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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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