply to private parties.[Footnote 20] 

As of early March 2009, the Air Force and Army did not have IAGs for 
these four sites, including the site being cleaned up under the Safe 
Drinking Water Act order. [Footnote 21] 

State Agencies Oversee the Cleanup of Hazardous Waste at Most DOD 
Sites: 

Because the majority of contaminated DOD sites are not on the NPL, most 
DOD site cleanups are overseen by state agencies rather than EPA, as 
allowed by CERCLA. CERCLA provides that state cleanup and enforcement 
laws apply to federal facilities not included on the NPL. Under CERCLA, 
EPA may choose to defer a federal facility site to another cleanup 
authority, such as RCRA, even though the site is eligible for placement 
on the NPL. Of the 845 DOD sites not on the NPL, EPA generally 
determined that no further action was needed at the sites either 
because (1) the sites did not have hazards that would score high enough 
for NPL listing or (2) EPA deferred oversight of DOD's response at the 
sites to the states or other regulatory authorities. Most states have 
their own cleanup programs to address hazardous waste sites and RCRA 
corrective action authority to clean up RCRA sites. While EPA regions 
have some oversight of states' RCRA programs by reviewing site files 
and providing technical advice to the state, EPA defers oversight 
authority to states for the cleanup of non-NPL RCRA sites. EPA does not 
exercise day-to-day oversight of state cleanup programs but has entered 
into memorandums of understanding or agreement with some states. For 
example, EPA and the state of Ohio entered into a memorandum of 
agreement that defined the roles and responsibilities of EPA and the 
state for non-RCRA cleanups. 

EPA Proposes Few Contaminated DOD Sites Based on EPA Policy and DOD's 
Maturing Inventory of Hazardous Waste Sites: 

Since the 1990s, EPA has proposed fewer DOD sites for the NPL than in 
previous years for three key reasons. First, EPA defers the majority of 
DOD sites to other statutory authorities for cleanup under state 
oversight, and to avoid duplicating efforts, it does not list these 
sites. Second, over the years, DOD has discovered fewer hazardous 
substance releases, resulting in fewer sites for assessment and 
potential proposal for the NPL. Third, state officials or other federal 
agencies may, on occasion, object to EPA's proposal to list 
contaminated DOD sites, and while EPA can still propose listing the 
site, it usually does not. Based on our review of 389 unlisted DOD 
sites from four EPA regions, we found EPA did not list about half of 
these sites because EPA determined that little to no hazardous release 
had occurred or it deferred the site to a state for oversight, often 
because a contamination response was already underway. 

EPA Does Not List DOD Sites That Are Cleaned Up under RCRA or Other 
Programs: 

In 1996, Congress amended CERCLA to specify that a response under 
another cleanup authority is an appropriate factor to consider when 
making a determination whether to list a federal site.[Footnote 22] 
Since then, EPA has generally not proposed listing contaminated DOD 
sites that are being cleaned up under other federal or state programs. 
Under EPA's deferral policy, it may choose to defer sites to RCRA, even 
if sites are eligible for the NPL, where (1) the CERCLA site is 
currently being addressed by RCRA Subtitle C corrective action 
authorities under an existing enforceable order or permit containing 
corrective action provisions, (2) the response is progressing 
adequately, and (3) the state supports deferral of placement on the 
NPL. According to EPA headquarters officials, during the early years of 
CERCLA, the Superfund program was the primary means by which EPA 
assured that contamination at federal facilities was assessed and 
cleaned up. In recent years, however, other cleanup programs such as 
RCRA have evolved and matured so that placement on the NPL is just one 
of several tools available to address contamination. EPA policy allows 
regions to defer a federal facility site to RCRA even though the site 
is eligible for the NPL. Officials from two EPA regions said that 
almost all of the region's DOD sites were being cleaned up under RCRA 
at the time they were assessed and to avoid adding unnecessary and 
redundant regulatory oversight, the regions chose to leave them under 
RCRA for cleanup. EPA regions also defer sites from the NPL that are 
being cleaned up under a state cleanup program. EPA headquarters 
officials said that many sites proposed for placement on the NPL were 
referred to EPA by the states but that, over the years, states 
developed their own cleanup programs and did not refer as many sites to 
EPA. As a result, EPA headquarters officials said that EPA is not 
proposing to list as many sites based on states' referrals. 

DOD Is Identifying Fewer Contaminated Sites: 

DOD is discovering and reporting fewer new or additional hazardous 
substance releases because, over the years, many potentially 
contaminated waste sites have been identified and cleaned up and waste 
management practices have changed. Discovery of new DOD sites has been 
infrequent, making fewer sites available to EPA for assessment and 
proposal for inclusion on the NPL. According to Army officials, 
beginning in the early 1980s, the Army conducted initial assessments to 
identify potentially contaminated sites. As a result, Army officials 
said, the Army's installation restoration program inventory is mature 
and, for the most part, complete. According to a Navy official, during 
the 1980s and 1990s, the Navy also conducted assessments to identify 
and catalog the majority of contaminated Navy sites. DOD officials also 
stated that because of controls placed on the management of hazardous 
materials and wastes as a result of well-established laws, there are 
relatively fewer releases or threats of release, and operational 
releases are immediately addressed. EPA officials generally agreed that 
DOD has identified fewer contaminated DOD sites in recent years 
because, EPA officials said, the services have a fairly well- 
inventoried universe of sites, and old or abandoned DOD sites are no 
longer being discovered. Further, EPA headquarters officials said, DOD 
has cleaned up hazardous waste sites over the years, has tremendous 
cleanup efforts underway, and has the budgets to fund them. 

States May Object to EPA's Proposal to List Contaminated DOD Sites: 

EPA policy recommends states' governors to be included in the decision 
whether to list sites on the NPL and, in cases where a state does not 
agree that EPA should list a site, EPA's policy recommends that a 
region work closely with the state to resolve the state's concerns. If 
the region is unable to resolve the state's concerns and EPA believes 
it has sufficient reasons to proceed with listing, EPA may list the 
site on the NPL without the state's concurrence; however, according to 
EPA headquarters officials, EPA will not list a site without agreement 
from the state.[Footnote 23] 

On rare occasions, EPA proposed but ultimately did not list some 
contaminated DOD sites. Four sites were not listed because the states' 
governors did not support listing. EPA did not list a fifth site 
because OMB recommended against listing. Although these five sites were 
not listed, EPA regional officials said that all five sites are being 
cleaned up, have a remedy in place that is protective of human health 
and the environment, or the site has been cleaned up to the point that 
it no longer meets the requirements for placement on the NPL. 
Specifically: 

Rickenbacker Air National Guard Base. In 1994, DOD closed the remaining 
portions of the Rickenbacker Air National Guard Base in Lockbourne, 
Ohio, which had been in use since 1942 providing aircraft refueling 
operations. Fuel contamination and chemical releases were found around 
underground fuel lines and tanks and near former storage areas and 
buildings. Trichloroethylene (TCE) has been found in soil and near 
groundwater.[Footnote 24] In January 1994, EPA proposed placing the 
site on the NPL but did not do so because the governor did not agree, 
citing the stigma that NPL listing would have on current, planned, and 
future economic development as well as the potential to adversely 
affect the economic development of adjacent sites. The governor also 
proposed that the Ohio EPA oversee investigation and cleanup activities 
at the site under the state's cleanup program. Today, portions of the 
site are being cleaned up under RCRA while other portions are being 
cleaned up under CERCLA and DOD's Base Realignment and Closure program, 
with state oversight. According to EPA headquarters officials, EPA and 
the Air Force agreed the site should be cleaned up for commercial- 
industrial use. The Air Force transferred portions of the facility to 
another state agency for cleanup and signed an agreement with the state 
to clean up the remaining lands, in accordance with CERCLA. However, 
the Air Force has refused to include land use restrictions in its 
selected remedy, as EPA would normally do for sites on the NPL. 
Nonetheless, cleanup at the site is proceeding, EPA regional officials 
said, and the site no longer meets the requirements for the NPL. 

Air Force Plant 85. Air Force Plant 85 in Columbus, Ohio, manufactured 
and tested aircraft and missile systems between 1941 and 1994. Wastes 
produced from these operations included acids from metal cleaning and 
electroplating, cyanide wastes, and paint strippers. From 1984 to 1990, 
the Air Force identified multiple sources of potential hazardous waste 
contamination, including two nearby streams and a creek. TCE and other 
chlorinated solvents were found in groundwater; polychlorinated 
biphenyls (PCB),[Footnote 25] solvents, and metals were found in soil; 
and various metals and solvents were found in sediment. In January 
1994, EPA proposed placing the site on the NPL but did not do so 
because the governor objected, again citing the stigma of listing and 
its potential effects on economic development. The governor also 
proposed that the Ohio EPA oversee investigation and cleanup activities 
at the site under the state's cleanup program. Air Force Plant 85 is 
being cleaned up under Ohio's Voluntary Cleanup Program which, 
according to EPA officials, follows the CERCLA process. According to 
EPA regional and Air Force officials, the Air Force has cleaned up or 
has a remedy in place at 11 of the 13 sources of hazardous substances 
releases at the site and is expected to have all remedies in place by 
2011. 

Arnold Engineering Development Center. The Arnold Engineering 
Development Center near Tullahoma and Manchester, Tennessee, is an Air 
Force test and research organization that simulates flight conditions 
in ground-test facilities. The site contains contaminated landfills, 
leaching pits, and testing areas. Jet and rocket fuels, solvents, and 
other shop wastes have been detected in the main testing area. PCBs 
also have been detected in soil samples collected in the main testing 
area and in wastewater and surface water runoff in a retention 
reservoir. In August 1994, EPA proposed placing the site on the NPL but 
did not do so because the governor did not concur. EPA regional 
officials said that state officials told them Tennessee preferred to 
clean up the site under a state cleanup program and speculated that 
many states may prefer this arrangement because of the perception of a 
stigma associated the NPL. Further, the Arnold Engineering Development 
Center was competing with a DOD facility in another state to install a 
wind tunnel and the Tennessee governor's office was concerned that NPL 
listing would hurt the site's chances. The Air Force is cleaning up the 
Arnold Engineering Development Center under RCRA with EPA and state 
oversight. EPA regional officials said that Air Force actions to date 
on the site are protective of human health and control the migration of 
contaminated groundwater. While Air Force officials said they expect 
all remedies to be in place by the end of fiscal year 2011, EPA 
regional officials indicated the goal for final construction of the 
remedy is 2020.[Footnote 26] 

Wurtsmith Air Force Base. Wurtsmith Air Force Base, a 5,000-acre site 
near Oscoda, Michigan, has performed various air support missions since 
it was established in the early 1920s, such as aircraft and vehicle 
maintenance and air refueling. In 1977, the Air Force sampled drinking 
water and monitoring wells on the site and found solvents, including 
TCE. The U.S. Geological Survey also sampled and found TCE in the 
groundwater. The base closed in June 1993 and in January 1994, EPA 
proposed placing the site on the NPL. However, EPA did not list the 
site because the state did not support listing after DOD placed the 
site in the Base Realignment and Closure program and progressed with 
cleanup under state oversight. Although TCE is still present in 
groundwater plumes, EPA regional officials said the site has been 
cleaned up to the point that it would no longer meet the requirements 
for the NPL. 

Chanute Air Force Base. Chanute Air Force Base in Rantoul, Illinois, 
provided military and technical training for Air Force and civilian 
personnel on the operation and maintenance of military aircraft and 
ground support equipment until DOD closed the base in 1990. The primary 
sources of hazardous waste on the site include various landfills, fire 
training areas and buildings that contained oil-water separators, 
underground storage tanks, and sludge pits. The primary concern was the 
potential for this contamination to migrate into a nearby creek. In 
April 2000, the governor wrote to the EPA region to express his support 
for placing Chanute Air Force Base on the NPL, citing the state's 
concern about past operation and disposal practices at the site and 
because the state was unable to reach an agreement with the Air Force 
on how the site should be cleaned up. In December 2000, EPA proposed 
placing the site on the NPL but the Air Force objected, citing a 
perception that listing was a stigma and argued it could clean up the 
site by 2005 and on schedule if it did not have to suspend cleanup to 
negotiate the provisions of an IAG. The Air Force asked OMB to mediate 
the dispute. EPA presented its case for listing the site to OMB, 
pointing out that the site's HRS score supported a proposal for 
listing, the governor of the state concurred, and listing would help to 
assure that DOD would enter into an IAG with EPA to clean up. In 2003, 
OMB determined that EPA should not proceed with listing. OMB encouraged 
EPA to defer listing the site for 6 months to provide DOD with time to 
address personnel and contractor changes and demonstrate remediation 
progress. If, after that time, progress was not forthcoming, then 
listing was to be pursued, but in fact, never was. Although EPA 
officials told us that cleanup at Chanute has progressed slowly, 
milestones were met and EPA did not list the site. The Air Force 
estimates that it will have all remedies in place by the end of fiscal 
year 2012 and all property transferred from Air Force control by the 
end of fiscal year 2014. Although cleanup is behind schedule, according 
to EPA regional officials, the site has been cleaned up to the point 
that it is unclear whether the site would score for the NPL if the 
listing process was started today. For example, three of the four 
landfills have been capped and are no longer active. Remedial 
investigation reports of the creek do not show the levels of 
contamination detected when EPA proposed listing the site. Despite the 
slow progress to clean up, EPA regional officials said they believe 
that proposing the site for listing ultimately helped to start the 
cleanup process. 

Four EPA Regions Did not List Sites Due to a Lack of Contamination or 
Hazardous Release or Because Sites Were Deferred to Another Cleanup 
Authority: 

As part of our review, we asked officials from four EPA regions to 
provide the primary basis for their decision to not propose placing 389 
DOD sites under their jurisdiction on the NPL. (See figure 4.) Based on 
a review of site records and interviews with EPA regional officials, we 
found EPA did not propose listing almost one-third of these sites (121 
of 389, or 31 percent) because site assessments found little to no 
contamination or hazardous release on the site or no contamination 
exposure pathway or receptor. In instances where EPA scored these 
sites, the HRS score was below the minimum hazard ranking threshold for 
the NPL. One-quarter of these sites (96 of 389, or 25 percent) were not 
proposed for the NPL because EPA deferred them to another authority, 
such as a state agency under its RCRA authority. We were unable to 
determine the rationale for EPA's decision to not list less than half 
of these sites (172 of 389, or 44 percent) because site file records 
were missing, inconclusive, or not up to date. For example, some site 
files showed that EPA had not yet determined whether to propose 
listing, even though the site assessment was conducted decades ago. 
According to EPA region officials, record-keeping practices have varied 
over the years so that, in some cases, site files and the basis for 
EPA's decisions were not well documented or maintained. 

Figure 4: Findings from GAO's Review of 389 DOD Sites: 

[Refer to PDF for image: pie-chart] 

Site file documentation was missing, inconclusive or not up-to-date 
(172 sites): 44%; 

EPA determined there was no hazardous release or little to no 
contamination found on site (121 sites): 31%; 

EPA deferred the site to another cleanup authority (96 sites): 25%. 

Source: GAO analysis. 

[End of figure] 

Conclusions: 

While the number of DOD sites considered for placement on the NPL has 
declined over the past decade, DOD sites still account for 9 percent of 
all NPL sites. Despite years of negotiations, DOD and EPA have not 
finalized IAGs to clean up 11 of the 140 DOD NPL sites. Most are more 
than a decade overdue, yet EPA has made few efforts to use its 
enforcement authority under CERCLA to compel parties to enter into 
IAGs, and to select remedies at sites without agreements. While the 
Federal Facility Compliance Act authorizes EPA to apply the same RCRA 
enforcement policies to federal facilities as it does to nonfederal 
facilities, EPA has not taken enforcement action at most federal sites. 
In light of prolonged disagreements between DOD and EPA over the terms 
of the IAGs, and the absence of any statutory consequences for failing 
to enter into an IAG, now may be the time to reconsider the provisions 
required by CERCLA for effective EPA oversight. While the law offers 
accountability through citizen suits, transparency through public 
participation provisions, legal recourse through enforceable schedules, 
and mechanisms for addressing conflicts through dispute resolution 
provisions, at sites without IAGs EPA lacks the leverage needed to 
provide strong environmental stewardship. Bringing the parties together 
for further discussions with relevant oversight committees may 
facilitate resolution at the sites without IAGs. While the pattern of 
delays in DOD's preliminary assessment process appeared to go 
unchallenged by EPA, we believe EPA's failure to enforce a time line 
for completion further exacerbated this process. These conditions 
suggest a need for stronger enforcement and reporting as well as a 
serious commitment to address ongoing challenges. 

We believe Congress should be kept apprised of the situations where 
agreements are lacking. However, EPA has not used its annual report to 
Congress to provide this information.[Footnote 27] Moreover, because 
EPA was unable to make available documentation of the basis for its 
decisions whether to list or not list DOD sites, it is impossible for 
EPA to provide a justification for its decisions for many of the sites 
placed on or left off of the NPL. 

Matter for Congressional Consideration: 

Given the critical nature of Superfund cleanup for protecting public 
health, and the long-term commitment necessary to maintain strong 
environmental stewardship at federal facilities, we encourage Congress 
to ensure accountability by DOD and EPA by raising concerns about the 
impasse between these federal agencies, if IAGS are not finalized 
within 60 days following issuance of this report. Specifically, 
Congress should consider amending CERCLA Section 120 to authorize EPA 
to impose administrative penalties at federal facilities placed on the 
NPL that lack IAGs within the CERCLA-imposed deadline of 6 months after 
completion of the remedial investigation and feasibility study. This 
leverage could help EPA better satisfy its statutory responsibilities 
with agencies that are unwilling to enter into agreements where 
required under CERCLA Section 120. In addition, Congress may wish to 
consider amending Section 120 to authorize EPA to require agencies to 
complete preliminary assessments within specified time frames. 

Recommendations for Executive Action: 

To facilitate congressional oversight of the Superfund program and 
provide greater transparency to the public on the cleanup of DOD sites, 
we recommend that the Administrator of EPA improve its record keeping 
in the following manner. Consistent with good management practices 
defined in EPA's Superfund program implementation manual and to ensure 
that meaningful data are available for the agency's reports to 
Congress, EPA should establish a record-keeping system, consistent 
across all regions, to accurately document EPA decisions regarding the 
proposal of DOD sites for inclusion or exclusion on the NPL and the 
basis for each decision. 

Agency Comments and Our Evaluation: 

We provided a draft of this report to EPA and DOD for review and 
comment. In its letter, EPA agreed with our recommendation that 
Congress should provide greater enforcement authority under CERCLA to 
impose administrative penalties at federal facilities placed on the 
NPL, stating that greater authority would help to assure timely and 
protective cleanup of NPL sites. EPA did not comment specifically on 
our recommendation that EPA improve its record keeping but acknowledged 
that some file data supporting EPA's decisions regarding the proposal 
of DOD sites for NPL listing are missing or otherwise insufficient. In 
general, EPA agreed with the findings and conclusions of our report. 
EPA also provided general comments related to the declining number of 
DOD sites proposed for listing; specifically, whether state objections 
and the declining number of newly discovered hazardous substance 
releases in recent years has caused a reduction in the number of DOD 
sites proposed. In addition, while EPA agrees with GAO that typical 
sources of contamination on DOD sites have been fairly well 
characterized, it adds that other areas have not been evaluated, and 
there may still be sites with undiscovered sources of contamination, 
such as military munitions sites. GAO has made changes to the report to 
respond to these comments. We also addressed EPA's technical changes, 
throughout the report, as appropriate. See appendix III for EPA's 
letter. 

In its letter commenting on the findings and conclusions of our report, 
DOD disagreed with our assertion that additional EPA oversight or 
enforcement authority was needed and, if provided, would help assure 
that NPL sites are cleaned up. According to DOD, EPA is actively 
involved in reviewing response actions at DOD NPL sites, regardless of 
whether an IAG is in place. Further, DOD stated that GAO's report 
provides no evidence that the lack of an IAG at any DOD NPL site has 
delayed, diminished, or reduced the timeliness or quality of DOD's 
response and that EPA does not need additional oversight enforcement 
authority but, rather, should strive to more effectively implement its 
authority under existing law. 

We continue to assert that an expansion in EPA's enforcement authority 
is warranted. According to recent discussions with EPA officials, the 
agency cannot confirm whether all areas of contamination have been 
identified or whether they are being addressed properly at NPL sites 
without IAGs, particularly where DOD signed unilateral records of 
decision without EPA concurrence, such as at Langley Air Force Base in 
Maryland. Further, we believe our report demonstrates that EPA has 
experienced considerable difficulty employing its existing enforcement 
authorities, and that DOD has resisted EPA's decision to use its 
existing authority to require that DOD enter into IAGs at NPL sites. 
DOD's comments notwithstanding, the issue is DOD's refusal for more 
than a decade to enter into IAGs required by CERCLA Section 120 to 
clean up DOD NPL sites. As EPA officials have noted, without an IAG, 
the agency does not have the enforcement authority to assure that DOD 
cleans up according to an agreed-upon remedy. Further, the question is 
not whether DOD believes that EPA is sufficiently involved at DOD NPL 
sites, but whether the statutory requirements for EPA's involvement 
have been satisfied. CERCLA Section 120 provides for independent EPA 
oversight, not mere opportunity for EPA review and comment. The 
procedures in Section 120 may not be disregarded simply because some 
cleanup progress is occurring. As mentioned in our report, Maryland's 
December 2008 suit against the Army seeking to compel compliance with 
EPA's administrative order at Fort Meade is evidence that at least one 
state disagrees with DOD's assertion that the progress of cleanup is 
unaffected by the lack of an IAG. Therefore, we continue to believe 
that additional EPA enforcement authority is needed to ensure that 
cleanup is being pursued properly at federal facility NPL sites. 

DOD's letter also provided some technical comments which we 
incorporated throughout the report along with DOD's technical changes, 
as appropriate. See appendix IV for DOD's letter. 

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 to the 
Administrator of EPA, the Secretary of DOD, and interested 
congressional committees. The report will also 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 V. 

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 extent of the Environmental 
Protection Agency's (EPA) oversight during assessment and cleanup at 
Department of Defense (DOD) National Priority List (NPL) and non-NPL 
sites and (2) why EPA has proposed fewer DOD sites for inclusion on the 
NPL since the early 1990s. 

To examine the extent of EPA's oversight during assessment and cleanup 
of DOD NPL and non-NPL sites, we reviewed the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) and 
other legislation governing the cleanup of federal hazardous waste 
sites, as well as EPA Superfund program policy and guidance, to 
determine the roles and responsibilities of EPA and federal agencies, 
such as DOD, to implement the CERCLA process and assess and clean up 
hazardous waste. We reviewed EPA and DOD reports to the Congress on the 
Superfund and Defense Environmental programs, respectively. We reviewed 
EPA and DOD policy and guidance on interagency agreements (IAG), 
including the model agreements, and correspondence relating to the 
negotiation of IAGs for selected DOD sites. We conducted several 
interviews with EPA and DOD headquarters officials on issues related to 
IAGs and enforcement. At GAO's request, EPA provided data from its 
computerized CERCLA information database of actual and potential 
hazardous releases at federal and private sites. Based on these data, 
we worked with EPA to identify the universe of DOD sites and obtain 
certain information on these sites, such as NPL status. To determine 
the reliability of the CERCLA information database, an EPA headquarters 
official contacted each EPA region and asked them to verify selected 
information, such as the number of DOD sites and their NPL status. 
During site visits to selected EPA regions, we also confirmed certain 
information in the CERCLA information database by reviewing site file 
documentation, where available, and interviewing EPA region officials. 
Based on this work, we determined that these data were sufficiently 
reliable for the purposes of this report. We interviewed EPA 
headquarters officials on the agency's policies and processes under the 
Superfund program to ensure that contaminated federal DOD sites, both 
NPL and non-NPL, are assessed and cleaned up. We interviewed DOD 
headquarters officials on DOD's role and responsibilities to identify, 
report, assess, and clean up, as necessary, hazardous releases at NPL 
and non-NPL DOD sites. We also interviewed officials at four EPA 
regions on their oversight of contaminated federal DOD sites, both NPL 
and non-NPL, to assure that sites are assessed and cleaned up. We 
conducted our work at four EPA regions--Atlanta, Chicago, Dallas, and 
San Francisco--which, taken together, were responsible for about half 
of the 845 non-NPL DOD sites. We selected the Atlanta and Chicago 
regions because they were responsible for five DOD sites that EPA 
proposed for NPL inclusion but which were not listed. We selected the 
San Francisco region because it had the largest number of non-NPL DOD 
sites. We selected the Dallas region to pretest our review methodology 
because it was geographically convenient. 

To determine why EPA has proposed fewer DOD sites for NPL inclusion 
since the early 1990s, we reviewed EPA policy and guidance on proposing 
sites for the NPL and interviewed EPA headquarters and regional 
officials on the reasons why EPA has proposed fewer sites. We 
interviewed DOD headquarters officials on its progress to identify and 
assess potentially contaminated DOD sites and the reasons why fewer 
hazardous releases have been identified. We interviewed EPA and DOD 
officials on contaminated DOD sites that EPA proposed for the NPL, why 
some were not listed, and the status of cleanup at these sites. 
Finally, for selected DOD sites, we evaluated the basis for EPA's 
decision to not propose listing certain contaminated DOD sites by 
reviewing site file documentation and interviewing EPA regional 
officials regarding all non-NPL DOD sites at four EPA regions. We 
excluded from our review sites under DOD's military munitions response 
program because of the ongoing uncertainty concerning the degree to 
which spent military munitions are subject to RCRA and CERCLA, and the 
fact that GAO has ongoing work in this area. Based on our review of 
contaminated DOD sites at four EPA regions, we attempted to determine 
the primary basis for EPA's decision to not propose to list the site. 
However, we were unable to confirm the basis for EPA's decision to not 
propose listing less than one-half of the sites surveyed (172 of 389, 
or 44 percent) because site file documentation, such as records of 
EPA's decisions and recommendations concerning sites, was missing or 
inconclusive. For example, officials at one EPA region told us they 
could not determine how many sites required no further action after 
either a preliminary assessment or site inspection because, prior to 
1990, the region did not document the basis for determining that no 
further action was required. 

[End of section] 

Appendix II: Other Cleanup Programs: 

In addition to the Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA), there are a number of other cleanup 
authorities EPA considers in deciding whether to list a site include 
state cleanup programs (often referred to as voluntary cleanup 
programs) and the Defense Environmental Restoration program. 
Specifically: 

State Cleanup Programs. Over the years, most states have developed 
their own cleanup programs, often referred to as voluntary state 
cleanup programs. Some state cleanup programs address hazardous waste 
sites independent of a state's Resource Conservation and Recovery Act 
(RCRA) program. Often, state cleanup projects begin with a preliminary 
site assessment and if contamination is suspected, an on-site 
investigation is conducted. EPA does not have oversight of state 
cleanup programs but has entered into memoranda of agreement or 
understanding with some states, recognizing the use of the state's 
cleanup program to address hazardous waste sites under a state's non- 
RCRA authority. 

Defense Environmental Restoration Program. In 1986, Congress amended 
CERCLA and required that DOD establish an environmental restoration 
program under which all response actions at hazardous waste 
contaminated sites--such as site identification, investigation, and 
cleanup--must be conducted consistent with Section 120 of CERCLA. 
[Footnote 28] More than 15 years later, the National Defense 
Authorization Act for Fiscal Year 2002 required that DOD also develop 
an inventory of all DOD sites known or suspected to contain unexploded 
ordnance, military munitions, or munitions constituents throughout the 
United States and develop a methodology for prioritizing response 
actions at these sites. Today, DOD's environmental response program 
includes an installation restoration program, which in 1985 began 
addressing hazardous releases resulting from past practices, and a 
military munitions response program, established as a separate program 
in 2001, to address safety and environmental hazards from unexploded 
ordnance and munitions on other-than-operational ranges (ranges that 
are closed, transferred or transferring). As of fiscal year 2007, DOD 
reported there were 27,950 installation restoration program sites on 
DOD facilities and former defense sites, of which 23,980, or 86 
percent, had achieved "remedy in place" or "response complete" status 
[Footnote 29]. At 3,537 munitions response sites at current DOD 
facilities and former defense sites, a total of 940, or 27 percent, had 
achieved "remedy in place" or "response complete" status. DOD completed 
an initial inventory of munitions response sites in fiscal year 2002. 
Since then, DOD has been working to reconcile its inventory which 
includes conducting site assessments (preliminary assessments and, if 
needed, site inspections) of all sites. DOD estimates it will complete 
site assessments for all munitions response sites by the end of fiscal 
year 2010 except for sites on former defense sites. Former defense 
sites represent the majority of sites with suspected munitions response 
sites and, according to DOD, site assessments for munitions sites on 
former defense sites will not be completed until about 2013. 

Under the Defense Environmental Restoration Program, DOD cleans up 
environmental hazards and contamination on active installations, 
installations being closed under DOD's Base Realignment and Closure 
program, and at formerly used defense sites. DOD is required to carry 
out response cleanup actions under the program, subject to, and in a 
manner consistent with, Section 120 of CERCLA. DOD is required to 
report annually to Congress on its environmental restoration programs. 
As of fiscal year 2007, DOD reported that its goal was to clean up all 
known releases (or achieve a "remedy in place" status) on active 
installations by the end of fiscal year 2014 and all sites on formerly 
used defense sites by the end of fiscal year 2020. 

[End of section] 

Appendix III: Comments from the Environmental Protection Agency: 

United States Environmental Protection Agency: 
Washington, D.C. 20460: 

February 24, 2009: 

Mr. John B. Stephenson Director: 
Natural Resources and Environment: 
U.S. Government Accountability Office: 
Washington, DC 20548: 

Re: EPA comments on the Government Accountability Office's (GAO) draft 
report to Congress entitled Greater EPA Oversight, Enforcement, and 
Reporting Are Needed to Enhance Defense Site Cleanup (GAO-09-278): 

Dear Mr. Stephenson: 

Thank you for the opportunity to review GAO's draft report entitled 
Greater EPA Oversight, Enforcement, and Reporting Are Needed to Enhance 
Defense Site Cleanup (GAO-09-278). We appreciate GAO's review of EPA's 
role in the clean up and restoration of contaminated Department of 
Defense (DoD) properties. 

EPA agrees that effective use of strong enforcement will help to assure 
timely and protective clean up of federal facilities. As for GAO's 
draft findings related to the National Priorities List (NPL), we offer 
in this letter general comments on two of the key reasons cited in the 
draft report for the slowing pace of DoD site listings: (1) States may 
object to EPA's proposals to list sites; and (2) DoD has discovered 
fewer hazardous substance releases (DoD's "mature inventory" of sites). 
In addition to comments on these two issues, you will find detailed 
comments in the enclosure to this letter. 

Concerning the pace of NPL listings, GAO's draft report indicates that 
State objections to NPL listing may be one of four causes for the 
slowing pace of NPL listings of DoD sites. This conclusion was based on 
an examination of four instances in which States opposed the placement 
of DoD sites on the NPL during the period 1994-2001. It should be 
noted, however, that 44 federal sites were placed on the NPL (without 
State objection) during the same time period, including 37 DoD sites. 
Subsequent to that time frame, only three DoD sites were proposed for 
the NPL, and none of these were opposed by the States. In fact, of 
these three sites, one was listed at the specific request of a 
Governor, and the other two were listed with State support. We don't 
believe, therefore, that one can conclude that formal State objections 
have significantly contributed to the reduction in NPL listings. 

GAO also cited "DoD's mature inventory" of contaminated properties and 
the discovery of fewer sites to explain the reduction in NPL listings. 
While typical sources of contamination on DoD bases have been fairly 
well characterized, as noted in the draft report, other areas on these 
bases have not been adequately characterized, and there are still some 
newly discovered sources of contamination (e.g., munitions response 
sites under DoD's Military Munitions Response Program). While some 
slowing in the pace of DoD site listings is to be expected, the total 
number of potential NPL sites in DoD's inventory, and hence, the degree 
to which the pace of listing is explained by the "mature inventory" of 
sites, cannot be determined while there remains insufficient or missing 
site specific information to support decision making. 

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: 

Barry N. Breen: 
Acting Assistant Administrator, OSWER: 

Enclosure (1): 

[End of section] 

Appendix IV: Comments from the Department of Defense: 

Office Of The Under Secretary Of Defense: 
Acquisition Technology And Logistics: 
3000 Defense Pentagon: 
Washington, DC 20301-3000: 

February 20, 2009: 

Mr. John B. Stephenson: 
Director, Natural Resources and Environment: 
U.S. Government Accountability Office: 
441 G Street, N.W. 
Washington, DC 20548: 

Dear Mr. Stephenson: 

This is the Department of Defense (DoD) response to the GAO draft 
report, "Superfund: Greater EPA Oversight, Enforcement, and Reporting 
Are Needed to Enhance Defense Site Cleanup," dated January 27, 2009 
(GAO Code 360916/GAO-09-278). 

The Department acknowledges receipt of the draft report. Even though 
there are no recommendations directed at DoD, we have concerns with 
some of GAO's factual statements, findings, conclusions and 
recommendation. Detailed technical comments on the report were provided 
separately. 

In summary, DoD has major concerns with the following issues: 

* The title of the report is misleading and not based on the facts 
presented in the report. The facts presented in the report do not 
support the conclusion that the DoD Cleanup program is not meeting the 
requirements of the Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA) or the Resource Conservation 'and Recovery 
Act (RCRA). The report does not provide evidence that additional 
Environmental Protection Agency (EPA) oversight or enforcement 
authorities is needed and if provided these authorities will speed up 
cleanup or lead to better decision making. According to the findings of 
the report EPA does not need more or new oversight enforcement 
authorities, EPA needs to more effectively implement their authorities 
they already have under existing law. 

* Congress has defined the term "defense site" in 10 U.S.C. Section 
2710(e)(1). The report definition of defense site conflicts with this 
legal definition and implies Department of Energy sites are defense 
sites. Recommend using the term DoD site or DoD facility. 

* The number of DoD National Priorities List (NFL) sites and remaining 
Federal Facilities Agreements (FFA) to be signed is inaccurate. DoD has 
140 not 141 NPL site and 11 not 12 FFA remaining to be signed. The 
Middlesex Sampling Plant is a site under the Formerly Utilized Sites 
Remedial Action program (FUSRAP). It is assigned by law to the U.S. 
Army Corps of Engineers Civil Works Program, as the lead agency for the 
conduct of remedial actions at certain sites associated with the former 
Manhattan Engineer District and Atomic Energy Commission. It is not a 
under the direction or control of DoD cleanup program. The Middlesex 
Sampling Plant property is owned by the United States and under the 
accountability of the Department of Energy. 

The facts presented in the report do not support the conclusions and 
recommendations. EPA is actively involved in review of response actions 
at DoD NPL sites, regardless of whether an FFA has been signed. The 
report indicates no evidence that the lack of an FFA at any of the 
sites has delayed, diminished, or reduced the timeliness or quality of 
the response actions taken by DoD with EPA, state and public 
involvement, at any DoD NPL site. DoD has made significant progress 
which is demonstrated in the report for the five sites EPA decided to 
not list on the NPL. 

Sincerely, 

Signed by: 

Wayne Arny: 
Deputy Under Secretary of Defense (Installations and Environment): 

CC: 
OGC (E&I):
DASA (ESOH) DASN (E):
DASAF (EESOH): 

[End of section] 

Appendix V: 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; Christine D. Frye; Richard Johnson; and 
Alison O'Neill made major contributions to this report. Amy Ward-Meier 
also made key contributions. 

[End of section] 

Footnotes: 

[1] Executive Order 12580 directs the responsible federal agency to 
carry out the preliminary assessment. This executive order also 
delegates certain CERCLA authorities to the Department of Defense. 

[2] The Hazard Ranking System (HRS) is the principal mechanism EPA uses 
to place sites on the NPL. The HRS serves as a screening device to 
evaluate the potential for releases of uncontrolled hazardous 
substances to cause human health or environmental damage. The HRS 
provides a measure of relative rather than absolute risk. It is 
designed so that it can be consistently applied to a wide variety of 
sites. [40 C.F.R. Pt. 300, appendix A, § 1.0] 

[3] The NPL is composed of 157 final and 15 deleted federal sites and 
1,100 final and 315 deleted private sites. 

[4] For the purposes of this review, both NPL and non-NPL DOD sites are 
federal facilities where DOD is the agency responsible for the cleanup 
of hazardous waste resulting from past practices. 

[5] The letter stated that "because an interagency 'agreement' denotes 
a consensual undertaking, we do not think that DOD necessarily is 
required to agree to all extra-statutory terms demanded by EPA. We 
think that EPA nonetheless 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 non-federal facilities under 
CERCLA." The letter also noted that whether the facts identified in 
each order present a sufficient basis to support EPA's finding of an 
imminent and substantial endangerment is a factual issue that DOJ was 
unable to address. 

[6] This trust fund was financed primarily by taxes on crude oil and 
certain chemicals, as well as an environmental tax assessed on 
corporations based upon their taxable income. Although the authority 
for these taxes expired in 1995, the trust fund continued to receive 
revenue from various other sources, including appropriations from the 
general fund. EPA receives annual appropriations from the trust fund 
for program activities; since 1981, Superfund appropriations have 
totaled over $32 billion in nominal dollars, or about $1.2 billion 
annually. 

[7] GAO, Superfund: Funding and Reported Costs of Enforcement and 
Administration Activities, [hyperlink, 
http://www.gao.gov/products/GAO-08-841R] (Washington, D.C.: July 18, 
2008). 

[8] Under the NCP, DOD maintains its lead agency responsibilities 
whether the remedy is selected by DOD for non-NPL sites or by EPA and 
the federal agency or by EPA alone for NPL sites under CERCLA Section 
120. Executive Order 12580, Superfund Implementation (Jan. 23, 1987) as 
amended delegates certain presidential authorities under CERCLA to the 
Secretary of Defense. Specifically, the executive order provides that 
CERCLA response authorities "are delegated to the Secretaries of 
Defense and Energy, with respect to releases or threatened releases 
where either the release is on or the sole source of the release is 
from any facility or vessel under the jurisdiction, custody or control 
of their departments, respectively, including vessels bare-boat 
chartered and operated. These functions must be exercised consistent 
with the requirements of Section 120 of the Act." 

[9] Executive Order 12580 delegates to DOD the authority for carrying 
out preliminary assessments and site inspections at DOD sites. CERCLA 
imposes no deadlines for completing preliminary assessments. 

[10] H.R. Rep. No. 99-253, pt. 1 at 95 (1985). 

[11] H.R. Conf. Rep. No. 99-962 at 242 (1986). 

[12] In technical comments on our report, DOD asserted that sufficient 
EPA oversight can occur without an IAG, so long as a signed record of 
decision exists for a given site. This view is inconsistent with the 
language in CERCLA Section 120 and the legislative history. First, 
Section 120 uses the term "interagency agreement," not the term "record 
of decision" which appears elsewhere in SARA; a reference in Section 
120 to IAGs instead of records of decision is far more than a semantic 
accident. Second, as indicated above, the IAG serves to provide a basis 
for enhanced EPA cleanup oversight as well as enforcement by states and 
citizens. DOD failed to explain how a record of decision would serve a 
similar purpose, and in particular failed to address the IAG's role in 
enhancing state and citizen enforcement activities. While the 
conference committee report states that a record of decision signed by 
both EPA and the other federal agency can serve as an IAG, H.R. Conf. 
Rep. No. 99-962 at 242, we read this to mean that the terms of the 
record of decision may also be used as the terms of the IAG if both 
parties agree and are otherwise consistent with CERCLA. To the extent 
the conference report can be read to suggest that an IAG is not 
required at a DOD NPL site with a co-signed record of decision, this 
reading is inconsistent with the language of the statute, which 
provides for no such exception. 

[13] DOD recently asserted that a state's decision to sue to enforce 
compliance with a cleanup order could result in the state losing 
certain DOD grant funds. Recently, an organization of state waste 
management officials criticized DOD's position as being inconsistent 
with statutes, such as RCRA, that authorize states to bring such 
enforcement actions. 

[14] The Agency for Toxic Substances and Disease Registry, part of the 
Department of Health and Human Services, performs specific functions 
concerning the effect on public health of hazardous substances in the 
environment such as public health assessments of waste sites, response 
to emergency releases of hazardous substances, and education and 
training concerning hazardous substances. 

[15] The 11 DOD NPL sites without IAGs include (1) Air Force Plant 44, 
Arizona; (2) Andrews Air Force Base, Maryland; (3) Brandywine Defense 
Reutilization and Marketing Office Salvage Yard, Maryland; (4) Fort 
Meade, Maryland; (5) Hanscom Field, Massachusetts; (6) Langley Air 
Force Base, Virginia; (7) McGuire Air Force Base, New Jersey; (8) Naval 
Air Station Whiting Field, Florida; (9) Naval Computer 
Telecommunication Area Administrative Master Station, Hawaii; (10) 
Redstone Arsenal, Alabama; and (11) Tyndall Air Force Base, Florida. A 
twelfth NPL site, Middlesex Sampling Plant, New Jersey, also does not 
have an IAG. Middlesex is listed in EPA's CERLCA information database 
as a Department of Energy site even though the Fiscal Year 1998 Energy 
and Water Appropriations Bill transferred management of the site to the 
Army Corps of Engineers. While EPA officials said that the agency 
considers Middlesex to be a DOD NPL site for the purposes of 
enforcement and negotiation of IAGs, we excluded it from our list of 
DOD sites without IAGs. 

[16] On Mar. 4, 2009, the Navy began the process for finalizing IAGs at 
two of its sites. The Navy signed IAGs for the Naval Air Station 
Whiting Field in Florida and the Naval Computer Telecommunication Area 
Administrative Master Station in Hawaii. Since EPA has also signed the 
IAGs, the next steps will be to obtain the states' signatures followed 
by a public comment period and EPA final review. At the conclusion of 
this process, the IAGs will be considered effective. 

[17] As discussed in the background section of this report, SARA's 
legislative history suggests that IAGs serve primarily as a tool for 
EPA oversight and as the primary cleanup enforcement mechanism at DOD 
NPL sites. 

[18] This view is consistent with the portions of SARA's legislative 
history that discuss the IAG provision. 

[19] The Safe Drinking Water Act and its amendments established 
standards and treatment requirements for the nation's drinking water 
supply and delegated primary implementation and enforcement authority 
to the states. 

[20] The letter is available at [hyperlink, 
http://www.fedcenter.gov/_kd/go.cfm?destination=ShowItem&Item_ID=11085].
DOD has also asked OMB to review the terms of the IAGs regarding 
cleanup at these sites. An executive order provision implementing 
CERCLA Section 120 directs OMB to facilitate resolution of disputes 
between EPA and DOD; Executive Order 12580, § 10(a). As of November 
2008, OMB has been noncommittal regarding its role with DOD and EPA. 

[21] On Dec. 12, 2008--almost 1 year after the effective date of the 
administrative order--the Army submitted to EPA its notice to comply 
with the order at Fort Meade, Maryland. On Dec. 23, 2008, the State of 
Maryland filed suit against the Army seeking to compel the Army's 
compliance with EPA's administrative order at Fort Meade. 

[22] Pub. L. No. 104-201, Div. A, Title III, §§ 330, 110 Stat. 2484 
(1996). 

[23] According to EPA officials, in the history of the Superfund 
program, EPA has not listed any site without a state's concurrence. In 
1998, EPA proposed listing Fox River in Wisconsin, a private site, 
without the governor's consent. However, EPA did not finalize the 
listing because the state and EPA reached an agreement after which 
cleanup began in 2000. 

[24] TCE is a nonflammable, colorless liquid used mainly as a solvent 
to remove grease from metal but which also is found in adhesives, paint 
removers, typewriter correction fluids, and spot removers. TCE can 
cause nervous system effects, liver and lung damage, abnormal 
heartbeat, coma, and possibly death. 

[25] PCBs are a family of chemicals that were used in hundreds of 
industrial and commercial applications such as electric and hydraulic 
equipment; as plasticizers in paints, plastics, and rubber products; 
and in pigments and dyes. PCBs were banned in 1979 and have been 
demonstrated to cause cancer and effect human immune, reproductive, and 
nervous systems. 

[26] DOD and EPA use different terminology to track cleanup status. DOD 
tracks the status of cleanup in terms of a "remedy in place" (where the 
selected remedy is in place and operating) followed by "response 
complete" (where the required remedial action or operations have been 
completed.) EPA tracks final construction, or "construction complete," 
which considers when all physical construction at a site is complete, 
all immediate threats have been addressed, and all long-term threats 
are under control. While long-term cleanup actions may still be 
operating, the site is often ready for another use. 

[27] Although a CERCLA requirement for reporting IAG status information 
was repealed in 2002, DOD reports on the status of NPL sites without 
IAGs in its annual report to Congress on the Defense Environmental 
Restoration Program. DOD's report provides a list of the DOD sites 
without IAGs; it does not provide information on the reasons why IAGs 
have not been finalized. 

[28] 10 U.S.C. § 2700 et seq. The program is known as the Defense 
Environmental Restoration Program. 

[29] DOD and EPA use different terminology to track cleanup status. DOD 
tracks the status of cleanup in terms of a "remedy in place" (where the 
selected remedy is in place and operating) followed by "response 
complete" (where the required remedial action or operations have been 
completed.) "Response complete" may also indicate a site was 
administratively closed; that is, the site did not meet the eligibility 
criteria for funding under the program, no information was found 
suggesting that contamination was present, or the property was 
transferred or is being cleaned up as part of another site. EPA tracks 
final construction, or "construction complete," which considers when 
all physical construction at a site is complete, all immediate threats 
have been addressed, and all long-term threats are under control. While 
long-term cleanup actions may still be operating, the site is often 
ready for another use. 

[End of section] 

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