Category Archives: Green Thoughts

Environmental compliance expert Kal Kawar’s blog

Conflict Minerals, Electronics and the SEC

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A letter has been circulating, collecting signatures.  The letter has been passed to mining, metals, electronics, and other industry corporate heads for signing, and it’s addressed to the U.S. Securities and  Exchange Commission (SEC) Chairman Shapiro.

The point of the letter is to amass signatures and put pressure on the SEC to address the conflict in the Democratic Republic of Congo (DRC or “the Congo”) by three primary avenues:

  1. Government engagement and diplomacy.
  2. Supply chain responsibility.
  3. Economic development and capacity building.

Conflict minerals are minerals mined in conflicted areas, such as the Congo, which provide revenue to militia committing human rights atrocities.  Efforts by the US Congress and other governments, human rights groups, non-governmental organizations (NGOs), as well as industry, are underway to improve transparency in the minerals supply chain so that conflict areas are not receiving subsidy that is in turn funding terrible crimes against humanity.  Here is a slide-show around conflict mineral mining; images are artfully done and recommended.

Conflict mineral ores include:

NGOs are increasingly urging consumers to reject electronics made with conflict minerals.  This forces electronics companies to pay much closer attention to the source of the metals in products.  Some suppliers are being asked to certify that the tin, for instance, used in their products is not conflict tin.

Conflict minerals pose a new twist on an old problem: supply chain visibility. This deep level of supply chain visibility is what we talk about often these days. Efforts by NGOs and human rights groups have been somewhat successful in the U.S. in getting consumers to demand sourcing from non-conflict areas. Thus — to some extent at least — there is general industry support of the conflict metals issue and bills in both the Senate and House of Representatives.

Also, see the July 2010 (version 3.0) of proposed SEC revision.

Title XV of the Dodd-Frank Wall Street Reform and Consumer Protection Act was put into place to provide for financial regulatory reform, to protect consumers and investors, to enhance federal understanding of insurance issues, to regulate the over-the-counter derivatives markets, and for other purposes. Within the Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law by President Obama on July 21, 2010, are new requirements for manufacturers of products containing tin, tantalum, gold, tungsten, or any other “conflict metals.” The Act contains several specialized disclosure provisions:

– Section 1502 requires persons to disclose annually whether any conflict minerals that are necessary to the functionality or production of a product of the person, as defined in the provision, originated in the Congo or an adjoining country and if so to report on due diligence on the source and chain of custody of those minerals, which must include an independent private sector audit of that report that is certified by the person filing the report.

– Section 1503 requires any reporting issuer that is a mine operator, or has a subsidiary that is an operator, to disclose in each periodic report filed with the Commission information related to health and safety violations, including the number of certain violations, orders, and citations received from the Mine Safety and Health Administration (MSHA) among other matters.

– Section 1504 requires reporting issuers engaged in the commercial development of oil, natural gas, or minerals to disclose in an annual report certain payments made to the United States or a foreign government.

Regulations required by Sections 1502 and 1504 must be adopted no later than 270 days after the Dodd-Frank Act’s enactment, so the latest would be April 15, 2011.

Signatories of the recent letter to the SEC signed that they generally agree to the following:

  1. The SEC regulation should support meaningful reporting and transparency that drives ethical behavior for the sourcing of minerals from the DRC.
  2. The SEC should coordinate with other global pr ocesses in the effort to address financing of the conflict in the DRC.
  3. The SEC should coordinate with the State Department on options to implement more robust accountability and reporting mechanisms with key stakeholders – in particular, the State Department’s progress on diplomacy under The Democratic Republic of Congo Relief, Security, and the Democracy Promotion Act (PL 109-456).
  4. Extreme violations of human rights, including slavery and sexual violence should be eliminated.
  5. The US government to proactively contribute to resolving the underlying sources of conflict in eastern DRC.
  6. That minerals would contribute to the real development of communities in the eastern Congo.

Most agree that joint action by the DRC government, influential governments like the US, industries and Congolese and international civil society is needed to end conflict-related abuses, slavery and other human rights violations.

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6 Principles of US Import Protocol

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Unsafe imports can mean many different things.  Just ask my colleague Chris, who purchased a set of inexpensive deck-chairs made in a foreign country.  Those were unsafe.  You can imagine the rest.

Unsafe imports were on the minds of US Agency heads last week, and they weren’t talking deck chairs per se but about the larger safety issues associated with import/export.  Senior leaders from 10 federal agencies met in Washington, D.C. on Oct. 21 .  There, they addressed past, current, and future efforts to protect the health & safety of both the American consumer and the environment from unsafe imports.  Participating agencies are listed at bottom of this post.

Import / export of chemical substance. Risk Managers have a tough time of it.  Consider import and export laws regarding chemical management.  In 2008, EPA published the Compliance Guide for Chemical Import Requirements under the Toxic Substances Control Act or TSCA.  Short version is that EPA regulates certain chemical substances and mixtures under the Toxic Substances Control Act (TSCA), including chemical import and export.

The United States Customs and Border Protection monitors chemical imports regulated under TSCA section 13. Custom and Border Protection rules (19 CFR 12.118 to 12.128 and 127.28) (also: 40 CFR 707.20) require certification from the importer such as:

  1. positive certification — the shipment complies with TSCA and all applicable rules and orders
  2. negative certification — the shipment is not subject to TSCA

TSCA section 13 certification applies to TSCA sections 5, 6, and 7.  In addition, importers may have obligations under TSCA section 4, which covers testing, and/or section 8 which covers reporting and record-keeping.  In terms of exporting chemicals, TSCA Section 12(b) and 40 CFR Part 707 requires EPA to notify importing countries of the export of chemicals or mixtures if they are subject to certain rules and orders; also requiring notification are certain products containing PCBs or asbestos.
Six general principles of import safety in America. The agency leaders affirmed their commitment to import safety by agreeing to six key principles thereof.  These six principles provide a foundation for further collaboration between participating agencies.

EPA pointed out that all participating agencies are in some way charged with protecting American consumers from unsafe imports.

The six principles of import safety — as agreed to by 10 U.S. federal agencies — are:

1.     The creation of an interagency forum of senior representatives dedicated to import safety cooperation

2.     Continued commitment to information sharing across federal agencies involved in import safety concerns

3.     Enhanced efforts to help the private sector comply with import safety requirements

4.     Development of common systems to exchange information

5.     Strong, consistent enforcement measures to deter imports of unsafe products

6.     The use of risk-management strategies to streamline lawful trade

Goal: to achieve the common mission of protecting American consumers from unsafe imports.

Participating agencies. The new group includes executives from:

  • The U.S. Environmental Protection Agency
  • Department of Homeland Security
  • U.S. Customs and Border Protection
  • Immigration and Customs Enforcement
  • Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE?)
  • Animal and Plant Health Inspection Service
  • Consumer Product Safety Commission
  • Food and Drug Administration or FDA
  • Food Safety and Inspection Service
  • National Highway Traffic Safety Administration
  • National Marine Fisheries Service

It’s quite a lineup.  Will be interesting to see what comes of it.

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How Will Graphene Be Regulated?

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Andre Geim and Konstantin Novoselov have won the 2010 Nobel Prize for Physics for their graphene experiments.  The two scientists are appreciated for their innovative, almost playful approach to study and discovery; and of course for getting results.  Specifically, the coveted Nobel Prize was awarded Geim and Novoselov “for groundbreaking experiments regarding the two-dimensional material graphene.”

Geim and Novoselov notably created a “super sticky tape” seven years ago, apparently inspired by a gecko’s ability to stick to impossibly smooth surfaces.

“These were just a couple of guys driven by their curiosity, doing what they thought was interesting, and invented this amazing material,” said Laurence Eaves, a physics professor at the University of Nottingham in Britain in a report.

Graphene and circuits, TVs and sensors

MIT called graphene the “strongest material in the world.”  No one has really doubted it.  Graphene can be conceived of as a one-atom-thick sheet of bonded carbon atoms — packed in a honeycomb-style crystal lattice.

Recently a teenager had read some popular science and wanted to know if graphene would be the material that one day builds an umbilical chord, or a “beanstalk,” from earth to an orbiting space station; I couldn’t tell her it was completely out of the question. Graphene certainly has potential for many uses in construction material, but that level of mainstream adoption appears a ways off yet.  For now though, graphene is known for being a strong material with applications in circuitry and television advancements.  Graphene is, after thin and strong, an “excellent conductor.”

Electrons move through graphene quite quickly, making it fantastic material for manufacturing integrated circuits.  Integrated circuits, or microchips, are very small electronic circuits consisting primarily of semiconductor devices – along with some passive components.  These chips are the spine of modern telecommunications.

Graphene developments are indeed under way in several areas, including in a range of aerospace possibilities, starting with lighter airplanes.  Also, on October 16, 2010, PC World reported that graphene “spin computers” could mean faster and smaller gadgets.

But most urgently it seems:  graphene has elevated the pursuit of better TV screens.  Not exactly the stuff of space-science-fiction, but no one yet has complained about better TV technology, either.  Notably:  researchers this year made rectangular sheets of graphene 76 centimeters (diagonal) and then used the sheets to create an operable touch-screen display.

Graphene — interestingly — makes an excellent sensor.  This gets slightly complicated, but graphene has a 2D structure, which means it is entirely exposed to its environment.  “No boundaries!”   As such, molecule detection is indirect: as a gas molecule adsorbs to the surface of graphene, the location of absorption experiences a local change in electrical resistance (apt description from Wikipedia).  Those local changes are easy to measure and track.

Researchers recently uncovered a quartet of graphene’s electron states — findings were published in the September 9, 2010 issue of Nature magazine.  Also announced was the discovery that electrons in graphene can split up into different energy levels when exposed to extremely low temperatures and extremely high magnetic fields.  An electron in any given energy level populates four possible sub-levels.  The four possible sub-levels are called a “quartet.”  The experiment revealed complex behavior of electrons in a high magnetic field at extremely low temperatures.  The way the electrons interact with each other under such conditions affects their energy levels.  The upshot?  Graphene may be more interesting than we thought.  The instrument used for the experiment was, notably, at the National Institute of Standards and Technology (NIST).

The so-called “material of the future,” graphene has already captured the imaginations of many amateur commentators — and there is basis in fact for big-dreaming.  Meanwhile, the EPA as well as international regulatory bodies are scrambling to put their regulations in order.

Graphene, nanomaterials, and environmental regulations

The United States is the world’s leader in nanotechnology, says the ACS, but it reports that first place position may be threatened by China, South Korea, and the European Union.  This is according to a report released earlier this year by the President’s Council of Advisors on Science & Technology (PCAST).  The March 2010 report prepared for the White House and Congress recommends several changes to the government’s inter-agency program that coordinates federally funded nanotechnology R&D, the National Nanotechnology Initiative (NNI).

Key recommendations of the report include:

  • increasing investments in nanomanufacturing and product commercialization to encourage new nanotech products to enter the marketplace
  • increasing the number of workers with expertise in nanofabrication
  • strengthening commitments to environmental, health, and safety (EHS) research for more sensible regulations

EPA puts graphene under TSCA

The U.S. EPA or Environmental Protection Agency regulates nanotechnology by two different laws:

  1. the Federal Fungicide, Insecticide & Rodenticide Act (FIFRA)
  2. the Toxic Substances Control Act (TSCA)

The two are managed under two different offices.  Regulation for nanoscale materials such as carbon nanotubes and graphene is under EPA’s toxics office, under TSCA.

“EHS considerations have to be a part of all of our work in nanotechnology,” echoed Jeff Morris, national program director for nanotechnology in EPA’s Office of Research & Development.   Regulation of graphene and other areas of nanotech will become more successful “when EHS research is no longer considered a separate area, but rather an integral part of all we do as we advance nanotechnology,” Morris said.

And, as usual, various international entities — think RoHS — and individual U.S. states are taking regulatory legislation matters into their own hands.

California puts graphene under Green Chemistry

A recently proposed California Law addresses the regulation of nanomaterials.  One aspect of the proposed regulatory initiative is that it defines a “chemical” to mean any of the following:

  1. a chemical substance
  2. a chemical mixture
  3. nanomaterial

Graphene, of course, is under the nanomaterial clause.

A “nanomaterial” is here [in the California proposal] defined as “any form of an intentionally engineered chemical, substance or material that is intended to be composed of a discrete nanostructure that meets either of the following criteria: 1. at least one spatial dimension of the nanostructure is at the nanoscale, or 2. the nanostructure is larger than nanoscale in any spatial dimension, but is 1000 nanometers or less in at least one spatial dimension, and the nanostructure exhibits one or more nanoscale phenomena.”  (Above is from a nice October 12, 2010 write-up by Edgcomb Law Group.)

The proposed regulation, also known as California Green Chemistry, defines the terms “Nanoscale”, “Nanoscale phenomena” and “Nanostructure. Because of the unique properties of nanomaterials, DTSC is gathering information on nanotechnology and monitoring the efforts of other regulatory agencies about this emerging technology.  All eyes are on January 2011 for more concrete regulatory parameters out of California.  For more, review the extensive material DTSC web portal.

We’ll certainly keep you posted here on this blog.

The bottom line

The bottom line for this story really isn’t money right now.  The Nobel prize in Physics was announced Tuesday, Oct. 5, 2010.  The Associated Press reported that Laurence Eaves, a physics professor at the University of Nottingham in Britain, said the two scientists who received the award, Andre Geim and Konstantin Novoselov, demonstrated how science should be done.

If I may summarize “how science should be done” it might be:  Wonder, Experiment, Discover, Innovate.

And then, of course, Regulate.  But all that follows in the shadows of the excitement of new discovery.  Nice to have some excitement once in a while.  From my perch it appears that graphene may really deserve the hype, and probably also deserves the regulations.  May they find, together, some peace.

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China RoHS Regulation Overview

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China RoHS phase I entered into force in 2007.  Phase II hasn’t really fired up yet.  MIIT – which is China’s Ministry of Industry and Information Technology — has indicated that RoHS 2 will be notified to the World Trade Organization (WTO) Technical Barriers to Trade (TBT) Committee following the current public comment period, as reported by Holland & Knight; that period ended without ado in August 2010.  The stated MIIT goal is to finalize RoHS 2 by the end of 2010. It is possible, per recent MIIT feedback, that MIIT will endeavor to have RoHS 2 enter into effect within one year of promulgation.

This means that if RoHS 2 were finalized by the end of 2010, we could possibly see RoHS 2 in effect – with labeling and information disclosure requirements applicable to the new scope of products – by the end of 2011 or early 2012.  Interestingly, Taiwan put up a new web site earlier this year to present an English-speaking version of its toxic substances control initiatives and laws.  And China released an updated version of its REACH-like chemical law earlier this year.
One requirement of China RoHS Phase I was that companies indicate on product labels whether a product contain specific restricted materials. The second phase will restrict specific substances in products.  In fact, according to China RoHS, all items shipped to China must be marked to indicate whether items contained therein are compliant or noncompliant with China RoHS.  No small order.

The Electronic Information Products (EIP) logo or other label is used to mark parts and assemblies that do not contain unacceptable amounts of substances identified by the regulations, and that are environmentally safe. (Units that do contain hazardous substances are marked with the EIP logo including an Environment Friendly Use Period [EFUP] value in years.)

There are six substances now considered environmentally hazardous by China RoHS:

* Lead
* Mercury
* Cadmium
* Hexavalent Chromium
* Polybrominated Biphenyls
* Polybrominated Diphenyl Ethers

EU RoHS vs. China RoHS. In 2006, the China’s Ministry of Industry and Information Technology or MIIT circulated the long-awaited “Management Methods for Controlling Pollution Caused by Electronic Information Products Regulation” (usually called “China RoHS”). China RoHS was developed separately from the EU regulations and is, as written, more strict in many ways. Manufacturers, importers, and some retailers fall under its scope.

China RoHS is similar to EU RoHS in that it restricts certain hazardous substances in consumer products and in packaging materials. However, the China RoHS is different from its EU counterpart in a few significant ways.

China RoHS takes on:

  1. automotive medical devices
  2. manufacturing equipment
  3. components
  4. electronics
  5. radar equipment
  6. certain raw materials
  7. packaging materials

However, China RoHS doesn’t take on home appliances and toys (although components of these products often have to comply).
China RoHS labels. However, the exact time-frame for this second phase has not yet been revealed. So far, there are four types of marks or labels required on products:

  1. A label indicating whether any of the six hazardous substances – lead, mercury, cadmium, hexavalent chromium, PBB, or PBDE – are present in the product. If they are present, another label is needed that indicates the “Environment-Friendly Use Period” (EFUP) – the date until which the hazardous substances will not leak or cause environmental pollution.
  2. A table in the manual, packaging, or documentation of the product that shows which hazardous materials are in the product and which components contain the materials. This is a much stricter requirement than the EU RoHS and may require additional testing and product research to determine.
  3. The type of packaging material used needs to be described on the outside packaging.
  4. If a EFUP label is needed, a date of manufacture must be clearly marked on the product.

There are differences between the EU and China RoHS regulations. The China regulations make everyone in the supply chain responsible for noncompliance, while only importers, manufacturers and some retailers are subject to penalties in the EU version. The China RoHS also requires more disclosure – the Certificates of Compliance from suppliers adequate under EU regulations may not be enough. If you ship affected products into China, the product will need to be tested by one of the approved labs in China and will need CCC accreditation (China Compulsory Certification). Testing for compliance might be very extensive, too; you may need to test not only every component of your product, but also the materials in every component.

Some companies are wondering if China RoHS will really be enforced. China’s record of enforcing anti-counterfeiting and intellectual property laws, for instance, isn’t the highest rated in the global landscape. And yet, it’s risky to assume that China RoHS won’t be enforced. China RoHS is written as more strict than its EU counterpart — and enforcement is random — but how thoroughly it is thus far being enforced is difficult to assess.

Timing of China RoHS Phase II. The first phase of China RoHS compliance – a phase which involves “mark and disclosure” processes for products – was implemented in February 2007. China’s Ministry of Information Industry (MII) is defining RoHS compliance in that country and may head the RoHS compliance testing. So far, the MII has not mentioned any exemptions for RoHS compliance, which means that medical and military equipment may also be tested and forced to comply with RoHS definitions.

It looks as though China will define RoHS compliance differently than the EU.  China requires all components and products that meet RoHS compliance regulations to carry a logo – a green “e” in a circle. Products and components which fail to meet RoHS compliance regulations will carry a different logo and are required to clearly list all the hazardous substances in the product. Each product not meeting RoHS compliance definitions also needs to list its Environmental Protection Use Period (EPUP), or the number of years that the hazardous substances will not leak or cause any damage or injury (under normal use of the product).

The sheer size of the Chinese tech market will make training, compliance testing, and enforcement challenging.

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