Around the World in 30 Minutes: Newsworthy Developments Under International Chemical and Waste Treaties

Transcription

1 Around the World in 30 Minutes: Newsworthy Developments Under International Chemical and Waste Treaties ACC Legal Quick Hit Paul Hagen and Russ LaMotte March 9, 2017

2 Today s Speakers Russ LaMotte Managing Principal Washington, DC Paul Hagen Principal Washington, DC 2

3 Key Multilateral Environmental Agreements 3

4 Relevance to U.S. Companies Drive adoption of national legislation world-wide Global multilateral environmental agreements Increasingly define global markets for products and services Inform NGO and investor expectations Evolve and expand over time 4

5 Kigali Amendment to the Montreal Protocol 5

6 Montreal Protocol Phase out the production and consumption of ozonedepleting substances (ODSs) ODSs include CFCs, HCFCs, methyl bromide, etc. Essential use exemption; requests considered on an annual basis by TEAP 197 parties, including the U.S. 6

7 Kigali Amendment to the Montreal Protocol Adopted October 15, 2016 Expands the scope of the Montreal Protocol to include 18 specific hydrofluorocarbons (HFCs) and mixtures including those HFCs Phase-down rather than a phase-out Exemption for high ambient temperature countries; no essential use exemption today Avoid up to 0.5 degree Celsius in global temperature rise in addition to benefits to ozone layer 7

8 U.S. Ratification and Implementation of the Kigali Amendment Obama did not act to ratify the Kigali Amendment Trump Administration may seek to ratify the Amendment with the advice and consent of the Senate but timing unclear Industry support for the Amendment generally; Trump Justice Department has continued defending an EPA rule limiting some uses of HFCs 8

9 Stockholm Convention 9

10 Stockholm Convention: Overview A global agreement adopted under UNEP auspices Adopted in 2001; entered into force Parties to date United States has signed but not ratified Establishes global regime for phase-out of persistent organic pollutants capable of long-range environmental transport Implemented globally at national level through domestic laws a floor not a ceiling Governments COP POPRC Secretariat 10

11 Covered Chemicals Pesticides Initially Listed Aldrin Chlordane DDT* Dieldrin Endrin Heptachlor Hexachlorobenzene Mirex Toxaphene Added by Amendment Chlordecone Alpha hexachlorocyclohexane Beta hexachlorocyclohexane Lindane Pentachlorobenzene Endosulfan Pentachlorophenol Industrial Chemicals Initially Listed Hexachlorobenzene Polychlorinated biphenyls (PCBs) Added by Amendment Hexabromobiphenyl Commercial Octa-BDE Commercial Penta-BDE PFOS* HBCDD Polychlorinated napthalenes (PCNs) Hexachlorobutadiene Byproducts Initially Listed HCB Dioxins Furans PCBs Added by Amendment Alpha hexachlorocyclohexane Beta hexachlorocyclohexane Pentachlorobenzene PCNs *Listed on Annex B. 11

12 Why it Matters to Private Sector & Downstream Users? Not directly binding on companies But almost universally applicable via Party implementation Essentially a global material restriction rule for PBTs Generally eliminate intentional production and use and trade, including in products and articles containing POPs Restrictions on import and export for POPs chemicals and for products/articles containing POPs Restrictions on disposal and recycling of wastes containing listed chemicals Agreement is expanding to include widely used industrial chemicals 12

13 Amendment Process to Add New Chemicals Starts with Party nomination Screening Criteria -- expansively interpreted Process driven by POP Review Committee (POPRC) Transparent process But tilted toward precautionary approach strong bias to regulate Opportunities for stakeholder participation No formal process for appeal or challenge to decision to list Exemptions possible, but increasingly limited in scope Nomination alone results in rapid market deselection and increased scrutiny by regulators 13

14 Current Pipeline Chemicals Under Review May COP Meeting! Deca-BDE (Norway, 2013) POPRC review complete COP review in 2017 PFOA (EU, 2015) Under Risk Management Review Short-Chained Chlorinated Paraffins (EU, 2006) POPRC review moving to risk management phase COP review in 2017 Dicofol (EU, 2013) Under Risk Management Review 14

15 Stockholm POPs Waste Stockholm Convention obligations apply to products & articles containing a listed chemical, when they become waste Disposal options limited to methods that destroy POPs content (e.g., hazwaste incineration), unless: destruction does not represent environmentally preferable option or POPs content below a threshold level, to be set on a chemical-bychemical level under the Basel Convention Impact on recycling: Products and articles containing POPs will generally not be allowed to be recycled unless (a) POPs content below low threshold set by Basel or (b) a recycling exemption at time of listing Exemption for recycling was included for PBDEs but not for HBCDD Deca-BDE to be listed in April 2017 (exemption?) 15

16 Basel Convention 16

17 The Basel Convention Global prior notice and consent system governing waste shipped for disposal or recycling Provides framework for hazardous waste classifications Hazardous waste shipments subject to prior written notice, consent, documentation and various trade bans Implications for EPR programs and circular economy initiatives U.S. is a non-party 17

18 Why Does Basel Matter? If used or end-of-life products or other materials classified as hazardous waste Stringent cross-border controls ESM requirements and determinations by governments Numerous national import bans based on Basel classifications Cost and logistics implications for domestic take-back programs European Community export ban and Basel Ban Amendment Party to non-party trade ban (U.S.) Business uncertainty and disruption risk Reputational risk 18

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20 Basel TBM and the Circular Economy OECD Countries: Non-OECD Countries: Contact: Paul Hagen 20

21 New Basel Technical Guidelines Transboundary shipments of used electrical/electronic equipment and components for legitimate reuse, failure analysis, repair and refurbishment are not presumptively wastes New criteria and documentation for demonstrating that shipments of used equipment for reuse are nonwastes New criteria and documentation for demonstrating that shipments of used equipment for failure analysis, repair and refurbishment are non-wastes Not legally binding but expected to be highly influential on government classification decisions Open issues 21

22 Open Issues for TGs at COP-13 Canada, U.S., Brazil, Australia and New Zealand: No new criteria for residual life Norway: Used equipment should be Highly marketable India: Used equipment (phones, tablets) with a life-span of less than 5 years should be presumpcvely classified as waste China: Return any hazardous waste generated during repair, refurbishment to country of export 22

23 Canadian Proposal on Possible Amendments to the Convention COP-13 to consider process for negotiating amendments Focus on waste definitions (reuse) Revise Annexes I and III (covered waste streams and constituents and hazardous characteristics) Revise Annex IV (waste management activities direct reuse) Revise e-waste listings (Annex IX) 23

24 Rotterdam Convention 24

25 Banned and Severely Restricted Chemicals Under the Rotterdam Convention on Prior Informed Consent Requires valid notification of final regulatory action from two different PIC regions Valid notifications must meet criteria in Annex II of Rotterdam Convention Final regulatory action must be taken in order to protect human health or the environment Final regulatory action has been taken as a consequence of a risk evaluation COP takes decision by consensus 25 25

26 PIC Listing is Evolving into a Black List Short-term effects of listing: Adverse publicity Unfavorable product image in the market Administrative burden of export notification Can trigger a national review Long-term effects of listing: Tied to automatic prohibition in some countries PIC listing becoming a secondary standard for grower associations and supermarkets Increased pressure on regulators from national and international non-government organizations to ban or severely restrict chemical, especially severely hazardous pesticide formulations 26 26

27 May COP Meeting! Several newly recommended compounds Mostly pesticides 1 biocide (tributyl tin) Several compounds previously recommended that COP has rejected Very controversial perception that Convention faces crisis because unable to list new chemicals Likely to be difficult meeting Examples of chemicals up for repeat review: Chrysotile asbestos Paraquat 27

28 Minamata Mercury Convention 28

29 Minamata Convention Global treaty aimed at protecting human health and the environment from adverse effects of mercury Parties must limit mercury mining, restrict the use of mercury in certain products and processes, control certain air emissions and releases to land and water, and regulate artisanal and small-scale gold mining The Convention is expected to enter into force in the second half of 2017 U.S. first to join 29

30 Minamata Convention - Products Parties must phase out the manufacture, import or export of mercury-added products listed in Part I of Annex A, unless certain exclusions apply. Batteries Lamps, Switches and Relays Cosmetics Measuring devices, etc. Product list to expand over time Watch for new legislation world-wide 30

31 President Trump and the New Congress U.S. participation in Paris Agreement? Reset of U.S. Environmental Diplomacy and priorities? Funding? Senate action on the Kigali Amendment? Action on other MEAs signed but not ratified by the U.S.? Push for higher environmental and labor standards in Trade Agreements? 31

32 Questions? Thank you! 32