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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460

SEP 1 3 1999

THE ADMINISTRATOR The Honorable Richard Danzig

Secretary

Department of the Navy

Washington, DC 20350-1000

Dear Mr .Secret:rry:

This is in response to Se~retary Dalton's October 20, 1998, letter regarding extension of

the August 19, 1996, Agreement between the U.S. Environmental Protection Agency (EPA) and

the Department of Navy regarding polychlorinated biphenyls (PCBs) on vessels used in the Navy

SfNKEX program. SINK EX involves the use of obsolete. Navy vessels for target practice in

ocean waters.

Using the authority provided under Section 9(b) of the Toxics Subst~ces Control Act

(TSCA), I have detennined that PCBs on SINKEX vessels should be regulated solely W1der the

Marine Protection, Research and Sanctuaries Act (MPRSA), rather than under both MPRSA and

TSCA. Effective immt:diately, TSCA requirements cease to apply when 'aNa\)' SINK EX vessel

is moved from port as pan of the official exercise during which it is to be sunk. As a result, there

is no need to extend the August 19, 1996, EP .~aV). Agreement. Rather. NaV)" $ho1.1ld refer to

its MPRSA peffi1it, as interpreted by EPA's Office of Water, for PCB-related requirements

associated with SINKEx. Please note, however, that thjs detennination applies only 10 vessels

used in the SfNKEX program and that TSCA requirements remain in effect with respect to the

dispo"sal of PCBs removed from SINKEX vessels at any time prior to vessel sinking.

EP A's Office of Water has recently interpreted the existing General Pennit under

MPRSA to take into account the presence of PCBs on SINKEX vessels. This interpretation was

provided in a August 2, 1999, lener from EP A '5 Office of Water to Deputy Assistant Secretary of

the Navy (Environment and..Safety) Elsie Munsell (enclosed).

We are pleased to be working with the Navy on this.important project. Please feel free to

contact David Redford, Acting Chief of the Marine Po11ution Control Branch (202-260-9179). if

you or your staff have any questions regarding EPA regulation ofPCBsassociated with future

SINKEX activities.

Sincerely,

/1 ~,,;l?

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Carol M. Bro\'m~r 7

Enclosure

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OFFicE OF

PREVENTION. PESTK::IDES AND

TOXIC SuBSTANCES

SUBJECT:

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J. Charles Fox

Assistant AdmiDistrator

TO: The Administrator

This is to request yoUI decision regarding a coordinated approach to EP A regulation of

polychlorinated biphenyls ("PCBs") associated with vessels used in Navy sinking exercises in deep

ocean waters ("SINKEX"). CwTently, the transportation and disposal of such PCBs are

regulated under both the Marine Protection, Research, and Sanctuaries Act (£'MpRSA ") and the

Toxic Substances Control Act ("TSCA)'). We recomwend that you make the .findings specified in

Section 9(b) ofTSCA that would allow the transportation and disposal ofPCBs associated with

SfNKEX to be regulated solely under MPRSA .

I FACTUAL BACKGROUND

The United States Navy has for many ye.a(s conducted SINKEX in ocean waters.

SINKEX involves the use of.obsolete military vessels for target practice by military persolll.\el,

with the cunsequent sinking of the vessel. Navy views these activities as essential for traiLung

personnel and testing milital"y equipment.

In 1977, EPA issued a general permit to Navy for SINKEX under Section 102 of

!\.fi>RSA. This permit was codified at 40 C.F.R- § 229.2. The permit requires, among other

things, that v-essels be sunk in water at least 6,000 feet deep and 50 nautical miles from land. It

also requires that before sinking, nl2.terials which may degrade the marine environment be

removed to the maximum, extent practicable, including emptyiug of all fuel tanks, flushing fuel

tanks with water and ap.ain emDtvinR them. and removin2 from the hulls other pollutants and all

readily detachable Inatelial capable of creatillg deblis or contlibuting to chemical pollution.

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DECISION "MEMO~UM: ~.f,!JA REGULATION OF PCBS ON VESSELS

USED FOR NA VY S~dEXERcISES

Susan H. Wayland ~~ ~

Deputy Assistant Administrator for Preveh{iol1,

Pesticides, and Toxic SubStances (7101)
.In 1989, Navy discovered that its oIdervesseIs, inchlding those scheduled for .fuMe

SJNKEX, contained PCBs in a number of shipboard applications. WWle certain of the PCB.

containing materials could be readily removed prior to SJNKEx, Navy concluded that other PCB~

containing materials (e.g., certain feh gaskets and bulkhead illsulation) could not, as a practical

matter, be removed without destroying the usefulness of the vessel as a reaJimic target for training

purposes. Neither EPA nor Navy was aware of the presence ofPCBs on Navy target vessels at

the time the MPRSA general peImit was issued for SINKEX. Upon receipt ofinfontlation that

PCBs were present on SINKEX vessels, EPA proDJptly infoImed Navy that its SINKEX program

was ill violation of a regulatory ban under TSCA on the expon for disposal ofPCBs in

concentrations of50 parts per million or greater.1 40 CFR § 761.97. Under the terms of this ban,

a regulatory exemption may be issued on a case-by-case basis to authorize particular exports for

disposal.

'In response to concerns voiced by EPA. Navy suspended its SINKEX program in 1990.

Thereafter, Navy, 'with EPA assistance, developed a two-phase research program designed to

assess the risks associated VY1th allowing cenain PCBs to remain on SINKEX vessels. FIrst, in

1994 Navy provided EP A a risk analysis based on a literature sear~ coupled with a numerical

simulation model (the ('modeIii1g study"). The modeling study utilized estimated parameters of

PCB solubility, temperature, panitioning characterib1ics and a "conservative current regiIlle" in

the vicinity of a sunken vessel in the deep ocean to predict PCB concentrations in water and

sediment surrounding the immediate vicinity of the sunken vessel. The Navy utilized what it

believed to be a worst-case estimate of 100 pounds ofPCBs on a sunken vessel This study

indicated that water concentrations in the vicinity of the SUIlken vesseJ would remain '\..'el1 below

one part-per-trillion" and that PCB sediment concentrations would '~ose no notable threat to

benthic organisms." Second, Navy undertook to replace some of the theoretical data used in its

modeling study 'with empirical data obtained through appropriate sampling and PCB analysis of

the ocean substrate and biota in the vicinity ora sunken Navy vessel (the "SUlIken vessel Study").

After the modeling study was completed, EPA and Navy negotiated an agreement

specifying conditions under which EP A would exercise its discretion not to enforce against a

limited number of SINKEX pending completion of the sunken vessel study- This agreement had

no bearing on the availability of citizen suits against Navy under Section 20 ofTSCA

In the Spring of 1999. Navy presented EP A "'YVith the results of its sunken vessel study.

The results substantially support the results of the 1994 modeling study.

Recently. EPA's Office ofWater informed Navy by letter of those PCB-containing

materials that must be removed from SINKEX vessels pursuant to the existmg MPRSA general

permit. The August 2, 1999, letter (copy attached) clarifies that -,.,iItually all of the liquid PCBs,

1 SINKEX involves an "export" under TSCA because, under the terms of the MPRSA

permit, ships must be sunk 50 miles from shore, beyond the twelve-mile customs tenitory of the

Uriited States.

2
and all oftbe non-liquidPCB-containb1g materials (solid PCBs) that can be practicably removed,

mu& be taken off of Navy vessels prior to SllJKEX. Solid PCBs are not believed to be readily

leachable to the marine environment. Considering the twe of PCB material involved and the lack

of evidence of unreasonable risk to human health or the environment, the Office ofWater has

deteIII1iDed that the general MPRSA permit for SINKEX is protective of risks associated with

PCBs on SINKEX vessels.

The Office ofWater's letter to Navy also specifies additional PCB-related research that

Navy must coDduct on an expedited time schedule to address the remaining uncertainties

regardmg the risk associated VYith PCBs on SINKEX vessels. One of these studies will test the

leaching rate of solid PCBs into deep ocean waters. The Office ofWater is prepared to revise the

Navy permit, or revoke it, in the event that the results offuI1her studies demonstrate an

unexpeCted unacceptable risk to hUmaIl heaith or the environment fiom SINKEX.

The Office ofPrevention, Pesticides and Toxic Substances (OPPTS) believes that the

MPRSA permit for SINKEX (see attached letter) includes appropriate controls for PCBs

associated with SINKEX vessels. In reaching this conclusion, OPPTS has considered Navy's

unique need to conduct SINKEXfor military readiness. OPPTS would not anticipate imposing

more Stringent requirements if SINKEX continues to also be regulated under TSCA

n LEGAL CONfEXT

Section 9(b} ofTSCA requires EPA to coordinate acUons taken under TSCA with actions

taken under other Federal laws administered by EPA The statute also provides that:

If the Administrator detennines that a risk to health or the environment associated

Vtlith a chemical subStance or mixture could be eliminated or reduced to a sufficient

extent by actions taken under the authorities .contained in such other Federal laws,

the Administrator shall use such authorities to protect against such risk unless the

Arlm;n1strator det~mrines, in the Administrator's discretion, that it is in the public

interest to protect against such risk by actions taken under [TSCA].

A. Comparison ofTSCA and MPRSA Legal Standards

Under MPRSA, ocean dumping (including SJNKEX) is proh1nited unless authorized by an

ocean dumping permit. No permit may be issued unless EPA deten:ujnes that the dumping 'Will

not unreasonably degrade or endanger human health, welfare, or amenities, or the marine

environment, ecological systems, or economic potentialities." l\1PRSA Section 102. EPA is to

consider a long list of criteria in applying this standard, including the need for the proposed

dumping, the'effect of the proposed dumping on human health and welfare (including economic,

esthetic and recreational values), the effect of such dumping on marine ecosystems, and the

persistence and permanence of the effects of the dumping.

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Under TSCA, the export for disposal ofPCBs is banned except as specifically authorized

by EPA through a rulen13king exemption. 40 CFR § 761.97. Such an exemption must be based

on a finding that the exp~rt cmn not present m unreasonable risk of injwy to health or the

environment." TSCA § 6(eX2)(B) (for non totally-enclosed PCBs); § 6(eX3)(B) (for any PCBs

purchased after July I, 1979). In addition, if the PCBs were purchased after July 1, 1979, au

authorization-would need to include a finding that 'Cgood faith efforts" have been made to develop

a substitute for PCBs. TSCA § 6(eX3)(B).

B. Public Interest Considerations.

TSCA Section 9(b ) provides that, notwithstanding the sufficiency ofnon- TSCA

authorities to address a risk, TSCA may still be used if you determine, in your discretion, that it is

in the '~ub1ic interest" to do so. TSCA Section 6( c) specifies factors to be considered in applying

the "public interest" test with respect to ru1es issued under TSCA Section 6(a). Although this

statutory provision is not directly applicable on its own terms to actions under TSCA Section 6( e )

(involving PCBs), we belie:.re that SecrioIl 6( c) nevertheless provides useful guidance on factors

that should be considered in the CUITent situation. Section 6( c) pro"\ides for consideration of (i)

all relevant aspects of the risk, as determined by the AdminiStrator in the Administrator's

discretion, (ii) a comparison of the estimated co~s of complying with actions taken under this

chapter and under such law ( or laws), and (iii) the relative efficiency of actions under this chapter

and under such law (or laws) to protect against such risk ofmjury. TSCA § 6(c).

III RECOMMENDA TION

We recommend that you decide to utilize TSCA Section 9(b) and discontinue regulation

of the transponation and disposal ofPCBs associated \\-ith SINKEX under TSCA We have

conferred with the Office of Enforcement and Compliance Assurance on this matter, and that

office suppons ow: recommendation. The Office of General Counsel has expressed the opinion

that our recommended approach is Jegally defen.sible. In additio~ OPPTS believes that r..1PRSA

authorities are currently being exercised effectively and appropriately to protect human health and

the environment from the risks presented by PCBs associated with SINKEX vesse1s. Our analysis

of the factors specified in TSCA SectioD 9(b) is descnDed below.

A. Sufficient Authority under MPRS.A. We believe that the risks to health or the

environment posed by the transportation and disposal ofPCBs associated with

SINKEX could be elil]:lj,nated or reduced to a sufficient extent by actions taken

under MPRSA, and recommend that you make such a finding. This

recommendation is based on our review of the applicable legal standards and

authorities under the MPRSA and TSCA.

No Public Interest in Du12licative TSCA Regulation. We also believe that there is

no public interest in regulating the transportation and disposal ofPCBs associated

"With SINKEX under TSCA, and recommend that you make such a finding. Our

B

4
primary considerations in making this recolDInendation are the follo\'fing:

1 Risks Involved. The risks to human health and the environment associated

with SINKEX include those related to the transportation of SINKEX

vessels through near-shore and ocean waters, and the ultimate disposal of

the vessels and associated pollutants in deep ocean water. Because we

believe that :MPRSA provides sufficient authority to address these risks, the

nature of the risks presented does not suggest a public interest in regulation

of SINKEX under TSCA

2. Comp:arison of Estimated Costs of Complying with f\1PRSA vs. TSCA.

We believe that EPA has broad authority under both Statutes to impose

conditions or prohibit the disposal of PCBs associated with SINKEX as

necessary to proteCt human health and the enwomnent. Given these broad

authorities, EPA would likely ~ose identical or siIni1ar conditions under

both statutes. Therefore, consideration of compliaIlce costs under

MPRSA and TSCA does not indicate a public interest in regulation of

SINKEX under TSCA.

3. ReIative Efficiency of Actions Taken und~r MPRSA vs. TSCA EPA has

already issued a permit for SINKEX under :MPRSA, which has recently

been interpreted by the Offi.ce ofWater to take into account the presence

ofPCBs on SJNKEX vessels. Accordingly, no additional administrative

work is necessary at thiB time for the proper regulation of SINKEX under

MPRSA. SINKEX is not cunently authorized under TSCA Such

authorization must be granted by rulemamg, and would require 8

substantial commitment of EP A time and resources. Indeed, to the extent

that Navy vessels contain PCBs bought for purposes other than resale after

July, 1979, EPA would be required under TSCA Section 6( e ),(3) to issue

annual nllemaking "exemptions" for the PCB export ( distribution in

.commerce) associated with SJNKEX The conditions that EPA would

likely impose under TSCA do not differ from those already imposed under

MPRSA. Therefore, it is sigoificantly more efficient for EP A to regulate

SINKEX under the authorities of:!'tfi>RSA, and DOt to also regulate

SINKEX \mder TSCA.

4 Other Factors. IfEPA were to regulate SINKEX under TSCA, SINKEX

would be unla~ and subject to citizen suit, during the potentially

lengthy rulemaking authorization process. This result could unnecessarily

iwpede activity that Navy deems critical to national defense and that EPA

has deteInlined, under MPRSA., to be consistent with protection ofbuman

bealili and the environment.

5
IV DECISION

../ [Yes] After considering the above information and recommendations, I hereby

detenIrine that the risk to health or the environment attnDutable to the transportation and disposal

ofPCBs associated Vvith SINKEX could be eliwfuated or reduced to a sufficient extent byactions

taken under the authority ofMPRSA I have not identified a public interest in the regulation

under TSCA of the transportation and disposal ofPCBs associated "With SINKEX. These

dete~ations are Strictly limited to SINKEX conducted beyond the customs teJTitory of the

United States, and -within the scope ofMPRSA authority. I hereby order that as of today, the

transportation and disposal ofPCBs associated with SINKEX conducted beyond the cUstoms

territory of the United States and within the scope ofMPRSA authority not be regulated under

TSCA. TSCA requirenients shall cease to apply when a Navy vessel is moved from port as part

of the official exercise during "\Vhich it is to be sunk. TSCA requirements remain in effect when a

vessel is moved from one storage beI1h to another in anticipation offuture use as a target vessel.

In addition, TSCA requirements remain in effect with respect to the disposal ofPCBs removed

from SJNKEx vessels at any time prior to their sjnkjng.

[No] After considering the above infoImBtion and recommendations, I have decided to

continue EPA regulation of the transportation and disposal ofPCBs associated with SINKEX

under TSCA

6