CIEL joins 41 environmental, health, and labor organizations urging Congress to support effective legislation to implement the Stockholm POPs Convention

September 2004

Advocates for Environmental Human Rights • Alaska Community Action on Toxics • American Rivers • Beyond Pesticides • The Breast Cancer Fund • Center for Environmental Health • Center For Health, Environment and Justice • Center for International Environmental Law • Circumpolar Conservation Union • Citizens’ Environmental Coalition • Clean Production Action • Clean Water Action o Commonweal • Delta Institute • Ecology Center • Environmental Defense • Environmental Health Fund • Environmental Health Strategy Center • Environmental Working Group • Foundation for Advancements in Science and Education • Friends of the Earth-US • Global Community Monitor • Greenpeace • Healthy Building Network • Indigenous Environmental Network • Institute for a Sustainable Future • International POPs Elimination Network • Izaak Walton League of America • League of Conservation Voters • National Audubon Society • National Environmental Trust • The Ocean Conservancy • Oceana • Oregon Toxics Alliance • Pesticide Action Network • Physicians for Social Responsibility • Science and Environmental Health Network • Sierra Club • U.S. Public Interest Research Group • United Steelworkers of America • Washington Toxics Coalition • World Wildlife Fund

September 24, 2004

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

Dear Chairmen and Ranking Members:

On behalf of the millions of members of our organizations, we urge you to reject draft amendments to the Toxic Substances Control Act (TSCA) that were circulated to members of the Subcommittee on Environment and Hazardous Materials on June 17, and which are being considered by the Subcommittee as the basis for legislation to implement the Stockholm Convention on Persistent Organic Pollutants (POPs). Our organizations are concerned that the June 17 Discussion Draft 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 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 Solis circulated this week, which effectively addresses the shortcomings in the June 17 Draft.  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, bioaccumulate 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. It has been ratified by more than 75 countries, and became legally binding on May 17.

Many 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. Indigenous communities in the Arctic region are exposed to especially high levels of these pollutants. POPs migrate on wind and water currents to the Arctic, where they bioaccumulate in the marine food chain, contaminating the traditional foods of indigenous peoples. 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.

U.S. environmental and health organizations enthusiastically support the Stockholm POPs Convention. We believe that constructive U.S. participation and leadership in the Convention will be essential to eliminate POPs and other persistent toxic substances from the world’s environment. Our organizations are convinced, however, that any domestic implementing legislation must enable the United States to fully carry out its obligations under the treaty, and must reflect the Convention’s precautionary spirit
and public health emphasis. The June 17 Discussion Draft 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 June 17 Draft would do just that.

Among the Draft legislation’s many faults:

• The Draft does not require EPA to do anything when the Stockholm Convention parties decide to add a POP to the treaty, even when the United States fully supports the international decision. An acceptable approach would be for Congress to require EPA to decide, within a fixed time after an international listing decision is made, whether it will regulate the POP or not.
• The Draft would allow EPA to regulate a newly listed chemical only if it can find a “reasonable balance” between human health and the environment and the economic costs of the regulation. This directly contradicts the Convention requirement that governments (including the United States) 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 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.”
• In weighing scientific information, EPA would have to apply new, so-called “sound science” requirements that would provide
  grist for litigation, rather than improve the quality of EPA’s decision making. An acceptable approach would rely on EPA’s rigorous, well-established practices for evaluating the quality of scientific information, and would neither burden EPA with costly, duplicative procedures nor constrain EPA from considering all relevant scientific information.
• While the Discussion Draft would make it very difficult or impossible for EPA to implement a Stockholm Convention new listing decision,it would simultaneously establish a regulatory ceiling by prohibiting EPA from regulating more strictly than minimum Convention standards, thus eliminating the possibility of providing additional safety in the United States when conditions here warrant it. An acceptable approach would ensure that EPA had sufficient authority to deal fully with the adverse effects of a POP, regardless whether a “use-specific” or “acceptable purpose” exemption was available to the United States under the international listing decision.

• The Draft contains sweeping preemption language that could be used to void state and local efforts to deal with a POP, even when EPA has no intention of regulating the chemical. An acceptable approach would respect and preserve the rights of states 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. Yet the approach of the June 17 Discussion Draft 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 June 17 Discussion Draft in favor of legislation that faithfully reflects the spirit and letter of the Stockholm Convention.

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

Sincerely,

cc: U.S. EPA Administrator Michael O. Leavitt