Hazardous Waste: Information on How DOD and Federal and State Regulators Oversee the Off-Site Disposal of Waste from DOD Installations' which was released on November 13, 2007. (Requested by rep. Reyes)

 

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This is the accessible text file for GAO report number GAO-08-74 

entitled 'Hazardous Waste: Information on How DOD and Federal and State 

Regulators Oversee the Off-Site Disposal of Waste from DOD 

Installations' which was released on November 13, 2007.  (Requested by rep. Reyes)

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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) 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. 

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, DOD’s preferred 

process is for installations to rely on regional contracts awarded to 

private firms by DOD’s 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 facilities’ 

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 mittala@gao.gov. 

[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- 

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 mittala@gao.gov. 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 2-½ 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 mittala@gao.gov: 

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. § 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. § 9621(d)(3); 40 C.F.R. § 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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Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]: 

E-mail: fraudnet@gao.gov: 

Automated answering system: (800) 424-5454 or (202) 512-7470: 

Congressional Relations: 

Gloria Jarmon, Managing Director, jarmong@gao.gov: 

(202) 512-4400: 

U.S. Government Accountability Office: 

441 G Street NW, Room 7125: 

Washington, DC 20548: 

Public Affairs: 

Chuck Young, Managing Director, youngc1@gao.gov: 

(202) 512-4800: 

U.S. Government Accountability Office: 

441 G Street NW, Room 7149: 

Washington, DC 20548: