Before the passage of federal environmental legislation in the 1970s and 1980s, Department of Defense (DOD) activities contaminated millions of acres of soil and water on and near DOD sites. The Environmental Protection Agency (EPA) has certain oversight authorities for cleaning up contaminants on federal property, and has placed 1,620 of the most contaminated sites--including 141 DOD installations--on its National Priorities List (NPL). As of February 2009, after 10 or more years on the NPL, 11 DOD installations had not signed the required interagency agreements (IAG) to guide cleanup with EPA. GAO was asked to examine (1) the status of DOD cleanup of hazardous substances at selected installations that lacked IAGs, and (2) obstacles, if any, to cleanup at these installations. GAO selected and visited three installations, reviewed relevant statutes and agency documents, and interviewed agency officials.
EPA and DOD use different terms and metrics to report cleanup progress; therefore, the status of cleanup at Fort Meade Army Base, McGuire Air Force Base (AFB), and Tyndall AFB is unclear. EPA reports that cleanup at all three installations is in the early investigative phases, while DOD's data suggest that cleanup is further along and, in some cases, in mature stages. EPA and DOD have differing interpretations of cleanup progress because they describe and assess cleanup differently. In particular, while both agencies divide installations into smaller cleanup projects, DOD divides them into units generally smaller than EPA's; therefore, DOD measures its progress in smaller increments. Further, because DOD did not obtain EPA's approval for key cleanup decisions, EPA does not recognize them. Unless key cleanup decisions are justified, documented, and available to the public for review and comment, they are not sufficient under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and once an IAG is in place, some DOD cleanup work may have to be redone. When an agency refuses to enter into an IAG and cleanup progress lags, because of statutory and other limitations, EPA cannot take steps--such as issuing and enforcing orders--to compel CERCLA cleanup as it would for a private party. A variety of obstacles have delayed cleanup progress at these installations. First, DOD's persistent failure to enter IAGs, despite reaching agreement with EPA on the basic terms, has made managing site cleanup and addressing routine matters challenging at these installations. For example, in the absence of IAGs, DOD may fund work at other sites ahead of these NPL sites. Second, DOD failed to disclose some contamination to EPA and the public in a timely fashion, including lead shot on a playground, delaying cleanup and putting human health at risk. Third, the extensive use of performance-based contracts at these installations has created pressure to operate within price caps and fixed deadlines. In some cases, these pressures may have contributed to installations not exploring the full range of cleanup remedies, or relying on nonconstruction remedies, such as allowing contaminated groundwater to attenuate over time rather than being cleaned up. In particular, Tyndall AFB's long-standing lack of full compliance with environmental cleanup requirements, such as notification of hazardous releases and EPA's 2007 administrative order, has been an obstacle to verifiable cleanup of that installation. GAO is recommending, among other things, that EPA and DOD identify options that would provide a uniform method for reporting cleanup progress at the installations and allow for transparency to Congress and the public. EPA and DOD agreed with the recommendations directed at them. GAO is also suggesting that Congress may want to consider giving EPA certain tools to enforce CERCLA at federal facilities without IAGs. DOD disagreed with this suggestion. GAO believes EPA needs additional authority to ensure timely and proper cleanup at such sites.
Matter for Congressional Consideration
|While EPA is charged with regulating cleanup of federal NPL sites, it has little leverage to facilitate compliance at such sites. Specifically, when a federal agency refuses to enter an IAG at an NPL site or to comply with an administrative cleanup order issued pursuant to the Resource Conservation and Recovery Act's (RCRA) imminent hazard provision, EPA cannot take steps to enforce the law, such as initiating a court action to assess fines, as it would do in the case of a private party. As we suggested in 2009, Congress may wish to consider amending section 120 of CERCLA to authorize EPA--after an appropriate notification period--to administratively impose penalties to enforce cleanup requirements at federal facilities. This review provides further reason to emphasize such authorities to facilitate more timely and efficient compliance at federal facilities.||Although Congress held a hearing to identify problems in implementing the act as recently as July, 2016, it has taken no action in response to this matter.|
Recommendations for Executive Action
|Department of Defense||1. To provide greater assurance that cleanup progress is being measured accurately and consistently, and to build off of the existing DOD and EPA working group's initial efforts, the Secretary of Defense and Administrator of EPA should develop a plan with schedules and milestones to identify and implement a uniform method for reporting cleanup progress at the installations and allow for transparency to Congress and the public.|
|Environmental Protection Agency||2. To provide greater assurance that cleanup progress is being measured accurately and consistently, and to build off of the existing DOD and EPA working group's initial efforts, the Secretary of Defense and Administrator of EPA should develop a plan with schedules and milestones to identify and implement a uniform method for reporting cleanup progress at the installations and allow for transparency to Congress and the public.|
|Environmental Protection Agency||3. To ensure that outstanding CERCLA section 120 IAGs are negotiated expeditiously, should the agencies continue to be unable to execute a signed IAG within 60 days of this report, the Administrator of EPA should pursue amendments to E.O. 12580 to (1) delegate to EPA unconditionally the independent authority to issue unilateral administrative orders under section 106(a) to executive agencies, and (2) cause the existing delegation of CERCLA remedial action authorities at NPL-listed sites to DOD to be conditional on, for example, the existence of a signed IAG or on DOD's submission of detailed monthly reports to CEQ and Congress concerning the status of IAG negotiations at such sites.|
|Department of Defense||4. To improve project management at DOD NPL sites regarding the use of contractors, the Secretary of Defense should ensure that the services make a determination of appropriateness, using Office of Management and Budget criteria and service guidance, before using performance-based contracts (PBC) for Superfund cleanup.|
|Department of Defense||5. To ensure that DOD NPL sites utilize monitored natural attenuation as the sole remedy at contaminated sites only when it is documented to meet remediation objectives that are protective of human health and the environment, the Secretary of Defense should direct the services to document compliance with relevant EPA guidance when selecting monitored natural attenuation.|
|Department of Defense||6. To ensure that DOD promptly reports new hazardous releases to EPA and other stakeholders (including potentially injured parties, the National Response Center, and the states), the Secretary of Defense should develop guidance for components concerning the proper notification when a new release is discovered or significant new information about a previously known release is obtained. The guidance should at a minimum address timing and contents of such notice, as well as meet the requirements of CERCLA sections 103(a) and 111(g) and 10 U.S.C. section 2705(a).|
|Environmental Protection Agency||7. To ensure that the document review process is used effectively and to facilitate oversight and transparency between DOD and EPA, even where there are no IAGs in effect, the Administrator of EPA should establish a record-keeping system for DOD NPL sites, consistent across all regions, to accurately track documents submitted for review, including the status of approvals.|