Letter to BAT/BEP Expert Group Participants:


USA | San Francisco | Sep 22, 2004



The four public interest NGO participants in the BAT/BEP Expert Group (EG) consulted with other international public interest NGO representatives from August 30 to September 1 in San Francisco, California. This letter communicates the discussion and conclusions of that meeting, endorsed by those groups accepting of the scope of concerns and views addressed herein.

With the posting of the July 2004 draft "Guidelines on Best Available Techniques (BAT) and Guidance on Best Environmental Practice (BEP) relevant to the provisions of Article 5 and Annex C of the Stockholm Convention" (hereafter Draft) on UNEP’s web site, the above-referenced NGOs had our first opportunity to review this work-in-progress in its entirety. A great deal of effort has gone into the draft document, and we greatly appreciate the work and resources devoted thus far to its preparation. However, now that we have reviewed the Draft, it is evident that substantial work is still needed to produce a guidelines document that adequately reflects the objectives and provisions of the Stockholm POPs Convention.

Parties to the Convention, especially many developing country Parties and Parties with economies in transition, will rely on the final BAT/BEP guidelines in the development and implementation of Article 5 on unintentional POPs (U-POPs). The present Draft does not yet have the precision or clarity that Parties need and deserve, nor does it, when considered as a whole, achieve the objectives of the Convention's Article 5.

1. The Challenge: The Stockholm Convention is the first global, legally binding instrument aimed at controlling toxic chemical pollutants at the source. For those produced intentionally (POPs listed in Annexes A and B), the Convention goal is the "ultimate elimination" of all production and use (and appropriate disposal of obsolete stocks). U-POPs, on the other hand, are more complex to address. Still, Parties have agreed that for U-POPs listed in Annex C, each Party must take specific measures to "reduce the total releases derived from anthropogenic sources … with the goal of their continuing minimization and, where feasible, ultimate elimination."

The Convention’s goals are very ambitious and implementation places serious demands on Parties. Nonetheless, the rapidity with which more than 75 countries have ratified the Convention attests to the power of the worldwide consensus that POPs pose significant global threats to public health and the environment, and that concerted international and national actions aimed at POPs elimination are required. Among all the POPs listed in the Convention, some U-POPs (e.g. certain PCDDs and PCDFs) exhibit toxic effects on humans at extremely low doses in the parts-per-trillion range and below. Moreover, U-POPs are already present at or near levels of concern in the global foodchain and in the human populations of many countries. Therefore, U-POPs are of special concern.

The Convention mandates that U-POPs releases from existing sources must be subject to continuing minimization; new sources of U-POPs must be avoided where feasible, and in other cases, must be strictly controlled to a very high standard. Among the main tools for achieving these objectives are best available techniques (BAT) and best environmental practices (BEP) which are initially specified in Article 5, sections (d), (e) and (f); and further elaborated in Annex C, Part V.

The provisions of the Convention mandate each Party to promote BAT and BEP for both new and existing sources of U-POPs such as those listed in Parts II and III of Annex C. Furthermore, for sources listed in Annex C, Part II, which the Convention states "have the potential for comparatively high formation and release" of U-POPs (i.e., incinerators, cement kilns firing hazardous waste, pulp production using chlorinated bleaching processes, and certain thermal processes in metallurgical industry), each Party is to require BAT for new sources no later than four years after entry into force of the Convention for that Party.

The above considerations reflect the challenges faced by the BAT/BEP EG and they suggest the criteria for evaluating the guidelines on BAT and BEP to be forwarded for consideration by the COP. Appropriate BAT/BEP guidelines must:

1) Be sufficient to drive a global advance toward the Convention's goal for U-POPs: that is, to reduce total releases from anthropogenic sources with the goal of continuing minimization and, where feasible, ultimate elimination; and

2) Provide useful guidance and approaches – especially useful to Parties with developing economies and with economies in transition – that are clear, understandable, practical, assessable and affordable

In our view, the July 2004 Draft falls short of meeting the above criteria. This letter addresses how the Draft can be further developed and improved.

2. Alternatives: At EG1 and 2, substantial time was devoted to the role of alternatives in the BAT/BEP guidelines, with emphasis on Annex C text that states:

"When considering proposals to construct new facilities or significantly modify existing facilities using processes that release chemicals listed in this Annex [i.e. U-POPs], priority consideration should be given to alternative processes, techniques or practices that have similar usefulness but which avoid the formation and release of such chemicals."

This text serves as a chapeau to the portion of Annex C listing "general release reduction measures" including flue-gas cleaning; treatment of residuals; process changes; and modification of process designs. The negotiators of the Convention agreed to this text as the way to provide a framework for the release reduction measures that follow. As the EG now develops these in more detail in sections V and VI of the Draft, this framework needs to be carried forward.

At EG2, it was agreed that the draft document should include a section on the "Consideration of Alternatives in the Application of BAT". This appears in the present Draft as Section II. It was additionally agreed that the treatment of each source category should include a presentation of the alternatives appropriate to that source. This is largely absent in several source categories and far from adequate in the rest.

Public interest NGOs will bring to the EG3 meeting proposed additional text on alternatives for several of the listed source categories. In each case, we will suggest a presentation of alternatives that avoid formation and release of U-POPs to be inserted into the document to precede the presentation on techniques that can control and reduce releases. These will be presented as alternatives that can provide "similar usefulness" by the standards set forward in Section II of the Draft and, as such, can be given "priority consideration".

Our intent is to prepare the proposed alternatives presentations with primary emphasis on the needs of developing countries and countries with economies in transition. The focus will be on approaches that enable affordable access to alternatives that are effective, safe, available, and sustainable. In many cases, these alternatives are not capital intensive and do not rely on high-cost technical imports; rather, they are more labor-intensive and make more effective use of available national resources.

3. U-POP Formation Mechanisms: The topic of U-POP formation mechanisms is repeated several times in different source categories. Some presentations address only PCDD/PCDF formation, and do not address PCBs and HCB. In some, the presentation is more complete and more accurate. In others, it is less complete and may not be fully accurate.

The mechanisms by which U-POPs are created tend to be similar among combustion-based source categories. The repetition and the inconsistencies among different presentations are confusing and unnecessarily long. The formation mechanisms of U-POPs should be addressed in a new section (possibly IV bis). We suggest that the repeated presentations on mechanisms of U-POP formation be removed from the individual source category sections except where they are unique to a particular source. Each source category presentation should appropriately reference the general presentation on U-POP formation mechanisms, relating those to the specifics of that source category. Public Interest NGOs will prepare proposed text for this new section on U-POP formation in advance of the EG3.

4. Monitoring Releases: As a broader policy view, our organizations do not support incineration or similar technologies. They are the principal source of U-POPs. A core message of Article 5 is that those technologies need to be rapidly phased out in favor of safer, cleaner alternatives, an emphasis our public interest NGO EG participants advanced at EG1 and 2, reinforced by the section 2 comments, above. At present, the use of incineration technologies persists, and continues to be promoted, hence our comments on the need for effective testing, monitoring and reporting as long as such use continues.

The Draft contains two paragraphs on "Monitoring of Releases" in Section IV, 2 (c) on page 15. The second paragraph is particularly problematic. It states:

"If direct testing of Unintentional POPs is not possible due to fugitive emissions or some types of emission control technology or if analytic capacity is not readily available, measurement of surrogates or precursors should be implemented or emission factors associated with a similar plant type should be used."

We know of no methodology involving the measurement of surrogates or precursors that has been accepted by national regulatory agencies as a valid substitute for the measurement of U-POPs in flue gas and other releases from individual waste incinerators and similar sources. Furthermore, while emission factors are used in the UNEP Toolkit's methodology for estimating overall national releases and for establishing national priorities in the absence of detailed, facility-by-facility data, we reject the suggestion that such emission factors are acceptable substitutes for the direct measurement of U-POPs releases from a specific facility. We also reject the notion that attempting to do so falls within the purview of best available techniques.

This paragraph is most disturbing in its suggestion that monitoring a facility for U-POP releases need not be undertaken in circumstances where "analytical capacity is not readily available". (emphasis added.) Monitoring any facility for U-POP releases is always expensive. In that sense, monitoring for U-POPs is not "readily" available anywhere or for any facility, but it is available in any region for a price. We propose the entire second paragraph be removed, and that a more detailed and useful discussion on monitoring U-POPs releases be added to the guidelines.

For each source category, especially those listed in Annex C, Part II, regular monitoring and reporting on releases of U-POPs to all media should be an essential component of BAT. This reporting should conform to a common template and include information on releases to all media. Pending the phase out and replacement of incineration technologies with safer alternatives, when there is a proposal to build a new waste incinerator, cement kiln firing hazardous waste or other source or to significantly modify such a facility, the proposal must include a plan for regularly monitoring U-POP releases in order to meet BAT. Past experience has shown that assumptions made about U-POP releases from facilities that have never actually been tested are frequently very wrong. When tests are finally conducted, the operators and the authorities are often shocked.

If the adopted guidelines suggest that an incinerator or other source can be considered to conform to BAT standards without any plan for testing and monitoring U-POPs releases, this will further open the door to unscrupulous technology vendors who make false claims that never need be substantiated. Worse, these vendors will lay claim to a guarantee that their technology complies fully with BAT/BEP guidelines. (This has begun already, even though no guidelines have yet been approved.) If the guidelines serve to facilitate construction of incinerators that cannot meet regulatory standards in their country of export, the Convention could, in effect, expedite the spread of dirty technologies and thereby achieve an increase in total releases of U-POPs from anthropogenic sources rather than a reduction -- an effect opposite to that intended by the negotiators and Parties. Therefore, we cannot agree to guidelines that declare monitoring and testing of U-POPs releases to be unnecessary.

Other than for waste incinerators and cement kilns firing hazardous waste, we can envision time-limited exceptions to a requirement for testing and monitoring some new or modified small facilities in cases where facility design and operation otherwise conform to BAT standards. Such exceptions may be justified based on social and economic considerations. However, the same does not hold for small incinerators – especially for individual hospital incinerators and batch-operated incinerators. Small incinerators tend to be the worst of the worst and should never be classified as BAT. Such facilities are known to release very large amounts of U-POPs to the environment despite their small size; and when they are permitted, they tend to proliferate.

In Western Europe, North America and other highly industrial regions where small incinerators have previously been operated, they have been shut down and phased out because of their inability to meet even minimum regulatory standards at an affordable cost. In all countries where they have been permitted to operate, and where measurements have subsequently been taken, these incinerators have been identified as sources of most of the U-POPs releases to the air. However, as this dirty technology has been phased out in richer countries, some vendors are attempting to compensate for lost domestic markets by exporting these dirty facilities to developing countries. In some cases, developed country governments have supported this dirty technology transfer as part of their development aid programs. This unfortunate practice must be ended, not facilitated.

Large incinerators and cement kilns firing hazardous waste, on the other hand, tend to be mega-million dollar/Euro enterprises. For such proposed or existing facilities, regular monitoring and testing becomes just part of the cost of doing business and should be considered a necessary component of BAT.

The first paragraph of the discussion of monitoring states as follows:

"Releases of Unintentional POPs to all media (air, water, land) should be regularly monitored as part of the EMS. Air emissions monitoring should be regularly monitored as part of the EMS. Air emissions monitoring should be conducted through annual isokinetic testing using standard isokinetic testing methods. Various standard testing methods are listed in Annex B."

Following the model of UNEP's Toolkit and some national inventories, U-POPs releases to products should also be included. Further, quasi-continuous monitoring technologies are now in use and, indeed, required in some regions. Comparative studies suggest that standard testing methods can lead to serious underestimation of U-POPs releases to air. Such underestimation can be even more dramatic when standard testing is conducted only once a year. The Convention goal of “continuing minimization” suggests ongoing improvements in the standards demanded of such facilities. Consequently, consideration should be given to more frequent testing as well as the phase-in of the newer, quasi-continuous monitoring technologies. In the end, the only way to know if BAT is working is by reviewing actual releases based on a valid monitoring and testing program.

5. Management of Flue Gas and Other Residues: Methods of flue-gas cleaning are addressed in the Draft for several source categories. For many sources, the same or similar considerations apply, and the repetitions cause confusion. The differences or inconsistencies between the various presentations on the same topic may not reflect differences in how to manage residues from different sources as much as they reflect the involvement of multiple authors. We therefore suggest preparation of a section devoted to the management of flue gas and other residues of combustion-based sources. It should include detailed presentations not only of flue-gas cleaning methods, but also methods for controlling and managing other residues -- liquid, solid (fly ash, bottom ash, slag, scrubber water filter cake, etc.), and, where appropriate, products.

As with section 3 above, we also suggest that repeated presentations of flue gas cleaning and other residue management techniques be removed from individual source category sections except where the particular source poses a unique problem or where a unique technique is used.

6. Streamlining: In many cases, presentations of BAT and BEP for specific source categories include materials taken from EU BREF documentation, from US EPA documents or from other existing regulatory documents that address issues outside the purview of the Convention and that are not relevant to the application of BAT and BEP for elimination and reduction of formation and release of U-POPs . Examples include information and guidelines to restricting and controlling releases of non-POPs such as sulfur and nitrogen oxides, certain metals, and so on.

Leaving this material in the guidelines makes them much longer than needed. More importantly, it will confuse those who try to use the guidelines in applying BAT and BEP. It will be unclear to the reader which parts of Sections IV and V represent guidelines for Convention implementation, and which represent other matters important to certain regulators, but not directly relevant to a Party’s obligations.

This information can be made otherwise available to regulators in developing and transition countries to use as appropriate to their circumstances. In some cases, this non-POPs material might be placed in an Annex of the BAT/BEP guidelines to make it easily available to those who might need it. However, considerations that do not directly or indirectly relate to the application of BAT and BEP, as defined by the Convention, should be removed from Section IV and Section V of the guidelines. For EG3, public interest NGOs will prepare marked-up examples of some of the source categories with extraneous topics removed (though referenced).

7. Flow Chart: The Implementation Flow Chart, Section I C, is seriously flawed. The first diamond states: "Is source within a source category identified in action plan?" If the answer is "No", then no action is required. At minimum, this flow chart should make reference to the source categories in Annex C, Part II. A proper flow chart will show that BAT is required for all new sources and for substantial modifications by no later than four years after entry into force for a Party. The phrase in Article 5 (d) "In any case", indicates that this obligation holds whether or not the source category is identified in the action plan.

A proper flow chart will also show that, for both new and existing sources, BAT and BEP shall be promoted for all sources listed in both Part II and Part III of Annex C. Ideally, all such sources should be referenced in action plans. Regardless, however, the requirement to promote BAT and BEP for such sources is in force whether or not a particular source category is listed in an action plan. The flow chart should be corrected to reflect the actual mandates spelled out in Article 5 (d) and (e).

8. Other Topics: Beyond the changes proposed above, public interest NGOs will prepare further proposed technical amendments to certain source categories such as magnesium production, chemical production processes, and waste oil refineries.

9. Process: As addressed in this letter, substantial additional work is still needed to prepare a satisfactory document for consideration by the COP despite the important work and efforts that have already gone into the preparation of the July 2004 Draft. The public interest NGO experts will circulate the above enumerated, proposed improvements prior to EG3 to the extent possible. Similar efforts to advance these areas of concern by the EG Secretariat and other EG participants prior to the Tokyo meeting would be greatly appreciated. In our view, it is possible that satisfactory guidelines can be agreed at EG3 and/or that a plan for a final edit can be agreed with subsequent revisions quickly by the Secretariat or its consultants.

At the same time, we strongly hold that sound and adequate BAT/BEP guidelines are crucial to the success of the Convention, and EG3 participants should avoid a rush to judgment in addressing BAT/BEP. If it proves impossible to complete the necessary improvements to the Draft at EG3 and approval of the guidelines must be delayed beyond COP1, then work should continue expeditiously until adequate guidelines are ready for consideration by COP2.


Respectfully,

Jindrich Petrlik (Arnika Association/IPEN Dioxin, PCB & Waste Working Group Co-chair; tel: + 420.222.81.471, email: jindrich.petrlik@arnika.org)

Sharyle Patton (Commonweal; tel: +1.415.868.0970, email: spatton@igc.org)

Jorge Emmanuel (Filipino/American Coalition for Environmental Solutions (FACES); tel: +510.799.2551, email: jemmanuel@mindspring.com)

Ann Leonard (Global Anti-Incineration Alliance/GAIA; tel: +1.510.883.9490, email: aleonard@no-burn.org)

Pat Costner (Greenpeace International; tel: +1.501.253.8440, email: pat.costner@dialb.greenpeace.org)

Jack Weinberg (IPEN Northern Co-Chair/Environmental Health Fund; tel: +1.312.566.9314, email: jackwein@uic.edu)

Fernando Bejarano (RAP-AL/Pesticide Action Network Latin America; tel: +52.595.954.7744, email: rapam@prodigy.net.mx)

Mahmood A. Khwaja (Sustainable Development Policy Institute; tel: +92,51,227,8134, email: khwaja@sdpi.org)

Clif Curtis (WWF International; tel: +1.202.861.8379, email: Clifton.Curtis@wwfus.org)



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Letter by 9 public interest NGOs to participants of 3rd Meeting of BAT/BEP Expert Group. - ENGLISH   DOWNLOAD







Version: DRAFT 2.0 (June 1, 2006)