Hazardous Waste: Information on How DOD and Federal and State	 
Regulators Oversee the Off-Site Disposal of Waste from DOD	 
Installations (13-NOV-07, GAO-08-74).				 
                                                                 
Military installations operated by the Department of Defense	 
(DOD) can generate hazardous waste during routine operations,	 
such as the repair and maintenance of weapon systems and	 
equipment, or during an environmental cleanup related to past	 
operations. The proper disposal of hazardous waste, especially	 
when it is taken to an off-site location, is essential to	 
ensuring the health and safety of communities across the country.
This report describes (1) DOD's procedures for selecting	 
hazardous waste transporters and treatment, storage, and disposal
facilities, and ensuring that they properly dispose of hazardous 
waste; (2) the role of the Environmental Protection Agency (EPA) 
and state agencies in ensuring hazardous waste is disposed of	 
safely and in accordance with laws and regulations; and (3) the  
information that facilities and regulators must publicly report  
regarding a release of hazardous waste and the enforcement	 
actions taken against facilities found in violation of the	 
applicable laws and regulations. GAO reviewed applicable laws,	 
regulations, and policies, and interviewed federal and state	 
officials. GAO does not make any recommendations in this report. 
EPA generally agreed with the report, while DOD did not comment  
on the report. Both agencies provided technical comments which	 
were incorporated.						 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-08-74						        
    ACCNO:   A78110						        
  TITLE:     Hazardous Waste: Information on How DOD and Federal and  
State Regulators Oversee the Off-Site Disposal of Waste from DOD 
Installations							 
     DATE:   11/13/2007 
  SUBJECT:   Department of Defense contractors			 
	     Environmental cleanups				 
	     Environmental law					 
	     Environmental protection				 
	     Hazardous substances				 
	     Hazardous waste disposal				 
	     Hazardous waste sites				 
	     Hazardous wastes					 
	     Inspection 					 
	     Policy evaluation					 
	     Regulatory agencies				 
	     Reporting requirements				 
	     Waste disposal					 
	     Waste management					 
	     Policies and procedures				 
	     Program goals or objectives			 

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GAO-08-74

   

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Report to Congressional Requesters: 

United States Government Accountability Office: 

GAO: 

November 2007: 

Hazardous Waste: 

Information on How DOD and Federal and State Regulators Oversee the Off-
Site Disposal of Waste from DOD Installations: 

Hazardous Waste: 

GAO-08-74: 

GAO Highlights: 

Highlights of GAO-08-74, a report to congressional requesters. 

Why GAO Did This Study: 

Military installations operated by the Department of Defense (DOD) can 
generate hazardous waste during routine operations, such as the repair 
and maintenance of weapon systems and equipment, or during an 
environmental cleanup related to past operations. The proper disposal 
of hazardous waste, especially when it is taken to an off-site 
location, is essential to ensuring the health and safety of communities 
across the country. This report describes (1) DODï¿½s procedures for 
selecting hazardous waste transporters and treatment, storage, and 
disposal facilities, and ensuring that they properly dispose of 
hazardous waste; (2) the role of the Environmental Protection Agency 
(EPA) and state agencies in ensuring hazardous waste is disposed of 
safely and in accordance with laws and regulations; and (3) the 
information that facilities and regulators must publicly report 
regarding a release of hazardous waste and the enforcement actions 
taken against facilities found in violation of the applicable laws and 
regulations. GAO reviewed applicable laws, regulations, and policies, 
and interviewed federal and state officials. 

GAO does not make any recommendations in this report. EPA generally 
agreed with the report, while DOD did not comment on the report. Both 
agencies provided technical comments which were incorporated. 

What GAO Found: 

DOD primarily relies on private contractors to handle the off-site 
disposal of hazardous waste generated by its installations and has 
procedures aimed at ensuring that its contractors select appropriate 
transporters and treatment, storage, and disposal facilities. The 
procedures that DOD follows regarding the disposal of hazardous waste 
depend on whether the waste was generated from routine operations or 
from an environmental cleanup. For routine operations, DODï¿½s preferred 
process is for installations to rely on regional contracts awarded to 
private firms by DODï¿½s Defense Reutilization and Marketing Service to 
manage the disposal process. These private firms must select hazardous 
waste transporters and treatment, storage, and disposal facilities from 
a DOD approved list. Similarly, for environmental cleanups, DOD relies 
on contractors to manage the cleanup projects. However, unlike routine 
cleanups, these contractors do not have an approved list from which 
they can choose. Instead they are required to choose transporters and 
facilities, with DOD oversight, that are to comply with the 
requirements of environmental laws, such as having the appropriate 
permits. DOD is not required by the Resource Conservation and Recovery 
Act (RCRA) to oversee the physical operations of permitted facilities. 
That oversight is conducted by EPA and authorized state agencies that 
have overall responsibility for enforcing requirements designed to 
ensure these facilities dispose of hazardous waste properly. 

EPA or authorized state agencies issue permits required under RCRA to 
hazardous waste disposal facilities and monitor the facilitiesï¿½ 
performance to ensure that these facilities dispose of hazardous waste 
safely and in accordance with laws and regulations. To ensure that 
treatment, storage, and disposal facilities comply with their permits 
and other RCRA requirements, EPA or the authorized state agency are 
required to inspect the facility every 2 years. If a violation is 
found, legal action, in the form of an administrative order, a civil 
lawsuit, or a criminal lawsuit, may follow, depending upon the nature 
and severity of the problem. 

Certain federal laws, including RCRA, require facilities and regulators 
to report some information to the public regarding hazardous waste 
releases and enforcement actions against hazardous treatment, storage, 
and disposal facilities. For hazardous waste releases, both EPA and the 
facilities must report various types of information depending on the 
hazardous waste involved, the amount released, and the type of 
facility, among other things. For example, facility owners must report 
the accidental release of a broad range of hazardous substances to 
local emergency responders. For enforcement actions taken against the 
facilities, EPA and authorized state agencies have few requirements for 
reporting information publicly, but may provide some information about 
the violation and any penalty imposed. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.GAO-08-74]. For more information, contact Anu K. 
Mittal at (202) 512-3841 or [email protected]. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

DOD Contractors Must Select Facilities That Are Approved to Treat, 
Store, and Dispose of Hazardous Waste, and DOD Relies on Other 
Regulatory Agencies to Ensure That Waste is Disposed of Properly: 

EPA and Authorized State Agencies Are Responsible for Approving Permits 
for Hazardous Waste Facilities and Monitoring Their Performance: 

EPA and Facility Owners Provide Limited Public Information on Hazardous 
Waste Releases and Enforcement Actions Taken: 

Agency Comments and Our Evaluation: 

Appendix I: Off-Site Disposal of DOD Hazardous Waste from an 
Evaporation Pond at DOD's Rocky Mountain Arsenal: 

Appendix II: Recycling Activities at Encycle and Asarco's El Paso 
Smelter and EPA's Enforcement Action: 

Appendix III: Comments from the Environmental Protection Agency: 

Appendix IV: GAO Contact and Staff Acknowledgments: 

Figures: 

Figure 1: Rocky Mountain Arsenal's Process for Selecting the Off-Site 
Disposal Facility for Hazardous Waste from Basin F: 

Figure 2: Process Followed by the Army's Rocky Mountain Arsenal for 
Ensuring the Treatment, Storage, and Disposal Facility Properly 
Disposed of Waste from Basin F: 

Figure 3: Encycle Hazardous Waste Permit and RCRA Inspection 
Information: 

Figure 4: Civil Judicial Enforcement Action and Consent Decree Between 
EPA, Texas, and Asarco: 

Figure 5: Information Provided to the Public by the Department of 
Justice, EPA, and Texas in a Press Release Regarding the Enforcement 
Action Against Asarco: 

Abbreviations: 

Asarco: ASARCO: 

CERCLA: Comprehensive Environmental Response, Compensation, 

and Liability Act: 

DOD: Department of Defense: 

DRMS: Defense Reutilization and Marketing Service: 

EPA: Environmental Protection Agency: 

RCRA: Resource Conservation and Recovery Act: 

Shell: Shell Oil Company: 

United States Government Accountability Office: 

Washington, DC 20548: 

November 13, 2007: 

The Honorable Solomon P. Ortiz: 
Chairman: 
Subcommittee on Readiness: 
Committee on Armed Services: 
House of Representatives: 

The Honorable Silvestre Reyes: 
House of Representatives: 

The proper disposal of hazardous waste--harmful liquids, solids, 
contained gases, or sludges--is essential to ensuring the health and 
safety of communities across the United States. In accordance with 
various environmental protection laws and Department of Defense (DOD) 
policy, DOD installations must properly dispose of hazardous waste that 
they generate (1) at active installations during routine operations or 
from past operations, (2) at installations being closed, or (3) at 
properties formerly owned or controlled by the department. For example, 
in calendar year 2005, at active installations, DOD disposed of 132 
million pounds of hazardous waste from routine operations alone. DOD 
disposes of some hazardous waste at privately operated treatment, 
storage, and disposal facilities. If facility operators dispose of this 
waste improperly, it can contaminate the environment or threaten human 
health. Further, DOD can be held liable for the cost of cleaning up 
waste improperly disposed of by its contractors. For example, at a 
disposal site in South Carolina where DOD sent waste in the 1980's, DOD 
had to pay approximately $5 million to help clean soil and groundwater 
contamination because the contaminated site had been abandoned by its 
owners. 

DOD's disposal of hazardous waste is subject to several environmental 
statutes, including the Resource Conservation and Recovery Act (RCRA), 
which regulates the management of hazardous waste from generation of 
the waste to its disposal. Under RCRA, DOD may only send hazardous 
waste to facilities that are approved by federal or state regulatory 
agencies to treat, store, and dispose of hazardous waste. DOD must, 
through a hazardous waste manifest tracking system, ensure that all 
such hazardous waste arrives at the approved facility. The 
Environmental Protection Agency (EPA) is the federal agency responsible 
for developing RCRA regulations, guidance, and policy. EPA has 
generally authorized states to implement hazardous waste management 
programs consistent with RCRA, but retains broad oversight over the 
states' regulatory programs. Currently, EPA has authorized 48 states to 
implement programs that must be at least equivalent to and consistent 
with RCRA requirements.[Footnote 1] 

For hazardous waste generated during routine operations, the commander 
of the DOD installation where the waste was generated is in charge of 
disposing of it and complying with environmental statutes. Installation 
commanders are also responsible for identifying, investigating, and 
disposing of hazardous waste generated during past operations on active 
installations that are being cleaned up, and ensuring these cleanup 
activities comply with environmental statutes. The U.S. Army Corps of 
Engineers is in charge of arranging for the disposal of hazardous 
wastes generated during past operations on properties DOD formerly 
owned or controlled and ensuring these cleanup activities comply with 
environmental statutes. 

You asked us to describe (1) DOD's procedures for selecting appropriate 
hazardous waste transporters and treatment, storage, and disposal 
facilities, and ensuring that these facilities properly dispose of 
hazardous waste; (2) the role of EPA and state environmental agencies 
in ensuring that hazardous waste is disposed of safely and in 
accordance with laws and regulations; and (3) the information that 
facilities and regulators must report to the public regarding a release 
of hazardous waste and the enforcement actions taken against facilities 
that are found to be in violation of the applicable laws and 
regulation. In this context, you also asked us to specifically describe 
how these procedures were followed in the case of hazardous waste 
generated at DOD's Rocky Mountain Arsenal and disposed of by a 
treatment, storage, and disposal facility in Texas from 1993 to 1995. 

To identify DOD's procedures for disposing of hazardous waste, we 
reviewed applicable laws, regulations, and policies, as well as the 
procedures of the Defense Environmental Restoration Program, the 
Defense Logistics Agency's Defense Reutilization and Marketing Service 
(DRMS), the Army Corps of Engineers, and the Departments of the Army, 
Navy, and Air Force. We also interviewed officials within these 
organizations, as well as within DOD. To describe the role of EPA and 
authorized state agencies in ensuring that hazardous waste is disposed 
of properly and the information regulators and treatment, storage, and 
disposal facility owners or operators must report to the public 
regarding releases of hazardous waste at these facilities, we reviewed 
the applicable statutes and regulations. We interviewed officials in 
EPA headquarters, EPA Region 6, and the Texas Commission on 
Environmental Quality. We also interviewed officials from ASARCO 
(Asarco), a company that had a treatment, storage, and disposal 
facility permitted to operate in Texas until 2003. We performed our 
work between March 2007 and October 2007, in accordance with generally 
accepted government auditing standards. 

Results in Brief: 

DOD primarily relies on private contractors to handle the off-site 
disposal of hazardous waste generated by its installations. While DOD 
has procedures aimed at ensuring that its contractors select 
appropriate transporters and treatment, storage, and disposal 
facilities for the waste generated at installations, it relies on 
federal and state environmental regulators to ensure that this 
hazardous waste is disposed of properly. The procedures that DOD 
follows regarding the disposal of hazardous waste are dependent on 
whether the waste was generated from routine operations or is from an 
environmental cleanup. Specifically, 

* To dispose of hazardous waste generated during routine operations, 
DOD's preferred process is for installations to rely on DRMS. To 
arrange for the removal and disposal of hazardous waste from 
installations, DRMS awards regional contracts to private firms who 
manage the disposal process and requires these contractors to use 
hazardous waste transporters and treatment, storage, and disposal 
facilities that have been approved by DRMS. To be approved by DRMS, 
transporters and facilities must meet certain criteria, such as having 
current environmental permits and a history of compliance with 
environmental laws, such as RCRA. DRMS reviews a limited number of 
approved hazardous waste transporters and facilities annually to ensure 
that they still meet the agency's criteria. Alternately, installation 
commanders can choose to obtain disposal contractors on their own, 
instead of using DRMS contractors. However, commanders must first 
obtain approval from their chain of command and must follow processes 
similar to DRMS to ensure that they are complying with all applicable 
legal and regulatory requirements. 

* During environmental cleanups to dispose of hazardous waste generated 
during past operations at active installations, DOD directly hires 
private contractors to manage the cleanup projects. These contractors 
select the transporters and the facilities that will treat, store, and 
dispose of the hazardous waste from DOD's installations, with DOD 
oversight. While DOD does not have an approved list of facilities that 
these contractors must select from, contractors must consult with EPA 
regional offices to determine whether a facility is acceptable for 
receiving cleanup waste. DOD requires the firms it contracts with to 
comply with environmental laws, including requiring the contractors to 
use only those disposal facilities with the appropriate permits. For 
hazardous waste that must be disposed of as a result of cleanup at 
properties that DOD formerly owned or controlled, the Army Corps of 
Engineers also hires contractors to manage the cleanup projects and 
requires them to use disposal facilities with appropriate permits. 

RCRA regulations do not require DOD to oversee the physical operations 
of permitted facilities. That oversight is conducted by EPA and 
authorized state agencies that have overall responsibility for 
enforcing requirements designed to ensure these facilities dispose of 
hazardous waste properly. As required by RCRA, DOD uses a tracking 
system to ensure that hazardous waste shipped off site arrives at the 
permitted hazardous waste facility designated to receive the waste. 
Once the waste reaches the hazardous waste disposal facility, DOD is 
not required by law to ensure that the waste is disposed of properly. 
Instead DOD relies on the monitoring and oversight conducted by EPA and 
authorized state agencies that have overall responsibility for ensuring 
that these facilities dispose of hazardous waste properly. DOD has 
procedures to help ensure that the facility disposes of hazardous waste 
properly for certain types of hazardous waste disposal contracts 
involving the Army Corps of Engineers. For cleanups the Army Corps of 
Engineers conducts, the agency has issued guidance recommending that 
contracting officials should request a certificate documenting the 
disposal for all items the facilities are asked to dispose of at their 
locations, including hazardous waste. 

EPA and authorized state agencies issue permits required under RCRA to 
hazardous waste disposal facilities and monitor the facilities' 
performance to ensure that these facilities dispose of hazardous waste 
safely and in accordance with laws and regulations. Specifically, 
permits provide facility owners and operators with the legal authority 
to treat, store, or dispose of hazardous waste and include details 
about how the facility must comply with the regulations. The permit 
also outlines facility design, construction, and operation; lays out 
safety standards; and describes activities that the facility must 
perform to comply with regulations, such as monitoring and reporting. 
Compliance with the permit ensures hazardous waste is handled in a 
controlled manner that is protective of human health and the 
environment. To ensure that facilities comply with their permits and 
other RCRA regulatory requirements, EPA or the authorized state agency 
are required to inspect the facility at least once every 2 years. If a 
violation is found, legal action, in the form of an administrative 
order, a civil lawsuit, or a criminal lawsuit, may follow, depending on 
the nature and severity of the problem. 

Certain federal laws, including RCRA and the Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA), 
require facilities and regulators to report some information to the 
public regarding hazardous waste releases and enforcement actions 
against hazardous waste treatment, storage, and disposal facilities. 
Specifically, for hazardous waste releases, both EPA and the facilities 
must report various types of information depending on the hazardous 
waste involved, the amount released, and the type of facility, among 
other things. For example, facility owners must immediately report the 
accidental release of a broad range of hazardous substances to local 
emergency responders if a release exceeds regulatory thresholds. In 
addition, certain facilities that manufacture, process, or otherwise 
use any of 581 individual chemicals and 30 chemical categories must 
report the amount of those chemicals that they released into air, soil, 
or water annually to EPA and their respective state. EPA is required to 
make this information available to the public and maintains summary 
information about facilities' toxic releases on its Web site. When 
enforcement actions are taken against the facilities, EPA and 
authorized state agencies have few requirements for reporting 
information publicly but may provide some information about the 
violation and any penalty imposed. For cases involving alleged 
discharges of pollutants, the Department of Justice must generally 
provide public notice of and an opportunity to comment on proposed 
settlements at least 30 days before the judgment is entered by the 
court. In addition, EPA maintains a Web site that provides the 
environmental compliance history of regulated facilities and includes 
reports on inspections, violations, and enforcement actions for each 
facility for the most recent 5 year period. EPA may also publicly share 
information about enforcement actions against treatment, storage, and 
disposal facilities via press releases. However, there are no criteria 
for determining which enforcement actions warrant press releases; EPA 
decides whether to issue press releases on a case by case basis. 

Background: 

Hazardous waste, if disposed of improperly, can be dangerous to the 
environment and human health because it can pollute ground and surface 
waters, contaminate soil, and be released into the atmosphere. 
Hazardous wastes are discarded material and may be in a variety of 
forms, including solids, liquids, sludge, or contained gases. Waste is 
hazardous under RCRA if it is ignitable, corrosive, reactive, or toxic 
or if it appears on a list of about 100 common industrial and 
manufacturing waste streams. Ignitable wastes catch fire easily. 
Corrosive wastes readily corrode or dissolve flesh, metal, or other 
materials. Reactive wastes may react spontaneously or vigorously with 
air or water, be unstable to shock or heat, generate toxic gases, or be 
readily capable of exploding. Toxic wastes contain specified compounds 
and elements in levels sufficient to threaten human health and the 
environment.[Footnote 2] 

Military installations operated by DOD generate hazardous waste 
primarily through industrial processes that are used to repair and 
maintain weapon systems and equipment, such as aircraft, ships, or 
trucks. Other operations that can generate hazardous waste are 
frequently found at DOD installations, including vehicle motor pools, 
paint shops, fire departments, hospitals and medical clinics, and 
laundries. Hazardous waste is often a by-product of activities such as 
cleaning, degreasing, stripping, painting, or metal plating. Hazardous 
waste is also present from past activities at military installations 
and formerly used defense sites. Contaminants found at military 
installations include solvents and corrosives; fuels; paint strippers 
and thinners; metals, such as lead, cadmium, and chromium; and unique 
military substances, such as nerve agents and unexploded ordnance. 

DOD is subject to various environmental laws and regulations that 
govern the cleanup of contamination from past operations and the 
control of hazardous waste related to ongoing operations including RCRA 
and CERCLA. Under CERCLA, the federal government is authorized to 
respond to spills and releases (or threatened releases) of hazardous 
substances and to clean up those sites. Amendments to CERCLA required 
DOD to establish the Defense Environmental Restoration Program to 
address the cleanup of hazardous waste and other contaminants that pose 
environmental health and safety risks at DOD installations. 

RCRA, among other requirements, established regulatory controls over 
the generation, transportation, and disposal of the hazardous waste 
materials. These controls include permit requirements for hazardous 
waste treatment, storage, and disposal facilities and a manifest system 
to track waste from points of generation to final disposal sites. RCRA 
establishes a cradle-to-grave management system for hazardous waste 
from generation to final treatment, storage, or disposal. Generators of 
hazardous waste must comply with regulations concerning record keeping 
and reporting, labeling of waste, use of appropriate containers, 
information on the waste's general chemical composition, and use of a 
hazardous waste tracking manifest system. Transporters of hazardous 
waste must comply with transportation safety regulations and use the 
hazardous waste manifest system to monitor waste from its point of 
generation, along its transportation routes, and to its final 
treatment, storage, or disposal site.[Footnote 3] Treatment, storage, 
and disposal facilities are required to have permits, to comply with 
strict operating standards, to meet financial requirements, and to 
comply with strict requirements when closing their facilities. 

EPA has the responsibility, in partnership with the states, for 
regulating the management of hazardous waste and monitoring compliance 
under RCRA. However, EPA can authorize state hazardous waste programs 
to operate and implement hazardous waste requirements as long as the 
state programs are at least equivalent to the federal program and 
provide for adequate enforcement. Using this authority, EPA has 
authorized most states to carry out their own programs for permitting, 
inspecting, and regulating hazardous waste. 

EPA expects its 10 regional offices to take a systematic, consistent 
approach in overseeing the state authorized programs. EPA regional 
offices conduct oversight and provide states with guidance, training, 
and technical assistance to ensure consistent performance of state 
programs. If EPA finds an authorized state not adequately administering 
or enforcing authorized programs, EPA may provide additional technical 
assistance, condition the receipt of grant funds on compliance with EPA 
guidance, or withdraw state authorization.[Footnote 4] In addition, EPA 
can independently take federal enforcement action against a violator. 

DOD Contractors Must Select Facilities That Are Approved to Treat, 
Store, and Dispose of Hazardous Waste, and DOD Relies on Other 
Regulatory Agencies to Ensure That Waste is Disposed of Properly: 

DOD has procedures for ensuring that its contractors select appropriate 
transporters and treatment, storage, and disposal facilities for 
hazardous waste, and it relies on environmental regulators to ensure 
that these facilities dispose of hazardous waste properly. DOD's 
procedures for the off-site disposal of hazardous waste vary depending 
upon whether the waste was generated during routine operations or is 
from an environmental cleanup. In either case, DOD's system for 
monitoring off-site disposal of hazardous waste is limited to tracking 
waste shipments to see that they arrive at their intended destination. 
RCRA regulations do not require DOD to oversee the physical operations 
of permitted facilities. That oversight is conducted by EPA and 
authorized state agencies that have overall responsibility for 
enforcing requirements designed to ensure these facilities dispose of 
hazardous waste properly. 

DOD Has Specific Procedures That Apply to the Off-Site Disposal of 
Hazardous Waste from Routine Operations and Environmental Cleanups: 

DOD's procedures for the off-site disposal of hazardous waste vary 
depending on whether the waste was generated during routine operations 
or is from an environmental cleanup. For hazardous waste generated 
during routine operations, DOD prefers that installation commanders use 
DRMS to manage the disposal of waste off site. For waste generated 
during past operations at active installations and formerly used 
defense sites that are subject to environmental cleanups, DOD policy 
requires installations and the Army Corps of Engineers to follow the 
cleanup process outlined in CERCLA. DOD hires contractors to manage the 
cleanup projects. 

Procedures for Off-Site Disposal of Hazardous Waste Generated during 
Routine Operations: 

For off-site disposal of waste generated during routine operations, DOD 
policy establishes that its preferred process is for installation 
commanders to rely on DRMS to manage the disposal.[Footnote 5] Under 
this process, DRMS contracting officials in their Battle Creek, 
Michigan, headquarters solicit and award regional service contracts to 
companies that will manage the pick up and disposal of most hazardous 
waste for specific geographic areas. As of September 2007, DRMS had 55 
regional service contracts for hazardous waste disposal. The contracts 
contain estimated quantities of various waste and related management 
services that might be needed by the DOD installations. After award, 
the selected contractor will pick up waste from DOD installations and 
conduct other disposal services for the duration of the contract period 
via individual task orders that are issued against the contract. 
According to DRMS, most contracts are for 18 months with options to 
extend them. 

DRMS's process for awarding the regional service contracts is based 
more on past performance rather than price.[Footnote 6] This process 
allows DRMS to accept other than the lowest priced proposal if, for 
example, the offeror's past performance record leads DRMS to believe 
that the contractor will provide better quality disposal services. DRMS 
contracting officers review the offeror's past performance based on 
several factors including (1) how well the offeror conformed to 
specifications and to standards of good workmanship; (2) the offeror's 
adherence to contract schedules, including the administrative aspects 
of performance; (3) the offeror's history of reasonable and cooperative 
behavior and commitment to customer satisfaction; (4) the offeror's 
businesslike concern for the interests of the customer; and (5) the 
offeror's performance on the same or similar contracts in terms of 
complexities of the services provided (e.g., disposing of comparable 
quantities and similar types of waste). While considering the offeror, 
DRMS may conduct a review of the offeror's technical capacity to manage 
the waste, obtain financial reviews of the company, and have 
environmental experts conduct site visits at the offeror's 
location.[Footnote 7] DRMS may also obtain information from other 
sources, including past and present customers and their employees; 
other government agencies, including state and local agencies; consumer 
protection organizations and better business bureaus; former 
subcontractors; and others who may have useful information. 

According to DRMS officials, once selected, most of the regional 
service contractors subcontract with transporters and treatment, 
storage, and disposal facilities to dispose of the DOD hazardous waste. 
DRMS requires regional service contractors to select subcontractors 
from a list of transporters and treatment, storage, and disposal 
facilities that DRMS has approved.[Footnote 8] As of September 2007, 
DRMS listed 125 approved companies to transport waste and 152 approved 
facilities to treat, store, or dispose of hazardous waste.[Footnote 9] 
According to DRMS officials, a treatment, storage, and disposal 
facility is approved when DRMS (1) ensures that the facility is 
permitted by federal or state agencies to dispose of this kind of 
waste, (2) confirms that the facility is in compliance with 
environmental laws, (3) validates the type of waste the facility can 
receive, and (4) approves the facility's treatment methods. DRMS takes 
similar steps when considering transporters. 

After the initial approval, DRMS has additional processes to ensure the 
treatment, storage, and disposal facilities remain on the approved 
list. For example, DRMS officials conduct desk audits that include 
verifying a facility's permit and reviewing a facility's compliance 
with environmental laws. According to DRMS officials, the goal is to 
conduct a review of treatment, storage, and disposal facilities every 
year, however, the number they review each year varies based on 
available funds. DRMS prioritizes the facilities to review based on the 
volume and type of waste facilities handle and their compliance status. 
In addition, DRMS hires contractors to conduct site visits at some 
facilities on its approved list to determine if the facility is 
disposing of waste properly. Since fiscal year 2004, DRMS has typically 
visited fewer than 20 facilities on its approved list each year. Also, 
DRMS began conducting desk reviews of transporters in fiscal year 2007. 
Desk reviews for transporters include verifying a transporter's permit 
and compliance with applicable laws. 

While the use of DRMS services is the preferred method of hazardous 
waste disposal, DOD policy allows installation commanders to use other 
contractual arrangements for hazardous waste disposal if they obtain 
approval by their chain of command. According to DOD hazardous waste 
officials, installation commanders may explore obtaining other 
contractors for hazardous waste disposal if DRMS cannot meet their 
mission needs. For example, some installations may choose a local 
contractor that can dispose of the waste faster or at a lower cost than 
one of DRMS's regional contractors. However, according to hazardous 
waste officials within the military services, the majority of hazardous 
waste disposed off site generally occurs through DRMS rather than 
through other contractors obtained by installation commanders. 

Installation commanders who obtain other disposal contractors must 
ensure the contract provisions comply with the Federal Acquisition 
Regulation and federal, state, and local safety, environmental, and 
transportation regulations. DOD policy also requires the installation 
commanders to use contract award and administration practices at least 
as stringent as those of DRMS including (1) conducting extensive past 
performance and technical evaluations of the prime contractor and 
subcontractors prior to awarding the contract; (2) monitoring the 
contractor's performance; (3) conducting on-site postaward inspections 
of selected facilities and transporters to ensure compliance with 
statutory and regulatory requirements, such as RCRA; and (4) evaluating 
the contractor's performance and documenting both its current and past 
performance history in a database. 

According to hazardous waste representatives within each military 
service, installation commanders use contracting officials within each 
service to solicit and award these contracts with the assistance of 
each service's environmental experts. These hazardous waste 
representatives told us that installation officials consult the DRMS 
list of approved transporters and treatment, storage, and disposal 
facilities when selecting contractors, but they are not restricted to 
the facilities on DRMS's approved list. Because each installation 
independently implements the required contract award and administration 
practices, the DOD hazardous waste managers could not summarize the 
procedures these installations follow to implement the requirements or 
the extent to which the requirements are followed. However, officials 
told us that the services conduct reviews of their environmental 
programs to ensure compliance with environmental laws and DOD policy. 
For example, DOD requires the installation commanders to conduct annual 
self-audits and have an external party audit every 3 years.[Footnote 
10] 

Procedures for Hazardous Waste Disposed Off-Site As a Result of 
Environmental Cleanups: 

To clean up potentially contaminated sites on both active installations 
and formerly used defense sites, Congress created the Defense 
Environmental Restoration Program which requires DOD to carry out its 
cleanup program subject to and consistent with CERCLA for all cleanup 
sites in the program.[Footnote 11] Under CERCLA, the off-site transport 
and disposal of hazardous waste without treatment is the least favored 
cleanup alternative.[Footnote 12] However, in some situations, a 
cleanup may involve hazardous waste that cannot be treated or disposed 
of at the cleanup site. 

Regardless of whether the waste is treated on or off site, DOD must 
follow the same general CERCLA cleanup process. Once DOD determines 
that cleanup is necessary, it studies alternative remedies to address 
the contamination. DOD selects a preferred method for cleanup in 
coordination with EPA or state environmental regulators, and presents 
the proposed cleanup plan to the public for comment. After a review of 
public comments, DOD documents the selected remedy to address the 
contamination in a document called the Record of Decision or a decision 
document. If necessary, this document would explain if the waste must 
be treated and disposed of off site. However, the documents that are 
reviewed by regulators and the public would not typically list the 
specific name of the facility that would be treating and disposing of 
the waste. 

Once DOD selects a remedy, they begin the cleanup phase. DOD typically 
hires a contractor to prepare and implement the cleanup plan. If the 
cleanup involves the transfer of waste off site, DOD and its 
contractor's actions must be consistent with CERCLA and EPA's 
implementing regulations governing cleanups that involve off-site waste 
transfers.[Footnote 13] Under these regulations, EPA determines the 
acceptability of treatment, storage, and disposal facilities. The 
cleanup contractor generally selects the transporter and treatment, 
storage, and disposal facility that will receive hazardous waste, with 
the oversight of DOD. The cleanup contractor is required to subcontract 
disposal work only to facilities that have the appropriate permits and 
a positive compliance history. The contractor is also required to 
consult with EPA regarding the facility's compliance history and 
whether EPA has deemed the treatment, storage, or disposal facility 
acceptable for receiving hazardous waste from a CERCLA cleanup. While 
the primary CERCLA documents would not document the hazardous waste 
facilities selected by the contractor, other documents reviewed by DOD 
and regulators, such as the cleanup contractor's work plans or program 
plans, will identify the facilities receiving the hazardous waste. 
Figure 1 provides a brief description of the process that the Army's 
Rocky Mountain Arsenal followed in 1989 to select an off-site disposal 
facility owned by Encycle for disposal of waste that was subject to 
CERCLA requirements. 

Figure 1: Rocky Mountain Arsenal's Process for Selecting the Off-Site 
Disposal Facility for Hazardous Waste from Basin F: 

In February 1989, the Army and Shell Oil Company (Shell) entered into 
an agreement with EPA and other federal entities governing the cleanup 
at the Rocky Mountain Arsenal in Colorado. The Army and Shell, who both 
had manufactured chemicals at the site, agreed to initiate or continue 
a number of actions to clean the site and share certain costs of the 
cleanup under the oversight of EPA. The agreement covered actions by 
the Army and Shell to remove the liquid within and the soil underneath 
an evaporation pond known as Basin F. During its operation, from 1957 
to 1982, Basin F was used as a disposal site for various wastewaters 
and, at times, was filled to its capacity (approximately 240 million 
gallons). Approximately 11 million gallons remained in the basin at the 
time of its closure in 1988. The wastewater was contaminated with 
pesticides and metals, such as copper, arsenic, and zinc. Disposal 
activities regarding this waste were subject to the requirements under 
CERCLA. 

The Army evaluated numerous cleanup methods to treat and dispose of the 
wastewaters in Basin F. They decided, with involvement from both the 
public and EPA, to treat the wastewater by using a liquid incinerator. 
In its decision document, the Army and Shell stated that burning the 
liquid at high temperature would destroy the organic compounds in the 
liquid. After burning the liquid in the incinerator, the process would 
result in a liquid which contained dissolved salts and residual metals. 
According to Army arsenal officials, the residue was a brine material 
similar in consistency to seawater. This remaining brine material would 
require further disposal for the cleanup process to be complete. The 
decision document noted that the low hazard level residual would need 
to be spray-dried into a solid form prior to disposal off site in a 
hazardous waste landfill. 

The Army and Shell hired a contractor to implement the cleanup of Basin 
F liquids. According to officials involved with the cleanup, the 
contractor solicited open, competitive bids from companies to treat, 
recycle, and dispose of the brine material. Two companies submitted 
bids. The Arsenal's cleanup contractor selected Encycle, a facility 
located in Corpus Christi, Texas, partially because it offered a lower 
price, but also because the company offered to recycle the material 
instead of placing it in a landfill. While reviewing the bids, the 
contractor visited the company, reviewed its environmental permits, and 
ensured that Encycle was on EPA's list of approved facilities to 
receive the brine material. Encycle provided the contractor 
documentation from the Texas Water Commission (the state regulatory 
authority), which stated that the process Encycle used to process and 
smelt material could be considered as recycling under RCRA. (See 
appendix I for more details about this example.) 

Source: GAO analysis of DOD information. 

[End of figure] 

DOD Documents That Facilities Received Hazardous Waste from Its 
Installations but Relies on Regulators to Ensure That the Waste is 
Disposed of Properly: 

As required by RCRA, DOD tracks every hazardous waste shipment from DOD 
installations to the receiving hazardous waste facility using a 
universal tracking form called a "manifest" that EPA provides. RCRA 
regulations do not require DOD to oversee the physical operations of 
permitted facilities. That oversight is conducted by EPA and authorized 
state agencies that have overall responsibility for enforcing 
requirements designed to ensure these facilities dispose of hazardous 
waste properly. 

Under RCRA, DOD is required to prepare a manifest for every shipment of 
hazardous waste that is shipped off site. This paper document contains 
information on the type and quantity of waste being transported, the 
designated facility to receive the waste, and instructions for handling 
the waste. Each party in the chain of shipping, including DOD, must 
sign and keep a copy of the manifest. Once the waste reaches its 
destination, the receiving facility reviews the manifest for any 
discrepancies and returns a signed copy of the manifest to DOD 
confirming that the waste has been received. If DOD does not receive a 
copy of the manifest signed by the designated facility owner or 
operator within 45 days of the date the waste was accepted by the 
transporter, DOD must file a report with EPA.[Footnote 14] For both 
active installations and cleanups, DOD contractors generally prepare 
the manifest paperwork and review the manifests when they are returned, 
subject to DOD approval. However, DOD policy requires the installation 
commander (or his designee) to sign the manifest, and installation 
officials must review it upon return. 

While the manifest allows DOD to verify that waste has been properly 
delivered, in some instances the facility the manifest designates to 
receive the waste may not be the actual disposal site for the waste. 
RCRA regulations currently require waste generators, including DOD, to 
track the waste to the facility designated on the manifest. This 
designated facility, in some cases, decides to send the waste to anther 
permitted facility. Under current regulations, DOD would not receive 
manifests related to this subsequent waste transfer. Although not 
required by RCRA, DRMS has procedures that require its contractors to 
track the waste to the final disposal facility. DRMS requires its 
contractors to maintain a complete audit trail of the waste and submit 
the date the waste is received by the final disposal site to DRMS. When 
the services do not use DRMS to dispose of waste from active 
operations, they do not have procedures that require tracking the waste 
to the final disposal site. 

RCRA regulations do not require DOD to oversee the physical operations 
of permitted facilities. That oversight is conducted by EPA and 
authorized state agencies that have overall responsibility for 
enforcing requirements designed to ensure these facilities dispose of 
hazardous waste properly. Only for certain types of hazardous waste 
disposal contracts involving the Army Corps of Engineers, does DOD have 
procedures to help ensure that the facility disposes of hazardous waste 
properly. For cleanups the Army Corps of Engineers conducts, the agency 
has issued guidance recommending that contracting officials should 
request a certificate documenting disposal for all items that the 
facilities are asked to dispose of off site at their locations, 
including hazardous waste. The Army Corps of Engineers also recommends 
that its contracting officers withhold payment for disposal of the 
waste until they receive a copy of all manifests and the certificate of 
disposal from the facility treating and disposing of the waste. 

Although not a routine practice, DRMS and the military services may 
also obtain certificates from hazardous waste treatment, storage, and 
disposal facilities documenting disposal of hazardous waste.[Footnote 
15] DRMS structures its contracts so it has the ability to request its 
contractor to obtain a certificate of disposal if the DOD installation 
requests one. The installations must pay the contractors an additional 
fee to provide certificates of disposal. According to DRMS officials, 
they do not routinely collect certificates of disposal for all 
hazardous waste because the certificate does not eliminate any of DOD's 
liability if the facility improperly disposes of the waste. The 
officials said that DRMS tracks the waste until its receipt at the 
disposal facility, and they do not believe the certificates are worth 
the additional cost. Figure 2 describes the process that the Army's 
Rocky Mountain Arsenal followed for ensuring that an off-site disposal 
facility (Encycle) properly disposed of the Arsenal's Basin F hazardous 
waste. 

Figure 2: Process Followed by the Army's Rocky Mountain Arsenal for 
Ensuring the Treatment, Storage, and Disposal Facility Properly 
Disposed of Waste from Basin F: 

From April 1993 to November 1995, the cleanup contractor for the Rocky 
Mountain Arsenal's Basin F evaporation pond sent the liquid brine 
remains of its incineration process to Encycle in Corpus Christi, 
Texas. According to Army and contractor officials involved with the 
cleanup, the contractor treated the Basin F liquids and generally 
filled two railcars with the remains each day. The contractor sent 
shipments of railcars to Encycle on a weekly basis for approximately 2- 
ï¿½ years. Each shipment was accompanied by the required RCRA manifests. 
In addition to using the manifests, the Army also established a one- 
person office in Corpus Christi, Texas, to ensure the arrival of the 
Basin F material at Encycle. The Army official stationed in Corpus 
Christi was responsible for ensuring the railcars arrived at the 
facility. 

Once Encycle received the brine material, the company used a treatment 
process to recover the metal content from the brine. Encycle then sent 
the material it extracted from the brine to a copper smelter in El 
Paso, Texas, owned by its parent company, Asarco. Under RCRA, certain 
metal recovery activities are considered recycling and therefore the 
raw material may be regulated differently than most hazardous waste. 
According to Army and contractor officials, Encycle provided 
certificates of reclamation to the Army after processing each shipment 
received. The certificate of reclamation form included the railcar 
number, the RCRA hazardous waste manifest number, and an "on or about 
date" which listed the date Encycle processed the liquid brine for 
recycling. 

In addition to obtaining manifests and certificates of reclamation, the 
Army and Shell also paid for a neutral party to conduct oversight of 
its work treating the Basin F liquids. With funds provided by the Army 
and Shell, EPA selected a contractor to conduct independent technical 
oversight of the project. In addition to reviewing the operations at 
the Arsenal, the oversight contractor conducted site visits to Encycle 
to review the treatment process. These visits to Encycle were conducted 
prior to the receipt of the waste shipments and after the shipments 
began. During a visit in June 1993, the oversight contractor reported 
that Encycle was meeting or exceeding the requirements necessary for 
compliance with state, federal, and local permits. 

Source: GAO analysis of DOD information. 

[End of figure] 

EPA and Authorized State Agencies Are Responsible for Approving Permits 
for Hazardous Waste Facilities and Monitoring Their Performance: 

EPA and authorized state agencies are responsible for issuing permits 
required under RCRA to hazardous waste disposal facilities and 
monitoring the facilities' performance to ensure that they dispose of 
hazardous waste safely and in accordance with laws and regulations. 
RCRA requires permitted facilities to be inspected at least once every 
2 years by either EPA or the authorized state. If EPA or the authorized 
state finds a violation, they may take certain enforcement actions 
based on the nature and severity of any problems identified. 

EPA and Authorized State Agencies Are Required to Issue Permits to 
Facilities That Handle Hazardous Waste: 

Because of the potential risks hazardous waste facilities pose to human 
health and the environment, most facilities that treat, store, or 
dispose of hazardous waste must obtain an RCRA permit from EPA or an 
authorized state agency.[Footnote 16] The RCRA permit is a legally 
binding document that establishes the hazardous waste management 
activities a facility can conduct and the conditions under which a 
facility can conduct them. The permit outlines facility design, 
construction, and operation; lays out safety standards; and describes 
activities that the facility must perform to comply with the related 
regulations, such as monitoring and reporting. Although EPA or 
authorized state agencies may issue permits, according to EPA 
officials, the majority of permits are issued by the authorized state 
agencies.[Footnote 17] 

To obtain an RCRA permit, hazardous waste treatment, storage, and 
disposal facilities must submit a comprehensive permit application to 
the permitting agency. Permit applications are often lengthy. Among 
other things, the application must include the types of waste the 
facility plans to handle, the anticipated waste management processes, 
plans for analyzing waste arriving at the facility, and a plan to 
respond to emergencies caused by hazardous waste releases from the 
facility. The application must also include information demonstrating 
the owner's ability to finance environmental cleanup after the facility 
closes. 

When a permit application is received, the permitting agency reviews it 
to ensure it includes all the required information and evaluates the 
proposed design and operation of the facility to determine if it can be 
built and operated safely. If information is missing, the permitting 
agency will request the information from the applicant and review it 
once it is received. After any revisions are completed, the permitting 
agency makes a preliminary decision to issue or deny the permit. If the 
agency decides the application is complete and meets all applicable 
regulatory requirements, it will issue a draft permit stating the 
conditions under which the facility can operate if it receives a final 
permit. After providing the public with notice and an opportunity to 
comment on the draft permit, and after considering any public comments, 
the permitting agency issues or denies a final permit. 

RCRA permits are effective for a fixed term of up to 10 years but can 
be issued for less than this full term. EPA views permits as living 
documents that can be modified to allow a facility to, among other 
things, implement technological improvements, comply with new 
environmental standards, or begin managing additional types of waste. 

Monitoring and Enforcement Actions by EPA and Authorized State Agencies 
Are Intended to Ensure the Proper Handling and Disposal of Hazardous 
Waste and to Address Violations: 

Once a permit is issued to a hazardous waste treatment, storage, and 
disposal facility, EPA and the authorized state agencies monitor the 
construction and operation of a facility to ensure it complies with 
state and federal regulations and with the conditions of its permit. 
The primary tool EPA and the authorized state agencies use for 
monitoring hazardous waste treatment, storage, and disposal facilities 
are inspections. Under RCRA, facilities must be inspected at least once 
every 2 years, and federal-and state-operated facilities must be 
inspected annually. According to EPA officials, authorized state 
agencies have the primary responsibility to conduct inspections under 
RCRA for these facilities. While the authorized state agencies conduct 
the majority of inspections, EPA also conducts some inspections. EPA's 
guidance to its regions requires EPA regions to inspect at least two 
facilities in each state every year.[Footnote 18] Facilities may also 
be inspected at any time if EPA or the state has reason to suspect that 
a violation has occurred. 

Although there are many types of inspections, the compliance evaluation 
is the primary mechanism for detecting RCRA violations. These 
inspections typically encompass an on-site examination of the waste 
management areas, a review of the facility's records, and an evaluation 
of the facility's compliance with RCRA. Figure 3 describes how the 
state of Texas permitted and inspected the Encycle treatment, storage, 
and disposal facility. 

Figure 3: Encycle Hazardous Waste Permit and RCRA Inspection 
Information: 

In September 1988, the Texas Water Commission initially permitted 
Encycle to receive, store, and manage hazardous and nonhazardous 
industrial solid waste in accordance with its RCRA permit for a 10-year 
period. Encycle's 1988 permit was superseded and replaced by a revised 
permit from the Texas Water Commission in July 1992. According to Texas 
Commission on Environmental Quality officials, the revised permit was 
the result of a permit modification which authorized Encycle to 
construct and operate additional hazardous waste storage units and to 
accept additional types of waste. The revised permit required Encycle 
to notify and receive authorization from the Executive Director of the 
Texas Water Commission before accepting any additional kinds of waste 
not specifically authorized under the permit--a procedure Encycle 
followed before accepting the liquid brine hazardous waste from the 
Army's Rocky Mountain Arsenal. (See appendix I for additional 
information.) 

RCRA requires permitted hazardous waste facilities, among others, to be 
inspected at least once every 2 years by either EPA or an authorized 
state. According to Texas Commission on Environmental Quality data, 
Encycle received 17 routine on-site RCRA compliance evaluation 
inspections while the company was in operation between 1988 and 2003. 
Furthermore, the data showed that Encycle also received an additional 
20 inspections which included 4 RCRA case development inspections 
(carried out in conjunction with the legal case EPA and Texas were 
developing against Encycle and Asarco for alleged improper hazardous 
waste management and illegal recycling) and 12 record reviews. 

Source: GAO analysis of Texas Commission on Environmental Quality data. 

[End of figure] 

When noncompliance is detected, EPA or the authorized state agency may 
take an enforcement action against an individual or facility. 
Typically, the agency that uncovered the violation during an inspection 
will take the lead in pursuing the enforcement action. As a result, the 
authorized state agencies are responsible for the majority of the RCRA 
enforcement actions because they conduct the majority of RCRA 
inspections. However, EPA retains its authority to take enforcement 
actions in authorized states if needed, and EPA conducts oversight of 
the authorized state agencies' enforcement programs.[Footnote 19] 

EPA and the authorized state agencies select an enforcement action 
based on the nature and severity of the problems identified. The types 
of actions that can be used include administrative, civil judicial, or 
criminal enforcement. Administrative actions include informal actions 
where EPA or the authorized state agencies notify a facility regarding 
steps the facility needs to take to come into compliance. 
Administrative actions also include formal administrative orders that 
impose enforceable legal requirements on facilities to take specific 
corrective measures to comply with regulations. The order may also 
explain the enforcement actions that will follow if the facility fails 
to remedy the problem. In addition to administrative actions, EPA and 
the authorized state agencies can file a civil judicial action against 
violators. These lawsuits are often used in situations that present 
repeated or significant violations or when there are serious 
environmental concerns. EPA and the authorized state agencies may also 
bring criminal enforcement actions for serious violations, such as 
knowingly transporting waste without a manifest or treating, or 
storing, or disposing of waste without a permit. Attorneys from the 
Department of Justice prosecute RCRA civil and criminal cases for EPA, 
while the state attorney generals assume this role for the states. 
Results of enforcement actions include the assessment of monetary 
penalties against individuals or facilities and the suspension or 
revocation of a facility's permit.[Footnote 20] Figure 4 describes the 
civil judicial enforcement action that the Department of Justice 
initiated on behalf of EPA and Texas against Asarco and Encycle which 
led to a consent decree between EPA, Texas, and Asarco. 

Figure 4: Civil Judicial Enforcement Action and Consent Decree Between 
EPA, Texas, and Asarco: 

In April 1999, EPA and Texas filed a civil enforcement action in 
federal district court alleging that Encycle/Texas, Asarco's wholly- 
owned subsidiary in Corpus Christi, and Asarco's smelter in El Paso, 
Texas, and other Asarco locations violated RCRA by failing to properly 
manage hazardous waste and engaging in unlawful recycling practices. 
The parties simultaneously entered into a settlement, under which 
Asarco agreed to carry out certain environmental cleanup actions and 
pay specified penalties. Under the settlement, while Asarco did not 
admit to the alleged violations, it agreed to implement site-wide 
cleanup actions at the Encycle/Texas facility and to modify the 
facility's operations to bring the facility into compliance with RCRA. 
Asarco also agreed to pay $5.5 million in penalties; upgrade and 
maintain a 30-acre public conservation area in Corpus Christi, Texas; 
pay for off-site paving projects in El Paso, where particulates are a 
major problem; annually recycle 1,200 tons of shredded tires when the 
El Paso smelter is operational for the next 5 years; and implement 
auditing of its environmental management system, including verification 
by independent auditors. After a public comment period, the court 
approved the consent decree containing the terms of the settlement in 
October 1999. The consent decree was modified in 2004 to direct Asarco 
and Encycle to expedite the required cleanup activities and to prohibit 
the Encycle facility from accepting off-site waste. (See appendix II 
for more information about the enforcement action taken by EPA.) 

Source: GAO analysis of EPA information. 

[End of figure] 

In an effort to help complement the inspection and enforcement 
monitoring actions previously discussed, EPA also provides facilities 
with incentives and compliance assistance to encourage voluntary 
compliance with RCRA. For example, EPA encourages facilities to audit 
themselves and disclose instances of noncompliance. If these facilities 
make good-faith efforts to promptly correct the violations, EPA may 
reduce or waive penalties.[Footnote 21] EPA has also developed audit 
protocols to assist and encourage businesses and organizations to 
perform environmental audits and disclose violations in accordance with 
EPA's audit policy. Additionally, EPA has developed industry sector 
profiles--sometimes referred to as "sector notebooks"--to help owners 
and operators of regulated industries understand regulations that may 
apply to their operation. Sector notebooks are available on EPA's Web 
site. 

EPA and Facility Owners Provide Limited Public Information on Hazardous 
Waste Releases and Enforcement Actions Taken: 

Certain federal laws, such as CERCLA, the Emergency Planning and 
Community Right-to-Know Act, and RCRA require facilities and regulators 
to report certain information to the public regarding hazardous waste 
releases and related enforcement actions. For hazardous waste releases, 
both EPA and the facilities must report various types of information 
depending on the hazardous waste involved, the amount released, and the 
type of facility, among other things. For example, under the Emergency 
Planning and Community Right-to-Know Act, facility owners must 
immediately report the accidental release of a broad range of hazardous 
substances to local emergency responders if a release exceeds 
regulatory thresholds. Depending on the type of hazardous substance and 
the amount released, facilities may also be required under CERCLA to 
report the release to the federal National Response Center.[Footnote 
22] The National Response Center maintains reports of all hazardous 
releases and spills in a national database dating back to 1990 and 
makes information, such as the date, location, company involved, and 
type and cause of the incident, publicly available on its Web site. 

In addition, certain facilities that manufacture, process, or otherwise 
use any of 581 individual chemicals and 30 chemical categories must 
report annually to EPA and their respective state, the amount of these 
chemicals they released into air, soil, or water. These reports, 
contained in EPA's Toxic Chemical Release Inventory, contain 
information about a facility, such as the name, location, and type of 
business; an estimate of the maximum amounts of the toxic chemical 
present at the facility during the preceding year; the quantity of the 
toxic chemical entering the air, soil, and water annually; and the 
quantity of the chemical disposed of on-site or transferred off site. 
EPA is required to make this information available to the public and 
maintains a national Toxic Release Inventory database on its Web site, 
which provides summary information on facility toxic releases. 

For enforcement actions taken against the hazardous waste treatment, 
storage, and disposal facilities, EPA and authorized state agencies 
have few requirements for reporting information publicly but may 
provide some information about the violation and any penalty imposed. 
For cases involving alleged discharges of pollutants, the Department of 
Justice must generally provide public notice of and an opportunity to 
comment on proposed settlements at least 30 days before the judgment is 
entered by the court.[Footnote 23] EPA may also publicly share 
information about enforcement actions against treatment, storage, and 
disposal facilities by issuing press releases. However, there are no 
criteria for determining which enforcement actions warrant press 
releases; EPA decides whether to issue press releases on a case by case 
basis. For example, EPA, along with the Department of Justice and 
Texas, decided to issue a press release about the consent decree that 
was filed between EPA, Texas, and Asarco related to the RCRA violations 
that EPA and the state found at Encycle and Asarco (see fig. 5). 

In addition, EPA maintains a Web site that provides the environmental 
compliance history of regulated facilities. Since November 2002, EPA's 
Enforcement Compliance History Online database has provided publicly 
accessible compliance information that includes facility-specific 
reports on inspections, violations, penalties, and enforcement actions 
for the most recent 5-year period. EPA developed this initiative to 
encourage compliance with Securities Exchange Act environmental 
disclosure requirements, which require facilities to report on their 
environmental liabilities and compliance costs. 

Figure 5: Information Provided to the Public by the Department of 
Justice, EPA, and Texas in a Press Release Regarding the Enforcement 
Action Against Asarco: 

In April 1999, EPA, the Department of Justice, and Texas announced in a 
press release that the agencies had reached a settlement with Asarco 
concerning alleged RCRA violations at its Corpus Christi and El Paso 
facilities. The press release summarized the settlement agreement. The 
press release also stated that the proposed settlement would be 
published in the Federal Register for a 30-day public comment period 
and was subject to court approval. Additionally, a fact sheet outlining 
the specifics of the settlement accompanied the announcement. The press 
release did not provide details of the alleged violations against 
Asarco. 

Source: GAO analysis of EPA information. 

[End of figure] 

Agency Comments and Our Evaluation: 

We provided a draft of this report to EPA and DOD for the review and 
comment. Additionally, we provided a draft of appendixes I and II to 
Asarco for its review. EPA generally agreed with the report, as 
indicated in its letter in appendix III, and provided a number of 
technical comments, which we incorporated as appropriate. DOD and 
Asarco only provided technical comments, which again were incorporated 
as appropriate. 

We are sending copies of this report to interested congressional 
committees, as well as the Administrator of the Environmental 
Protection Agency and the Secretary of the Department of Defense. We 
also will make copies available to others upon request. In addition, 
the report will be available at no charge on the GAO Web site at 
[hyperlink, http://www.gao.gov]. 

If you have any questions about this report, please contact me at (202) 
512-3841 or [email protected]. Contact points for our Offices of 
Congressional Relations and Public Affairs may be found on the last 
page of this report. GAO staff who made major contributions to this 
report are listed in appendix IV. 

Signed by: 

Anu K. Mittal: 

Director, Natural Resources and Environment: 

[End of section] 

Appendix I: Off-Site Disposal of DOD Hazardous Waste from an 
Evaporation Pond at DOD's Rocky Mountain Arsenal: 

This appendix provides information on the treatment and off-site 
disposal through recycling of hazardous waste from an evaporation pond 
at the Department of Defense's (DOD) Rocky Mountain Arsenal. 

Background on Army's Basin F Evaporation Pond: 

The Army established the Rocky Mountain Arsenal in 1942 to manufacture 
chemical weapons, such as mustard gas. The Arsenal covers about 17,000 
acres and is located approximately 10 miles northeast of Denver, 
Colorado. After World War II, the Army began leasing part of the 
Arsenal to private industry. Shell Chemical Company leased facilities 
at the Arsenal for the production of agricultural chemicals, including 
pesticides, until 1982. 

In 1956, an evaporation pond called Basin F was created for the 
disposal of various wastewaters from the site's manufacturing process 
and wastes from demilitarization activities. During its 24 years of 
operation, Basin F was at times filled to its capacity of approximately 
240 million gallons. Approximately 11 million gallons remained in Basin 
F at the time of its closure in 1988. The wastewater was contaminated 
with pesticides and metals, such as copper, arsenic, and zinc. 

Army Agreed to Clean up Basin F Liquid: 

In 1984, the Army began a systematic investigation of contamination at 
the Arsenal in accordance with the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) of 1980. In 1986, 
the Army, Shell Oil Company (Shell), and the Environmental Protection 
Agency (EPA) signed a memorandum of understanding outlining the cleanup 
of Basin F that allowed the Army to begin cleaning the site in advance 
of a final cleanup plan. Between May 1988 and December 1988, the Army 
removed the liquid waste from Basin F for temporary storage in holding 
tanks. 

In 1989, the Army and Shell entered into a Federal Facility Agreement 
with EPA and other federal entities governing the cleanup at the Rocky 
Mountain Arsenal. The Army and Shell agreed to initiate or continue 
actions to clean the site and share certain costs of the cleanup under 
the oversight of EPA. The agreement called for thirteen interim 
response actions focused on immediate cleanup needs to remove threats 
to the environment. One of these actions required the Army and Shell to 
continue cleanup of contaminated liquids, sludge, and soil from and 
under Basin F. 

Army Selected a Cleanup Remedy and Off-Site Disposal Facility: 

The Army evaluated numerous cleanup methods to treat and dispose of the 
wastewaters in Basin F. The Army decided, with involvement from both 
the public and EPA, to treat the wastewater by using a liquid 
incinerator.[Footnote 24] In its decision document, the Army stated 
that burning the liquid at high temperature would almost completely 
destroy the organic compounds in the liquid.[Footnote 25] After burning 
the liquid in the incinerator, a liquid residue containing dissolved 
salts and residual metals would remain. According to Army arsenal 
officials, the residue was a brine material similar in consistency to 
seawater. This remaining brine material required further disposal for 
the cleanup process to be complete. The decision document noted that 
the low hazard level residual would need to be dried into a solid form 
and then disposed of off site in a hazardous waste landfill. 

The Army and Shell hired a contractor to implement the cleanup of Basin 
F liquids. According to officials involved with the cleanup, the 
contractor solicited open, competitive bids from companies to dispose 
of the brine material remaining from the incineration process. Two 
companies submitted bids. The cleanup contractor selected Encycle, a 
facility located in Corpus Christi, Texas, partially because it offered 
a lower price, but also because the company offered to recycle the 
material instead of placing it in a landfill. As part of the bid review 
process, the cleanup contractor visited Encycle, reviewed its 
environmental permits, and ensured Encycle was on EPA's list of 
facilities approved to receive hazardous material from a CERCLA site. 

Before Encycle could receive the liquid brine material from the 
Arsenal, Encycle needed to obtain approval from the Texas Water 
Commission to accept wastes other than those then allowed under 
Encycle's permit. Encycle met with the Texas Water Commission in early 
April 1993 and provided the state commission with additional clarifying 
information regarding the waste Encycle would receive from the Arsenal 
and details on how Encycle would analyze and process the waste. On 
April 20, 1993, the Texas Water Commission authorized Encycle to accept 
the brine material remaining from the incineration of the Basin F 
fluids at the Rocky Mountain Arsenal. 

Cleanup of Army's Basin F Liquid: 

At the Arsenal, the cleanup contractor began to incinerate and process 
the Basin F liquid. After each batch of liquid was processed, the 
Arsenal cleanup contractor would place the brine remains of the 
incineration process in railcars and ship the railcars to Encycle. When 
Encycle received the brine material, the company used a chemical 
precipitation and filtration process to remove the metal content from 
the brine.[Footnote 26] Encycle sent the residue it extracted from the 
brine material to a copper smelter in El Paso, Texas, which played a 
role in recovering copper from the residue. The smelter was owned by 
its parent company, ASARCO (Asarco). 

Encycle continued to receive, process, and recycle the material until 
November 1995. According to Army officials involved with the cleanup 
and the contractor, the contractor treated the Basin F liquids and 
generally filled two railcars with the remains each day. The contractor 
sent shipments of railcars to Encycle on a regular basis for 
approximately 2-ï¿½ years. According to officials involved with the 
cleanup, the Arsenal processed more than 11 million gallons of liquid 
through its incinerator and generated more than 16 million gallons of 
brine material (this included liquids from Basin F and additional 
liquids used in the incineration process) that was sent to Encycle for 
further treatment and recycling. According to Army officials, Encycle 
recovered 250,000 pounds of copper from the material it received from 
the Arsenal. 

Army Procedures to Ensure Encycle Received and Properly Disposed of 
DOD's Waste: 

In addition to selecting a permitted facility approved to receive its 
waste, the Army implemented a number of procedures to ensure that 
Encycle received and properly recycled its waste. According to Army 
officials and the cleanup contractor, Encycle provided Resource 
Conservation and Recovery Act (RCRA) manifests for each shipment it 
received. In addition, Encycle provided certificates of reclamation to 
the Army after processing each shipment. The certificate of reclamation 
form included the railcar number, the RCRA hazardous waste manifest 
number, and an "on or about date" that listed the date Encycle 
processed the liquid brine for recycling. In addition, the Army 
established a one-person office in Corpus Christi, Texas, to ensure the 
arrival of the Basin F material at Encycle. 

Finally, to assist EPA in its oversight role, the Army and Shell also 
paid for a neutral party to conduct oversight of the work relating to 
treating the Basin F liquids. With funds provided by the Army and 
Shell, EPA selected a contractor who reviewed the operations at the 
Arsenal and also conducted site visits to Encycle to review the 
treatment process. The oversight contractor conducted a visit to 
Encycle prior to the receipt of the waste shipments and conducted 
another visit once shipments began. In a letter to EPA conveying the 
results of a June 1993 visit, the oversight contractor reported that 
Encycle was meeting or exceeding the requirements necessary for 
compliance with federal, state, and local permits. 

[End of section] 

Appendix II: Recycling Activities at Encycle and Asarco's El Paso 
Smelter and EPA's Enforcement Action: 

This appendix provides information on the recycling practices of two 
facilities in Texas involved in events related to the treatment of 
hazardous waste from DOD's Rocky Mountain Arsenal. It also details 
EPA's and Texas's enforcement actions against these facilities, the 
ensuing consent decree, the status of the company's efforts to comply 
with the consent decree, and the impact of the recycling practices on 
the environment in El Paso, Texas. 

Encycle and Asarco Recycling Practices: 

Asarco, a company with smelting operations in numerous states, operated 
smelting and refining operations at its El Paso, Texas, facility for 
over 100 years.[Footnote 27] The original plant was built in 1887 along 
the Rio Grande River to process ore from the mines in Mexico and the 
American Southwest and operated until 1999.[Footnote 28] Asarco also 
operated a zinc smelter from 1942 to 1985 in Corpus Christi, Texas. In 
1988, a company named Encycle, which was a wholly-owned subsidiary of 
Asarco, began a metals recycling operation at the Corpus Christi, Texas 
site. 

Encycle was established to reclaim copper and other metals from 
hazardous waste materials. Encycle received hazardous waste from 
industrial sources nationwide. According to Asarco officials, Encycle 
would test the waste to ensure that the waste met its acceptance 
criteria, which prohibited radioactive material, explosive material, 
and dioxins. Encycle would then separate the copper-containing material 
from the waste through various processes.[Footnote 29] The end product 
was a copper concentrate that was suitable for smelting. Encycle would 
then send the material it extracted to several facilities owned by its 
parent company, Asarco, and other metal reclaiming facilities. The 
Asarco facilities used a furnace to smelt the material. After 
additional processing steps, Asarco recovered copper from the material. 
The Encycle facility operated under a permit from the state for the 
storage and processing of hazardous and nonhazardous solid wastes. 

Under RCRA, certain activities are considered recycling and, therefore, 
are regulated differently than most hazardous waste management 
activities. Encycle and Asarco asserted that the work they were 
conducting classified as recycling under RCRA. Under RCRA regulations, 
"materials are not solid wastes (and therefore not hazardous wastes) 
when they can be shown to be recycled by being used or reused as 
effective substitutes for commercial products."[Footnote 30] This 
provision is sometimes referred to as the "use / reuse exemption." 
Encycle and Asarco argued that the copper concentrates Encycle produced 
and sent to Asarco's smelters were substitutes for the virgin copper 
concentrates used at primary copper smelters. As a result, the material 
Encycle sent to its smelters would no longer be governed by RCRA 
hazardous waste requirements. Encycle requested and received 
concurrence from the Texas Water Commission, which is the state 
regulatory authority, in September 1989 that the materials it supplied 
to the Asarco smelter were "not solid waste when sent to a smelter for 
the production of refined metals."[Footnote 31] 

EPA Enforcement Action against Encycle and Asarco: 

During an EPA investigation of Asarco facilities in Montana and other 
states, EPA learned that Encycle was sending material to Asarco 
facilities to be smelted without an RCRA manifest.[Footnote 32] 
According to EPA officials, EPA decided to conduct inspections at 
Encycle to further study this issue. During 1997 and 1998, EPA and 
Texas performed RCRA compliance assurance reviews at Encycle and 
Asarco's facility in El Paso, Texas, and identified several RCRA 
violations. 

To address the violations, EPA referred the case to the Department of 
Justice for prosecutive assistance in obtaining a civil judicial 
enforcement action. In April 1999, the Department of Justice, on behalf 
of EPA and the state of Texas, filed a complaint against Encycle and 
Asarco for various environmental violations at Encycle's Corpus Christi 
facility, Asarco's El Paso smelter, and other Asarco 
locations.[Footnote 33] The complaint alleged that the activities 
conducted by Encycle were not legitimate recycling activities. More 
specifically, EPA and Texas asserted that: 

* Materials Encycle sent to the Asarco smelters were ineligible for the 
use / reuse exemption and, therefore, constituted hazardous waste. 
Although the Texas Water Commission had sent a letter to Encycle in 
1989 agreeing that it could use this exemption, the agencies contended 
that Encycle had not accurately described the processes it employed. 

* Encycle performed "sham" or illegitimate recycling because, among 
other things, the company routinely accepted wastes with "little or no 
metals values" and blended these wastes into its copper concentrates. 
The agencies argued that this was illegal treatment and disposal of 
hazardous waste since the wastes could not have contributed in any 
significant way to the production of Encycle's copper concentrates. 

* Encycle had violated RCRA by failing to manage these materials as 
hazardous waste. Encycle shipped the hazardous waste without a required 
RCRA hazardous waste manifest, and Asarco accepted the shipments of 
unmanifested hazardous waste. In addition, Asarco did not have a permit 
to store the hazardous waste and process it in its industrial furnace. 

In October 1999, a federal court approved a consent decree between 
Asarco, EPA, and Texas resolving alleged RCRA violations at Asarco's 
subsidiary Encycle and at the company's El Paso, Texas, and East 
Helena, Montana, smelters, among other facilities. Under this consent 
decree, filed in the U.S. District Court for the Southern District of 
Texas, Asarco agreed to pay a civil monetary penalty of $5.5 million 
and carry out certain environmental cleanup actions. As stated in the 
consent decree, Asarco and Encycle disputed these allegations and their 
assent to the decree did not constitute an admission of liability. 
Under the consent decree, Asarco and Encycle agreed to carry out the 
following: 

* Pay a $5.5 million civil penalty ($2 million was awarded to the state 
of Texas, as co-plaintiff). 

* Operate Encycle as authorized by a permit, the consent decree, or 
other authorization from the state.[Footnote 34] 

* Perform a metals recycling project at Encycle in which 522,000 lbs. 
of nickel, copper, chrome, or tin, having the potential to be 
carcinogenic or toxic to humans and wildlife, will be recovered 
annually for 5 years with a projected environmental benefit value of 
$6.48 million. 

* Clean up any contaminated areas at its El Paso and Corpus Christi, 
Texas, facilities. 

* Upgrade and maintain a 30-acre public conservation area in Corpus 
Christi, Texas. The conservation area will include trails, an 
environmental education area, and a site for a state of Texas air- 
monitoring station. 

* Spend at least $1.85 million to pave roads, alleys, and parking lots 
in a dust-control project in El Paso, where Asarco operates a smelter. 
Particulates such as dust are known to exacerbate respiratory problems 
like asthma and emphysema and are a significant problem in the El Paso 
air basin. 

* Recycle 1,200 tons annually of shredded tires, when the El Paso 
smelter is operational, for the next 5 years. 

* Spend up to $260,000 to restore a wetland at Asarco's Coy Mines, near 
Knoxville, Tennessee. 

* Implement auditing of its environmental management system, including 
verification by independent auditors. 

Current Status of Encycle and Asarco Activities and Consent Decree 
Progress: 

According to Asarco officials, Asarco temporarily suspended its 
smelting operations in El Paso in 1999 due to business concerns, 
including the declining price of copper.[Footnote 35] The Encycle 
facility ceased operations in 2003. Both Encycle and Asarco have since 
filed for bankruptcy. 

According to the Deputy Director for the Texas Commission on 
Environmental Quality Office of Legal Services, Asarco has completed 
about 40 percent of the remediation activities at its El Paso facility 
required under the consent decree and estimates the company will 
complete the remaining activities by 2010. The decree also required 
Asarco to establish and fund a $1.85 million 5-year supplemental 
environmental project to reduce particulate matter by paving certain 
streets in El Paso. According to the commission official, the company 
provided about $740,000 to the El Paso City Public Works Department for 
the first and second years of paving, while the third through fifth 
years of the project have not yet been funded. With regard to meeting 
the Encycle commitments under the consent decree, the commission 
official stated that the decree required Encycle to establish and fund 
a land conservation easement on wooded property adjacent to the 
facility and estimated that this supplemental environmental project was 
about 40 percent complete. The facility had been conducting remediation 
activity until it was placed under bankruptcy proceedings. A revised 
September 2007 expert report conducted on behalf of the Texas 
Commission on Environmental Quality estimated that it would cost at 
least $9.3 million to demolish the building and complete a closure and 
remedial action of the Encycle facility. 

In March 2002, Asarco applied to the Texas Commission on Environmental 
Quality to renew its air quality permit so that it could resume its 
copper smelting operations at the El Paso facility. The commission 
required Asarco to provide additional information regarding the permit 
renewal, such as emission data related to the company's copper smelter 
and its impact on the surrounding areas. As of October 2007, a final 
decision regarding the renewal has not been rendered by the Texas 
Commission on Environmental Quality. 

EPA and Texas Commission on Environmental Quality's Comments on the 
Environmental Impact of Encycle and Asarco's Recycling Activities: 

According to officials with the Texas Commission on Environmental 
Quality and EPA, the smelting of Encycle's hazardous waste at the 
Asarco facility in El Paso, Texas, did not have a harmful impact on the 
environment. According to a June 2006 interoffice memorandum from a 
regional director with the Texas Commission on Environmental Quality, 
Encycle shipped wastes to Asarco between 1989 and 1997, and, according 
to Asarco, the material shipped accounted for only about 2 percent of 
the total concentrate the company smelted during this period.[Footnote 
36] However, the regional director noted that the smelting and handling 
of the Encycle material was not done any differently from how Asarco 
processed its traditional concentrate. Additionally, the official 
stated that the fumes and particulate matter generated from smelting 
the Encycle concentrate were captured and recycled back into the 
process as is normal practice. In summary, the official stated that it 
appeared highly unlikely that smelting the Encycle concentrate would 
have resulted in any increase in emissions or abnormal occupational 
exposure at Asarco. Officials with EPA Region 6's Office of Regional 
Counsel that we spoke with also stated that they did not believe there 
would have been a significant harmful release from smelting the Encycle 
hazardous wastes at Asarco. The EPA officials also commented that if 
Asarco had obtained the proper permits and followed the applicable RCRA 
regulations, the company could have legally conducted the smelting of 
the materials it received from Encycle. 

Relationship between EPA's Enforcement Action and DOD's Hazardous Waste 
from the Rocky Mountain Arsenal: 

As discussed in appendix I, DOD's Rocky Mountain Arsenal processed more 
than 11 million gallons of liquid through its on-site incinerator to 
remove organic compounds. DOD officials estimated that 81,000 tons of 
the liquid brine remains were sent to Encycle for treatment and 
disposal between April 1993 and November 1995. EPA inspections that led 
to its enforcement actions against Encycle were conducted several years 
after Encycle had received and processed the Arsenal's waste. 

According to EPA officials involved in the investigation, EPA did not 
investigate whether the Arsenal's waste had been recycled and disposed 
of properly. However, EPA did study some of Encycle's management and 
process records and documented the metal content of some shipments 
Encycle received. These documents included information about the 
shipments received from the Arsenal. EPA included the findings from 
this work in a document sent to Asarco's attorneys during settlement 
discussions in July 1998.[Footnote 37] In this document, EPA included 
data on a number of shipments received by Encycle for processing that 
contained little or no metal content. Included in this data were 4 
shipments received from the Arsenal of approximately 300 tons of waste 
in July 1995 that was identified as leachate (runoff water that 
collects contaminates as it trickles through waste). According to Army 
officials, during the process to clean the evaporation pond, solid 
materials from the pond were collected and placed in piles. The Army 
cleanup contractor collected the water that ran off of these piles and 
added it to the liquid brine that was sent to Encycle to be treated and 
disposed. 

According to EPA officials that oversaw the Arsenal's cleanup, the 
Arsenal followed CERCLA requirements when selecting Encycle to receive 
its waste. As discussed in appendix I, the Army confirmed that Encycle 
received each shipment of waste through manifests and certificates of 
reclamation. In addition, the Army established a one-person office in 
Corpus Christi, Texas, to ensure the arrival of the Basin F material at 
Encycle. The Army official was responsible for ensuring the railcars 
arrived at the facility. While EPA found 4 shipments that may not have 
had significant metal content, the EPA officials did not believe that 
this was the case with all of the shipments received at Encycle from 
the Arsenal. The officials noted that Encycle/Asarco reported 
retrieving 250,000 pounds of copper from the Army's waste. 

During a meeting with Asarco, company officials told us that the virgin 
ore from copper mines the Asarco facilities smelted generally contains 
less than 1 percent copper. The Asarco officials said that they 
believed EPA did not take this into consideration when EPA reviewed the 
materials Encycle sent to the smelters and alleged they contained 
little or no metal content. 

[End of section] 

Appendix III: Comments from the Environmental Protection Agency: 

United States Environmental Protection Agency: 
Washington, D.C. 20460: 
[hyperlink, http://www.epa.gov]: 

Office Of Solid Waste And Emergency Response: 

Ms. Anu K. Mittal: 
Director, Natural Resources and Environment: 
Government Accountability Office: 
441 G. Street, NW: 
Washington, D.C. 20548: 

Dear Ms. Mittal: 

This letter is in response to the Government Accountability Office 
(GAO) draft report titled: "Hazardous Waste: Information on How DOD and 
Federal and State Regulators Oversee the Off-Site Disposal of Waste 
from DOD Installations (GAO-08-74, November 2007)." We appreciate the 
opportunity to review the draft report and also the effort GAO has 
taken to describe how Department of Defense (DOD) installations manage 
their hazardous wastes, and how those activities are overseen by 
federal and state regulators. 

We have reviewed the draft report and, while we generally agree with 
most of it, noting that the report did not include any recommendations, 
we do have several comments regarding areas that we believe need 
clarification. For example, one area we believe needs clarification is 
DOD's role in ensuring that hazardous waste is managed appropriately by 
a designated facility. Another area is DOD's use of the hazardous waste 
manifest in tracking waste shipments to designated facilities. We have 
provided our comments on these and other areas in the enclosure. 

Thank you for the opportunity to comment on the draft report. If you 
have any questions on our comments, please contact Michael Galbraith of 
my staff at (703) 605-0567. 

Sincerely, 

Signed by: 

Susan Parker Bodine: 

Assistant Administrator: 

Enclosure: 

[End of section] 

Appendix IV: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Anu K. Mittal, (202) 512-3841 or [email protected]: 

Staff Acknowledgments: 

In addition to the contact named above, Edward Zadjura, Assistant 
Director; Leigh White; Richard Johnson; Kirk Menard; Alison O'Neill; 
Peter Singer; and Jay Spaan, made contributions to this report. 

[End of section] 

Footnotes: 

[1] Alaska and Iowa are not currently authorized to implement RCRA. 

[2] Hazardous waste listings and descriptions of the characteristics 
appear at 40 C.F.R. Part 261. 

[3] Regulations governing the hazardous waste manifest system appear at 
40 C.F.R Part 262. 

[4] EPA officials informed GAO that the agency has never withdrawn a 
state's authorization. 

[5] DOD 4160.21-M, Defense Materiel Disposition Manual, (Washington, 
D.C., Aug. 18, 1997), sets forth DOD policy and prescribes uniform 
procedures for the disposition of DOD personal property, including 
hazardous waste. DOD instruction 4715.4, Pollution Prevention, contains 
general hazardous waste policy. 

[6] DRMS must follow Federal Acquisition Regulation and Defense Federal 
Acquisition Regulation Supplement rules in collecting past performance 
information. According to the Federal Acquisition Regulation Part 15, 
"Contracting by Negotiation," an agency can obtain best value in 
negotiated procurements by using any one or a combination of source 
selection processes. In different types of procurements, the relative 
importance of cost or price may vary. For example, in procurements 
where the requirement is not easily defined or the risk of unsuccessful 
contract performance is relatively high, technical capability and other 
factors such as past performance considerations may play a dominant 
role. 

[7] DRMS obtains financial reviews from the Defense Contract Management 
Agency, another agency within DOD. 

[8] Some large companies may have transporters and treatment, storage, 
and disposal facilities within their company. In these cases, these 
transporters and treatment, storage, and disposal facilities must be on 
the approved list also. Contractors may ask DRMS to add hazardous waste 
facilities or transporters to its list. The contractor must submit 
required information and DRMS will evaluate them. 

[9] There are 274 facilities on the approved list but only 152 
facilities are permitted for hazardous waste. 

[10] DOD instruction 4715.6, Environmental Compliance, requires the 
military services to conduct internal and external compliance self- 
assessments at installations. 

[11] When we refer to active installations, we are including Base 
Realignment and Closure properties. 

[12] 42 U.S.C. ï¿½ 9621(b). 

[13] These requirements include: (1) the off-site facility must be in 
compliance with applicable laws (e.g., RCRA and the Toxic Substance 
Control Act); (2) any off-site land disposal unit that will receive the 
CERCLA waste must not be releasing hazardous wastes; and (3) any 
releases from other units at the off-site land disposal facility are 
being controlled. 42 U.S.C. ï¿½ 9621(d)(3); 40 C.F.R. ï¿½ 300.440. 

[14] If a facility is considered a small quantity generator, the 
manifest must be received within 60 days. 

[15] In addition to obtaining certificates of disposal for hazardous 
waste when requested by the installation, DRMS routinely obtains 
certificates of disposal for polychlorinated biphenyls, commonly 
referred to as PCBs, as required by the Toxic Substance Control Act. 
DRMS also requires certificates for demilitarization-required items and 
compressed gas cylinders. 

[16] EPA regulations provide exceptions that allow some facilities to 
handle hazardous waste without obtaining an RCRA permit. Facilities 
that do not require a permit include generators that do not store 
hazardous waste for long periods of time, transporters of hazardous 
waste, and farmers disposing of certain pesticides on their own land. 

[17] EPA issues permits or portions of permits if the state agencies 
are not authorized. 

[18] According to EPA officials, this guidance is flexible as some 
states may not have any permitted facilities. 

[19] GAO examined EPA's efforts to improve oversight of states' 
enforcement programs and identified additional actions EPA could take 
to ensure more consistent state performance and oversight in GAO, 
Environmental Protection: EPA-State Enforcement Partnership Has 
Improved, but EPA's Oversight Needs Further Enhancement, GAO-07-883 
(Washington, D.C.: July 2007). 

[20] Certain types of formal administrative actions and civil judicial 
actions can contain penalties of up to $32,500 per day of 
noncompliance, while others can result in penalties up to $6,500 per 
day. For example, a formal administrative corrective action to treat 
ground water contamination could result in a penalty of $32,500 per 
day, while a formal administrative order to conduct monitoring, 
analysis, and testing could result in penalties of up to $6,500 per 
day. Additionally, RCRA identifies seven activities that can trigger 
criminal enforcement actions, with six of these carrying a penalty of 
up to $50,000 per day and up to 5 years in jail. The seventh--knowingly 
transporting, treating, storing, disposing, or exporting any hazardous 
waste in a way that another person is placed in imminent danger of 
death or seriously bodily injury--carries a possible penalty of up to 
$250,000 or 15 years in prison for an individual or a $1 million fine 
for corporate entities. EPA's RCRA Civil Penalty Policy provides 
guidance in assessing noncriminal penalty amounts for administrative 
actions and in settlements of civil judicial enforcement actions. 

[21] EPA's Final Policy on Compliance Incentives for Small Businesses 
is intended to promote environmental compliance among small businesses, 
while EPA's Incentives for Self-Policing: Discovery, Disclosure, 
Correction, and Prevention of Violations encourages regulated entities 
to adopt environmental auditing or management systems designed to 
uncover violations of environmental requirements and disclose them to 
EPA. 

[22] The National Response Center is the federal government's national 
communications center that receives all reports of releases involving 
hazardous substances and oil that trigger federal notification 
requirements under several laws, including the Clean Water Act, the 
Toxic Substance Control Act, and RCRA. The Center was established under 
the National Oil and Hazardous Substances Pollution Contingency Plan 
and is staffed 24 hours a day, 365 days per year. 

[23] 28 CFR 50.7. 

[24] The process selected was a submerged quench incineration system. 

[25] Final Decision Document for the Interim Response Action, Basin F 
Liquid Treatment, Rocky Mountain Arsenal (May 1990). 

[26] The remaining liquid from the precipitation and filtration process 
was treated and discharged from Encycle's permitted wastewater 
treatment facility. 

[27] In 1899, the smelter incorporated into the American Smelting and 
Refining Company and operated under that name until 1975 when the 
company officially became ASARCO, Incorporated. 

[28] There is disagreement among Asarco and certain parties involved 
with a Clean Air Act permit that the company is currently seeking to 
renew for this plant about whether the smelter's shutdown was temporary 
or permanent. GAO does not address this issue in this report. 

[29] Encycle would separate the copper-containing material using a 
chemical, filtering, and drying process. 

[30] 40 CFR 261.2(e)(1)(ii). 

[31] The Texas Water Commission was consolidated into the Texas Natural 
Resource Conservation Commission in 1993. 

[32] Asarco and Encycle assert that the materials shipments were not 
hazardous waste and, hence, no manifest was required. The companies 
state that they relied on the 1989 determination of the Texas Water 
Commission that the materials Encycle shipped to Asarco were not 
hazardous waste. 

[33] The complaint also included violations at Asarco's Amarillo copper 
refinery, and at Asarco's six mines and mills in eastern Tennessee. The 
parties submitted a proposed settlement to the court to resolve the 
alleged violations on the same day the complaint was filed. 

[34] The consent decree was modified in 2004 to direct Asarco and 
Encycle to expedite the required cleanup activities and to prohibit the 
Encycle facility from accepting off-site waste. 

[35] As discussed previously (see fn. 2), there is disagreement over 
whether Asarco's shutdown was temporary or permanent. 

[36] The regional director with the Texas Commission on Environmental 
Quality wrote the June 6, 2006, Interoffice Memorandum in response to 
an interview regarding the exposure of hazardous materials at Asarco. 
The regional director stated the memo was based in part on records 
filed under an EPA RCRA information request and Texas Commission on 
Environmental Quality files related to Asarco. 

[37] According to EPA, this information was not submitted as evidence 
during legal proceedings but was used during settlement negotiations. 

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