MAY 9, 2002

American Chemistry Council

1300 Wilson Boulevard

Arlington, VA 22209

(703) 741-5000

I. Introduction

The American Chemistry Council (ACC) is pleased to provide its strong support for the Stockholm Convention on Persistent Organic Pollutants (POPs), and the treaty’s reasonable implementation into U.S. law. The Council and its members urge the Senate to provide advice and consent to U.S. ratification of the Stockholm Convention as soon as possible, and to approve the necessary statutory changes in short order.

The Council is the national trade association whose member companies represent more than 90 percent of the productive capacity for basic industrial chemicals in the United States. ACC members represent an industry on the cutting-edge of technological innovation and progress, whose products provide significant benefits to every sector of the global economy. The industry has been engaged in the international discussions about persistent organic pollutants (POPs) for many years, and it has a significant interest in seeing a globally harmonized approach to controls on POPs releases.

The chemical industry’s support for the Stockholm Convention lies in several simple points.

The industry’s support of the Stockholm Convention is based on our commitment to product stewardship, including our goal of preventing health and environmental damage in the manufacture and use of chemical products. Our industry’s product stewardship commitment is an integral part of our Responsible Care program, which is now being implemented by the chemical industry in more than 42 countries.

The Stockholm Convention is the culmination of many different initiatives by both industry and governments to address the concerns about persistent organic pollutants. It is the next best step to assure that governments around the world take appropriate measures to control the manufacture, use and disposal of POPs and to reduce unwanted POPs emissions.

The Convention adopts a risk-based, science-justified approach to considering possible additions to the list of chemicals. It is an approach entirely consistent with long-standing U.S. law and practice, and one that will lead to appropriate controls on those POPs chemicals that pose global threats.

II. General Comments

The U.S. chemical industry’s work on the POPs issue began shortly after the Rio Summit on Environment and Development, in 1992. We worked with the Intergovernmental Forum on Chemical Safety (IFCS) in its effort to map the best approaches to dealing with POPs, particularly in discussions on criteria for identifying potential POPs. The industry also participated in the negotiations sponsored by the U.N. Economic Commission for Europe (UNECE) and the North American Commission on Environmental Cooperation (NACEC) as those regional POPs programs were developed and implemented.

We were visible and positive participants throughout the negotiations that led to the Stockholm Convention, including the Expert Working Groups that met to consider and recommend criteria for identifying future POPs. The global chemical industry was an early and consistent supporter of improved international controls on persistent organic pollutants.

ACC’s efforts were not limited to the international level. In 1995, ACC’s Board of Directors approved a new policy on persistent, bioaccumulative and toxic substances (the class of chemicals of which POPs are a subset). The policy recognized that due to their physical and chemical properties, POPs substances should receive priority attention in industry risk characterization, risk management, and pollution prevention programs. POPs substances represent a very small percentage of chemicals in commerce in the United States, and indeed none of the UNEP product POPs are manufactured in the United States.

The American Chemistry Council believes that it is critical for the United States to continue its longstanding leadership role in the global effort to address the risks posed by POPs emissions. In order to continue in that role, however, the United States must be a full Party to the treaty. In ACC’s view, the United States should be one of the first 50 countries ratifying the Stockholm Convention. As an original ratifying Party, the United States will be able to lead – and appropriately influence – the development of procedures necessary to implement the treaty at the international level. The U.S. government’s ability to influence the further development and implementation of the treaty at the international level requires, simply, full U.S. participation in the agreement.

III. The Stockholm Convention on Persistent Organic Pollutants

Several provisions of the Stockholm Convention merit comment.

The Council is particularly pleased that the treaty incorporates the use of a risk/benefit approach in implementing appropriate regulatory controls on listed chemicals, and in considering chemicals nominated as potential POPs. The treaty’s reliance on technical and economic considerations should ensure that priority pollutants are targeted and meaningful control actions taken.

A substantial portion of the negotiations was devoted to the details of government obligations to reduce and eliminate releases of POPs. Under the Convention, governments are required to eliminate the production and restrict the use of pesticide and industrial chemical POPs. Governments are expected to restrict imports and exports, including exports to non-States Parties. ACC’s summary of the Stockholm obligations that should be reflected in any U.S. statutory amendment is attached to this testimony.

Industry also supported the Stockholm criteria for identifying POPs, contained in Annex D, and the requirements for risk profiles and socio-economic information necessary to evaluate nominated chemicals, contained in Annexes E and F. In our view, the Convention establishes a risk-based approach to decision making on new POPs.

The treaty contains a number of key exemptions that are critical in making the Convention a workable and practical agreement. Research and development, unintentional trace contaminants for the product POPs, constituents of articles manufactured or in use as of the implementation date, and closed-system site-limited intermediates are subject to exemptions under the treaty.

The Stockholm Convention also reflects existing elements of U.S. law and policy. For example, the treaty contains a provision that government programs to evaluate new chemical substances should screen the chemicals against the POPs criteria and regulate them if appropriate. This approach is already reflected in a pre-manufacture notice (PMN) policy adopted by EPA several years ago in evaluating new chemicals under TSCA.

In the industry’s view, the Convention also adopts appropriate approaches to risk management measures. For example, substitution is not a legal obligation, but constitutes an option when the risks of POPs releases cannot otherwise be managed.

IV. Legislation to Implement the Stockholm Convention

Two proposals have been tabled to implement the obligations of the Stockholm Convention in U.S. law, Senator Jeffords’ bill (S. 2118), and an Administration proposal. The core implementing provisions of both approaches are substantially similar, but each raises important concerns.

Both approaches raise important questions about the status of chemicals on the UNECE POPs Protocol list that are not addressed under the Stockholm Convention. Despite the fact that the Protocol and Convention contemplate several similar restrictions on listed chemicals, the draft implementing proposals suggest significantly different approaches to the process under each of the agreements.

Both S. 2118 and the Administration’s draft attempt to limit the use of information not submitted in the notice and comment processes that accompany the consideration of new chemicals under the UNECE Protocol and the Stockholm Convention. That limitation is not justified. At the early stages of the international listing discussions it cannot be determined what regulatory consequences the listing will have, or indeed whether a nominated chemical will in fact be added to the POPs list. The U.S. negotiating team should have access to information about the production, import, export and/or use of a nominated chemical. ACC believes there will be sufficient incentive for interested commercial entities to produce information on nominated chemicals without the need to limit the use of the information in any subsequent regulatory action.

Both approaches establish a continual reporting obligation on manufacturers unless EPA decides otherwise or the international decision-making process is concluded. It is not clear what benefit is expected from the continuing obligation to report or how it relates to the Agency’s work with respect to POPs substances. Again, we believe commercial entities with an interest in a nominated chemical will have sufficient incentive to provide EPA and other U.S. negotiators appropriate information about the chemical without a continuing reporting obligation under Section 8 of TSCA.

As noted earlier, ACC has long recognized that the Stockholm Convention contemplates the addition of other POPs. We believe that U.S. implementing legislation should reflect that process. We also believe that there are a number of options available that could address both the Senate’s constitutional prerogative regarding treaty amendments and Congress’ interest in practical changes to statutory requirements. We have attached a copy of correspondence ACC sent earlier this year to EPA Administrator Christine Todd Whitman, which outlines our view that the issue of additions can be addressed in implementing legislation.

ACC is also concerned that S. 2118 addresses matters that are not strictly related to the obligations and responsibilities established by the Stockholm Convention. These provisions raise concerns about U.S. acceptance of the internationally-accepted criteria for identifying POPs, and the possible duplication of existing EPA programs on persistent, bioaccumulative and toxic substances (PBTs), among others. In order to assure that the Senate can approve the Convention and the implementing package as soon as possible, we believe it critical that the legislation address only those issues required by the treaty.

The American Chemistry Council believes that U.S. implementation of the Stockholm Convention should be guided by certain principles. In brief, these principles are:

Full implementation of the Convention’s obligations in U.S. law, through appropriate amendments to the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

TSCA and FIFRA amendments that are narrowly drawn to implement only the obligations imposed by the Stockholm Convention.

TSCA and FIFRA amendments that focus on the specific measures required by the Stockholm Convention, and which avoid the possibility of confusion or complexity with respect to U.S. implementation. There is ample precedent for the implementation of U.S. treaty obligations in this manner.

V. Implementation of the Rotterdam Convention on Prior Informed Consent

ACC also supports Senate advice and consent to ratification of the Rotterdam Convention on Prior Informed Consent. This Convention – negotiated on the basis of a very successful government-to-government information exchange system – also requires amendments to TSCA and FIFRA if the United States is to fully implement the treaty. Because the Rotterdam Convention requires these amendments, ACC believes it makes sense to include appropriate implementing language in the same legislation designed to implement the Stockholm Convention.

VI. Conclusion

The American Chemistry Council believes that the Stockholm Convention is an important step in securing international action on POPs. The treaty establishes a harmonized global approach to the necessary controls on POPs releases, and should produce meaningful improvements in public health and environmental protection. Appropriate amendments to TSCA and FIFRA that reflect the treaty’s obligations can be crafted, particularly to address the issue of new chemicals added to the list of POPs. ACC looks forward to working with this Committee and the Administration as those amendments are drafted.