Don’t Sink That Battle Ship: New Suit Demands Tighter Rules on Navy’s Disposal of Vessels at Sea

Environmental groups filed suit last week in California federal court against the United States Environmental Protection Agency (EPA) alleging the agency failed to adequately regulate a federal ship sinking program, which the groups assert pollutes the sea with toxic polychlorinated biphenyls (PCBs).

The federal program, known as SINKEX, allows the Navy to engage in live fire exercises on decommissioned naval warships to practice gunnery, torpedo accuracy, and missile drills, while simultaneously disposing of obsolete ships. Basel Action Network (BAN) and the Sierra Club allege in their complaint that the ship disposal activities of the federal program pose a substantial and unreasonable risk to human health and the environment because PCBs present in electrical cable insulation, fiberglass bulkhead insulation, paints, adhesives or rubber mounts and gaskets aboard the old vessels eventually leach into the marine environment. Once these PCBs enter the marine environment they accumulate in the bodies of fish and other marine organisms that humans consume.

The groups have asked the court to compel EPA to initiate rulemaking under the Toxic Substances Control Act (TSCA), which authorizes EPA to regulate the disposal of PCBs, to more stringently regulate the Navy’s remediation of vessels designated for sink exercises, or, alternatively, to revisit the program’s ocean dumping permit.

The SINKEX program is currently regulated under the Marine Protection, Research and Sanctuaries Act (MPRSA), which prohibits ocean dumping, except as provided by permit. According to the complaint, the program’s MPRSA general permit essentially acts as a TSCA waiver and requires the Navy to remove, to the greatest extent practical, PCB transformers and capacitors from vessels designated for sinking, as well as solid PCB items if those items are readily detachable. Based on recent scientific studies, however, BAN and Sierra Club argue that these remediation requirements are not stringent enough and that only trace amounts of PCBs should be allowed to remain on board target vessels. According to the complaint, following the sinking of the ex-USS Oriskany in the Gulf of Mexico in 2006, the Florida Fish and Wildlife Conservation Commission sampled and tested fish caught in the vicinity of the sunken vessel over a four year period. Average PCB concentrations in fish caught in the vicinity of the ex-Oriskany, now an artificial reef, exceeded both EPA and Florida Department of Health maximum levels in each of the first four separate sampling events.

In July 2011, BAN and Sierra Club petitioned EPA to more stringently regulate the Navy’s ship disposal activities; however, according to the complaint, EPA failed to respond to the petition by the statutory deadline, prompting the present suit.

The Navy’s sink exercises are most frequently conducted off the shores of Hawaii, Southern California, the east coast, and Puerto Rico. According to the complaint, since 2000, the Navy has sunk 109 vessels through the SINKEX program.

The case is Basel Action Network, et al. v. U.S. Environmental Protection Agency, et al., (Case No. 3:11-cv-06185) in the U.S. District Court for the Northern District of California.