## P REPUBLICATION 

## C OPY 

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## : The Assistant Administrator for Chemical Safe ty and Pollution Prevention signed the following Federal Register document on July 10, 2012

. This is a prepublication version of the action that EPA is submitting for publication in the Federal Register . While the Agency has taken steps to ensure the accuracy of this Internet version of the action, it is not the official version of the final action for purposes of 15 U.S.C. 2620(b). Please refer to the offi cial version of the document t hat will appear in a forthcoming Federal Register publication. Once the official version of t he final action publishes in the Federal Register , this advance publication version of the final action will be replaced with a link to the document that appears in the Federal Register publication. At that time, you will also be able to access the on-line docket for this final action at http://www.regulations.gov . You can then use access the index listing of the contents of the docket, and those documents in t he docket that are available electronically. The docket number for this final action is EPA-HQ-OPPT-2012-0495.BILLING CODE 6560-50-P

ENVIRONMENTAL PRO TECTION AGENCY 40 CFR Chapter I Subchapter R [EPA-HQ-OPPT-2012-0495; FRL-9356-2] Polychlorinated Biphenyls (PCBs); Dispos ition of Request Submitted under TSCA Section 21 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of reasons for Agency response. SUMMARY: This document announces EPA’s reasons for denying a request submitted by the Basel Action Network, the Sierra Club, and the Center for Biological Diversity (petitioners), requesting that EPA take certain actions to protect human health and the marine environment from polychlorinated biphenyls (PCBs) that leach from ships sunk through the U.S. Navy's sinking exercises (SINKEX) program. As noted in a letter dated July 10, 2012, EPA denied the request for rule s under the Toxic Substances Control Act (TSCA). The reasons for the denial are disc ussed in this document. EPA will respond separately to the petitioners’ request for revisions to the general permit for the transport of target vessels under SINKEX issued by EP A under the Marine Protection, Research, and Sanctuaries Act (MPRSA). FOR FURTHER INFORMATION CONTACT: For technical information contact : Peter Gimlin, National Program Chemical s Division (7404T), Office of Pollution Prevention and Toxics, Environmental Pr otection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephon e number: (202) 566-0515; fax number: (202) 566-0473; email address: gimlin.peter@epa.gov.2
For general information contact : The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: TSCA-Hotline@epa.gov

. SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general. This action may, however, be of interest to you if you manufact ure, process, distribute in commerce, use or dispose of PCBs. Since other entities may also be in terested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicab ility of this action to a particular entity, consult the technical contact person listed under FOR FURTHER INFORMATION CONTACT

. B. How Can I Access Information About this Action? EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPPT-2012-0495. All documents in the docket are listed in the docket index available at http://www.regulations.gov . Although listed in the index, some information is not publicly av ailable, e.g., Confidential Bu siness Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly ava ilable only in hard copy. Publicly available docket materials are availa ble electronically at http://www.regulations.gov , or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public Readi ng Room hours of operation are 8:30 a.m. to3 4:30 p.m., Monday through Friday, excluding lega l holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Docket vi sitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure. II. Overview On April 11, 2012, EPA received a request from the Basel Action Network, the Sierra Club, and the Center for Biological Diversity (petitioners). The petitioners requested that EPA take cer tain actions to protect hu man health and the marine environment from PCBs that leach from sh ips sunk through the U.S. Navy's SINKEX program. The petitioners requested that EPA amend the existing general permit issued to the Navy under MPRSA (33 U.S.C. 1401 et seq. ), or, in the alternative, enact rules under TSCA (15 U.S.C. 2601 et seq .). In requesting actions unde r TSCA, the petitioners have invoked the citizen petition provisions of section 21 of TSCA (15 U.S.C. 2620). After careful consideration, EPA denied the request for TSCA rules by letter dated July 10, 2012. This document explains EPA's reasons for denying the request to initiate rulemakings under TSCA. EPA w ill respond separately to the petitioners’ requests for revisions to the general permit for the transport of target vessels under SINKEX issued by EPA under MPRSA.4

III. What is a TSCA Section 21 Petition? Under TSCA section 21, any person can petition EPA to initiate a rulemaking proceeding for the issuance, amendment, or repe al of a rule under TSCA section 4, 6, or 8 or an order under TSCA section 5(e) or 6(b) (2). A TSCA section 21 petition must set forth the facts that are claimed to establish the necessity for the action requested. EPA is required to grant or deny the petition within 90 days of its filing. If EPA grants the petition, the Agency must promptly commence an appropriate proceeding. If EPA denies the petition, the Agency must publish its reasons for the denial in the Federal Register

. A petitioner may commence a civil action in a U.S. district court to compel initiation of the requested rulemaking proceeding within 60 days of either a denial or the expiration of the 90-day period. IV. What is the MPRSA? In 1972, Congress enacted Title I of MPRS A, also referred to as the Ocean Dumping Act, because unregulat ed dumping of material into ocean waters endangers human health, welfare, and amenities, and the marine environment, ecological systems, and economic potentialities. 33 U.S.C. 1401(a) . MPRSA section 101(a) prohibits, unless authorized by permit, the (1) transportation fr om the United States of any material for the purpose of dumping it into ocean waters, and (2) in the case of a vessel or aircraft registered in the United States or flying the Un ited States flag, or in the case of a United States department, agency, or instrument ality, transportation from any location, any material for the purpose of dumping it into ocean waters. 33 U.S.C. 1411(a). MPRSA section 101(b) also prohibits the unpermitted dum ping of any material transported from a location outside of the United States into certain ocean waters of the United States.5 MPRSA section 3(f) defines the term “dum ping” broadly (to mean “a disposition of material”) but the term excludes, among othe r things, “the construction of any fixed structure or artificial island nor the intentional placement of any device in ocean waters or on or in the submerged land beneath such wate rs, for a purpose other than disposal, when such construction or such placement is otherw ise regulated by Federal or State law or occurs pursuant to an authorized Federa l or State program.” 33 U.S.C. 1402(f). Though MPRSA authorizes the U.S. Army Corps of Engineers to issue MPRSA permits (subject to EPA review and concurre nce) with respect to dredged material, EPA has permit authority for all other materials. 33 U.S.C. 1412 and 1413. V. What is SINKEX? In 1977, EPA issued a general permit to the Navy for the transport of target vessels (SINKEX) under MPRSA section 102 (42 FR 2462, January 11, 1977). The permit authorizes the Navy to transport vessel s from the United States or from any other location for the purpose of sinking such vessels in ocean waters in testing ordnance and providing related data subj ect to four conditions: 1. Such vessels may be sunk at times dete rmined by the appropriate Navy official; 2. Necessary measures shall be taken to insure that the vessel sinks to the bottom rapidly and permanently, and that marine navigation is not otherwise impaired by the sunk vessel; 3. All such vessel sinkings shall be conducte d in water at least 1,000 fathoms (6,000 feet) deep and at least 50 nautical miles from land [i .e., that portion of the baseline from which the territorial sea is measured, as provided for in the Convention on the Territorial Sea and the Contiguous Zone, which is in closest proxi mity to the proposed disposal site]; and 4. Before sinking, appropriate measures sha ll be taken by qualified personnel at a Navy or other certified facility to remove to the maximum extent practicable all materials which may degrade the marine environment, including withou t limitation (i) emptying of all fuel tanks and fuel lines to the lowest point practicable, flushing of such tanks and lines with water, and again emptying such tanks and lines to the lowest poi nt practicable so that such tanks and lines are essentially free of petroleum, and (ii) removing from the hulls other pollutants and all readily detachable material capable of creating debr is or contributing to chemical pollution. 33 CFR 229.2(a).6 The Navy also must make an annual repor t to EPA setting forth the name of each vessel used as a target vessel, its approxima te tonnage, and the location and date of sinking. 33 CFR 229.2(b). In 1989, the Navy identified the potential for viscous PCBs at levels of concern in wool felt used as acoustical damping material (on submarines) and as gasket material (on all vessels). The Navy promptly notified EPA and halted most SINKEXs pending further evaluation. In 1993, the Navy conducted a modeling study that predicted PCBs introduced to the deep benthic environment would have little chance of physical or biological transport to surface waters and th at PCB sediment concentrations would pose no notable threat to benthic or ganisms. Other Navy studies ha d indicated that most of the PCBs introduced or to be introduced by the Navy through SINKEXs to the deep benthic environment would be solid materials and not readily leachable. In 1996, EPA and the Navy entered into an Agreement regarding the further course of study and continuing conduct of SINKEX activities using a finite num ber of vessels prepared according to the terms of the Agreement (Ref. 1). In 1999, EPA signed a letter designed to clar ify and specify, with regard to PCBs, the manner in which the Navy would proceed with SINKEX activities under the existing MPRSA general permit. At that time, EPA confirmed its belief that SINKEX operations could continue under the MPRSA general pe rmit and its requirements, including as interpreted to impose specific requirements re lating to materials containing PCBs. The terms and conditions of EPA’s 1999 interpre tation were accepted by the Navy as of August 2, 1999 (Ref. 2).7 The 1999 EPA letter required that the Navy conduct specified studies and produce certain information to EPA. For the studies , the Navy was to complete a study involving monitoring the ex-USS Agerholm , including sample collection, assessment and analysis. The ex-USS Agerholm study included assessment and analyses of sediments, core samples, and fish tissue for PCBs, as well as toxicity and bioaccumulation studies. The Navy also prepared analysis of the leach rate of PCBs (in the various materials likely to be present on target vessels) into sea water at the temper ature and pressure present on a sunken vessel (i.e., representative of condi tions authorized under the MPRSA general permit). The 1999 letter explained EPA’s interpre tation of the general permit requirements to clarify and specify, with re gard to PCBs, the manner in which the Navy could proceed with SINKEX activities (transport for the purpo ses of disposal into ocean waters) under the MPRSA general permit (40 CFR 229.2)). EPA explained that, under the MPRSA general permit: Before engaging in a SINKEX, the Navy must conduct an inventory of each SINKEX vessel to ascertain the presence of PCBs, and that the inventory and list of items removed prior to sinking must be provided to EPA in the annual report required under the ge neral permit. Before sinking a SINKEX vessel, qualified personnel at a Navy or other approved facility must: a. Remove all transformers containing 3 pounds or more of dielectric fluid and all capacitors containing 3 pounds or more of dielectric fluid; b. Use all reasonable efforts to remove an y capacitors and transformers containing less than 3 pounds of dielectric fluid from the vessel (reasonable efforts include, but are not necessarily limited to, the removal of capacitors from electrical and control panels by using hand tools such as wire or bolt cutters or a screw driver); and c. Drain and flush hydraulic equipment, heat transfer equipment, high/low pressure systems, cutting power machinery which uses coo ling or cutting oil, and containers containing liquid PCBs at ≥ 50 ppm [parts per million]. EPA also explained its belie f that it is often practi cable to remove specified materials containing non-liquid PCBs before sink ing a vessel. To the extent that removal is practicable, EPA explained that these non- liquid PCBs are required to be removed8 under the MPRSA general permit. However, when such objects cannot be practicably removed or their removal threatens the structural integrity of the vessels so as to impede the SINKEX, EPA recognized that the Navy c ould leave such items in place (e.g., felt materials that are bonded in bolted flanges or mounted under heavy equipment, certain paints and adhesives). EPA noted that objects may be considered not capable of practicable removal if equipment must be disassembled or removed for access to the objects, if the objects must be removed by heat, chemical stripping, scraping, abrasive blasting or similar process, or if removal would endanger human safety or health even when conducted with protective equipment and reasonable safety measures. Shortly after the 1999 letter, EPA made a determination under TSCA section 9(b) that the risks associated with PCBs on target vessels used in SINKEX could be eliminated or reduced to a sufficient extent by actions taken under MPRSA and that such risks should be addressed solely under MPRSA. VI. Summary of the Request On April 11, 2012, the Basel Action Network, the Sierra Club, and the Center for Biological Diversity requested th at EPA take certain actions to protect human health and the marine environment from PCBs that le ach from ships sunk through the U.S. Navy's SINKEX program (Ref. 3). The petitioners requested that EPA amend the existing general permit issued to the Navy under MPRSA or, in the alternativ e, enact rules under TSCA. Specifically, the submission asks EPA to: 1. Require all PCB-contaminated materi als in concentrations of 50 ppm or greater to be removed from SINKEX vessels prior to sinking. 2. Require all PCB-contaminated material s in concentrations of <50 ppm to be9

removed from SINKEX vessels prior to sinking to the ma ximum extent practicable. 3. Require additional studies to determine whether PCB-contaminated materials in concentrations of <50 ppm constitute “trace” contaminants . The request states that such additional studies should include the most recent data on the toxicity, persistence, and bioaccumulation of PCBs and should in clude monitoring at multiple recent SINKEX sink sites. The request further states that studies should also assess the releases of other potentially hazardous pollutants into the marine environment from SINKEX ships including heavy metals, asbestos, and radioactive substances. VII. Disposition of the Re quest for Rules Under TSCA A. What Was EPA’s Response? In a letter dated July 10, 2012, EPA denied the petitioners’ re quest to initiate rulemakings under TSCA (Ref. 4). A copy of the Agency's letter is available in the docket for this action. EPA's reasons fo r denying the request for TSCA rules are provided in Unit VII.B of this unit. B. What Were EPA's Reasons for this Denial?
1. Requests for rules requiring removal of PCB-contaminated materials-- a. PCBs on SINKEX vessels are regulated so lely under the authority of MPRSA . TSCA is not the appropriate vehicle for the regulation of PCBs on ships used in the Navy’s SINKEX program, because the Administrator in 1999 determined under TSCA section 9(b) that such regulation should be unde r MPRSA, not TSCA. This section 9(b) determination is not subject to TSCA secti on 21. Section 21 of TSCA allows any person to petition “to initiate a proceed ing for the issuance, amendment, or repeal of a rule under section 2603, 2605, or 2607 of this title or an or der under section 5(e) or 6(b)(2) of this10 title” (15 U.S.C. 2620(a)), but not a determin ation under section 2608 (TSCA section 9). Moreover, the petitioners have provided no basis to cause EPA to reconsider this determination. Section 9( b) of TSCA provides:
The Administrator shall coordinate actions taken under [TSCA] with actions taken under other Federal laws administered by the Administra tor. If the Administrator determines that a risk to health or the environment associated with a ch emical substance or mixture could be eliminated or reduced to a sufficient extent by actions ta ken under the authorities contained in such other Federal laws, the Administrator shall use such au thorities to protect against such risk unless the Administrator determines, in the Administrator’s di scretion, that it is in the public interest to protect against such risk by actions taken under [TSCA]. 15 U.S.C. 2610(b) In 1999, the Administrator determined under TS CA section 9(b) that “the risk to health or the environment attributable to the transportation and disposal of PCBs associated with SINKEX could be eliminated or reduced to a sufficient extent by actions taken under the authority of MP RSA.” (Ref. 5). The Administra tor further stated: “I have not identified a public interest in the regul ation under TSCA of the transportation and disposal of PCBs associated with SINKEX. ” (Ref. 5). Consequen tly, the Administrator determined that “PCBs on SINKEX vessels shou ld be regulated solely under [MPRSA], rather than under both MPRSA and TSCA.” (Ref. 5). The petitioners do not present any new information that would cause EPA to reconsider this determination. Although the petitioners present information that they believe calls into question the sufficiency of the current MPRSA general permit, they present no information indicating that any risk s that may not be adequately addressed by the current permit could not be reduced to a sufficient extent by action taken under the authority of MPRSA, or that the public in terest would be served by regulation of SINKEX under TSCA in addition to regulati on under MPRSA. The petitioners implicitly suggest that any such risk could be re duced to a sufficient extent under MPRSA by11 seeking amendment of the MPRSA general permit to impose precisely the conditions they ask EPA to impose under TSCA. In a ddition, given the exis tence of the MPRSA general permit and the history of regulati on of SINKEX under MPRSA, EPA believes it is more efficient to continue to regulate SINKEX under the authorities of MPRSA, and not to also regulate SINKEX under TSCA. EPA is evaluating the request to revi se the MPRSA general permit and will respond shortly. As the Agency stated in i ssuing the TSCA section 9(b) determination, EPA “is prepared to revise the Navy permit, or revoke it, in the even t that the results of further studies demonstrate an unexpected una cceptable risk to human health or the environment from SINKEX.” (Ref. 5). b. Petitioners have not shown that the re quested PCB removal rules would be

necessary. The petitioners have not shown thata rule to require removal of PCBcontaminated materials in concentrations of ≥ 50 ppm would be necessary if EPA were to withdraw the TSCA section 9( b) determination, given that the export of ships under the SINKEX program containing PCBs in concentrations > 50 ppm would be prohibited by existing TSCA regulations, absent rulemaki ng under TSCA section 6(e)(3) allowing the export. 40 CFR 761.97. The petitioners have no t shown that a rule to require removal of PCB-contaminated materials in concentr ations <50 ppm to the maximum extent practicable would be necessa ry, since the MPRSA general permit already does require removal of PCB-contaminated materials to the maximum extent practicable. 40 CFR 229.2(a)(4). In addition, the pe titioners do not provide an assessment of risks specifically associated with PCBs in concentrations <50 ppm.
2. Requests for rules requiring studies. The petitioners request that the Agency12 issue a TSCA rule to require studies at multiple recent SINKEX sink sites to determine whether PCB-contaminated materials in concentrations of <50 ppm constitute “trace” contaminants, “such that their dumping will not cause undesirable effects including the possibility of bioaccumulation.” The petitione rs’ request is not entirely clear, but EPA interprets it as a request fo r monitoring of PCB concentratio ns in the vicinity of sunken SINKEX vessels to determine, based on the most recent data on the toxicity, persistence, and bioaccumulation of PCBs, whether material s on vessels with PCB concentrations of <50 ppm would constitute trace contaminants. The petitioners do not attempt to conform their request to TSCA; they do not address the applicable TSCA section 4 findings. For the Agency to issue a TSCA secti on 4 test rule to require testing on a chemical substance, the Agency must find the following:

● The chemical substance may present unreasonab le risk of injury to health or the environment.

● There are insufficient data or experience upon which the effects of the chemical substance can reasonably be determined or predicted.

● Testing of the chemical substance is necessary to provide the missing data. An alternative set of findings could support a section 4 rule as well:

● The chemical substance is or will be produced in substantial quantities and it enters or may reasonably be anticipated to en ter the environment in substantial quantities or there is or may be significan t or substantial human exposure.

● There are insufficient data or experien ce upon which the effects of the chemical substance can reasonably be determined or predicted.13

● Testing of the chemical substance is necessary to provide the missing data. The petitioners do not address these requi red statutory findings. Nor does the request provide a basis for EPA to make the fi ndings. For example, th e petitioners do not provide sufficient information to demonstr ate that there are insufficient data or experience upon which the effects of the PCBs in question can reasonably be determined or predicted, or that the requested monito ring would be necessary to develop any such missing data. Among other things, the petitione rs do not demonstrate that the monitoring they request would be an effective way to determine whether PCB-contaminated materials at concentration <50 ppm constitute trace contaminants. The petitioners offer no explanation of how PCBs detected in th e vicinity of a sunken vessel could be correlated with PCB-contaminated materials on the ship at concentrations <50 ppm as opposed to materials on the ship with PCBs at concentrations >50 ppm. EPA is not prepared, based on the information provided in the request, to initiate a rulemaking under TSCA to require the requested monitoring. Furthermore, testing requirements unde r TSCA section 4 can be imposed only upon manufacturers and processors of chem ical substances. Manufacturing and processing of PCBs were, for the most part, banned by TSCA section 6(e) more than 30 years ago. Although some incidental manufact uring and processing of PCBs continues, EPA believes it makes more sense that monito ring for PCBs in connection with SINKEX, if any is necessary, fall under the authority of MPRSA rather than TSCA, particularly given the connection between the ocean dumpi ng activity authorized under the MPRSA general permit for SINKEX and the PCB m onitoring requested. This approach is reinforced by the TSCA section 9(b) determ ination and is consistent with the TSCA14 section 9(b) provision requiri ng the Administrator to “coor dinate actions taken under [TSCA] with actions taken under other Federal la ws administered in whole or in part by the Administrator.” The petitioners’ request regarding studies relating to “other potentially hazardous pollutants” such as heavy metals, asbestos , and radioactive substances is similarly unsupported in the submission. The petitioners do not attempt to conform the request to TSCA section 4. In addition, the petitioners do not even identify (other than asbestos) the chemical substances or mixtures that they would like tested. For these reasons, EPA denied the request for TSCA rules. VIII. References The following is a list of the documents that are specifically referenced in this document and placed in the docket that was established under docket ID number EPAHQ-OPPT-2012-0495. For information on accessing th e docket, refer to Unit I.B. of this document. 1. “Agreement between the Department of the Navy and the United States Environmental Protection Agency, Washington, DC”, August 19, 1996. 2. August 2, 1999, letter from EPA Office of Wetlands, Oceans, and Watersheds Director Robert Wayland to Deputy Assistant Secretary of the Navy Elsie Munsell. 3. Basel Action Network, Sierra Club, and the Center for Biological Diversity. “U.S. Navy Ocean Dumping Program; Petition to EPA to Protect Human Health and the Environment from Unreasonable Risks Associ ated with the Navy’s Sinking Exercise Program (SINKEX),” (April 2012). 4. July 10, 2012, letter from EPA Office of Chemical Safety and Pollution15 Prevention’s Acting Assistant Administrator Jim Jones to the Basel Action Network, the Sierra Club, and the Center for Biological Diversity. 5. September 13, 1999, letter from EPA Ad ministrator Carol M. Browner to the Honorable Richard Danzig, and enclosure (Decision Memorandum --EPA regulation of PCBs on Vessels Used for Navy Sinking Exercise).t6

List of Subjects Environmental protection, Polychlorinated biphenyls, SINKEX.

ActingiAssistant Administrator, 

### ffice of Chemical Safety and Pollution Prevention.