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Because of its own inaction, the U.S. will not have any say in future decisions to be made under three international treaties that will affect trade, regulations, and the manufacture of certain chemicals.
Republicans and Democrats, the chemical industry, environmental activists, and health advocates all want the U.S. to have a seat at the table when nations decide to select more chemicals to be controlled under these accords. But the U.S. cannot have an official vote until it changes its laws.
The U.S. was a prime mover and shaker in negotiations of the three treaties. Two of them control persistent organic pollutants (POPs): the global Stockholm convention and the POPs protocol to the Convention on Long-Range Transboundary Air Pollution. The third deal, the Rotterdam convention, requires exporters to notify a developing country before shipping specified commercial chemicals or pesticides to that nation.
But "we are no longer in a leadership role, and our ability to influence decisions is steadily decreasing," according to Susan B. Hazen, the Environmental Protection Agency's principal deputy assistant administrator for prevention, pesticides, and toxic substances. Though the U.S. has signed the three accords, it isn't an official partner to these treaties yet.
For the U.S. to be a partner, Congress has to give EPA the legal authority to implement the three deals. Lawmakers must pass legislation amending two statutes: the Toxic Substances Control Act (TSCA), which controls the manufacture of commercial chemicals, and the national pesticides law, the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA). This effort is complicated by the fact that one committee each in the Senate and the House must approve TSCA bills and different committees in each chamber must produce FIFRA legislation.
Since 2001, the Bush Administration has described enactment of legislation to implement the three chemical treaties as "a top priority," but it has not offered a draft bill to Congress and has spent little energy in pushing such a measure. Nonetheless, several measures are pending in the Senate and House (C&EN, Jan. 23, page 13).
The failure of the U.S. to become an official partner to the treaties is most acute for the 2001 Stockholm convention. This global accord bans or severely restricts 12 POPs, including dioxins and polychlorinated biphenyls, but it also allows governments to add more substances to the pact. Additions must be organic chemicals that resist breakdown, are transported long distances through the atmosphere or surface water from where they are released, and lead to significant adverse human health or environmental effects.
By the time the U.S. becomes a treaty partner, the list of affected compounds may have been expanded from what was originally negotiated. Currently, perfluorooctane sulfonate; the pesticides chlordecone (kepone) and lindane; and two fire retardants, pentabromodiphenyl and hexabromodiphenyl ethers, are under consideration for inclusion by an international panel of scientific experts convened by the parties to the Stockholm convention (C&EN, May 16, 2005, page 28). Those experts will make recommendations on chemicals to the treaty partners, who have the final say over whether any chemical gets added to the Stockholm convention. They will hold their next meeting in May.
The issue finally may be gaining some traction in Congress, at least to amend TSCA and thus bring the U.S. closer to being a treaty partner. On March 2, the House Energy & Commerce Subcommittee on Environment & Hazardous Materials held a hearing on TSCA-related implementing legislation that will give EPA part of the authority it will need to implement the three treaties. Rep. Paul E. Gillmor (R-Ohio), chairman of that panel, is sponsoring H.R. 4591, which has the backing of the chemical industry and the Bush Administration. Meanwhile, Rep. Hilda L. Solis (D-Calif.), ranking Democrat on the subcommittee, has introduced H.R. 4800, a measure supported by many Democrats and environmental and health groups.
The two bills differ primarily on how the U.S. should implement the Stockholm convention through EPA regulations.
According to the terms of the pact, if the U.S. becomes a treaty partner, it is not automatically required to control chemicals that are added to the accord. Instead, the U.S. must affirmatively "opt in"-agree that it will ban or severely restrict substances-before it is bound to take action.
Claudia A. McMurray, assistant secretary of state for oceans and international environmental and scientific affairs, told the subcommittee that the opt-in provision "will ensure that decisions made by the [Stockholm] convention parties do not prejudge our domestic decision-making process."
If the U.S. opts in and agrees to control chemicals that are added to the Stockholm convention, the outcome would be different under the Gillmor bill than under Solis's legislation.
Gillmor's measure includes no requirements for EPA to do anything after treaty partners add a chemical to the global POPs pact, even if the U.S. opts in and agrees to control the compound. At the hearing, Gillmor explained that this provision would protect U.S. sovereignty. "U.S. officials, laws, and standards, not those of an unelected and unaccountable international body, should determine what specific control measures the U.S. takes," he said. "Standards in America should be set by Americans."
Under Gillmor's bill, if EPA chooses to regulate a chemical added to the Stockholm convention, the agency may do so only "to the extent necessary to protect human health and the environment in a manner that achieves a reasonable balance of social, environmental, and economic costs and benefits."
"That standard appears nowhere in the treaty or in existing U.S. law," said Rep. John D. Dingell (D-Mich.), ranking minority member on the Energy & Commerce Committee, in criticizing this provision of the Gillmor legislation. "It poses an opportunity for litigation and years of delay," he said, as courts sort out what EPA has to demonstrate scientifically and economically before it can regulate POPs in accordance with this new benchmark.
Lynn R. Goldman, a professor of environmental health sciences at Johns Hopkins University, said at the hearing that the novel standard in Gillmor's bill, in addition to opening new opportunities for lawsuits, "would increase the burden to EPA and the taxpayers of unnecessary analyses ... and render it difficult, if not impossible, for the EPA to take action." Goldman was EPA assistant administrator for prevention, pesticides, and toxic substances for five years during the Clinton Administration.
Glenn M. Wiser, senior attorney at the Center for International Environmental Law, said Gillmor's bill "would create regulatory hurdles that would make it practically impossible for EPA ever to protect Americans from some of the world's most dangerous chemicals."
But Hazen of EPA said the decision-making standard in Gillmor's bill "is generally consistent with that already applied by the U.S. government when evaluating chemical substances and possible risk-management actions."
Michael P. Walls, American Chemistry Council managing director for regulatory and technical affairs, told the subcommittee that Gillmor's bill would send "a powerful signal" to treaty partners that the U.S. will not weaken its commitment to balancing risks and benefits when controlling chemicals.
In contrast, Solis's measure would require EPA to issue regulations controlling chemicals added to the Stockholm convention unless the agency explains why controls aren't needed. It would allow EPA to consider data beyond the information gathered in the international experts' review process but would not require the agency to do a completely new analysis. Gillmor's measure, in comparison, would require a much more detailed examination of the costs and benefits of regulating a POP.
Solis said her legislation includes cost-benefit measures and would also emphasize protection from the effects of the small universe of toxic, persistent chemicals that are deemed to be global POPs.
Rep. Charles F. Bass (R-N.H.) faulted Solis's bill for not requiring EPA to consider possible effects on national security, jobs, and the U.S. economy before regulating a POP. Bass said Gillmor's bill would take these concerns into account.
Meanwhile, attorneys general from a dozen states have raised concerns that Gillmor's bill would preempt the rights of states to set more stringent restrictions on chemicals listed under the Stockholm convention than are required under federal regulations. The attorneys general fear that the bill could overturn bans on pentabromodiphenyl ether already passed by several states if the flame retardant gets added to the Stockholm convention.
Gillmor said his bill would not restrain states from adopting tougher controls on chemicals listed as POPs internationally. He said, however, he is open to changing the wording of his bill to clarify the issue.
The hearing is seen as a potential prelude to a vote on the TSCA legislation by the Subcommittee on Environment & Hazardous Materials and the full House Energy & Commerce Committee. If approved by both panels, a bill could come before the House and, if passed, trigger action in the Senate. Capitol Hill staff members could not say when this process might begin. But even if a TSCA bill passes, the U.S. can't become a partner in the three threaties until Congress moves legislation to make similar amendments to FIFRA.
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