SIERRA CLuB 

FOUNDED 1892 

11m Puckett


Executive Director 

Network

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Lisa P. Jackson 

Administrator 

U.S. Environmental Protection Agency 

Ariel Rios Building 

1 200 Pennsylvania Avenue, N.W. 

Washington, D.C. 20460 

RE: PETITION TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT FROM RISKS ASSOCIATED 

WITH THE NAVY'S SINKING EXERCISE PROGRAM (SINKEX) 

Dear Administrator Jackson, 

Please find enclosed a petition to EPA requesting immediate action under the Marine Protection, 

Research and Sanctuaries Act and the Toxic Substances Control Act to protect human health and 

the environment from risks associated with the Navy's sinking exercise program (SINKEX). The 

Sierra Club and Basel Action Network jointly submit this petition for your consideration. We 

appreciate your prompt attention to the issues raised and we look forward to working with EPA 

on this important matter.

Ci) David A. Scott 

Vice President 

Sierra Club 

cc: Nancy Stoner 

Acting Assistant Administrator 

Office of Water 

U.S. Environmental Protection Agency 

Ariel Rios Building 

1 200 Pennsylvania Avenue, N. W. 

Washington, D.C. 20460 

Sierra Club Basel Action Network 

85 Second Street, Second Floor 206 First Avenue S., Suite 410 

San Francisco, CA 94105 Seattle, WA 98104 

P: 415.977.5500 I F: 415.977.5799 f www.sierraclub.org P: 206.652.5555 f F: 206.652.5750 I www.ban.org

U.S. NAVY OCEAN DUMPING PROGRAM 

PETITION TO EPA TO PROTECT HUMAN HEALTH AND THE ENVIRONMENT FROM 

UNREASONABLE RISKS ASSOCIATED WITH THE NAVY'S SINKING EXERCISE PROGRAM (SINKEX) 

SIERRA CLUB


AND


BASEL ACTION NETWORK 

David A. Scott 

Vice President 

Sierra Club 

85 Second Street, Second Floor 

San Francisco, CA 94105 

P: 415.977.5500 F: 415.977.5799 

www.sierraclub.org

Jim Puckett


Executive Director


Basel Action Network


206 First Avenue S., Suite 410


Seattle, WA 981 04


N 206.652.5555 I F: 206.652.5750


www.ban.org

TABLE OF CONTENTS 

PETITION TO EPA: REQUEST FOR ACTION ............................................................................... 1

EXECUTIVESUMMARY ................................................................................................................ 2

BACKGROUND...............................................................................................................................4 

I. EPA ADMINISTRATOR AUTHORIZED GENERAL PERMIT FOR SINKEX........ 

A. SINKEX Is Subject To MPRSA General Permit But Exempt From TSCA ..4 

II. THE MARINE DISPOSAL OF PCBS VIA SINKEX POSES SIGNIFICANT RISKS 

TO HUMAN HEALTH AND THE MARINE ENVIRONME NT.............................. 5

A. PCBs Are A Highly Toxic And Pervasive Pollutant ..................................... 

B. PCBs From Sunk Vessels Leach Into The Marine Environment ................. 8

C. PCBs May Be Transported From The Deep Ocean To Shallow Marine 

Ecosystems ................................................................................................. 11

D. Past Navy Studies Finding No Risk From PCBs On SINKEX Vessels 

Have Been Discredited Or Conclusively Contradicted .............................. 14

III. FEDERAL AND INTERNATIONAL LAW STRICTLY REGULATE THE 

DISPOSAL OF PCBS IN THE MARINE ENVIRONMENT ...................................17 

A. Federal Law Requires EPA To Protect Human Health And The Marine 

Environment From PCB Contamination ................................................... 17

B. International Law Governing Ocean Dumping ......................................... 19

IV. EPA IS VIOLATING FEDERAL AND INTERNATIONAL LAW BY ALLOWING 

THE MARINE DISPOSAL OF PCBS VIA SINKEX ............................................... 22

A. The SINICEX General Permit Fails To Protect Human Health And The 

Marine Environment And Is Inconsistent With The MPRSA Criteria..... . 22 

B. TSCA Waiver For SINKEX Is Not Warranted .......................................... 25

C. SINKEX Remediation Standards Are Unlawful And Do Not Meet 

Requirements Of International Law.......................................................... 26

ACTIONS NEEDED TO CORRECT EPA'S LEGAL VIOLATIONS ............................................... 28

SOURCES ........................................................................................................................................ I

APPENDIX ...................................................................................................................................... I
PETITION TO EPA: REQUEST FOR ACTION 

The Base! Action Network and Sierra Club petition the U.S. Environmental Protection Agency 

(EPA) to take immediate action to protect human health and the marine environment from 

polychlorinated biphenyls (PCBs) that leach from ships sunk through the Navy's sinking exercise 

(SINKEX) program as required by the Marine Protection, Research and Sanctuaries Act (MPRSA)1 

and the Toxic Substances Control Act (TScA). 2 Specifically, pursuant to the petition provisions of the 

Administrative Procedure Acts and TScA, the Basel Action Network and Sierra Club request that EPA: 

1. Amend the MPRSA general permit for SINKEX to comply with the MPRSA 

by reflecting the latest scientific knowledge about the amount of PCBs 

disposed through the SINKEX program and about leaching of PCBs from 

sunken ships. At a minimum, the permit should be amended to require: 

a. Materials containing PCBs to be removed to the "maximum extent 

practicable" with the best . urrent techniques; and 

h. Remethation prior to sinking to the London Convention's "trace 

contaminant" requi.r"ment. 

Or in the alternative: 

2. Revoke the current TSCAwaiverfor SINKEX and enact ru]es under TSCA 

governing the marine disposal of ships containing PCEs that require: 

a. 1't'Iaterials containing PCB must be removed to the "maximum 

extent practicable" with the best current techniques; and 

b. Remediation prior to sinking to the London Convention's "trace 

contaminant" requirement. 

'33 U.S.C. § 1401-1445. 

2 15 u.s.c. § 2620(a). 

5 U.S.C. § 553(e).
EXECUTIVE SUMMARY 

The Navy's SINKEX prograni allows the Navy to fire on inactive naval warships to practice 

gunnery and torpedo accnracyywhile also disposing of unwanted ships at sea: From 1970-1999 

SINKEX accounted for only 8%Iof:all Navy vessel disposals, but from 2b00-2008 it accounted for 70% 

of all disposals. Ocean disposal . of obsolete vessels via SINKEX is deemed a cost-effective disposal 

strategy by the Federal government and is permittedby a series of exemptions fromexisting 

environmental laws. EPA acknowledges that these vesselsare sunkMhile still containingtoxic 

materials within their composition, including asbestos, polychlorinated biphenyls (PCBs), iron, lead 

paint and antifoulrng paint, yet EPA allows exemptions4br SINKEX to Various ocean dumping laws 

that would normally forbid the ocean disposal of such contaminants These exemptions are contrary 

to the requirements of the MPRSA and TSCA aild igndr obligàtidh thide& international law. 

The negative health and environmental iMpacts of Pefis arwelF-kñown. PCBs are persistent 

bioaccumulative chemicals that have demonstrated carcinogenic and non-carcinogeniceffects on 

animals andhuman health: PCBs'arendA-flathmbls and cheiiically stable, so after they are released 

ii 

into the envirohtheñt they pèrsistThr mati'yeaY:4büctOtl1heirtongevitasaffi&lecule, and their 

- -I tuI ''' i. 

capacitytdbeattractedtofattykissueafid'aeètflnit1att!iflthetMrii1efoOdehthn, PCBs are perhaps the 

; 

greatest concern of all shipboard contaminants. PCBs bind to sediments, bioaccumulate in fish and 

other animals, and biomagnify in the food chain, creating hazards at all levels. 

New information has demonstrated that PCBs released at the level allowed by the SINKEX 

program pose substantial and unreasonable risks to human health and the marine environment. 

First, a number of ships have been sunk in U.S. waters for the purpose of reef-building. Recently 

released data on fish tissue levels of PCBs at one of these sites compared to a reference reef of concrete 

indicate that the reefed ship is likely a source of substantial PCB pollution in fish. This data also 

indicates that the amount of PCB5 on sunken vessels likely exceeds by a very large amount the amount 

assumed at the time the current exemptions for SINKEX were granted. Second, the models upon 

US. EPA. PCRs: Cancer Dose-Response Assessment and Application to Environmental Mixtures (1996). EPA/600/P96/00! F, 1996. available at http://ctpuh.epa.gov/ncea/CFM/recordisp!ayefm?dcid12486
which existing estimates of PCB leaching from SINKEX ships are based are overly simplified and do 

not include complex features of the ecological system, including water density layering, localized 

currents, upwellings and sedimentation. All of these features can be and are affected by the presence 

of a large sunken ship which may in fact dominate the local hydrography. Considering the latest data, 

the current state of knowledge concerning the persistent toxic effects of PCBs, and the available 

information about ecosystem functions, the SINKEX program is not currently operating in a manner 

that adequately protects the marine environment and human health. The existing MPRSA permit, 

and the TSCA waiver that is based on it, are inadequate and contrary to law.5 

Accordingly ; BAN and Sierra Club hereby petitions EPA to amend the existing MPRSA permit 

to require removal of all materials containing PCBs to the maximum extent practicable and to require 

remediation to the London Convention's trace contaminant requirement. In the alternative, BAN and 

Sierra Club petitions EPA to revoke the existing TS.A waiver for the SINKEX program and enact rules 

governing the marine disposal of PCBs via the SINKEX program that likewise requires removal of all 

materials containing PCBs to the maximum extent practicable and remediation to the London 

Convention's trace contaminant requirement. Because the protections BAN and Sierra Club are 

requesting are required under both the MPRSA 2nd TScA, if EPA grants this petition and amends the 

MPRSA permit to be sufficiently protective of human health and the marine environment, then EPA 

should determine whether a continued exemption under TSA based on the amended MPRSA pLnit 

is apprcpriate. 

This petition is submitted pursuant to both the APA and TSCA: the request that EPA amend 

the MPRSA permit is submitted pursuant to the APA; 6 the request that EPA revoke the TSA waiver 

and enact rules governing the marine disposal of PCBs is submitted pursuant to the citizen's petition 

provision of TSA.7 Under the TSG& citizen's petition provision, EPA must grant or deny this petition 

Dr. Peter deFur, Environmentat Stewardship Concepts, LLC (See Appendk) 

65 U.S.C. § 553(e). 

is U.S.C. § 2620(a).
within 90 days. 8 In order to meet this requirement of TSCA, EPA should take steps to act on and 

amend the existing MPRSA permit within the timeframe proscribed by TScA. If EPA fails to act in a 

timely manner under TSCA, BAN and Sierra Club may seek review of the existing TSCA waiver 

because it is based on the currently inadequate MPRSA -permit. I 

BACKGROUND 

I. EPA ADMINISTRATOR AUTHORIZED GENERAL PERMIT FOR SINKEX 

A. SINKEX Is. Subject To MPRSA General Permit But Exem pt-From TSA 

In 1977, the EPA issued a general permit for SINKEX under sectiOn 102 of the Marine 

Protection, Research and Sanctuaries Act (MPRSA) hatremained in effect for approximatelyItwelve 

years.9. In 1989, the Navy limited the SINKEX program when PCBs were discovered in various 

shipboard components because PCB disposal was a.violation of-the -Toxic Substances Control Act 

(TSCA). The Navy worked with the EPA-to devel0p.a t%yo1phase.research program to-assess therisks 

associated with the ocean .dispoaJ of PCBs thçclOgb- the .SINKEX program -and to seek an ekemption 

from TSCA. These studies were-conducted by the-Nzivy rather than an -independent third party. In 

March 1994, the Navy began an• ecological assessment based solely on aviailable literature-on PCB . - 

solubility, temperature,and partitioning cbarat!teristics, to thodel-the risks associated with PCB 

leachingand concluded thattthere was "no hatablethreat-tabenthic organisnis"° resulting fiom 

sinking naval vessels at sea (hereinafterthe Modeling.Study);. -. ..- . - ' . 

Based on the results of this study, the Navy and EPA negotiated an agreement in 1996 in which 

the EPA would use its discretion not to enfotee TSeA against SINKEX fOr a limited numbr.of 

SINKEX vessels. Meanwhile, the Navy was required to conduct the Sunken Vessel Study to -, 

substantiate -the findings of the 1994 Modeling-Sthd' with empirical data, again paid thr by the agency 

seeking exemption. - -- .. -. -;. . - - 

In the Spring of 1999 the Navy presented the Sunken Vessel Study to the EPA suggesting there 

was a 'lack of evidence of unreasonable risk to human health or the environment" from SINKEX. 

14 § 2620(b). 

"Ibis permit is codified at 40 ('FR 229.2. 

tO Decision Memorandum - EPA Regulation of PCBs on Vessels Used for Navy Sinking Exercises, September 7, 1999
This study assessed the impacts of a single SINKEX vessel, the Ex-AGERHOLM, 16 years after the 

vessel's 1982 sinking. It is unclear how representative the Ex-AGERHOLM is of other SINKEX vessel 

candidates, nor is clear how leaching occurred in the initial 16 years following sinking. The ExAGERHOLM remains the only SINKEX vessel studied, the conclusions of which relied on sediment 

samples taken at three intervals and a PCII leachability laboratory study based on these sediment 

samples. The scope of this study was limited and did not provide sufficient information to make firm 

conclusions about PCB uptake into the marine food chain as fish sampling was not part of this study. 

In September 1999, under pressure from the Navy, the EPA Administrator reinstated the 

SINKEX program under a general permit authorized under MPRSA and determined that PCBs on 

SINKEX vessels should be regulated solely under the MPRSA, rather than both TSA and MPRSA. 

This determination was made under the authority of section 9(b) of TScA, which provides that if the 

Administrator determines that a risk to health or the environment associated with a chemical 

substance or mixture could be eliminated or redued to a sufficient extent by actions taken under the 

authorities contained in other federal laws, the Administrator shall use those authorities to protect 

against such risk unless he deterntnes it is in the public interest to take action under TSCA. Under 

this authority, the actions taken by the Administrator inchided the full exemption of SINKEX from 

TS(A, under the assumption that SINKEX could adequately be regulated solely under MPRSA. Thus, 

EPA concluded: "W€ believe there is no public irt-n'st in regulating the transport ation and disposal 

of P011s associated with SINKEX tinder TSCA..." SINKEX activities resumed in 1999 under the 

MPRSA general permit, with a full exemption from TSCA, and continues to operate in this fashion to 

this day. 

II. THE MARINE DISPOSAL OF PCBS VIA SINKEX POSES SIGNIFICANT RISKS TO HUMAN 

HEALTH AND THE MARINE ENVIRONMENT 

A. PCBs Are A Highly Toxic And Pervasive Pollutant 

PCBs (polychlorinated biphenyls) are mixtures of synthetic organic chemicals that are highly 

toxic and dangerous to human health: in a 1996 report, prepared at the direction of Congress, the U.S. 

"Official letter from Carol Browner, EPA Administrator, to Richard Danzig. Secretary of the Navy, September 13, 1999.
Environmental Protection Agency (EPA) found that PCBs cause cancer in animals and are probable 

carcinogens for humans. Other known significant ' ecological and human health effects of PCBs 

include neurotoxicity, reproduétive and develdpmental toxicity immune system suppression, liver 

damage, skin irritation, and endocrine disruption22:PCB5 are non-flammable and chemically stable, 

so after they are released into the environment they persist for manyyears. t3 The manufacture of 

PCBs has been banned in the United States due to their highly toxic effects andpersistence in the 

environment once released. PCBs are also a persistent organic pollutant (POP) targeted for global 

phase-out and action under the Stockholm ConventiOn.M 

Due to their longevity as a molecule, and their captty to be attracted to fatty tissue and 

accumulate in the marine food chain, PCBs are perhaps the griatest concern of all shipboard 

contaminants. PCBs bind to sediments, bioaccuniulatein fish and other animals, and biomagPi' in 

the food chain, creating hazards at all levels)$iAsa fresult; peOple ivho ingest, fish may be exposed to 

dangerous levels of PCBs.'' In fact,'due to the ts,dn's accumulation properties, manyscientists believe 

there is no safe level of exposure to PCBst'7 ruf):	- r .	

. 

Higher trophic level (higher in the foodehaip) organisms such as*isb4eating birds,! 

omnivorous birds, and-marine mammals-are exposed'to PCBsviatheir consumption of prey. 

Genei'ally,. the typièai PCB levels increasby'afactdtof w ! tO'ioo-fO1d vhen ascending major 

consumption levelsin a foodchain (Gobas'et al.199g): Spethtically, Wasserman etal. (a979)reported 

that for marine food webs, 2ooplankton range frOm < 0.003 g/g tol pg/g, whereas top consumèt 

such as seals and fish, had! ranges of PCB'frotñ O03 to 212 t/g.' Therefore, if PCBs are abundant in 

12 

jj EPA. PCBs: Cancer Dos-Respons Assessment and-Application to environmental Mixtures (1996). EPvt/600/P 

%/OOIF, 1996, available at http://cfpuh.epa.gov/nceaICFM/recordispy.cfm?deidI2486.

Id. 

4 Annex A, Stockholm Convention on Persistent Organic Pollutants. 

http://yosemite.epa.govfRIOIlRIBAL.NSF/af6d457l t3e2bl698825650fD07t I 80a1]e4127736563fc3a882571dh00661h151S 

tILE/9 I 0-F-99-00 I PCBS.pd I	I	 , , 

'° National Guidance: Best Management Practices for Preparing Vessels Intended to Create Artificial Reels, May 2006, Pg. 

35. 

' 7 http:/!yosemite.epa.gov/rl0/o'oem.nsf/S8faI 1a231885et3882565000062d635/a9578719c73ad1de882569ed00782e89?OPC 

nDocurnent#reduce
lower trophic levels, they will be amplified through the food chain to levels that can adversely affect 

higher trophic level organisms.'8 

The EPA has characterized PCBs as "mutation-causing, cancer-causing, and teratogenic 

[meaning they can interfere with normal embryonic developmentJ."'9 The EPA notes "PCBs have been 

shown to cause cancer in animals and have also been shown to cause a number of serious noncancer health effects...including effects on the immune system, reproductive system, nervous system, 

endocrine system, and other health effects. Studies in humans provide supportive evidence for 

potential carcinogenic and non-carcinogenic effects of PGB5.'*20 

The Agency for Toxic Substances and Disease Registry2l states that women who ate large 

amounts of fish contaminated with PCBs had babies that weighed slightly less than babies from 

women who did not have these exposures. Babies born to women who ate PCB contaminated fish also 

showed abnormal responses in tests of infant behavior. Other studies suggest that children's immune 

system was affected, most likely through exposure to PCBs in breast milk. Transfer of PCBs across the 

placenta has also been reported. 

PCPs also have significant adverse effects on wildhfe: 1 the EPA has noted that effects on avian 

species include "morbidity, tremors, upward pointing beaks, muscular incoordination, and 

hemorrhagic areas in the liver, "as well as "delayed reproduction and chromosomal aberrations in 

Ringed Turtle-doves; courtship and nestbuilcling behavioral impairments in Mourning Doves; 

reduced hatchability in chicken eggs; and decline in sperm concentration in American Kestrels."2 

Effects on aquatic organisms include "growth reduction in algae and brook trout; reduced egg 

survival and reduced fertilization success in flounder, minnows, sea urchins (prior to fertilization, 

eggs were more resistant to PCBs at insemination and afterwards); and complete reproductive 

failure in brook trout. Cancer-causing effects and biochemical pertu rbations were observed in trout 

8 Dr. Peter deFur, Environmental Stewardship Concepts. LLC (See Appendix) 

' http://www.epa.gov/RiSuper/ecologymtml/toxprofljes.htm#pcbs

20 National Guidance: Best Management Practices for Preparing Vessels Intended to Create Artificial Reefs, May 2006, Pg. 

35. 

21 http://www.atsdr.cdc.gov!hac/phalpha.asp?docicj=l I 59&pg=2 

22 http:II	

w.epa.gov/R5Super/ecology/html/toxprofjles.htm#pehs
liver cells and marine fishes; with anemia, hyperglycemia, and altered cholesterol metabolism in 

brown troutfed diets with 10 PPM PCBS."23 PCBs have been implicated in: reduced primary 

productivity in phytoplankton, reduced hatchability of contaminated fish and bird eggs, reproductive 

failure in seals, reproductive impairment in fish, and reduced fertilization efficiency in sea urchins.24 

B. PCBs From Sunk Vessels Leach Into The Marine Environment 

Recent studies demonstrate that PCBs onsunken vesselsleach into the marine environment at 

levels that pose a significant risk to human health and the marifle environment. The EX-ORISKANY 

was sunk off the coast of Florida in 2006 under a risk-based disposal permit from the EPA. All liquid 

PCBs were removed from the vessel prior to sinkihg; thereforealtdocumented PCB leaching is from 

solid PCBs. Environmental remediation left inta&mibtimated 722 pounds of solid PCBs found in 

approximately 362,240 pounds of electric cable'in guIatiOn 31,7tO pounds of fiberglass bulkhead 

insulation and 284,044 pounds of contaminátCd paint-all left-onboardfor sinldng.25 Some material, 

such as the electric cable insulation, sampled áIhiglVs 19,00b ppmMTh an average of 1,500 ppm.26 

The Navy claimed that the estimated 68o,000 pounds of PCB cmtaminated material, existing 

in hundreds of compartments at various eve!Sbel6W thtnain dEk, was not accessible unless the 

vessel was fully dismantled. Rather than dismanthuIaiid recycling the vesel at an approved domestic 

facility, the Navy identified remediation of these PUBs as cot-prohibitive and sought St exemption 

from the Toxic Substances Control Act (TSCA) vi &Skad diposal perMit from EPA.'Thë Ndvy 

developed the Prospective Risk Assessment Model (PRAM) arid conducteda study at acost Of t$374 

million to illustrate a limited risk to human health alid th Environment fmm theOcean diposal of 

PCBs during the sinking of the vessel. The EPA grnted the PCB risk-based disposal permit thereby 

allowing the EX-ORISKANY to be sunk with PCB oftboaEd 

23 lit (citing U.S. EPA. 1980. Ambient water quality criteria for polychiorinated hiphenyls. EPA. 440/5-80.068). 

24 Adams, iA. and S. Slaughter-Williams. 1988; Brouwer. A.,ct a! 1989; Clark, RB. 1992.;den Beston. et al 1991. 

' Pape, UT. 2004. Polychlorinated hiphenyls (PCB) source term estimates for Ex-ORISKANY (CVA-34). Rev. 4 (Dcc. 7, 

2004; as summarized by Jon Dodril! and Robert Turpin: H 

ORlSKANYReelPartllInitialSampIingEft'ort.pdf 

Id.
The PCB remediation requirements for the EX-ORISKANY under the risk-based disposal 

permit were similar in scope to PCB remediation requirements for SINKEX vessels. The SINKEX 

general permit issued under 40 CFR 229 states "The Navy may leave in place wire cables,felt gaskets 

and other felt materials that are bonded in bo Ited flanges or mounted under heavy equipment, 

paints, adhesives, rubber mounts and gaskets and other objects in which the Navy has found 

PCBs..."

Prior to the sinking of the EX-ORISKANY, the Navy and EPA modeled the PCB leach rates and 

identified an acceptable level they deemed safe for fish uptake and human consumption. To test their 

modeling assumptions, the EPA rcqured a post sinking monitoring program conducted by the Florida 

Fish and Wildlife Conservation Commission (1W'IC); According to data from the post-sinking 

monitoring program, PCB concentrations in fish caught at the EX-ORISKANY site are now more than 

twice that of the EPA's pre-sinking forecasted levels. 33% of all fish sampled post-sinking in the 

vicinity of the EX-ORTSKANY had P03 concentrations above 20 parts per billion (ppb), the EPA 

screening leveL27 21% of all fish sampled post-sinking had PCB concentrations above 50 ppb, the 

Florida Department of Health fish advisory Total PCB concentrations in fish samples 

increased 1,446% on average from pre-sinking to 1ostsi11king.29 

Table i: EX-ORISKANY 

Site Fish PCB 

Sampling: Pre-sinldng 

vs. Post-sinking 

Concentrations 2006-

2009 

*Gag and king mackerel - species 

a aeEaples_______

I I 

'17

q 

j7 

Red Snapper Mean PCB 

Concentration 

Total Samples

2.36 ppb 

62

_____ 

54ppb 

i8o 

Total Mean P03 Concentration 

Total Fish Above 20 ppb 

(EPA Screening Level)

3.8 ppb 

2

5875 ppb 

Go 

Total Fish Above 50 ppb I (Florida DoH Fish Advisory 

[mceshold

_____________ 

1* 

_______________

_________ 

38 

________________

:7 Dr. Peter deFur, Environmental Stewardship Concepts, LLC (See Appendix) 

2 Id. 

29 Id.
Source: Table developed by ciuthor using data provided by Florida Fish and Wildljfe Conservation 

Commission Post-Sinking Monitoring Study 2006-2009 

There were also two ampling events in 2008 on a control reef (see Table 2). The control reef is 

a concrete bridge rubble reef that is 8 miles from the EX-ORISKANY site. The control reef samples 

were taken on the same days asthe EX-ORISKANY samples in 2008: PCB concentrations in fish! 

caught at the EX-ORISKANY site in 2008 were more than 932%, on average, higher than PCB 

concentrations in fih caught at the control reef.3°

!

! 

Table : Fish PCB 

Sampling: EXORISKANY Site vs. 

Control Reef Site 2008 

Red Snapper SdthpIe ! , TI 45 ! '66 

Red Snapper Mean PCB 

ConcentratOnJ ! ), 6ppb 

Total SathØ1e&5lJ ,: It I r ' 6F

! 

•'

55.22 ppb 

6r 

Total Mçan PB Concentration, 

Total Fish Above go ppb 

(EPA

7.89 ppb 

5 •

81.44 ppb 

16 

TQtal Fish Ahove 50 ppb • 

(F1dda'DishAdi6t \ 

Tbreshpld) ___________

1 12 

___________

Source: Table developed by author usini ddtd jikothded by Florwa Fish and Wildljfe ConserUation 

Commission Post-Sinking Monitoring Study 

In contrast to thSe actual results from t1iF1Orida study, the FiiaVRepctt E-OqSth 

Artificial Reef Project RcologicatThsk Assessmflt çnducted by the Nztiy (PEO, 2006) Wfate?that the 

no effect threshold for total PCB was exceeded only indolphins, cormdMnts, and herrthg gulls The 

study suggested PCB exposure lesels posed no risks to plants, inertebrates, fishes, sea turtles, and 

sharks/barracudas that could live, feed, and forage ott the reef: Further, the study concluded that due 

to the conservative estimates used in the analysis, it Ei very unlikely that potential risks were under 

estimated." However, the Florida study found PCBs in the tissues of organisms associated with the 

reef and in the diet of reef consumers at levels more than twice that of the conservative estimates 

Dr. Peter deFur, Environmental Stewardship Concepts. LLC (See Appendix) 
predicted by the Navy and EPA. These levels pose elevated risks to human health and the 

environment, a clear miscalculation by the Navy and EPA's pre-sinking assessments. 

In fact, the Florida Department of Health (FDOH) considered issuing a fish consumption 

advisory for snapper caught at the EX-ORISKANY site prior to the June 1,2010 opening of snapper 

fishing season. However, a fish consumption advisory was not released by FDOH because a Federal 

fishing closure was released in May as a result of the Deepwater Horizon Oil spill. Fishing was 

prohibited under Federal closure which encompassed the EX-ORISKANY site; therefore a PCB fish 

advisory was not deemed necessary. The facts leading FDOH to consider issuing a fish advisory 

(including elevated PCB concentrations above FDOH thresholds) indicate a serious risk to human 

health and the marine environment from PCB exrosure. 

In sum, the data from the EX-ORISKANY Post-Sinking Monitoring Program demonstrate that 

solid PCBs on sunken vessels do leach into the marine environment at levels that pose a significant 

risk to human health and the marine environment. 

C. PCBs May Be Transported From The DespQan To Shallow Marine Ecosystems 

The Navy has long argued that PCB releases in the deep ocean from SINKEX vessels (6,000 

feet or greater) do not pose adverse risks to marine he at that depth. The Navy has also suggested that 

the deep benthic environment has minimal chance of physical or biological transport to the shallow 

marthe ecosystem, However, the EPA acknowledges the physicochemical properties of PCBs, 

including low solubility in water, very high bioconcentration factor, and very low degradation rates, 

which determine their behavior in the environmenU' And because PCBs are very hydrophobic (readily 

come out of solution), persistent and highly lipophilic (partition into lipids and organic carbon) they 

readily adsorb onto particles and thus readily build up in the food chain (bio- and geoaccumulation),32 

These known characteristics suggest there are at least three scientifically acknowledged modes of 

' Mackay, D., WY. Shiu, and K.C. Ma, 1992. Illustrated handbook ofphysica!-cheniical properties and environmental fate 

for organic chemicals, Vol. I, Monoaromatic Hydrocarbons, Chlorohenzens, and PCE3s. Lewis Publishers, Boca Raton, FL, 

697pp. 

32 Froescheis. Oliver, Ralf Looser, Oregor M. Cailliet, WalterM. Jarman and Karlheinz Ballschmiter, 2000, [he deep sea 

as a flnal global sink ofsemivoIaik persistent organic pollutants? Part I: PCBs in surface and deep-sea dwelling fish ot'the 

North and South Atlantic and the Monterey Bay Canyon (California), Chemosphere, Volume 40. Issue 6, March 2000. 

Pages 651-660.
material transport from the deep ocean to shallow waters: Biographic Transport; lipwelling; and 

Meridional Circulation Overturning. The EPA itself recognizes that persistent organic pollutants 

(POPs) such as PCBs,- "circulate globally via the atmosphere, oceans, and other pathways, POPs 

released in one part of the-world can travel -to regions far from their soiute of origin Therefore, they 

are chemicals of-both local and global concern. "3 -	-	- - -	-	- - 

- - -	

-F - -Biographic Transport -

- - - - - - - -; 

Marine life that has taken up PCBs in deep water at the dksposal site -can transport PCB - 

material-via migration and predatory consumptiob o the shallow marine ecosysteni, which cab - - - 

continueup the food chainto humans. SunkehStNKE)cvesels typically restin thebathylpelagiezone 

(1,000-4,000 meters). Biographically speaking rgan1sn from each zone-have contact with 

organisms from the zoneabove and below, allOvsinMit-food thhsfér and PCB uptake through-the 

water column. "undoubtedly; there isconsidntbk trltlphic -[feeding} interactidn cxmonçj these larger 

epipelagic fishes [ albacore, blue shark, swordfish, etfl kiUzdtheir meo and bdth!jpelaàic 

counterparts during diel[daily]- uerticdl rnigrd&flJi-4' - - - Hj	-- - - - - 

Additionally, an assemblage of vertkallt nu-ratitg mathie-otganiss Called the Deep 

Scattering Layer (DSL), trave1fionithd deC13 deeM tdiheThhàllóv afni'ght td fed Where trophic 

interacti6n odcIfrs ss DSLshae been recbrdedtta1reepthtd 3,000 metets 6

 ------ -; - -- -- - 

The ocea* food webis mt rcohnectCd hVilmtS acting a quaternâiy [fourthtla1er] - U - 

consuth€rs (Consuming terfiar' consumers). PGfrsäbilIty to aci uniulate4n-the environment äII in - - 

organini means that orgänismsat higher trOihi'c levets'(higher in the fOod chain, uCh asthunians, 

are athfhéi risk of toxic concentratiobs of PCBs thdn -marine-organisms themselvea a7 -Marine 

mamñialS such as whales and- dolphins are also at -higher rik - - 

Thc conceptual model used by the Navy-and MARAD to evaluate the human health and 

' hitp://wwwepa.gov/oppt/trihal/pubsirrihalNeWSletlCrl o12.pdi	-	- 

' Monterey Bay National Marine Sanctuary Sik Charactcrization - Biological Communitics and Assemblages - Pelagic 

Zone http:f/niontereyhay.noaa.gov/sitechar/pelagic5.html

'lB1p.	-	 -	-	-	- -	 - 

' OpdaI. AF., Godo, OR., Bergstad, O.A., Fiksen,.0, 2007. Distribution, identity, and-possible processes sustaining mesor 

and h-athvpelagic scattering layers on the northern Mid-Atlantic Ridge	- -	- -	 -: 

' Banithouse. Glaser. Young, 2003
ecological risks of sunken warships suggests the deep sea community does not interact with the 

shallow marine ecosystem, and as such, they failed to recognize the realities of the ocean food web. In 

fact, PCB material can he transported great distances from the initial sink site via physical and 

biological means. PCBs and other hazardous materials left on SINKEX vessels are in no way contained 

to the dumping site. 

2. Upwelling 

The physical marine transport process called upwelling routinely moves materials from deep 

water to surface water. 8 Upwelling can occur in coastal regions as well as the open ocean, 39 and can be 

wind or tide-induced. Both types of upwelling do not typically occur in isolation, but rather coexist.° 

Open ocean winds cause surface waters to diverge from a region (causing upwelling) or to 

converge toward some region (causing downwelling).4' These movements are essential to stirring the 

ocean, delivering oxygen to depth, distributing heat, and bringing nutrients to the surface.42 

Upwelling is a vital ecological process that delivers nutrients from the benthic zone (sea floor); 

however, this same process is also capable of delivering PCBs from sunken naval vessels to shallow 

waters.

Coastal upwelling occurs when wind blows parallel to the coast, deflecting surface water away 

from the coastline (Elcman Transport) as influenced by the Coriolis effect (Earth's rotation). Surface 

water is pushed offshore and is replaced by cool, nutrient-rich water from the deep ocean.43 This 

process is also capable of delivering PCBs from sunken naval vessels to shallow waters, yet upwelling 

has not been assessed by the Navy as a material transport risk. 

Tomczak, M.,1998. Shelf and Coastal Oceanography. 

http:J/www.es.11inders.edu.au/ .mauom/Shclfcoasj/notes/chapteroo html 

http://oceanmotion.orgThtmlibackground/upwell ing-and-downwelling.htni 

° Tomczak, M.,3998. Shelf and Coastal Occanography. 

http]/www.es.flinders.edu.aukmattom/shcltcoast!notesichaptero6.html

' http://oceanmotion.org/htmI/backgroiindmupwetling.anddownelljng hEm 

42 Tazmanian Aquaculture and Fisheries Institute http://www.redmap.org.au/resources/impact-of.cliniate-cfiange.on.the . 

marine-environnicnt/upwelling-and-downweljjng 

ht1p://oceanmotion.org/htrnl/background/upwelling.and.dovnvelljnghtm
3. Meridional Circulation Overturning 

Deep ocean currents and water circulation produces dynamic uplift capable of delivering 

sediments, with which PCBs adhere, to surface waters On a global scale. Traditionally, this is known as 

Meridional Circulation Overturning, in which currents driven by wind, thermohaline [salinity and 

temperature interactive] circulation, and atmospheric conditions transport deep water to shallow 

water.*i Similar to upwelling, this naturally occurring ocean circulation has not been assessed by the 

Navy as a potential PCB transport mechanism from sunken.navaFvesse1 

D. Past Navy Studies Finding No Risk From PCBs On SINKEX Vessels Have Been 

Discredited Or Conclusively Contradicted 

Dr. Peter deFur, an independent environmental scientist with expertise in ecological risk 

assessment, conducted thorough review of the studies the Navy relied on to support their no 

unreasonable risk conclusions from PCBs on sunken naval vessels. He found critical faults and 

limitations in the Navy's conclusions, including a reliance on base assumptions that are outdated and 

........................................... do not take into consideration the current scientific understanding of PCBs in the marine 

environment. Dr. deFur suggests that PCBs, once introduced to a system, continuously cycle through, 

become bioavailable, and bioaccumulate up the food chain. The only remedy is to limit or prevent 

V . ..	. 

their introduction to the marine environment. His general comments and conclusions are summarized 

in this section, while his direct comments are included in the Appendix of this document. 

•.•lY•.	

.tfl,!.(ir1, 

The studies conducted on the Ex-ORISKANY prior to sinking analyzed the risks associated 

:u•. .t	. with sinking in shallow water ecosystems via artificial reefing; these studies are the most recent and 

1 

thorough pre-sinking assessments of any sunken naval vessel. Further, the Ex-ORISKANY is the only 

sunken naval vessel in which there exists both pre-sinking assessments as well as reliable post-sinking 

fish data to measure the accuracy of the pre-sinking conclusions. Dr. deFur suggests the basic 

processes behind leaching of toxic chemicals and subsequent movement into the food web, with 

harmful consequences to the environment and human health, are not affected by sink depth such that 

less protective measures can be afforded vessels sunk in deeper waters through SINKEX. For this 

http://earthohservatory.nasa.gov/Newsroom/view.php?id=24!24
reason, the Ex-ORISKANY serves as a critical example of PCB leach rates in real marine environments 

(not modeled) from sunken naval vessels, regardless of sink depth. Dr. deFur concludes that the 

release of PCBs from ships such as the Ex-ORISKANY causes an unacceptable risk to human health 

and the marine environment. Further, he concludes that based on the recent data for PCB levels in 

fish tissue at the Ex-ORISKANY reef site and a control reef, general permitting under MPRSA for 

SINKEX underestimates the impact of PCBs found in solid materials left on-board a vessel for sinking. 

As described earlier in this document, the Ex-AGERHOLM remains the only SINKEX vessel 

studied by the Navy and EPA via the Sunken Vessel Study, the conclusions of which relied on 

sediment samples taken at three intervals and a PCB leachability laboratory study based on these 

sediment samples. Dr. deFur suggests the Sunken Vessel Study does not provide adequate data for 

building a sediment-based hydrological model for ships sunk under SINKEX or in other waters that 

are in fundamentally different hydrological and oceanographic regions. Yet this sediment data, 

coming from a single vessel site 16 years after sinking is the data the Navy relied on for leach rate 

studies on the Ex-ORISKANY, which has since been proven incorrect; as well this sediment data was 

the primary scientific support for SINKEX permitting. 

While the post-sinking Ex-ORISKANY findings clear!y suggest the EX-AGERI-IOLM sediment 

data and modeling studies have serious faults, new evidence suggests sediment data is not even an 

accurate measure for PCB impacts on the marine food chain, In the PC'B Strategy for the 

commonwealth of Virginia created by the Virginia Department of Environmental Quality (2005), a 

subgroup was formed to develop screening levels and cleanup levels for PCBs in soils and sediments. 

The purpose of the screening levels is to help prioritize PCB contaminated sites, but the subgroup 

cautioned against relying solely on the soil and sediment screening levels alone: 

"... the subgroup recognized that the risk-based screening levels would likely be too low to be an 

effective prioritization tool. The risk-based app roaches confirmed that very low levels of PCBs (1.8 to 

49 ppb) in sediments could result in elevated fish tissue concentrations" (VA DEQ, 2005)
This approach is counter to the Navy's reliance on the Sunken Vessel Study sediment data, on 

which they based their modeling; Further, the subgroup notes that in many cases, the small sample 

size may account for the lack of elevated sediment data The hittingor missing of PCBs during 

sediment collection is a reality in the sediment risk-based approach; 

AthO; because PCBs bioaccumulate as well as biomagnifyüp the food chain, high PCB levels in 

marine sediments are not necessary for the presence of higherPCB ievel in fish. The data collected in 

the Virginia Department of EnvironmentalQuality Fish Tissue and Sediment Monitoring program 

show that there is often no direct correlation between sediment ievds and fish tissue levels. The 

subgroup also concludes that local conditions maybe such that the low levels of PCBs that do octhr in 

the sediments are bioavailable (VA DE, 2005 j: i	

7 

In sum, there is fundamentally no scientific bais for Setthig 5rotectN'e standards or processes 

of determining protective levels of PCBs on the basis 'Of prograh deign,incluMng water depth for a 

ship sinking. PCB (arid other toxic chemlcal)rcndcationneedsto be based on leaching,toxicology, 

persistence and accumulation and other scientific matters, no Matter thepurposeof the sinking: 

There is little to no difference in PCB bioavailabiltvythetweeñ deeti sea and shallow Waters because the 

same chemical, physical and biological mechanismpèràte in1 all caEes.ln bcth cases, corrosion and 

breakdown of the vessel will occur over time;making all of the PCBcontainingsolid materials 

biologically avâilablethroiigh water and sedithetit uptake. t. :' 

The factors that form the basis for deterthiniAg the risks of PCBs havedeveloped subtantially 

in recent years, providing data on toxicity, persIstehcC; and bioaccumulation that was simply hot 

available 30years ago when many PCB standai'ds\vétèfirst established in the U.S. Because the 

breakdown processes and bioavailability of PCBsaresimilar whether a vessel is sunk in shallow or 

deep ocean waters, studies used to regulate PCBs on vessels used for artificial reefs apply to setting 

standards for regulating PCBs on vessels used in the SINKEX program. All of the above evidence 

shows that the current SINKEX pernit standards are inadequate and thould be revised. 

' Dr. Peter deFur. Environmental Ste'•ardship Concepts, tiC (See Appendix)
III. FEDERAL AND INTERNATIONAL LAW STRICTLY REGULATE THE DISPOSAL OF PCBS 

IN THE MARINE ENVIRONMENT 

A. Federal Law Requires EPA To Protect Human Health And The Marine Environment 

From PCB Contamination. 

1. Federal Law Governing Ocean Dumping 

The MPRSA was passed in 1972 to curtail the practice of ocean dumping, particularly the ocean 

dumping of highly toxic substances.4 6 Accordingly, the MPRSA generally prohibits all ocean dumping 

unless authorized by permit issued pursuant to the Act. The EPA Administrator may issue a permit 

for ocean dumping if she finds that the proposed dumping "will not unreasonably degrade or 

endanger" human health or the marine environment. 48 Additionally, the MPRSA provides that the 

Administrator shall review permits periodically and may revoke them if she finds that the dumping is 

no longer consistent with the criteria she must consider in approving permits initially.4 

The MPRSA provides specific criteria thaL the Administrator shall consider in determining 

whether to issue a permit for ocean dumping, including: 

(A) The need for the proposed dumping. 

(B) The effect of such dumping on human health and welfare, including economic, 

esthetic, and recreational values. 

(C) The effect of such dumping on fisheries resources, plankton, fish, shellfish, wildlife, 

shore lines and beaches. 

(D) The effect of such dumping on marine ecosystems, particularly with respect to 

(i) the transfer, concentration, and dispersionof such material and its byproducts 

through biological, physical, and chemical processes. 

(ii) potential changes in marine ecosystem diversity, productivity, and stability, and 

(iii) species and community population dynamics. 

(E) The persistence and permanence of the effects of the dumping. 

(F) The effect of dumping particular volumes and concentrations of such materials. 

1401: S. Rep. 92-45! (Nov. 12, 991). 

°$ 1411, 

1412(a). 

4933 U.S.C. § 14 14(d): see also 40 C.F.R. § 223.2 to 223.5 (procedure tbr limiting or revoking permits).
(G) Appropriate locations and methods of disposal or recycling, including land-based 

alternatives and the probable impact of requiring use of such alternate locations or 

methods upon considerations affecting the public interest. 

(H) The effect on alternate uses of oceans, such as scientific study, fishing, and other 

living resource exploitation, and non-living resource exploitation.5° 

The regulations implementing the MPRSA further elaborate on the criteria the Administrator 

will consider in determining whether to grant a permit for ocean dumping.51 Specifically, the 

regulations provide that "known carcinogens, mutagens, or teratogens or materials suspected to be 

carcinogens, mutagens, or teratogens by responsible scientific opinion" will not be approved for 

ocean dumping unless they are only present as "trace" contaminants, defined as "such forms and 

amounts (of the pollutants] that the dumping... will not cause sign jficant undesirable effects, 

including the possibility of danger associated wit/i their bioaccumulation in marine organisms."52 

2. Federal Law Governing Toxic Substances 

TSCA authorizes the U.S. Environmental Protection Agency (EPA) to regulate chemical 

substances that pose an unreasonable risk of injury to health or the environment. Unlike most 

chemical substances, which the Administrator must list before regulating, the Act itself singles out 

................................. 

PCBs for regulation. The PCB provision, section 6(e) of the Act, codtairts strict requirements 

intended to phase out entirely the manufacture and use Of PCBsin theTJrnited States. First, it contains 

broad prohibitions on the manufacture, processing, commercial distribution, and use of PCB5. 

Section 6(e) also requires the Administrator to issue rules requiring PCBs to be marked with "clear 

and adequate warnings."55 

Finally, the PCB provision of TSCA requires the Administrator to issue rules prescribing

methods for the disposal of PCB5. 56 Accordingly; EPA has ena&ed extensive rules governing domestic 

° 1412. 

' 40 C.F.R. Pt. 227. 

' 40 C.F.R. § 227.6(a).(h). 

c3 IS U.S.C. § 2605(a). 

Id. § 2605(e), 

IS U.S.C. § 2605(e)( I 

IS U.S.C. § 2605(e)( 1 )(A).
disposal of PCBs.57 Additionally, EPA has banned the eicport for disposal of PCBs in concentrations 

greater than 5oppm without an exemption.8 

As discussed above, TSCA contains a waiver provision allowing EPA to waive TSCA's 

applicability when another federal law adequately protects against the risks posed by a toxic 

substance.59 TSCA also contains a specific citizen petition provision; under this provision, EPA must 

respond to all petitions for rulemaking, such as this one, within 90 days, and EPA's denial of such a 

petition is afforded particularly searching judicial review.6° 

B. International Law Governin g Ocean Dumping 

1. London Convention 

The United States is a party to the International Convention on the Prevention of Marine 

Pollution by Dumping of Wastes and Other Matter (also known as the London Convention), which 

imposes restrictions on the deliberate ocean disposal of waste material. The Convention aims "... to 

prevent the pollution of the sea by the dumping of waste and other matter that is liable to create 

hazards to human health, to harm living resources and marine ljfe, to damage amenities or to 

interfere with other legitimate uses of the sea (Article I). 

The act of sinking vesseLs at sea for the purpose of disposal is considered ocean dumping 

under the provisions of the Convention: "Dumping has been defined as the deliberate disposal at sea 

of wastes or other matter from vessels, aircraft, platforms or other man-made structures, as well as 

the deliberate disposal of these vessels or platforms themselves." 6' The Convention offers an 

exception to this definition when "placement of matter serves an alternative pur pose other than 

mere disposal thereof provided that such placement is not contrary to the aims of this Convention" 

(Article III (O(b)(ii)). 

"40 C.F.R. § 761.50. 

Id. § 761.97; see also Id. § 761.20(c)(3) (authorizing distribution in commerce lhr the purposes of export for disposal if 

conducted in accordance c.ith the disposal rules). 

15 U.S.C. § 260g. 

6O Id. § 2620(b), 

°' http://www.imo.org/Conventions/contents.asp?topicjd25g&docidogI
In other words, the act of sinking vessels at sea for the purpose of disposal is not considered 

ocean dumping if the sunken vessel serves an alternative purpose and provided that alternative 

purpose does not create a hazard to human health, living resources and/or marine life, damages 

amenities or interferes with other legitimate uses of the sea. 

The 1996 London Protocol which the U.S. has not ratified but has signed (showing agreement 

and intent to ratify) acts as an amendment to the London Convention and goes further in its aim to 

eliminate ocean dumping. It allows an exception for vessels to be dumped only if contaminants have 

been "removed to the maximum extent." Furthef, the London Protocol calls on Parties to make 

decisions on such exceptions to be decided based on the Precautionary Principle and the principle 

against transferring harm from one part of the envirnrnent to another. 62 

2. Stockholm ConventiOn 

The Stockholm Convention on Persistent Or ik- Pollufluits' is a global treaty created to 

protect human health and the environment frOm pCiisitent srganic pollutants (POPs). More than 100 

countries negotiated this treaty in2001, withIihe U:Spht'ing i leadiiigrole in pushing for 

international action to ban or severely restrictthe produttion;\ue,isale and/or release of these 

chemicals. 6 3 The U.S. has not S-yet ratified the COxtVention, butthis is expected during the Obama

Administration. , - :'•''' . j2. 

Of thtwelve chemicals initially named in the ohvedtion,ine chemicals are listed in Annex 

A with the intent for global elimination, ef which PCBs are hame& 64 The Con'vention is une4thtdal in 

its mandate that Annex A chemicals, such as PUBs; tmust be destroyed-or itrevérsibly transforMed so 

that they no longer exhibit the characteristics ofPOP:-- 

Article 6(d) of the Convention provides that each Party must: 

"Take appropriate measures so that such wastes, including products and articles upon becoming 

wastes, are: 

http://www.austHi.edu.au/au/other/dfat/treaties/2OO6/I I html


'" http://vww.epa.gov/opptJtrihal/pubsIFrihalNewsletterI o12.pdf 

t4 Annex A. Stockholm Convention on Persistent Organic Pollutants.
(ii) Disposed of in such a way that the persistent organic pollutant content is destroyed or 

irreversibly transformed so that they do not exhibit the characteristics of persistent organic 

pollutants or otherwise disposed of in an environmentally sound manner when destruction or 

irreversible transformation does not represent the environmentally preferable option or the 

persistent organic pollutant content is low, taking into account international niles, standards, and 

guidelines, including those that may be developed pursuant to paragraph 2, and relevant global and 

regional regimes governing the management of hazardous wastes." 

The Base! Convention was tasked with developing guidelines on PCB disposal, and in 

particular, selling low POP content levels to work cooperative!y with the Stockholm Convention. The 

guidelines identify PCB concentrations of 50 ppm to be detrimental and should therefore require the 

destruction or irreversible transformation prior to dsposal. 65 However, the U.S. SINKEX program 

allows the dumping of vessels containing PCBs in concentrations above that Stockholm Convention 

disposal level.

3. convention on the Organizaton for Economic Go-operation and Development 

(OECD) 

On December 14, 1960, 20 nations adopted the Convention on the Organization for Economic 

Co-operation and Development (OECD) to promote a global market economy. Today, the OECD is 

composed of 31 of the most developed nations in the world; the U.S. being one of the original 

members. 

In order to achieve its goals, the OECD can promulgate decisions that are generally binding on 

its members.66 OECD Decision C(87)2/Final focuses specifically on the disposal of PCBs and 

recommends that member countries, as far as practicable, ensure that disposal of PCB containing 

waste is carried out in a manner that avoids the release of PCBs into the environment.° The U.S. fails 

to respect this recommendation in good faith by permitting the ocean disposal of PCBs that remain in 

naval vessels during and after sinking. 

' http:/Jwww.baselint!puh/tecliguid/tg-dioxfuran.pdi 

Article V, Convention on the Organization for Economic Cooperation and Development. 

Article 111(2). Decision C(87)2/Final.
IV. EPA IS VIOLATING FEDERAL AND INTERNATIONAL LAW BY ALLOWING THE MARINE 

DISPOSAL OF PCBS VIA SINKEX. 

A. The SINKEX General Permit Fails To Protect Human Health And The Marine 

Environment And Is inconsistent With The MPRSA Criteria 

EPA has issued a MPRSA general permit authorizing SINKEX dumpingby the Navy. 68 The 

general permitrequires the Navy, prior to sinking, to "remove to the maximum extent practicable all 

materials Which may degrade the marine environment. "6 A letter ofagreement between EPA and 

the Navy in 1999 details how this requirement applies specifically to PCBs, namely what specific steps 

are considered "practicable' with regards to removal af PCBs in various locations on vessels. While 

some major PCB items must be removed - e.g., transformers and capacitors - other.items, such as 

bonded felt gaskets and bulkhead insulation,'areleftrinlplace:- :' - 

when (PcBJ objects cannot be pi'acticabli removed or their removal 'threatens thestructural integrity of the vessels so as to impede the SINKEX, the Navy may leave 

such items in place (e.g,felt materials thatarc bondS in bolted flanges ormounted 

under heavy equipment. certain paints and adhesives). Objects may be considered not 

capable ofpracticable removal if equipment must be disassembled or removed for 

access to the objects, jf the objects must be removed by heat, chemical stripping, 

scraping, abrasive blasting orsintilarprOcethtor (fremovatwould ertdangerhuman 

safety or health even when conducted with protective equipment and reasonable 

safety measures. 7°

;.74.'..• 

While the permit requires appropriate measures be taken "to remove to the maximum extent 

practicable all materials which may degrade the marine enviromnent,"the Navy interprets this to 

mean that vessel remediation is conducted in a manner that includes "the removal of all PCB 

transformers and large capacitors, all small capacitors to the greatest extent practical, trash, 

-. . 1. ,,'--:J---- 

floatable materials, mercury or fluorocarbon containing materials, and readily detachable solid 

PCB items."71 Readily detachable or readily removable solid PCB items means items that can be 

40 C.F.R. § 229.2; see also 33 U.S.C. § 1414(c) (authorizing Administrator to issue general permits). 

40 C.F.R. § 229.2. 

See Agreement between Elsie L. Munsell. Deputy Assistant Secretary of the Navy, and Robert I-I. Wayland Ill, Director, 

EPA Office of Wetlands, Oceans, and Watersheds, dated August 2. 1999: 

Navy Frequently Asked Questions, SINKEX; http://www.navsea.navy.millteamships/InactiveshipslSlNKEX/default:asPX
removed in a cost effective and efficient manner without the use of heat, chemical stripping, scraping 

and abrasive blasting or similar processes.72 

While removal of liquid PCBs found in transformers and capacitors is required to the greatest 

extent practical prior to vessel sinking, the removal of material containing solid-matrix PCBs is not 

required to the greatest extent practical. Only readily detachable solid PGB items are required to be 

removed, which by no means suggests greatest extent practical. In fact, the SINKEX general permit 

issued by the EPA under 40 CFR 229 states 'The Navy may leave in place wire cables,felt gaskets 

and other felt materials that are bonded in boltedflanges or mounted under heavy equipment, 

paints, adhesives, rubber mounts and gaskets and other objects in which the Navy has found 

PCBs...

The Navy suggested - without any confirming study of actual vessel PCB removal results --

that for smallervessels, up to 30pounds of pure PCI3s could be left onboard and for larger vessels, up 

to 100 pounds could be left after remediation without significant effects on marine life.r3 The Navy 

then assumed that their remediation practices would lead to a worst case scenario in which 100 

pounds of pure PCBs would be left onboard large SINflX vessels but "would pose no notable threat 

to bent/tic organisms.'4. 

Jhese rough estimates are not vessel specific and there exists the high probability, given the 

lack of PCB inventory taken on each vessel, that quantities of PCB contaminated material could 

significantly exceed the Navy's rough estimates. For example, as seen with the EX-ORISKANY, an 

estimated 722 pounds of solid PCBs were believed to be left intact for sinking, found in approximately 

362,240 pounds of electric cable insulation, at,700 pounds of fiberglass bulkhead insulation and 

7: http://www.maraddot.gov/documents/Apri 12001 ShipDisposalReportToCongress.pdf 

Sterner, GR.; Naval Sea Systems Command; Official Correspondence with Captain Charles Wendt, USAF; Subject: 

"Resumption of Sinking Exercises' (5 August 1994); http://www.dtic.mil/cgi . 

bin/GetTRDoc?AD=ADA323505&Location=U2&doc=GetTRDocpdf(pg 17). 

' Decision Memorandum - EPA Regulation of PCBs on Vessels Used for Navy Sinking Exercises. September 7, 1999 

75 Sterner, CR.; Naval Sea Systems Command; Official Correspondence with Captain Charles Wendt, USAF; Subject: 

Resumption of Sinking Exercises" (5 August 1994): http://www.dtic.mil/cgi . 

hin/GetTRDoc?AD=ADA323505&Location=U2&doc=GetTRDoc.pdf(pg 17).
284,044 pounds of contaminated paint. 76 722 pounds of solid PCBs left intact for sinking is well above 

the Navy's ioo pound estimate for large vessels. There is no evidence to show that the level of 

remediation performed on SINKEX vessels is substantially more extensive than that performed for the 

EX-ORISKANY which remains the only sunken vessel in which extensive samphng, modeling and 

post-sinking monitoring has been conducted. Of course, the PCB levels on this vessel both 

significantly exceeded the Navy's SINKEX estimate of ioo pounds for large vessels and the PCBs 

present in that vessel leached into the marine environment and led to PCB levels in fish that render 

them unsafe for human consumption. Moreover, as discussed above, established ocean transport 

mechanisms allow for the transport of PCBs from the deep ocean to shallow mariue ecosystems. 

The current SINKEX reniediation practices were developed in 1999 and were based on the the 

Sunken Vessel Study, that assessed the impacts of a single SINKEX vessel, the Ex- EX-AGER}TOLM, 

sixteen years after the vessel's 1982 sinking, the Modeling Study of March 1994, and the 

PCB leachability laboratory study based on sediment samples. These three pieces of evidence are the 

basis for the current General Permit. ' 

This permit has allowed more than ioo vthselsto be sunk to date: Unfortunately, the permit is 

based on what has proven to be inaccurate assumption both about the quantity of PCBs remaining oh 

SINKEX vessels and about the availability of thePCBs to the marine environment. ?' Neiv findings by 

EPA and others in the scientific community noW fully acknowledge that solid PCBs leach into the 

marine environment and arc taken up by fish. PCBs can then be transferred to humans as humans 

digest these contaminated fish. In addition, the available evidence indicates that the amount of PUBs 

that remain on SINKEXvessels is likely much higher than the estimates that form the basis for the 

current permit. These new findings show there exists a clear risk to public health and the marine 

environment from SINKEX ship disposal under the MPRSA general permit that has not been 

" Pape. L.T. 2004. Polychlorinated hiphenyls (PCI3) source term estimates Ibr Ex-ORISKANY (CVA-34). Rev. 4 (Dec. 7. 

2004; as summarized by Jon Dodrill and Robert Turpin: 

ORlsKANyReetPartlllnitialSamplingEftbrt.pdf 

" Id.
addressed or considered by EPA." The significant adverse effects of leached PCBs on human health 

and welfare, fisheries resources, marine ecosystems, and the persistence and permanence of PCBs 

once released all demonstrate that continued dumping of PCB-contaminated ships is not consistent 

with the MPRSA criteria for ocean dumping, especially where the evidence regarding the quantities 

of PCBs being disposed is unreliable and likely much too low. Accordingly, the Administrator must 

review and revoke or substantially amend the MPRSA general permit for STNKEX.8° 

B. TSCA Waiver For SINKEX Is Not Warranted. 

SINKEX now operates under a special permit under MPRSA, which requires the PCB 

contaminated vessels be sunk a minimum of 50 nautical miles from land. The act of transporting PCB 

contaminated vessels beyond U.S. territorial waters to SINKEX locations is considered export of PCB 

material for disposal purposes, and is therefore under normal circumstances prohibited under TSCA. 

However, as mentioned above, any PCBs that rernaih on SINKEX vessels in compliance with the 

general permit under MPRSA are not subject to TSCA regulations due to the exemption granted by 

EPA signed by Administrator Carol Browner in 1999. This exemption was granted without any public 

process wherein the public could submit comments or be heard on the matter. According to the EPA 

Office of Prevention, Pesticides and Toxic Substances, "If EPA were to regulate SINKEK under TSCA, 

SINKEK would be unlawful, and subject to citizen suit.... Section 9(b) does not provide a lawful 

waiver from TSCA because the MPRSA does not adequately protect against the risk of PCB leaching 

into, the marine environment, for the reasons discussed above. Accordingly, if EPA does not amend 

the existing MPRSA permit to comply fully with the requirements of the MPRSA, EPA must revoke the 

TSCA waiver and apply the rule banning the export for disposal of PCBs in concentrations greater 

than 5oppm to SINKEX. 

EPA's position regarding a legislative exemption from TSCA for Navy vessels supports this 

conclusion. With the Navy's success in achieving a TSCA exemption for all SINKEX vessels in 1999, it 

33 U.S.C. § 1412(a). 

7933 U.S.C. § 1414(d); see also 40 CFR. § 223.2 to 223.5 (procedure for limiting or revoking permits). 

'° 33 U.S.C. § 1414(d): see also 40 C.F.R. § 223.2 to 223.5 (procedure for limiting or revoking permils). 

"Official letter from Carol Browner, EPA Administrator, to Richard Danzig, Secretary of the Navy, September 13, 1999.
requested a provision in the National Defense Authorization Act of 2004 that would exempt both the 

Navy and the recipients of any naval vessel from all sections of TSCA when vessels were sunk as 

artificial reefs. EPA opposed this proposal and responded sharply, and Congress sided with the EPA. 

However, the EPA's stand against this requested TSCA exemption is contradictory to the previously 

granted TSCA exemption for SINKEX. In opposing this legislative exemption, EPA stated: 

"EPA opposes this-proposal, which remoucs safegtiards and allows for sinking of 

vessels that could pose future clean-up problems and unreasonable risks to human 

health and the environment. This provision would exempt both the Navy and the 

recipients of any naval vessels from all sections of the Toxic Substances ControlAct, 

not just the PCB prohibitions under TSOA -section 6(e), aslong as the ship is used as an 

artificial reef It would also limit any future liability on the part of the Navy for 

remediaL action under CERCLA and exempt-vessels from tegulaticlns as hazardous - - 

waste as provided by the Solid Waste Disposal Act (SWDA)."$2 

It remains unclear why EPA did not take a similar stance for the SINKEX program. While EPA 

supports the continuation of the artificial reefing program only if it is subject to TSCA, which requires 

- -- .. . --.. ..

. :i,. 

PCBs be remediated to below 50 ppm and disallows PCB export for disposal, it has granted a TSCA 

exemption for SINKEX based on an inadequate MRSPA permit. 

EPA should re-examine the TSCA exemption for SINKEX while it reviews and revises 

the MPRSA permit for the program. It should revoke the exemption unless the MPRSA permit is 

- '. ...

-.- H'-•'' 

substantially revised to protect human health and the marine environment. 

-. _ ;:-.' :. 

C. SINKEX Remediation Standards Are Unlawful And Do Not Meet Re quirements Of 

- International Law - -•,'- - - - - - - - - - -' - 

The SINKEX permit under the MPRSAJand the exemption under TSCA do not provide proper 

implementation of the London Convention which prohibith the 'dumping of any Annex I substance, 

such as PCBs, except as trace contaminants (e.gL PCB-concentrations that will not cause an - 

unacceptable adverse impact after dumping in terms of persistence, toxicity, and bioaccumulation). 

Considering all SINKEX vessels constructed prior to- 1979 likely contain PCB concentrations in excess 

of 50 ppm even after remediation, the EPA's general permit for SINKEX fails to meet the 

requirements of the London Convention to which the U.S. is a party. 

EPA's comments on DoD's FY04 Legislative Proposals to the National Defense Authorization Act: 

http://www.epeo.org/puhs/EPA%2ORRPT%2OResponse.pdl
SINKEX does not fit within the confines of the Convention's environmental protection aim of 

not creating "hazards to human health, to harm living resources and marine ljfe... Nor is free of 

contamination by Article 4'S priority blacklisted materials. Article 4 of the Convention prohibits the 

dumping of materials specified in Annex I, otherwise known as the black list. This list was created due 

to the strong likelihood that these contaminants will cause great harm to living resources, marine life 

and human health due to their hazardous characteristics. These hazardous characteristics include not 

only toxicity, but the propensity to bio-accumulate and bio-magnify in the human food chain. 

This black list includes all organohalogen compounds (e.g. PCBs), except in cases where only 

"trace contaminants" are present. 83 According to the EPA, 

"Trace contaminants are not defined in terms of numerical chemical limits, but rather in 

terms ofpersistence, toricity, and bioaccumulation that will not cause an unacceptable adverse 

impact after dumping. By this definition of trace contaminants, marine organisms are regarded, in 

a sense, as analytical instruments for determining the environmentally adverse consequences (f 

any) of any contaminants present. This definition of trace contaminants requires that the lack 

of unacceptable adverse effect in biological studies be taken to mean that contaminants are absent, 

or present only in amounts and/or forms that are not environmentally active, and therefore do not 

exceed the trace contaminant definition.... Because assessment of trace contaminants depends upon 

the determination of the potentialfor effects, an assessment cannot be made until the impact 

evaluation is completed and interpreted. Only then can effects, and thus the presence of materials as 

other than trace contaminants, be determined, "na 

The &-ORISKANY post-sinking fish data, as described in the above sections, clearly shows 

effects from PCBs that have leached from the vessel and have been taken up by fish at the reef site. 

This PCB fish uptake confirms the presence of PCB materials in amounts beyond trace contaminant 

parameters within the Ex-ORISKANY. Considering all U.S. naval vessels constructed prior to 1979 

likely contain PCB concentrations in excess of 50 parts per million (ppm), 8 and considering the ExORISKANY PCB remediation requirements were comparable in scope with that of SINKEX PCB 

remediatipn requirements, it can be reasonably concluded that SINKEX vessels are sunk with solid 

matrix PCBs above trace contaminant parameters. Recalling that the Ex-ORISKANY was sunk with 

electric cables, bulkhead insulation and contaminated paint and similarly the General Permit for 

SINKEX allows the following: "The Navy may leave in place wire cables,felt gaskets and otherfelt 

http://www.austljieduau/aujothcr/dfat/treatjesy 1985/1 6.htrnl 

'l hltp://www.epa.gov/owow/oceans/gbookighook,pdç

http://www.epa.gov/owow/occans/hahitauarificjtIreef/documents/pch.htmI
materials that are bonded in bolted flanges or mounted under heavy equipment, paints, adhesives, 

rubber mounts and gaskets and other objects in which the Navy has found PGBs...",vessels sunk 

through SINKEX fail to meet the trace contaminant requisite as did the sinking of the Ex-ORISKANY. 

Finally, the no effect threshold for PCB exposure is extremely difficult to ascertain as many scientists 

agree that there is no safe level of exposure to PCBs due to the bioaccuinulation and health related 

effects on marine organisms.. 

It is very clear from the above account that sinking contaminated ships is not consistent with 

the aim of the London Convention but rather is a violation of the Convention basedon a 

misapplication of an exception. SINKEX is in fact detrimental to marine life and sustainable fish 

populations from ecosystem contamination. 

ACTIONS NEEDED TO CORREGFEPA'S LEGAL VIOLATIONS 

For the reasons discussed above, pursuantto th petitioff provisions of the APA 86 and the 

TSCA,8 BAN and Sierra Club requests that theEPA5 

1. Amend the MPRSA general permit for SINKEXto comply with the MPRSA 

by reflecting the latest sciervtificknowledge about the amount of PCBs 

disposed through the SINKEX prOgram and about leaching of PCBs from 

sunken ships. At a minimum, the permit should be amended to require: 

a. Materials containing 1t3Bs to be removed to the "maximum extent 

practicable" with the best current techniques; and 

b. Remediation prior to sinking to the London Cont'entiohs "trace 

contaminant" requirement of PCBs. 

Or in the alternative: 

2. Revoke the current TSCA waiver for SINKEX and enact rules governing 

the marine disposal of ships containing PCBs that include these Same 

requirements: 

a. Materials containing PCBs must be removed to the "maximum 

extent practicable" with the best current techniques; and 

b. Remediation prior to sinldng to the London Convention's "trace 

contaminant" requirement of PCBs. 

Sb 

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Comments on:

PCBs in Sunken ex-Navy Ships 

Prepared by

Environmental Stewardship Concepts, LLC

for

Base! Action Network 

Summary 

PCBs are persistent bioaccumulative chemicals that have demonstrated carcinogenic and noncarcinogenic effects on animals and human health. SINKEX is the government program for 

allowing the scuttling of obsolete ships as a resu!t of military exercises. There are several 

technical concerns regarding potential PCB releases to the environment found in the studies and 

reports that have been used to su5port the ithplementation of the SINKEX general permit 

granted under the Marine Protcction Research and Sanctuaries Act in 1999. First, a number of 

ships have been sunk in US waters for the purpose f reef-building, yet there is a paucity of 

empirical data collected from these ships on the extent of leaching of toc chemicals (metals 

and organics) into water, sediment and biota. Reeeit1y released data on fish tissue levels of 

PCBs at the Oriskany reef sitecompared to a reièreice reef of concrete indicate that the reefed 

ship may be a source of substantial PCB pollution iA fish. Second, the models upon which 

estimates of PCB leaching are based are overly simpiified and do not include complex features of 

the ecological system, including water density layering, localized currents, upwellings, and 

sedimentation. All of these feãturescan be and are affected by the presence of a ship as large as 

the Oriskany which may in fact dominate the locaihydrography. Considering the latest data on 

PCBs in fish, the current state of knowledge concerning the persistent toxic effects of PCBs, the 

SINKEX program is not currently practiced hra thainer that adequately protects the 

environment and human health. 

Wildlife Exposure to PCBs 

According to the study "Assessing the Ecological Risk of Creating Artificial Reefs from exWarships" by Johnston et al. (2003), contaminants of concern can enter the intercontinental 

shelf system through releases from the sunken warship as well as from inputs from the coastal 

waters. Direct and indirection exposure to these chemicals can result from a contaminated 

habitat, where indirect exposure occurs through a process of bioaccumulation up the food chain, 

Bioaccumulation exposes organisms higher on the food chain to greater concentrations of PCBs 

through their multiple prey items. For example; demersal fish, such as flounder, arc bottom 

feeders and live on the seafloor. Grouper, snapper; and black sea bass dwell near the bottom. 

All feed on various invertebrates that inhabit the reef and sea floor, and invertebrates in turn eat 

prey items that are in direct contact with the PCBs found in the sand and sediment (see Figure 

some invertebrates consume sediment. If the recreational anglers catch and eat these fish, 

they are also exposed to the PCBs through their diet. 

Other higher trophie level organisms such as fish-eating birds, omnivorous birds, and marine 

mammals are exposed to PCBs via the prey items that have PCBs in their tissues. Generally, the 

typical PCB levels increase by a factor of 10- to too-fold when ascending major consumption 

levels in a food web (Gobas et al., 1995; Rice et al., 2003). Specifically, Wasserman (Wasserman
Release umae Uptake Mechmüsin MethSñ&n 

Coidatt ingestion 

Sorption/Settling__Upt*e Incidental Contac 

no 

From 

Ship

Epibenthic 

anti Benthic 

lnvert$xates

Avian

Omnivore 

Avian 

Piscivore 

Mai 

Mamma p 

et al., 1979; Rice et al., 2003) reported that for marine food webs, zooplankton range from c 

0.003 pig/g to 1 pg/g, whereas top consumers, such as seals and fish, had tissue PCB levels 

ranging from 0.03 Lg/g to 212 Jg/g. Therefore, PCBs that are abundant in lower trophic levels, 

will be amplified through the food chain to levels that can adversely affect higher trophic level 

organisms (see also Rice et al., 2003 for comprehensive treatment of the topic). 

Also, there is a direct relationship between fish distribution and abundance and the PCBs at the 

newly created reef site. This interaction is not random and will occur because fish will be 

attracted to the ship site and the food resources there. These same processes, bioaccumulation 

and biomagnification within the food web, occur in both shallow water ecosystems and deep 

ocean water systems with similar exposure pathways and similar outcomes for the assessment 

endpoints.

Fig. 1. Exposure pathways and assessment endpoints.

(Johnston et at., 2003). 

Regulations and Wildlife 

The EPA has the authority to approve risk-based disposal of PCBs regulated tinder Sec. 761.62 

Disposal of PCB bulk product waste (40 CFR 761.62), if a finding of no unreasonable risk of 

injury to human health and the environment can be wade. The sinking of the Navy vessel the 

Oriskany was sunk under this risk-based disposal permit. This permitting is not subjc.t to the 

Toxic Substances Control Act TScA) which requires femediatioh of PCBs of 50 ppm or greater. 

Similarly, the Navy's SINKEX program is generally permitted under the Marine Protection, 

Research, and Sanctuaries Act (MPRSA) which doS not require remediation to 50 ppm as is 

required of artificial reefing vessels under TSCA. In theory, PCBs at any concentration in any 

materials can be a significant source and therefore subject to regulatory removal requirements. 

There is no fundamentally scientific basis for setting protective standards or proceses of 

determining protective levels of PCBs on the basis of program design, including water depth for 

a ship sinking. PCB (and other toxic chemical) remediation needs to be based on leaching, 

toxicology, persistence and accumulation and other scientific matters, no matter the purpose of
the sinking. There is little to no difference in PCB bioavailability between deep sea and shallow 

waters because the same chemical, physical and biological mechanisms operate in all cases. In 

both cases, corrosion and breakdown of the vessel will occur over time, making all of the PCB 

containing solid materials biologically available through water and sediment uptake. The 

factors that form the basis for determining the risks of PCBs have developed substantially in 

recent years, providing data on toxicity, persistence, and bioaccumulation that was simply not 

available 30 years ago when many PCB standards were first set under TScA. 

PCBs in Solid Materials 

Because the breakdown processes and hioavailability of PCBs will be similar whether a vessel is 

sunk in shallow or deep ocean waters, studies used to regulate PCBs 011 vessels used for artificial 

reefs should also be considered in regulating PCBs on vessels used in the SINKEX program. The 

Navy report "Investigation of PCB Release-Rates from Selected Shipboard Solid Materials 

Under Laboratory-Simulated Shallow Ocean (Artificial Reef) Environments" (George et al., 

2006) estimated that the Ex-Vermillion Navy vessel had potentially 9.5 lbs to 267 lbs of PCBs 

onboard, Based on the highest amount, 50% of PCBs were present in felt gasket material,25% 

in electrical cables, 12% in the paint, io% in residual oils and greases, and o.i% in the bulkhead 

insulation. For the lowest estimated total pounds of PCBs, paints accounted for 85% of the mass 

of PCBs on the ship and electric cable accounted for 9%. 

The Navy report also calculated the release rate af the PCBs from the solid materials onboard. 

They detcrmined that for the highest estimated total pounds of PCBs, although bulkhead 

insulation only accounted for o.i% of the tota PCB mass on the ship, it accounted for about 13% 

of the PCBs released from the ship. However, for the lower estimated total pounds of PCBs, 

paints containcd 85% of the mass of PCBs and accounted for 68% of the PCBs released (George 

et al., 2006). If regulations to protect the marine environment are to be based on their own 

calculation of release rates, logically, extensive paint removal should be a larger part of the 

vessel preparation and clean up. On a technical level, the release of toxic ch.emicals is 

determined by both the rate of release (PeE/pound material) as well as the total bulk release 

(PCB/unit time), taking into account the total quantity of contaminated material as well as the 

rate at which that material releases PCBs (or other toxic chemicals). 

Based on these leach rates for PCBs from solids aboard the Ex-Vermillion, the Navy reached the 

conclusion that removal of the materials with the highest leach rates would result in the greatest 

reduction in PCB loading per unit material removed, Their leach rate model showed that 

removing .00i kg of pure Aroclor 1254 (PCB) would reduce leaching by the same amount as 

removing 0.143 kg of bulkhead insulation, 1.855 kg of foam insulation, 3.8 kg of felt gaskets, 5.3 

kg of rubber products, 56.5 kg of paint, or So kg of electrical cable (George et aL, 2006). For 

each material listed, the weight of the material removed demonstrates an advantageous return 

on the elimination of PCBs from the vessel, ultimately, physical and chemical breakdown of 

every aspect of the ship will occur over time and will become a part of the marine environment, 

inercasing the interaction between PCBs and the marine environment. 

The Final Report on PCB Source Term Estimates for ex-Oriskany by the Navy Inactive Ships 

Program (PEO, 2006) outlined the several sources of PCBs in the materials on the vessel. The 

amount of PCBs contained within the solid materials onboard ranged from 377.5 kg to 699.6 kg. 

The sources of PCBs onboard included the bulkhead insulation, rubber products (door gaskets, 

pipe hangers, mounts, etc.), paints, electrical cable insulation, ventilation gaskets, and 

lubricants, The electrical cable accounted for g% of the total PCB loading from the Oriskany 

into the marine environment, with bulkhead insulation the second highest at 3%.
Reduction of PCB ]oading due to removal of items as part of the preparation process outlined in 

the EPA's "National Guidance: Best Management Practices for Preparing Vessels Intended to 

Create Artificial Reefs: Polychlorinated Biphenyls" (U.S. EPA, May 2006) requires removal of 

i00% of the lubricants, 5% of thepaint, 72.6%of the bulkhead insulationand only io% of the 

electrical cable, and no removal of rubber products or ventilation gaskets. The EPA makes the 

false assumption that low level PCB content in solid materials is permissible. Both the paint and 

lubricant make similar contributions to the PCB load on the ship, but supposedly i00% of the 

lubricants are removed and only 5% of the paint. 

Following removal based on the EPA BMP, the total amount of PCBS remaining ranged from 

327.79 kg to 608.85 kg, where more than 97% of the PCBs remaining on the vessel are 

associated with electrical cables. No risk-based permit or otherwise should allow for the cables 

to remain onboard. The EPA's "National Guidance: Best Management Practices for Preparing 

Vessels Intended to Create Artificial Reefs" admith that "Because PCB sampling and analytical 

procedures can be expensive and time consuming, there may be situations when the cost of 

sampling and analysis far exceeds the cost for rethoval and disposal. In some cases, vessel-toreef projects have shown that removal of all electrical cables and wires suspected of containing 

PCBs was the most economical course of action." L 

Time Dynamic Model 

The Final Report Ex-ORISKANY Artificial Reef Prdject Time Dynamic Model (TDM) (PEO, 

2006) predicts concentrations of PCBs in abiotiC media in the marine environmentthat may 

result from PCB releases from the ex-ORISICANY, but only for the first two years after sinking. 

This model was necessary, however, to fill ifl th&firat two years for the'ProspectiveRisk 

Assessment Model (PRAM), which only mokleled hiotic predietionafter the first two ytars of 

sinking a vessel for use as a reeL 

However, there are several over-simnplification ivithIntheTDMthodel. The TDM treats the 

ship as a single point source and the surroUndhig waters as discrete boxes, each subsequent box 

located at a greater distance from the source. Auming complete mixing and complete 

exchange between the "boxes" in each time step Of the model is not dynamic em*rngh for the 

conditions found in the Gulf of Mexico. Building the model using applied hydrodynamic data 

would create a mare fealistic model. 

Additionally, the overly simplified pycnocline and mixing assumptions ignore seasonal 

differences, where the water is vertically mixed in the winter and stratified in the summer. The 

simple two layer model certainly neglects the changes in pycnocline strength and the possible 

effects of stonus to move and mix large amounts of water and sediment over short periods of 

time. 

The assumption of instantaneous mixing and equilibration within the ship is also most certainly 

not correct. The TDM assumes 99% equilibrium concentrations within 24 hours without any 

evidence to support the validity of this assumption. Another concern is the total lack of 

movement of PCB-laden sediments in the model, where sediments are likely the largest PCB 

sink. There will also be a continuous flux in PCB adsorption and desorption between the water 

and the sediment within each bin. Equally important is the assumption that no sediment occurs 

in the ship, which is not correct. 

The TDM assumes first order kinetics betv.'een the ship sources, water, TSS, and DOC. This 

assumption is also likely wrong. PCBs and PCDD/PCDFs function on other than first order 

kinetics in most systems. Overall, the model is too simplistic in moving PCBs in a linear and
sequential fashion from the ship's sources into water, DOC and TSS, and then ultimately to 

marine wildlife. 

Another concern is the impact of the vessel size relative to the water column depth. In section 

1.3.3, the authors discuss concerns about the upwelling and turbulence that may be generated by 

the presence of the vessel sitting on the sea floor. The vessel is 888 feet long, 90 feet wide and 

about 90 feet high, but 135 feet at its highest. It would be likely to assume that the vessel has a 

bigger impact on the immediate dynamics than the bin hydrodynamic model allows for. 

There are problems with the collection of leaching rate data presented in Table iof the TDM 

(PEO, 2006). The lack of any detectable leaching of octochlorobiphenyl is remarkable and 

should have resulted in running more trials. The zero results for octoch]orobiphenyl 

underestimates the leach rate. Depending on the conditions of the experimental work, if the 

rates were not measured over a sufficiently long period of time, then the model and all the 

estimates are potentially inaccurate and underestimate the physical-chemical ]oss of PCBs from 

the ship into the marine environment. 

Sediment Data 

Another weakness in the data used to support SINKEX is that the sediment data used for the 

Navy leach rate studies for the Vermilion and Oriskany came from the Agerholm, a single 

sunken vessel site in which they took sediment samples. The Ex-Agerholm was sunk in 1982 but 

the study that was the basis for SINKEX permitting (Johnston et al.) was published in 2003. 

Undoubtedly, PCB !evels would be much higher had the study taken place more recently to the 

sinking of the Ex-Agerhoim. Additional studies should be done to collect more sediment data 

and to verift the sediment sampling rnethodused at the Agerholm site. 

Field-collected data and choice of observed (test) animal species has inherent limitations in 

sampling design and possible outcomes, and could possibly misrepresent exposure or impacts. 

The Johnston et al. (2003) study does not define the invertebrates used in the tissue analysis. 

Identification of invertebrate species used in the study is important based on their individual 

physiology, habitat use, and prey items. For exaipple, oysters are not mobile and may better 

correlate exposure effects of a certain area. Alsc, while the assumption that food chain receptors 

would consume i00% of their diet from the Navy vessel reef may be conservative, the omission 

of direct ingestion of water and sediment are not conservative, especially for benthic feeders. 

Two of the most significant limitations of field toxicity are the inability to confirm (or perhaps 

even determine) the exposure conditions and the complete inability to measure or confirm 

mortalities that will be lost to natural predation and decomposition processes. 

Ultimately, the conclusions in Johnston et ai. do not logically follow from the data provided in 

the study. This study is not sufficient to determine th health of an ex-vessel reef and should not 

be the basis for decisions about acceptable PCB levels. - 

In the PCB Strategy for the Commonwealth of Virginia created by the Virginia Department of 

Environmental Quality (2005), a subgroup was formed to develop screening levels and cleanup 

levels for PCBs in soils and sediments. The purpose of the screening levels is to help prioritize 

PCB contaminated sites, but the subgroup cautioned against relying solely on the soil and 

sediment screening levels alone: 

the subgroup recognized that the risk-based screening levels would likely be too low 

to be an effective prioritization tool. The risk-based approaches confirmed that very low
2 (gag & king

mackerel 

1 (king mackerel) 

Total Mean PCB Concentration 

levels of PCBs (1.8 to 49 ppb) in sediments could result in elevated fish tissue 

concentrations" (VA DEQ, 2005) 

This approach is counter to the Navy's reliance on the Agerhoim study sediment data, on which 

they based their modeling. Further, the subgroup notes that in many cases, the small sample 

size may account for the lack of elevated sediment data. The hitting or missing of PCBs during 

sediment collection is a reality in the sedimentriskbased approach. 

Also, because PCBs bioaccumulate as well as biomagnify up the food chain (as noted in the 

above "Wildlife Exposure to PCBs" section), high PCB levels in marine sediments are not 

necessary for the presence of higher PCB levels in fish. The data collected in the Virginia 

Department of Environmental Quality Fish Tissue and Sediment Monitoring program show that 

there is often no direct correlation between sediment levels and fish tissue levels. The subgroup 

also concludes that local conditions may be such that the low levels of PCBs that do occur in the 

sediments are bioavailable (VA DEQ, 2005). 

New Data 

The Ex-USS Oriskany was sunk as an artificial reef 23 nautical miles off the coast of Florida in 

2006 and was prepared for sinking in much the same way as SINKEX vessels. All liquid PCBs 

were removed from the vessel prior to sinking; therefore all documented PCB leaching is frbm 

solid PCBs. In an Oriskany post-sinking nicinitoritig study that has not yet been completed by 

the Florida Fish and Wildlife COnservation Commiion(FWG),-33% of all fish sampled postsinking in the vicinity of the Oriskany had PCB concentrations above 20 parts per billion (ppb), 

the EPA screening level (Table 1). Twenty-one percent of all fish sampled post-sinking had PCB 

concentrations above 5° ppb, the Florida D'epartthent of Health fish advisoty threshold PCB 

concentrations in fish samples increased 1,446% on average from pre-sinking to post-sinking. 

The FWC study also included two sampling events in 2008 on a control reef (Table a); these 

results were also just released in April 2010. The ontroi reef is a concrete bridge rubble reef 

that is 8 miles from the Oriskany site. The control reef samples were taken on the same days as 

the Oriskany samples in 2008. PCB concentrations h fish caught at the Oriskany site in 2008 

were more than 932%, on average, higher thhn PCB concentrations in fish caught at the control 

reef.

h,OV.2OQl 

Red Snapper Samples 

Red Snapper Mean PCl 

Concentration

Total Fish Above 20 ppb (EPA 

Screening Level) 

Total Fish Above 50 ppb 

(Florida DoH Fish Advisory 

Threshold)
In contrast to these results from the FWC study, the Final Report Ex-Oriskany Artificial Reef 

Project Ecological Risk Assessment conducted by the Navy (PEO, 2006) stated that the no effect 

threshold for total PCB was exceeded only in dolphins, cormorants, and herring gulls. Contact 

with elevated PCB levels in water inside the vessel was determined to be the predominant route 

of exposure and transfer of PCBs through the food web. However, despite these findings, the 

conclusion of the Ex-Oriskany Artificial Reef ERA deems the levels of PCBs in the tissues of 

organisms associated with the reef and in the diet of reef consumers acceptable. These 

conclusions do not logically follow the data collected and does not address the unacceptable 

level of risk to human health and the environment. 

Table 2.2008 Control Reef Samples vs. 2008 Oriskany Reef 

Samnles 

Red Snapper Samples 47 60 

Red Snapper Mean PCB 

Concentration 

Total Samples 

Total Mean PCB ConcentratibT 

Total Fish Above 20 ppb (EPA 

Screening Level)

7.6 ppb 

ôi

55.22 ppb 

61 

7.89 ppb 

5

8i. ppb 

i6 

Total Fish Above 50 ppb 

(Florida DoH Fish Advisory 

Threshold)

0 12

• Based on the recent data for PCB levels in fish tissue at the Oriskany reef site and a 

control reef, general permitting under MPRSA underestimates the impact of PCBs found 

in solid materials left on-board a vessel. 

• The release of PCBs from ships such as the Oriskany causes an unacceptable risk to 

human health and the environment. 

• The basic processes behind leaching of toxic chemicals and subsequent movement into 

the food web, with harmful consequences to the environment and human health, are not 

affected by depth such that less protective measures can be afforded vessels sunk in 

deeper waters. 

• The Ex-Agerholm study is not adequate enough data for building a sediment-based 

hydrological model for ships sunk under SINKEX or in other waters that are in 

fundamentally different hydrological and oceanographic regions. 

• The Time Dynamic Model does not adequately express the complexity of the coastal 

system off the coast of Pensacola and is too simplistic to adequately model the impacts of 

the ex-Oriskany. 
• The Florida Fish and Wildlife Conservation Commission (FWC) study provides new data 

that contradicts the findings of previous Naval studies. These new data add to the 

paucity of research done on sunken Naval vessels. 

• PCBs, once introduced to a system, continuously cycle through, become bioavailable, and 

bioaccumulate up the food chain. The only remedy is to limit or prevent their 

introduction to the marine environment. 

Appendix References 

George, RD., C.R. In, R.K. Johnston, C.A. Kurtz, P.F. Seligman, R.D. Gauthier, and 

W.J. Wild. 2006. Investigation of PCB Release-Rates from Selected Shipboard 

Solid Materials Under Laboratory-Simulated Shallow Ocean (Artificial Reef) 

Environments. Technical Report 1936. SSC San Diego, CA. 230 pp. 

Gobas, A. P. C., M. N. Graggen, and X. Zhang. 1995. Time response of the Lake 

Ontario ecosystem to virtual elimination of PCBs, Environmental Science and 

Technology 29(8): 2038. 

Johnston, R. K., H. Halkola, W. Wild, R. Gauthier;R. George, C. In, M. Bell, & R. 

Martore. 2003. Assessing the Ecological Risk of Creating Artificial Reefs from 

ex-Warships, Proceedings of Oceans p.iooi-ioo8. 

Program Executive Office, Navy Inactive Ships Program. Final Report ExORISKANY Artificial Reef ProjectEëologicálRisk Assessment. January 2006. 

Program Executive Office, Navy Inactive Ships Program. Final Report ExORISKANY Artifical Reef Project Time Dynamic Model (mM). January 2006. 

Program Executive Office, Navy Inactive Ships Program. Final Report Polychlorinated 

biphenyls (PCB) Source Term Estimates for ex-ORTSKANY (CVA 34) Rev. 5. 

January 24, 2006. 

Rice, C.P., P. W. O'Keefe, T. J. Kubiak. Chaptex 18: Sources, Pathways and Effects of 

PCBs, Dioxins, and Dibenzofurans. Handbook of Ecotoxicology, Second Edition. 

Lewis Publishers. 2003. 

U.S. Department of Health and Human Services. Toxicological profile for 

Polychlorinated Biphenyls (PCBs). Public Health Service Agency for Toxic 

Substances and Disease Registry. November 2000. 

U.S. EPA. Marine Protection, Research, and Sanctuaries Act (MPRSA). 

httn: / /www.epa.gov/compliance/civil/mprsa/niprsaenfgatrep.htmi#statute

U.S. EPA. National Guidance: Best Management Practices for Preparing Vessels 

Intended to Create Artificial Reefs Polychlorinated Biphenyls (PCBs). National 

Guidance: Best Management Practices for Preparing Vessels Intended to Create 

Artjficial Reefs (EPA 842-B-o6-oo2) May 2006. 

http: / /www.epa.gov/owow/occans/habitat/artificialreefs/index.html.
U.S. EPA. Summary of the Toxic Substances Control Act (TSCA). 

httn: / /www.epa.gov/lawsregs/laws/tsca.html

Virginia Department of Environmental Quality. "Appendix G: Development of Screening 

Levels and Cleanup Levels for Polychlorinated Biphenyls (PCBs)." PCB Strategy 

for the Commonwealth of Virginia. January 2005. 

Wasserman, M., D. Wasserman, S. Cucos, and J. H. Miller. 1979. World PCBs map: 

Storage and effects in Man and His Biologic Environment in the 19708, Ann. 

N.Y. Acad. Sci. p. 320.
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