GAO Report Released: Hazardous Waste Cleanup: Observations on States' Role, Liabilities at DOD and Hardrock Mining Sites, and Litigation Issues

Recently, the Government Accountability Office (GAO) released a report, titled Hazardous Waste Cleanup: Observations on States' Role, Liabilities at DOD and Hardrock Mining Sites, and Litigation Issues GAO-13-633T (May 22, 2013). The details of the 24-page report, available here, are discussed below:

Why GAO Did This Study

According to EPA, the agency that manages the nation's principal hazardous waste cleanup program, one in four Americans lives within 3 miles of a hazardous waste site. Many such sites pose health and other risks, and their cleanup can be lengthy and expensive. EPA's Superfund program, established under [Comprehensive Environmental Response Compensation and Liability Act ] CERCLA, provides a process to address contaminated sites. Under CERCLA, parties that contributed to the contamination of a site are generally liable for cleanup and related costs. These parties may include federal agencies, such as DOD, and companies. Based on the risk a site poses, EPA may place the site on the [National Priorities List] NPL, a list that includes some of the nation's most seriously contaminated sites. As of April 2013, the NPL included about 1,300 sites, and states and federal agencies may address additional contaminated sites outside of EPA's Superfund program. GAO's prior work has identified challenges cleaning up DOD's NPL sites and abandoned mining sites and has assessed litigation related to the Superfund program.

In this testimony, GAO summarizes its work from March 2008 to April 2013 on (1) the role of states in cleaning up hazardous waste sites, (2) DOD's management of its sites on the NPL, (3) federal liabilities from contaminated hardrock mining sites, and (4) litigation under CERCLA and other statutes.

GAO is not making new recommendations but has made numerous recommendations to DOD, EPA, and Interior to better address hazardous waste sites. As described in this statement, the responses to these recommendations have varied.

DOE Audit Report Released: The Department of Energy's Use of the Environmental Management Waste Management Facility at the Oak Ridge Reservation

Recently, the U.S. Department of Energy, Office of Inspector General released an audit report titled, The Department of Energy's Use of the Environmental Management Waste Management Facility at the Oak Ridge Reservation (2013) (IG-0883). The 14-page report available here, discusses the following:

[t]he Environmental Management Waste Management Facility (EMWMF) is an above-ground waste disposal facility designed to meet the requirements of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). The Oak Ridge Office of Environmental Management (OREM) manages the Department of Energy's (Department) contract with URS | CH2M Oak Ridge, LLC (UCOR), which has operated EMWMF since August 2011. We found that OREM had not maximized its use of available capacity at EMWMF, and as a consequence, may incur more than $14 million in unnecessary disposal costs. Specifically, OREM permitted its contractors to send minimally contaminated waste to EMWMF that may have otherwise been acceptable for disposal in the sanitary landfill at a much lower cost per unit. For example, contractor officials told us that from fiscal years 2002 through 2011, they had disposed of 140,000 cubic yards of material (minimally contaminated waste plus required fill) at EMWMF that likely could have been disposed of in the sanitary landfill at a much lower cost per unit. The Department of Energy (Department) had not established site-specific surface authorized limits for determining when certain types of minimally contaminated waste could be disposed of in sanitary landfills rather than in EMWMF. In the absence of such site-specific authorized limits, certain surface­contaminated wastes have been disposed of at EMWMF that potentially could have been safely disposed at sanitary landfills. Maintaining this approach could ultimately and unnecessarily utilize 11 percent of EMWMF's waste disposal capacity. During the course of our audit, UCOR recognized the issues we discovered and implemented procedures compliant with Department and landfill permit requirements to allow more waste to be disposed in the sanitary landfill; however, we believe that additional action is necessary to improve efficiency of waste disposal operations and conserve EMWMF capacity. Environmental Management generally concurred with the report and its comments were responsive to our recommendations.

Superfund: Information on the Nature and Costs of Cleanup Activities at Three Landfills in the Gulf Coast Region -- GAO

This Report by the Government Accountability Office (GAO-11-287R), dated February 18, 2011, finds that under CERCLA, EPA established the Superfund program to address the threats that contaminated sites pose. Although EPA has paid for the cleanup of many of these sites through the Superfund program, funding for these cleanups has diminished in recent years. In 2010, we reported that EPA’s estimated costs to clean up existing contaminated sites exceed the Superfund program’s current funding levels and that some sites have not received sufficient funding for cleanup to proceed in the most cost-efficient manner. Additionally, in July 2009, we reported that EPA does not collect sufficient information on the cost of cleanup activities at Superfund sites and recommended, among other things, that EPA assess and improve the data it collects on the status and cost of cleanups.

Superfund: Information on the Nature and Costs of Cleanup Activities at Three Landfills in the Gulf Coast Region -- GAO

This Government Accountability Office report (GAO-11-287R Superfund Landfill Cleanup Costs), dated February 18, 2011, finds that one in four Americans lives within 3 miles of a contaminated site, many of which pose serious risks to human health and the environment. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) provided the federal government with authority to respond to releases or threatened releases of hazardous substances and created a trust fund to provide for certain cleanup activities.

Under CERCLA, EPA established the Superfund program to address the threats that contaminated sites pose. Although EPA has paid for the cleanup of many of these sites through the Superfund program, funding for these cleanups has diminished in recent years.

In 2010, the GAO reported that EPA’s estimated costs to clean up existing contaminated sites exceed the Superfund program’s current funding levels and that some sites have not received sufficient funding for cleanup to proceed in the most cost-efficient manner. Additionally, in July 2009, the GAO reported that EPA does not collect sufficient information on the cost of cleanup activities at Superfund sites and recommended, among other things, that EPA assess and improve the data it collects on the status and cost of cleanups.

Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Requirements.

This notice by the EPA under 40 CFR Part 320 [EPA-HQ-SFUND-2009-0265; FRL-8931-7]identifies hard rock mining as a regulatory priority. "EPA is by this notice identifying classes of facilities within the hardrock mining industry for which the Agency will first develop financial responsibility requirements under CERCLA Section 108(b). For purposes of this notice, hardrock mining facilities include those which extract, beneficiate or process metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc) and non-metallic, non-fuel minerals (e.g., asbestos, gypsum, phosphate rock, and sulfur)."

Superfund: Greater Enforcement and Reporting are Needed to Enhance Cleanup at DOD sites

This Report (GAO-09-278) from the Government Accounatbility Office dated March 2009 states that of the 985 DOD sites requiring cleanup of hazardous substances, EPA has oversight authority of the 140 on the NPL; the remaining 845 non-NPL sites are overseen by other cleanup authorities—usually the states. A review of 389 non-NPL DOD sites showed that EPA decided not to list 56 percent because it determined the condition of the sites did not satisfy the criteria for listing or because it deferred the sites to other programs, most often the Resource Conservation and Recovery Act––another federal statute that governs activities involving hazardous waste.

However, DOD does not have agreements for 11 sites, even though they are required under CERCLA. It was not until more than 10 years after these sites were placed on the NPL that EPA, in 2007, pursued enforcement action against DOD by issuing administrative orders at 4 of the 11 sites.

Revitalizing Contaminated Sites: Addressing Liability Concerns

This EPA publication (EPA Pub. No. 330-K-08-002) dated May 2008 and subtitled "The Revitalization Handbook" offers a compilation of enforcement tools, guidance, and policy documents that are available to help promote the cleanup and revitalization of contaminated sites.

"This handbook summarizes the statutory and regulatory provisions of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (CERCLA, commonly known as Superfund) and the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992 (RCRA), as well as the policy and guidance documents most useful in managing environmental cleanup liability risks associated with the revitalization of contaminated sites. It is designed for use by parties involved in the assessment, cleanup, and revitalization of sites, and provides a basic description of the tools parties can use to address liability concerns."