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entitled 'Environmental Contamination: DOD Has Taken Steps to Improve 
Cleanup Coordination at Former Defense Sites but Clearer Guidance Is 
Needed to Ensure Consistency' which was released on April 28, 2003.

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Report to Congressional Requesters:

United States General Accounting Office:

GAO:

March 2003:

ENVIRONMENTAL CONTAMINATION:

DOD Has Taken Steps to Improve Cleanup Coordination at Former Defense 
Sites but Clearer Guidance Is Needed to Ensure Consistency:

GAO-03-146:

GAO Highlights:

Highlights of GAO-03-146, a report to Congressman John D. Dingell, 
Ranking Minority Member, U.S. House of Representatives 


Why GAO Did This Study:

The U.S. Army Corps of Engineers (Corps) is in charge of addressing 
cleanup at the more than 9,000 U.S. properties that were formerly owned 
or controlled by the Department of Defense (DOD) and have been 
identified as potentially eligible for environmental cleanup.  
The Corps has determined that more than 4,000 of these properties have 
no hazards that require further Corps study or cleanup action.  
However, in recent years, hazards have surfaced at some of these 
properties, leading state and federal regulators to question whether 
the Corps has properly assessed and cleaned up these properties. In 
this context, Congress asked us to (1) analyze federal coordination 
requirements that apply to the cleanup of these properties, (2) assess 
recent DOD and Corps efforts to improve coordination, and (3) identify 
any issues regulators may have about coordination with the Corps.

What GAO Found:

Federal law requires DOD and the Corps of Engineers to consult with 
state regulatory agencies and EPA during the process of cleaning up 
formerly used defense sites (FUDS).  However, the law only provides 
specifics for the cleanup phase for hazardous substances.  DODís 
Management Guidance and the FUDS Program Manual do not provide clear 
direction or specific steps for involving regulators in the FUDS 
program.  In addition, both the law and the guidance are silent on the 
subject of consultation or coordination with regulators during the 
preliminary assessment phase, when the Corps makes decisions on whether 
a former defense site is eligible for DOD cleanup and whether further 
investigation and/or cleanup are needed.  DOD and Corps officials told 
GAO that they would revise their guidance to include specific, but as 
yet undetermined, instructions for coordination with regulators during 
such decisions.

DOD and the Corps have recently taken several steps to improve 
coordination.  For example, they are working with the regulatory 
community to develop specific steps that Corps districts can take, such 
as providing states with updated lists of current and future FUDS 
program activities in their states and initiating a new pilot program 
in nine states that has the Corps working side by side with regulators 
in the cleanup of former defense sites.  In addition, several Corps 
districts have independently taken steps to improve coordination with 
state regulators.  DOD and the Corps will need to assess the 
effectiveness of these various initiatives to determine which are 
successful and should be included in program guidance to all districts. 

Despite the improvements in coordination, regulators still raised two 
major issues about Corps coordination on the FUDS program.  First, some 
states believe that they lack the information necessary to properly 
oversee cleanup work at former defense sites and to judge the validity 
of Corps decisions.  For example, 15 of the 27 states GAO contacted 
believe they need to be involved in knowing what the Corps is doing 
during the preliminary assessment phase.  Also, 9 of the 27 states 
believe they need to be involved in project closeouts, so that they can 
ensure that the Corps has met state cleanup standards.  Second, EPA 
believes it should have a larger role in the cleanup of former defense 
sites.  Although states are the primary regulator at the majority of 
former defense sites and EPA is the primary regulator for only the 21 
former defense sites that are on the list of the nationís worst 
hazardous sites, EPA believes that its role even on the unlisted sites 
should be greater.  The agency believes that this would improve the 
effectiveness of the cleanups and increase public confidence overall.  
The Corps disagrees, and the two agencies have been unable to establish 
an effective working relationship on the cleanup for former defense 
sites.

Commenting on a draft of this report, DOD stated that it generally 
agreed with the recommendations and was taking or planned to take steps 
that should, when completed, substantially correct the problems GAO 
cited.

What GAO Recommends:

DOD and the Corps should (1) develop clear and specific coordination 
guidance that should explicitly include, among other things, 
preliminary assessment of eligibility and ordnance and explosive waste; 
(2) assess recent efforts to improve coordination at the national as 
well as district level and promote wider distribution of best 
practices; and (3) work with EPA to clarify their respective roles in 
the cleanup of former defense sites that are not on the list of the 
nationís worst hazardous sites.

www.gao.gov/cgi-bin/getrpt?GAO-03-146.

To view the full report, including the scope
and methodology, click on the link above.
For more information, contact (Ms.) Anu Mittal or Ed Zadjura on (202) 
512-3841.

[End of section]

Contents:

Letter:

Results in Brief:

Background:

Additional Guidance Would Help Ensure Coordination with Regulators:

DOD and the Corps Have Taken Some Steps to Improve Coordination with 
Regulators, but Assessment of These Efforts and Clearer Guidance Is 
Needed:

Views of Regulators about FUDS Coordination Activities:

Conclusions:

Recommendations for Executive Action:

Agency Comments and Our Evaluation:

Appendix I: Additional Details on Our Scope and Methodology:

Appendix II: State and Corps Project Managers' Responses to 
Our Survey Regarding Coordination at FUDS:

Appendix III: Comments from the Department of Defense:

Appendix IV: Comments from the Environmental Protection 
Agency:

Appendix V: GAO Contacts and Staff Acknowledgments:

Tables:

Table 1: Extent to Which State and Corps Project Managers Believe the 
Corps Coordinated with States during Cleanups in Our Sample, by Project 
Type:

Table 2: Extent to Which State and Corps Project Managers Believe the 
Corps Coordinated with States during Preliminary Assessments of 
Eligibility in Our Sample:

Table 3: Number of FUDS Properties and Projects in Our Sample:

Table 4: State Project Managers' Responses Regarding Corps Coordination 
with States during Preliminary Assessments of Eligibility in Our Sample:

Table 5: Corps Project Managers' Responses Regarding Corps Coordination 
with States during Preliminary Assessments of Eligibility in Our Sample:

Table 6: State Project Managers' Responses Regarding Corps Coordination 
with States during Cleanup of Hazardous Waste Projects in Our Sample:

Table 7: Corps Project Managers' Responses Regarding Corps Coordination 
With States during Cleanup of Hazardous Waste Projects in Our Sample:

Table 8: State Project Managers' Responses Regarding Corps Coordination 
with States during Cleanup of Containerized Waste Projects in Our 
Sample:

Table 9: Corps Project Managers' Responses Regarding Corps Coordination 
with States during Cleanup of Containerized Waste Projects in Our 
Sample	1:

Table 10: State Project Managers' Responses Regarding Corps 
Coordination with States during Cleanup of Ordnance and Explosive Waste 
Projects in Our Sample:

Table 11: Corps Project Managers' Responses Regarding Corps 
Coordination with States during Cleanup of Ordnance and Explosive Waste 
Projects in Our Sample:

Abbreviations:

CERCLA: Comprehensive Environmental Response, Compensation,
		 and Liability Act of 1980:

DOD: Department of Defense:

EPA: Environmental Protection Agency:

FUDS: formerly used defense sites:

NDAI: no DOD action indicated:

SARA: Superfund Amendments and Reauthorization Act of 1986:

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copyrighted materials separately from GAO's product.

[End of section]

United States General Accounting Office:

Washington, DC 20548:

March 28, 2003:

The Honorable John D. Dingell
Ranking Minority Member
Committee on Energy and Commerce
House of Representatives:

Dear Mr. Dingell:

More than 9,000 properties throughout the United States that were 
formerly owned or controlled by the Department of Defense (DOD) are 
potentially eligible for environmental cleanup. These formerly used 
defense sites (FUDS) are now owned by states, local governments, and 
individuals and are used for parks, schools, farms, and homes. Hazards 
at these FUDS may include hazardous, toxic, and radioactive wastes in 
soil, water, or containers, such as underground storage tanks; ordnance 
and explosive wastes; and unsafe buildings. According to DOD, 
identifying, investigating, and cleaning up hazards caused by DOD at 
FUDS will cost $15 billion to $20 billion and take more than 70 years.

The FUDS program, which is run by the U.S. Army Corps of Engineers 
(Corps), is part of the Defense Environmental Restoration Program. The 
Superfund Amendments and Reauthorization Act of 1986 (SARA) established 
this program.[Footnote 1] Depending on the types of hazards involved 
and their severity, either state environmental regulatory agencies or 
the Environmental Protection Agency (EPA) may be responsible for 
ensuring that the Corps meets applicable requirements and standards 
when cleaning up FUDS. In general, EPA is the primary regulator for the 
21 FUDS properties on EPA's list of the most dangerous hazardous waste 
sites in the country--the National Priorities List. States are 
typically the primary regulators for FUDS properties that have 
hazardous and other wastes but have not been placed on the National 
Priorities List. Since 1984, the Corps has generally determined without 
regulator input that more than 4,000 properties eligible for the FUDS 
cleanup program have no hazards that require further Corps study or 
cleanup action.[Footnote 2] However, since the late 1990s, hazards have 
surfaced at some of these FUDS, leading state and federal environmental 
regulators to question whether the Corps has properly assessed and 
cleaned up these and other FUDS.

There are many and varied opportunities for the Corps to coordinate 
with regulators during the FUDS cleanup program. After a potential FUDS 
property is identified, the Corps conducts a preliminary assessment of 
eligibility to determine if the property was ever under DOD's control 
prior to October 17, 1986, and therefore eligible for the program. Upon 
conclusion of the preliminary assessment of eligibility, the Corps 
conducts additional studies, tests, and investigations at all 
properties eligible for inclusion in the FUDS program where hazards are 
suspected to determine if the hazards found were the result of DOD 
ownership or control, the extent of any DOD-caused hazards, and the 
amount of DOD cleanup that might be warranted. Eventually, for some 
properties, the Corps designs, constructs, and operates a cleanup 
remedy such as treating contaminated groundwater or removing 
contaminated soils. At each phase in the program, the Corps has the 
opportunity to inform regulators of what it is doing or proposing, 
obtain regulator input on its efforts, or provide regulators with its 
results in the form of studies or reports.

In this context, you asked us to (1) analyze federal requirements for 
DOD and the Corps to coordinate with state and federal regulators 
during the FUDS cleanup program, (2) assess recent steps that DOD and 
the Corps have taken to better coordinate, and (3) identify any issues 
regulators may have about coordination with the Corps. As part of our 
review, we surveyed state and Corps managers about cleanup projects at 
519 randomly selected FUDS properties. We also interviewed state FUDS 
program officials from the 27 states that account for 80 percent of 
FUDS properties. Appendix I contains additional details on our scope 
and methodology.

Results in Brief:

Federal law requires DOD and the Corps of Engineers to consult with 
state regulatory agencies and EPA during the FUDS cleanup program. 
However, the only instance for which federal law provides specifics is 
the cleanup phase for hazardous substances.[Footnote 3] Guidance to 
carry out federal law is contained in DOD's Management Guidance and the 
Corps' FUDS Program Manual. While both documents emphasize the need for 
coordination with regulators, neither contains clear direction or 
specific steps for involving regulators in the FUDS program. Further, 
the law and DOD's Management Guidance and the FUDS Program Manual are 
silent on the subject of consultation or coordination with regulators 
(1) for hazards such as ordnance and explosive waste, which can pose 
serious human safety risks, and (2) during the preliminary assessment 
of eligibility phase, which is the first meaningful opportunity during 
the FUDS program for coordination with regulators. DOD and Corps 
officials told us that the FUDS Program Manual is presently being 
revised to include specific instructions for coordination with 
regulators, including during the preliminary assessment phase.

Since the late 1990s, DOD and the Corps have taken several steps to 
increase coordination with regulators during the various phases of the 
FUDS cleanup program, and officials in 20 of the 27 states we contacted 
noted an overall improvement in the Corps' coordination with them 
during the past few years. For example, DOD, together with the 
regulatory community, formed the FUDS Improvement Working Group to 
improve coordination. In April 2001, as a result of this group's work, 
Army headquarters sent a memo to Corps divisions and districts 
responsible for FUDS work requiring them to follow specific steps when 
dealing with regulators, such as providing states with updated lists of 
all ongoing and future FUDS activities and informing states of any 
Corps deviation from planned work. Other parts of the memo are more 
general, such as a requirement to involve states in setting priorities 
for FUDS work. However, this memo has not yet been made a part of DOD's 
Management Guidance or the FUDS Program Manual. Another result of the 
working group's efforts was a pilot program that DOD and the Corps have 
established for states and EPA to produce Management Action Plans. To 
develop these plans, regulators would work jointly with the Corps to 
identify FUDS in the state, designate key stakeholders and their roles, 
set priorities for FUDS cleanup, and develop work plans for cleanup. 
Four states have completed action plans, and nine more are developing 
them. Overall, 19 of the 27 state officials we talked to believe that 
this initiative would improve Corps coordination with them in the 
future. Individual Corps districts have also taken actions to improve 
coordination, such as holding quarterly meetings with regulators and 
establishing a process to jointly agree on closeouts. DOD and the Corps 
will need to assess the success of its pilot program and the efforts of 
individual districts to determine which lessons learned from these 
activities should be included in program guidance to enhance future 
coordination efforts for all districts.

Despite the improvements in coordination with the Corps that they noted 
in the last few years, regulators still raised two major issues about 
coordination on the FUDS program. First, some states believe they still 
do not receive all of the information necessary to properly carry out 
their regulatory responsibilities regarding the FUDS cleanup program or 
to judge the validity of Corps decisions through different program 
stages. For example, although not required, 15 of the 27 states we 
contacted believe they need to be involved in knowing what the Corps is 
doing during the preliminary assessment of eligibility phase. Further, 
9 of the 27 believe they need to be involved in project closeouts, when 
cleanup work has been completed, so that they can be assured that the 
Corps' actions have met state cleanup requirements. According to DOD, 
the Corps recognizes that states need to be involved in preliminary 
assessments of eligibility and project closeouts and has included 
specific instructions for such involvement in its revisions to the 
draft engineering regulation that revises the FUDS Program Manual. 
Second, EPA and DOD disagree on EPA's role in the FUDS program. 
Although EPA is the primary regulator for the FUDS that are on the list 
of the nation's worst hazardous waste sites, the states are typically 
the primary regulators for all other FUDS. EPA told us that its role at 
some of these unlisted FUDS should be greater because it believes it 
can help improve the effectiveness of the cleanups and increase public 
confidence in the program. DOD and some states disagree with this 
position because they do not believe there is a need for additional EPA 
oversight of its work at unlisted FUDS properties where the state is 
the lead regulator. DOD disagreed with a March 2002 internal EPA policy 
that proposed consultation expectations between the Corps and EPA under 
the Defense Environmental Restoration Program. Without an agreement on 
roles and responsibilities, the agencies have been unable to establish 
an effective working relationship on FUDS.

We are making recommendations to DOD aimed at increasing and improving 
Corps coordination with regulators on all phases of the FUDS cleanup 
program. In addition, in view of the disagreement over regulatory roles 
and responsibilities, DOD and EPA should work together to clarify their 
respective roles in the FUDS cleanup program.

In commenting on a draft of this report, DOD generally agreed with 
GAO's findings and, particularly, with GAO's assessment that the Corps 
has improved overall coordination with regulatory agencies. In 
addition, DOD agreed with GAO's recommendations and indicated that it 
is currently in the process of implementing changes that will improve 
the Corps' coordination with regulators. For example, DOD noted that 
the Corps is currently in the process of revising its guidance to 
include step-by-step procedures for regulatory coordination at each 
phase of FUDS cleanup, including the preliminary assessment of 
eligibility phase, and to include unexploded ordnance projects; is 
proposing to include best practices that stem from its experience with 
Management Action Plans; and will review individual District 
coordination efforts to identify other potential best practices. EPA 
also reviewed a draft of this report and agreed with our findings and 
conclusions.

Background:

The FUDS program is carried out by 22 Corps districts located 
throughout the nation. DOD carries out its roles and responsibilities 
in cleaning up FUDS primarily under the Defense Environmental 
Restoration Program, which was established by section 211 of the 
Superfund Amendments and Reauthorization Act of 1986. Under the 
environmental restoration program, DOD is authorized to identify, 
investigate, and clean up environmental contamination at FUDS. The U.S. 
Army, through the Corps, is responsible for these activities and is 
carrying out the physical cleanup. DOD is required, under the Defense 
Environmental Restoration Program, to consult with the Environmental 
Protection Agency (EPA), which has its own authority to act at 
properties with hazardous substances. In general, EPA is the primary 
regulator for the 21 FUDS properties on EPA's list of the most 
dangerous hazardous waste sites in the country--the National Priorities 
List. States are typically the primary regulators for FUDS properties 
that have hazardous and other wastes but have not been placed on the 
National Priorities List.

To determine if a property is eligible for cleanup under the FUDS 
program, the Corps conducts a preliminary assessment of eligibility. 
This assessment determines if the property was ever owned or controlled 
by DOD and if hazards caused by DOD's use may be present. If the Corps 
determines that the property was at one time owned or controlled by DOD 
but does not find evidence of any hazards caused by DOD, it designates 
the property as "no DOD action indicated" (NDAI).[Footnote 4] If, 
however, the Corps determines that a DOD-caused hazard that could 
require further study may exist on a former DOD-controlled property, 
the Corps begins a project to further study and/or clean up the hazard.

FUDS cleanup projects fall into one of four categories, depending on 
the type of hazard to be addressed.[Footnote 5]

* Hazardous waste projects address hazardous, toxic, and radioactive 
substances, such as paints, solvents, and fuels.

* Containerized waste projects address containerized hazardous, toxic, 
and radioactive waste associated with underground and aboveground 
storage tanks, transformers, hydraulic systems, and abandoned or 
inactive monitoring wells.

* Ordnance and explosive waste projects involve munitions, chemical 
warfare agents, and related products.

* Unsafe buildings and debris projects involve demolition and removal 
of unsafe buildings and other structures.

The type and extent of the work that the Corps may need to perform at a 
project depend on the project category. Hazardous waste and ordnance 
and explosive waste projects involve a site inspection to confirm the 
presence, extent, and source of hazards; a study of cleanup 
alternatives; the design and implementation of the actual cleanup; and 
long-term monitoring to ensure the success of the cleanup. 
Containerized waste and unsafe buildings and debris projects, on the 
other hand, may involve only the design and implementation of the 
cleanup.

Additional Guidance Would Help Ensure Coordination with Regulators:

While federal law requires DOD and the Corps to consult with 
regulators, including states and EPA, during the FUDS cleanup program, 
it does not define consultation. Similarly, the two primary DOD and 
Corps guidance documents for implementing the FUDS program emphasize 
the need for Corps coordination with regulators but do not provide 
clear direction or specific steps for involving regulators in the FUDS 
program. Our survey results show a lack of consistent coordination 
between the Corps and regulators throughout the history of the program 
that could be caused by the lack of specific requirements that state 
explicitly what the Corps needs to do to involve regulators. According 
to DOD, ongoing development of regulations that will revise the Corps' 
FUDS Program Manual will provide clear direction and specific steps for 
involving regulators in the FUDS program.

Federal Law and DOD and Corps Guidance Generally Require Coordination 
with Regulators but Do Not Contain Specific Requirements:

Federal law requires DOD and the Corps to consult with regulatory 
entities in carrying out the FUDS program. Under 10 U.S.C. 2701, the 
Corps must carry out the FUDS program "in consultation with" EPA. 
However, this section does not define consultation, mention the state 
regulators, or prescribe specific steps for the Corps to follow. More 
specific language regarding consultation as it relates to the cleanup 
of hazardous substances is provided in 10 U.S.C. 2705. At projects 
involving hazardous substances, the Corps must notify EPA and 
appropriate state officials and provide them an opportunity to review 
and comment on activities associated with (1) discovering releases or 
threatened releases of hazardous substances at FUDS, (2) determining 
the extent of the threat to public health and the environment that may 
be associated with such releases, (3) evaluating proposed cleanup 
actions, and (4) initiating each distinct phase of cleanup.[Footnote 6] 
In addition, CERCLA has specific consultation requirements for 
properties on the National Priorities List, including the 21 FUDS on 
the list for which EPA is the primary regulator.[Footnote 7] For many 
of these FUDS, EPA and DOD have signed a cleanup agreement stating that 
the two agencies agree on the nature of the cleanup action and the 
schedule for its completion.

DOD and the Corps have two major guidance documents for implementing 
the FUDS program: the DOD Management Guidance for the Defense 
Environmental Restoration Program and the FUDS Program Manual. The DOD 
Management Guidance pertains to all DOD environmental cleanup 
activities, including FUDS cleanup. It contains general guidance for 
the Corps' coordination activities. According to the guidance, DOD is 
fully committed to the substantive involvement of state regulators and 
EPA throughout the FUDS cleanup program and encourages cooperative 
working relationships. The latest version of the guidance, published in 
September 2001, emphasizes a greater need for coordination with 
regulators. For example, the guidance states that the Corps shall:

* establish communication channels with regulatory agencies;

* provide regulators access to information, including draft documents;

* establish procedures for obtaining pertinent information from 
regulators in a timely manner; and:

* involve regulatory agencies in risk determination, project planning, 
completion of cleanup activities, and other tasks.

Although the updated DOD Management Guidance articulates general steps 
that, if taken, would improve coordination between the Corps and 
regulatory agencies, the guidance does not specify procedures on how to 
take these steps. Further, some of the language is ambiguous and open 
to broad interpretation. For example, "establish communication 
channels" could mean anything from a telephone call once a year to 
weekly meetings.

The second guidance document, the FUDS Program Manual, constitutes the 
Corps' primary guidance for the program. Regarding coordination, the 
manual suggests, and sometimes requires, among other things, that the 
Corps:

* notify states and EPA of discovery and cleanup activities related to 
hazardous substances;

* ensure that states and EPA have adequate opportunity to participate 
in selecting and planning cleanup actions and in defining cleanup 
standards for FUDS projects;

* coordinate all cleanup activities with appropriate state regulatory 
and EPA officials;

* conduct cleanups of hazardous waste projects consistent with section 
120 of CERCLA, which addresses cleanups of federal facilities; and:

* try to meet state and EPA standards, requirements, and criteria for 
environmental cleanup where they are consistent with CERCLA.

Beyond generally restating statutory requirements, however, the FUDS 
Program Manual provides no clear, specific guidance to its program 
managers on how to implement those steps and coordinate consistently 
with regulators. For example, "coordinate all cleanup activities" needs 
to be defined and how to carry out and maintain such coordination on a 
day-to-day basis should be described more clearly. According to DOD and 
Corps officials, the draft Engineer Regulation that is being developed 
to revise the FUDS Program Manual includes specific instructions for 
review of draft preliminary assessments of eligibility by regulators. 
Officials added that they are open to further suggestions to improve 
coordination and consultation with regulators.

Despite Requirements, Corps Officials Often Did Not Coordinate during 
the Cleanup Phase:

Although coordination is required during the cleanup phase for 
hazardous and containerized wastes, responses to our survey of FUDS 
properties covering FUDS work that took place during the period from 
1986 through 2001 indicate that state project managers believe the 
Corps coordinated with them, on average, 34 percent of the time during 
cleanup, while the Corps believes it coordinated with states an average 
of 55 percent of the time during cleanup. Moreover, state and Corps 
respondents agree that coordination was better for projects in our 
sample that addressed hazardous substances than for projects that did 
not. For example, according to state respondents to our survey, 
coordination for hazardous waste projects was more than 25 percent 
higher than for ordnance and explosive waste projects. (See table 1.) 
For additional survey results, such as the percent of cases where 
respondents felt there wasn't any coordination or gave "don't know" 
responses, see appendix II.

Table 1: Extent to Which State and Corps Project Managers Believe the 
Corps Coordinated with States during Cleanups in Our Sample, by Project 
Type:

Examples of coordination during project activities: Corps informed 
states of upcoming work; Project Type: Hazardous waste (percentage): 
State: 53; Project Type: Hazardous waste (percentage): Corps: 72; 
Project Type: Containerized waste (percentage): State: 40; Project 
Type: Containerized waste (percentage): Corps: 57; Project Type: 
Ordnance and explosive waste (percentage): State: 18; Project Type: 
Ordnance and explosive waste (percentage): Corps: 42.

Examples of coordination during project activities: Corps asked for 
states' input and participation; Project Type: Hazardous waste 
(percentage): State: 50; Project Type: Hazardous waste (percentage): 
Corps: 67; Project Type: Containerized waste (percentage): State: 25; 
Project Type: Containerized waste (percentage): Corps: 51; Project 
Type: Ordnance and explosive waste (percentage): State: 18; Project 
Type: Ordnance and explosive waste (percentage): Corps: 39.

Examples of coordination during project activities: Corps informed 
states of interim results; Project Type: Hazardous waste (percentage): 
State: 49; Project Type: Hazardous waste (percentage): Corps: 73; 
Project Type: Containerized waste (percentage): State: 25; Project 
Type: Containerized waste (percentage): Corps: 51; Project Type: 
Ordnance and explosive waste (percentage): State: 13; Project Type: 
Ordnance and explosive waste (percentage): Corps: 24.

Examples of coordination during project activities: Corps provided 
states with draft reports; Project Type: Hazardous waste (percentage): 
State: 46; Project Type: Hazardous waste (percentage): Corps: 59; 
Project Type: Containerized waste (percentage): State: 27; Project 
Type: Containerized waste (percentage): Corps: 49; Project Type: 
Ordnance and explosive waste (percentage): State: 23; Project Type: 
Ordnance and explosive waste (percentage): Corps: 25.

Examples of coordination during project activities: Corps provided 
states with final reports; Project Type: Hazardous waste (percentage): 
State: 44; Project Type: Hazardous waste (percentage): Corps: 57; 
Project Type: Containerized waste (percentage): State: 36; Project 
Type: Containerized waste (percentage): Corps: 63; Project Type: 
Ordnance and explosive waste (percentage): State: 44; Project Type: 
Ordnance and explosive waste (percentage): Corps: 33.

Examples of coordination during project activities: Weighted average; 
Project Type: Hazardous waste (percentage): State: 48; Project Type: 
Hazardous waste (percentage): Corps: 66; Project Type: Containerized 
waste (percentage): State: 30; Project Type: Containerized waste 
(percentage): Corps: 54; Project Type: Ordnance and explosive waste 
(percentage): State: 23; Project Type: Ordnance and explosive waste 
(percentage): Corps: 34.

Source: GAO.

Note: States' and Corps' responses to GAO's FUDS survey.

[End of table]

Despite the greater coordination for projects addressing hazardous 
substances, the Corps is not involving the states consistently. For 
example, for projects addressing hazardous substances, the Corps is 
required by law to inform states before starting each phase of any 
action and to provide states an opportunity to review and comment on 
proposed cleanup actions. However, according to the states, the Corps 
informed them of upcoming work at these hazardous waste projects 53 
percent of the time and requested states' input and participation 50 
percent of the time. As shown in table 1, while the Corps thought it 
had coordinated at a higher rate, it was still less than the required 
100 percent. The fact that DOD and Corps guidance does not offer 
specific requirements that describe exactly how the Corps should 
involve regulators could be a factor behind the historical lack of 
consistency in Corps coordination with regulators.

Guidance Does Not Cover the Preliminary Assessment of Eligibility and 
Very Little Coordination Took Place During This Phase:

The DOD Management Guidance and FUDS Program Manual are silent on 
regulators' roles in preliminary assessments of eligibility, during 
which decisions on property eligibility and the need for cleanup are 
made, in part because the law requiring consultation with regulators is 
broad and does not mention consultation with the states, only with EPA. 
The Corps has historically regarded preliminary assessments of 
eligibility as an internal matter that does not require coordination 
with regulators. However, according to DOD, the draft Engineer 
Regulation, which will revise the FUDS Program Manual, will require the 
Corps to share information with the states, EPA, and local authorities 
during the development of the preliminary assessment of eligibility and 
will solicit their input. According to the results of our survey, the 
state project managers believe the Corps coordinated with them about 6 
percent of the time, and the Corps project managers believe the Corps 
coordinated with states about 27 percent of the time. (See table 2.) As 
a result, there is no consistent coordination at this stage of the FUDS 
program. For additional survey results, such as the percent of cases 
where respondents felt there wasn't any coordination or gave "don't 
know" responses, see appendix II.

Table 2: Extent to Which State and Corps Project Managers Believe the 
Corps Coordinated with States during Preliminary Assessments of 
Eligibility in Our Sample:

Examples of coordination during the 
preliminary assessment of eligibility: Corps informed states that it 
was starting 
preliminary assessment of eligibility; State project managers 
(percentage): 6; Corps project managers (percentage): 24.

Examples of coordination during the 
preliminary assessment of eligibility: Corps asked states for 
information or input on 
Corps approach; State project managers (percentage): 6; Corps project 
managers (percentage): 27.

Examples of coordination during the 
preliminary assessment of eligibility: Corps asked for state 
participation; State project managers (percentage): 5; Corps project 
managers (percentage): 16.

Examples of coordination during the 
preliminary assessment of eligibility: Corps informed states of interim 
results as work progressed; State project managers (percentage): 5; 
Corps project managers (percentage): 15.

Examples of coordination during the 
preliminary assessment of eligibility: Corps provided states with a 
draft of the report summarizing the results of the preliminary 
assessment of eligibility; State project managers (percentage): 4; 
Corps project managers (percentage): 7.

Source: GAO.

Note: States' and Corps' responses to GAO's FUDS survey.

[End of table]

Also, according to state and Corps respondents to our current survey, 
the Corps provided final reports on its preliminary assessments of 
eligibility to state regulators in 48 and 56 percent of the cases, 
respectively. In the past, states were only notified after the fact 
about the results of preliminary assessments of eligibility; however, 
the Corps said that although not required in its current guidance, its 
current practice is to coordinate all new preliminary assessments of 
eligibility with states. Subsequently, according to FUDS program 
officials in 12 of the 27 states we contacted, there has been some 
improvement in overall Corps coordination during the preliminary 
assessment of eligibility over the last 3 years. In particular, those 
states told us that while the Corps is still not required to coordinate 
with them during its preliminary assessments of eligibility, it has 
been doing a better job of providing them with draft and final reports 
on the outcomes of preliminary assessments of eligibility.

DOD and the Corps Have Taken Some Steps to Improve Coordination with 
Regulators, but Assessment of These Efforts and Clearer Guidance Is 
Needed:

Over approximately the last 3 years, states have noted an overall 
improvement in the Corps' coordination with them. For example, FUDS 
program officials in 20 of the 27 states we contacted reported that, 
overall, Corps coordination with them has improved during this time. 
The main factors state officials cited for the improvement include an 
increase in the number of meetings they were invited to attend with 
Corps project managers on specific project tasks, more information 
provided by the Corps to the states regarding project work, and better 
coordination in setting work priorities. DOD and the Corps started to 
take steps to address the coordination issue in response to the 
concerns that the states began to voice in the late 1990s about their 
lack of involvement in the FUDS program. Initially, DOD's efforts 
consisted of steps such as sponsoring conferences to encourage greater 
coordination between the Corps and regulators. Individual Corps 
districts also took steps to improve coordination.

As part of the efforts to improve coordination, the Deputy Assistant 
Secretary of the Army for Environment, Safety and Occupational Health, 
along with members of the regulatory community, formed the FUDS 
Improvement Working Group in October 2000 to address FUDS program 
concerns and to improve communication among the Corps, the regulators, 
and other parties with an interest in FUDS cleanup. The working group, 
which consisted of DOD, Corps, state, EPA, and tribal representatives, 
compiled a list of issues to be addressed through better communication 
and consistent coordination, including the role of regulators in 
setting priorities and planning work at FUDS properties and in the 
final closeout of properties after cleanup.[Footnote 8]

Two results of the working group's efforts to improve coordination are 
new Army guidance and a pilot program. First, in April 2001, Army 
headquarters sent a memorandum to Corps divisions and districts 
responsible for FUDS work requiring them to follow specific steps when 
dealing with regulators during the FUDS cleanup program. For example, 
the memorandum required the Corps to:

* inform states of FUDS that are likely to go through a preliminary 
assessment of eligibility,

* provide states with updated lists of all ongoing and future 
activities at FUDS,

* involve states in setting priorities for FUDS work,

* provide states a final list of FUDS that will undergo some type of 
work in the coming year,

* inform states of any Corps deviation from planned work and provide 
them with the rationale for any such changes, and:

* involve states in developing the final report of the preliminary 
assessment of eligibility.

The Corps considers this directive to be a first step in improving the 
states' somewhat negative perceptions of the FUDS program and overall 
communication between the Corps and the states. The directive addresses 
many state concerns, including lack of:

* information about which FUDS properties the Corps is working on,

* involvement in and information about preliminary assessments of 
eligibility and their outcomes, and:

* state regulatory involvement in setting priorities for Corps FUDS 
work.

However, after almost 2 years, the memo's conclusions have not been 
incorporated in either DOD's Management Guidance or the Corps' FUDS 
Program Manual. According to DOD, the Corps is now in the process of 
revising the FUDS Program Manual as an Engineer Regulation to include 
specific requirements for Corps district coordination with EPA and 
state regulators.

The second result from the working group is a pilot program developed 
by the Army in March 2001 under which the Corps and regulatory 
agencies, including states and EPA, jointly prepare statewide 
Management Action Plans for FUDS properties. Specifically, for each 
state participating in the pilot, information provided by EPA, state 
regulators, and other relevant parties is consolidated on each FUDS 
property in the state to prepare a statewide Management Action Plan. 
Each state plan provides a coordinated strategy for investigating and 
cleaning up FUDS that:

* identifies the key participants and their roles at FUDS cleanups,

* provides an inventory of all FUDS located in the state,

* sets priorities for cleaning up FUDS properties and projects, and:

* develops statewide work plans.

Overall state reaction to this pilot has been favorable. FUDS project 
managers in 19 of the 27 states that we contacted believe that this 
pilot will improve future communication between the Corps and the 
states.

To date, the four states that participated in the initial phase of the 
pilot--Colorado, Kansas, Ohio, and South Dakota--have statewide plans. 
The plans' approaches vary to address each state's unique 
circumstances. For example, the Kansas plan was very detailed, covering 
the status of state and federal environmental programs, the status of 
the FUDS program, and providing details about Kansas FUDS properties. 
Conversely, the South Dakota and Colorado plans focused only on 
regulator and budget issues. Corps officials stated that they receive 
input from state representatives of organizations in the working group 
regarding whether the pilot has been successful. Recognizing that the 
variation in state approaches as to how these Management Action Plans 
are developed might be appropriate, DOD says that it plans to work with 
the FUDS Improvement Working Group to evaluate the success of the pilot 
and determine best practices that could be shared with the nine 
additional states that participated in the second round of the pilot 
during fiscal year 2002: Alaska, Arizona, Massachusetts, Missouri, 
North Carolina, South Carolina, Texas, Virginia, and Wyoming. DOD views 
the pilot as a success and plans to continue the development of 
statewide Management Action Plans for an additional six states during 
fiscal year 2003, including Alabama, Hawaii, Michigan, New Mexico, New 
York, and Washington. As part of this effort, DOD plans to develop a 
format that meets the needs of each particular state. Corps officials 
stated that the Corps will highlight the minimum elements that must be 
in a Statewide Management Action Plan but will not dictate the plan's 
exact format.

In addition to the DOD and Corps efforts taken to improve coordination, 
individual Corps districts also took steps to improve coordination with 
the states in which they operate, as follows:

* The Alaska district began sharing with state regulators backup 
documents related to its preliminary assessments of eligibility and 
inviting regulators to accompany district officials on site visits 
during the preliminary assessments of eligibility. The Alaska district 
now also involves state regulators in developing work plans and is in 
the process of establishing formal procedures to achieve project and 
property closeouts that are jointly agreed upon by the Corps and the 
state.

* The Louisville district, in response to state concerns, began to 
reassess its previous NDAI determinations at Nike missile sites.

* Since 1998, the Kansas City district has been holding quarterly 
meetings with states and EPA to establish lines of communication 
between the Corps and regulators; the district has also entered into 
memorandums of agreement with states and EPA outlining roles and 
responsibilities for each.

* The Fort Worth district invited interested parties, including 
officials from another district and state regulators, to its June 2001 
meeting to set priorities and plan FUDS work for the upcoming year.

* The Honolulu district and EPA Region 9 cochair meetings semi-annually 
to foster communication on the FUDS program in the Pacific area.

* The Baltimore district provided electronic copies of all preliminary 
assessment of eligibility reports to Delaware, Maryland, Pennsylvania, 
and Washington, D.C., in 1999; similarly, the Norfolk district provided 
most, if not all, such reports to the state of Virginia.

While these individual district efforts may yield positive results, the 
Corps has not assessed these efforts to determine if any might be 
candidates for Corps-wide implementation. The Corps believes it is a 
best practice to allow individual districts and regulators to work out 
mutually agreed to levels of coordination. However, without adequate 
guidance, direction, and a menu of best practices for districts to 
choose from, inconsistent and inadequate coordination may result. To 
better promote greater and more consistent coordination with 
regulators, DOD and the Corps will need to assess the success of 
individual district efforts to determine which lessons learned from 
these activities should be included in program guidance.

Views of Regulators about FUDS Coordination Activities:

Some state regulators, who are responsible for ensuring that applicable 
environmental standards are met at most FUDS properties, believe that 
inadequate Corps coordination has made it more difficult for them to 
carry out their regulatory responsibilities. Also, state regulatory 
officials told us that they have frequently questioned Corps cleanup 
decisions because they have often not been involved in or informed 
about Corps actions at FUDS. Conversely, they told us that when Corps 
coordination has occurred, states have been more likely to agree with 
Corps decisions. At the federal level, EPA and the Corps do not share 
the same view on EPA's role in the FUDS program. EPA believes that it 
should play a greater role at the 9,000 FUDS that are not on the 
National Priorities List, while the Corps believes that EPA's role 
should remain limited to those FUDS that are on the National Priorities 
List.

Some State Regulators Believe Poor Coordination by the Corps Makes It 
Difficult for Them to Ensure That Environmental Standards Are Met:

Some state regulators we contacted believe that when the Corps does not 
inform them of its FUDS cleanup activities or involve them in the 
various stages of the FUDS program, they do not have the information 
necessary to ensure that applicable cleanup standards have been met and 
that the cleanup actions will protect human health and the environment. 
They were particularly concerned about the preliminary assessment of 
eligibility stage of the program and hazards such as ordnance and 
explosive waste, for which the requirement in law (10 U.S.C. 2701) 
"consultation with EPA" is very broad and without definition. Further, 
the law does not mention consultation or coordination with state 
regulators. Discussions with state regulators raised the issue that 
coordination through all stages of the program was valuable and helped 
regulators develop confidence in Corps decisions.

With regard to the preliminary assessment of eligibility, FUDS program 
officials in 15 of the 27 states we contacted expressed specific 
concerns regarding their limited involvement during this stage of the 
program. One concern, which was raised by 12 of these officials, was 
that Corps activities are taking place without their knowledge or 
involvement. Our past work has shown the results of this lack of 
coordination. Our August 2002 report[Footnote 9] noted that because the 
Corps historically did not consult states during its preliminary 
assessment of eligibility, states did not discover until after the 
fact, in some cases years later, that the Corps had determined that 
more than 4,000 properties required no further DOD study or cleanup 
action. Moreover, in several cases in which DOD had made an NDAI 
determination without involving the states, DOD-caused hazards were 
later identified, and the Corps had to reassess the properties and 
conduct cleanup work. At Camp O'Reilly in Puerto Rico, for example, the 
Corps made an NDAI determination after it conducted a preliminary 
assessment of eligibility that did not include a review of state 
historical information on the use of the property. Several years later, 
the then-owner of the property identified DOD-caused hazards at the 
property. This led to a more comprehensive Corps assessment that found 
serious threats to drinking water sources and other hazards that 
required cleanup under the FUDS program.

Another concern about the preliminary assessment of eligibility voiced 
by officials in 17 of the 27 states we contacted is that the Corps has 
not adequately supported and documented its NDAI decisions, and it has 
not involved states in developing them. Because of their lack of 
involvement and what states perceive as a lack of adequate support for 
such Corps decisions, these states believe they have little assurance 
that the Corps performed adequate work during its preliminary 
assessments of eligibility and that NDAI properties are, in fact, free 
of DOD-caused hazards. Our survey of 519 FUDS properties also showed 
that, historically, states approved of Corps NDAI determinations in 
only 10 percent of the cases; in 70 percent of the cases, state 
respondents could not say whether they agreed or disagreed with the 
determination.

With regard to ordnance and explosive waste projects, one of the types 
of projects states told us were most important to them, interviews with 
the 27 state FUDS program officials indicated that they were satisfied 
with the Corps' work on such projects in only 11 percent of the cases. 
This lack of satisfaction could be, at least partially, the result of 
the relatively low levels of state involvement in these projects. 
According to state survey respondents, the Corps involved them, on 
average, in 23 percent of ordnance and explosive waste projects. Corps 
guidance currently focuses coordination on hazardous waste and does not 
specifically address coordination of ordnance and explosive waste 
projects. However, according to DOD, the draft Engineer Regulation that 
revises the FUDS Program Manual includes specific requirements for 
district coordination with regulators on such projects.

States also have various concerns about their limited involvement in 
the FUDS work that occurs after the preliminary assessment of 
eligibility. For example, FUDS program officials in 7 of the 27 states 
believe that being more involved in setting priorities for the Corps' 
project work could help ensure that riskier sites were addressed in a 
timely manner. Further, officials in 9 of the states we contacted said 
that when they are not involved in project and property closeouts--the 
points at which the Corps concludes that all its cleanup work has been 
completed--state regulatory agencies have no assurance that Corps 
actions have met state cleanup requirements.

Finally, when the Corps has coordinated with states, states have been 
less likely to doubt the validity of Corps decisions and the adequacy 
of Corps cleanup activities. According to our survey results, for 
example, when states received final reports from the Corps, they agreed 
with Corps decisions regarding the risk posed by a hazard, the 
characteristics of the site, and the cleanup standards selected in 53 
percent of the cases and disagreed in only 13 percent.[Footnote 10] On 
the other hand, when states did not receive such documentation, they 
agreed with Corps decisions in only 11 percent of the cases, disagreed 
in 15 percent, and did not know enough to offer an opinion in 74 
percent of the cases. Similarly, according to some state FUDS program 
officials, as Corps coordination with states has improved over the past 
3 years, states' acceptance of Corps decisions has increased. For 
example, only one of the 27 state FUDS program officials we contacted 
generally agreed with Corps NDAI decisions that were made before the 
last 3 years. On the other hand, eight of these officials told us that 
they agree with recent NDAI decisions that were made during the last 3 
years.

EPA and the Corps Have Differing Views about Their Respective Roles and 
Management of the FUDS Program:

EPA has historically had little involvement in the cleanup of the 
approximately 9,000 FUDS that are not on its National Priorities List 
and for which EPA is usually not the primary regulator.[Footnote 11] In 
the late 1990s, at the request of some states, tribes, members of the 
general public, and others, EPA increased its focus on environmental 
investigations and cleanups of privately owned FUDS. In some cases, 
this has led to disagreements between EPA and the Corps and required 
added efforts on the parts of both agencies to reach agreement on how 
cleanup should be conducted.

As EPA's knowledge of the FUDS program and how it is carried out by the 
Corps grew, EPA focused its attention on various issues, including the 
following:

* EPA, the Corps, and state regulators all have differing views of 
EPA's role at FUDS that are not on the National Priorities List. EPA 
believes that, in certain instances, it should have a greater role at 
FUDS that are not on the National Priorities List. DOD, citing its 
statutory responsibility to carry out the FUDS program and a delegation 
of CERCLA authority under an executive order, maintains that it is the 
sole administrator of the FUDS program. States, which are responsible 
for regulating cleanup at most FUDS, have varying opinions on what 
EPA's role in FUDS cleanup should be. Several states would like to see 
EPA become more involved in the cleanup process, for example, by 
participating in preliminary assessments of eligibility or providing 
states with funds to review Corps work. Other states believe EPA's role 
is about right or that EPA has no role in the process unless a state 
invites it to participate.

* The way the Corps is to administer the FUDS cleanup program has also 
been interpreted differently by the agencies. Specifically, 10 U.S.C. 
2701 requires that the Corps perform work at FUDS projects involving 
hazardous substances "subject to and in a manner consistent with" 
section 120 of CERCLA, which addresses the cleanup of federal 
facilities. Section 2701 also requires the Corps to carry out response 
actions involving hazardous substances in accordance with the 
provisions of the Defense Environmental Restoration Program and CERCLA. 
However, EPA and the Corps disagree on the meaning of these 
requirements. EPA contends that the Corps should follow CERCLA 
regulations (the National Contingency Plan) and the EPA guidance used 
to clean up non-FUDS properties under CERCLA. DOD maintains its right 
to establish and follow its own procedures for determining project 
eligibility under the Defense Environmental Restoration Program, as 
long it performs response actions in a manner consistent with its 
authorities under the Defense Environmental Restoration Program and 
CERCLA.

* EPA believes that DOD's preliminary assessments of eligibility should 
be as comprehensive as the preliminary assessments that EPA conducts on 
non-FUDS properties. EPA's CERCLA-based preliminary assessments 
investigate entire properties for hazards, identifying the source and 
the nature of hazards and the associated risks to human health and the 
environment--information EPA needs to determine whether properties 
qualify for placement on the National Priorities List. In contrast, 
DOD's preliminary assessments of eligibility focus on determining 
whether the properties are eligible for cleanup under the FUDS program 
and whether DOD-caused hazards may exist. According to DOD, it collects 
information limited to DOD-related hazards in accordance with the 
limits of its authorities under the Defense Environmental Restoration 
Program. The FUDS Program Manual states that DOD's preliminary 
assessment of eligibility is not intended to be equivalent to the 
CERCLA preliminary assessment. DOD officials said that the draft 
Engineer Regulation, which revises the FUDS Program Manual, addresses 
EPA concerns about coordination during the preliminary assessment of 
eligibility.

* DOD views preliminary assessments of eligibility as internal agency 
documents for which there is no coordination requirement and has 
generally not coordinated these assessments with EPA. As a result, 
according to EPA officials, EPA often does not have access to the 
information necessary for deciding whether a property should be 
included on the National Priorities List. Consequently, EPA cannot be 
assured that significant hazards to human health and the environment 
that could warrant listing do not exist at a property, and EPA may need 
to conduct its own, more comprehensive, preliminary assessment under 
CERCLA.

Because of its focus on these issues, EPA re-evaluated its approach to 
addressing privately owned FUDS, and, in March 2002, issued a policy 
for addressing privately owned FUDS that are not on the National 
Priorities List.[Footnote 12] The policy, issued to EPA's regional 
offices to clarify the agency's role at these FUDS, outlines a 
framework for coordinating with the Corps and EPA's expectations for 
Corps consultation with them under the Defense Environmental 
Restoration Program. For example, EPA would like to see the Corps:

* involve it to a greater extent in FUDS work, such as preliminary 
assessments of eligibility;

* provide EPA, state regulatory agencies, and other interested parties 
reasonable opportunities for meaningful review of and comment on major 
decision documents, as well as documents associated with carrying out 
specific FUDS activities, such as work plans and sampling and analysis 
plans; and:

* respond in writing to comments from EPA, the states, and others and 
show how it has addressed the comments or, if it has not, explain why 
not.

Overall, EPA believes that a better-coordinated effort among all 
parties, as discussed in its policy, would improve the effectiveness of 
cleanup at FUDS and increase public confidence in the actions taken at 
these sites. EPA's policy also emphasizes that EPA does not expect its 
involvement to be consistent across all phases of work; rather, it 
would increase its involvement at a site when conditions warranted--for 
example, if there were "imminent and substantial endangerment" or if 
EPA had concerns about the appropriateness of the cleanup.

DOD disagrees with much of EPA's new policy. For example, in commenting 
on EPA's draft policy, DOD requested that EPA delete from it numerous 
references to EPA's "oversight" and "review." DOD, citing its statutory 
responsibility to carry out the FUDS program and referring to a 
delegation of CERCLA authority under an executive order, maintains that 
the FUDS program is solely its program to administer. DOD also 
maintains that 10 U.S.C. 2701, which provides for EPA's consultation 
role under the FUDS program, does not provide authority for EPA 
concurrence or oversight of the program. According to DOD, EPA's role 
should be limited to FUDS for which EPA is the lead regulator--that is, 
primarily FUDS that are on the National Priorities List.

Without an agreement on roles and responsibilities, DOD and EPA have 
been unable to establish an effective working relationship on FUDS or 
have had to undertake extra efforts to come to an agreement on how a 
cleanup should be conducted. An example of this is the Spring Valley 
FUDS in Washington, D.C., where the U.S. Army operated a research 
facility to test chemical weapons and explosives during World War I. 
Because the site was a formerly used defense site, DOD has 
responsibility for cleaning up the site under the Defense Environmental 
Restoration Program. However, under CERCLA, EPA has its own authority 
to act at the site, including conducting investigations and removal 
actions. Further, under EPA's FUDS policy, EPA can take a more active 
role at FUDS if conditions warrant. According to EPA officials, if a 
site is not listed as a national priorities site or there is no 
imminent danger to the public or environment, EPA may limit its role. 
Early in the 1980s, the specific role of the two federal agencies at 
the Spring Valley site led to some confusion and disagreement about the 
cleanup approach and the standards to be applied. Over time, the 
federal agencies and the District of Columbia government formed a 
partnership to reach agreements on cleanup at the site. While the 
partners have not agreed on all cleanup decisions, they acknowledged, 
as of June 2002, that the partnership was operating effectively. 
Further, officials acknowledge that forming the partnership has 
provided a means to foster communication and collaboration.

Conclusions:

While state regulators reported to us that the Corps has improved its 
coordination with them, more can be done in five areas to build on 
those successes. First, our work has shown that many states would like 
to be more involved in the preliminary assessment of eligibility stage 
of the program. The program guidance is silent on regulators' roles in 
preliminary assessments of eligibility, in part because the law 
requiring consultation with regulators is broad and does not mention 
consultation with the states, only with EPA. The Corps has regarded 
preliminary assessments of eligibility as an internal matter and has 
done little to coordinate with regulators during the assessment. As a 
result, regulators believe their ability to ensure that decisions about 
FUDS properties and projects meet environmental standards and protect 
the public from environmental contamination has been hindered. As we 
were completing our work, DOD and Corps officials told us that they are 
in the process of revising the FUDS Program Manual as an Engineer 
Regulation that would include requirements for coordination during 
preliminary assessments. Following through with this plan is critical 
to clearly establish that coordination is required and lay out what 
steps need to be taken to ensure that it occurs.

Second, as it updates its program guidance, incorporating the more 
specific requirements sent out in an April 2001 memorandum would help 
to ensure that coordination requirements are clear. Better clarity 
could also result from a re-examination and clarification of existing 
DOD and Corps FUDS program guidance documents that are general in 
nature and contain ambiguous language. Third, DOD and Corps efforts 
have been directed at improving coordination on hazardous waste 
projects but could be enhanced by also requiring coordination for 
ordnance and explosive wastes cleanup that can pose significant safety 
and health risks and in which many of the states want to be more 
involved. However, DOD states that it addresses coordination 
requirements at ordnance and explosive waste projects in its draft 
Engineer Regulation, which replaces the FUDS Program Manual.

Fourth, while the Corps has made various agencywide efforts to improve 
coordination with regulators, such as its state management plans pilot 
program, many beneficial coordination efforts have also occurred at 
Corps districts through the initiative of individual Corps personnel. 
Evaluating these district efforts and agencywide initiatives to 
incorporate successful ones into its operating procedures for the FUDS 
program as a whole would establish best practices and result in the 
entire program benefiting from individual efforts.

Finally, at the federal level, EPA and the Corps disagree about EPA's 
role in the cleanup of more than 9,000 FUDS that are not on the 
National Priorities List. Reaching agreement on these roles and 
expectations for coordination is essential for establishing an 
effective working relationship on FUDS. The lack of a good working 
relationship between two federal cleanup agencies may hamper efforts to 
properly assess properties for cleanup and may, in some cases, result 
in some duplication of effort--for example, when EPA has to reassess 
the properties to determine if they merit placement on the National 
Priorities List. In addition, while the partnership formed by the two 
agencies at the Spring Valley FUDS demonstrates that the agencies can 
work together, that is not the norm for the FUDS program as evidenced 
by EPA's March 2002 FUDS policy and DOD's response to it. Further, even 
if the agencies were able to negotiate partnerships or memoranda of 
understanding for individual FUDS properties, that is neither an 
efficient nor cost effective approach given that there are thousands of 
FUDS properties needing cleanup.

Recommendations for Executive Action:

To help ensure consistent coordination with regulators during all 
phases of FUDS investigation and cleanup, we recommend that the 
Secretary of the Department of Defense direct the Secretary of the 
Department of the Army to follow through on its plans to develop and 
incorporate clear and specific guidance in the Corps' FUDS Program 
Manual as to how, when, and to what extent coordination with regulators 
should take place, including during preliminary assessments of 
eligibility. Moreover, in view of the states' concerns and hazards 
posed by ordnance and explosive waste, the coordination guidance should 
address these types of projects as well, not just those involving 
hazardous waste. In developing the guidance, the Army should work with 
regulators to develop a consensus on how, when, and to what extent 
coordination should take place.

As a starting point, we recommend that the Secretary of the Department 
of Defense direct the Secretary of the Department of Army to:

* assess the impact of the Corps' recent efforts to improve 
coordination through actions such as directives and the Management 
Action Plan pilot program and incorporate the successful components as 
requirements into its FUDS Program Manual, and:

* assess practices individual Corps districts have used to coordinate 
with regulators and develop a list of best practices for dissemination 
throughout the Corps that districts might use to improve their 
coordination.

In addition, in view of the need for federal agencies to ensure that 
cleanup efforts are done properly and that scarce resources are best 
utilized, DOD and EPA should work together to clarify their respective 
roles in the FUDS cleanup program for properties that are not listed on 
the National Priorities List. The agencies should agree on a time frame 
to establish a memorandum of understanding that will lay out an overall 
framework for how they will work together, including their roles and 
responsibilities, during the assessment and cleanup of FUDS properties.

Agency Comments and Our Evaluation:

We provided DOD and EPA with a draft of this report for their review 
and comment. DOD and EPA agreed with our findings and conclusions. In 
addition, DOD agreed with two of the report's recommendations and 
partially agreed with the third, and indicated that it had begun or was 
planning on taking actions to address all of them.

In response to our recommendation that DOD follow through on its plans 
to develop and incorporate clear and specific guidance in the FUDS 
Program Manual as to how, when, and to what extent coordination with 
regulators should take place, including during the preliminary 
assessment of eligibility phase and for ordnance and explosive waste 
projects, DOD indicated that it is in the process of addressing this 
issue. Specifically, the Corps is revising the FUDS Program Manual as 
an engineering regulation that will include step-by-step procedures for 
regulatory coordination at each phase of FUDS cleanup, including the 
preliminary assessment of eligibility process, and for unexploded 
ordnance projects.

DOD also indicated that it is taking actions that should address our 
recommendations that DOD assess the impact of recent Corps' efforts to 
improve coordination through actions such as the Management Action Plan 
pilot program and incorporate the successful components as requirements 
into its FUDS guidance. DOD is also assessing practices that individual 
Corps districts have used to coordinate with regulators and developing 
a list of best practices for dissemination and use throughout the 
Corps. DOD stated that it is proposing to include best practices from 
the Management Action Plan pilot in its engineering regulation and will 
review individual District efforts aimed at improving coordination with 
regulators to see if additional best practices should be developed.

In response to our recommendation that DOD and EPA work together to 
clarify their respective roles in the FUDS cleanup program by 
establishing a memorandum of understanding that will lay out an overall 
framework, DOD is proposing to incorporate coordination and 
consultation requirements in the appropriate procedural sections of the 
upcoming engineering regulation, rather than using a memorandum of 
understanding.

Overall, the steps being taken or planned by DOD to improve 
coordination with regulators could, when completed, constitute a 
significant improvement over current processes and should go a long way 
toward addressing the problems identified in this report that were the 
subject of our recommendations.

EPA did not comment specifically on the individual recommendations in 
the report but did state that report did an excellent job of presenting 
substantive information relative to DOD's efforts to consult with 
regulatory agencies.

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

We conducted our review from March 2001 to September 2002 in accordance 
with generally accepted government auditing standards.

:

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

If you or your staff have any questions, please call me or Edward 
Zadjura at (202) 512-3841. Contributors to this report are listed in 
appendix V.

Sincerely yours,

(Ms.) Anu K. Mittal
Acting Director, Natural Resources and Environment:

Signed by Anu K. Mittal:

[End of section]

Appendix I: Additional Details on Our Scope and Methodology:

The objectives of our review were to (1) identify federal requirements 
for DOD and the Corps to coordinate with state and federal regulators 
during the FUDS cleanup program, (2) determine the extent to which the 
Corps has coordinated with state regulators since the start of the FUDS 
program and assess the recent steps it has taken to better coordinate, 
and (3) identify any concerns regulators may have about coordination 
with the Corps.

To identify federal requirements that DOD and the Corps must meet in 
coordinating with regulators, we obtained and reviewed the Superfund 
Amendments and Reauthorization Act of 1986. To identify related DOD and 
Corps guidance, we interviewed FUDS program officials and Corps 
officials in various Corps districts and divisions. We then obtained 
and reviewed the guidance documents, including the Defense Management 
Guidance for the Defense Environmental Restoration Program, the Corps 
FUDS Program Manual, and other related documents.

To determine how the Corps coordinates with state regulators during the 
assessment and cleanup of FUDS, we conducted a survey. First, we drew a 
stratified, random sample of 519 FUDS properties from the Corps' FUDS 
database, as of February 2001. The survey results cover FUDS program 
activities that took place from 1986 through 2001. The sample consisted 
of 150 properties that did not have any projects associated with them 
and an additional 369 properties that had at least one project with at 
least one specific work phase completed. The following table summarizes 
our sample in terms of the number of properties represented, as well as 
the number and types of projects.

Table 3: Number of FUDS Properties and Projects in Our Sample:

FUDS Properties: Properties without projects; Population: FUDS 
Properties: 4,002; Sample: FUDS Properties: 150.

FUDS Properties: Properties with projects; Population: FUDS Properties: 
2,762; Sample: FUDS Properties: 369.

FUDS Properties: Total FUDS properties; Population: FUDS Properties: 
6,764; Sample: FUDS Properties: 519.

FUDS Properties: FUDS Projects.

FUDS Properties: Project Category; Population: FUDS Properties: 
[Empty]; Sample: FUDS Properties: [Empty].

FUDS Properties: * Hazardous waste; Population: FUDS Properties: 1,009; 
Sample: FUDS Properties: 96.

FUDS Properties: * Containerized waste; Population: FUDS Properties: 
1,274; Sample: FUDS Properties: 106.

FUDS Properties: * Ordnance and explosive waste; Population: FUDS 
Properties: 1,629; Sample: FUDS Properties: 144.

FUDS Properties: * Unsafe buildings and debris; Population: FUDS 
Properties: 470; Sample: FUDS Properties: 32.

FUDS Properties: * Potentially responsible party; Population: FUDS 
Properties: 201; Sample: FUDS Properties: 21.

FUDS Properties: * Other; Population: FUDS Properties: 2; Sample: FUDS 
Properties: 0.

FUDS Properties: Total FUDS projects.

Source: GAO.

[A] Some properties with projects had multiple projects.

[End of table]:

We obtained information from the Corps' FUDS database to customize the 
surveys depending on their cleanup phase as well as the types of 
projects, if any, that were in the survey. At the property level, 
questions varied depending upon whether 1) the Corps had determined 
that no DOD action was indicated, 2) the database showed no projects 
associated with the property and DOD had not made a determination that 
no DOD action was indicated, and 3) the Corps had proceeded with at 
least some type of project work. Project level questions varied 
depending on 1) the type of project--for example, hazardous waste 
projects received a more complex questionnaire than unsafe buildings 
and debris projects because hazardous waste projects must go through 
more investigation and cleanup phases and 2) how many of the 
investigation and cleanup phases the Corps had completed at a project-
-as indicated by the Corps FUDS database.[Footnote 13] For example, not 
all hazardous waste projects in our sample have gone through all 
applicable phases. Based on information that the Corps provided to us, 
we determined which phases were completed in such projects and only 
asked questions related to the completed phases. We then sent similar 
questionnaires to the current Corps and state project managers of the 
properties in our sample to obtain the views of both regarding 
coordination.

To obtain information on DOD efforts to improve coordination with 
regulators and address their concerns, we interviewed DOD and Corps 
headquarters officials and reviewed documents that they provided. In 
addition, we contacted FUDS program officials at several Corps 
divisions and districts, including the Great Lakes and Ohio River, 
North Atlantic, South Atlantic, and Southwestern divisions, and the 
Alaska, Louisville, Norfolk, Seattle, and Tulsa districts.

To obtain information on state regulators' concerns regarding Corps 
coordination with them regarding the FUDS program, we conducted 
structured interviews with FUDS program managers in the 27 states that 
account for most of the FUDS work. To determine which states to call, 
we used the Corps FUDS database to identify the 20 states that had the 
greatest number of FUDS properties. Because properties vary in terms of 
the amount of work they involve--for example, the number of projects at 
FUDS properties ranged between 1 and 43---we also identified the 20 
states that had the most FUDS projects. There were 27 states that fell 
into at least one of these two categories, and they accounted for 
approximately 80 percent of all FUDS properties and all FUDS projects. 
To document consistently the information we obtained from the FUDS 
managers in the 27 states, we developed a data collection instrument to 
guide our interviews.

To obtain information on the Corps' coordination with EPA and its 
concerns regarding its role in the program, we interviewed officials at 
EPA headquarters, including those from the Office of Solid Waste and 
Emergency Response responsible for developing EPA's guidance for FUDS, 
and we reviewed documentation they provided. In addition, we developed 
a data collection instrument to conduct structured interviews with 
federal facilities officials who deal with FUDS issues at all 10 EPA 
regions.

[End of section]

Appendix II: State and Corps Project Managers' Responses to Our Survey 
Regarding Coordination at FUDS:

Table 4: State Project Managers' Responses Regarding Corps Coordination 
with States during Preliminary Assessments of Eligibility in Our 
Sample:

Did the Corps inform states that it was starting preliminary assessment 
of eligibility?; Yes: (percentage): 6; No: (percentage): 81; Don't 
know: (percentage): 13; Total: responses: 444.

Did the Corps ask states for information or input on its approach?; 
Yes: (percentage): 6; No: (percentage): 80; Don't know: (percentage): 
14; Total: responses: 886[A].

Did the Corps ask for state participation?; Yes: (percentage): 5; No: 
(percentage): 84; Don't know: (percentage): 11; Total: responses: 441.

Did the Corps inform states of interim results as work progressed?; 
Yes: (percentage): 5; No: (percentage): 83; Don't know: (percentage): 
12; Total: responses: 441.

Did the Corps provide states with a draft of the report summarizing the 
results of the preliminary assessment of eligibility?; Yes: 
(percentage): 4; No: (percentage): 84; Don't know: (percentage): 12; 
Total: responses: 441.

Did the Corps provide states with the final report on the preliminary 
assessment of eligibility?; Yes: (percentage): 48; No: (percentage): 
43; Don't know: (percentage): 9; Total: responses: 442.

Source: GAO.

[A] Combined total responses for two questions.

Note: States' responses to FUDS survey.

[End of table]

Table 5: Corps Project Managers' Responses Regarding Corps Coordination 
with States during Preliminary Assessments of Eligibility in Our 
Sample:

Did the Corps inform states that it was starting preliminary assessment 
of eligibility?; Yes: (percentage): 24; No: (percentage): 58; Don't 
know: (percentage): 18; Total: responses: 481.

Did the Corps ask states for information or input on its approach?; 
Yes: (percentage): 27; No: (percentage): 53; Don't know: (percentage): 
20; Total: responses: 965.

Did the Corps ask for state participation?; Yes: (percentage): 16; No: 
(percentage): 64; Don't know: (percentage): 20; Total: responses: 481.

Did the Corps inform states of interim results as work progressed?; 
Yes: (percentage): 15; No: (percentage): 65; Don't know: (percentage): 
20; Total: responses: 478.

Did the Corps provide states with a draft of the report summarizing the 
results of the preliminary assessment of eligibility?; Yes: 
(percentage): 7; No: (percentage): 79; Don't know: (percentage): 14; 
Total: responses: 481.

Did the Corps provide states with the final report on the preliminary 
assessment of eligibility?; Yes: (percentage): 56; No: (percentage): 
30; Don't know: (percentage): 14; Total: responses: 477.

Source: GAO.

[A] Combined total responses for two questions.

Note: Corps' responses to FUDS survey.

[End of table]

Table 6: State Project Managers' Responses Regarding Corps Coordination 
with States during Cleanup of Hazardous Waste Projects in Our Sample:

Did the Corps inform states of upcoming work?; Yes: (percentage): 53; 
No: (percentage): 31; Don't know: (percentage): 16; Total responses: 
86.

Did the Corps ask for states' input and participation?; Yes: 
(percentage): 50; No: (percentage): 33; Don't know: (percentage): 17; 
Total responses: 169[A].

Did the Corps inform states of interim results?; Yes: (percentage): 49; 
No: (percentage): 35; Don't know: (percentage): 16; Total responses: 
84.

Did the Corps provide states with draft reports?; Yes: (percentage): 
46; No: (percentage): 43; Don't know: (percentage): 11; Total 
responses: 98.

Did the Corps provide states with final reports?; Yes: (percentage): 
44; No: (percentage): 41; Don't know: (percentage): 15; Total 
responses: 91.

Source: GAO.

[A] Combined total responses for two questions.

Note: States' responses to FUDS survey.

[End of table]

Table 7: Corps Project Managers' Responses Regarding Corps Coordination 
with States during Cleanup of Hazardous Waste Projects in Our Sample:

Did the Corps inform states of upcoming work?; Yes: (percentage): 72; 
No: (percentage): 12; Don't know: (percentage): 16; Total Responses: 
99.

Did the Corps ask for states' input and participation?; Yes: 
(percentage): 67; No: (percentage): 14; Don't know: (percentage): 19; 
Total Responses: 195[A].

Did the Corps inform states of interim results?; Yes: (percentage): 73; 
No: (percentage): 11; Don't know: (percentage): 16; Total Responses: 
95.

Did the Corps provide states with draft reports?; Yes: (percentage): 
59; No: (percentage): 25; Don't know: (percentage): 16; Total 
Responses: 108.

Did the Corps provide states with final reports?; Yes: (percentage): 
57; No: (percentage): 21; Don't know: (percentage): 22; Total 
Responses: 101.

Source: GAO.

[A] Combined total responses for two questions.

Note: Corps' responses to FUDS survey.

[End of table]:

Table 8: State Project Managers' Responses Regarding Corps Coordination 
with States during Cleanup of Containerized Waste Projects in Our 
Sample:

Did the Corps inform states of upcoming work?; Yes: (percentage): 40; 
No: (percentage): 48; Don't know: (percentage): 12; Total Responses: 
86.

Did the Corps ask for states' input and participation?; Yes: 
(percentage): 25; No: (percentage): 60; Don't know: (percentage): 15; 
Total Responses: 168[A].

Did the Corps inform states of interim results?; Yes: (percentage): 25; 
No: (percentage): 53; Don't know: (percentage): 22; Total Responses: 
80.

Did the Corps provide states with draft reports?; Yes: (percentage): 
27; No: (percentage): 61; Don't know: (percentage): 12; Total 
Responses: 83.

Did the Corps provide states with final reports?; Yes: (percentage): 
36; No: (percentage): 50; Don't know: (percentage): 14; Total 
Responses: 84.

Source: GAO.

[A] Combined total responses for two questions.

Note: States' responses to its FUDS survey.

[End of table]

Table 9: Corps Project Managers' Responses Regarding Corps Coordination 
with States during Cleanup of Containerized Waste Projects in Our 
Sample:

Did the Corps inform states of upcoming work?; Yes: (percentage): 57; 
No: (percentage): 20; Don't know: (percentage): 23; Total Responses: 
109.

Did the Corps ask for states' input and participation?; Yes: 
(percentage): 51; No: (percentage): 21; Don't know: (percentage): 28; 
Total Responses: 216.

Did the Corps inform states of interim results?; Yes: (percentage): 51; 
No: (percentage): 24; Don't know: (percentage): 25; Total Responses: 
108.

Did the Corps provide states with draft reports?; Yes: (percentage): 
49; No: (percentage): 28; Don't know: (percentage): 23; Total 
Responses: 105.

Did the Corps provide states with final reports?; Yes: (percentage): 
63; No: (percentage): 19; Don't know: (percentage): 18; Total 
Responses: 106.

Source: GAO.

[A] Combined total responses for two questions.

Note: Corps' responses to FUDS survey.

[End of table]

Table 10: State Project Managers' Responses Regarding Corps 
Coordination with States during Cleanup of Ordnance and Explosive Waste 
Projects in Our Sample:

Did the Corps inform states of upcoming work?; Yes: (percentage): 18; 
No: (percentage): 67; Don't know: (percentage): 15; Total Responses: 
39.

Did the Corps ask for states' input and participation?; Yes: 
(percentage): 18; No: (percentage): 71; Don't know: (percentage): 11; 
Total Responses: 78[A].

Did the Corps inform states of interim results?; Yes: (percentage): 13; 
No: (percentage): 76; Don't know: (percentage): 11; Total Responses: 
38.

Did the Corps provide states with draft reports?; Yes: (percentage): 
23; No: (percentage): 70; Don't know: (percentage): 7; Total Responses: 
47.

Did the Corps provide states with final reports?; Yes: (percentage): 
44; No: (percentage): 53; Don't know: (percentage): 3; Total Responses: 
45.

Source: GAO.

[A] Combined total responses for two questions.

Note: States' responses to FUDS survey.

[End of table]

Table 11: Corps Project Managers' Responses Regarding Corps 
Coordination with States during Cleanup of Ordnance and Explosive Waste 
Projects in Our Sample:

Did the Corps inform states of upcoming work?; Yes: (percentage): 42; 
No: (percentage): 21; Don't know: (percentage): 37; Total Responses: 
33.

Did the Corps ask for states' input and participation?; Yes: 
(percentage): 39; No: (percentage): 23; Don't know: (percentage): 38; 
Total Responses: 66a.

Did the Corps inform states of interim results?; Yes: (percentage): 24; 
No: (percentage): 27; Don't know: (percentage): 49; Total Responses: 
33.

Did the Corps provide states with draft reports?; Yes: (percentage): 
25; No: (percentage): 33; Don't know: (percentage): 42; Total 
Responses: 36.

Did the Corps provide states with final reports?; Yes: (percentage): 
33; No: (percentage): 50; Don't know: (percentage): 17; Total 
Responses: 36.

Source: GAO.

[A] Combined total responses for two questions.

Note: Corps' responses to FUDS survey.

[End of table]

[End of section]

Appendix III: Comments from the Department of Defense:

ACQUISITION, TECHNOLOGY AND LOGISTICS:

OFFICE OF THE UNDER SECRETARY OF DEFENSE:

3000 DEFENSE PENTAGON WASHINGTON, DC 20301-3000:

MAR 11 2003:

Ms. Gary L. Jones:

Director, Natural Resources and Environment U.S. General Accounting 
Office Washington, D.C. 20548:

Dear Ms. Jones:

This is the Department of Defense (DoD) response to the GAO draft 
report, GAO-03-146, "ENVIRONMENTAL CONTAMINATION: DoD has Taken Steps 
to Improve Cleanup Coordination at Former Defense Sites, but Clearer 
Guidance is Needed to Assure Consistency", (GAO Code 360046).

In the attached comments, we agree with GAO's assessment that the Army 
Corps of Engineers has improved overall coordination with regulatory 
agencies. As recommended, we intend to continue to build on that 
success, through the Army's Formerly Used Defense Sites (FUDS) 
Improvement Workgroup initiative. The workgroup is currently overseeing 
development of statewide management action plans (MAPS) in 19 different 
States, and plans to incorporate best practices from Corps Districts 
and agreements made by States and the US Environmental Protection 
Agency (EPA) on regulatory coordination, in their revisions to policy 
and guidance.

In regard to GAO's first recommendation that the Corps specify steps to 
be used in regulatory coordination in guidance and policy, the Corps is 
revising the FUDS manual, as an engineering regulation (ER), to include 
step-by-step procedures for regulatory coordination at each phase of 
FUDS cleanup, including the preliminary assessment of eligibility 
process and unexploded ordnance sites, consistent with comments 
submitted by States and EPA. Specific changes to the FUDS ER are 
described in detail in our attached response to recommendations.

We agree with GAO's second recommendation that the Corps promote wider 
distribution of MAPs and specific improvements initiated by individual 
Corps Districts. MAPS, developed cooperatively between EPA regions, 
States, and the Corps, which further refine regulatory roles and 
responsibilities for each site within a State, have been completed in 
Missouri, Wyoming, Arizona, Kansas, Colorado, Ohio, South Dakota, and 
Alaska and are under development in Massachusetts, Virginia, North and 
South Carolina, and Texas. Six additional MAPS are planned for Fiscal 
Year 2003 for New York, Alabama, Michigan, New Mexico, Hawaii, and 
Washington. The Corps is also proposing:

to include best practices in the draft FUDS ER, as well as undertake 
review of other suggested District improvements through the FUDS 
Improvement Workgroup.

We partially agree with GAO's third and final recommendation that DoD 
resolve differences with EPA over authority for FUDS through a 
memorandum of understanding for FUDS not on the National Priorities 
List (NPL) or non-NPL FUDS. Rather than negotiating authorities 
delegated by the President and authorized by Congress through informal 
agreements, we will redouble our efforts to ensure that the legally 
mandated consultation role with EPA, defined by 10 U.S.C. 2701, is 
articulated in the draft ER.

My point of contact on this matter, Mr. Kurt Kratz (703) 697-5372, is 
available to discuss our responses to recommendations and the 
additional technical comments attached to our responses.

Sincerely,

Philip W. Grone:

Principal Assistant Deputy Under Secretary of Defense (Installations 
and Environment):

Signed by Philip W. Grone:

Enclosure:

GAO DRAFT REPORT DATED FEBRUARY 5, 2003:

(GAO CODE 360046):

"ENVIRONMENTAL CONTAMINATION: DOD Has Taken Steps to Improve Cleanup 
Coordination at Former Defense Sites but Clearer Guidance Is Needed to 
Assure Consistency":

DEPARTMENT OF DEFENSE COMMENTS TO THE GAO RECOMMENDATIONS:

RECOMMENDATION 1: Recommend the Secretary of Defense and Secretary of 
the Army follow through on its plans to develop and incorporate clear 
and specific guidance in the Formerly Used Defense Sites (FUDS) Program 
Manual as to how, when, and to what extent coordination with regulators 
should take place, including during preliminary assessments of 
eligibility and projects involving ordnance and explosive waste.

DoD RESPONSE: Agree. The Corps is in the process of revising the FUDS 
Program Manual in coordination with the U.S. Environmental Protection 
Agency (EPA) and States. Comments from the EPA and States through the 
Association of State and Territorial Solid Waste Management officials 
are being incorporated into the draft manual, which will be issued as a 
Corps Engineering Regulation, ER 200-3-1. Chapter 9 of the draft FUDS 
Engineering Regulation (ER) has been revised significantly to provide 
for consultation and notification of the regulatory agencies in all 
project phases of project execution. Coordination requirements are the 
same for both hazardous waste projects and munitions response (ordnance 
and explosive waste) projects. Specific examples of coordination 
required by the draft ER include:

a. General: Coordination Requirements:

* Provide the lead regulatory agency, whether it be EPA, State, or 
Tribes, with the following for non-Potentially Responsible Party (PRP) 
projects:

* Project Management Plans (PMP), Property Specific Management Action 
Plans, and Statewide Management Action Plans (MAPs),

* Timely information relative to FUDS Inventory Project Reports (INPRs), 
categorical exclusions, No DoD Action Indicated (NDAI) determinations, 
and available relevant information regarding non-DoD contamination at 
FUDS,

* Reasonable opportunities for meaningful regulatory review of and 
comment on the results of Relative Risk and unexploded ordnance Risk 
Assessment Code (RAC) scores, and on major project documents, 
including, but not limited to, the INPR, site specific work plans, 
scopes of work, sampling and analysis plans, investigatory/study 
reports (Preliminary Assessment (PA), Site Inspection (SI), or Archival 
Search Report), remedial investigation/feasibility study (RI/FS) 
reports, engineering evaluations/cost analyses (EE/CA), decision 
documents, and remedial design/remedial action (RD/RA) documents, 
operations and maintenance workplans, land use control implementation 
plans, and 5 year review reports.

* Provide written response to comments from EPA/States/Tribes along with 
final project documents.

* Provide EPA, States, or Tribes, on an annual basis, with a list of 
FUDS PRP sites.

* Coordination shall begin during the FURS inventory project phase. The 
geographic Military Corps District shall notify current landowners, 
stakeholders, and the lead regulatory agency of proposed actions at the 
earliest opportunity and when funding is available for the approved 
project or projects in accordance with the annual workplan. This 
coordination and consultation shall be exercised in all subsequent 
phases of project performance and at all levels within the Corps of 
Engineers.

	The Corps shall provide notice and opportunity for comment on all 
response activities performed under the Comprehensive Environmental 
Response, Compensation and Liability Act (CERCLA) and the National 
Contingency Plan (NCP) to the lead regulatory agency. o	The Corps shall 
takes such steps as necessary and appropriate to promptly notify the 
lead regulatory agency, in accordance with 10 U.S.C. 2705 for each of 
the of the following: *	The discovery of releases or threatened releases 
of hazardous substances at the property.

* The extent of the threat to public health and the environment which 
may be associated with any such release or threatened release.

* Proposals to carry out response actions with respect to any such 
release or threatened release.

Initiation of any response action with respect to such release or 
threatened release and the commencement of each distinct phase of such 
activities. The Corps District Commanders are responsible for ensuring 
the prompt notification of these agencies for actions being taken in 
their geographical area.

* The lead Corps District at each FUDS shall consult EPA, State, and 
local authorities regarding regulatory standards, providing the notice 
and opportunity for comment as appropriate in accordance with 10 U.S.C. 
2705(a) and (b). Efforts shall be made to attain standards, 
requirements, or criteria requested by these authorities where they are 
consistent with CERCLA Section 120 (42 USC 9620) and the NCP processes 
and criteria and contaminants in the FURS program (10 U.S.C. 
2701(a)(2)). Counsel shall be consulted on all issues related to the 
extent of Federal or State authority.

* The Corps should strive to achieve a consensus opinion with the lead 
regulator and stakeholders, particularly in selection of a response 
action.

b. Inventory Project Report and Preliminary Assessment of Eligibility 
(PAE):

The draft FUDS ER requires that INPR preparation and review be 
coordinated with the lead regulatory agency. Joint participation in 
PAEs by States through the Defense State Memorandum of Agreement 
(DSMOA) program, assists the Corps in gathering historical information 
on past uses at the property, and accessing records from other 
entities, adding to the overall knowledge of the property.

c. Property and project closeout:

Chapter 3 of the draft FUDS ER requires regulatory coordination for 
closeout of a FUDS property or projects. Prior to making property 
closeout determinations, the Corps District shall provide the EPA, 
state, affected Tribes, and local authorities with notice and 
opportunity to comment on the determination.

d. No DoD Action Indicated determinations:

The draft FUDS ER requires the Corps provide notice and opportunity for 
comment by regulators regarding FUDS NDAI determinations. Through 
DSMOA, the Corps shall fund States for regulatory review of NDAIs as 
well as site visits, identification of applicable, relevant, and 
appropriate requirements (ARARs), and participation in technical review 
committees. The program also provides for state participation in the 
development of MAPS and review of five previous NDAI's annually, which 
are reopened at the State's request.

RECOMMENDATION 2: Recommend that the Secretary of Defense direct the 
Secretary of the Army to assess the impact of the Corps' recent efforts 
to improve coordination through actions such as directives and the 
Management Action Plan pilot program and incorporate the successful 
components as requirements into its FURS Program Manual, and assess 
practices individual Corps Districts have used to coordinate with 
regulators and develop a list of best practices for dissemination 
throughout the Corps that Districts might use to improve their 
coordination.

DoD RESPONSE: Agree. The Corps has developed specific guidance for 
coordination with regulators. Examples include the Corps Engineer 
Pamphlet 1110-3-8, Public Participation in the DERP for FURS, and the 
Corps Engineer Manual 200-1-2, Technical Project Planning. The EM can 
be found on www usace.army.mil/publications/eng-manuals/cemn.htm.]

The pilot for statewide MAPs has been expanded to 19 states in Fiscal 
Year 2003. The FUDS Improvement Workgroup is monitoring development of 
the pilot, and the Corps is reviewing each plan to assess the extent of 
and success of stakeholder involvement in each state.

The draft ER requires that MAPs be the primary means used to identify 
all FUDS cleanup activities in coordination with States, EPA, and other 
stakeholders, including representative members from communities 
surrounding FUDS properties. MAPs will be regarded as living documents 
that can used by stakeholders as a resource to quickly and effectively 
evaluate the status of each FUDS property within a state. Key 
activities undertaken cooperatively by the Corps District, EPA Region, 
and State in MAP development include identification of each FUDS site 
within a state, determining clean-up priorities for each site, defining 
lead regulator at each site, funding provided for each project, and 
development of strategies for property/project closeout.

Lastly, the Corps is proposing to include improvements from individual 
Corps Districts, deemed as best practices, in the draft ER. The FUDS 
Improvement Workgroup also plans to undertake a review of other Corps 
District practices, to determine if wider application is recommended.

RECOMMENDATION 3: Recommend DoD and EPA work together to clarify their 
respective roles in the FUDS cleanup program for properties not listed 
on the National Priorities List. The agencies should agree on a 
timeframe to establish a memorandum of understanding that will layout a 
framework for how they will work together, including their roles and 
responsibilities during the assessment and cleanup of FUDS properties.

DoD RESPONSE: Partially Agree. Rather than negotiating authorities 
delegated by the President and authorized by Congress through informal 
agreements, we will redouble our efforts:

to ensure that the legally mandated consultation role with EPA, defined 
by 10 U.S.C 2701, is articulated in the draft ER. In addition, language 
agreed to by States, EPA, and DoD, prior to EPA's departure from the 
FUDS Improvement Workgroup, has been incorporated in the draft FUDS ER:

States or Tribes will generally be the lead regulator for environmental 
investigations and response at non-NPL FUDS. In certain circumstances, 
EPA may serve as lead regulator where the State or Tribe requests that 
EPA assume the lead or when EPA chooses to exert its lead regulator 
role. In instances where EPA assumes lead regulatory agency authority, 
roles should be documented and all parties notified.

In cases where a non-NPL FUDS is on or affecting tribal land, the lead 
regulator role generally falls to the affected tribe. Project-specific 
circumstances may warrant assumption of the lead regulator role by EPA. 
In such cases, specific roles and responsibilities of the agencies 
involved should be negotiated between the state or tribe and EPA and 
documented and communicated to all parties.

When a FUDS is either proposed for inclusion or listed on the NPL, EPA 
is the lead regulator. If arrangements exist involving lead regulatory 
agency issues at the time of proposal for inclusion on the NPL, those 
arrangements should be considered when determining lead regulatory 
agency following NPL listing.

[End of section]

Appendix IV: Comments from the Environmental Protection Agency:

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460:

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE:

Gary L. Jones:

Director, Natural Resources and Environment United States General 
Accounting Office (GAO) Washington, D.C. 20548:

Dear Ms. Jones:

Thank you for the opportunity to review and comment on the draft report 
entitled, "Environmental Contamination - DOD Has Taken Steps to Improve 
Cleanup Coordination at Former Defense Sites but Clearer Guidance is 
Needed to Assure Consistency" (GAO-03-146). This letter transmits our 
comments on the draft report.

The U.S Environmental Protection Agency (EPA) believes the report has 
done an excellent job presenting substantive information related to the 
Department of Defense's (DOD's) and the Corps of Engineers (Corps) 
efforts to consult with state regulatory agencies and EPA:

when addressing Formerly Used Defense Sites (FUDS). EPA appreciates the 
effort made by the GAO in developing an accurate and unbiased appraisal 
of the issue. The enclosed document contains EPA's comments that are 
intended to clarify statements about EPA's FUDS policy and its role in 
the FUDS Improvement Working Group (FIWG).

In addition to providing specific comments, EPA wants to acknowledge 
recent efforts by the Corps, states and EPA to improve communication 
and coordination. These efforts demonstrate that working together on 
FUDS can achieve results and serve as a model for future endeavors.

All comments included in the enclosure are intended to improve the 
accuracy of the draft report. If you have any questions about these 
comments, please contact Renee P. Wynn, of my staff, at (703) 603-0049.

Sincerely,

Marianne Lamont Horinko,
Assistant Administrator:

Signed by Marianne Lamont Horinko:

Enclosure:

[End of section]

Appendix V: GAO Contacts and Staff Acknowledgments:

Ms. Anu K. Mittal, (202) 512-9846:

Edward Zadjura, (202) 512-9914:

Acknowledgments:

In addition to those named above, Gary L. Jones, Glenn C. Fischer, 
James Musial, and Pauline Seretakis made key contributions to this 
report. Also contributing to this report were Doreen S. Feldman, Art 
James, Nancy Crothers, and Laura Shumway.

FOOTNOTES

[1] The Defense Environmental Restoration Program was established by 
section 211 of SARA and is codified at 10 U.S.C. 2701 et. seq. SARA 
amended the Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA). CERCLA, as amended by SARA, governs the 
cleanup of the nation's most severely contaminated federal and 
nonfederal hazardous waste sites. 

[2] According to DOD, because it recognized the importance of regulator 
involvement in the program, in the early 1990s it established the 
Defense and State Memorandum of Agreement Program to facilitate 
coordination with regulators during the cleanup process. However, this 
program does not apply to preliminary assessments of eligibility, the 
phase during which the Corps determined that more than 4,000 eligible 
properties required no further Corps study or cleanup action.

[3] See 10 U.S.C. 2701 and 2705.

[4] Before fiscal year 2001, the Corps used the term "no further 
action." 

[5] The FUDS program has a fifth project category, potentially 
responsible party, which is used when DOD shares responsibility for a 
hazard with another entity. Because this category accounts for only 
about 4 percent of all FUDS projects, we did not address it in this 
report.

[6] The requirement to consult on response actions does not apply if 
the action is an emergency removal taken because of imminent and 
substantial endangerment to human health or the environment and 
consultation would be impractical.

[7] We used the term "coordination" to describe the Corps' consultation 
actions. In addition, the FUDS Manual, which is the official guidance 
for the program, uses the term "coordination."

[8] EPA withdrew from the working group in April 2002.

[9] Environmental Contamination: Corps Needs to Reassess Its 
Determinations That Many Former Defense Sites Do Not Need Cleanup, 
GAO-02-658 (Washington D.C.: Aug. 23, 2002).

[10] Percentages do not total 100 because some respondents answered 
"neither agree or disagree" or "don't know."

[11] At the 21 FUDS that are on the National Priorities List, Corps 
coordination is addressed by the CERCLA requirement to enter into an 
interagency agreement with EPA. 

[12] U.S. Environmental Protection Agency, EPA Policy Towards 
Privately-Owned Formerly Used Defense Sites (Washington, D.C.: March 
2002).

[13] Specifically, a hazardous waste project can go through several 
investigation and cleanup phases, including a site inspection to 
confirm the presence, extent, and source(s) of the hazards; a study to 
evaluate the risk associated with the hazard, determine whether cleanup 
is needed, and if so, select alternative cleanup approaches; and 
design, construction, operation, and long-term monitoring of the 
selected cleanup, if necessary. Ordnance and explosive waste projects 
can go through similar phases, with the exception of the "operation" of 
the cleanup phase. Containerized waste and unsafe buildings and debris 
projects may only go through design and construction of the cleanup. 

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