TL: GREENPEACE SUBMISSION TO THE FOURTH SESSION OF THE LONDON TRIBUNAL ON INDUSTRIAL HAZARDS AND HUMAN RIGHTS - ON THE OCCASION OF THE TENTH ANNIVERSARY OF THE BHOPAL TRAGEDY SO: Kenny Bruno, with additional research by Jed Greer, GREENPEACE INTERNATIONAL (GP) DT: November 1994 [NOTE: There are figures referred to in the text of this report which were not available in electronic form] CONTENTS INTRODUCTION CHEMICAL PROLIFERATION SINCE BHOPAL: MOVING SOUTH PRIMARY PREVENTION OF ACCIDENTS Primary Accident Prevention BANNING KILLER CHEMICALS The Failure of Pollution Control The Right to Ban The Failure of Product Stewardship Bans Work Best Why Bans Must be Global Banned Chemicals for Export Shifting Production Political Precedents and Fora Toward a Ban List: RIGHT TO KNOW Toxics Use Reduction CONTRACTUAL CLAUSES FOR TRANSNATIONAL ACCOUNTABILITY ANNEX 1 REFERENCES INTRODUCTION On December 2nd and 3rd, 1984, at the Union Carbide plant in Bhopal, India, the worst industrial accident in history killed 2,500 people in one night. Thousands more died soon after, and hundreds of thousands were permanently injured. (1) In the wake of the accident, groups and individuals from India and elsewhere fought for changes in the practices and conditions which led to the tragedy. They have fought for corporate accountability and liability, compensation for victims, improved safety standards at chemical plants, for public participation, right to know and freedom of information, for ecological agriculture, for an end to insane emphasis on rapid and large-scale industrialization of agriculture and manufacturing. These campaigns have been waged on all continents, in industrialized countries and Third World countries. Public awareness about toxic chemicals is probably higher since Bhopal, and some substantive protectional measures have been adopted in some countries. Yet, despite the publicity, the outrage and the organizing, most of the lessons of Bhopal remain unlearned 10 years later, at least by those making decisions about toxic chemical use. The perception of Bhopal as an "accident," a horrible aberration unlike anything else in the history of the chemical industry, reflects the lessons unlearned. Though the tragedy at Bhopal was an "accident," the large-scale use of acutely hazardous and persistent toxic chemicals by industrial society makes toxic contamination of he planet inevitable. A combination of accidents and non-accidental releases leads to high risks for workers and neighbours. It also results in widespread contamination which affects people far from industrial centres, reaching even to unborn generations. Bhopal was the most graphic manifestation of the chemicalization of the planet, but it was not an isolated accident. The fact is, chemicalization of the planet continues ten years after Bhopal. The chemical industry is the source of tens of thousands of accidents and billions of pounds of routine emissions of toxic chemicals each year. As a result, toxic chemicals now literally permeate human life -- our water, our food, our flesh, our mothers' milk. Behind the contamination is a triad of powerful institutions with a shared philosophy on industrialization and pollution. Transnational chemical corporations, the main producers, are the primary force behind the proliferation of toxic chemicals. Supporting the TNCs are the world's governments, which attempt to regulate and monitor the chemical industry, but only rarely challenge corporate rights. And facilitating this alliance, especially in the South, are the institutions of trade and aid, mainly bilateral aid agencies, free trade organizations and multilateral development banks. The philosophy these institutions share is one which interprets industrialization and chemicalization of society as an invariably positive part of development; fatal accidents and toxic contamination are unfortunate byproducts of this development. This philosophy presumes chemicals innocent until proven guilty. It assumes that the environment and individual organisms, including human beings, have a large assimilative capacity for toxic chemicals. The industrial mentality is preoccupied with risk assessment and chemical management, end-of-pipe pollution control and cleanup of previous mistakes. While these approaches may have been developed with good intentions, they have proven technically and politically ineffective. Scientists, health practitioners, environmentalists and citizens groups around the world are now rejecting this approach in favour of a new paradigm of Clean Production. Clean Production is production which is: * non toxic * free of hazardous waste * energy efficient * socially useful The technologies and products of clean production must be rediscovered and invented at the grassroots, and will vary from region to region, country to country. Nevertheless, in a transnational world there are certain steps which are needed for clean production almost anywhere. This report elaborates four of these steps to clean production: (1) Primary Accident Prevention (2) Global Bans on Killer Chemicals (3) Right to Know and Toxics Use Reduction (4) Transnational Corporate Liability In order to implement these steps, we recommend: 1. The negotiation of an international convention, to: Prohibit the export of substances which are banned domestically, and; create a list of substances slated for global bans. 2. The use of contractual clauses between investors and host governments to enforce transnational liability on transnational chemical operations. 3. National and international laws providing citizen right to know about toxic chemical use, and requiring toxics use reduction by large chemical users. These steps are especially urgent in the industrializing countries of Asia and Latin America, where the proliferation of chemical production and use, including some of the substances increasingly rejected by industrialized countries, is proceeding at a dangerous pace. CHEMICAL PROLIFERATION SINCE BHOPAL: MOVING SOUTH While under attack for Bhopal and other major disasters such as Love Canal, Seveso and the Rhine River spill, chemical production has not only survived but thrived. Despite some periods of recession, chemical production has risen substantially in the last 10 years, and some 66,000 chemicals are in common use. Each year hundreds of new chemicals are introduced on the market, mostly without full knowledge of their health and environmental impacts. (2) Even some of the most controversial and damaging sectors of the industry, such as acutely hazardous pesticides and persistent toxic organochlorines, have proliferated in this period. In part they have done this by shifting production to the South. (See figures 1 and 2.) Industry analysts predict this trend will continue in the near future, with the likely regions of greatest growth in South and Southeast Asia, China and Latin America. Despite Bhopal, India itself plans major growth in the chemical sector. [see figures 3, 3a, 3b, and 3c] [FIGURES 3, 3b, and 3c NOT AVAILABLE] Fig 3a PLANNED VINYL CHLORIDE MONOMER (VCM) AND POLYVINYL CHLORIDE (PVC) PROJECTS IN SOUTHEAST ASIA Country Amount China 440,000 tonnes PVC 220,000 tonnes VCM Indonesia 162,000 tonnes PVC 100,000 tonnes VCM Japan 300,000 tonnes VCM Malaysia 400,000 tonnes VCM 100,000 tonnes PVC Philippines 60,000 tonnes PVC Korea 160,000 tonnes PVC Taiwan 360,000 tonnes PVC 360,000 tonnes VCM Thiland 160,000 tonnes PVC 540,000 tonnes VCM Vietnam 92,000 tonnes PVC Others 77,000 tonnes PC Total 1.6 million tonnes Source: Asian Chemical News, volume 1. In part, this growth will be rationalized, as it has been in the North, with claims that through "continuous improvement" of chemical company performance, the hazards and poisonings from toxic chemicals can be safely managed, and that the benefits of their industry to society far outweigh the risks. If they follow the pattern of the North, Southern governments will go along with industry's contention that they can handle the hazards of their business. They will attempt to "catch up" with their western counterparts and industry by endlessly studying chemical risks and issuing thousands of regulations. In this scenario, Southern countries will remain indefinitely susceptible as dumping grounds for obsolete and dangerous products, technologies and practices in the transnational chemical sector. The alternative route is to "leapfrog" the environmental mistakes of the North; to focus on eliminating the trade and production of the most toxic substances, and; to develop the cleanest alternative products. PRIMARY PREVENTION OF ACCIDENTS Almost every day brings a news report of a chemical spill, leak, explosion, fire or release. Many of these are accompanied by a statement from the company involved to the effect that the accident caused "no harm to human health or the environment." It is impossible to accurately state how many chemical accidents occur in a given year, or how many people are killed and injured in them. There have been several attempts to catalog such accidents, though the different studies do not all define chemical accidents the same way. A look at a two such studies from the U.S. suggests a ghastly scenario in which many thousands of chemical accidents occur annually around the globe. A study of the U.S. Emergency Response and Notification System (ERNS) found 34,500 reported accidents involving toxic chemicals in a 5-year period; this translates to 19 reported accidents per day every day. Even this number may be badly understated. A study by the New York State Attorney General's office found 3496 toxic chemical accidents during a 3-year period; only 496 of these were reported to the ERNS. Dr. Peter Montague of the Environmental Research Foundation in the U.S. calculates: "If this under-reporting is typical of the ERNS database, then the true picture of chemical accidents in the U.S. may approach 240,000 per year, or 130 per day, or 5 per hour around the clock." (3) The United States contains about one fourth of the world's chemical industry, measured by output in dollars. (4) If we assume that the rate of accidents in the U.S. is representative of the world's chemical industry, assume also that output in monetary value is roughly comparable to production rates, and extrapolate the ERNS figures to the rest of the world, the total number of accidents is on the order of 27,600 per year. This figure is conservative. If we extrapolate from the New York State study and the under-reporting by ERNS it suggests, our estimate would approach 1 million accidents, worldwide, annually. Naturally most of these accidents are not comparable to Bhopal. The above figures lump all reported chemical accidents, minor and major, together. But if we look at only the most serious accidents, the numbers and trends are also disturbing. A study carried out by Kearney/Centaur based on U.S. Occupational Health and Safety Administration data estimates 389 serious accidents in the U.S. annually in all sectors using hazardous chemicals (only at fixed facilities). These involve 265 fatalities, 901 injuries and $336.9 million in property damages.(5) The Organization for Economic Cooperation and Development (OECD) looked at major catastrophic accidents only. It found that since 1980, there are about 2 very major chemical accidents per year, whereas there was only about 1 every 5 years before 1980.(6) A study done for the U.S. EPA also concludes that fatal industrial accidents are increasing in frequency. The U.S. has the highest number of such accidents, (758 industrial accidents in the U.S. between 1945-1991) but fatality levels grew in the rest of the world faster than in the U.S. Of the 10 countries with the most accidents, India, Brazil and Mexico had the highest number of deaths per accident; in other words, accidents tend to have worse consequences for workers and neighbours in those countries than elsewhere. A number of factors probably contribute to this, including rapid industrialization, weak transportation and health care infrastructures and high population.(7) One explanation for the increase in serious accidents is that chemical plant size has been increasing over the last 30 years to take advantage of economies of scale, while spacing of process equipment has decreased.(8) PRIMARY ACCIDENT PREVENTION Whatever the true number of chemical accidents, it is clear that serious accidents are an integral part of the chemical industry. Most accident prevention efforts focus on reducing human error and design failure. This kind of effort, dubbed secondary prevention by Professor Nick Ashford of the Massachusetts Institute of Technology, can reduce the probability of accident, but cannot eliminate them. Primary prevention, by contrast, "relies on the deployment of inherently safe technologies or processes which prevent the possibility of an accident." (9) Primary prevention techniques identified by Ashford include avoiding highly toxic, volatile or flammable chemicals, eliminating high pressure and high temperature storage, and reducing or eliminating large scale storage of dangerous substances. One example of primary prevention comes from the lessons of Bhopal: most methyl isocyanate (MIC) producers now produce it on demand, thus avoiding storage of large quantities of the Bhopal gas. Similar techniques are now used for phosgene, a precursor to methyl isocyanate. In some cases, products and processes have been developed which avoid MIC and phosgene altogether.(10) The ultimate accident prevention method is to eliminate the use of those chemicals which are most likely to cause fires or explosions, or which are most likely to cause harm when spilled or released. See figure 4 for list of chemicals most commonly released in accidents. U.S. ranking of hazardous industry sectors. (1 is most hazardous.) Type of SIC code Rank total Rank in incidents industry incidents per facility industrial 2869 1 6 organic chemicals petroleum 2911 2 refining alkalies 2812 3 1 and chlorine industrial 2819 4 4 inorganic chemicals nitrogenous 2873 5 not in top 8 fertilizers plastic materials 2821 6 5 and resins cyclic crudes 2865 7 7 and intermediates inorganic pigments 2816 8/9 not in top 8 pulp mills 2611 8/9 not in top 8 pesticides, 2879 10 not in top 8* agricultural chemicals * pesticide production did not rank in the top eight in number of incidents per facility, but it was ranked number 1 in annual injuries per 1,000 workers. Source: Ashford III-13,14 BANNING KILLER CHEMICALS THE FAILURE OF POLLUTION CONTROL Accidents are just one aspect of the chemicalization of the planet. Routine use and disposal of chemicals has led to the build-up of harmful substances in the environment in spite of attempts to control pollution. In 1962, Rachel Carson first warned of a "Silent Spring" due to industrial society's increasing use of persistent toxic chemicals. Carson focused on DDT, one of the first pesticides invented by the chemical industry. (11) Scientific evidence for Carson's theories grew, and DDT was banned in the U.S. in 1972. Although Carson's book helped launch the modern environmental movement, most regulation did not focus on the solution found for DDT. Instead, beginning in about 1970, industrialized countries embarked on an expensive and complicated series of laws and regulations aimed at controlling and limiting pollution after it was created. The vast majority of the thousands of regulations on toxics in the U.S. and Western Europe focus on permitting certain amounts of pollution or trying to contain or neutralize the damage from pollution. Generally, this "end-of-pipe" approach has not succeeded in reducing the overall toxic burden to the environment. As the Earth Summit recalled in 1992: "Gross chemical contamination, with grave consequences to human health, genetic structures, and reproductive outcomes, and the environment, has in recent times been continuing within some of the world's most important industrial areas." (12) The reason for this is that no amount of "control" can prevent long-lived poisons, once produced, from entering the environment eventually. Even those poisons incorporated into products eventually become waste and are disposed of into the environment. Whether industrial or post-consumer, when toxic wastes are dumped in rivers, they contaminate sediments, fish and shellfish, eventually reaching humans through the food chain. If they are landfilled, toxic constituents will eventually leach out and contaminate groundwater. If the wastes are incinerated, they will either be held in the residual ash, which is also landfilled, or dispersed in the air, from where they will ultimately be deposited on land or water. Even those pollutants captured by scrubbers and filters must eventually go somewhere. This basic law of ecology is why pollution control does not work for persistent toxic chemicals, such as organochlorines. (See box on organochlorines on the following page.) Organochlorines have come under increasing legislative and regulatory pressure because of their hazards. Yet even when a group of substances are targeted for control, regulation has not been successful. For example, U.S. hazardous waste incineration regulations require 99.99% destruction and removal efficiency (DRE) for organic wastes, and 99.9999% for wastes containing more than 50 parts per million PCBs. While these efficiencies are theoretically achievable under test conditions, data released by the U.S. EPA in 1989 revealed that these requirements are not achieved during operation, though they may be achieved during trial burns. In addition, new chemicals, including dioxins, are formed when these wastes are burned.(13) Overall, incinerators which burn chlorinated wastes are the largest known sources of dioxin in the U.S. (14) Unfortunately, this approach continues to dominate regulations on toxic chemicals. For example, the eight North Sea States, Switzerland and the European Commission are committed to reducing emissions of dioxin of the order of 70 per cent or more between 1985 and 1995 from all sources through the use of "Best Available Technologies."(15) But if we look at sources of dioxin, we see that this approach is doomed. For example, The polyvinyl chloride (PVC) plastic industry, which accounts for about a third of all elemental chlorine consumption, is a significant source of dioxins at all stages of its life cycle. Dioxin is generated during intermediate stages of PVC production, and also from combustion of post-consumer PVC products. Similarly, in the pulp and paper industry, chlorine bleaching is the source of dioxin and other organochlorine emissions from pulp mills. The solution in each of these cases is to eliminate chlorine from the manufacturing process, rather than try to control the formation of dioxin during chemical reactions. [BOX BEGINS] ORGANOCHLORINES: THE GLOBAL CONTAMINANTS The failure to eliminate the most toxic and persistent chemicals has global implications. Some chemicals which are long-lived in the environment are now ubiquitous contaminants. One group in particular, the organochlorines, include substances that persist in the environment for decades. Organochlorines are hydrocarbons with one or more chlorine atoms attached. Many bioaccumulate in the tissues of living organisms. At least 177 organochlorine compounds are found in the body tissue of people in North America.(16) A seven year study by the Indian Council of Medical Research recently found that over 80 per cent of bovine milk in India is contaminated with organochlorine pesticide residues, including DDT, above recommended safer limits. 70 percent of infant milk formulas were contaminated with DDT.(17) Organochlorines are building up in the global environment, and with them a complex set of health problems for humans and other species. They are now known to cause a range of effects including gene mutations, cancer, birth defects, hormonal disruption, immune suppression, neurotoxicity, impaired childhood development, and infertility.(18) While few organochlorines exist in nature, over 11,000 organochlorines have been identified. The thousands of commercially manufactured organochlorines are used as pesticides, solvents, plastics and refrigerants. Many more are created as byproducts of the manufacturing processes. For example, the chlorinated dioxins and furans are a group of extremely toxic persistent and bioaccumulative substances that are byproducts of most chlorine-based industrial reactions. [END BOX] THE RIGHT TO BAN The Union Carbide plant in Bhopal was producing two highly toxic pesticides, carbaryl (Sevin) and aldicarb (Temik). In 1986, the German government banned the use of carbaryl due to is adverse effects on organisms in the environment. In the same year, the Indonesian government banned carbaryl for use on rice due to its lethal impact on beneficial pest predators. In 1990, Sweden banned carbaryl because if its mutagenic and suspected carcinogenic properties. Aldicarb is also banned in four countries -- Belize, the Philippines, Russia and Sweden because of its high acute toxicity. A fundamental environmental right is the right of the world community to completely eliminate certain substances which are too hazardous to handle safely or which invariably build up in the environment to harmful levels. Recognizing this, Agenda 21 states that chemical risk reduction must include "phasing out or banning of chemicals that pose unreasonable risk to human health and the environment and those that are toxic, persistent and bioaccumulative and whose use cannot be adequately controlled." (19) Yet industry is at its toughest when defending its ability to choose what products to make and how to make them, restricting government and citizen rights to regulatory management after production. [see section on Product Stewardship] The right to ban certain substances is both one of the keys to preventing global toxic contamination and one of the environmental movement's biggest challenges. THE FAILURE OF PRODUCT STEWARDSHIP Product Stewardship is a group of policies adopted by the major agrochemical companies which purportedly reduce harm caused by the use of dangerous industry should work with governments to solve pesticide problems and that manufacturers should voluntarily recall products that present unacceptable hazards. In practice, pesticide companies regularly disregard the Code and continue to market substances that kill and cause long term damage to people and the environment. Simply put, transnational corporations play a major role in the production of banned and hazardous products (See figure 7) and therefore have a conflict of interest with the some of the aims of the FAO Code. German chemical giant Hoechst's behaviour in the Philippines provides a stark contrast to the ideals of Product Stewardship which they espouse. Hoechst, the manufacturer of Thiodan (endosulfan), doggedly challenged a ban on endosulfan ordered by the Fertilizer and Pesticide Authority of the Philippines for two years. Hoechst obtained a reversal of the ban from the Regional Trial Court. Not satisfied with this display of their muscle, Hoechst also pursued a civil law suit against Dr. Romy Quijano, who stated at a workshop about the effects of pesticides on women that Thiodan may cause cancer. The company has also named Philippines News and Features, which carried the statement in an article, in the suit. Endosulfan, the leading cause of pesticide poisonings in the Philippines, became the target of a "People's Ban" called by the Pesticide Action Network/Asia and the Pacific. (21) Earlier this year, the Philippines Supreme Court upheld the Fertilizer and Pesticide Authority, effectively banning endosulfan except in products with less than 5% concentration. Even then, Hoechst attempted to intervene, with two letters to the Philippine President requesting the formation of a new committee and saying that their "decision to remain in the Philippines [is] at stake." (22) The Hoechst case demonstrates that large TNCs, singly and collectively, sometimes possess greater resources and wield more power than national regulatory authorities. International bans on the most hazardous products would restore a balance of power between corporations, governments and private citizens by limiting TNCs' ability to influence and overwhelm governmental and non-governmental efforts to eliminate hazardous chemicals at the national level. BANS WORK BEST In the relatively rare cases where legislation has reduced toxic contamination, it has generally been through a focus on ELIMINATING the toxic substance itself. In the U.S., environmental levels of DDT did drop after the ban in 1972. The same is true for PCBs, although PCBs are still in use and still represent a significant problem. Environmental levels of lead dropped after lead was removed from gasoline, and childhood lead poisoning also dropped in major cities. (23) Some governments are following this path for some substances. The Canadian Provinces of Ontario and British Columbia have regulations calling for the phase out of chlorine bleaching in the pulp and paper industry. (24) A far-reaching plan comes from Sweden, where the Eco-cycle commission of the Swedish EPA has recommended a phase-out of PVC use by the year 2,000.(25) The lesson of the history of chemical regulation and management in the industrialized world is clear: pollution prevention and toxics elimination work; pollution control and risk management do not. Chemical phase-outs, leading to bans, are the most effective form of pollution prevention possible. WHY BANS MUST BE GLOBAL However, in the international context, even national bans have serious limitations and, in some cases, may even cause unintended harm. There are two main ways that this happens. The first is through export of the chemical to countries without bans. The second is through production shifts to other countries. BANNED CHEMICALS FOR EXPORT In most cases to date, chemical bans affect the use of certain products, but not their manufacture or export. This loophole creates a double standard, whereby chemical producers, especially of pesticides, export products deemed too hazardous for use in their own country. This problem has received a lot of attention from nongovernmental groups and from some governments. For example, Greenpeace, Pesticide Action Network and other environmental groups have spearheaded legislative efforts to prevent the exports of banned pesticides from the U.S. for many years. In Italy, a coalition of environmental and development groups have initiated efforts to end exports of banned substances. Unfortunately, the agricultural chemical lobby has successfully blocked these efforts. Some importing countries are taking steps to prohibit the import of substances banned in the country of manufacture. The Bamako Convention, which includes almost the entire African continent, prohibits the import into Africa of banned substances.(26) [BOX BEGINS] EXPORTING BANNED CHEMICALS U.S. based Velsicol Chemical Corporation still produces chlordane, an organochlorine insecticide, for export, even though it is banned in the U.S. (27) In June 1994, AMVAC, another U.S. firm voluntarily withdrew the insecticide mevinphos (Phosdrin) from market, in anticipation of the U.S. EPA decision to ban the substance because of high numbers of farmworker poisonings and deaths. (28) AMVAC has indicated that it intends to continue production for use by farm workers overseas.29 Indeed, Amvac sent 88,663 pounds of mevinphos to South Africa, France and Thailand in the months just before and after the products U.S. withdrawal.(30) In Italy, companies have even exported banned pesticides as government aid. Atrazine, a persistent herbicide which is a suspected carcinogen, was banned in Italy in 1990 because its use severely contaminated drinking water sources. An Italian company continues to produce atrazine for export mainly to central and eastern European countries. In 1992, atrazine was supplied to Albania as part of a government agricultural assistance program.(31) SHIFTING PRODUCTION Even if domestically banned products are banned from trade, that does not prevent the shift of manufacturing to another country of use. As the petrochemical industry expands in industrializing regions such as South and Southeast Asia and Latin America, the production of some of the most hazardous chemicals on the market is also moving to those regions. In the case of the pesticides industry, some industrializing countries, such as Mexico, Brazil and India are already major producers, and are major pesticide exporters themselves. (32) The chlorine and polyvinyl chloride (PVC) industries, centred mostly in the industrialized North, are also growing fastest in the South. These industries are at the root of the world's most toxic and persistent chemicals, and have recently come under pressure from environmentalists and intergovernmental bodies in Europe and North America. (33) In the case of banned and restricted substances, the trend is shocking. Comprehensive data on global production of these substances is elusive. However, the data in the following figures indicate that global production of products banned or restricted by at least one government probably has not declined. For many such products, there are now more producers worldwide than before the ban took effect. This disturbing news means that the net global effect of national bans on hazardous products may not be positive, and that these bans do not prevent harmful expansion in certain countries and regions. POLITICAL PRECEDENTS AND FORA The Montreal Protocol for the Protection of the Ozone Layer is the major precedent for global, as opposed to national, phase-outs and bans for hazardous substances. Under the Protocol, industrialized countries will phase out CFCs by 1996. Developing countries have an additional 10 years to complete the phase-out. Other ozone depleting substances have phase-out schedules as well. While the Protocol has serious weaknesses, especially in the implementation of alternatives to CFCs, the achievement of getting virtually the entire world to agree on eliminating hazardous substances should be replicated for other products which are unmanageably hazardous or which are global contaminants. If endorsed by the 1995 UNEP Governing Council meeting, it is likely that negotiations will begin to transform the UNEP and FAO voluntary Prior Informed Consent (PIC) programme into a single binding agreement. PIC is an imformation exchange programme which covers banned pesticides and industrial chemicals in international trade. While many governments support the PIC procedure, for all the reasons discussed above, PIC will never be enough to protect the environment from chemicals which should be banned globally. TOWARD A BAN LIST: Agenda 21 recommends that governments, international organizations and industry should target substances for bans and phase outs of they "pose an unreasonable and otherwise unmanageable risk to the environment or human health and those that are toxic, persistent and bioaccumulative and whose use cannot be adequately controlled." One way to select substances for global elimination is to identify those substances or groups or substances which governments have already banned or targeted for elimination. Global bans follow the principle that all citizens be protected equally from hazardous chemicals. Substances which are already banned in at least one countries tend to fall into one of the following categories: acutely toxic toxic and persistent or bioaccumulative highly mobil and potential water contaminants carcinogenic, mutagenic or teratogenic See Annex 1 for provisional list of substances banned for use in one or more countries. RIGHT TO KNOW One of the political conditions which led to Bhopal and the toxics crisis in general is lack of access to information. For most of the industrial era, corporations have not been required to share information about the hazards of their operations, even with the workers and neighbours affected most by those operations. In some countries, attempts by workers to obtain such information can lead to job loss. Public right to know is a prerequisite to any country's efforts toward eliminating the use of toxic chemicals and implementing clean production. An irony of the Bhopal accident is that U.S. citizens achieved a legislative guarantee of their "right to know" about chemical use and emissions, while citizens of India did not. Since 1987, large chemical companies in the U.S. are required to submit information about their toxic chemical usage and emissions to the U.S. EPA and local authorities. This information is available to all U.S. residents free of charge: A list of chemicals stored on site An inventory of annual toxic chemical releases to the environment An emergency preparedness plan In addition, under 1990 Amendments to the U.S. Federal Clean Air Act, companies will soon be required to provide "worst case scenarios" describing what would happen in case of a serious accident at their plant. A key provision of the U.S. "Right-to-Know" law is the toxics release inventory (TRI). The TRI is a database detailing hazardous waste generation and toxic emissions. Although the TRI is widely welcomed and used, it has a number of serious drawbacks. For example, only about 300 chemicals are included in the inventory, and only companies using over 10,000 pounds of listed chemicals are required to report. Some estimates are that only 5% of total releases are reported under TRI. (34) Outside the U.S., there are also some efforts to improve public access to information about toxic releases. For example, in response to recommendations in Agenda 21, the Organization for Economic Cooperation and Development (OECD) is currently formulating a Guidance to Government Document on an International Pollutant Release and Transfer Register. TOXICS USE REDUCTION In the U.S., the Right To Know law revealed that companies were emitting literally billions of pounds of toxic chemicals annually to the air, land and water. This knowledge has led to countless campaigns, promises and projects to reduce toxic emissions by these companies. Yet this reporting does not by itself bring elimination or even reduction of toxic chemical releases. In order to track toxics reduction efforts, companies must first do complete materials accounting, process by process, for each facility. Once a company, its workers, neighbours and regulators know what is bought, stored, used and emitted, the next logical step is to plan for reducing and eliminating these toxics. In the U.S. state of Massachusetts, this has taken the form of a state law, the Toxics Use Reduction Act. Under this law, companies not only have to inventory their use of toxic chemicals, but also create a plan for reducing their use of toxic chemicals at the site. The focus on use of the chemicals, not just their emissions, ensures that the chemicals will not simply be transferred to another medium or incorporated into the final product. Implementation of the Toxics Use Reduction Act is paid for by a small tax on toxic chemical use. CONTRACTUAL CLAUSES FOR TRANSNATIONAL ACCOUNTABILITY Much has been written about the fact that Union Carbide, the U.S.-based multinational corporation responsible for Bhopal, had double standards between its U.S. and Indian operations which were partly responsible for the tragedy. In addition, Bhopal's victims have been frustrated that Carbide, while reaping the benefits of its transnational interests by producing in India and other countries, hid behind its corporate veil when it came to legal and civil liability for the accident. None of Carbide's U.S. executives has ever stood trial for crimes at Bhopal. Moreover, the settlement of $470 million U.S. which Carbide paid to Bhopal victims, was so insignificant that the company's stock rose $2 a share when the settlement was announced. (35) And most of the living victims remain uncompensated or under-compensated 10 years after the accident. Carbide's acceptance of "moral responsibility" for Bhopal notwithstanding, this demonstrates that while transnational operations are key to the profitability of the large chemical corporations, they also consider it important to avoid transnational accountability and liability. DuPont, the largest U.S.-based chemical company, has taken this philosophy to extremes in its negotiations for a nylon plant in the Indian state of Goa. In that case, DuPont had drawn up a contract which specifically exonerates the company from all liability in the case of damage to the environment and worker health. The contract, as well as the plant itself, have been vehemently opposed by the community in a battle of over 10 years. (36) In October, villagers angry over the local government's refusal to reject the project stormed the DuPont site, destroyed several buildings, razed a wall and burnt several pieces of equipment. (37) Though rare, there are cases where civil suits have been brought successfully against a company in its home country for damages abroad. For example, Costa Rican banana workers have won compensation in U.S. courts from U.S. multinationals for damages (male sterility) from the pesticide DBCP. DBCP was manufactured by Dow and Shell and sold by Dole Food and Standard Fruit, after the chemical was banned in the U.S. Similar suits are underway for a total of 16,398 workers from 12 countries in Latin America, the Caribbean, Africa and Asia. (38) Greenpeace and the Center for International Environmental Law have drafted model contractual clauses which guarantee the right of victims to bring toxic torts to the home country of the company in question, or to another country of operations. The clauses require foreign investors to conduct environmental impact statements and annual environmental audits, disclose environmental information to the public, including written results of environmental impact statements and annual environmental audits; include community and worker representation on the Board of Directors; holds the investor to joint, several and strict liability for all damages from operations, and allows host governments and members of the public to sue for enforcement of the contract or for damages in an independent court in the host country or the country of the investor's headquarters. (39) Such clauses represent significant accountability of foreign investors to workers and neighbours when state firms are privatized or new joint ventures are formed. FIGURE 7 TRANSNATIONAL CORPORATIONS (HOME COUNTRY GIVEN IN BRACKETS) WHICH PRODUCE BANNED OR RESTRICTED PESTICIDES Company Number of products American Cyanamid (US) 5 BASF (DEU) 18 Bayer (DEU) 31 Celamerck Gmbh & Co., KG (Deu) 19 Ciba-Geigy (CHE) 24 Dow (US) 6 Du Pont (US) 17 Hoechst (DEU) 7 Hokko Chemical Industry (JPN) 8 ICI (UK) 36 Kumiai Chemical Industry (JPN) 7 Monsanto (US) 2 Nihon Nohyzku (JPN) 9 Rhone-Pouleno (FRA) 23 Rohm & Haas (US) 9 Royal Dutch/Shell (NLD) 17 Sandoz (CHE) 34 Schering (DEU) 25 Source: Third (1988) Edition of the United Nations Consolidated List of Products Whose Consumption and/or Sale Have Been Banned, Withdrawn, Severely Restricted or Not Approved by Governments. RESPONSIBLE CARE: THE INDUSTRY RESPONSE TO BHOPAL The major chemical corporations around the world also reacted to Bhopal and subsequent scrutiny of their businesses. Responsible Care, the chemical industry's major public relations and environmental performance program, came partly in response to Bhopal. Responsible Care and other similar voluntary codes of conduct are the cornerstone of the industry's attempts to change their behaviour, and, just as important, convince the public that they have changed their behaviour. (40) But a look at the language and practice of Responsible Care and reveals several fundamental problems: One motto of Responsible Care is "Don't trust us, track us." Each company is supposed to conduct an annual self-evaluation. However, the evaluations are not available to the public. Without access to information-even that generated by the company itself, the public does not have the opportunity to track the corporation. Although one of the "Guiding Principles" of Responsible Care is to develop safe products, there are no criteria for what constitutes a safe product. Even the most dangerous products, such as banned pesticides and ozone destroying chemicals, are judged safe by Responsible Care signers. Under the heading "Pollution Prevention Code," Responsible Care has two parts: waste and release reduction and waste management. While waste reduction is desirable, this interpretation of "pollution prevention" makes the phrase meaningless. Waste reduction and management are often forms of end-of-pipe pollution control measures, not preventive measures. Pollution prevention should refer to the avoidance of toxic chemical production, use and disposal in the first place. Responsible Care takes waste practices which are historically responsible for pollution and legitimizes them as "prevention." Responsible Care emphasizes "environmental performance," suggesting that the only thing wrong in the chemical industry is that there are too many incidents. A reduction in accidents and spills is desirable, but as we have seen, accidents in the chemical industry are not disappearing. More fundamentally, Responsible Care does not acknowledge the inherent toxicity of many chemical company products and routine emissions. Thus a corporation which increases production of an unnecessary and toxic product can claim to have improved environmental performance if they have had fewer accidents in the manufacturing process. With the Responsible Care initiative, and the avalanche of rhetoric on environment and health issues which accompanies it, the industry deflects attention from the most fundamental changes called for by Bhopal. Source: U.S. Chemical Manufacturers Association and Greenpeace Book on Greenwash 1992. ANNEX 1 SUBSTANCES BANNED FOR USE* IN ONE COUNTRY OR MORE OR TARGETED FOR ELIMINATION BY A GIVEN DATE. To the best of our knowledge the information contained in this list is correct. We welcome any corrections, comments or further information. * In some countries the ban includes import and/or production. Reason for being on the list: Banned (B) United Nation's list of substance banned in five or more countries or causing particular problems under conditions of use (UN) Targetted for Phase out (PO, date) Use: Pesticide (P) Industrial (I) Consumer Product (C) Chemical nature: Organochlorine (OC) Organohalogen (other than organochlorine) (OH) Organophosphate (OP) Other organic (O) Inorganic (IO) Heavy Metal based (HM) ACUTELY TOXIC Aldicarb (B)(P) Allylisothiocyanate (B)(P)(O) Anabasine, anabasine sulfate (B)(P)(O) Azinphos-ethyl (B)(P)(OP) Azinphos-methyl (B)(P)(OP) Azocyclotin (B)(P)(HM) Benzidine (B)(I)(O) Bifentrin (B)(P)(OC) Carbon disulfide (B)(P)(O) Carbosulfan (B)(P)(O) Chloropicrin (B)(P)(OC) Chlorthiophos (B)(P)(OP) Crimidine (B)(P)(OC) Cycloheximide (B)(P)(O) Demephion (B)(P)(OP) Demeton-O (B)(P)(OP) Demeton-S (B)(P)(OP) Demeton-S-Methyl (B)(P)(OP) Dialifos (B)(P)(OP/OC) Dichlofenthion (B)(P)(OP/OC) Dicrotophos (B)(P)(OP) Dimetane (B)(P)(OH) Dimefox (B)(P)(OP) 2,4-Dinitrophenol (B)(P)(O) Dioxacarb (B)(P) Disulfoton (B)(P)(OP) Endothion (B)(P)(OP) EPN (B)(P)(OP) Ethoprofos (B)(P)(OP) Fenpropathrin (B)(P)(O) Fensulfothion (B)(P)(OP) Fluoroacetamide (B)(P)(OH)(UN) Fluoroacetic acid (B)(I/P)(OH) Fonofos (B)(P)(OP) Hexafluorosilicic acid and its salts (B)(P)(OH) Hexamethylphosphoramide (B)(I)(OP) Kadethrin (B)(P)(O) Lead arsenate (B)(P)(HM) Mecarbam (B)(P)(O) Menazon (B)(P)(OP) Methamidofos (B)(P)(OP)(UN) Methidathion (B)(P)(OP) Methomyl (B)(P)(O)(UN) Mevinphos (B)(P)(OP) Monocrotophos (B)(P)(OP)(UN) Omethoate (B)(P)(OP) Oxamyl (B)(P)(O) Paraquat (B)(P)(O) Parathion ethyl (B)(P)(OP)(UN) Parathion methyl (B)(P)(OP) Phorate (B)(P)(OP) Phosphamidon (B)(P)(OP/OC)(UN) Prothoate (B)(P)(OP) Selenium and selenium compounds (B)(P)(HM) Sodium cyanide (B)(P)(O) Sodium Fluoroacetate (B)(P)(OH) Sulfotepp (B)(P)(OP) Sulprofos (B)(P)(OP) Thallium and thallium compounds (B)(P)(HM)(UN) Thiometon (B)(P)(OP) Triazophos (B)(P)(OP) Vamidothion (B)(P)(OP) Zinophos (B)(P)(OP) TOXIC, PERSISTENT OR BIOACCUMULATIVE Aldrin (B)(P)(OC)(UN) Alkylmercury (B)(P)(HM)(UN) Alkoxyalkyl and aryl mercury compounds (B)(P)(HM)(UN) Anilazin (B)(P)(OC) Arsenic compounds (B)(P)(HM) Bromoxynil butyrate (B)(P)(OH) Camphechlor (toxaphene) (B)(P)(OC)(UN) Chlordane (B)(P)(OC)(UN) Chloranil (B)(P)(OC) Chlorinol (B)(P)(OC) bis(Chloromethyl) ether [BCNE] (B)(I)(OC) Copper arsenate (B)(P)(HM) Dichlorane (B)(P)(OC) DDT (B)(P)(OC)(UN) 1,2-Dichloropropane (B)(P)(OC) Diclobenil (B)(P)(OC) Dicofol (B)(P)(OC) Dieldrin (B)(P)(OC)(UN) Dienochlor (B)(P)(OC) Difenzoquat methyl sulfate (B)(P)(O) Endosulfan (B)(P)(OC) Endrin (B)(P)(OC)(UN) Ethylene chlorohydrine (B)(P)(OC) Folpet (B)(P)(OC) Heptachlor (B)(P)(OC)(UN) Hexachlorobutadiene (B)(P)(OC) Hexachlorocyclohexane [HCH] mixed isomers [also known as benzene hexachloride or hexachlorobenzene] (B)(P)(OC)(UN) Hexazinon (B)(P)(O) Imazamethabenzmethyl (B)(P)(O) Isobenzan (B)(P)(OC) Isodrine (isomer of aldrin) (B)(P)(OC) Inorganic mercury compounds (B)(P)(HM) Lindane [gamma-HCH] (B)(P)(OC) Mercuric oxide (B)(P)(HM)(UN) Mercurous chloride (B)(P)(HM)(UN) Methoxychlor (B)(P)(OC) Methoxyethyl mercury acetate (B)(P)(HM) Methylene chloride (B)(I)(OC) Monomethyl tetrachlorodiphenylmethane [Ugilec 141] (B)(I)(OC) Monomethyl dichlorodiphenylmethane [Ugilec 121/21] (B)(I)(OC) Monomethyl dibromodiphenylmethane [DBBT] (B)(I)(OH) Morfamquat (B)(P) 4-Nitrodiphenyl (B)(P)(O) Paclobutrazol (B)(P)(OC) Pencycuron (B)(P)(OC) Pentachlorophenol [PCP] (B)(P/I)(OC) Perthane (B)(P)(OC) Phenkapton (B)(P) Phosacetim (B)(P) Picloram (B)(P)(OC) Polybrominated biphenyls [PBB] (B)(I)(OH) Polychlorinated biphenyls [PCB] (B)(I)(OC) Polychlorinated terphenyls [PCT] (B)(I)(OC) Polychloronaphthalene (B)(I)(OC) Polyvinyl chloride [PVC] (PO, 2000)(C)(OC) Pyriminil (B)(P)(O) Pyrinuron [linked to diabetus mellitis] (B)(P) Silvex (B)(P)(OC) Sodium arsenate (B)(P)(HM) 2,4,5-T (B)(P)(OC)(UN) 2,4,5-Trichlorophenol (B)(P)(OC) Terbacil (B)(P)(OC) 1,1,2,2-Tetrachloroethane (B)(P)(OC) Tetrachloroethylene (B)(I)(OC) 2,3,4,5-Tetrachlorophenol (B)(P)(OC) 2,3,4,6-Tetrachlorophenol (B)(P)(OC) Triadimenol (B)(P)(OC) Trichloroethylene (B)(I)(OC) Thiram (B)(P)(O) Trifluralin (B)(P)(OH) Uniconazol-P (B)(P)(OC) Zinc phosphide (B)(P)(HM) Ziram (B)(P)(HM) HIGH MOBILITY IN ENVIRONMENTAL MEDIA AND POTENTIAL FOR CONTAMINATION OF WATER Atrazine (B)(P)(OC) Bromacil (B)(P)(OH) Cyanazine (B)(P)(OC) 1,2 Dibromoethane (B)(P)(OH) 1,2-Dibromomethane (B)(P)(OH) Fenazaflor (B)(P) Fenson (B)(P) Fluorbenside (B)(P)(OH) Hexazione (B)(P)(O) Propachlore (B)(P)(OC) Sodium chlorate (B)(P)(IO) Thiabendazole (B)(P)(O) TCA-sodium (B)(P)(OC) Tetradifon (B)(P)(OC) Tetrasul (B)(P)(OC) Tris (2,3-Dibromopropyl)phosphate (B)(I)(OH)(UN) OZONE DEPLETING CFCs (PO, 1996)(I)(OC) Dichloromethane (PO, 1996)(I)(OC) Halons (PO, 1994)(I)(OH) HCFC (PO, 2030)(I)(OC) HBFC (PO, 1996)(I)(OC) 1,1,1-trichlorethene (PO, 1996)(I/C)(OC) Carbontetrachloride (PO, 1996)(I)(OC) Methyl Bromide (PO, 1998)(P)(OH) CARCINOGENIC, MUTAGENIC, OR TERATOGENIC 2-Acetylaminofluorene (B)(I)(O) Acrylonitrile (B)(P)(O) 4-Aminobiphenyl (B)(I)(O) Alachlor (B)(P)OC) Amitraz (B)(P)(O) Amitrole (B)(P)(O) Aramite (B)(P)(OC) Asbestos (B)(I/C)(IO) Azobenzene (B)(P)(O) Bifenthrin (B)(P) Binapacryl (B)(P)(O) Bromacil (B)(P)(OH) Captafol (B)(P)(OC)(UN) Captan (B)(P)(OC)(UN) Carbaryl (B)(P)(O) Chlordecone (B)(P)(OC) Chlordimeform (B)(P)(OC)(UN) Chlorobenzilate (B)(OH)(P) Chlorothalonil (B)(P)(OC) Cyhexatin (B)(P)(HM)(UN) 2,4-D (B)(P)(OC) Daminozide [Alar] (B)(P)(O) 1,2-Dibromo-3-Chloropropane [DBCP] (B)(P)(OH)(UN) 1,2-Dichlorobenzene (B)(P)(OC) 1,4-Dichlorobenzene (B)(P)(OC) 1,2 Dichloroethane (ethylene dichloride) (B)(P)(OC) 1,3-Dichloropropene (B)(P)(OC) 4-Dimethylaminoazobenzene (B)(I)(O) Dinocap (B)(P)(O) Dinoseb and its esters and salts (B)(P)(O)(UN) Dinoterb and its esters and salts (B)(P)(O) Diuron (B)(P)(OC) DNOC [Dinitrocresol] (B)(P)(O) Ethylene dibromide [EDB] (B)(P)(OH)(UN) Ethylene oxide (B)(P)(O) Fenarimol (B)(P)(OC) Fentin Hydroxide (B)(P)(HM) Flutriafol (B)(P)(OH) Fluazifop-P-butyl (B)(P)(OH) Fluorchloridone (B)(P)(OH/OC) Fomesafen (B)(P) Haloxifopetoxyetyl-ester (B)(P)(OH) Kelevan (B)(P)(UN) Linuron (B)(P)(OC) Maleic Hydrazide (B)(P)(O) Maneb (B)(P)(HM) Methyl chloromethyl ether (B)(I)(OC) 3-Methylcholanthrene (B)(I)(O) Metoxuron (B)(P)(OC) Monolinuron (B)(P)(OC) Monuron (B)(P)(OC) beta-Naphtylamine (B)(I/C)(O) Nitrofen (B)(P)(OC)(UN) o-Phenylphenol (B)(P)(O) Prochloraz (B)(P)(OC)(OC) Propham (B)(P)(O) Propineb (B)(P)(HM) Propoxur (B)(P)(O) Quintozene (B)(P)(OC) Quizalafopetyl (B)(P)(OC) Safrole (B)(P) Tributyl phosphorotrithioite (B)(P) Tridemorph (B)(P)(O) Zineb (B)(P)(HM) GROUPS OF CHEMICALS FOR WHICH CERTAIN USES OR ALL USES ARE BANNED OR TARGETTED FOR ELIMINATION * Organohalogen componds that are toxic, persistent and bioaccumulative * Organophosphorus compounds *Organotin compounds * Cadmium and cadmium compounds * Lead and lead compounds * Mercury and mercury compounds Sources: United Nations, 1991. 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