A battle is being waged over the planned, but allegedly illegal, export of a former U.S. Navy hospital ship M/V Sanctuary. Decommissioned in 1989, the battle certainly isn’t over whether a license should have been obtained from the Directorate of Defense Trade Controls (“DDTC”).

No, it’s all being waged around the Toxic Substances Control Act (TSCA), yet another federal statute that may have an impact on exports. Section 12 of TSCA, 15 U.S.C. § 2611, requires prior notice to the EPA of exports of certain substances and section 6(e), 15 U.S.C. § 2605(e), through its prohibition on introduction of polychlorinated biphenyls (“PCBs”) into commerce, forbids the export of PCBs. And, according to opponents of the export, Sanctuary likely contains PCBs.

In 2003, a federal district court, relying on section 6(e) of TSCA entered a temporary restraining order forbidding the export of WWII-era decommissioned ships to the United Kingdom. The EPA had issued in May 2003 “enforcement discretion” letter saying that it would not enforce section 6(e) to prevent the export of naval vessels if certain conditions were met. The district court provisionally accepted the plaintiff’s argument that the EPA was required to engage in a formal rulemaking proceeding to adopt this exemption. Since then, no WWII-era naval ships have been exported.

The Sanctuary was sold in 1989 to a non-profit organization which turned it into a drug rehabilitation center and moored it in Baltimore. Subsequently the organization defaulted on moorage payments and the ship was auctioned off August 21, 2007 on the Baltimore Court House steps to Potomac Navigation Inc. The Basel Action Network, a group devoted to opposing toxic waste exports, is claiming that Potomac Navigation intends to export the ship to a breaking yard in India or Bangladesh where it will be demolished for scrap. The EPA has reportedly contacted the new owners to request permission to board the ship to sample for PCBs.

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