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Coalition Letter to Felicia Marcus, Regional Administrator of Region IX, Regarding Defense Department PCBs Going to Wake Island


May 10, 2000

To: Felicia Marcus, Regional Administrator, Region IX, Fax: 415-744-2499

Cc: Carol Browner, Administrator, EPA, Fax: 202-501-1450
Julie Anderson, RCRA Regional Advisor, Fax: 415-744-1044
John McCarroll, EPA Region IX, Fax: 415-744-1044
Norm Lovelace, EPA Region IX, Fax: 808-955-5067
Joyce Olin, EPA Headquarters, Federal Facilities, Fax: 202-501-0644

Date: May 10, 2000

Fax letter length: 4 pages including this one

Re: URGENT: PCB Waste to Wake Island Concerns

Region IX Environmental Protection Agency
75 Hawthorn St.,
San Francisco, California 94105


Dear Sir or Madame:

We the undersigned organizations are very concerned over the planned transport of 14 sea-going containers of PCB contaminated wastes by the Department of Defense (DOD) to Wake Island. We wish in this letter to spell out the reasons the US Environmental Protection Agency (EPA) should take action to require further testing of the waste before it arrives at Wake Island.

Basel Convention Obligations Apply to Third Country Exports

Due to the USA PCB import ban in place as part of the Toxic Substances Control Act (TSCA), it is increasingly clear that the DOD eventually intends to re-export this waste from Wake Island to a third country (other than the United States or Japan). Export to a third country by wastes under the control of the United States (at Wake Island) would almost assuredly invoke the requirements and obligations of the Basel Convention by virtue of the fact that the importing country would be a Party to that Convention even while the United States is not.

The Basel Convention requires a full characterization of wastes (Article 4, para 2 (f)). While the Basel Convention does have a 50 ppm de-minimis level for PCBs, and the DOD has assured us that these wastes are below 50 ppm, the Basel Convention does not have a similar de-minimis for dioxins, furans and chloro-benzenes. These constituents are highly likely to be a part of this waste stream.

Authorities in Canada had previously assured some of us that if this same waste were to have been off-loaded in Vancouver as originally envisaged, they would have required further testing for dioxins and furans and if they found “one nanogram” of these compounds, they would insist that the waste was a Basel Convention hazardous waste. This interpretation is likely to be just as true if/when the waste is planned to be exported to the UK or France should the DOD choose those countries for PCB disposal. As was the case in Canada, the public in such European countries will not be pre-disposed to accepting US defense wastes into their territories and such governments will likely follow the letter of the law as did Canada.

If those countries require further waste characterization after the waste arrives at Wake island, and prior to its export from there, as is expected, and indeed the waste is found to contain dioxins and furans or chloro-benzenes, even at low levels, the recipient countries will be able to state that the waste in question is indeed a Basel waste.

As a Basel hazardous waste, there will need to be a special bilateral agreement between the US and the recipient country (required for trade with non-Parties) (Article 4, para 5 and Article 11) and further that said agreement would have to be consistent with the obligations of the Basel Convention (Article 11, para 1).

A bilateral agreement itself might be difficult to achieve in the climate of public opposition. Additionally Basel obligations include a requirement that hazardous wastes can only be traded a) for recycling, or b) if the exporting country lacks adequate facilities for disposing of the waste (Article 4, para 9). It will be very easy for a recipient country to make the case that (a) and (b) criteria do not apply as the United States has adequate technical capacity to dispose of the waste and PCBs are not to be recycled.

While some observers might believe that the above arguments are overly technical, they may fail to appreciate the strong public sentiment against and related political response to such imports in the recipient countries as was recently witnessed in Canada and the United States mainland.

Methodology Not According to Domestically Acceptable Procedures

Furthermore, it is likely that the waste consignment does indeed contain levels of PCBs above 50 ppm. In the course of the investigation of these particular wastes it has become clear that the standardized methods expected domestically for analysis of PCB wastes have not been applied to this consignment. It is our understanding that a variety of labs were used, both military and foreign civilian labs, each operating under vastly different protocols and procedures. As some of the wastes that were exported were very close to 50 ppm (for example container Number One contains some PCB waste listed at 49.3 ppm) this raises considerable doubt as to whether some of these wastes are actually above 50 ppm and thus would undoubtedly fall under the obligations of TSCA and the Basel Convention. Further testing using proper procedures and approved labs would provide greater confidence as to whether these law applied.

PCB Waste “Stuck” on Wake Island

It is very possible then that the wastes in question due to the fact that they will, following further testing be considered Basel Hazardous Wastes, and subject to a bilateral agreement and fulfillment of all Basel obligations by virtue of higher concentrations or by the discovery of dioxins and furans or chloro-benzenes. Once the wastes are considered Basel wastes the chances of their export being denied becomes quite high in our view.

Thus it is very possible that once the waste is allowed to be placed on Wake Island, it will become “stuck” there for a very long period of time.

It might be very difficult to export it to the United States unless an exemption is sought under the TSCA ban. This process will take some time and will not guarantee success. It will be politically difficult to place it back in Japan once it leaves there. Finally, export to a third country may, as explained above, prove impossible. The very real probability that this waste will remain in regulatory limbo in Wake Island could have serious environmental repercussions.

Ignorance Will Not Help

In regard to the issue of requiring better characterization of the waste, an “ignorance is bliss” policy by EPA at this point will not serve to alleviate the likely outcome of the waste becoming stuck on Wake Island. As explained above, whether EPA is inclined to test the waste for its full characterization of PCB concentrations and the presence of chloro-benzenes, dioxins, or furans, or not prior to its delivery to Wake Island, the recipient countries can demand that this take place prior to receiving the waste.

For the above reasons we feel it is far better to know precisely what is in the waste now and prior to export to Wake Island in order to determine whether these wastes might be considered Basel or TSCA hazardous wastes thus making their eventual export unlikely. This is the prudent way to avoid these wastes remaining in the inappropriate site of Wake Island for an indeterminant period of time.
What about Future Shipments?

Finally, these 14 containers are said to be but one fifth of the total PCBs remaining in Japan. Many more shipments in future are expected, not only from Japan but from bases around the Pacific Rim and the world. Many of these future shipments will certainly be above 50 ppm. Will DOD continue to try and export this waste to incinerators in foreign countries? Or will we all take a collective deep breath, and try to solve the bigger problem at hand -- beginning now with this shipment. Shipping this waste to Wake Island certainly does nothing to solve the real problem.

What is needed now is a move to renegotiate the larger picture with the Japanese government and NGOs. It is quite likely that the deadline imposed by Japan for removal of these wastes can be extended for the purposes of a) looking for other mutually beneficial and environmentally sound waste destruction options and b) for determining the complete characterization of the waste in question. These options could include a lifting of the import ban for these types of wastes provided they are not destined for incineration -- a method which in our view contradicts the global objective of eliminating persistent organic pollutants (POPs).

We believe it is within the authority and rights for EPA to request the DOD to not move the waste into an area under the jurisdiction of EPA until further characterization of the waste takes place. This can be rationalized by the admission that this is but a temporary measure, when the full pathway of disposal has not been presented by DOD. Indeed if EPA defers this responsibility, they would be remiss in their oversight over Wake Island. Following this necessary action, we the undersigned organizations, stand ready to assist the EPA and the DOD in providing a rational solution to the long term problem of PCB elimination.

Sincerely yours,

Jim Puckett, (signed on behalf of all of the undersigned organizations)
Coordinator, Basel Action Network

Jane Williams
California Citizens Against Toxics

Jack Weinberg
Environmental Health Fund

Marti Sinclair
Vice Chair of Environmental Quality Strategy Team, Sierra Club

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