Draft UNECE Pollutant Release and Transfer Register Protocol

Report from the 6th Working Group Meeting (September 2002)

 

From Olga Speranskaya, Susan Casey-Lefkowitz and Mary Taylor

 

Introduction

 

This report summarizes the UNECE Pollutant Release and Transfer Register (PRTR) Protocol discussions during the 6th meeting of the Working Group (WG) held in Geneva, September 2002. In all, three meetings were held – the Working Group itself met for only two days, a technical Contact Group ran for part of that time looking at the substances and activities annexes, and the smaller Drafting Group continued its work for several days to produce a new and complete draft text in time for the last WG meeting in November.

 

The WG meeting picked up the draft text at the point that the discussion finished at WG-5 (and which means that our report from WG5 is still relevant).

 

At the September 2002 meeting, attending for the ECOs were Dmitry Skrylnikov (ECO-Pravo, Lviv), Olga Speranskaya (ECO Accord/IHEAL, Moscow), Susan Casey-Lefkowitz (Natural Resources Defense Council, Washington), Mary Taylor (Friends of the Earth, London). Olga and Mary attended the technical Contact Group meetings while Dmitry and Susan also attended the Drafting Group meetings.

 

The official report of the 6th Working Group meeting and consolidated text should be available soon at:

http://www.unece.org/env/pp/prtr.htm#Documents

 

Highlights:

·                     An outrageous proposal from the EU to delete an Article entitled “Access to Information” (containing general provisions) – mainly salvaged

·                     The detail of public participation provisions is under threat, and still to be resolved

·                     The public access to justice provisions are under threat, and still to be resolved

·                     The technical Contact Group resorted to voting on substances and activities, resulting in rather fragile agreement – some substances “lost” or “won” by only one vote for example, but a list of 86 substances is now for further discussion

·                     Nuclear facilities were voted out

 

In the two days of the WG, there were not many final resolutions, although some clarification of the policy options. Typically, the EU block plus Switzerland are attempting to minimise the Protocol (UK and Sweden are occasionally more progressive, and the Netherlands has championed diffuse sources); the Czech Republic, Poland, US and Norway tend to have a much better vision of a PRTR of greater scope and utility. There is a very noticeable lack of input from most CEE/NIS delegations, despite our attempts to encourage participation and despite organisation of workshops over the last couple of years, particularly by the REC, for CEE representatives to familiarise themselves with the concepts and explore the relationship to existing practices and legislation in their countries.

 

 

 Distinguishing “extraordinary” releases from routine releases

 

This issue remains unsolved but – rather amazingly in our view - controversial: Germany, France, Belgium, Denmark, UK, Finland, Austria all proposed that the releases (and off-site transfers) caused by accidents or extraordinary events be reported as part of but NOT separately from routine releases. The US, Poland, Norway, Czech Republic, REC and ECO Forum support separating the reports. This seems crucial if the public are to have a chance to understand what might be hugely different reports from one year to another if an accident has occurred one year. It was also noted that routine releases can be linked to bench-marking and planning, and that authorities are also very interested in the distinction between routine and non-routine releases.  At least all agreed that accidental/extraordinary events should be covered.

 

Diffuse sources

 

As noted before, there is some commitment towards the notion that diffuse sources are important in PRTRs. The language is likely to be quite soft though. Much of the discussion was about how much the information provisions for diffuse sources should be prescribed. Germany (supported by UK, Austria, Denmark, Belgium, Finland, France, Italy and the Netherlands) proposed deleting clauses covering releases, comparisons from one reporting to the next or the type of methodology. Norway, Poland and the Czech Republic saw some value in having at least some guidance as to the content, also supported by REC and ECO Forum. Switzerland specifically thought that “methodology” should be included, and this was accepted by Germany.

 

Poland, along with the UK and Norway who saw the value of the suggestion, proposed wording to indicate that information on diffuse sources is incorporated only “if available”, which would appear to be the intent of almost every delegation at this stage and should countract the concerns of countries like Germany. Still to be finally resolved.

 

A Second Step

 

A number of more “ambitious” elements had been put into a “box” (built of square brackets of course), with the idea of phasing these in later. This section includes the concept of on-site releases, a production ratio (to give some idea of efficiency), and estimates of future releases and transfers. The EU countries, and Switzerland, Norway, CEFIC all proposed dropping this section and concentrating on “step 1” only. Poland, the Czech Republic, US, REC, ECOForum all supported its inclusion, although the Czech Republic was uncertain about defining a year for triggering the obligations, and Poland was not so keen on production ratios. Not resolved, square brackets remain.

 

National lists of pollutants

 

Several countries (Germany, France, Denmark, Switzerland plus CEFIC) objected to the concept of an obligation to maintain and review a “national list” of pollutants/resources, although could live with softer language on this. We pointed out that the national list did not have to be more than the international list established, so this does not force a long list. But importantly, it creates the possibility for public participation in establishing national lists, so we will continue to push for this.

 

Reporting Cycle

 

Some progress was made, although not totally to our satisfaction. The good news is that reporting will be annual – a considerable improvement on EPER’s three-yearly reporting – but there “may be” a gap of a year between first and second reports only. REC and ECO Forum are opposed to such gap, but all countries either insisted on this or could be flexible, so the possibility of skipping a year at first is now in place. A slight twist to this is that the US needs some flexibility – although TRI has annual reporting and seems likely to continue this way, this can be reviewed currently.  It is not clear how this will be resolved.

 

A concerted push from several EU countries again meant that publication within twelve months was defeated - 15 months was agreed, with a 24 month period for the first reporting cycle. Our attempts to improve on this with language indicating “15 months at the most” and still keeping 15 months for the first cycle were not successful as countries all agreed that they could live with the lowest common denominator. There is nothing to stop countries from going faster of course.

 

Data Collection and Record-Keeping

 

The idea is for facilities to keep their records which provide the basis for the reports for a number of years so that competent authorities can check up when required. Three or five years are the options under discussion, with the US proposing specific language on “for inspection”.

 

Quality Assessment

 

A fairly uncontroversial and short article requiring quality assurance by operators and Parties has now been agreed.

 

A confidentiality pillar?!

 

This section produced a particularly outrageous proposal - the EU, lead by Denmark who have the Presidency at the moment, came with text which deleted the general access to information article, replacing it with an article on confidentiality which brought in all the  grounds for confidentiality from the Aarhus Convention (including that designed to protect e.g. endangered species – very hard to see how withholding information on pollution could qualify for that one.)  Fortunately, the view by REC and ECOForum that a “confidentiality” article was over-emphasising the wrong aspects and would send the wrong signals about the intent of the protocol was supported by the US, Switzerland, Poland, Czech Republic and Norway. We circulated a written counter proposal from ECO Forum to salvage the situation. After debate, a compromise of having both an Access to Information and a separate Confidentiality article was reached. However some exact details still remain to be resolved. Germany in particular is trying to limit the scope of the general provisions and to include the full range of confidentiality exemptions from the Aarhus Convention even though many of these do not apply to PRTR.

 

Summary:

a) free access to the register of data is assured;

b) facilitating electronic access through access points in places such as libraries is controversial (Germany is particularly opposed);

c) many countries did not want any obligation to have a paper version of the register (including Armenia);

d) free paper copies are out but subject to “reasonable charge” (not even Poland could support this idea and we had to concede) – we are trying to make sure that this only applies to the cost of making copies.

Confidentiality: there was considerable disagreement about the relevance of many of the exemptions taken from the Aarhus Convention. Germany pushed for keeping many of the items in – such as intellectual property rights; the US experience thought that “international relations” were not an issue with PRTR data. However all agreed that the exemption relating to adversely affecting the environment (such as the breeding sites of rare species) could be deleted.  It is agreed that all exemptions can only be used if they “adversely affect” the items.

 

The Aarhus Convention appears to specifically exempt information on releases of pollutants to the environment from commercial confidentiality claims (Article 4.4(d) of the Convention). But there is still debate about  the exact formulation of this in the PRTR Protocol. ECO Forum believes that transfers should be treated similarly to releases and supports, along with the US, limiting the confidentiality to the name of the chemical only. Once again, Germany is leading the push for increasing the scope of confidentiality claims.

 

Public Participation

 

The EU proposal which deleted the A to I article also significantly pared down the public participation provisions. ECO Forum fought to re-insert deleted paragraphs, thus they remain in square brackets for discussion next time. The main policy difference is that the EU wants to limit public participation after the initial implementation stage to changes to the reporting requirements. Others want it to be any changes to PRTR. Further points of difference are that we are pushing for the right for the public to petition for changes to the PRTR, and inclusion of text supporting the obligation on a Party to inform the public of its conclusions and reasoning with respect to public input.

 

Access to Justice

 

This Article has been pared down to  two paragraphs: Canada for some reason insisted on bracketing the entire text of the second one, which would give right of access to a review procedure. The EU is trying to limit the text to problems with requests for information only; we think it should also explicitly cover any problems with accessing information from the register or participating in the development of the register.

 

Regional register

 

The concept of a single multi-national regional register is still under debate, and it is not clear who might be the responsible body for this task. Instead two first steps have been proposed: an immediate requirement that each national register include  links to other nations’ registers and a requirement that the Meeting of the Parties consider this issue further.

 

Capacity building

 

Promotion of public awareness is accepted; still in brackets is a paragraph on capacity building and guidance for government personnel. A paragraph specifically requiring training for workers at reporting facilities has been deleted – in the face of no support from any country we could not maintain this concept in the text. However it is worth recalling when a guidance document or national implementation measures are under consideration. As a practical matter, this is surely key to successful implementation.

 

International co-operation

 

This provision has been broadened to include sharing information among Parties about releases and transfers in the border regions. It now also includes a duty to cooperate with information concerning the transboundary destination of transfers (still in brackets). An obligation to cooperate with international organizations was also added.

 

Annexes on Substances and Activities

 

As mentioned above,  a technical “Contact Group” met in the margins to discuss the substances and activities lists. These were not easy meetings – the Chair proposed simply voting and the meeting ended up with little choice but to go along with this. ECO Forum raised a number of objections: that the meeting was without translation (English only) and not the entire Working Group, but was over-ruled.

 

Czech Republic and ECO Forum and some others tried to raise the issue of having criteria as a more solid foundation for choosing substances. But we did not get very far, and Sweden actually withdrew some supportive comments on this.  A process of voting in a marginal meeting to an international negotiation has some awkward dynamics, and some with more experience clearly thought it an unusual way to proceed. In the end, the Working Group will have the final say, and the Chair will have to find acceptable compromise or resort to the lowest common denominator. A country faced with an unacceptable substance on the international list has the choice to simply not sign up to the Protocol, whereas compromise language can help keep an instrument inclusive.

 

Selenium is written on my heart

 

At one point, thinking that discussion would take a few minutes, and in any case not thinking there was much chance of acceptance of Selenium, after two hours in the meeting I ran (literally) to the toilet and back. But I missed the vote – selenium lost by one vote! It would have remained on the list if it had been a draw. I complained, but was not heeded – during the coffee-break I was informed that the voting “rights” of NGOs would be withdrawn if I continued to object. By the next session, I am not so sure that this will turn out to make much difference, but I will always remember the saying that “Those who turn up to the meeting are those that run the world.”

 

All in all, this demonstrated the fragility and rather difficult nature of this voting process. Not all countries present in the WG were present in the Contact Group (one person delegations would of course have particular problems), and there is nothing to stop the WG re-discussing particular substances (or the whole lot) and deciding another way.

 

For substances, a general difficulty now is that many substances have no threshold values for reporting. Where there exist, they have been taken from the EU’s EPER system, but this is a limited number of substances. The danger is that the lack of thresholds may be used as a device for dropping substances from the list. 

 

List of activities

 

Nuclear facilities were inevitably voted off  by the group. The NGOs made enough fuss about this issue that it was recognised as an especially important issue, and we thought that at least a comment in the report had been agreed as to its importance. But when the Contact Group  reviewed its report, the chair moved that particular discussion of this activity should be deleted from the text of the report. Despite some support from the UK, the comments from other delegates present and the Chair meant that  we could only aquiesce. As a practical consequence, this probably has little impact but is rather galling.

 

List of substances

 

As the procedure finished in the Contact Group, 86 substances were voted for inclusion in the PRTR. As noted above, this seems highly unlikely to be the end of the story – e.g. greenhouse gases are “in” but are obviously problematic for the US (although their whole participation is in question – see below).

 

Obsolete pesticides and substances which are subject to Stockholm convention and thus will have to be eliminated could also become a problem at the next WG meeting. We need to be prepared to insist on having them in PRTR.

 

The “Virtual Class Room” – a web site on PRTRs

 

One interesting initiative, fostered by the Dutch government so far, is the idea of a web site for further discussions, posting of documents etc. A pilot site has been set up, and it is hoped that an international organisation will host it eventually. Because it has a particular focus on the negotiations and is still very much experimental, it is currently only open to WG participants, but we will advertise it when it becomes more widely accessible. We are now convinced that NGOs will have much to do at national levels to help influence the uptake and implementation of a PRTR , and the materials at the VCR should be very helpful tools.

 

L   “Let’s get rid of the smilies”   L

 

Olga Speranskaya (Eco Accord/ IHEAL) and Ondrej Velek (with a Czech NGO hat on) have both been active in contributing materials. Olga has been instrumental in ensuring that Russian language documents will be available, and talked about some of the Russian experinces in developing municipal and sub-national PRTRs. Ondrej presented a model of a “bench-marking” table – this generally looked like a good idea to those prsent, but the CEFIC (chemical industry) representative clearly disliked the idea that bench-marking might indicate that one PRTR might be better than another. It’s a survey, not a judging, he said, and proceeded to attack the little “smiley faces” which added some colour to Ondrej’s paper!

 

Note on the US role

 

The US mandate for negotiating had still not been granted – however representatives were present and contributed to the discussions. At the moment the draft text still accommodates the different approaches.

 

An inter-sessional group had produced an analysis of a Protocol under the AC with respect to the role of non-parties to Aarhus. In the end, it was concluded that there were no obstacles to having a Protocol to which non-Parties could sign – thus no problems, at least on this score – for the US. It is worth noting that the study, guided by Maas Goote of the Netherlands as chair, has general applicability and will be well worth visiting if such questions arise in other Conventions.