OECD Roadmap for Brazil & Peru, Colombia's REACH, Brazil's Chemical Exposure Rules, Chile's New Climate Change Law, and Single-Use Plastics in Ecuador
Contact me to understand more about compliance in Latin America at?[email protected]?or book an initial no-cost conversation at?https://calendly.com/asusalud/initial-conversation
The Power of the Carrot over the Stick & the OECD
Over the last 25 years, I have watched as international regulatory trends play out in the Latin America region.?For example, early in my career, I saw the rise of the modern framework environmental laws and later the media-specific standards for air, water, and last on the scene, hazardous waste.
The trends now in Latin America follow the international agenda:?chemical registration, plastics, Circular Economy, Extended Producer Responsibility, climate change, ESG.?But it’s always interesting to note what has the most impact on a country’s impulse to bring an abstract environmental concept into local law.?Does the threat of sanctions for its failure to comply with international commitments – think POPs regulations under the Stockholm Convention – motivate it more than the carrot of some desired goodie – think membership in the OECD?
It seems that the carrot beats the stick.?
While countries have lagged on implementing the last mile of regulatory detail for their many international treaty commitments (Stockholm, Basel, Minamata, Paris), nations in the region have a much better track record of getting their act in order when they can join the OECD club.?At a recent virtual conference I attended, government officials from Colombia, Chile, and Peru all cited the OECD and its requirements as the main driver for their emerging national chemical regulations.?The OECD’s analysis of regulatory shortcoming is openly acknowledged by both Colombia and Chile as the impetus for their rather rapid adoption of national REACH-inspired regulations (rapid for regional regulatory purposes).
In that context, it’s big news for the region that last week the OECD released its Roadmap for Accession for both Brazil and Peru.?The Roadmap identifies what the country needs to revise or enact in its own laws in order to come in line with relevant OECD policies and practices.?And from what we know of its impact on Chile and Colombia, this carrot of membership at the end of the reforms serves as strong motivation to make changes that were heretofore hard to move up the regulatory and legislative agendas in these countries.?
Each country’s roadmap is different as it comes as a result of an in-depth evaluation by over 20 technical committees on a range of policy areas.?The Roadmap addresses areas well beyond the environment – from financial to employment, labor, and education.?If you are looking for a crystal ball to determine what new reforms in Peru and Brazil will look like over the coming years, these Roadmaps are invaluable guides.?I expect both to serve as fuel to re-start work on national REACH legislation, among other initiatives.
Brazil’s Accession Roadmap in English:
Peru’s Accession Roadmap in English:
Occupational Exposure to Hazardous Chemicals
NR-9, Currently ??
In Brazil, exposure to hazardous chemicals is addressed in the technical standards (known as Normas Regulamentadoras or by their acronym “NRs”) developed by the Permanent Joint Tripartite Committee and the Secretary of Labor Inspection under the Ministry of Economy.
NR 9 requires an employer to take the measures necessary to eliminate, minimize or control environmental risks. NR 9 was revised in 2020. ?The new text called for employers to adopt the measures based on criteria established in the annexes to the NR 9 – but there have been no annexes as of yet. In the interim, the criteria and the tolerance limits have been those in NR 15 and its annexes, and the action levels for chemical agents are half the tolerance limit. ?In the absence of tolerance limits in NR 15 and its annexes, the employer has been asked to use the limits set by the American Conference of Governmental Industrial Hygienists (ACGIH). ?(This revision to NR 9 went into effect August 2, 2021.)
NR-9, Draft Revisions
Now, the government has posted for public comment revisions to NR 9 and new annexes.?The first addition is an Annex on Carcinogenic and Mutagenic Agents for Germ Cells.?In addition, two new Appendices propose special rules around exposure and workplace use of benzene and asbestos in Appendix 1 and Appendix 2, respectively.?
Interested parties may review the draft and present comments until July 31, 2022 at the following link:
NR-15, Currently
In Brazil, NR 15 controls Unhealthy Activities and Operations.?Under NR 15, employees who are exposed over a tolerance limit to certain occupational hazards are entitled to additional pay. ?Notably, a company is required to indemnify the exposed employee through additional pay that ranges from 40% for exposure to a 'maximum level', 20% for exposure to a 'medium level', and 10% for exposure to a 'minimum level.'
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One of the hazards controlled by NR 15 is occupational exposure to chemical agents. (See NR 15, Annex 11-13) The "tolerance limits" in the long table in Annex 11 are for airborne exposure to the listed chemicals. For some chemicals, a "ceiling limit" is indicated that means that the tolerance limit for those chemical agents may not be surpassed at any time during a work shift. Air sampling and monitoring is also required, and a calculation is used. The limits in the Table are based on a 48-hour work week.
Annex 13 classifies particular work activities or operations involving chemicals agents as "unhealthy" and defines them as maximum, medium or minimum level for additional pay as long as chemicals on the list in Annex 11 or 12 are not involved. Annex 12 applies to occupational asbestos exposure.
NR 15 and in particular Annex 11 are similar to the U.S. OSHA Z tables, but the chemicals and limits do not correlate exactly. ?The Brazilian chemical exposure "tolerance limits" are based on American Conference of Governmental Industrial Hygienist (ACGIH) Threshold Limit Values (TLV) but recalibrated to account for an 8-hour workday and 48-hour work week instead of the 8 hr/day, 40 hr/week used to develop the TLV by the ACGIH. ?The Brazilian Association of Occupational Hygienists (ABHO) annually publishes the TLVs from the ACGIH.
NR-15, Draft Revisions
Now, the Brazilian government has posted for notice and comment revisions to Annex 11 – Chemical Agents whose Unhealthiness is Characterized by Tolerance Limits and Quantitative Evaluation of Occupational Exposure and Annex 13 – Chemical Agents.
Interested parties may review the drafts and present comments at the following link:
Chile Adopts its Climate Change Law
Following on the heels of Brazil’s publication of rules creating its national carbon market, Chile made waves on June 13, 2022 with publication of its national Climate Change Law (Law 21.455). The law sets the national goal of making the country carbon neutral and climate resilient by 2050 at the latest.?That deadline could be moved up if circumstances permit because the law calls for its review every five years. The law sets concrete steps to be taken by all seventeen national ministries as well as regional and local governments.
The law recognizes the Nationally Determined Contribution (NDC), which defines Chile's commitments to the international community on mitigation and adaptation to climate change. It also establishes the Long-Term Climate Strategy (LTCS), a roadmap detailing how the country will fulfill its commitments, through concrete actions, along a 30-year horizon. The law requires the preparation of sectoral mitigation and adaptation plans with concrete measures and actions to meet these goals.
In an interesting acknowledgment of ESG and the importance of the private sector, financial institutions must also declare annually the climate impacts and risks of their private investment projects.
Link to the Law:
Single-Use Plastics, Biodegradable Plastics & Ecuador
Ecuador, like Peru, Chile, and now Colombia, has a law regulating and - in some cases - banning single-use plastics: the Law for the Rationalization, Reuse and Reduction of Single-Use Plastics published in December 2020.?As part of its national plan, Ecuador has already established the National Registry of Importers, Producers, and Recyclers of Single-Use Plastics.?https://docs.google.com/forms/d/e/1FAIpQLSffaLJQzqOgQhtAGMlwumej0ykEmj83X7YICWYvEF0D-hFmDg/viewform
Now, the Ministry of Environment of Ecuador has created the Registry of Producers and Importers of Biodegradable Plastics.?It will be used to identify products made of biodegradable and/or compostable plastic on the market in Ecuador.?All information and documentation submitted through the online portal is purportedly treated as confidential information.?For more information, see the new registry at the following link:?https://docs.google.com/forms/d/e/1FAIpQLSdL2-Jjdl4hyQ7HTjwLC7Z8zUxawTXPojv0EQckngIwfjLwig/viewform
Spotlight on Colombia’s New Registry of Industrial Chemical Substances
As noted in other editions of the Newsletter, Colombia’s version of REACH is now open for business.?Companies with covered chemicals that import or produce 100 kilograms per year have until 2025 to register their substances in the new online platform.
The spotlight this week is on Colombia’s adoption of the concept of “Only Representative”- ?familiar to those who have worked with REACH in the EU.?Under Colombia’s system, it is known as the “Exclusive Representative Abroad” (Representante Exclusivo del Exterior).?Colombia recognizes a natural or legal person appointed by a manufacturer outside the country or by an international company with several subsidiaries, one of which is located in the country, to fill out the confidential information related to the industrial chemical substances imported into the country.?
Colombia notes that this Only Representative will not have access to the information reported by the national user (i.e., importer).?The information reported will be confidential and handled in accordance with such regulations in Colombia.?Moreover, the national product user (i.e., importer) is not exempt from its own obligation to report the items for which it has information.?The national user/importer will be notified when the Only Representative registers the information in the system but will not have access to that information stored in the government’s registration platform.
Although many more details of the new scheme are coming to light, it is likely that certain questions will emerge as more companies begin to mobilize efforts to comply with the new obligations.?All eyes will be on Colombia and then Chile as its reporting deadlines approach.
?Contact me at?[email protected]?or book an initial no-cost conversation at?https://calendly.com/asusalud/initial-conversation