[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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