Neil Carman 03/26/2008 11:21 AM To Group Rcra-Docket@EPA cc bcc Subject 9th Circuit Decision in 1997 Sierra Club v. U.S. Environmental Protection Agency SIERRA CLUB Lone Star Chapter March 27, 2008 Stephen Johnson Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, D.C. 20460 Resource Conservation and Recovery Act (RCRA) Docket Center Via electronic submission at Docket ID No.: EPA-HQ-RCRA-2008-0123 Re: EPA needs to review a 1997 federal court ruling against a EPA Proposed TSCA Import Exemption similar to EPA's Proposed TSCA Exemption for Veolia ES Technical Solutions, LLC to illegally import and burn up to 40 million pounds of PCB waste at its Port Arthur, Texas commercial hazardous waste incinerator Dear Administrator Johnson: The Sierra Club's Lone Star Chapter is submitting a copy to EPA of a 1997 federal court ruling against an EPA Proposed TSCA Import Exemption in 1996 that appears quite similar to EPA's Proposed TSCA Exemption for Veolia ES Technical Solutions, LLC to illegally import and burn up to 40 million pounds of PCB waste at its Port Arthur, Texas commercial hazardous waste incinerator. Federal court decisions have upheld the intent of the 1976 Congressional absolute ban on PCB imports even when the EPA approved a prior import exemption in 1996 with a remarkably similar TSCA PCB petition by S.D. Myers of Ohio attempting to circumvent the intent of Congress. On July 7, 1997, a three judge panel for the 9th Circuit Court of Appeals unanimously ruled against a 1996 EPA proposed PCB import exemption stating: "EPA argues that it would be better able to protect the populace of this country from PCB contamination if it were allowed to import foreign PCB contaminants into our borders for disposal. However, Congress has spoken clearly on this subject and the regulation violates the provisions of the statute. Our inquiry ends at the first prong of Chevron. Id. at 842." Finally, in its conclusion the 9th Circuit Court finds that "EPA lacked the statutory authority to promulgate the Import for Disposal Rule, which violates the PCB manufacture ban contained in TSCA S 6. The rule is, therefore, OVERTURNED, and we need not reach the other arguments that petitioner raises." (Sierra Club v. U.S. EPA, case 96-70223) The information is being submitted on behalf of Lone Star Chapter's Sierra Club members and community persons in regards to the EPA's proposed decision to grant an exemption under the Toxic Substances Control Act (TSCA) to Veolia ES Technical Solutions, LLC (Veolia) as noticed in the Federal Register March 6, 2008 (FR 12053-61). The EPA's proposed TSCA exemption decision is an effort to allow PCB importation, transportation, handling and incineration in the United States by Veolia, even though such PCB importation into the U.S. has been deemed specifically illegal under the TSCA law passed by Congress in 1976. On November 16, 2006, Veolia petitioned the EPA for a TSCA exemption seeking to import by truck transport up to 20,000 tons of hazardous liquid PCB waste in drums to its Port Arthur, Texas commercial hazardous waste incinerator from storage sites in Mexico, which raises significant transportation hazards since the PCBs will be transported by trucks along a major highway route more than 450 miles long from Mexico through and close to heavily populated urban areas in the United States. Several million people live along the transport corridor that Veolia's truck will travel. Veolia's Port Arthur toxic waste incinerator is permitted under TSCA to burn PCBs, but the Sierra Club's Lone Star Chapter has significant concerns over the use of toxic waste incinerators as exceptionally dangerous devices to operate while safer, cleaner, non-incineration disposal alternatives have existed for more than a decade. In fact, EPA approved the first alternative, non-incineration PCB treatment technology in 1994 using a metal catalyst to dechlorinate PCBs at room temperature without using dangerous combustion devices or creating harmful byproducts. Dechlorination technology was developed earlier to the 1994 EPA approval. PCBs are exceptionally toxic chemicals by themselves, but incineration is far from 100% complete and produces a range of harmful byproducts and unburned PCBs. Incineration of PCBs produces a variety of compounds including several types of polychlorinated hydrocarbons that are even more toxic than PCBs such as dibenzo-p-dioxins and dibenzofurans in addition to carcinogenic polycyclic aromatic hydrocarbons and numerous other products of incomplete combustion. The most toxic dioxin produced by PCB incineration is 2,3,7,8-tetrachlorodibenzo-p-dioxin or TCDD. TCDD is a known human carcinogen and one of the most toxic chemicals known to science. In conclusion, the Sierra Club's Lone Star Chapter strongly opposes the EPA's Proposed TSCA Import Exemption for Veolia ES Technical Solutions, LLC to illegally import and burn up to 40 million pounds of PCB waste at its Port Arthur, Texas commercial hazardous waste incinerator. Sincerely, Neil J. Carman, Ph.D. Clean air program director Lone Star Chapter of Sierra Club 1202 San Antonio Street Austin, Texas 78701 tel: 512-472-1767 fax: 512-477-8526 Neil_Carman@greenbuilder.com