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Minamata Convention to Take Effect in August, Restricting the Production and Usage of Mercury Worldwide

On May 17, the European Union and seven EU member states ratified the Minamata Convention on Mercury, pushing past the 50-state threshold needed for its entry into force. The treaty – the most recent of the global multilateral environmental agreements – will now enter into force (i.e., become legally binding) on August 16, 2017. The United States ratified the Convention (as an executive agreement, without the advice and consent of the Senate) in 2013; in contrast to most of the recent multilateral environmental agreements, therefore, the United States will participate in this agreement as a full party. 

The Convention aims to restrict primary mining of mercury, reduce emissions from coal-fired power plants and other listed sources of mercury and mercury compounds to the atmosphere, and control overall mercury usage, trade, and handling. The Convention also encourages Parties to develop strategies for identifying, assessing and, as appropriate, remediating sites contaminated by mercury or mercury compounds.

 The Convention also includes a requirement for Parties to phase-out the production and use of certain listed mercury added products, thus establishing a global material restriction framework for this particular chemical.  The Convention contains a mechanism that allows Parties to propose further mercury-added products to be banned, discussed here. It is expected that this list will continue to expand, as more mercury substitutes are found. Parties are generally bound by the Convention to ban any products that are added to this list (Annex A) in the future, although a Party may declare at the time of its ratification that it will only be bound by such amendments upon its affirmative ratification of the amendment. Parties may register for exemptions from the phase-out schedule for any product listed on or added to Annex A, but these exemptions will be time-limited and cannot in any case exceed 10 years after the general phase-out date. When considering adding to or amending the banned products list, the COP must take into account any proposals submitted by the Parties, including information on the availability of mercury-free alternatives or the necessity of use in various industrial practices.

Parties are further obligated to “discourage” the manufacture and distribution of any mercury-added products not covered by any known use of mercury at the time the Convention enters into force for that Party, unless a risk-benefit analysis “demonstrates environmental or human health benefits.” Such Parties must provide information to the Secretariat about such products, which will become publicly available. This provision is likely to put pressure on the use of mercury in new product research and development, and could impede innovation in certain product categories.

The first Conference of the Parties to the Minamata Convention on Mercury (COP1) will take place September 24-29, 2017 in Geneva. At COP1 Parties will discuss the structure of the organization of the Convention, as well as adopt guidance that must be adopted at the first COP . Governments and other interested stakeholders have been requested to submit input on various aspects of the Convention, including mining restrictions and mercury handling regulations currently in force in member nations. At this stage, it does not appear that the first COP will address measures relating to the Convention’s material restriction and products obligations, including proposals to add to the Annex A list of banned products. 

Beveridge & Diamond has significant experience in guiding companies and industry groups through multilateral environmental treaty negotiations.  Please contact Russ LaMotte (rlamotte@bdlaw.com, 202.789.6080) or Paul Hagen (phagen@bdlaw.com, 202.789.6022) if you are interested in learning more about opportunities for business and industry engagement in the Minimata Convention on Mercury processes. Mr. LaMotte gratefully acknowledges the assistance of Jeffrey Clare in the preparation of this Alert.