Persistent Organic Pollutants  (POP’s)

The Indigenous Environmental Network (IEN) would like to ask your help in stopping the United States Congress from weakening our ability to regulate dangerous chemicals. These chemicals, called POPS, include dioxins, PCB’s and pesticides, and are extremely toxic and pose significant environmental and human health risks.  

This letter is intended for use by American Indian and Alaska Native Tribes and Native American Organizations, because of specific action that can be taken by us involving treaty rights and sovereignty issues.  If you are a non-native person or organization, this is also an important issue, and we greatly appreciate your help as well, simply adjust the letter before sending it, or create a new letter using the information within the sample letter below.

Background on POP’s for your information, sample letter follows.

 Persistent organic pollutants, POP’s

The Indigenous Environmental Network (IEN) would like to ask your help in stopping the United States Congress from weakening our ability to regulate dangerous chemicals. From 1998 to 2001, IEN, along with the Inuit Circumpolar Conference (ICC) worked within the United Nations on a legally binding treaty to eliminate twelve of the most dangerous chemicals  known to science, including, dioxins, PCBs, and pesticides such as DDT. These chemicals are called POPS, persistent organic pollutants, they are “persistent” in the environment, meaning they are slow to break down, are “organic” (carbon based), and are dangerous “pollutants”.

 IEN responded to concerns from tribal environmental staff, elders, youth and concerned tribal members that Native participation was needed in this international treaty to phase out, reduce and eliminate these dangerous chemicals that affect the health of some of our communities and our food web system.

In 1999, IEN secured support from the National Congress of American Indians, NCAI, (Resolution No. PSC-99-054), and the Alaska Inter-Tribal Council (Resolution No. 7) to support an international treaty to eliminate these chemicals. The National Indian Health Board at its 1999 annual national convention passed a resolution supporting the NCAI resolution on POPs followed by the Great Lakes Indian Fish & Wildlife Commission (GLIFWC) in February 2000 that passed Resolution No. 8-16-89-01 supporting the virtual elimination of these dioxins and persistent toxic substances. Many other individual American Indian and Alaska Native tribes and villages support this work.

Through strategic organizing by hundreds of environmental and health organizations, along with our Indigenous peoples delegation, there was the formation of an International POPs Elimination Network (IPEN) that collectively played a critical role in forcing the governments of the world to approve a strong POPS treaty. Many of these IPEN members had voiced recognition of IEN and ICC who, along with bringing Indigenous impacted communities to the international negotiations, put a human rights “face” to this issue resulting in a vigorous and strong treaty.

 In May of 2001, a treaty agreement was reached, called the Stockholm POPs Convention. 110 countries, including the United States signed the Stockholm Convention.  The Convention bans or severely restricts twelve POPs, called the “dirty dozen”, including highly toxic dioxins, PCBs, and pesticides such as DDT.  The Stockholm Convention also includes a rigorous scientific process to add other POPs, to the list of globally banned chemicals, in the future. 

The Stockholm Convention has been ratified by more than 75 countries, and became legally binding on May 17, 2004.  So far, the U.S has refused to ratify it. The U.S. is now debating whether to ratify the POPs treaty. Many health and environmental groups in the U.S., including IEN and tribes, worked hard to create this agreement and we want the US government to ratify and fully implement it.

The Bush Administration is attempting to undermine the POPs treaty while pretending to do the right thing. This comes in the guise of a draft bill in the U.S. House by Rep. Paul Gillmor (R-Ohio). The bill is designed to make it practically impossible for the EPA to regulate any additional chemicals added to the Stockholm Convention in the future.

Tribal governments can play an important role in opposition to the "Gillmor draft". Presently, the Gillmor draft has not been assigned a legislative bill number until it has been scheduled for mark-up. Mark-up could happen any day or week. Your Tribal comments are needed to oppose this Gillmor draft. This bill would not allow the U.S. to meet its international obligations and would make it practically impossible to regulate dangerous chemicals that invade our bodies, contaminate our environment, threaten our health and potentially affect our treaty rights.

It is U.S. policy to enact implementing legislation before the Senate consents to ratification.  Since the U.S. has already banned most of the “dirty dozen” POPs, the U.S. has determined the challenge resides in amending two domestic laws: the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Unfortunately, the present Administration’s approach adds additional cost-benefit and “sound science” analysis process provisions to the existing ones, which already require many years to complete.  Also, the Administration proposes a radical (and never before supported by any court) constitutional interpretation that would prohibit Congress from mandating EPA or other administrative agencies to act in response to international treaty events. Any U.S. domestic implementing legislation must enable the U.S. to fully carry out its obligations under the treaty, and must reflect the Convention’s precautionary spirit and public health emphasis.

It is of outmost importance that the U.S. ratifies the Stockholm Convention and becomes an active party, but in a manner that allows the treaty to be fully and effectively implemented. Tribes can help influence the U.S. decision to ratify the Convention by voicing their support for a full and effective implementation of this international treaty, especially for implementing future Convention amendments that add other POPs chemicals to the treaty.

What you can do: Send a letter to the following persons listed below. Exercise our Tribal sovereignty. POPs chemicals do affect the health of our American Indian and Alaska Natives. Yet, the EPA and the U.S. administration have not consulted the Tribes on this legislative action that could be detrimental to our treaty rights, our environment and health of our people. A sample letter is enclosed below.

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SAMPLE TRIBAL LETTER

(Send the following sign-on letter to the House chairs and ranking members of the House Environment and Commerce Committee and relevant Subcommittee.)

The Honorable Joe Barton Chairman House Committee on Energy and Commerce 2109 Rayburn Building Washington, DC 20515	The Honorable John D. Dingell Ranking Member House Committee on Energy and Commerce 2328 Rayburn Building Washington, DC  20515
The Honorable Paul E. Gillmor Chairman House Subcommittee on Environment and Hazardous Materials 1203 Longworth Building Washington, DC  20515	The Honorable Hilda L. Solis Ranking Member House Subcommittee on Environment and Hazardous Materials 1641 Longworth Building Washington, DC  20515

Re:            Proposed TSCA Amendments to implement the Stockholm Convention on Persistent Organic Pollutants (POPs)

Dear Chairmen and Ranking Members:

On behalf of the [NAME OF TRIBE], we urge you to reject the draft bill by Rep. Paul Gillmor (R-OH) that would call for amendments to the Toxic Substances Control Act (TSCA). This is the draft that was circulated to members of the Subcommittee on Environment and Hazardous Materials on June 17, 2004 and which are being considered by the Subcommittee as the basis for legislation to implement the Stockholm Convention on Persistent Organic Pollutants (POPs). Our [TRIBE] is concerned that the Gillmor draft bill contains fundamental flaws that will inhibit full U.S. implementation of this important public health and environmental treaty by tying the hands of future administrations and preventing the adequate regulation of POPs chemicals that may be added to the treaty. We therefore strongly oppose the use of this Gillmor draft as a basis for Subcommittee action and would oppose such a bill if it were introduced.

We request instead that you consider the POPs implementation draft that Representative Hilda Solis (D-CA), which effectively addresses the shortcomings in the Gillmor draft bill.

As a federally recognized Tribe, we must remind you that the cornerstone of our government-to-government relationship with the U.S. is the federal government’s trust responsibility to Indian Tribes. Under the trust doctrine, the federal government has “charged itself with moral obligations of the highest responsibility and trust” that require federal agencies to ensure the protection of Tribal interests [Seminole Nation vs. United States, 316 U.S. 286, 297 (1942)]. The contamination of lakes, rivers, fish, habitat and the bodies of our women and children by POPs chemicals are Tribal interests that demand the strictest fiduciary standards as distinctive obligations of U.S. trust responsibilities to Indian Tribes.

We are especially concerned with the failure of consultation on this POPS implementation draft with our Tribe. The U.S. passed Executive Order 13084, Consultation and Coordination With Indian tribal Governments, signed on May 14, 1998, directing federal agencies to respect tribal self-determination and sovereignty, tribal rights, and tribal responsibilities wherever they formulate policies “significantly or uniquely affecting Indian Tribal governments” [Nance vs. EPA, 645 F.2d 701 (9^th Cir. 1981]. It is our understanding no consultation on this POPs implementation initiative has been made with Indian tribes.

As you know, the Stockholm Convention is a global treaty aimed at the elimination of POPs, some of the world’s most dangerous substances. These toxic chemicals persist in the environment, bio-accumulate in food chains, and are common contaminants in fish, dairy products, and other foods. The Convention bans or severely restricts twelve POPs, including highly toxic dioxins, PCBs, and pesticides such as DDT. It includes a rigorous scientific process to add other POPs to the list of globally banned chemicals. The Stockholm Convention has been ratified by more than 75 countries, and became legally binding on May 17, 2004.

Many of our Indian Tribal members and many other Americans may now carry enough POPs in their bodies to cause serious health effects, including reproductive and developmental problems, cancer, and disruption of the immune system. Indian tribal communities in the Arctic region, the Great Lakes and the Columbia River basin region are exposed to especially high levels of these pollutants. POPs migrate on wind and water currents, where they bio-accumulate and bio-magnify in the food chain, contaminating the traditional foods of our tribal members. The propensity of POPs to travel such long distances means that no country can fully protect its citizens by acting alone. The effort to control POPs must truly be a global one.

Indian Tribes and Native organizations enthusiastically support the Stockholm POPs Convention. We believe that constructive U.S. participation and leadership in the Convention is essential to eliminate POPs and other persistent toxic substances from the world’s environment. Our Tribe is convinced, however, that any domestic implementing legislation must enable the U.S. to fully carry out its obligations under the treaty, and must reflect the Convention’s precautionary spirit and public health emphasis. The Gillmor draft bill fails on both these counts. In addition, we are committed to preserving the integrity of U.S. environmental and health law, and we do not wish to see U.S. ratification of this groundbreaking treaty serve as a means to introduce new, untried regulatory standards that would undermine that law. Regrettably, we have concluded that the Gillmor draft bill would do just that.

Among the Gillmor Draft legislation’s many faults:

• The Draft does not require the U.S. Environmental Protection Agency (EPA) to do anything when the Stockholm Convention parties decide to add a new chemical (POP) to the treaty, even when the United States fully supports the international decision. An acceptable approach would be for Congress to require the EPA to decide, within a fixed time after an international listing decision is made, whether it will regulate the chemical or not.
• The Draft would allow the EPA to regulate a newly listed chemical only if it can find a “reasonable balance” between human health, the environment and the economic costs of the regulation. This directly contradicts the Convention requirement that governments (including the U.S.) must decide upon additional POPs “in a precautionary manner.” An acceptable approach would be to use the regulatory standard that is already in the Convention, so that the EPA would be required to implement the control measures specified in the Convention in a manner that protects against “significant adverse human health or environmental effects.” As Indian tribes, this “precautionary manner or approach” reflects our traditional Indian beliefs and practices. The Indian tribes in the east call this the “7^th Generation Principle.”
• In weighing scientific information, the EPA would have to apply new, so-called “sound science” requirements that would provide grist for litigation, rather than improve the quality of the EPA’s decision making. An acceptable approach would rely on the EPA’s rigorous, well-established practices for evaluating the quality of scientific information, and would neither burden the EPA with costly, duplicative procedures nor constrain the EPA from considering all relevant scientific information.
• While the Gillmor draft bill would make it very difficult or impossible for the EPA to implement a Stockholm Convention new listing decision, it would simultaneously establish a regulatory ceiling by prohibiting the EPA from regulating more strictly than minimum Convention standards, thus eliminating the possibility of providing additional safety in the U.S. when conditions here warrant it. An acceptable approach would ensure that the EPA had sufficient authority to deal fully with the adverse effects of a POP, regardless of whether a “use-specific” or “acceptable purpose” exemption was available to the United States under the international listing decision.
• The Gillmor draft bill contains sweeping preemption language that could be used to void state, local and potentially even our tribal efforts to deal with a POP chemical, even when the EPA has no intention of regulating the chemical. An acceptable approach would respect and preserve the rights of states and tribes to protect their citizens from persistent toxic substances.

As with most treaties, the Stockholm Convention does not tell us how we must implement its obligations. It is up to the Congress to decide how U.S. law should do that. The approach of the Gillmor draft bill would ensure that it will be very difficult or impossible for future administrations to implement Stockholm Convention amendments that add other POPs chemicals to the treaty, and it would simultaneously establish precedents that could prove harmful for other areas of U.S. environmental and health law. Because POPs legislation should enhance, not hinder, the EPA’s authority to protect human health, the environment, and marine, freshwater, and terrestrial wildlife, we respectfully urge you to discard the approach of the Gillmor draft bill in favor of legislation that faithfully reflects the spirit and letter of the Stockholm Convention.

Again, based on our preliminary review, Representative Solis’ draft bill would achieve an appropriate balance between international cooperation and the sovereign interests of the U.S.  We believe this approach would provide the EPA with sufficient regulatory authority to allow the U.S. to participate effectively and in good faith in Stockholm Convention decision-making on additional POPs.

Sincerely,

[TRIBAL OFFICIAL]

If you are interested in the details of the legislative language, it is available online at:
http://gillmor.house.gov/pdf/pops.PDF