DSMOA PROGRAM

[Aimee Houghton <aimeeh@igc.org>]

************ WARNING: THIS IS A VERY LONG FILE ************

The following is Sherri Wasserman-Goodman's response to Senator 
McCain's questions about the DSMOA program

Aimee Houghton
-------------------------

Question For The Record
Senate Armed Services Committee, Readiness Subcommittee
Environmental Security Programs

April 5, 1996
_______________________________________

Defense and State Memorandum of Agreement (DSMOA) Program

 Senator McCain: The National Defense Authorization Act of 
Fiscal Year 1996, Section 321, established a funding limit for state 
reimbursement under the Defense and State Memorandum of Agreement 
(DSMOA) Program and allowed for reprogramming for amounts that exceeded 
that limit. The provision was the result of a concern about 
accountability for state reimbursements.
 (a) What types of state activities are currently eligible for 
reimbursements?
 (b) At what point in the cleanup process are the reimbursable 
state activities performed? Does the program make any distinction in 
this regard?
 (c) What is the federal statutory authority for reimbursing 
activities related to installations on the National Priorities List 
(NPL), on non-NPL installations, and on RCRA corrective action sites?
 (d) In relation to DSMOA reimbursement, please describe how the 
Department of Defense has taken into consideration the following 
factors: the statutory framework for cleanup; lead agency 
identification at NPL sites; potential Anti-Deficiency Act 
implications; whether similar fees are levied state-wide within the 
public and private sector at non-NPL sites; and whether the military 
installations are paying state licensing and disposal fees at RCRA 
corrective action sites, in addition to the DSMOA reimbursement.
 (e) Consistent with devolvement, should the DSMOA management 
responsibility shift from the Army Corps of Engineers to the individual 
military departments? Please describe the perspective of the military 
departments.
 (f) Taking into account the previous questions on the DSMOA 
program, how would the military departments propose to maintain 
reasonable accountability for state reimbursements?

 Ms. Goodman: (a) In general, eleven services qualify for reimbursement
1. Technical review of documents
2. Identification and explanation of State/Territorial applicable or 
relevent and appropriate requirements (ARARs)
3. Site visits
4. Technical Review Committee (TRC) or Restoration Advisory Board (RAB) 
participation
5. Public participation and community relations
6. Cooperative Agreement preparation and administration
7. DSMOA preparation, administration and amendments
8. Technical review and comment on DOD prioritization
9. Determination of scope and applicability of agreements, e.g., 
Federal Facility Agreements, and assurance of satisfactory performance 
of interagency agreements, excluding any litigation costs against the 
U.S. Government
10. Independent quality assurance/quality control (QA/QC) samples
11. Other services (negotiated on a state-by-state basis)
I would like to include the following letters from the States of 
Alaska, California, the Commonwealth of Massachusetts, and the States 
of Texas and Washington describing the balue of the DSMOA program and 
its impact on the cleanup program at military installations in those 
states. (INSERT LETTERS FOR THE RECORD HERE)
 (b) For active installations and at closing bases. state 
reimbursable activities commence at site identification and continue 
through construction and long-term monitoring of the selected remedial 
action. For Formerly Used Defense Sites (FUDS), the state reimbursable 
activities commence after the following criteria have been met: the 
FUDS must have a completed Inventory Project Review (IPR) determining 
that the site is eligible under the Defense Environmental Restoration 
Program (DERP); no litigation by the state is in the process against 
DOD; and state certification that no supplemental funds from other 
federal sources or DOD funding have been provided. Similar to the 
active installations and closing bases, state reimbursable activities 
at FUDS continue through construction and long-term monitoring.
 10 USC 2701(d) allows the Secretary of Defense to enter into 
reimbursable agreements with federal, state, and local agencies to 
assist in carrying out DERP activities, which include "the 
identification, investigation, research and development, and cleanup of 
contamination from hazardous substances, pollutants and 
contamination." Funds are to be used to support environmental 
restoration activities at NPL or non-NPL sites under CERCLA or at 
corrective action sites under RCRA. Funds may not be used to support 
possible litigation or enforcement action, which may occur outside of 
the terms of the reimbursable agreement.
 (d) The DSMOA program was established to support State 
participation in the DERP. 10 USC 2701 (d) allows the Secretary of 
Defense to enter into agreements with state and local government 
agencies, on a reimbursement or other basis, to obtain the services of 
state agencies to assist in carrying out the Secretary's Derp 
responsibilities.
 The DSMOA program provides funds to states to support the DERP 
at both NPL and non-NPL sites under CERCLA and for RCRA corrective 
action sites. The level and type of services requested from the State 
are not linked directly to whether the State or the EPA is the lead 
regulator, but are based on the effort underway at the site and the 
complexity of the contamination problem. The DSMOA itself includes 
provisions to make it clear that reimbursement is dependent upon annual 
appropriations from Congress, and that nothing in the DSMOA shall be 
interpreted to require payments in the violation of the Anti-Deficiency 
Act. In developing the "work plan concept" used by the Corps to 
discuss those services that will be provided by the State, the level of 
effort and type of work that is planned by the Military Departments is 
reviewed with the State, and the level of State services is 
determined. The types of services and level of effort that the State 
provides within the public and private sector are some of te factors 
used to help determine the appropriate level of State support. The 
agreed level of State service is then incorporated into the Cooperative 
Agreement. Military installations are not paying state licensing and 
disposal fees at RCRA corrective action sites in addition to the DSMOA 
reimbursements.
 (e) DSMOA management responsibility should not shift away from 
the Army Corps of Engineers to the individual military departments. 
The military departments support the Corps of Engineers being the 
executive agent for the program, and the States and territories have 
the benefit of a central point of contact for DSMOA issues within the 
Department of Defense. Under devolvement, the military departments 
will continue to work with the Corps to determine the type and level 
of services needed from the States, and will need to program and budget 
for resources to support those requirements. This is already the 
practice for base closure funds.
 The Army Corps of Engineers manages and tracks DSMOA funding by 
funding source and by military department, and consolidates information 
for reporting or budgeting purposes. States and territories, in turn, 
are tracking costs by installation and estimating out-year requirements 
in accordance with guidance from the Corps. Each military department 
will be involved in the review of the quality of services provided 
States and territories. Quarterly reports are required from the States 
and territiories and are provided to the military departments and to 
the Corps. The reports describe the reimbursable technical services 
rendered for the prior quarter and provide a financial summary in 
accordance with the Office of Management and Budget Circulars.
 (f) Each military department will determine the level and type 
of services needed through negotiation with the States and then program 
and budget for the funds, review the support received from the States 
anad territories, and coordinate with the Corps regarding the status of 
funds. The Corps of Engineers will act as the funds manager and track 
and report on the status of funds for all parties.