The purpose of this briefing note is to outline the general background and international implications of the global POPs Treaty that is currently being negotiated under UNEP and to outline some of the key issues that will be discussed at the Bonn negotiations and ICCA's position on those issues. This note can be used as a briefing backgrounder for industry representatives in discussing these issues with their government representatives in preparations for the Bonn Meeting which will take place 20-25 March 2000.

The negotiations on a new UN Environment Programme (UNEP) global treaty on Persistent Organic Pollutants (POPs) began in 1998, following significant related work in several countries and regional organizations (such as the U.N. Economic Commission for Europe's (UNECE) POPs Protocol). The negotiations are intended to create a general legal structure for banning, phasing out, and restricting the use or generation of POPs. The UNEP negotiations are focused on 12 POPs of "historical concern.¹" The system being developed in the negotiations contemplates additions to the list of POPs once the agreement is in force.

The chemical industry’s major objectives in the UNEP POPs negotiation are (1) numeric criteria and a listing process for candidate POPs that are risk based and science justified, and that focuses government attention on priority POPs, and (2) for risk management options to not be based only on elimination, but to include appropriate restrictions on emissions, use and/or production. There are significant differences in government views on the numeric criteria and the need for ban/phase-out language. The global chemical industry has supported the development of a POPs treaty, as agreed at the round table meeting of ministers and chemical industry CEOs held in Stockholm, Sweden in January of 1996. The UNEP POPs negotiations are expected to conclude in the year 2000, with the Bonn negotiation in March to be followed by a December negotiation in South Africa.

Governments implementing a global POPs agreement will commit themselves to ban or restrict the use or generation of chemicals identified as POPs. National and regional regulatory initiatives can be expected in the implementation of the agreement. It is possible that trade-related provisions would be imposed as a result of the agreement, notably bans on the export and/or import of listed POPs. The treaty will also govern financial and technical assistance to developing countries, and it is possible that those provisions will have some impact on the chemical industry. The treaty may also require governments to address the issue of obsolete stocks of pesticide and chemical POPs.

A key challenge under the treaty is the treatment of by-product POPs such as dioxins, furans and hexachlorobenzene. The industry’s goal is to assure that the risk management options included in the treaty reflect the special case of by-product POPs.

Environmental NGO groups are pressuring the negotiators to adopt a goal of "total elimination" of POPs, a goal which can only be ‘aspirational’ as its achievement is impossible in practice, articularly for the by-product POPs such as dioxin. In addition, environmental NGOs are advocating that the POPs treaty contain an explicit reference to the precautionary principle. An extreme interpretation of the Principle could force governments to support the removal of products from commerce until they are proven safe. The negotiators will likely not make final decisions on these issues until the last negotiating session.

The next POP negotiation will take place in Bonn, Germany on March 20-25, 2000. The following are a number of key elements that it is anticipated will be discussed in the negotiations and this paper outlines the positions that ICCA would hope to be supported.

• ICCA strongly supports the Decision 19/13C of February 7^th, 1997 of the UNEP Governing Council which provides the POPs negotiations with its mandate and ICCA believes that the POPs Treaty needs to be negotiated in the context of that mandate.

http://irptc.unep.ch/pops/newlayout/negotiations.htm

• Another foundation for the negotiations should be the work that was done in developing the POPs Protocol to the UNECE Convention on Long-range Transboundary Air Pollution. This should be particularly relevant in terms of the technical definitions and criteria that will be negotiated in the global POPs Convention.

http://irptc.unep.ch/pops/newlayout/negotiations.htm

Inclusion of the Precautionary Principle

• There are various proposals to include reference to the precautionary principle in the Preamble, in the Objective and in the Operational Sections of the Treaty. ICCA continues to favor including the precautionary principle in the Preamble only, as including it elsewhere could create new and ambiguous obligations for parties.
• It is important that the precautionary principle be defined as it is in Principle 15 of the Rio Declaration which reads:

"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."

• The language of the Governing Council Decision 19/13C (Paragraph 4) establishing the mandate for the negotiations should be used to define the objective in terms of: "to protect human health and the environment through measures which will reduce and/or eliminate emissions and discharges" of POPs.
• Alternate acceptable language for the Objective would be as set out in the UNECE POPs Protocol as follows:

"The objective of the present Protocol is to control, reduce or eliminate discharges, emissions and losses of persistent, organic pollutants."

• Key definitions to be developed include those for:
  • persistent organic pollutant
  • substance
  • emissions (for these 3 definitions, ICCA would support the definitions set out in Article 1 of the UNECE POPs Protocol)
  • best available techniques (ICCA would support the definition set out in Annex 5 of the UNECE POPs Protocol)

These UNECE definitions are set out in Attachment 1 to this paper.

• ICCA supports the current structure of this Article, as set out in the first 3 paragraphs, which divides POPs obligations into three areas, namely:
  1. prohibition of the production and use of certain POPs (to be listed in Annex A)
  2. restrictions on the production and use of certain POPs (to be listed in Annex B)
  3. reduction in the release of POPs that are byproducts (to be listed in Annex C)
• ICCA believes the listing of the 12 POPs within annexes A, B and C, as currently set out in the draft, is appropriate.
  • Annex A (for elimination) lists aldrin, endrin, hexachlorobenzene, toxaphene, chlordane, dieldrin, heptachlor, mirex, DDT and PCB.
  • Annex B (for restriction) lists DDT and PCB.
  • Annex C (for byproducts) is expected to list dioxins / furans and hexachlorobenzene.
  • None of these listings are final.
• For byproduct POPs, ICCA supports an objective of significant restrictions or minimization of releases. ICCA cannot accept any binding language which would suggest a requirement to ‘eliminate’ by-product POPs and would prefer to avoid objectives with respect to byproducts being framed in terms of there being an aim for elimination or ultimate elimination, as there is a risk of misinterpretation even of ‘aspirational’ language.
• Provisions for using best available techniques for the reduction in the release of POPs byproducts need to be tied to the type of practical definition set out in the UNECE POPs Protocol (see Definition section above) and this definition needs to be part of the Treaty, not something to be negotiated separately later.
• One provision in Article D (Paragraph 2 bis) concerns preventing the introduction of new POPs when "new substances" are developed. The draft text appears consistent with the new chemicals assessment and approval processes in major regulatory systems and the drafting language is generally seen as acceptable with none of the square bracketed text, that is currently under debate, presenting major issues.
• Management of wastes and stockpiles are also provided for in Annex D, in Paragraph 6. The key issue is whether byproducts (e.g. dioxins and furans) should be included under this obligation or whether it should only apply to intentionally produced products. ICCA believes that byproduct substances should not be included as they do not represent the same type of waste concerns and waste handling issues that would be implemented for intentionally produced products.

• This issue has not yet been formally discussed and is included in drafting language in Article Z as a placeholder at the present time. It is most readily discussed in terms of the relationship to Article D. ICCA supports general exemptions for: (1) De minimis contaminants in products, (2) constituents of articles already manufactured or in use, (3) site-limited or closed system intermediates and (4) for laboratory scale use. Similar general exemptions are provided for in Annex 1 and Annex 2 of the UNECE POPs Protocol. Within ICCA more detailed position papers on the issue of exemptions are being developed by both CMA and CEFIC.

• These provisions will determine what additional substances, beyond the initial 12 POPs, may be listed under the Treaty.
• A key issue is whether the precautionary principle should be referenced in Article F. As discussed above (see precautionary principle Section), ICCA believes that the precautionary principle should not be referenced in operational sections of the Treaty.
• Generally the provisions for adding substances to the POPs Treaty are well drafted and reflect the approach taken in the Governing Council Decision mandate and in the UNECE POPs Treaty.
• In Annex D the criteria for persistence, bioaccumulation, potential long-range environmental transport and adverse effects are set out for purposes of screening proposed persistent organic pollutants. For these criteria ICCA would support:
  • persistence being based on a ˝ life of the substance in water being greater than 6 months (instead of 2 months) and - even more importantly -
  • a K_ow > 5 (instead of 4) as an indicator of bioaccumulation.
• In the definition of adverse effects in Annex D (Paragraph 1(e)), it is essential that this be defined in terms of toxicity or eco-toxicity data and that the currently square bracketed phrase that is under discussion "[or other evidence of adverse effects that justify the consideration of the substance within the scope of this Convention]" be deleted. This is necessary for consistency with the UNEP Governing Council mandate Governing Council 19/13C, Paragraph 9) which calls for criteria based on toxicity. Allowing the square bracketed text to remain would provide for an open-ended interpretation of "adverse effects" that was not related to toxicity.

• The issue here is the protection of confidential business information. The provisions for its protection, that are currently contained in the drafting language in paragraphs 1 & 2 of Article G are square bracketed and under debate. ICCA has developed some proposals for appropriate protection of CBI that are set out in Attachment 2.

1 The twelve chemicals targeted in the negotiation are aldrin, chlordane, dieldrin, DDT, endrin, heptachlor, hexachlorobenzene, mirex, toxaphene, polychlorinated biphenyls (PCBs), dioxins and furans. [Back]

DEFINITIONS FROM UNECE POPS PROTOCOL

Article 1

"Persistent organic pollutants" (POPs) are organic substances that: (i) possess toxic characteristics; (ii) are persistent; (iii) bioaccumulate; (iv) are prone to long-range transboundary atmospheric transport and deposition; and (v) are likely to cause significant adverse human health or environmental effects near to and distant from their sources;

"Substance" means a single chemical species, or a number of chemical species which form a specific group by virtue of (a) having similar properties and being emitted together into the environment; or (b) forming a mixture normally marketed as a single article;

"Emission" means the release of a substance from a point or diffuse source into the atmosphere;

"Stationary source" means any fixed building, structure, facility, installation, or equipment that emits or may emit any persistent organic pollutant directly or indirectly into the atmosphere;

Annex V, Paragraph 2

"Best available techniques" (BAT) means the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and their impact on the environment as a whole:

• ‘Techniques’ includes both the technology used and the way in which the installation is designed, built, maintained, operated and ecommissioned;
• ‘Available’ techniques means those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the territory of the Party in question, as long as they are reasonably accessible to the operator;
• ‘Best’ means most effective in achieving a high general level of protection of the environment as a whole.

In determining the best available techniques, special consideration should be given, generally or in specific cases, to the factors below, bearing in mind the likely costs and benefits of a measure and the principles of precaution and prevention:

• The use of low-waste technology;
• The use of less hazardous substances;
• The furthering of recovery and recycling of substances generated and used in the process and of waste;
• Comparable processes, facilities or methods of operation which have been tried with success on an industrial scale;
• Technological advances and changes in scientific knowledge and understanding;
• The nature, effects and volume of the emissions concerned;
• The commissioning dates for new or existing installations;
• The time needed to introduce the best available technique;
• The consumption and nature of raw materials (including water) used in the process and its energy efficiency;
• The need to prevent or reduce to a minimum the overall impact of the emissions on the environment and the risks to it;
• The need to prevent accidents and to minimize their consequences for the environment.

Article G. 1. The Parties shall, in a manner consistent with their laws, regulations and practices, exchange publicly available information relevant to, etc.

Article G. 2. Parties to this Convention shall take all necessary steps to protect confidential information. The following information shall not be regarded as confidential for the purposes of this Convention:

1. The information referred to in Annexes __ through __, submitted pursuant to Articles __ and __;
2. The Information contained in the risk profile developed pursuant to Article F;
3. The chemicals for which national implementation plans have been developed, pursuant to Article E;
4. Information contained in safety data sheets;
5. The expiry date or application date of any national regulatory measure relevant to chemicals listed in Annexes A, B, or C.
6. Information on precautionary measures, including hazard classification, the nature of the health, safety or environmental risk posed by the substance, and any relevant safety advice; and
7. The summary results of toxicological and ecotoxicological tests.

Article G.3. Parties receiving confidential information under this Convention agree to protect such information from disclosure.