Sunken ship petition denied
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July 20, 2012
Sunken ship petition denied

The EPA has denied a petition submitted by environmental groups seeking a rule under the Toxic Substances Control Act (TSCA) to require the removal of polychlorinated biphenyl (PCB)-contaminated equipment from vessels sunk as part of the SINKEX program of the U.S. Navy. However, the EPA says it is considering another request from the groups that the Agency change conditions of the general permit that authorize the SINKEX program.

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In 1977, the EPA provided the navy with a general permit for SINKEX under the Marine Protection, Research, and Sanctuaries Act (MPRSA). The general permit indicates that “appropriate measures” be taken to remove from vessels to the maximum extent practicable all materials that may degrade the marine environment. Subsequently, in 1999, the navy and the EPA agreed that the navy would analyze sediments, core samples, and fish tissue for PCBs in the area of one SINKEX vessel. The navy also analyzed the leach rate of PCBs from various materials likely to be present on vessels into seawater.

Reasonable removal

The EPA has stated its belief that the general permit compelled the navy to undertake certain actions regarding PCBs in SINKEX vessels, including removal of all transformers and capacitors containing 3 pounds (lb) or more of dielectric fluid and use of all reasonable efforts to remove capacitors and transformers containing less than 3 lb of dielectric fluid. The Agency also indicated that under the general permit, other equipment and containers containing liquid PCBs at concentrations equal to or greater than 50 parts per million (ppm) should be drained and flushed.

In their petition, the environmental groups asked that a TSCA rule be issued to require the navy to remove all PCB-contaminated materials in concentrations of 50 ppm or greater before sinking; require removal of materials with PCB concentrations of less than 50 ppm to the maximum extent practicable; and require studies to determine whether PCB-contaminated materials in concentrations less than 50 ppm are escaping into the marine environment of SINKEX vessels.

TSCA standard not met

In its denial, the EPA first of all states that TSCA is not an appropriate vehicle to address an action that was taken under the MPRSA. The EPA says that the petitioners present no information to demonstrate that any risks cannot be resolved under the MPRSA or that such risks must be handled under either TSCA or a combination of the MPRSA and TSCA. Also, according to the EPA, the general permit already requires the removal of materials contaminated with PCBs in concentrations less than 50 ppm to the maximum extent practicable. Furthermore, TSCA Section 4 testing requirements can be imposed only on manufacturers and processors or chemical substances. Manufacturing and processing of PCBs were, for the most part, banned by TSCA more than 30 years ago.

Regarding the request for testing, the EPA states that the petitioners have not satisfied the criteria established by TSCA Section 4 to justify such testing. “For example,” says the EPA, “the petitioners do not provide sufficient information to demonstrate that there are insufficient data or experience upon which the effects of the PCBs in question can reasonably be determined or predicted, or that the requested monitoring would be necessary to develop any such data.”

50 ppm threshold

The EPA adds that the petitioners offer no explanation of how PCBs detected in the vicinity of a sunken vessel could be correlated with PCB-contaminated materials on the ship at concentrations less than 50 ppm as opposed to materials on the ship with PCBs at concentrations greater than 50 ppm.

The EPA says it is evaluating the request to revise the MPRSA general permit and will respond shortly. “The petitioners implicitly suggest that [risks not addressed by the general permit] could be reduced to a sufficient extent under MPRSA by seeking amendment of the MPRSA general permit to impose precisely the conditions they ask EPA to impose under TSCA,” says the Agency.

EPA’s denial was published in the July 18, 2012, FR.

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