A common misconception of EC legislation is that it is devised solely by a Brussels bureaucracy embarked on a mission of self-aggrandisement. Whatever may be said about its ambitions, however, the European Commission is neither particularly large nor a fount gushing with new policy ideas.
More often than not, proposals for new EC Directives have their origins in national initiatives in one or more Member States to which the Commission feels bound to respond as the guardian of the internal market, or are the result of pressure for action at EC level from one or two Member States on an issue which they have made a priority at home.
Success on acidification
A recent example is the EC strategy on acidification, drafted in response to pressure from Sweden, whose waters and soils have been damaged by decades of acid deposition originating from much of northern Europe. The strategy's proposals for national targets to cut emissions of sulphur and nitrogen oxides and ammonia has provoked heated debate among Member States (ENDS Report 266, pp 40-41 ), doubtless pleasing the Swedes with their success in driving EC policy forward.
Sweden may soon embark on a similar initiative, this time in chemicals policy. In June, a Chemicals Policy Committee (CPC) finalised a report which would, if accepted, require radical changes in chemical risk management practice within Sweden and create pressure for similar action at EC level.
Almost at the same time as the CPC's report was published, however, the finishing touches were being put to the EC's new Treaty of Amsterdam. For Sweden and countries such as Denmark, the Netherlands and Germany which are leaders in the environmental field, the Treaty looks like bringing new difficulties in implementing domestic laws which run up against the EC's free trade rules.
For the first time, the Treaty gives Member States the explicit right to introduce new laws - as distinct from maintaining existing rules - for traded products such as chemicals in areas covered by EC legislation. However, according to Nigel Haigh, Director of the Institute for European Environmental Policy (IEEP) and author of two reports for Sweden's CPC, the qualifications attached to those rights are so extensive that it is difficult to envisage any national law passing them - the killer being an absolute condition that national laws must not obstruct the functioning of the internal market (see box ).
To the extent that the Swedish Government would have to rely on legislation to implement the CPC's report, the Treaty amendments are a potentially formidable obstacle. However, many of the report's recommendations are based on harnessing market forces, encouraging voluntary action by businesses and applying pressure at EC level to achieve its objectives.
The CPC was set up last year to review Sweden's chemicals policy over the last ten years and propose directions for the future. Its recommendations are not yet official policy - the Government is consulting on them before finalising its own conclusions.
One of the CPC's main building blocks was the Esbjerg declaration agreed at the fourth Ministerial conference on the North Sea held in Esbjerg, Denmark, in June 1995 (ENDS Report 244, pp 19-22 ). A key part of the declaration was that discharges of toxic, persistent and bioaccumulative substances should be reduced with a view to eliminating them by 2020.
The CPC goes a good deal further. Its key targets are:
The implications for lead, mercury and cadmium are clear. What may be less obvious is that the CPC has dropped the toxicity criterion which is customarily used alongside persistence and bioacccumulation to identify chemicals of concern, and - going further than the Esbjerg declaration - wants controls to be imposed on uses as well as releases. And it has produced a triple whammy by proposing a tightening of the conventional numerical thresholds used in defining whether substances are persistent and bioaccumulative.
The CPC's justification for such radical changes begins with experience, which "tells us that new, unexpected forms of toxicity may be uncovered in the future. For substances that are persistent and liable to bioaccumulate, that knowledge will come too late. To act only when that knowledge becomes available is not prevention. We therefore conclude that known or suspected toxicity is not a necessary criterion for measures against organic man-made substances that are persistent and liable to bioaccumulate. Such substances should in the future not be used at all."
Like other countries in cooler regions, Sweden is at the receiving end of a "global distillation" process in which persistent semi-volatile compounds used in warmer parts of the globe evaporate and condense out at higher latitudes. This form of transfrontier pollution is contaminating indigenous populations and ecosystems in the Arctic and sub-Arctic with hazardous substances such as PCBs, lindane and other organochlorines (ENDS Report 261, pp 9-11 ), and was the focus of a high-level meeting of Arctic countries in June.
Global distillation was an unexpected route for exposures to hazardous chemicals. Developing its theme, the CPC contends that globalisation of trade may act in a similar fashion.
Products, the report notes, are becoming increasingly important as a source of exposure to chemicals. But trade globalisation is making it more difficult to discover what chemicals are used in common goods such as textiles, electronics or plastics, creating the "clear risk" that widespread exposures to a hazardous chemical may occur before adverse effects appear.
The report goes on to advance another practical reason why chemicals policy is need of an overhaul. The substance-by-substance approach to risk assessment pursued by industrialised countries, it says, has proved much too slow and resource-intensive, and puts the burden of proof in the wrong place.
It is difficult to contest the CPC's view that the risk assessment process is grindingly slow. The EC's "existing chemicals" programme - intended to assess the risks of some of the 100,000 chemicals on the market before pre-market testing of "new" chemicals was introduced in 1981 - has yet to deliver any results. A first priority list of 42 substances was agreed in 1994, but conclusions have yet to be reached on any of these.
As an example of what the CPC believes should happen, the report says that "when alkyl phenol ethoxylates in laboratory tests are shown to negatively affect hormone systems, there is reason for manufacturers and users to apply the precautionary principle and the substitution principle" - switching quickly to a less hazardous substitute rather than waiting for regulation.
"In reality," the report says, "what happens is that governments take upon themselves the task of collecting and assessing all data. Industry can sit back and wait for the outcome of the assessments before any action is taken."
The EC's existing chemicals programme will take centuries to work its way through pre-1981 substances and consume vast resources in the process. In its place the CPC advocates a more generic approach, with conclusions about the risks posed by particular substances being drawn on the basis of structural and functional analogies with related chemicals.
The report acknowledges that such measures "may sometimes also hit chemicals that at closer scrutiny appear to be relatively harmless." The difficulty, it says, "is to find the balance point where the saving in resources is greater than the cost of possible false positives being caught in the net" - though it offers little advice on how that balance should be struck.
Worries over additives
The CPC has a particular worry over additives used in plastics and other products. For most additives, it says, there are insufficient data on effects or exposures, but new information on both continues to come to light - an example being the migration of phthalates from some PVC products and laboratory studies showing some phthalates to be oestrogenic. For the future, the CPC wants no additive to be used unless it has a low mobility, is not persistent or bioaccumlative, and appropriate tests and risk assessments have shown "beyond reasonable doubt" that it is safe to use.
Another of the CPC's key prescriptions is that chemicals control agencies need an overview of a larger part of chemical life-cycles. Most have confined their attention to workplace exposure hazards and controls on releases from manufacturing and downstrean industrial uses. Many of tomorrow's problems, the report suggests, will arise from a cumulation of small exposures from everyday products.
Sustainable chemicals use
From these considerations the CPC has put forward a seven-point model for "sustainable chemicals use":
The CPC's views of the criteria which should determine whether a chemical is treated as persistent and bioaccumulative are nothing if not radical. On persistence, it notes that there are no "readily available" test methods, but recommends that substances which are not readily degraded - more than 20% - in internationally recognised tests for ready or inherent biodegradability should be treated as persistent.
Substances are normally treated as bioaccumulative if they have a bioconcentration factor (BCF) of 100 or more or an octanol-water partition coefficient of 1,000 or more. The CPC recommends that both factors should be cut by an order of magnitude to 10 and 100, respectively.
According to David Taylor of Zeneca's environmental laboratory in Brixham, Devon, these criteria would encompass a very large number of chemicals currently in commerce. With a BCF of 10, the number of substances treated as bioaccumulative would increase "very dramatically indeed," he says. As for the CPC's proposal on persistence, he points out that current test methods are highly problematic, "telling you little about whether chemicals are actually persistent in the environment or the cause of real environmental problems."
Blow for PVC
While the chemical industry works its way through the implications of those proposals, the CPC has already made it clear that it does not regard PVC as having a place in the future "ecocycle society". Existing PVC materials should be phased out by 2007 and replaced by materials that are "environmentally adapted in the long term," with all new PVC uses phased out as well after consultations with stakeholders.
Those recommendations have provoked an outcry from the European Council of Vinyl Manufacturers, already harried by Greenpeace's anti-PVC campaign. It has promised to throw the industry's full weight behind what it regards as a "politically driven" report, and says that the CPC failed to show that other plastics have a superior ecocycle to PVC.
For Swedish policy, the report recommends an action programme led by the national chemicals inspectorate, KEMI, which would develop generic lists of chemicals to be avoided as a basis for initiatives by regional agencies. These would work with businesses to substitute less hazardous substances in their processes and products and along their supply chains.
Backing up these measures would be a collaborative programme with business aimed at ensuring that the chemical contents of all products marketed in Sweden are disclosed to the public from 2002. Firms would also need to draw up plans by 2000 showing how they intend to implement the CPC's proposed targets and provide regular progress reports.
In a recommendation which, if implemented, would test how far EC countries can go before falling foul of free trade rules, the report recommends that KEMI should draw up proposals for national restrictions on the marketing and use of "particularly hazardous" substances once it has refined the CPC's proposed criteria on persistence and bioaccumulation, and that the Government notify its proposals to Brussels.
The report also recognises, however, that Sweden will not achieve its own targets for chemicals policy without action at EC and wider international levels. It urges the Government to
push for an EC chemicals strategy incorporating the CPC's recommendations just as it did successfully on acidification.
One goal at EC level, the report suggests, should be a framework Directive incorporating the precautionary principle, a reversal of the current burden of proof on the authorities to find a substance hazardous, and the principle that industry is responsible for seeking less hazardous substitutes when precaution dictates.
The CPC also recommends that Sweden should aim to persuade the EC to develop rules requiring manufacturers to declare the chemical content of their products, and to implement a more generic approach to risk assessment in its existing and new chemicals programmes. "Routines" to identify substances meeting the criteria of the Esbjerg declaration should be included in both programmes, and EC rules on marketing and use of dangerous substances extended until all such substances are covered. Sweden's long-term goal, the CPC says, should be legislation to secure the phase-out of all persistent and bioaccumulative organic chemicals.
The CPC's report has gone down badly with Sweden's chemical industry, which has voiced fundamental objections to the idea that chemicals should be phased out of commerce simply by virtue of their potentially hazardous properties, and to any move away from the substance-by-substance approach to risk assessment. But as a pointer to how the chemicals policy agenda is likely to evolve it is essential reading.