Controls on hazardous chemicals - regulation the last resort

Statutory controls on chemicals posing hazards to the environment will in future be introduced only if voluntary measures or economic instruments are not up to the job, the Department of the Environment (DoE) announced in a discussion document on chemicals policy on 7 March.1 The paper is intended to encourage industry to take a proactive approach to identifying and reducing chemical risks, but lacks a punch because it is short of crucial details.

But it breaks new ground in suggesting that positive lists of permitted uses may be the best way of controlling some substances - notably lead, mercury and cadmium. The discussion document has been a long time coming. It was initially promised in 1991 in the first progress report on the 1990 White Paper on the environment - and in the intervening period the Government's deregulation initiative has taken its toll of the DoE's plans.

What the Government promised in 1991 was that it would consult during 1992 on how best to use new powers in the Environmental Protection Act 1990 "to control diffuse sources of hazardous substances more effectively." The legislation extended its powers to ban or restrict the import, supply, storage and use of hazardous substances, and also enabled it to seek information from manufacturers and suppliers about the properties, production, distribution and use of substances "for the purpose of assessing their potential for causing pollution of the environment or harm to human health."

The promise to publish a consultation paper during 1992 was repeated in the second annual White Paper report issued in that year. Fifteen months behind schedule, the DoE's discussion document has finally appeared - only to announce that regulatory controls on hazardous substances will be the measure of last resort.

Announcing the paper, Environment Minister Robert Atkins said that its aim was to "develop a transparent and coherent strategy for identifying and controlling chemicals which are particularly dangerous to the environment, especially those released from diffuse sources."

The Minister went on to stress that the proposals are intended to "minimise the burdens on the public sector and industry". They would, he said, meet two objectives of the deregulation initiative - "greater clarity in the operation of environmental regulations, and the consideration of viable alternatives to regulatory action which maintain existing environmental standards." The proposals, unfortunately, possess neither clarity nor transparency.

The document is in three main parts. It outlines criteria for identifying chemicals of concern. It goes on to suggest how the environmental risks of chemicals may be evaluated. And finally, it sets out a hierarchy of possible control options. The first two sections are both distinctly thin on detail. For example, the section on identification of hazardous substances notes that high-tonnage chemicals which are persistent, bioaccumulative, known to be toxic or structurally related to known toxic chemicals, or cause serious health effects with no accepted exposure threshold would be "a prima facie cause for concern". Hence where there was reason to expect adverse effects and/or significant exposure, an in-depth risk assessment would be necessary.

These criteria are of limited value for several reasons. They do not deal with low-tonnage chemicals, which is odd for a Department which spent a good deal of effort in the 1980s on controlling organotin-based marine anti-fouling compounds.

More fundamentally, they give no quantitative indication of the thresholds of, say, persistence or bioaccumulation which the DoE believes would give rise to concern. And the paper also fails to say whether the DoE has in mind any initiative to identify chemicals of concern, or whether this will be done solely within the EC and OECD programmes for evaluating the risks posed by "existing", or older, substances in which it is already participating.

The section on risk assessment is equally vague, although it does refer the reader to a report on risk assessment produced last year by an industry/government working group.2 This is more helpful in that it sets out detailed risk assessment procedures, and also suggests "assessment factors" - crudely, safety factors - for use in evaluating the results of laboratory tests and extrapolating them to ecosystems.

The section on control options is more illuminating in that it spells out a new hierarchy of possible control measures. Regulatory measures, it says, "should be used only where other approaches, including economic instruments, are not likely to be effective in reducing the risk of harm to the environment."

The hierarchy is as follows:

  • Voluntary "agreements": This term is used loosely to encompass formal risk reduction agreements, as well as voluntary initiatives by individual companies. Voluntary agreements of the formal kind, the paper notes, "must be supported by reduction targets and timetables against which their performance can be judged."

    The paper also notes that the effectiveness of voluntary agreements can be reduced where there are many producers of, and disparate markets for, a hazardous substance. "Experience from the control of CFCs in the UK," it says, "suggests that voluntary approaches are most effective when action is taken on both means of production and consumption in parallel."

    The paper goes on to suggest that emission reduction targets which companies may set themselves when the Government's Chemical Release Inventory gets off the ground may also be another means of reducing environmental inputs of hazardous substances, while the implementation of BS7750, the new environmental management systems standard, "should help to promote the introduction of managed programmes by industry to control and reduce emissions."

  • Economic instruments: Several possible instruments are put forward. These include taxes set at a level judged to be likely to bring about a desired reduction in the total consumption of a substance. Or, as with CFCs, the total production of a substance could be limited, but the market left to allocate its use. The paper omits to identify any possible shortcomings of these measures.

  • Notification: Section 142 of the 1990 Act, as noted above, enables Ministers to require industry to notify new and intended uses of a substance. This would provide an opportunity to evaluate risks posed by the potential new uses. The DoE appears to favour this course because "it signals ahead chemicals that may be subject to action so that industry can consider the case for substitutes and make the necessary changes to products or processes in good time."

  • Direct regulation: Prohibiting or restricting the use of a substance by statutory means may be the only option "when the market structure makes it likely that neither voluntary control nor economic instruments are likely to deliver environmental goals," the paper says.

    Where direct regulation is used, "the priority should be to limit the most dispersive and least essential uses of a particular substance before deciding whether any further action is necessary."

    The paper breaks new ground in suggesting that a positive listing of permitted uses may be appropriate for a hazardous substance with very few essential uses. This has been done to date for pesticides and, under EC legislation, for PCBs, pentachlorophenol, and a few other substances. "There are a number of other chemicals which could be considered for control by these means," the DoE suggests, "including lead, cadmium, mercury and their compounds, and chrysotile asbestos."

    The paper adds that any proposals for UK controls on hazardous substances would have to be cleared at EC level unless, as provided for in the EC Treaty, "major needs" relating to environmental or health protection justified unilateral national action.

    Another key point of the paper is its emphasis on the need for appraisal of potential substitutes for a substance on which restrictions are being considered. "Whenever possible," the DoE says, "the risks and benefits of using the substance should be quantified and full account taken of the economic costs of the changeover to alternatives. It will also be necessary to consider the risks and benefits of the substitute products themselves, and any difference in their performance and efficacy compared with the product they replace."

    DoE officials acknowledge that the discussion document is short on specifics at several points. Their overall goal appears to be to move away from the substance-by-substance approach which has characterised action on hazardous substances at EC level. This is regarded as not particularly efficient, with the negotiation of individual Directives taking so long that the chemicals concerned have often been largely replaced by industry by the time they are implemented.

    The DoE's aim appears to be to send a signal to companies - users as well as producers of chemicals - that they should think carefully about using a particular substance. But the strategy will need a good deal of fleshing out before the signal is sufficiently powerful to achieve that goal.

    Meanwhile, the DoE has published jointly with the Health and Safety Executive a guide for companies on how they should report data under the 1993 EC Regulation on "existing" substances (ENDS Report 218, pp 38-40 ).3 Initial notifications of data on high-tonnage substances are due in in June.

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