GAO Report Finds Few Procedural Flaws, But Many Substantive Challenges Facing EPA Sediment Program

On October 24, 2016 the Government Accountability Office (GAO), Congress's investigative arm, released its first-ever report evaluating the effectiveness of EPA oversight of sediment remediation sites.¹

The Report assesses EPA's overall management of sediment sites and does not delve into the details of any specific site cleanup actions. The Report found that EPA generally follows its internal procedures for coordinating remedy decisions between regions and headquarters, and for consulting with its in-house technical peer review teams.² However, the Report recommended certain clarifications and improvements in EPA's procedures.³ Perhaps equally important, the Report described numerous challenges facing EPA's implementation of the sediment program, challenges that go far beyond GAO's specific procedural recommendations.⁴

Congress has become increasingly concerned over EPA's management of the sediment program over the past few years. In 2015, the Senate Interior Appropriations Committee noted that "a significant number" of large sediment remediations across the country remain uncompleted, and directed EPA to report on how it is applying its guidance on a consistent basis among sites.⁵ Earlier this year, the House Committee on Energy and Commerce convened a CERCLA oversight hearing to evaluate the effectiveness of the CERCLA program, where one witness asserted that EPA's failure to follow the appropriate guidance and regulations for sediment cleanups is, "significantly delaying remediation of impacted sites and the redevelopment of our nation's waterways."⁶

The GAO Report was requested by Senators James Inhofe and Michael Rounds, based on concerns that EPA's failure to follow its policies and guidance at sediment sites may be impacting "the timeliness, cost-effectiveness, consistency and quality of sediment site cleanups."⁷ The Senators directed GAO to evaluate, among other issues, "the extent to which EPA is following its policies, procedures, and guidance for sediment site cleanups," the effectiveness of internal peer-review advisory bodies such as the National Remedy Review Board (NRRB) and the Contaminated Sediments Technical Advisory Group (CSTAG), and the level of coordination between EPA headquarters and regions in remedy selection.⁸

The Report focused on Agency adherence to a 2002 Memorandum identifying 11 principles for managing contaminated sediment sites.⁹ GAO found that, in general, regional offices adequately document how cleanup decisions comply with the 11 risk management principles, that EPA headquarters is involved in remedy decisions, that CSTAG and NRRB are appropriately consulted, and that EPA regions respond to their recommendations.¹⁰ GAO did identify some gaps in documenting consideration of CSTAG comments, and recommended that EPA clarify the documentation needed to prepare for follow-up meetings with CSTAG.

The GAO report only evaluated the extent to which EPA follows its processes for documenting compliance with the 11 risk management principles and for coordinating with CSTAG and NRRB. GAO did not evaluate EPA's substantive compliance with the 11 risk management principles, or the merits of EPA's responses to CSTAG or NRRB recommendations. Similarly, GAO did not address EPA's compliance with the more comprehensive and detailed Contaminated Sediment Remediation Guidance for Hazardous Waste Sites (Sediment Guidance), which prescribes—among other things—controlling off-site sources, emphasizing risk reduction over mass removal, applying principles of adaptive management, and avoiding cleanup levels at or below background levels.¹¹ (It was EPA's failure to follow the Sediment Guidance that was cited as a significant weakness in the Agency's sediment program at the 2016 House Energy and Commerce Committee hearing.¹²)

While not part of a formal evaluation or recommendation, the Report also includes a broad discussion of the substantive challenges facing sediment remediation generally. For example, GAO notes that sediment sites are large, complex, and defy ready characterization or development of a clear understanding of the risks posed at these sites, leading to extended investigations and remedy selection processes. GAO cites EPA officials' acknowledgement of an "unclear relationship" between sediment contamination and fish contamination, leading to decisions on cleanup levels that may be unrelated to actual risk reduction.¹³

GAO also describes the particular challenges posed by sediment sites in urban waterways, where the remedy process must confront ongoing discharges, from public and private sources outside of the clean-up site, and which are often not considered in the remedy.¹⁴ GAO similarly describes controversy over the cost-effectiveness of remedies, and over decisions to implement extensive dredging of rivers where less costly remedies may provide comparable risk reduction.¹⁵

There are some early signs that the GAO report will not assuage Congressional concerns over the sediment program. On the same day the report was issued, Senators Inhofe and Rounds issued a statement, based on the Report, criticizing the Agency for its "sloppy" documentation, for following procedures for consulting CSTAG and NRRB that are "little more than a check the box exercise," demonstrating that agency officials "are not carefully considering how cleanup decisions should be tailored to the risks at individual sites."¹⁶

With many of the larger sediment sites still tens of years and billions of dollars from completion, the GAO report is unlikely to be the final word on this issue. The next Administration may find that it needs to take a closer look at how best to address the remediation of sediment sites in a manner that accelerates remediation and restores our nation's waterways in a timely and cost-effective manner.