Environmental Contamination: DOD Has Taken Steps to Improve	 
Cleanup Coordination at Former Defense Sites but Clearer Guidance
Is Needed to Ensure Consistency (28-MAR-03, GAO-03-146).	 
                                                                 
The U.S. Army Corps of Engineers (Corps) is in charge of	 
addressing cleanup at the more than 9,000 U.S. properties that	 
were formerly owned or controlled by the Department of Defense	 
(DOD) and have been identified as potentially eligible for	 
environmental cleanup. The Corps has determined that more than	 
4,000 of these properties have no hazards that require further	 
Corps study or cleanup action. However, in recent years, hazards 
have surfaced at some of these properties, leading state and	 
federal regulators to question whether the Corps has properly	 
assessed and cleaned up these properties. In this context,	 
Congress asked us to (1) analyze federal coordination		 
requirements that apply to the cleanup of these properties, (2)  
assess recent DOD and Corps efforts to improve coordination, and 
(3) identify any issues regulators may have about coordination	 
with the Corps. 						 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-03-146 					        
    ACCNO:   A06518						        
  TITLE:     Environmental Contamination: DOD Has Taken Steps to      
Improve Cleanup Coordination at Former Defense Sites but Clearer 
Guidance Is Needed to Ensure Consistency			 
     DATE:   03/28/2003 
  SUBJECT:   Environmental law					 
	     Environmental monitoring				 
	     Federal regulations				 
	     Federal/state relations				 
	     Hazardous substances				 
	     Land management					 
	     Regulatory agencies				 
	     DOD Defense Environmental Restoration		 
	     Program						 
                                                                 
	     EPA National Priorities List			 
	     Army Corps of Engineers Formerly Used		 
	     Defense Sites Program				 
                                                                 

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GAO-03-146

Report to Congressional Requesters

United States General Accounting Office

GAO

March 2003 ENVIRONMENTAL CONTAMINATION

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

GAO- 03- 146

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

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

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

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

(Corps) is in charge of addressing cleanup at the more than 9,000 U. S.
properties that were formerly owned or controlled by the Department of
Defense (DOD) and

have been identified as potentially eligible for environmental cleanup.
The Corps has determined that more than 4, 000 of these properties have no
hazards that require further Corps study or cleanup action. However, in
recent years, hazards have surfaced at some of these properties, leading
state and

federal regulators to question whether the Corps has properly assessed and
cleaned up these

properties. In this context, Congress asked us to (1) analyze federal
coordination requirements that apply to the cleanup of these properties,
(2) assess recent DOD

and Corps efforts to improve coordination, and (3) identify any issues
regulators may have about coordination with the Corps.

DOD and the Corps should (1) develop clear and specific coordination
guidance that should explicitly include, among other

things, preliminary assessment of eligibility and ordnance and explosive
waste; (2) assess recent efforts to improve coordination at the national
as well as district level and promote wider distribution of

best practices; and (3) work with EPA to clarify their respective roles in
the cleanup of former defense sites that are not on the list of the
nation*s worst hazardous sites. www. gao. gov/ cgi- bin/ getrpt? GAO- 03-
146. To view the full report, including the scope

and methodology, click on the link above. For more information, contact
(Ms.) Anu Mittal or Ed Zadjura on (202) 512- 3841. Highlights of GAO- 03-
146, a report to Congressman John D. Dingell, Ranking

Minority Member, U. S. House of Representatives

March 2003

ENVIRONMENTAL CONTAMINATION

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

Page i GAO- 03- 146 Corps Coordination with Regulators 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 Contents

Page ii 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

This is a work of the U. S. Government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. It may contain
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copyright holder may be necessary should you wish to reproduce copyrighted
materials separately from GAO*s product.

Page 1 GAO- 03- 146 Corps Coordination with Regulators

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. United States General Accounting Office
Washington, DC 20548

Page 2 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 3 GAO- 03- 146 Corps Coordination with Regulators

Federal law requires DOD and the Corps of Engineers to consult with state
regulatory agencies and EPA during the FUDS cleanup program. However, the
only instance for which federal law provides specifics is the cleanup
phase for hazardous substances. 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. Results in Brief

Page 4 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 5 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
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
Background

Page 6 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 7 GAO- 03- 146 Corps Coordination with Regulators

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

to do to involve regulators. According to DOD, ongoing development of
regulations that will revise the Corps* FUDS Program Manual will provide
clear direction and specific steps for involving regulators in the FUDS
program.

Federal law requires DOD and the Corps to consult with regulatory entities
in carrying out the FUDS program. Under 10 U. S. C. 2701, the Corps must
carry out the FUDS program *in consultation with* EPA. However, this
section does not define consultation, mention the state regulators, or
prescribe specific steps for the Corps to follow. More specific language
regarding consultation as it relates to the cleanup of hazardous
substances is provided in 10 U. S. C. 2705. At projects involving
hazardous substances, the Corps must notify EPA and appropriate state
officials and provide them an opportunity to review and comment on
activities associated with (1) discovering releases or threatened releases
of hazardous substances at FUDS, (2) determining the extent of the threat
to public health and the environment that may be associated with such

releases, (3) evaluating proposed cleanup actions, and (4) initiating each
distinct phase of cleanup. 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.* Additional Guidance Would Help
Ensure

Coordination with Regulators

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

Page 8 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 9 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 dayto-
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.

Although coordination is required during the cleanup phase for hazardous
and containerized wastes, responses to our survey of FUDS properties
covering FUDS work that took place during the period from 1986 through
2001 indicate that state project managers believe the Corps coordinated

with them, on average, 34 percent of the time during cleanup, while the
Corps believes it coordinated with states an average of 55 percent of the
time during cleanup. Moreover, state and Corps respondents agree that
coordination was better for projects in our sample that addressed
hazardous substances than for projects that did not. For example,
according to state respondents to our survey, coordination for hazardous
waste projects was more than 25 percent higher than for ordnance and
explosive waste projects. (See table 1.) For additional survey results,
such as the percent of cases where respondents felt there wasn*t any
coordination or gave *don*t know* responses, see appendix II. Despite
Requirements,

Corps Officials Often Did Not Coordinate during the Cleanup Phase

Page 10 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 Hazardous waste

(percentage) Containerized

waste (percentage)

Ordnance and explosive waste

(percentage) Examples of coordination during project activities State
Corps State Corps State Corps

Corps informed states of upcoming work 53 72 40 57 18 42 Corps asked for
states* input and participation 50 67 25 51 18 39 Corps informed states of
interim results 49 73 25 51 13 24 Corps provided states with draft reports
46 59 27 49 23 25 Corps provided states with final reports 44 57 36 63 44
33 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 11 GAO- 03- 146 Corps Coordination with Regulators

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

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

Examples of coordination during the preliminary assessment of eligibility

State project managers (percentage)

Corps project managers (percentage)

Corps informed states that it was starting preliminary assessment of
eligibility 6 24 Corps asked states for information or input on Corps
approach 6 27

Corps asked for state participation 5 16 Corps informed states of interim
results as work progressed 5 15 Corps provided states with a draft of the
report summarizing the results of the preliminary assessment of
eligibility

4 7 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 Guidance Does Not Cover the Preliminary

Assessment of Eligibility and Very Little Coordination Took Place During
This Phase

Page 12 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
improvement in the Corps* coordination with them. For example, FUDS
program officials in 20 of the 27 states we contacted reported that,
overall, Corps coordination with them has improved during this time. The
main

factors state officials cited for the improvement include an increase in
the number of meetings they were invited to attend with Corps project
managers on specific project tasks, more information provided by the Corps
to the states regarding project work, and better coordination in setting
work priorities. DOD and the Corps started to take steps to address the
coordination issue in response to the concerns that the states began to
voice in the late 1990s about their lack of involvement in the FUDS

program. Initially, DOD*s efforts consisted of steps such as sponsoring
conferences to encourage greater coordination between the Corps and
regulators. Individual Corps districts also took steps to improve
coordination.

As part of the efforts to improve coordination, the Deputy Assistant
Secretary of the Army for Environment, Safety and Occupational Health,
along with members of the regulatory community, formed the FUDS
Improvement Working Group in October 2000 to address FUDS program concerns
and to improve communication among the Corps, the regulators, and other
parties with an interest in FUDS cleanup. The working group,

which consisted of DOD, Corps, state, EPA, and tribal representatives,
compiled a list of issues to be addressed through better communication and
consistent coordination, including the role of regulators in setting
priorities and planning work at FUDS properties and in the final closeout
of properties after cleanup. 8 8 EPA withdrew from the working group in
April 2002. DOD and the Corps

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

Page 13 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 14 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 15 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 semiannually 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 16 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
environmental standards are met at most FUDS properties, believe that
inadequate Corps coordination has made it more difficult for them to carry
out their regulatory responsibilities. Also, state regulatory officials
told us that they have frequently questioned Corps cleanup decisions
because

they have often not been involved in or informed about Corps actions at
FUDS. Conversely, they told us that when Corps coordination has occurred,
states have been more likely to agree with Corps decisions. At the federal
level, EPA and the Corps do not share the same view on EPA*s role in the
FUDS program. EPA believes that it should play a greater role at the 9,000
FUDS that are not on the National Priorities List, while the Corps
believes that EPA*s role should remain limited to those FUDS that are on
the National Priorities List.

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

through all stages of the program was valuable and helped regulators
develop confidence in Corps decisions.

With regard to the preliminary assessment of eligibility, FUDS program
officials in 15 of the 27 states we contacted expressed specific concerns
regarding their limited involvement during this stage of the program. One
concern, which was raised by 12 of these officials, was that Corps
activities are taking place without their knowledge or involvement. Our
past work has shown the results of this lack of coordination. Our August
Views of Regulators

about FUDS Coordination Activities

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

Page 17 GAO- 03- 146 Corps Coordination with Regulators

2002 report 9 noted that because the Corps historically did not consult
states during its preliminary assessment of eligibility, states did not
discover until after the fact, in some cases years later, that the Corps
had determined that more than 4,000 properties required no further DOD
study or cleanup action. Moreover, in several cases in which DOD had made
an NDAI determination without involving the states, DOD- caused hazards
were later identified, and the Corps had to reassess the properties and
conduct cleanup work. At Camp O*Reilly in Puerto Rico, for example, the
Corps made an NDAI determination after it conducted a preliminary
assessment of eligibility that did not include a review of state
historical information on the use of the property. Several years later,
the then- owner of the property identified DOD- caused hazards at the
property. This led to a more comprehensive Corps assessment that found
serious threats to drinking water sources and other hazards that required
cleanup under the FUDS program.

Another concern about the preliminary assessment of eligibility voiced by
officials in 17 of the 27 states we contacted is that the Corps has not
adequately supported and documented its NDAI decisions, and it has not
involved states in developing them. Because of their lack of involvement

and what states perceive as a lack of adequate support for such Corps
decisions, these states believe they have little assurance that the Corps
performed adequate work during its preliminary assessments of eligibility
and that NDAI properties are, in fact, free of DOD- caused hazards. Our
survey of 519 FUDS properties also showed that, historically, states
approved of Corps NDAI determinations in only 10 percent of the cases; in
70 percent of the cases, state respondents could not say whether they

agreed or disagreed with the determination. With regard to ordnance and
explosive waste projects, one of the types of projects states told us were
most important to them, interviews with the 27 state FUDS program
officials indicated that they were satisfied with the Corps* work on such
projects in only 11 percent of the cases. This lack of satisfaction could
be, at least partially, the result of the relatively low levels of state
involvement in these projects. According to state survey respondents, the
Corps involved them, on average, in 23 percent of ordnance and explosive
waste projects. Corps guidance currently focuses coordination on hazardous
waste and does not specifically address

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 18 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 19 GAO- 03- 146 Corps Coordination with Regulators

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

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

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

 The way the Corps is to administer the FUDS cleanup program has also
been interpreted differently by the agencies. Specifically, 10 U. S. C.
2701 requires that the Corps perform work at FUDS projects involving
hazardous substances *subject to and in a manner consistent with* section
120 of CERCLA, which addresses the cleanup of federal facilities. Section
2701 also requires the Corps to carry out response actions involving
hazardous substances in accordance with the provisions of the Defense
Environmental Restoration Program and CERCLA. However, EPA and the Corps
disagree on the meaning of these requirements. EPA contends that the Corps
should follow

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. EPA and the Corps Have

Differing Views about Their Respective Roles and Management of the FUDS
Program

Page 20 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 21 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 22 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
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. Conclusions

Page 23 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 24 GAO- 03- 146 Corps Coordination with Regulators

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

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

 assess the impact of the Corps* recent efforts to improve coordination
through actions such as directives and the Management Action Plan pilot
program and incorporate the successful components as requirements into its
FUDS Program Manual, and  assess practices individual Corps districts
have used to coordinate with

regulators and develop a list of best practices for dissemination
throughout the Corps that districts might use to improve their
coordination.

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

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

Executive Action Agency Comments and Our Evaluation

Page 25 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 26 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

Appendix I: Additional Details on Our Scope and Methodology

Page 27 GAO- 03- 146 Corps Coordination with Regulators

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. Appendix I: Additional Details on Our Scope

and Methodology

Appendix I: Additional Details on Our Scope and Methodology

Page 28 GAO- 03- 146 Corps Coordination with Regulators

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 party 1 201 21

 Other 2 0

Total FUDS projects 4,585 399 a

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.

Appendix I: Additional Details on Our Scope and Methodology

Page 29 GAO- 03- 146 Corps Coordination with Regulators

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.

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

Page 30 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

Yes (percentage)

No (percentage)

Don*t know (percentage) Total

responses

Did the Corps inform states that it was starting preliminary assessment of
eligibility? 6 81 13 444 Did the Corps ask states for information or input
on its approach? 6 80 14 886 a 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
the results of the preliminary assessment of eligibility? 4 84 12 441 Did
the Corps provide states with the final report on the preliminary
assessment of eligibility? 48 43 9 442 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 (percentage)

No (percentage)

Don*t know (percentage) Total

responses

Did the Corps inform states that it was starting preliminary assessment of
eligibility? 24 58 18 481 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 the results of the preliminary assessment of
eligibility? 7 79 14 481 Did the Corps provide states with the final
report on the preliminary assessment of eligibility? 56 30 14 477 Source:
GAO. a Combined total responses for two questions.

Note: Corps* responses to FUDS survey.

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

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

Page 31 GAO- 03- 146 Corps Coordination with Regulators

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

Yes (percentage)

No (percentage)

Don*t know (percentage) Total responses

Did the Corps inform states of upcoming work? 53 31 16 86 Did the Corps
ask for states* input and participation? 50 33 17 169 a 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 (percentage)

No (percentage)

Don*t know (percentage) Total Responses

Did the Corps inform states of upcoming work? 72 12 16 99 Did the Corps
ask for states* input and participation? 67 14 19 195 a 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.

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

Page 32 GAO- 03- 146 Corps Coordination with Regulators

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

Yes (percentage)

No (percentage)

Don*t know (percentage) Total Responses

Did the Corps inform states of upcoming work? 40 48 12 86 Did the Corps
ask for states* input and participation? 25 60 15 168 a 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 (percentage)

No (percentage)

Don*t know (percentage) Total 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.

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

Page 33 GAO- 03- 146 Corps Coordination with Regulators

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

(percentage) No

(percentage) Don*t know (percentage) Total

Responses

Did the Corps inform states of upcoming work? 18 67 15 39 Did the Corps
ask for states* input and participation? 18 71 11 78 a 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

(percentage) No

(percentage) Don*t know (percentage) Total

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.

Appendix III: Comments from the Department of Defense

Page 34 GAO- 03- 146 Corps Coordination with Regulators

Appendix III: Comments from the Department of Defense

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 Environmental Protection Agency

Page 40 GAO- 03- 146 Corps Coordination with Regulators

Appendix IV: Comments from the Environmental Protection Agency

Appendix V: GAO Contacts and Staff Acknowledgments Page 41 GAO- 03- 146
Corps Coordination with Regulators

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

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

Appendix V: GAO Contacts and Staff Acknowledgments

Acknowledgments

(360046)

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