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50

2011

DISHONORABLE DISPOSAL

discretion – a procedure which short-circuited the public review process required in TSCA.

BAN was advised that should MARAD’s ruse to reinstate foreign scrapping practices prove

successful,

a

new

precedent

would

be

established in which this same procedure could be used to export PCB laden ships to any nation, including developing countries. For this reason, BAN joined by the Sierra Club and their counsel Earthjustice, filed suit against MARAD

and the EPA in September 2003. time BAN released a report on the

At the same export to UK

case entitled Needless Administration’s Scheme Waste Ships to Europe.148

Risk: The to Export

Bush Toxic

While the lawsuit was not an overwhelming legal success, with much of the complaint being dismissed for procedural issues, it proved to be a policy success. As a result of the NGO suit, only 4 of the 13 ships intended for export were exported, and not a single U.S. government owned ship has been exported for scrap since that time. EPA also stated that they would never again attempt to export PCB laden ships without going through a full rulemaking process as stipulated in TSCA. Had MARAD’s attempt to reinstate foreign scrapping practices been successful, a new precedent would have been established that would have likely lead to the resurgence of policies that permitted export of PCB waste to South Asia.

Despite this, it is well known that MARAD continued to look toward new schemes to take advantage of cheap labor overseas. While the U.S. has suspended export of government owned vessels for scrapping, as recent as 2008 MARAD indicated that they were actively pursuing a change in regulation to allow for the reinstatement of the export disposal option.

MARAD stated, “Critical factors that impact

the

achievement

of

a

realistic

and

environmentally state’ include

responsible disposal ‘end the availability of foreign

148

http://www.ban.org/Library/Needless%20Risk%20Final.pdf BASEL ACTION NETWORK

recycling as a viable disposal option in 2009 and beyond…”149 MARAD cites a lack of domestic scrapping capacity as the reason for their request. Yet this claim is highly dubious as domestic ship recycling capacity has never yet

been met.

In 2009, Congress passed the omnibus military reform package known as the Duncan Hunter National Defense Authorization Act For Fiscal

Year

2009.150

This

legislation

in

Section

3502

set

a

prohibition

on

the

export

of

government

owned

vessels

except

where

the

Administrator

of MARAD can claim conditions apply:

that

all

of

the

following

(1)

a

compelling

need

for

dismantling

recycling or scrapping the vessel exists;

(2)

there is no available capacity in the

United

States

to

conduct

the

dismantling,

recycling, or scrapping of the vessel;

conducted in

full

compliance

with

environmental,

safety,

labor and

health

requirements for ship dismantling, recycling or scrapping that are equivalent to the laws of the United States; and

any dismantling, recycling, or scrapping

vessel

in

a

foreign

country

will

be

the

(3)

of

(4)

the export of the vessel under this

section will only be for dismantling, recycling, or scrapping of the vessel.

This ruling in Duncan Hunter appears for the moment to be the end of government plans to export ships for scrap because there is significant and expandable capacity to scrap ships in the United States.

i. Regulatory Agencies / Oversight MARAD is now charged with upholding the Duncan Hunter export ban.

Report to Congress on the Progress of the Vessel Disposal Program, US Department of Transportation, Maritime Administration, January 2008 (pg. 11) 149

h t t p : / / w w w . d o d . m i l / d o d g c / o l c / d o c s / 2 0 0 9 N D A A _ P L 1 1 0 417.pdf 150 -

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