IMPLICATIONS OF GREAT LAKES AGREEMENTS FOR THE PROPOSED GLOBAL TREATY ON PERSISTENT ORGANIC POLLUTANTS (POPs)

Sanford Lewis, Attorney

August 7, 2000
 
PREPARED FOR GREAT LAKES UNITED
  
It can never be said that we can totally halt the input of persistent toxic substances into the system, or totally eliminate them. But humans can control what they do, so we can say that there should be -- and shall be -- zero discharge, or input, of persistent toxic substances as a result of human activities. Seen in this light, the Commission believes that virtual elimination is the necessary and reasonable goal, and zero discharge, or nil human input, is the necessary and not unreasonable tactic for achievement of the virtual elimination strategy.

- International Joint Commission, Sixth Biennial Report, 1992 
 
 
TABLE OF CONTENTS

1.0 INTRODUCTION

2.0 PURPOSE OF REPORT

3.0  RELATIONSHIP BETWEEN THE GLOBAL POPs TREATY AND GREAT LAKES AGREEMENTS

3.1 History of Great Lakes Agreements
3.2 Implementation mechanisms
3.3 The GLWQA implementation mechanisms demonstrate that virtual elimination and zero  discharge are realistic and practical goals for international policy
3.4 Phaseouts, bans and sunsetting of POPs - the Great Lakes experience
3.5. Great Lakes efforts as precedent to the global POPs treaty
3.5.1 Features of the Great Lakes cause the region to experience the problems first
3.5.2 Solving the POPs problem of the Great Lakes requires global solutions to POPs

4.0 THE PRECAUTIONARY PRINCIPLE, WHICH THE US AND CANADA HAS BEEN IMPLEMENTING IN THE GREAT  LAKES, SHOULD BE INCLUDED IN THE OPERATIONAL PROVISIONS POPs TREATY.

5.0 COMPARATIVE ANALYSIS OF THE POPs TREATY AND GLWQA AND IMPLEMENTING PROGRAMS.

5.1 Ending production and trade in the targeted substances - with no general exemptions.           
5.2 Curtailing releases: the need for virtual elimination and zero discharge goals.
5.3 To achieve POPs  goals for dioxins and furans it is necessary to target and phase out  precursors.
 

1.0 INTRODUCTION

Humans and wildlife are threatened by exposure to the continued use, generation, release, and disposal of persistent toxic substances.   Of particular concern are those substances known as persistent organic pollutants (POPs). Understanding is increasing regarding the impacts of POPs.  These substances are known to be persistent, toxic and bioaccumulative, and to have the ability to travel long distances from their sources.  These substances are now known to have the ability to act as endocrine disrupters, which means, among other things, that they can affect various points of normal development in human and wildlife populations. POPs are both intentional products and unintended byproducts of industrial processes. 

Given the pervasiveness and impacts of POPs, the global community has recognized the urgency of addressing these substances through ongoing development of an international, legally binding treaty.   There have been four negotiating sessions toward such a treaty, the most recent one having occurred in Bonn in March 2000.  The next negotiating round is slated for December 2000 in  Johannesburg, South Africa.

2.0 PURPOSE OF REPORT

Great Lakes United has prepared this report to provide the United States delegates to the POPs treaty negotiations with an overview of relevant legal and policy issues that emerge from the Great Lakes experience and agreements, where work on POPs elimination has been underway for over two decades. Of particular concern in the current round of negotiations are a broad set of exemptions advanced by the US delegation which would be severe loopholes to the proposed treaty. This report evaluates relevant lessons learned in the Great Lakes and consistency issues between what has been done in the Great Lakes and the pending global POPs treaty. Specifically, the report demonstrates that:

• The “virtual elimination” and “zero discharge” goals adopted in the Great Lakes region are necessary and practical policies to include in any POPs treaty.
  
• The POPs treaty should include the precautionary principle.
• The US-proposed exemptions are inconsistent with the policies adopted  and lessons learned in the Great Lakes region.

3.0 RELATIONSHIP BETWEEN THE GLOBAL POPs TREATY AND GREAT LAKES AGREEMENTS

The POPs treaty as currently drafted would lead to restrictions on the use, distribution, trade, and release of certain persistent organic pollutants identified in Annexes of the treaty.  The draft treaty would address many of the same substances that have been targeted in agreements and implementation mechanisms previously promulgated between the US and Canada in the Great Lakes region.

3.1 HISTORY OF GREAT LAKES AGREEMENTS

In 1909, the US and Canada entered a Boundary Waters Treaty which has been the foundation of modern efforts geared toward utilization and cleanup of the Great Lakes.[1] One of the most important aspects of that treaty was the establishment of the International Joint Commission as an investigative and advisory board for the two countries.  The IJC is a six person binational commission, with three members appointed by the President of the United States and three members appointed by the Governor General in Council of Canada.[2] 

The obligations under the treaty to prevent water pollution led early in the 20th century to efforts by the IJC and the two party countries to reduce sewage pollution and eutrophication in the lakes.[3]  Many years later, however, in the 1970's, the IJC found serious toxic pollution problems in the Lakes;   certain chlorinated organics, particularly PCB’s, were found pervasively in Lake Michigan sediments, water and fish.

To remedy the toxic problems identified by the IJC, the Great Lakes Water Quality Agreement (GLWQA) was established in 1972 between the US and Canada.  The agreement was amended twice - in 1978 and 1987 - each time to bring increasing focus and commitment to tackling the issue of persistent toxic pollution discharges in the Lakes. The 1978 Great Lakes Water Quality Agreement targeted persistent toxic pollutants, defining a persistent toxic substance as "any toxic substance with a half-life in water of greater than eight weeks."[4]  The 1978 Agreement committed to "restore and maintain the chemical, physical and biological integrity of the waters of the Great Lakes Basin Ecosystem" by requiring in a new Annex 12 that the participating nations engage in regulatory approaches consistent with virtual elimination and zero discharge:

General Principles

(a) Regulatory strategies for controlling or preventing the input of persistent toxic substances to the Great Lakes System shall be adopted in accordance with the following principles:

(i) The intent of programs specified in this Annex is to virtually eliminate the input of persistent toxic substances in order to protect human health and to ensure the continued health and productivity of living aquatic resources and human use thereof;

(ii) The philosophy adopted for control of inputs of persistent toxic substances shall be zero discharge; and

(iii) The reduction in the generation of contaminants, particularly persistent toxic substances, either through the reduction of the total volume or quantity of waste or through the reduction of the toxicity of waste, or both, shall, wherever possible, be encouraged.

(b) The Parties shall take all reasonable and practical measures to rehabilitate those portions of the Great Lakes System adversely affected by persistent toxic substances.

 In 1987 the agreement was amended again, this time by protocol signed by the two countries.  The 1987 amendments reinforce and expand the persistent toxics work performed to date. The 1987 agreement continued the commitment to virtual elimination of persistent toxic substances, and called for the parties to establish a target list of critical toxic substances.

The GLWQA has been endorsed repeatedly by the US Congress, in the 1987 Great Lakes Water Quality Act,[5] and the 1990 Great Lakes Critical Programs Act,[6] ordering the US EPA to carry out the obligations of the Agreement.  As such the agreement is considered binding international law.[7]   For instance, the 1990 legislation required:

By June 30, 1991, the Administrator, after consultation with the Program Office, shall publish in the Federal Register for public notice and comment proposed water quality guidance for the Great Lakes System. Such guidance shall conform with the objectives and provisions of the Great Lakes Water Quality Agreement... [8] The section of the Act then goes on to spell out mechanisms of accountability for implementing the Great Lakes Water Quality Agreement. 

3.2  IMPLEMENTATION MECHANISMS

Under GLWQA, the International Joint Commission plays a key role of tracking progress and issuing biennial reports which make recommendations to the US and Canadian governments. The governments in turn issue responses to the biennial reports, setting forth their policy responses and commitments in fulfilling the Agreement and IJC recommendations.  A pivotal report of the IJC was the 6th Biennial Report, issued in 1992, which interpreted the GLWQA policies of virtual elimination and zero discharge. 

According to the report, the basis for the charge to engage in virtual elimination of persistent organic pollutants is the recognition that when substances bioaccumulate through the food chain there is really not a “safe” level of the substances.  “Bioaccumulation” is the uptake by any organism of pollutants in all parts of its living environment, including its food. Bioaccumulation is the process by which toxic pollutants increase in concentration up the food chain (e.g., water-. plankton-. little fish-. big fish-. fish-eating predators such as eagles or people).  The health of people consuming Great Lakes fish is jeopardized by toxic pollution - especially the health of children of sport anglers, Native Americans and other families that eat large amounts of Great Lakes fish.

Children born to women who ate lots of contaminated Great Lakes fish have been found be prone to learning problems.  As a direct result of the continuing pollution of the Great Lakes from human activities, Over 160 public health advisories against eating fish are in place in the eight Great Lakes States.  Recent scientific studies suggest previously unsuspected risks from exposure to Great Lakes pollution—altering sexual development, reproductive ability, sexual behavior and other hormone-controlled functions.

The latest research shows a clear link between exposure to pesticides—specifically DDT, which remains ubiquitous in the Great Lakes Ecosystem—and breast cancer in women.
 
As such the situation necessitates a zero release approach. The IJC found in its 6th Biennial Report that:
 
Because persistent toxic substances remain in the environment for long periods of time and become widely dispersed, and because they bioaccumulate in plants and animals -- including humans -- that make up the food web, the ecosystem cannot assimilate these substances. We conclude that persistent toxic substances are too dangerous to the biosphere and to humans to permit their release in any quantity.
 
After much discussion and reflection, the Commission concludes that the concepts of virtual elimination and zero discharge are consistent and are a clear statement or direction to take to achieve the Agreement's purpose. The overall strategy or aim regarding persistent toxic substances is virtual elimination, and the tactic or method to be used to achieve that aim is through zero input or discharge of those substances created as the result of human activity.
 
It might not be possible to achieve total elimination of all persistent toxic substances from the system. For example, some toxic substances -- including persistent toxic substances -- may be produced by, or as a result of, natural processes. The exact quantities produced are not known, but we do know that what nature produces, if unaffected by human intervention, is generally kept in a harmonious balance. Persistent toxic substances may also be released from contaminated sediments and from polluted groundwater. Because of these impediments to total elimination, our more realistic objective should be virtual elimination. It is this objective that must be realized if the Agreement purpose is to be met: the restoration and maintenance of the integrity of the waters of the Great Lakes Basin Ecosystem.
 
We know that it is impossible to achieve that objective -- virtual elimination and restoration of integrity -- if we continue to input those persistent toxic substances generated by human activities. We also know that, given our understanding of the problem, our desire to stop degrading the environment and our inherent need to protect future generations, these inputs and activities can and must be halted.

Zero discharge means just that: halting all inputs from all human sources and pathways to prevent any opportunity for persistent toxic substances to enter the environment as a result of human activity. To prevent such releases completely, their manufacture, use, transport and disposal must stop; they simply must not be available. Thus, zero discharge does not mean less than detectable. It also does not mean the use of controls based on best available technology, best management practices, or similar means of treatment that continue to allow the release of some residual chemicals.

 In addition the IJC established the principle of reverse onus as applicable to discharges of persistent toxics.  Under this approach, the burden of proof is on industry to explain why it should be allowed to discharge to the environment, instead of on the government to show why it should regulate the discharge.

The US and Canada moved forward in the 1990's with interim steps for implementation of the agreement and the virtual elimination goal, with the Great Lakes Water Quality Initiative, the Great Lakes Water Quality Guidance (EPA regulations finalized in 1995) and the Binational Toxics Strategy (1997).

As a separate US undertaking resulting from the Agreement, the Great Lakes Water Quality Initiative was undertaken by the USEPA, as a process of gathering the best available data on water quality issues in the Great Lakes.  It led to a Water Quality Guidance for states.

According to the Congressional Research Service the water quality guidance:

establishes water quality criteria for 29 pollutants, with a particular focus on persistent bioaccumulative toxics (that is, tend to occur in higher concentration in aquatic biota than in open waters). The criteria are intended to protect human health, aquatic life, and wildlife and include the first-ever EPA wildlife criteria to protect birds and mammals from long-term exposure to mercury, DDT, PCBs, and dioxin. The guidance also includes implementation procedures, methodologies to develop criteria for additional pollutants, and anti-degradation provisions (procedures to ensure that once water quality goals are attained, additional pollution will not be allowed to lessen or degrade water quality).
The Great Lakes states are required to revise their water quality management programs and water quality standards consistent with the guidance. State water quality standards are the basis for establishing discharge limits in permits issued to industries and municipalities, making it likely that dischargers throughout the basin will be subject to more stringent control requirements in the future.

As noted and endorsed by the IJC this guidance:

...prohibits new pollution sources from using dilution to meet pollution standards and requires existing pollution sources to end dilution practices by 2004. It also prevents polluters from avoiding Great Lakes regulations by dumping into rivers or streams which empty into the lakes. As currently proposed, the initiative employs reverse onus for applications by new factories to discharge any of approximately 50 chemicals, and requires states to consider the effects of pollution on wildlife in setting water quality standards. This initiative is an important, positive step on the road to zero discharge and virtual elimination, and responds to many recommendations in the Commission's Fifth Biennial Report.[9]

 The Great Lakes Binational Toxics Strategy[10] adopted in 1997 renewed and extended the Parties' commitment to manage and control toxic and persistent toxic substances, including the 11 Critical Pollutants targeted by the agreement. Reduction targets are set for alkyl lead, PCBs, mercury and other contaminants.   The US acknowledged in a footnote to the strategy that the Binational Toxics Strategy was not a regulatory action in itself but rather an overall strategic framework that includes regulatory and nonregulatory approaches.:

In the U.S., existing and currently planned regulatory actions will contribute to meeting the goal of virtual elimination; however, this Strategy is not a regulatory action, nor is it expected, in and of itself, to lead to the promulgation of any rule or regulation. To the extent that regulatory actions are taken with regard to Strategy substances, they will be governed by the statutes authorizing the actions.[11]

3.3  THE GLWQA IMPLEMENTATION MECHANISMS DEMONSTRATE THAT VIRTUAL ELIMINATION AND ZERO DISCHARGE ARE REALISTIC AND PRACTICAL GOALS FOR INTERNATIONAL POLICY

Virtual elimination of persistent toxic substances in the Great Lakes means bringing an end to all ongoing or new human-originated discharges of substances. The reason the “elimination” is “virtual” - as explained above - is because some of these materials already exist in the environment (either from prior human releases or natural sources) so that it is assumed that 100% elimination of their presence in the environment is unrealistic.  But it is not unrealistic to curtail all of the ongoing human-originating releases of the substances to the environment. To the contrary, what is known about the dangers posed by the substances necessitates being just that ambitious.

While supporting the ambitious goals of virtual elimination and zero discharge, the implementation mechanisms reflect the realism of implementing those goals over time.  Permissible releases are continually ratcheted down over time, until zero is achieved. The 1987 Protocol and subsequent guidelines provides in Annex 1 some  intermediate standards as benchmarks on the way to zero discharge, and then provides:

Consistent with the policy stated in paragraph (a) of Article II and Paragraph 2 of Annex 12 that the discharge of any or all persistent toxic substances be virtually eliminated, the Specific Objectives set out in Annex 1 for such substances are adopted as interim objectives.[12]

Great Lakes Water Quality Guidance[13] establishes interim acceptable levels of pollutants as “detectable” quantities in the receiving waters, but then goes beyond that level by imposing more stringent limits over the long term.   The longer term standards are based on protocols containing assumptions regarding bioaccumulation of the materials. Thus while a facility may secure an interim permit applying a limit based on detectability of its discharge in the environment, in the long term the dischargers must continue to reduce discharges of persistent toxics until they bring them below where they may pose toxicity through bioaccumulation.  Chemicals with a bioaccumulation factor (BAF) above an arbitrarily chosen level of 1,000 are listed as “bioaccumulative chemicals of concern” (BCCs). Several special restrictions apply only to the list of BCCs. For example, the phase-out of mixing zones only applies to BCCs. Also, discharges of BCCs must meet extra tests under the GLI*s antidegradation procedure.   For persistent toxic pollutants the treatment of these issues was believed by the authors of the rule to in the long run to essentially require zero discharge.[14] 

The virtual elimination process is resulting in innovative efforts and pilot projects by the countries and state and local governments to curtail discharges of the target substances, most notably a pilot project to begin implementing zero discharge with Lake Superior.  The Lake Superior Lake Management Plan (LaMP)  lists as critical pollutants the nine substances selected  for zero discharge (chlordane, DDT, dieldrin, hexachlorobenzene, mercury, octachlorostyrene, PCBs, dioxin, and toxaphene).  Ongoing work is focused on bringing about zero discharge of those substances - a pilot approach which it is assumed will eventually need to be applied throughout the Great Lakes.

As another example of how the ambitious goals are accompanied by realism along the way, the Binational Toxics Strategy describes the US’s careful development of benchmarks on the way to meeting certain virtual elimination targets:
When developing the Strategy and the reduction targets, the U.S. started with the presumption that releases of the Level I substances could be reduced by roughly an order of magnitude (90 percent) by 2006. Early drafts of the Strategy contained this goal. However, analysis of baseline emissions inventories has shown in some cases that reductions of this level may not be practical from a technical or economic standpoint. For instance, an analysis of U.S. mercury emissions shows that even a considerable regulatory and pollution prevention effort is unlikely to result in reductions of 90 percent between 1991 and 2006. However, a reduction of roughly one-half from the emissions levels in the most recent mercury emissions inventory is believed to be feasible. Thus, the U.S. challenge in the binational Strategy sets a goal of 50 percent reduction in mercury emissions by 2006.[15]

3.4 PHASEOUTS, BANS AND SUNSETTING OF POPS - THE GREAT LAKES EXPERIENCE.

The experience with product and substance phaseouts in the Great Lakes region has been mixed. While the Great Lakes Agreement has not specified the need for product bans or phaseouts, the IJC has concluded that phaseouts of a number of substances are necessary in order to achieve virtual elimination. Among the products which the IJC has targeted for phaseouts or sunsetting are:

a. PCB’s
b. DDT
c. Dieldrin
d. Toxaphene
e. Mirex
f. Hexachlorobenzene
g. lead and mercury products, where possible
h. chlorine and chlorine containing products as industrial feedstocks, and other uses where feasible

Because these phaseouts are not explicitly included in the GLWQA the implementation of these phaseouts has faced a dynamic tension - with the IJC pushing the party nations to do more, and producer industries lobbying to resist the bans and phaseouts.   The IJC’s call for phaseouts has, however, had the impact of continuing to spur action in the relevant nations - including accountability for implementing specific use bans, and greater examination of the need for the bans in the party nations.  There are continual efforts under the IJC’s oversight to ensure that the party nations are accountable for meeting their evolving commitments to phase out some of the uses of the designated products. To cite a few of many examples, the Binational Toxics Strategy (developed by Canada and the US in response to the IJC’s process) notes the following “challenges” to the party nations:

U.S. Challenge: Confirm by 1998 that there is no longer use or release from sources that enter the Great Lakes Basin of five bioaccumulative pesticides (chlordane, aldrin/dieldrin, DDT, mirex, and toxaphene), and of the industrial byproduct/contaminant octachlorostyrene. If ongoing, long-range sources of these substances from outside of the U.S. are confirmed, work within international frameworks to reduce or phase out releases of these substances.
 
Canadian Challenge: Report by 1997, that there is no longer use, generation or release from Ontario sources that enter the Great Lakes of five bioaccumulative pesticides (chlordane, aldrin/dieldrin, DDT, mirex, and toxaphene), and of the industrial byproduct/contaminant octachlorostyrene. If ongoing, long-range sources of these substances from outside of Canada are confirmed, work within international frameworks to reduce or phase out releases of these substances.

U.S. Challenge: Confirm by 1998, that there is no longer use of alkyl-lead in automotive gasoline. Support and encourage stakeholder efforts to reduce alkyl-lead releases from other sources.

Canadian Challenge: Seek by 2000, a 90 percent reduction in use, generation, or release of alkyl-lead consistent with the 1994 COA.

U.S. Challenge: Seek by 2006, a 90 percent reduction nationally of high-level PCBs (>500 ppm) used in electrical equipment. Ensure that all PCBs retired from use are properly managed and disposed of to prevent accidental releases within or to the Great Lakes Basin... PCB production was banned in the U.S. in 1977; certain uses were banned while other existing PCBs could be used for the remainder of their useful, economic life. The most significant remaining use of high- and low-level PCBs is in electrical equipment. These PCBs may pose risk due to the potential for spills. This challenge goal is targeted at increasing the pace of removal of high-level PCBs in electrical equipment so as to minimize the risk of releases to the environment. The challenge goal takes into account the usual process of retiring or decommissioning electrical equipment.
....In addition, a number of Great Lakes electric utilities have already removed almost 90 percent of the PCBs that they once had in service. However, there are many facilities whose electrical equipment contains PCBs. Progress toward phase down at these facilities is unknown; this goal seeks the voluntary accelerated phase down of remaining high- and low-level PCBs at these facilities.

Canadian Challenge: Seek by 2000, a 90 percent reduction of high-level PCBs (>1 percent PCBs) that were once, or are currently, in service and accelerate destruction of stored high-level PCB wastes which have the potential to enter the Great Lakes Basin, consistent with the 1994 COA.

U.S. Challenge: Seek by 2006, a 50 percent reduction nationally in the deliberate use of mercury and a 50 percent reduction in the release of mercury from sources resulting from human activity. The release challenge will apply to the aggregate of releases to the air nationwide and of releases to the water within the Great Lakes Basin. This challenge is considered an interim reduction target and, in consultation with stakeholders, will be revised if warranted, following completion of the Mercury Study Report to Congress....The U.S. has reduced mercury use 75 percent during the past 15 years, most of which has occurred since 1988. Given a 30-year trend away from mercury use in the U.S., it is expected that companies will continue to develop and market mercury-free alternatives as was done with alkaline batteries. Chlorine production, for example, is the largest national use of mercury. However, as new chlorine production plants are built, this industry is shifting from the mercury cell process to successor technologies which avoid the use of mercury.

3.5. GREAT LAKES EFFORTS AS PRECEDENT TO THE GLOBAL POPS TREATY

3.5.1  FEATURES OF THE GREAT LAKES CAUSE THE REGION TO EXPERIENCE THE PROBLEMS FIRST

The Great Lakes region’s efforts to tackle problems posed by POPs represent some of the earliest responses to POPs worldwide. Indeed, the current POPs round originates with recognitions of the truly global nature of this issue in work here in the Great Lakes.

 Because the Great Lakes are a relatively confined ecosystem and POPs have been well-studied here, the concentration effects of POPs may be showing up here first.  As a unique interlocking network of inland waterways, the Great Lakes have proven an unfortunate experimentation laboratory for bioaccumulation of harmful materials. The USEPA describes the situation of the Great Lakes and the role of toxic substances in its profile of the Great Lakes Initiative:

• The waters of the Great Lakes Basin are particularly vulnerable to toxic pollutants because of several important characteristics of the lakes:
  
• The depth and size of the lakes causes water to be retained in the Basin for extremely long periods of time, which make the lakes essentially a closed system;
  
• Lake waters have relatively low suspended solids concentrations and low biological productivity, making toxic pollutants more potent biologically; and
  
• Fish and wildlife populations in the Basin are almost wholly dependent upon the Great Lakes system for water, habitat and food.

Taken together, these characteristics result in a natural system that retains persistent pollutants for exceptionally long periods of time. The effects of some of these toxic pollutants on humans and wildlife potentially include increased risk of cancer, birth defects, kidney disorders, reproductive system and developmental damage. Studies show that women of child-bearing age may store these pollutants in their bodies, and nursing mother may, in turn, pass them on to their children. Other studies have also shown that animals that depend on fish for food, such as mink, gulls and bald eagles, can experience birth defects and reduced populations due to consuming long-lasting pollutants that are stored in the fish. These occurrences have been documented for a wide range of species throughout the Great Lakes ecosystem...[16]

3.5.2 SOLVING THE POPs PROBLEM OF THE GREAT LAKES REQUIRES GLOBAL SOLUTIONS TO POPs

As the Great Lakes region has assessed its water quality challenges it realized that the toxic problems of the Lakes, due to atmospheric transport and to the operation of businesses and trade within a global economic system, necessitated worldwide solutions beyond the Great Lakes region.

 The Great LakesWater Quality Board is an eighteen member advisory board to the IJC. As with the IJC the Board consists of an equal number of members from the US and Canada. The 1991 report of the IJC’s Water Quality Board stated that the source of some of the Critical Pollutants targeted by the IJC:

 lie outside the Great Lakes basin. Recognizing the importance of out-of-basin sources in the contamination of the Great Lakes with persistent toxic substances, the Parties should take a leadership role in promoting the elimination of the use of these substances world-wide.[17]

 The IJC itself took up this recommendation for worldwide solutions in its 6th and 7th Biennial Reports.  The 6th Biennial report issued 1992 the IJC called for the parties to the GLWQA to seek an international ban on the production, use and storage of DDT, Dieldrin, Toxaphene, Mirex and Hexachlorobenzene.[18]

 In its 7th Biennial Report, December 15, 1993 the IJC amplified the need for international solutions, recognizing both the economic and ecological need to address POPs globally:

Nor can an isolated strategy for change be developed for the Great Lakes basin. Mechanisms are needed to ensure that Great Lakes industries are not placed at an economic disadvantage for being leaders in sustainability. Until such time as the markets offer a secure demand or premium for higher priced but sustainably produced products, some buffering mechanism may be required. An alternative is to encourage sustainable policies at least in North America, and preferably worldwide.
                ......
 
These activities underscore the need for an international approach to reduce and eventually eliminate chemicals that cause an array of detrimental effects on living organisms through short- or long-term environmental exposure. As similar problems and concerns arise in several regional seas and large lakes, and given the international commerce of many chemicals and their products, serious consideration must be given to a multilateral approach that not only manages but, more importantly, eliminates these problems.

 The entry of persistent organic pollutants POPs is not resolveable in the Great Lakes region alone because the region is part of a global biosphere and economic sphere by which the same substances can enter the region from outside. The POPs treaty represents the single best hope for solving this aspect of the region’s POPs challenge, in addition to addressing the POPs dangers posed to the rest of the world.

4.0 THE PRECAUTIONARY PRINCIPLE, WHICH THE US AND CANADA HAS BEEN IMPLEMENTING IN THE GREAT LAKES, SHOULD BE INCLUDED IN THE OPERATIONAL PROVISIONS POPs TREATY.

The IJC has repeatedly recommended that the US and Canada adopt an approach of precaution, meaning “A principle of taking a cautious, environmentally conservative approach to avoid and prevent pollution, according to threats of serious or irreversible damage, even with a lack of full scientific certainty.”[19]

The principle is highly applicable to the Great Lakes region as it is to the rest of the world, and reflects and amplifies the approach being taken in the region. The IJC’s Eighth Biennial Report described the Commission’s strategy as having:
a fundamental premise, consistent with the precautionary principle, that such chemicals are bad for the environment and human exposure unless they are specifically proven safe to use or release. The strategy should prevent the generation and discharge of these chemicals by addressing broad classes of chemicals and then require manufacturers, importers and users to demonstrate that specific chemicals within those classes are not persistent and toxic. Those chemicals that cannot meet this test should preferably be removed from manufacture and use altogether through bans, sunsetting provisions or voluntary transitions to other processes and products. At a minimum it should be demonstrated that the use of such chemicals is both essential and subject to zero discharge.

 While there are some uncertainties about the effects or mechanisms of causation for persistent organic pollutants, in the Great Lakes region there is enough known about the emerging problems and exposures to require action to adopt alternatives to the substances and take other measures to curtail exposures and releases of the substances.[20]  

5.0  COMPARATIVE ANALYSIS OF THE POPs TREATY AND GLWQA AND IMPLEMENTING PROGRAMS.

The draft POPs treaty contains provisions which could prohibit production, trade and use of the targeted substances, and which would encourage release reduction. Depending on the wording of the final treaty, the global effort could strengthen or undermine ongoing efforts to clean up the Great Lakes. In addition, the proposed global treaty should be evaluated with regard to lessons learned in the Great Lakes region.

5.1 ENDING PRODUCTION AND TRADE IN THE TARGETED SUBSTANCES - WITH NO GENERAL EXEMPTIONS.

The curtailment of production, trade and use of the targeted substances as proposed by Annex II. D.1 of the draft POPs treaty is a necessary element of the POPs treaty from the standpoint of the Great Lakes. In the absence of such curtailment, many of the substances are expected to continue entering the Great Lakes ecosystem through the atmosphere and via products sold to the region. Great Lakes regional research has demonstrated, and the IJC has repeatedly stated, that a phaseout of certain substances is merited, because this is the only way to truly ensure that virtual elimination/zero discharge goals are achieved.

The Great Lakes experience has also shown that unless commitments to phaseouts and bans are explicitly included in international instruments a POPs related treaty may have only limited impact in achieving phaseouts.  Despite the stand taken by the IJC, US and Canadian governments have been slow to embrace some of the IJC’s product sunsetting proposals, arguably because there was no buy-in to the concept in the treaty itself.  The US has proven the laggard in the US-Canada relationship -- it needs to join with many other countries in embracing the need for POPs phaseouts.

Of greatest concern in this part of the treaty is a set of general exemptions, proposed by the US delegation to the negotiations, which would undermine the integrity of the bans on production, trade and use. The US-proposed exemptions would appear in articles z bis b through e. For instance, proposed Paragraph (b) would establish an exemption for “de minimis” amounts of contaminants in products.  While the final formulation this proposed exemption may range from “incidental” to “trace” contaminants, the provision is unnecessary and inappropriate for addressing POPs. It would give the impression that some quantities of POPs in products will be acceptable - even in the  long run, and even if they could be eliminated. This ignores the plain fact that even small quantities of these materials added to products would reach the environment and eventually accumulate through the food chain.

 The US explanation of this open-ended exemption describes it as necessary in order to avoid the “delay” associated with negotiating multiple small exemptions for the “trifling” levels of contaminants that appear in many products.  But as worded it would also delay indefinitely the requirement to curtail discharge of those substances to the environment by way of use and products. This conveys the wrong message, implying that it is somehow acceptable based on a lack of intent or incidental creation to continue to produce and discharge POPs in the long term.  It doesn’t matter whether these materials are “incidental” or “unintentional.”  We know enough about the risks posed to know they must be eliminated eventually from the materials discharged to the environment.

 Another exemption would relate to materials:
c) Occurring as constituents of articles manufactured or already in use as of the implementation date of the relevant obligation;

Although a  US note denies it is intended to do so, as written this provision could be construed to entail a grandfathering for the production and sale of existing products and materials containing POPs. This would be an enormous loophole.  In addition, because the phaseout process occurs over time in any event it is not necessary to include permanent exemptions for existing products; instead, a timeline would be established under other provisions for cutting off sales of the existing POPs containing products. The Great Lakes experience with removing PCB’s from use, as described above, demonstrates how we can expect such issues to be handled - with removal from use to occur on a prioritized basis so as to continue the goals of virtual elimination of releases.

 The next US proposed exemption would allow POPs:

 (d) To be used as a closed-system [and] site-limited intermediate that is chemically transformed in the manufacture of other chemicals;

This proposal is direly flawed.  Even when chemicals are used as intermediates in ostensibly closed loop systems there are often unavoidable accidents allowing escape to the environment. There is no foolproof way of ensuring that they will not reach the environment once they are produced. This is why the IJC concluded that there was a need to sunset the production of the targeted substances. The IJC made no exceptions for closed loop systems. For consistency and protection of environmental health it it is necessary to eliminate them entirely.

 Finally the US proposes an exemption for products:

 (e) Which, prior to the entry into force of the relevant obligation for the relevant Party, are in the possession of an individual end user for his or her personal use and in amounts consistent with such use.

 As with the above exemption for existing products this is unnecessary because it is implicit in the phased nature of the sunsetting process.  Under the other draft language the safe disposal of personally held products can be phased in so as to minimize the hardships posed to individuals. By contrast, providing a specific exemption invites stockpiling and even a black market in banned goods.

 Instead of providing these broad exemptions, the parties should stick with narrowly-framed, time-limited, country-specific exemptions as provided in Annex A (country-specific exemptions to Article D1). Negotiators could also establish an exemption oversight panel to periodically assess ongoing needs for POPs and progress in transitioning to alternatives.

5.2 CURTAILING RELEASES: THE NEED FOR VIRTUAL ELIMINATION AND ZERO DISCHARGE GOALS.

Annex II. D.3 of the draft POPs treaty calls for reduction of releases of targeted POPs, potentially with the “aim of their elimination.” Based on the experience in the Great Lakes region this section of the draft treaty is far too equivocal in its approach. The release reduction language in the POPs treaty is equivocal – for instance calling for a “realistic and meaningful level of release reduction...by means that are feasible and practical.”  By contrast, the Great Lakes region has committed to zero discharge and virtual elimination. These terms have developed a specific meaning and the less thorough  reduction benchmarks adopted in the region have, as shown in section 3.3 of this report, been conducted with clarity that they are only interim. The bioaccumulative nature of POPs is such that it is not ecologically acceptable to continue adding these substances to the environment.

By adopting the unequivocal goals in the Great Lakes region, it has been made clear that as evolving technology makes it possible, zero discharge goals will be fulfilled.  “Practical” measures are taking place in the Great Lakes, but in a context of zero as the committed target. In the absence of a firm commitment to zero or to virtual elimination of these substances in the environment as understood in the Great Lakes region, it is unrealistic to expect sufficient reductions to be achieved to prevent continued dispersion and bioaccumulation of the target substances. 
The explicit commitment to “zero discharge” as the objective of regulatory programs is necessary both for consistency with the GLWQA and to ensure efficacy of the global POPs program.

5.3  TO ACHIEVE POPs  GOALS FOR DIOXINS AND FURANS IT IS NECESSARY TO TARGET AND
PHASE OUT  PRECURSORS.

The EPA’s draft dioxin reassessment, made public this year,  amplifies the special risks posed by dioxins and furans as potent carcinogens and as harmful to an array of organ systems:

Based on all of the data reviewed in this reassessment and scientific inference, a picture emerges of TCDD and related compounds as potent toxicants in animals with the potential to produce a spectrum of effects. Some of these effects may be occurring in humans at general population background levels and may be resulting in adverse impacts on human health. The potency and fundamental level at which these compounds act on biological systems is analogous to several well studied hormones. Dioxin and related compounds have the ability to alter the pattern of growth and differentiation of a number of cellular targets by initiating a series of biochemical and biological events, resulting in the potential for a spectrum of cancer and noncancer responses in animals and humans. Despite this potential, there is currently no clear indication of increased disease in the general population attributable to dioxin-like compounds. The lack of a clear indication of increased disease in the general population should not be considered strong evidence for no effect of exposure to dioxin-like compounds. Rather lack of a clear indication of disease may be a result of the inability of our current data and scientific tools to directly detect effects at these levels of human exposure. Several factors suggest a need to further evaluate the impact of these chemicals on humans at or near current background levels. These are: the weight of the evidence on exposure and effects; an apparently low margin-of-exposure for non-cancer effects; potential for significant risks to some portion of the general population and additivity to background processes related to carcinogenicity in the case of incremental exposures above the background.[21]

The POPs treaty negotiators should learn from experience in the Great Lakes region as reiterated in the IJC’s biennial  reports beginning with the 6th Biennial Report: the phaseout (sunsetting) of precursors to dioxin is necessary to eliminate dioxin emissions. Pollution control strategies which seek to capture dioxins and furans before they reach the environment are not efficacious solutions to the problem of dioxin emissions - they still result in dioxin creation. Even if the byproducts are captured and disposed on land instead of air, they ultimately will enter the Great Lakes ecosystem and pose severe environmental risks. 
 
APPENDIX

FROM THE US CANADA BINATIONAL TOXICS STRATEGY

Level I Substances

Substances were selected on the basis of their previous nomination to lists relevant to the pollution of the Great Lakes Basin Ecosystem. These included:

• "Bioaccumulative chemicals of concern" (BCCs) from the "Final Water Quality Guidance for the Great Lakes System," USEPA, March 1995;
• Substances identified by the "Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem (COA)," 1994;
• Substances identified as critical pollutants by the International Joint Commission (IJC), 1987;
• Substances designated "Lakewide Critical Pollutants" in Lakewide Management Plans (LaMPs);

As a measure of further corroboration for their environmental impact, reference was made to the persistent organic pollutants (POPs) of concern identified in the United Nations Environment Programme Governing Council Decision 18/32 of May 1995, and incorporated into the Council of the Commission for Environmental Cooperation's Sound Management of Chemicals Agreement between the U.S., Canada, and Mexico (Resolution #95-5), October 1995.

The intent of the Strategy is to identify and focus efforts on those substances which are persistent and toxic, especially, but not exclusively, those which bioaccumulate. Rather than use a new screening and assessment process, the Strategy seeks to build upon the most recent and relevant science-based selection processes used in either country. These processes considered a wide range of factors such as chemical and physical properties, potential to cause cancer, toxicity, risk to human health and wildlife, presence in the environment, as well as adverse impacts observed in the environment.
Asymmetries in the approaches or information used by the two nations, or in definitions of bioaccumulation produced some differences in lists identified by each country. However, because the Strategy is a binational activity, the final list of chemicals was the result of agreement on the nominations from the two countries.

Level I Substances
 
aldrin/dieldrin1,2,3,4,5
benzo(a)pyrene2,3,4
chlordane1,2,4,5
DDT (+DDD+DDE) 1,2,3,4,5
hexachlorobenzene1,2,3,4,5
Alkyl-lead2,3,4
mercury and compounds1,2,3,4
mirex1,2,3,4,5
octachlorostyrene1,2,4
PCBs1,2,3,4,5
PCDD (Dioxins) and PCDF (Furans)1,2,3,4,5
toxaphene1,2,3,4,5

Legend:

1U.S. BCC
2Canadian COA
3IJC Critical Pollutant 4LaMP Lakewide Critical Pollutant
5POPs from CEC Council Resolution #95-5

Level II Substances

Level II substances are those for which one country or the other has grounds to indicate its persistence in the environment, potential for bioaccumulation and toxicity. These grounds have not as yet been sufficiently considered by both nations such that they can agree to set joint challenge goals for these substances at this time. Until and unless these substances are placed on the Level I list, the governments encourage stakeholders to undertake pollution prevention activities to reduce levels in the environment of those substances nominated jointly by both countries, and to conform with the laws and policies of each country with respect to those substances nominated by only one country.

Level II Substances

cadmium and cadmium compounds2,4
1,4-dichlorobenzene2
3,3'-dichlorobenzidine2
dinitropyrene2
endrin5
heptachlor (and heptachlor epoxide)5
hexachlorobutadiene and hexachloro-1,3-butadiene1
hexachlorocyclohexane 1,2,4,6
4,4'-methylenebis(2-chloroaniline)2
pentachlorobenzene1
pentachlorophenol2
tetrachlorobenzene (1,2,3,4- and 1,2,4,5-)1
tributyl tin2
PAHs as a group, including anthracene, benzo(a)anthracene, benzo(ghi)perylene, perylene, and phenanthrene2

Legend:

1U.S. BCC
2Canadian COA
3IJC Critical Pollutant
4LaMP Lakewide Critical Pollutant
5POPs from CEC Council Resolution #95-5
6In Canada, all agricultural pesticides were excluded from the COA Tier II list and are dealt with separately under COA and are not Canadian nominations to this list.

 
Report prepared by Attorney Sanford Lewis,  gnproject@earthlink.net, fax: 781 891-6889,   phone: 617 489-3686.
 
Acknowledgments

This paper was prepared with input and assistance from Tim Eder, Tim Brown, Ken Fenner, Margaret Wooster, Jack Weinberg, Tracey Easthope, Alex MacPherson.    In addition the following articles were essential resources: Alana M. Fuierer, COMMENT: The Anti-Chlorine Campaign in the Great Lakes: Should Chlorinated Compounds Be Guilty Until Proven Innocent? 1995, 43 Buffalo L. Rev.; Sally Billups, Tim Eder, John Jackson, Paul Muldoon, and Michael Murray, REPORT: Treading Water: A Review of Government Progress under the Great Lakes Water Quality Agreement (Part II): A Report to the International Joint Commission, 1998 Tol. J. Gr. Lakes' L. Sci. & Pol'y 245.
 
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[1]The Boundary Waters Treaty of 1909 between the US and Canada imposed a legal obligation on the two countries to control water pollution. While the primary focus of the treaty was on the issues of water utilization and navigation, Article IV prohibited water contamination, stating "it is further agreed that the waters herein defined as boundary waters and water flowing across the boundary shall not be polluted on either side to the injury of health or property on the other." Treaty Relating to Boundary Waters Between the United States and Canada, Jan. 11, 1909, U.S.-Gr. Brit., 36 Stat. 2448 (hereinafter Boundary Waters Treaty).

[2]  These Commissioners do not represent the separate interests of their countries, but act as a single body to advise the two governments jointly on matters of common interest.  The IJC was given absolute jurisdiction over cases involving uses, obstructions, or diversions of boundary waters. Boundary Waters Treaty, supra note 84, art. III Also, each country has the ability to refer problems to the IJC for investigation, a reference procedure that has been increasingly invoked in recent years.  This has positioned the IJC to become very active on some policy matters. In contrast to its powers on obstructions, IJC powers relating to pollution matters are nonbinding. However, the IJC recommendations relating to pollution issues are referred to the individual nations for responses, which can bind the nations to take action. The IJC's authority to investigate and make recommendations on water pollution control in the Great Lakes is derived from Article IX in conjunction with Article IV's prohibition on pollution of the boundary waters. 

[3] The IJC was asked to investigate water pollution in the Great Lakes beginning in 1912, only three years after the Boundary Waters Treaty was adopted. In those early days the primary pollution problem was not industrial but municipal. Sewage contamination of drinking water, by 1912, was contributing to an estimated 250,000 cases of typhoid fever per year, and resulting in 25,000 deaths. Economic loss reached 100 million annually. Taking water directly from the Great Lakes without filtration or treatment, was a big contributor to this outbreak.  Allan J. McGlaughlin, Sewage Pollution of Interstate and international Waters, HR Doc No 739, 62d Congr. 2d Sess. 14 (1912) at 18.  By 1918 the IJC had noted the severity of the pollution problems in the Great Lakes and begun to make recommendations for solutions as well as expanded investigative role of the IJC.

[4] Great Lakes Water Quality Agreement, Nov. 22, 1978, U.S.-Can., annex 12(1)(a), 30 U.S.T. 1383.  

[5] 33 USC 1268, as added by Pub. L. 100-4, Title I Sec. 104 101 Stat. 11, Feb. 4, 1987.

[6]  Amending 33 USC 1268, by Pub. L. 101-596, Title I Sections 101-106, 104 Stat. 3000-30004, Nov. 16, 1990.

[7] The agreement is also binding US law. For instance, the Agreement has been held to create enforceable obligations which gave a Michigan court jurisidiction to hear a sewerage dispute regarding wet weather overflow to the great lakes in UNITED STATES v. MICHIGAN, 777 F. Supp. 1365.

[8] The law as amended most recently in 1990 now states in its findings 33 USCS §§ 1268:
(B) the United States should seek to attain the goals embodied in the Great Lakes Water Quality Agreement of 1978, as amended by the Water Quality Agreement of 1987 and any other agreements and amendments, with particular emphasis on goals related to toxic pollutants; and
(C) the Environmental Protection Agency should take the lead in the effort to meet those goals, working with other Federal agencies and State and local authorities.
(2) Purpose. It is the purpose of this section to achieve the goals embodied in the Great Lakes Water Quality Agreement of 1978, as amended by the Water Quality Agreement of 1987 and any other agreements and amendments, through improved organization and definition of mission on the part of the Agency, funding of State grants for pollution control in the Great Lakes area, and improved accountability for implementation of such agreement.
 
[9] IJC Sixth Biennial Report. http://www.ijc.org/comm/6bre.html.

[10] The Binational Toxics Strategy states that: “ In keeping with the objective of the Revised Great Lakes Water Quality Agreement of 1978, as amended by Protocol signed November 18, 1987 (1987 GLWQA) to restore and protect the Great Lakes, the purpose of this binational strategy (the Strategy) is to set forth a collaborative process by which Environment Canada (EC) and the United States Environmental Protection Agency (USEPA), in consultation with other federal departments and agencies, Great Lakes states, the Province of Ontario, Tribes, and First Nations, will work in cooperation with their public and private partners toward the goal of virtual elimination of persistent toxic substances resulting from human activity, particularly those which bioaccumulate, from the Great Lakes Basin, so as to protect and ensure the health and integrity of the Great Lakes ecosystem. In cases where this Strategy addresses a naturally-occurring substance, it is the anthropogenic sources of pollution that, when warranted, will be targeted for reduction through a life-cycle management approach so as to achieve naturally-occurring levels. An underlying tenet of this Strategy is that the governments cannot by their actions alone achieve the goal of virtual elimination. This Strategy challenges all sectors of society to participate and cooperate to ensure success. The goal of virtual elimination will be achieved through a variety of programs and actions, but the primary emphasis of this Strategy will be on pollution prevention.” The Great Lakes Binational Toxics Strategy: Canada-United States Strategy for the Virtual Elimination of Persistent Toxic Substances in the Great Lakes. http://www.epa.gov/glnpo/p2/bns.html

[11] Binational Toxics Strategy, footnote one.  

[12] GLWQA Specific Objectives Supplement to Annex 1, General Principles 1(a) Interim Objectives for Persistent Toxic Substances. (Language Adopted in 1987 Protocol)

[13]Final Water Quality Guidance for the Great Lakes System, 60 FR 15336, Thursday, March 23, 1995. Amending various sections of 40 CFR: 40 CFR Parts 122, 123, 131, and 132.  Originally proposed at Proposed Water Quality Guidance for the Great Lakes System, 58 FR 20802,  Friday, April 16, 1993 Section 118(c)(2) of the Clean Water Act (CWA) (Pub. L. 92-500 as amended by the Great Lakes Critical Programs Act of 1990 (CPA), Pub. L. 101-596, November 16, 1990) required EPA to publish proposed and final water quality guidance on minimum water quality standards, antidegradation policies, and implementation procedures for the Great Lakes System. In response to these requirements, EPA published the Proposed Water Quality Guidance for the Great Lakes System (proposed Guidance) in the Federal Register on April 16, 1993 (58 FR 20802). EPA also published four subsequent related documents in the Federal Register (April 16, 1993, 58 FR 21046; August 9, 1993, 58 FR 42266; September 13, 1993, 58 FR 47845; and August 30, 1994, 59 FR 44678).

[14]Ken Fenner,  former Program Manager, Region V EPA during development of the GLWQG, Telephone interview, July 24, 2000.  The Congressional Research Service described the bioaccumulation standards as follows:
Calculation of water quality criteria to account for chemicals that bioaccumulate is a well known practice. The guidance incorporates a factor, the food chain multiplier (FCM), to account for the tendency of some compounds to bioaccumulate at greater rates in organisms higher in the food chain. In dealing with a class of compounds that accumulate in fish at very high levels, called bioaccumulative chemicals of concern (BCCs), the guidance also uses the FCM to calculate criteria more stringent than for other compounds. The guidance specifically focuses on 22 of the BCCs (for example, DDT, dieldrin, PCBs and mercury). Researchers believe that long-term exposure to these chemicals increases the risk of cancer, birth defects, genetic mutations, and reproductive problems. But because adequate field data are lacking to derive water quality criteria for the BCCs, the guidance uses bioaccumulation as a surrogate measure to determine the potential for toxic effects. 

[15] Binational Toxics Strategy, Footnote 3.

[16] USEPA, description of the Great Lakes Initiative, EPA Website. www.epa.gov.

[17] Cleaning up Our Great Lakes: A Report on Toxic Substances in the Great Lakes Basin Ecosystem, Great Lakes Water Quality Board Report, Sept. 1991, p.42. Emphasis added.

[18] IJC, 6th Biennial Report, fourth recommendation, 1992.

[19]  International Joint Commission, Glossary, Eighth Biennial Report, 1992.

[20] In 1992 governments worldwide gathered in Rio de Janeiro to discuss the need for sustainable development.   The United States signed and ratified the Rio Declaration on Environment and Development which  states in Principle 15 that: "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full  scientific certainty shall not be used as a reason for postponing  cost-effective measures to prevent environmental degradation." Rio  Declaration on Environment and Development, June 14, 1992. 

[21]USEPA, DRAFT DIOXIN REASSESSMENT, 2000.