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14

2011

DISHONORABLE DISPOSAL

Toxic Substances Control Act

Artificial Reefs The Toxic Substances Control Act (TSCA) regulates the distribution in commerce and disposal of polychlorinated biphenyls (PCBs). Prior to 2001, the U.S. Environmental Protection Agency’s (EPA) Office of Pollution, Prevention, Pesticides and Toxics program viewed the sinking of Navy vessels as artificial reefs continued use of material under the guidance of TSCA. However, in 2001, the EPA changed the classification of artificial reefing from continued use to disposal. EPA determined that the original use of the vessel had expired, and therefore the authorized use of PCBs within the construction of the vessel had expired as well. PCB materials left in place are not authorized for continued use but rather must be declared waste and must be disposed of according the requirements of TSCA.

This change in vessel classification came as a result of the Spiegel Grove artificial reefing plan, which could not cost-effectively meet PCB remediation requirements of 2 parts per million (ppm). Incidentally, the reclassification raised the acceptable PCBs remaining on sunken vessels to 50 ppm.22

In sum, the EPA views the sinking of vessels for the purpose of artificial reefing an act of disposal under TSCA regulations and therefore has lowered the PCB remediation requirements to a 50 ppm level. However, at the same time, the EPA also considers the act of sinking vessels for the purpose of artificial reefing an act of non-disposal (placement) under the London Convention and MPRSA, thereby avoiding the dumping prohibitions and application of the black list. Thus, the EPA has allowed a double standard in order to facilitate ocean dumping. Under this arrangement, the Navy and MARAD are allowed to dump vessels with least burden

22

http://www.gsmfc.org/publications/GSMFC%20Number%20121. pdf

BASEL ACTION NETWORK

to the budgets of these agencies by externalizing the costs to the marine environment and the food chain.

If artificial reefing is considered disposal under the terms of TSCA, then it does not serve an alternative purpose and can be characterized as ocean dumping under the London Convention and MPRSA, and should be a prohibited action in which trace contaminant levels should apply. However, if a sunken vessel serves an alternative purpose (i.e. artificial reef, fisheries enhancement), the EPA should redefine the ocean disposal action as continued use or reuse. This adjustment would require remediation of PCBs to levels below 2 ppm, as opposed to the 50 ppm under the current disposal designation.

SINKEX Throughout the course of three decades up to the year 2000, SINKEX accounted for 8% of all

Navy ship disposals.23

In 1989, the Navy

limited the SINKEX program when PCBs were discovered in various shipboard components, and worked with the EPA to develop a two- phase research program to assess the risks associated with the ocean disposal of PCBs. These studies were conducted by the Navy, the agency seeking the TSCA exemption, rather than an independent third party. In March 1994, the Navy began the study – an ecological assessment based solely on available literature

on

PCB

solubility,

temperature,

and

partitioning characteristics to model the risks associated with PCB leaching, and concluded that there was “no notable threat to benthic organisms”24 resulting from sinking naval vessels at sea.

Based on these findings, the Navy and EPA negotiated an agreement in 1996 in which the EPA would use its discretion not to enforce TSCA against SINKEX for a limited number of

23 24 RAND Report Pg. 20 Decision Memorandum – EPA Regulation of PCBs on Vessels Used for Navy Sinking Exercises, September 7, 1999

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