oversight

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

Published by the Government Accountability Office on 2003-03-28.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

             United States General Accounting Office

GAO          Report to Congressional Requesters




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
                                                 March 2003


                                                 ENVIRONMENTAL CONTAMINATION

                                                 DOD Has Taken Steps to Improve
Highlights of GAO-03-146, a report to
Congressman John D. Dingell, Ranking             Cleanup Coordination at Former Defense
Minority Member, U.S. House of
Representatives                                  Sites but Clearer Guidance Is Needed to
                                                 Ensure Consistency

The U.S. Army Corps of Engineers                 Federal law requires DOD and the Corps of Engineers to consult with state
(Corps) is in charge of addressing               regulatory agencies and EPA during the process of cleaning up formerly
cleanup at the more than 9,000 U.S.              used defense sites (FUDS). However, the law only provides specifics for the
properties that were formerly                    cleanup phase for hazardous substances. DOD’s Management Guidance and
owned or controlled by the                       the FUDS Program Manual do not provide clear direction or specific steps
Department of Defense (DOD) and
have been identified as potentially
                                                 for involving regulators in the FUDS program. In addition, both the law and
eligible for environmental cleanup.              the guidance are silent on the subject of consultation or coordination with
The Corps has determined that                    regulators during the preliminary assessment phase, when the Corps makes
more than 4,000 of these properties              decisions on whether a former defense site is eligible for DOD cleanup and
have no hazards that require                     whether further investigation and/or cleanup are needed. DOD and Corps
further Corps study or cleanup                   officials told GAO that they would revise their guidance to include specific,
action. However, in recent years,                but as yet undetermined, instructions for coordination with regulators
hazards have surfaced at some of                 during such decisions.
these properties, leading state and
federal regulators to question                   DOD and the Corps have recently taken several steps to improve
whether the Corps has properly                   coordination. For example, they are working with the regulatory community
assessed and cleaned up these
properties. In this context,
                                                 to develop specific steps that Corps districts can take, such as providing
Congress asked us to (1) analyze                 states with updated lists of current and future FUDS program activities in
federal coordination requirements                their states and initiating a new pilot program in nine states that has the
that apply to the cleanup of these               Corps working side by side with regulators in the cleanup of former defense
properties, (2) assess recent DOD                sites. In addition, several Corps districts have independently taken steps to
and Corps efforts to improve                     improve coordination with state regulators. DOD and the Corps will need to
coordination, and (3) identify any               assess the effectiveness of these various initiatives to determine which are
issues regulators may have about                 successful and should be included in program guidance to all districts.
coordination with the Corps.
                                                 Despite the improvements in coordination, regulators still raised two major
                                                 issues about Corps coordination on the FUDS program. First, some states
DOD and the Corps should (1)                     believe that they lack the information necessary to properly oversee cleanup
develop clear and specific                       work at former defense sites and to judge the validity of Corps decisions.
coordination guidance that should                For example, 15 of the 27 states GAO contacted believe they need to be
explicitly include, among other                  involved in knowing what the Corps is doing during the preliminary
things, preliminary assessment of                assessment phase. Also, 9 of the 27 states believe they need to be involved
eligibility and ordnance and                     in project closeouts, so that they can ensure that the Corps has met state
explosive waste; (2) assess recent               cleanup standards. Second, EPA believes it should have a larger role in the
efforts to improve coordination at               cleanup of former defense sites. Although states are the primary regulator at
the national as well as district level
                                                 the majority of former defense sites and EPA is the primary regulator for
and promote wider distribution of
best practices; and (3) work with                only the 21 former defense sites that are on the list of the nation’s worst
EPA to clarify their respective roles            hazardous sites, EPA believes that its role even on the unlisted sites should
in the cleanup of former defense                 be greater. The agency believes that this would improve the effectiveness of
sites that are not on the list of the            the cleanups and increase public confidence overall. The Corps disagrees,
nation’s worst hazardous sites.                  and the two agencies have been unable to establish an effective working
                                                 relationship on the cleanup for former defense sites.
www.gao.gov/cgi-bin/getrpt?GAO-03-146.

To view the full report, including the scope     Commenting on a draft of this report, DOD stated that it generally agreed
and methodology, click on the link above.        with the recommendations and was taking or planned to take steps that
For more information, contact (Ms.) Anu Mittal
or Ed Zadjura on (202) 512-3841.
                                                 should, when completed, substantially correct the problems GAO cited.
Contents


Letter                                                                                     1
               Results in Brief                                                            3
               Background                                                                  5
               Additional Guidance Would Help Ensure Coordination with
                 Regulators                                                                7
               DOD and the Corps Have Taken Some Steps to Improve
                 Coordination with Regulators, but Assessment of These Efforts
                 and Clearer Guidance Is Needed                                          12
               Views of Regulators about FUDS Coordination Activities                    16
               Conclusions                                                               22
               Recommendations for Executive Action                                      24
               Agency Comments and Our Evaluation                                        24

Appendix I     Additional Details on Our Scope and Methodology                           27



Appendix II    State and Corps Project Managers’ Responses to
               Our Survey Regarding Coordination at FUDS                                 30



Appendix III   Comments from the Department of Defense                                   34



Appendix IV    Comments from the Environmental Protection
               Agency                                                                    40



Appendix V     GAO Contacts and Staff Acknowledgments                                    41



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                                          10
               Table 2: Extent to Which State and Corps Project Managers Believe
                        the Corps Coordinated with States during Preliminary
                        Assessments of Eligibility in Our Sample                         11
               Table 3: Number of FUDS Properties and Projects in Our Sample             28


               Page i                          GAO-03-146 Corps Coordination with Regulators
Table 4: State Project Managers’ Responses Regarding Corps
         Coordination with States during Preliminary Assessments
         of Eligibility in Our Sample                                                     30
Table 5: Corps Project Managers’ Responses Regarding Corps
         Coordination with States during Preliminary Assessments
         of Eligibility in Our Sample                                                     30
Table 6: State Project Managers’ Responses Regarding Corps
         Coordination with States during Cleanup of Hazardous
         Waste Projects in Our Sample                                                     31
Table 7: Corps Project Managers’ Responses Regarding Corps
         Coordination With States during Cleanup of Hazardous
         Waste Projects in Our Sample                                                     31
Table 8: State Project Managers’ Responses Regarding Corps
         Coordination with States during Cleanup of Containerized
         Waste Projects in Our Sample                                                     32
Table 9: Corps Project Managers’ Responses Regarding Corps
         Coordination with States during Cleanup of Containerized
         Waste Projects in Our Sample                                                     32
Table 10: State Project Managers’ Responses Regarding Corps
         Coordination with States during Cleanup of Ordnance and
         Explosive Waste Projects in Our Sample                                           33
Table 11: Corps Project Managers’ Responses Regarding Corps
         Coordination with States during Cleanup of Ordnance and
         Explosive Waste Projects in Our Sample                                           33

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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Page ii                                  GAO-03-146 Corps Coordination with Regulators
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.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


                                   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.



                                   Page 1                                 GAO-03-146 Corps Coordination with Regulators
hazards that require further Corps study or cleanup action.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.




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.




Page 2                                   GAO-03-146 Corps Coordination with Regulators
                   Federal law requires DOD and the Corps of Engineers to consult with state
Results in Brief   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.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.


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




                   Page 3                             GAO-03-146 Corps Coordination with Regulators
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


Page 4                              GAO-03-146 Corps Coordination with Regulators
             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.


             The FUDS program is carried out by 22 Corps districts located throughout
Background   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




             Page 5                             GAO-03-146 Corps Coordination with Regulators
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).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.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.




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.




Page 6                                       GAO-03-146 Corps Coordination with Regulators
                            While federal law requires DOD and the Corps to consult with regulators,
Additional Guidance         including states and EPA, during the FUDS cleanup program, it does not
Would Help Ensure           define consultation. Similarly, the two primary DOD and Corps guidance
                            documents for implementing the FUDS program emphasize the need for
Coordination with           Corps coordination with regulators but do not provide clear direction or
Regulators                  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     Federal law requires DOD and the Corps to consult with regulatory
Corps Guidance Generally    entities in carrying out the FUDS program. Under 10 U.S.C. 2701, the
Require Coordination with   Corps must carry out the FUDS program “in consultation with” EPA.
                            However, this section does not define consultation, mention the state
Regulators but Do Not       regulators, or prescribe specific steps for the Corps to follow. More
Contain Specific            specific language regarding consultation as it relates to the cleanup of
Requirements                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.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.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.



                            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.”




                            Page 7                                   GAO-03-146 Corps Coordination with Regulators
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;




Page 8                             GAO-03-146 Corps Coordination with Regulators
                            •   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,       Although coordination is required during the cleanup phase for hazardous
Corps Officials Often Did   and containerized wastes, responses to our survey of FUDS properties
Not Coordinate during the   covering FUDS work that took place during the period from 1986 through
                            2001 indicate that state project managers believe the Corps coordinated
Cleanup Phase               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.




                            Page 9                             GAO-03-146 Corps Coordination with Regulators
Table 1: Extent to Which State and Corps Project Managers Believe the Corps
Coordinated with States during Cleanups in Our Sample, by Project Type

                                                      Project Type
                                                      Containerized         Ordnance and
                             Hazardous waste              waste            explosive waste
                               (percentage)            (percentage)         (percentage)
 Examples of
 coordination during
 project activities            State        Corps          State   Corps    State    Corps
 Corps informed states            53           72             40      57       18       42
 of upcoming work
 Corps asked for states’          50            67           25       51       18       39
 input and participation
 Corps informed states            49            73           25       51       13       24
 of interim results
 Corps provided states            46            59           27       49       23       25
 with draft reports
 Corps provided states            44            57           36       63       44       33
 with final reports
 Weighted average                 48            66           30       54       23       34
Source: GAO.

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


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.




Page 10                                    GAO-03-146 Corps Coordination with Regulators
Guidance Does Not Cover     The DOD Management Guidance and FUDS Program Manual are silent on
the Preliminary             regulators’ roles in preliminary assessments of eligibility, during which
Assessment of Eligibility   decisions on property eligibility and the need for cleanup are made, in part
                            because the law requiring consultation with regulators is broad and does
and Very Little             not mention consultation with the states, only with EPA. The Corps has
Coordination Took Place     historically regarded preliminary assessments of eligibility as an internal
During This Phase           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

                                                                                       State project   Corps project
                             Examples of coordination during the                       managers        managers
                             preliminary assessment of eligibility                     (percentage)    (percentage)
                             Corps informed states that it was starting                6               24
                             preliminary assessment of eligibility
                             Corps asked states for information or input on            6               27
                             Corps approach
                             Corps asked for state participation                       5               16
                             Corps informed states of interim results as work          5               15
                             progressed
                             Corps provided states with a draft of the report          4               7
                             summarizing the results of the preliminary
                             assessment of eligibility
                            Source: GAO.

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


                            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



                            Page 11                                    GAO-03-146 Corps Coordination with Regulators
                      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.


                      Over approximately the last 3 years, states have noted an overall
DOD and the Corps     improvement in the Corps’ coordination with them. For example, FUDS
Have Taken Some       program officials in 20 of the 27 states we contacted reported that, overall,
                      Corps coordination with them has improved during this time. The main
Steps to Improve      factors state officials cited for the improvement include an increase in the
Coordination with     number of meetings they were invited to attend with Corps project
                      managers on specific project tasks, more information provided by the
Regulators, but       Corps to the states regarding project work, and better coordination in
Assessment of These   setting work priorities. DOD and the Corps started to take steps to address
Efforts and Clearer   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
Guidance Is Needed    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.8




                      8
                          EPA withdrew from the working group in April 2002.




                      Page 12                                   GAO-03-146 Corps Coordination with Regulators
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.




Page 13                             GAO-03-146 Corps Coordination with 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


Page 14                            GAO-03-146 Corps Coordination with Regulators
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


Page 15                            GAO-03-146 Corps Coordination with Regulators
                            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.


                            Some state regulators, who are responsible for ensuring that applicable
Views of Regulators         environmental standards are met at most FUDS properties, believe that
about FUDS                  inadequate Corps coordination has made it more difficult for them to carry
                            out their regulatory responsibilities. Also, state regulatory officials told us
Coordination                that they have frequently questioned Corps cleanup decisions because
Activities                  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       Some state regulators we contacted believe that when the Corps does not
Believe Poor Coordination   inform them of its FUDS cleanup activities or involve them in the various
by the Corps Makes It       stages of the FUDS program, they do not have the information necessary
                            to ensure that applicable cleanup standards have been met and that the
Difficult for Them to       cleanup actions will protect human health and the environment. They
Ensure That                 were particularly concerned about the preliminary assessment of
Environmental Standards     eligibility stage of the program and hazards such as ordnance and
Are Met                     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




                            Page 16                             GAO-03-146 Corps Coordination with Regulators
2002 report9 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



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).




Page 17                                GAO-03-146 Corps Coordination with Regulators
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.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.




10
  Percentages do not total 100 because some respondents answered “neither agree or
disagree” or “don’t know.”




Page 18                                GAO-03-146 Corps Coordination with Regulators
EPA and the Corps Have       EPA has historically had little involvement in the cleanup of the
Differing Views about        approximately 9,000 FUDS that are not on its National Priorities List and
Their Respective Roles and   for which EPA is usually not the primary regulator.11 In the late 1990s, at
                             the request of some states, tribes, members of the general public, and
Management of the FUDS       others, EPA increased its focus on environmental investigations and
Program                      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


                             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.




                             Page 19                                  GAO-03-146 Corps Coordination with Regulators
    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




Page 20                            GAO-03-146 Corps Coordination with Regulators
List.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.


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




Page 21                              GAO-03-146 Corps Coordination with Regulators
              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.


              While state regulators reported to us that the Corps has improved its
Conclusions   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.


              Page 22                            GAO-03-146 Corps Coordination with Regulators
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.




Page 23                           GAO-03-146 Corps Coordination with Regulators
                      To help ensure consistent coordination with regulators during all phases
Recommendations for   of FUDS investigation and cleanup, we recommend that the Secretary of
Executive Action      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.


                      We provided DOD and EPA with a draft of this report for their review and
Agency Comments       comment. DOD and EPA agreed with our findings and conclusions. In
and Our Evaluation    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.




                      Page 24                            GAO-03-146 Corps Coordination with Regulators
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.




Page 25                             GAO-03-146 Corps Coordination with Regulators
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




Page 26                           GAO-03-146 Corps Coordination with Regulators
              Appendix I: Additional Details on Our Scope
Appendix I: Additional Details on Our Scope
              and Methodology



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.




              Page 27                                 GAO-03-146 Corps Coordination with Regulators
Appendix I: Additional Details on Our Scope
and Methodology




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

                                                        Population                Sample
    FUDS Properties
    Properties without projects                              4,002                     150
    Properties with projects                                 2,762                     369
    Total FUDS properties                                    6,764                     519
    FUDS Projects
       Project Category
    •   Hazardous waste                                      1,009                      96
    •   Containerized waste                                  1,274                    106
    •   Ordnance and explosive waste                         1,629                    144
    •   Unsafe buildings and debris                            470                      32
    •   Potentially responsible party1                         201                      21
    •   Other                                                    2                       0
                                                                                         a
    Total FUDS projects                                      4,585                    399
Source: GAO.
a
Some properties with projects had multiple projects.


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.2 For example, not all hazardous waste projects in our sample


1
 We did not solicit information on potentially responsible party projects because they
account for only 4 percent of all FUDS projects and we did not address them in this report.
2
 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.



Page 28                                      GAO-03-146 Corps Coordination with Regulators
Appendix I: Additional Details on Our Scope
and Methodology




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.




Page 29                                 GAO-03-146 Corps Coordination with Regulators
                                              Appendix II: State and Corps Project
Appendix II: State and Corps Project          Managers’ Responses to Our Survey
                                              Regarding Coordination at FUDS


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

                                                                                      Yes                 No     Don’t know       Total
                                                                             (percentage)        (percentage)   (percentage) responses
 Did the Corps inform states that it was starting preliminary                           6                  81             13       444
 assessment of eligibility?
                                                                                                                                        a
 Did the Corps ask states for information or input on its approach?                         6             80              14        886
 Did the Corps ask for state participation?                                                 5             84              11        441
 Did the Corps inform states of interim results as work progressed?                         5             83              12         441
 Did the Corps provide states with a draft of the report summarizing                        4             84              12        441
 the results of the preliminary assessment of eligibility?
 Did the Corps provide states with the final report on the preliminary                      48            43               9         442
 assessment of eligibility?
Source: GAO.
                                              a
                                              Combined total responses for two questions.

                                              Note: States’ responses to FUDS survey.




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

                                                                                      Yes                 No     Don’t know       Total
                                                                             (percentage)        (percentage)   (percentage) responses
 Did the Corps inform states that it was starting preliminary                          24                  58             18       481
 assessment of eligibility?
 Did the Corps ask states for information or input on its approach?                         27            53              20         965
 Did the Corps ask for state participation?                                                 16            64              20         481
 Did the Corps inform states of interim results as work progressed?                         15            65              20         478
 Did the Corps provide states with a draft of the report summarizing                         7            79              14         481
 the results of the preliminary assessment of eligibility?
 Did the Corps provide states with the final report on the preliminary                      56            30              14         477
 assessment of eligibility?
Source: GAO.
                                              a
                                              Combined total responses for two questions.

                                              Note: Corps’ responses to FUDS survey.




                                              Page 30                                       GAO-03-146 Corps Coordination with Regulators
                                              Appendix II: State and Corps Project
                                              Managers’ Responses to Our Survey
                                              Regarding Coordination at FUDS




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

                                                                                     Yes                 No      Don’t know       Total
                                                                            (percentage)        (percentage)    (percentage) responses
 Did the Corps inform states of upcoming work?                                        53                  31              16         86
                                                                                                                                      a
 Did the Corps ask for states’ input and participation?                               50                  33              17       169
 Did the Corps inform states of interim results?                                      49                  35              16         84
 Did the Corps provide states with draft reports?                                     46                  43              11         98
 Did the Corps provide states with final reports?                                     44                  41              15         91
Source: GAO.
                                              a
                                              Combined total responses for two questions.

                                              Note: States’ responses to FUDS survey.




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

                                                                                     Yes                 No     Don’t know       Total
                                                                            (percentage)        (percentage)   (percentage) Responses
 Did the Corps inform states of upcoming work?                                        72                  12             16         99
                                                                                                                                     a
 Did the Corps ask for states’ input and participation?                               67                  14             19       195
 Did the Corps inform states of interim results?                                      73                  11             16         95
 Did the Corps provide states with draft reports?                                     59                  25             16        108
 Did the Corps provide states with final reports?                                     57                  21             22        101
Source: GAO.
                                              a
                                              Combined total responses for two questions.

                                              Note: Corps’ responses to FUDS survey.




                                              Page 31                                       GAO-03-146 Corps Coordination with Regulators
                                              Appendix II: State and Corps Project
                                              Managers’ Responses to Our Survey
                                              Regarding Coordination at FUDS




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

                                                                                      Yes                No     Don’t know       Total
                                                                             (percentage)       (percentage)   (percentage) Responses
 Did the Corps inform states of upcoming work?                                         40                 48             12         86
 Did the Corps ask for states’ input and participation?                                25                 60             15       168a
 Did the Corps inform states of interim results?                                       25                 53             22         80
 Did the Corps provide states with draft reports?                                      27                 61             12         83
 Did the Corps provide states with final reports?                                      36                 50             14         84
Source: GAO.
                                              a
                                              Combined total responses for two questions.

                                              Note: States’ responses to its FUDS survey.




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

                                                                                      Yes                No     Don’t know       Total
                                                                             (percentage)       (percentage)   (percentage) Responses
 Did the Corps inform states of upcoming work?                                         57                 20             23       109
 Did the Corps ask for states’ input and participation?                                51                 21             28       216
 Did the Corps inform states of interim results?                                       51                 24             25       108
 Did the Corps provide states with draft reports?                                      49                 28             23       105
 Did the Corps provide states with final reports?                                      63                 19             18       106
Source: GAO.
                                              a
                                              Combined total responses for two questions.

                                              Note: Corps’ responses to FUDS survey.




                                              Page 32                                       GAO-03-146 Corps Coordination with Regulators
                                              Appendix II: State and Corps Project
                                              Managers’ Responses to Our Survey
                                              Regarding Coordination at FUDS




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

                                                                                     Yes                 No     Don’t know       Total
                                                                            (percentage)        (percentage)   (percentage) Responses
 Did the Corps inform states of upcoming work?                                        18                  67             15         39
                                                                                                                                     a
 Did the Corps ask for states’ input and participation?                               18                  71             11        78
 Did the Corps inform states of interim results?                                      13                  76             11         38
 Did the Corps provide states with draft reports?                                     23                  70              7         47
 Did the Corps provide states with final reports?                                     44                  53              3         45
Source: GAO.
                                              a
                                              Combined total responses for two questions.

                                              Note: States’ responses to FUDS survey.




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

                                                                                     Yes                 No     Don’t know       Total
                                                                            (percentage)        (percentage)   (percentage) Responses
 Did the Corps inform states of upcoming work?                                        42                  21             37        33
 Did the Corps ask for states’ input and participation?                               39                  23             38       66a
 Did the Corps inform states of interim results?                                      24                  27             49        33
 Did the Corps provide states with draft reports?                                     25                  33             42        36
 Did the Corps provide states with final reports?                                     33                  50             17        36
Source: GAO.
                                              a
                                              Combined total responses for two questions.

                                              Note: Corps’ responses to FUDS survey.




                                              Page 33                                       GAO-03-146 Corps Coordination with Regulators
                   Appendix III: Comments from the Department
Appendix III: Comments from the
                   of Defense



Department of Defense




         Page 34                            GAO-03-146 Corps Coordination with Regulators
          Appendix III: Comments from the Department
          of Defense




Page 35                            GAO-03-146 Corps Coordination with Regulators
          Appendix III: Comments from the Department
          of Defense




Page 36                            GAO-03-146 Corps Coordination with Regulators
          Appendix III: Comments from the Department
          of Defense




Page 37                            GAO-03-146 Corps Coordination with Regulators
          Appendix III: Comments from the Department
          of Defense




Page 38                            GAO-03-146 Corps Coordination with Regulators
          Appendix III: Comments from the Department
          of Defense




Page 39                            GAO-03-146 Corps Coordination with Regulators
             Appendix IV: Comments from the
Appendix IV: Comments from the
             Environmental Protection Agency



Environmental Protection Agency




             Page 40                           GAO-03-146 Corps Coordination with Regulators
                  Appendix V: GAO Contacts and Staff
Appendix V: GAO Contacts and Staff
                  Acknowledgments



Acknowledgments

                  Ms. Anu K. Mittal, (202) 512-9846
GAO Contacts
                  Edward Zadjura, (202) 512-9914


                  In addition to those named above, Gary L. Jones, Glenn C. Fischer, James
Acknowledgments   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.




(360046)
                  Page 41                              GAO-03-146 Corps Coordination with Regulators
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