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12

2011

DISHONORABLE DISPOSAL

actual placement of vessels for use as an artificial reef is not subject to regulation under the MPRSA.”15 Rather, Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act (RHA) regulate the placement of artificial reefs, but neither act properly regulates ocean disposal with respect to the

concerns

addressed

Convention.

Further,

Control

Act

the Toxic

Substances

(TSCA)

regulates

the PCB

under

the

London

remediation

requirements

for

vessel

disposal,

but

again

fails

to

meet

the

trace

contaminant

requirement of the London discussed in the next section.

Convention,

as

Section 404 of the CWA (33 U.S.C. § 1344) establishes a permitting program for the discharge of dredged or fill material to waters of the Unites States. Placement of a vessel in waters of the United States as an artificial reef constitutes a discharge of fill material and therefore requires a CWA section 404 permit when vessels are sunk within 3 miles of the U.S.

coastline.16

However,

all vessels

sunk as

artificial reefs

in the U.S.

since 2002

have been

sunk outside 3 miles of the U.S. coastline have therefore been exempt from CWA.

and

Section 10 of the RHA of 1899 (33 U.S.C. §§ 403), requires a permit for the construction of any structure (including artificial reefs) in or

over any States."17

"navigable water of the United This permit is granted for the

placement of an artificial reef on the basis of navigational safety without consideration of the artificial reef as a potential hazard to human health, to living resources or marine life.

Together, the CWA and RHA allow for artificial reefing activities to be exempt from the MPRSA. However, neither law provides an equivalent level of protection for the environment from black listed pollutants, such as PCBs, as

15

http://www.epa.gov/owow/oceans/habitat/artificialreefs/documen ts/appendixb.html

16

IBID.

17

IBID.

BASEL ACTION NETWORK

required of the MPRSA, the U.S. law tasked with enforcing the London Convention. The London Convention allows for the placement of material when “placement of matter serves an alternative purpose other than mere disposal thereof, provided that such placement is not contrary to the aims of this Convention,” (Article III (1)(b)(ii)). The aim of the convention is “… 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 life, to damage amenities or to interfere with other legitimate uses of the sea (Article I).

The EPA has exempted the ocean disposal of government vessels for the purpose of artificial reefing from the MPRSA. Yet the act of ocean disposal is not appropriately regulated under any other U.S. law.

SINKEX SINKEX is considered ocean dumping under MPRSA, and it is authorized under a general permit18 (avoiding a case by case approach), originally issued in 1977. This general permit was reevaluated between 1989 and 1999 after the Navy discovered PCBs in various shipboard components. The general permit was reissued in 1999 with new PCB remediation requirements. See the Toxic Substances Control Act section below for a discussion on this new rule making.

Currently, the general permit provides for an exception to the standing ocean dumping prohibition. This permit requires appropriate measures be taken “to remove to the maximum extent practicable all materials which may degrade the marine environment.” 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, floatable materials, mercury or fluorocarbon containing materials,

18

Section 102 of the MPRSA, codified 40 CFR 229.2

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