circumstances prohibited under TSCA. However, as mentioned above, any PCBs that remain 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 SINKEX under TSCA, SINKEX would be unlawful, and subject to citizen suit...” 28
With the Navy’s success in achieving a TSCA exemption for all SINKEX vessels in 1999, they 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. The 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 as mentioned above.
EPA’s Position: “EPA opposes this proposal, which removes safeguards 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 Control Act, not just the PCB prohibitions under TSCA section 6(e), as long 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 regulations as hazardous waste as provided by the Solid Waste Disposal Act (SWDA).”29 It remains unclear why the EPA
Official letter from Carol Browner, EPA Administrator, to Richard Danzig, Secretary of the Navy, September 13, 1999 EPA’s comments on DoD’s FY04 Legislative Proposals to the 28 29
BASEL ACTION NETWORK
did not take a similar stance for the SINKEX
continuation of the artificial reefing program only if it is subject to TSCA, which requires PCBs be remediated to below 50 ppm and disallows PCB export for disposal.
“DoD is attempting to create an exemption from TSCA by having the Administrator transfer authority under section 9 of TSCA to other statutes…DoD claims that TSCA requirements will be met by these other statutes and the proposed reefing standards plan. However, if DoD is completely exempt from TSCA, then section 9 would no longer apply and the transfer of authority to other statutes would not be available as an option to DoD.”30
As mentioned above, the EPA Administrator authorized an exemption from TSCA for SINKEX by transferring authority under section 9 of TSCA to MPRSA. According to the EPA’s position above, this transfer of authority should for the very same reason not be permitted.
Helicopter machine gunner fires .50 caliber rounds on the USNS SATURN target as part of a SINKEX training event off the Atlantic coast. The sinking of this 10,205 ton vessel was exempt from TSCA. Image Source: U.S. Navy photo by Mass Communication Specialist Seaman Leonard Adams
30 National Defense Authorization Act: http://www.cpeo.org/pubs/EPA%20RRPI%20Response.pdf IBID.