Last Updated:	2004-10-01
Report Contents
-   Restricted Substance Reports -   Laws & Regulations -   Links -   Contacts

Introduction

There are several International environmental agreements and other initiatives that restrict the use of hazardous substances in products. Those of particular interest to the electronics industry are explained in detail below.

Montreal Protocol on Substances that Deplete the Ozone Layer

CEC Sound Management of Chemicals

UNEP Mercury Initiative

LRTAP Heavy Metals Protocol

LRTAP POPs Protocol

Stockholm POPs Convention

Defined Restrictions:
Montreal Protocol on Substances that Deplete the Ozone Layer

The Montreal Protocol on Substances that Deplete the Ozone Layer (“Montreal Protocol”) is an international treaty that requires ratifying countries (“Parties”) to control substances that deplete the ozone layer. Those “ozone-depleting substances” (“ODSs”) are used in a wide array of commercial and industrial applications. In the electronics industry, ODSs have primarily been used as solvents.

A brief discussion of the Protocol is provided below. The discussion is divided into four parts:

1. the Parties to the Protocol;



2. the ODSs controlled by the Protocol;



3. key requirements of the Protocol; and



4. the Parties’ domestic implementation of the Protocol.

Please note that the discussion below provides only an overview of the Protocol. The Protocol implicates numerous legal, policy, technical, and scientific issues. This overview necessarily does not address all of those issues, focusing instead on the basic framework of the Protocol. For further information, internet links to additional resources are provided at the end of this discussion.

Parties to the Protocol

The Protocol was concluded in 1987 and entered into force in 1989. Currently, there are 186 Parties to the Protocol.

Developing countries enjoy a unique status under the Protocol. As explained further below, Article 5 of the Protocol provides developing countries (referred to as “Article 5 Parties”) with an extended time-frame for phasing out the production and consumption of ODSs. To facilitate that phase out, the Protocol also makes developing countries eligible for certain financial and technological assistance. Article 5 Parties include several nations with an extensive electronics industry presence, including China and India.


The Ozone Secretariat of the United Nations Environmental Programme (“Secretariat”) is responsible for coordinating the Parties’ actions under the Protocol. Those administrative functions include arranging for meetings of the Parties and preparing reports on the implementation of the Protocol.

ODSs -- “Controlled Substances”

The Protocol currently lists ninety-six ODSs, which the Protocol terms “Controlled Substances.” Controlled Substances fall into the following eight categories:

• chloroflurocarbons (“CFCs”);



• halons;



• carbon tetrachloride;



• methyl chloroform (i.e., 1, 1,1-Trichloroethane);



• hydrochloroflurocarbons (“HCFCs”);



• hydrobromofluorocarbons (“HBFCs”);



• methyl bromide; and



• bromochloromethane.

The Parties periodically review new ODSs for listing as Controlled Substances, and have, in the past, listed new substances. That listing process generally begins with a review of the substance’s ozone-depleting potential and other characteristics by technical bodies established under the Protocol (e.g., the Technical and Economic Assessment Panel). The technical review bodies then recommend to the Parties whether an ODS should be listed as a controlled substance. At the annual “Meeting of the Parties,” the Parties then decide whether to list a new ODS by amending the Protocol. That amendment would enter into force ninety days after its ratification by at least three-fourths of the Parties. Even when an amendment enters into force, and a new ODS is listed, the amendment binds only those Parties that choose to ratify it. The listing of new substances under the Protocol is described further in the Ozone Secretariat’s Handbook for the International Treaties for the Protection of the Ozone Layer (“Protocol Handbook”).

Requirements of the Protocol

The lynchpin of the Protocol is a ban on the Parties’ “production” and “consumption” of listed ODSs, i.e., Controlled Substances. The Parties establish the schedule for each ban of an ODS, but generally the bans are phased-in over several years. For example, the CFC phase out began shortly after the Protocol entered into force in 1987, and was complete by 1996.

Under the Protocol, “production” and “consumption” are defined terms that do not embrace all actual manufacture of ODSs or their uses. “Production” is defined as the amount of controlled substances produced.
Production, however, does not include:

1. Controlled substances destroyed by technologies approved by the Parties;



2. Controlled substances entirely used as feedstock in the manufacture of other chemicals;



3. Controlled substances that are “recycled and reused”; and



4. certain Controlled Substances used as “process agents” in the manufacture of other substances.

Additionally, the production bans of Controlled Substances have been delayed for so-called Article 5 developing countries, so long as their production is undertaken “for basic domestic needs.”

Under the Protocol, “consumption” means production plus imports minus exports of Controlled Substances. This definition is intended to prohibit trade of banned controlled substances among the parties. When a Controlled Substance is banned, consumption must equal zero. That effectively prohibits any imports. Exports are also effectively barred; no Party can export because another Party cannot import.

However, Article 5 of the Protocol delays the consumption ban for developing countries that require Controlled Substances for “basic domestic needs.” Until the ban becomes effective for those “Article 5” Parties, they may continue to import certain amounts of Controlled Substances for basic domestic needs. Additionally, non-Article 5 parties could produce Controlled Substances for export to Article 5 parties.

Significantly, the production and consumption ban does not prohibit the use of Controlled Substances. Parties are free to use existing “stockpiles” of ODSs manufactured before the ban of a particular substance.

The Parties’ Domestic Implementation of the Protocol

To implement the Protocol, the Parties enact legislation or regulations in their respective nations. In that regard, the Protocol sets a floor, not a ceiling. In other words, Parties must implement the requirements of Protocol, but nothing in the Protocol prohibits Parties from going beyond the Protocol to control ODSs. To illustrate, the Clean Air Act in the United States regulates ODSs in several respects that exceed the requirements of the Protocol, including product labeling and restrictions on the disposal of certain ODS wastes.

---

CEC Sound Management of Chemicals

The environmental side agreement of the North American Free Trade Agreement (“NAFTA”) created the North American Commission for Environmental Cooperation (“CEC”). The CEC established a Sound Management of Chemicals (“SMOC”) Program in 1995. Under the SMOC program, the U.S., Mexico and Canada cooperatively address substances of regional concern. To date, the governments have focused on Persistent, Toxic and Bio-accumulative chemicals.

The CEC’s North American Sound Management of Chemicals Working Group is the body responsible for administering the SMOC initiative. A key focus of this initiative to date has been the development of North American Regional Action Plans (“NARAPs”) for substances believed to pose a significant risk to human health or the environment. To begin the NARAP process, a NAFTA Party first submits a nomination dossier to the SMOC Working Group (WG). Upon WG request, the Substance Selection Task Force (SSTF): (1) performs “Stage I” screening of substances; (2) performs “Stage II” evaluation of substances; and (3) in “Stage III,” prepares a Draft Decision Document (DDD). The WG decides whether to recommend development of a NARAP to the Council of the CEC (comprised of the U.S. EPA Administrator and the Mexican and Canadian Environment Ministers), based upon public comment and the DDD (which includes the nomination dossier, results of Stage I and II evaluation, and the SSTF assessment of implementation considerations). The CEC Council then decides whether to approve substances for regional action.

NARAPs have been prepared for PCBs, chlordane, DDT, and mercury. In addition, a cross-cutting NARAP has been prepared for environmental monitoring and assessment. The CEC Council has called for NARAPs to be prepared for dioxins/furans, HCB and lindane. Additionally, the SSTF released the DDD and received public comment on its recommendation for regional action to manage the use, transport and disposal of lead and lead-based products.

Furthermore, the SMOC is currently drafting a “New Directions” policy to submit to the June 2004 Session of the Council. The draft New Directions document calls for greater implementation of SMOC initiatives, tracking emerging chemical issues, investigating pathway intervention opportunities, improving information sharing, identifying chemical intensive sectors or companies, greening the supply chain, life-cycle management, sustainable design, green procurement, bio-monitoring, becoming active in other international chemicals initiatives, and enhancing public participation.

Lastly, the CEC is also in the process of creating a voluntary program with the electronics industry that seeks to secure voluntary commitments from companies to ensure that products sold in North America adhere to the requirements of the European Union’s RoHS directive.

LEAD DDD
The SSTF has nearly completed a DDD to manage the use, transport and disposal of lead and lead-based products, with the public comment period having ended October 3, 2003. The DDD is the next-to-last step in the process to determine whether lead should be the subject of trilateral action.

The DDD presents the SSTF’s evaluation of the environmental and health risks posed by lead; an overview of the NAFTA member countries’ regulatory schemes that apply to lead; and a summary of international agreements that address the tracking, reporting, or control of products or processes that use lead. The SSTF has identified four potential lead reduction targets, including lead paint, drinking water, lead additives in motor vehicle formulations, and other products and industries that use lead.

EIA members should be aware that the SSTF’s “other products and industries” category includes electronics (other products identified include lead-acid batteries, ammunition, oxides in glass and ceramics, casting metals, sheet lead, roofing materials, dyes, asbestos, catalysts, cathode materials, and flame retardants). The DDD lists circuit boards and CRTs, which contain lead oxides in soluble form, as particular products of concern due to the rapid increase in production and disposal rates worldwide.

The SSTF makes several concrete action recommendations regarding electronic products. Initially, the SSTF recommends that risk reduction and pollution prevention initiatives focus on information technology scrap management (among others). Trilateral actions related to information sharing and technology transfer, product design, contamination site remediation, and risk communication to the public and consumers are also contemplated. The SSTF invites comments on whether risk reduction measures might be warranted or whether use reductions might apply to information technology or telecommunications products due to their lead content. In addition, the SSTF suggests a series of specific actions that the United States, Canadian and Mexican governments can undertake in partnership with industry, including:

• monitor landfills to determine whether lead-based products are being disposed of improperly;


• undertake studies to determine the occupational exposure at product recycling facilities or potential exposure for people living in the vicinity of these facilities;


• determine the significance of trade in lead-containing products between Mexico and the other two NAFTA countries and the implications for take-back initiatives;


• establish policies for promoting extended producer responsibility;


• adopt uniform standards for waste transport and disposal; and


• track sales of lead-based products, with the aim of preventing inappropriate use or disposal of these products.

The DDD also identifies gaps and uncertainties in current regulatory schemes and suggests various general capacity building activities. These activities include the increased exchange of information and training on best practices and human health effects related to lead; the development and sharing of risk management strategies; monitoring and tracking lead in the environment; product certification initiatives; and support for research on pollution prevention techniques. Pollution prevention might consist of the identification of alternatives to lead and traditional waste handling and disposal. Alternatives to traditional practices might include recycling and take-back commitments and provisions for waste for electronic and electrical products.

The development of a lead NARAP can be expected to drive formal and informal national action on lead and lead-based products. For example, the CEC’s development of the mercury NARAP preceded much of the legislative action on mercury at the state level in the U.S.

Proposed Electronics Challenge
The CEC is currently drafting an Electronic Toxics Reduction Challenge (“Electronics Challenge”) to encourage the electronics industry to voluntarily restrict the use of six substances from their products. The Electronics Challenge is expected to call for the restriction of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (“PBBs”), and polybrominated diphenyl ethers (“PBDEs”) from electrical and electronic equipment (“EEE”) put on the market in the U.S., Canada and Mexico by July 1, 2006. The CEC plans to publicly issue the challenge at its June 22-23, 2004, Ministerial Meeting. However, EIA and other electronics trade groups have indicated concerns with the draft Electronics Challenge, which may delay its announcement.

The Electronics Challenge has been spurred by the European Union’s RoHS directive and its mandatory call for the elimination from EEE of the same six compounds by the same date. For details about the RoHS directive, see EIA’s October 29, 2002 Regulatory Alert

The CEC is piggy-backing on the RoHS directive to encourage the electronics industry to do what it is largely expected to do on its own accord. Due to the global nature of the electronics industry, it is expected that all corporations that sell EEE in the European Union will standardize their products so that no matter where in the world they are sold they would meet the RoHS directive’s requirements. Indeed, several electronics companies have indicated to the CEC that all their EEE sold in North America will comply with the RoHS directive by the deadline.

Perhaps most importantly, the Challenge considers PVC, beryllium and antimony as materials of concern, in addition to the six RoHS substances. While the draft does not currently call for their elimination, there is language in the document that suggests that the current proposal could be expanded to include these materials in the future.

---

UNEP Mercury Initiative

The 22nd session of the United Nations Environment Programme (“UNEP”) Governing Council, held February 3-7, 2003, called for immediate and long-term national, regional and international actions addressing mercury. The Governing Council will, at its next regular session in February 2005, consider further measures to deal with the global adverse impacts of mercury. At that session, the Governing Council will also consider what further action might be taken with regard to other heavy metals, such as lead and cadmium.

A working group on mercury was established in 2001 by the 21st UNEP Governing Council to create a global assessment on mercury. Based on the working group’s assessment, the 22nd UNEP Governing Council adopted decision 22/4 V, calling for a variety of actions on mercury. The Council urged all countries to adopt goals and take national actions to reduce anthropogenic mercury releases that impact human health and the environment and to identify exposed populations and ecosystems. The Council also called for technical assistance, capacity building, partnerships with the private sector and a report by UNEP’s Executive Director on the possibility of developing a legally binding instrument, a non-legally binding instrument or other measures or actions on mercury for consideration at the next session.

The Governing Council also adopted an annex to its decision on Mercury, creating an UNEP Programme for International Action on Mercury (“Mercury Programme”). The annex calls for, among other things, enhancing risk communication, improving the scientific basis for policies, reducing the demand for and the uses of mercury, enhancing capacity building in developing nations, increasing awareness of mercury-free products, identifying areas where legislation or other measures might be considered and assisting in the development of legislation and regulations for enforcement.

The Mercury Programme has begun to address these tasks by organizing regional workshops, developing toolkits and guidance materials, creating a clearinghouse for mercury related information and preparing a survey of global mercury trade and transfers. Additionally, UNEP is inviting governments and other stakeholders to report on progress made toward implementation of decision 22/4 V and provide views on what further measures are needed.

The Mercury Programme could significantly impact EIA members. At the very least, it is likely to foster domestic activity within UNEP member nations regulating the production, use and disposal of products containing mercury. There is also a strong possibility that the Mercury Programme will create some form of international regime on mercury, whether binding or voluntary. Moreover, the Mercury Programme could provide a foundation for a future binding global heavy metals regime.

---

LRTAP Heavy Metals Protocol

The Protocol on Heavy Metals to the Long-Range Transboundary Air Pollution Convention (“LRTAP Heavy Metals Protocol”) entered into force on December 29, 2003. The first Meeting of the Parties to the Protocol will likely be held in December 2004. Negotiated under the auspices of the United Nations Economic Commission for Europe (“UNECE”), the U.S., Canada and governments in Europe concluded the Heavy Metals Protocol in 1998. Austria, Bulgaria, Canada, Cyprus, the Czech Republic, Denmark, Finland, France, Germany, Liechenstein, Luxembourg, Monaco, the Netherlands, Norway, the Republic of Moldova, Romania, Slovakia, Slovenia, Sweden, Switzerland, the U.S. and the European Community have ratified the Protocol. U.S. ratification did not require implementing legislation.

The objective of the Heavy Metals Protocol is to control anthropogenic emissions of heavy metals that are subject to long-range transboundary atmospheric transport and are likely to have significant adverse human health or environmental effects. Parties are obligated to reduce emissions of cadmium, lead and mercury below their 1990 levels (or an alternative year between 1985 and 1995). The Protocol includes procedures for evaluating and adding additional metals to the control regime over time.

The Protocol includes obligations to apply BAT to new stationary sources within major source categories; impose emissions limit values for certain new stationary sources and apply BAT and limit values for certain existing sources of emissions. New major stationary sources are to comply within two years and existing major stationary sources within eight years of entry into force. Parties are also obligated to develop and maintain emission inventories for covered heavy metals. The Protocol includes product-related measures concerning the phase-out of lead in gasoline, and the reduction of metals in various other products such as electrical components, batteries, thermostats, fluorescent lamps, pesticides, and paint.

The newly formed Expert Group on Heavy Metals, chaired by Germany, is reviewing the Protocol and information on heavy metals in anticipation of ratification. It is expected that the Expert Group will expand the scope of the Protocol to include other heavy metals and product control measures. Some European countries have suggested that arsenic and nickel be considered for inclusion in the Protocol. The Expert Group is also developing a work plan for activities following entry into force.

Annex VII of the Protocol specifically lists mercury-containing electrical components and mercury-containing batteries for recommended product management measures. Annex VII does not have stringent requirements, and merely recommends a precautionary approach if warranted by available information. The product management measures recommended include substitution, minimization, labeling, economic incentives, voluntary agreements and recycling programs.

While the Protocol contains provisions for adding new substances, it is expected that creating the procedures surrounding assessments and reviewing the Protocol will consume most of the time of the Protocol’s bodies. Thus, any review of proposed new substances will likely not begin until 2006.

---

LRTAP POPs Protocol

The Protocol on Persistent Organic Pollutants to the Long-Range Transboundary Air Pollution Convention (“LRTAP POPs Protocol”) entered into force on October 23, 2003. Negotiated under the auspices of the United Nations Economic Commission for Europe (“UNECE”), the U.S., Canada and governments in Europe concluded the POPs Protocol in 1998. To date, Austria, Bulgaria, Canada, Cyprus, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Liechtenstein, Luxembourg, the Netherlands, Norway, the Republic of Moldova, Romania, Slovakia, Sweden, Switzerland and the European Community have ratified the Protocol.

The Protocol obligates Parties to take measures to eliminate the production and use of certain POPs listed in Annex I, restrict the use of substances listed in Annex II, and reduce the emission of substances listed in Annex III. The substances currently listed are:
Annex I (eliminate production and use)

• Aldrin,


• Dichlorodiphenyltrichloroethane (“DDT”),


• Dieldrin,


• Endrin,


• Heptachlor,


• Hexabromo-biphenyl,


• Hexachloro-benzene,


• Mirex,


• Polychlorinated biphenyls (“PCB”), and


• Toxaphene.

Annex II (use restrictions)

• DDT,


• Hexachlorocyclohexane (“HCH”), and


• PCB.

Annex III (emission reductions)

• Dioxins and Furans,


• Polycyclic Aromatic Hydrocarbons (“PAHs”), and


• Hexachloro-benzene.

Many of the substances currently targeted for production bans or restrictions are pesticides or commercial chemical products that are not currently used by the electronics industry. However, the Protocol and related Executive Body decisions include criteria and procedures for adding additional substances over time.

The first Meeting of the Parties (“MOP”) for the Protocol was held in Geneva, Switzerland, from December 14-17, 2003. That meeting created a Task Force on POPs, which is to be chaired by Canada and the Netherlands. The Task Force’s primary duties are to conduct sufficiency and effectiveness reviews of the Protocol, review dossiers of new substances and conduct use reassessments, reevaluations and reviews.

An Expert Group on POPs has prepared several dossiers on substances of concern that were not included in the Protocol. Dossiers have been prepared for Hexachlorobutadiene; Pentabromodiphenyl Ether (a flame retardant); Pentachlorobenzene; Polycholrinated Naphthalenes; Dicofol; Short-Chain Chlorinated Paraffins; and Endosulfan. These chemicals are expected to be reviewed for inclusion in the Protocol in the coming months. Work by Poland on a dossier for pentachlorophenol is ongoing.

The Swedish government submitted a report to the Expert Group on POPs on chemicals likely to meet the criteria for inclusion in the Protocol. Sweden identified perfluoro-octansulfonic acid with its salts (“PFOS”) as a candidate for nomination and listing under the Protocol. The report also listed the flame retardant hexabromocyclododecane (“HBCD”) as a substance of concern.

The U.S. has signed, but not yet ratified, the LRTAP POPs Protocol. Before the U.S. can become a Party to the Convention both houses of Congress must pass amendments to the Toxic Substances Control Act (“TSCA”) and the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), and the Senate must give its “advice and consent.” The Senate Environment and Public Works Committee approved S.1486 to amend TSCA and implement the Stockholm POPs Convention, the LRTAP POPS Protocol and the Rotterdam Prior Informed Consent (“PIC”) Convention for Banned or Severely Restricted Chemicals. Proposed legislation has been submitted by the Environmental Protection Agency (“EPA”) to the House and Senate on needed FIFRA amendments.

The U.S. has consistently favored a transparent, science-based approach to the listing of chemicals to be banned or restricted under the LRTAP POPs Protocol and Stockholm POPs Convention. For this reason, EIA members have a stake in early ratification of these accords by the U.S. so as to ensure U.S. participation in future work on listings procedures and listing decisions.

---

Stockholm POPs Convention

The Stockholm Convention on Persistent Organic Pollutants (“POPs”) entered into force on May 17, 2004. Negotiated under the auspices of the United Nations Environment Programme, 151 nations concluded the POPs Convention in 2001. To date, the Convention has been ratified by 77 countries. The first Conference of the Parties (“COP-1”) to the Convention will be held in Punta de Este, Uruguay, in early 2005.

The Convention obligates Parties to take measures to eliminate the production and use of certain POPs listed in Annex A, restrict the use of substances listed in Annex B, and reduce the emission of substances listed in Annex C. The Convention also focuses on eliminating and cleaning up stockpiles of obsolete pesticides and toxic chemicals. The Convention initially targets 12 chemicals, but includes a mechanism for governments to add additional chemicals for restriction or phase-out in the future. The substances currently covered by the Convention are:
Annex A (eliminate production and use)

• Aldrin,


• Chlordane,


• Dieldrin,


• Endrin,


• Heptachlor,


• Hexachloro-benzene (“HCB”),


• Mirex,


• Polychlorinated biphenyls (“PCBs”), and


• Toxaphene.

Annex B (use restrictions)

• DDT.

Annex C (emission reductions)

• Dioxins and Furans,


• PCBs, and


• HCB.

Many of the substances currently targeted for production bans or restrictions are pesticides or commercial chemical products that are not currently used by the electronics industry. Annex C lists production by-products. However, the Convention includes criteria and procedures for adding additional substances over time. In this regard, the Convention establishes a global framework for governments to restrict and/or phase-out chemicals. COP-1 is expected to establish a committee for evaluation of other chemicals and pesticide that could be added to the Convention. COP-1 is also expected to finalize guidelines for promoting best environmental practices and best available techniques for the reduction or elimination of releases of dioxins and furans.

The U.S. has signed, but not yet ratified, the Stockholm POPs Convention. Before the U.S. can become a Party to the Convention both houses of Congress must pass amendments to the Toxic Substances Control Act (“TSCA”) and the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), and the Senate must give its “advice and consent.” The Senate Environment and Public Works Committee approved S.1486 to amend TSCA and implement the Stockholm POPs Convention, the LRTAP POPS Protocol and the Rotterdam Prior Informed Consent (“PIC”) Convention for Banned or Severely Restricted Chemicals. Proposed legislation has been submitted by the Environmental Protection Agency (“EPA”) to the House and Senate on needed FIFRA amendments.

The U.S. has consistently favored a transparent, science-based approach to the listing of chemicals to be banned or restricted under the Stockholm POPs Convention. For this reason, EIA members have a stake in early ratification by the U.S. so as to ensure U.S. participation in future work on listings procedures and listing decisions. EIA recently submitted a letter to Congress expressing support for the Convention, and calling for its prompt ratification.

---