~'.;(O St~)-.
~~ 'C';P. !'i~~ ~ -.~ $ ~../1 * "1~~ '-'1').01, "AO1t.~ 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 W1derthe Marine Protection, Research and Sanctuaries Act (MPRSA), rather than under both MPRSA and TSCA. Effective immt:diately, TSCA requirements ceaseto 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 10vessels 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.
EPA'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 EPA '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?

~~- 9 /: ..o~- Carol M. Bro\'m~r 7 Enclosure

R.cycled/R&CyclabIB .Printed wllh Vegetable OB B88~ In~ on 100"/. Recyclod Paper (40% Posloon~umer)~.-<f.O S1"A)'f:,
.~ -4'. UNITED STATES ENVI.RONMENTAl PROTECTION AGENCY WASHINGTON, D.C. 20460 

### f~.i \.-? T \. 

## 59'

OFFicE OF PREVENTION. PESTK::IDES AND TOXIC SuBSTANCES

SUBJECT:

FROM: 

# 4 ", ,- -, , c , , (." '" -'..,,1 ; , , ~

..-,- .. 

### J. CharlesFox Assistant AdmiDistrator

TO: The Administrator
This is to request yoUI decision regarding a coordinated approach to EPA 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

. 

### FACTUAL BACKGROUND I
The United States Navy has for many ye.a(sconducted 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-esselsbe sunk in water at least 6,000 feet deep and 50 nautical miles from land. It also requires that before sinking, nl2.terialswhich 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.ainemDtvinR them. and removin2 from the hulls other pollutants and all readily detachable Inatelial capable of creatillg deblis or contlibuting to chemical pollution.

Recycled/R.cyclabl. .Prinled wltn Vegetable 011BM9d Inks on 100% RecyC\e{3 p~ (40% Poslconsumer) 

### DECISION "MEMO~UM: ~.f,!JA REGULATION OF PCBS ON VESSELS USED FOR NAVY S~dEXERcISES SusanH. Wayland ~~ ~ Deputy Assistant Administrator for Preveh{iol1, Pesticides,andToxic SubStances (7101)

### .In 1989,Navy discoveredthat its oIdervesseIs,inchlding those scheduledfor .fuMe

SJNKEX, contained PCBs in anumber of shipboardapplications. WWle certain of the PCB. containing materials could be readily removedprior to SJNKEx, Navy concludedthat other PCB~ containing materials (e.g., certainfeh gasketsandbulkhead illsulation) could not, asa practical matter,be removed without destroyingthe usefulnessof thevesselasareaJimictarget for training purposes. Neither EPA nor Navy was awareof the presenceofPCBs on Navy target vesselsat thetime the MPRSA generalpeImit was issuedfor SINKEX. Upon receipt ofinfontlation that PCBswere present on SINKEX vessels,EPA proDJptlyinfoImed Navy that its SINKEX program wasill violation of a regulatory banunderTSCA onthe expon for disposalofPCBs in concentrations of50 parts per million or greater.1 40 CFR §761.97. Under the terms of this ban, a regulatory exemption may be issuedon a case-by-case basisto authorize particular exportsfor 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 assessthe risks associated VY1th allowing cenain PCBs to remain on SINKEX vessels. FIrst, in 1994 Navy provided EPA 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 SUIlkenvesseJwould 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 studywas completed, EPA andNavy negotiated an agreement specifying conditions under which EP A would exerciseits discretion not to enforce againsta limited number of SINKEX pendingcompletion of the sunkenvesselstudy- This agreementhad no bearingon the availability of citizen suitsagainstNavy under Section20 ofTSCA
In the Spring of 1999. Navy presented EPA "'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 materialsthat must be removed from SINKEX vesselspursuantto the existmg MPRSA general permit. The August 2, 1999, letter (copy attached)clarifiesthat -,.,iItuallyall 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

### andall oftbe non-liquidPCB-containb1g materials (solid PCBs) that canbepracticably removed,

mu& betaken off of Navy vesselsprior to SllJKEX. Solid PCBs arenot believedto be readily leachable

to the marine environment. Consideringthe twe of PCB material involved andthe lack of evidenceof unreasonablerisk to humanhealth or the environment,the Office ofWater has deteIII1iDed

that the generalMPRSA permit for SINKEX is protective of risks associated with PCBs on SINKEX vessels. The Office ofWater's letter to Navy also specifiesadditional PCB-related researchthat Navy must coDducton an expeditedtime scheduleto address the remaininguncertainties regardmgthe risk associatedVYith PCBs on SINKEX vessels. Oneof thesestudieswill test the leachingrate of solid PCBs into deepoceanwaters. The Office ofWater is preparedto revisethe Navy permit, or revoke it, in the eventthat the results offuI1her studiesdemonstratean unexpeCted

unacceptablerisk to hUmaIlheaith or the environmentfiom SINKEX. The Office ofPrevention, PesticidesandToxic Substances (OPPTS) believesthat the MPRSA permit for SINKEX (seeattachedletter) includesappropriate controls for PCBs associated

with SINKEX vessels. In reachingthis conclusion, OPPTShasconsideredNavy's uniqueneedto conduct SINKEXfor military readiness. OPPTS would not anticipate imposing more Stringentrequirementsif SINKEX continuesto alsobe regulatedunder TSCA
LEGAL CONfEXT 

## n Section 9(b} ofTSCA requiresEPA to coordinate acUons taken under TSCA with actions takenunder other Federallaws administeredby EPA The statute alsoprovides 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]. 

### Comparison ofTSCA andMPRSA Legal Standards 

### A. Under MPRSA, oceandumping (including SJNKEX) is proh1nitedunlessauthorized by an oceandumping permit. No permit maybe issuedunlessEPA deten:ujnes that the dumping 'Will not unreasonablydegradeor endangerhumanhealth,welfare, or amenities,or the marine environment, ecological systems,or economicpotentialities." l\1PRSA Section 102. EPA is to consideralong list of criteria in applyingthis standard,including the needfor the proposed dumping,the'effect of the proposed dumping on humanhealth andwelfare (including economic, estheticandrecreationalvalues), the effect of suchdumping on marine ecosystems,andthe persistenceandpermanenceof the effectsof the dumping.

3Under 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 'Cgoodfaith efforts" have been made to develop a substitute for PCBs. TSCA § 6(eX3)(B).

Public Interest Considerations. 

### B.
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 ru1esissued 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:.rethat SecrioIl 6(c) nevertheless provides useful guidance on factors that should be considered in the CUITentsituation. 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). 

### RECOMMENDA TION III
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,natedor 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

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

1 

### Risks Involved. The risksto humanhealth andthe environment associated with SINKEX includethoserelatedto thetransportation of SINKEX vesselsthrough near-shoreandoceanwaters, andthe ultimate disposalof thevesselsandassociated pollutants in deepoceanwater. Becausewe believe that :MPRSAprovides sufficient authority to addresstheserisks,the nature of the riskspresenteddoesnot suggestapublic interest in regulation of SINKEX underTSCA
2. Comp:arisonof EstimatedCostsof Complying with f\1PRSAvs. TSCA. We believethat EPA hasbroad authority under both Statutes to impose conditions or prohibit the disposalof PCBs associatedwith SINKEX as necessary

to proteCthumanhealthandthe enwomnent. Giventhesebroad authorities, EPA would likely ~ose identical or siIni1arconditions under both statutes. Therefore,considerationof compliaIlce costs under MPRSA andTSCA doesnot indicate apublic interest in regulation of SINKEX underTSCA.
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 EPA 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 EPA to regulate SINKEX under the authorities of:!'tfi>RSA, and DOtto 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

### DECISION

IV ../ [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 ceaseto apply when a Navy vessel is moved from port aspart of the official exercise during "\Vhichit 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 consideringthe aboveinfoImBtion andrecommendations, I havedecidedto continueEPA regulation of the transportation anddisposalofPCBs associated with SINKEX underTSCA

6