President Bush on Thursday formally asked the Senate to ratify an international treaty phasing out a dozen of the most toxic substances known to man, and for Congress to approve legislation allowing the administration to carry it out. While lawmakers applauded Bush's support of the treaty, some say the administration's approach is flawed.
Sen. Jim Jeffords (I-Vt.), chairman of the Senate Environment and Public Works Committee, which has jurisdiction over the enabling legislation, sided with several environmental groups in faulting the package for excluding language allowing the Environmental Protection Agency to add future chemicals to the elimination list without congressional approval.
"I am pleased that the administration is honoring its committment to the Stockholm Convention on Persistent Organic Pollutants (POPs)," Jeffords said in a written statement. "However, I am deeply disappointed that the administration's proposal does not include a mechanism to address future harmful pesticides and industrial chemicals."
Aiming to correct what he saw as the administration's misstep, Jeffords introduced a bill Thursday to implement the Stockholm Convention on POPs that includes new authority for EPA to prohibit the manufacture for export of 12 already identified POPs and future ones.
During a Rose Garden ceremony last April, Bush announced he would seek Senate ratification of the treaty, which was negotiated by the Clinton administration and targets the so-called dirty dozen POPs ranging from industrial chemicals such as polychlorinated biphenyls (PCBs) to DDT and other pesticides, as well as byproducts of combustion, specifically dioxin and furans.
Most of the 12 substances currently addressed by the treaty are already banned in the United States or are in the process of being eliminated, but to implement the treaty, changes must be made to U.S. environmental laws, specifically the Toxic Substances Control Act and Federal Insecticide, Fungicide and Rodenticide Act. To that end, the administration is sending enabling legislation to the House and Senate, along with a request for the Senate's advice and consent to implement the treaty.
A key provision of the treaty establishes a rigorous, science-based process through which chemicals can be added to the treaty later. Jeffords said his bill, the POPs Implementation Act of 2002, includes this process. EPA originally proposed draft legislation that included a provision to allow the agency to regulate chemicals added to the POPs convention subsequent to Senate ratification.
That section was reportedly rejected later by John Graham, director the Office of Information and Regulatory Reform, an arm of the White House Office of Management and Budget. EPA Administrator Christie Whitman and Anthony Rock, the State Department's acting assistant secretary of State for Oceans and International Environmental and Scientific Affairs, announced the administration was seeking congressional approval of the package outside the Capitol. They were flanked by Rep. Paul Gillmor (R-Ohio), chairman of the House Energy and Commerce Subcommittee on Environment and Hazardous Materials, and Sen. Robert Smith (R-N.H.), ranking member of the Senate Environment and Public Works Committee.
Whitman would not answer direct questions about EPA's original draft, saying EPA supports the current legislative proposal. When asked why it excludes a language dealing with chemicals added to the treaty in the future, Whitman said the treaty "lacks a clear process" for adding future chemicals, other than saying such additions must be based on sound science.
Whitman said writing enabling legislation on future additions absent a clear treaty process was proving difficult, so the administration shelved the effort. "It got complicated trying to find language that was comprehensive enough, yet didn't tie our hands and would be something that could be accepted by the rest of the world," she said. Whitman added that the administration will support a clearer framework for adding additional chemicals or chemical families during an international meeting on the convention in June.
Meantime, the administration seeks congressional approval to start working on the 12 pollutants already in the convention, she said. "We still embrace the idea that future chemicals will need to be added later," she said. Environmentalists argue the administration is adding an unnecessary strand of red tape to the process of regulating chemicals later added to the convention by omitting administrative authority to do so. Leaving the provision out would delay regulatory action, as Congress could decide not to deal with the issue, or, worse, could open environmental statutes to amendments weakening them, critics said.
Clifton Curtis, director of the World Wildlife Fund's toxics program, said under the treaty, an international committee must evaluate potential new chemicals using agreed-upon scientific criteria. Should the committee recommend that a new chemical be added to the list, it would have to be approved by all countries party to the agreement before being added to the treaty as a binding amendment, he said. Even then, the treaty gives countries some flexibility when deciding whether to regulate a newly added chemical. Countries can "opt out" of their obligation to regulate the chemical after one year, or they can declare when ratifying the underlying treaty that they will only be bound to regulation of a new chemical if they opt to do so through a separate ratification process.
The United States pushed for the "opt-in" provision when the treaty was being negotiated. Environmentalists want the enabling legislation to allow "automatic regulation" of a newly added chemical once the administration chooses to opt in, requiring only the Senate's advice and consent instead of a legislative change to TSCA or FIFRA each time a new chemical is added to the treaty, and it's likely many Democrats will as well, environmentalists said.
"The key will be winning over the Democratic leadership," said Rick Hind, legislative director of the Greenpeace toxics program. Administration officials would not say whether they would oppose an amendment authorizing EPA to regulate chemicals added to the treaty later.
"We would certainly continue working with the Congress to implement the treaty," an administration official said. Fred Webber, president and CEO of the American Chemistry Council, applauded Bush's support for the treaty and urged Congress to support the package.
"ACC has long supported the diplomatic effort to enact an international treaty governing POPs," he said. "Most importantly, the treaty recognizes science as the basis to restrict or eliminate production of these chemicals and for future decisions on others."
ACC has not taken a public position on the issue of whether the regulation of chemicals added to the treaty should require separate congressional approval. The POPs treaty must be ratified by 50 countries to take effect. Whitman signed it on behalf of the United States on May 23.:
