[Federal Register Volume 77, Number 138 (Wednesday, July 18, 2012)]
[Rules and Regulations]
[Pages 42181-42185]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17381]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OPPT-2012-0495; FRL-9356-2]


Polychlorinated Biphenyls (PCBs); Disposition of Request 
Submitted Under TSCA Section 21

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of reasons for Agency response.

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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 rules under the Toxic 
Substances Control Act (TSCA). The reasons for the denial are discussed 
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 EPA under the Marine Protection, 
Research, and Sanctuaries Act (MPRSA).

DATES: July 18, 2012.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Peter Gimlin, National Program Chemicals Division (7404T), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: 
(202) 566-0515; fax number: (202) 566-0473; email address: 
gimlin.peter@epa.gov.
    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 manufacture, process, distribute 
in commerce, use or dispose of PCBs. Since other entities may also be 
interested, 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 applicability 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 available, e.g., Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, will be publicly 
available only in hard copy. Publicly available docket materials are 
available 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 Reading Room 
hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal 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 visitors are required to show 
photographic identification, pass through a metal detector, and sign 
the EPA visitor log. All visitor bags are

[[Page 42182]]

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 certain actions 
to protect human health and the marine environment from PCBs that leach 
from ships 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 under 
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 will 
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.

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 repeal 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 MPRSA, also referred to as the 
Ocean Dumping Act, because unregulated 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 from 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 United 
States flag, or in the case of a United States department, agency, or 
instrumentality, 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 dumping of any material 
transported from a location outside of the United States into certain 
ocean waters of the United States. MPRSA section 3(f) defines the term 
``dumping'' broadly (to mean ``a disposition of material'') but the 
term excludes, among other 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 
waters, for a purpose other than disposal, when such construction or 
such placement is otherwise regulated by Federal or State law or occurs 
pursuant to an authorized Federal 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 concurrence) 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 vessels 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 subject to four conditions:

    1. Such vessels may be sunk at times determined 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 conducted 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 
proximity to the proposed disposal site]; and
    4. Before sinking, appropriate measures shall 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 without 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 point 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 debris or contributing to chemical pollution. 33 
CFR 229.2(a).

    The Navy also must make an annual report to EPA setting forth the 
name of each vessel used as a target vessel, its approximate 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 that PCB 
sediment concentrations would pose no notable threat to benthic 
organisms. Other Navy studies had 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 number of vessels prepared according to the terms of the 
Agreement (Ref. 1).
    In 1999, EPA signed a letter designed to clarify 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 permit and its requirements, including as interpreted to 
impose specific requirements relating to materials containing PCBs. The 
terms and conditions of EPA's 1999 interpretation were accepted by the 
Navy as of August 2, 1999 (Ref. 2).
    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

[[Page 42183]]

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 temperature and pressure present on a sunken vessel (i.e., 
representative of conditions authorized under the MPRSA general 
permit).
    The 1999 letter explained EPA's interpretation of the general 
permit requirements to clarify and specify, with regard to PCBs, the 
manner in which the Navy could proceed with SINKEX activities 
(transport for the purposes 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 general 
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 any 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 
cooling or cutting oil, and containers containing liquid PCBs at 
>=50 ppm [parts per million].

    EPA also explained its belief that it is often practicable to 
remove specified materials containing non-liquid PCBs before sinking a 
vessel. To the extent that removal is practicable, EPA explained that 
these non-liquid PCBs are required to be removed 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 could 
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 that EPA take certain 
actions to protect human health and the marine environment from PCBs 
that leach 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 alternative, enact 
rules under TSCA. Specifically, the submission asks EPA to:
    1. Require all PCB-contaminated materials in concentrations of 50 
ppm or greater to be removed from SINKEX vessels prior to sinking.
    2. Require all PCB-contaminated materials in concentrations of <50 
ppm to be removed from SINKEX vessels prior to sinking to the maximum 
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 include 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 Request for Rules Under TSCA

A. What was EPA's response?

    In a letter dated July 10, 2012, EPA denied the petitioners' 
request 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 for 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 solely 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 under MPRSA, not TSCA. This section 9(b) 
determination is not subject to TSCA section 21. Section 21 of TSCA 
allows any person to petition ``to initiate a proceeding for the 
issuance, amendment, or repeal of a rule under section 2603, 2605, or 
2607 of this title or an order under section 5(e) or 6(b)(2) of this 
title'' (15 U.S.C. 2620(a)), but not a determination 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 
Administrator. If the Administrator determines that a risk to health 
or the environment associated with a chemical substance or mixture 
could be eliminated or reduced to a sufficient extent by actions 
taken under the authorities contained in such other Federal laws, 
the Administrator shall use such authorities to protect against such 
risk unless the Administrator determines, in the Administrator's 
discretion, 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 TSCA 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 MPRSA.'' (Ref. 5). The Administrator further stated: ``I 
have not identified a public interest in the regulation under TSCA of 
the transportation and disposal of PCBs associated with SINKEX.'' (Ref. 
5). Consequently, the Administrator determined that ``PCBs on SINKEX 
vessels should 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 risks that may not be adequately addressed by the 
current permit could not be reduced to a sufficient extent by action 
taken

[[Page 42184]]

under the authority of MPRSA, or that the public interest would be 
served by regulation of SINKEX under TSCA in addition to regulation 
under MPRSA. The petitioners implicitly suggest that any such risk 
could be reduced to a sufficient extent under MPRSA by seeking 
amendment of the MPRSA general permit to impose precisely the 
conditions they ask EPA to impose under TSCA. In addition, given the 
existence of the MPRSA general permit and the history of regulation 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 revise the MPRSA general permit 
and will respond shortly. As the Agency stated in issuing the TSCA 
section 9(b) determination, EPA ``is prepared to revise the Navy 
permit, or revoke it, in the event that the results of further studies 
demonstrate an unexpected unacceptable risk to human health or the 
environment from SINKEX.'' (Ref. 5).
    b. Petitioners have not shown that the requested PCB removal rules 
would be necessary. The petitioners have not shown that a rule to 
require removal of PCB-contaminated 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 rulemaking under TSCA section 6(e)(3) 
allowing the export. 40 CFR 761.97. The petitioners have not shown that 
a rule to require removal of PCB-contaminated materials in 
concentrations <50 ppm to the maximum extent practicable would be 
necessary, 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 petitioners 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 Agency 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 petitioners' request is not 
entirely clear, but EPA interprets it as a request for monitoring of 
PCB concentrations in the vicinity of sunken SINKEX vessels to 
determine, based on the most recent data on the toxicity, persistence, 
and bioaccumulation of PCBs, whether materials 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 section 4 test rule to require 
testing on a chemical substance, the Agency must find the following:
     The chemical substance may present unreasonable 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 enter the environment in substantial quantities or there is or may 
be significant or substantial human exposure.
     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.
    The petitioners do not address these required statutory findings. 
Nor does the request provide a basis for EPA to make the findings. For 
example, the petitioners do not provide sufficient information to 
demonstrate 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 monitoring would be necessary to 
develop any such missing data. Among other things, the petitioners 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 the 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 under TSCA section 4 can be 
imposed only upon manufacturers and processors of chemical 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 
manufacturing and processing of PCBs continues, EPA believes it makes 
more sense that monitoring 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 dumping activity 
authorized under the MPRSA general permit for SINKEX and the PCB 
monitoring requested. This approach is reinforced by the TSCA section 
9(b) determination and is consistent with the TSCA section 9(b) 
provision requiring the Administrator to ``coordinate actions taken 
under [TSCA] with actions taken under other Federal laws 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 EPA-HQ-OPPT-2012-0495. For 
information on accessing the 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 
Associated with the Navy's Sinking Exercise Program (SINKEX),'' 
(April 2012).
4. July 10, 2012, letter from EPA Office of Chemical Safety and 
Pollution Prevention's Acting Assistant Administrator Jim Jones to 
the Basel

[[Page 42185]]

Action Network, the Sierra Club, and the Center for Biological 
Diversity.
5. September 13, 1999, letter from EPA Administrator Carol M. 
Browner to the Honorable Richard Danzig, and enclosure (Decision 
Memorandum--EPA regulation of PCBs on Vessels Used for Navy Sinking 
Exercise).

List of Subjects

    Environmental protection, Polychlorinated biphenyls, SINKEX.

    Dated: July 10, 2012.
James Jones,
Acting Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2012-17381 Filed 7-17-12; 8:45 am]
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