Response - Voluntary Scheme for users of Trichloroethylene

In a remarkable twist of events, former users of Trichloroethylene have been left gasping by an announcement, seemingly supported by HSE, DEFRA and the Environment agency.

In essence these are the enforcement agencies tasked with protecting us and who say their advice is consistent and reliable. Sadly the numbers of population raising doubts about this is continuing to grow. As you read this you may already be hearing a voice in your head that confirms you are already a sceptic.

I, like everyone, have the desire to offer my trust to these organisations but sadly I have had such trust destroyed in recent years. I ask myself whether these institutions have lost their way or whether we are being let down by a handful of staff who have long since moved beyond good reason?

I hate politics in anything, rife as it is, so I won’t dwell, other than to wonder what lobbying exists that is so powerful as to corrupt credibility and lead to bias.

Before anyone rushes to claim innocence, I ask them to step into the real world and at least consider the complete perception given by recent actions. It’s for them to justify a stance that has not been left in doubt but it’s for the rest of us to judge what drives such a stance.

If you need some background to my comments visit the Surface Engineering Association website which lists a Voluntary Scheme for users of Trichloroethylene. A report is covered in their Autumn 07 edition of Watchword. There, you will see each of the organisations logos I mention above.

It begins with a note of a meeting in which HSE provided a Trichloroethylene Working Group, quoting clearly some connection to the Solvent Emissions Directive (SED). This meeting was not notified to the wider industry, who had an interest in this subject, something which is becoming all too common. Never forget HSE was a limited voice in Europe to oppose reclassification of Trike so their acceptance of it appears to remain alive.

Having written to DEFRA I should quote their response as follows,
“The reference to 2010 you mention would seem to align with a voluntary agreement for health and safety purposes, unrelated to SED”

My first question of DEFRA then is obvious. “If, as enforcers of SED you say it is unrelated to SED, why is your logo used as support for the scheme along with HSE and the Environment Agency?”

Having written to HSE twice I await a response.

Let’s begin first as far back as the 1990s.
Those of us involved in legislative issues for solvents were faced with two issues.

As a Carcinogen, Trichloroethylene became affected by the law governing the
use of Carcinogens to comply with EU Directives. What was the aim? To move
away from it by substituting the product.

The Solvent Emissions Directive of 1999 (1999/13/EC) set the rule that use in excess
of 1tonne per annum of a Carcinogen allowed a 6 year compliance period to
seek substitution. Contrary to October 2007 being held as that date for Trike, it is more accurate under this legislation to have July 2008 as the deadline.

Hundreds of companies have complied already, under great pressures from local
authorities, to meet these legal requirements. No wonder then that this
responsible and pro-active group are fuming at recent events.

Why is there such a fuss?

Having pressed for substitution by mid 2008 with sales fast diminishing, we now
hear of a saviour scheme for Trike. Despite clear legal obligations it seems it is
now suggested we can relax our concerns, but whose interest will it serve?

We are told the European Chlorinated Solvents Association (ECSA)
has pro-actively worked with EU authorities to develop an industry wide voluntary
commitment on the use of Trike. Of course they have. The alternative is to lose
sales. As ever the EU is being used to make decisions affecting us with no
consultation.

The clue is in the framework which says “To safeguard the long term sustainable
use of Trike”

Knowing a question of who it safeguards, given that it is a Carcinogen, would
arise, the scheme proposes the use of closed systems which are expensive and
not overly popular or convenient in the UK. Process times are very long.

On this matter DEFRA comment that the machine is irrelevant to SED as you are
required to seek substitution when using over 1 tonne per annum. I can vouch for
modern open top systems achieving this as well, if not better, than closed systems.
I know of closed systems using in excess of 5 tonnes per annum where open tops
use 5 to 7 litres per week. Don’t be misled. Exceed 1 tonne per annum of Trike in
any machine and you must comply with substitution demands.

So, here we have our first red herring with no comparative data in the UK to
support high investment in this system.

Of course the original question arises of DEFRA. Why are you involved with
supporting this scheme then as you rightly admit it does not generally impact on
SED issues?

The scheme asks remaining Trike users to sign up by December 31st 2007 to the
idea of committing to purchasing a closed system. By when….December 31st
2010! If signatures are not forthcoming by the end of 2008 can we expect the
dates to be extended? Even more relevant, can anyone who has already signed
give notice of withdrawing?

In essence Trike gains 2.5 extra years beyond the original dates set for moving to
an alternative. During this period there is no greater protection for health or
environment but there are of course winners. These are the suppliers of Trike who
pretend no alternative exists for your current Trike process. This is total rubbish.

Another issue raises itself. HSE, DEFRA and the Environment Agency give the
perception that their approval removes your liabilities. Your Lawyer would be clear
it does not.

We seem to have reached a point where our enforcing agents seem to say their
interpretation no longer demands the compliance with legal directives.

God help us then since power alone will rule our lives. This cannot be allowed to
go unchallenged.

There will no longer be a place for their accountability and in no time at all we will
not be able to continue in business or expect concern for our protection.

They say always to read the small print before giving your signature. Never has
their been a better time to heed this with regard to a voluntary scheme which
safeguards your supplier.

Always consult an independent process specialist with regard to your process
needs before signing up as a prisoner to a scheme you may well regret.

I await an explanation from the organisations at the heart of this scheme to argue
their case with transparency, never forgetting the story of the Donkey led to
water.

Personally, I think the water they offer is badly contaminated.

I also encourage Trade Associations to stop listening to one voice alone and
embrace fuller opinion on advice for their members. Encouraging the continued
use of Trike is not a responsible message and I doubt the people advising it
would ever want any member of their family to work with this product when safer
methods exist!

Notation; For the purpose of clarity I declare the interest of Enviro Tech Europe
Limited in this matter as the supplier of EnSolv within Europe, as we are currently
awaiting hearing dates in the European Court of First Instance in which
challenges are being made against EU decisions we consider to be illegal with
regard to reclassification of n-Propyl Bromide, the base chemistry of EnSolv, a
product approved by Boeing for aerospace vapour degreasing.

Update for users of Trichloroethylene

Having spent most of my working life in the chemical industry I can say two things for certain. Firstly, the challenges facing Europe are enormous as a result of growing levels of regulation and I have never seen more confusion resulting from the guidance given to users. It would seem to be the consequence of so much regulation, as enforcers and product users alike feel the burden of pressures.

In the last two issues of Surface World there has been great concerns shared over the manner in which guidance has been offered via HSE and Defra regarding a voluntary scheme for Trichloroethylene (Trike). I have endeavoured to get further insight and must say that I have learned to have great regard for the difficulty investigative journalists must face.

I raised a question that reflected the comments of many. “Breathtaking Bias or Responsible Guidance?”
Predictably, those who were to receive my questions only saw the first part of the question and seemed to go into retreat, I assume to take advice. My point in raising the question was to allow a response that supported Responsible Guidance. Understandably HSE wished to refute the idea of bias. The only question left then must be “Is the guidance responsible?”

In a limited space I am now attempting to qualify some responses from the relevant enforcement agencies. For Defra, Mike Etkind responded and for HSE, the Chair of the Trichloroethylene Working Group, Andrew Lake was able to offer a first hand summary.

In introduction we must keep in mind two things:

• Following reclassification to R45 May Cause Cancer, users of Trichloroethylene in excess of one tonne per annum had obligations under the Solvent Emissions Directive (SED) to seek substitution in the “Shortest possible time” or within a target of six years ending June 2008.
  
  
• Article 4 of Carcinogen Directive 90/394/EEC sets the following requirement for all users of Trike:

HSE commented “HSE has been evaluating its priorities for chemicals including those that cause, or have the potential to cause, cancer. Following a review of all category 1 and 2 Carcinogens, HSE has categorised Trichloroethylene as a low priority substance for its future intervention activity on Carcinogens. The Carcinogens and Mutagens Directive (implemented in Great Britain by COSHH) and the Solvent Emissions Directive – provide adequate standards of control”

My first thought then would be why is a working group needed to meet with Trade Associations to discuss guidance that is already accurate?

As one of those invited Associations the Surface Engineering Association (SEA) comment “In June 2007 we were approached by HSE and asked if we would like to assist with the development of new guidance to provide an authoritative legal interpretation of the current situation regarding Trichloroethylene”

That subsequent guidance can be found on both SEA and EEF websites, emblazoned with the HSE, Defra and Environment Agency logos as its authority.

For a low priority there seems to be a good deal of effort here. It reports a New Voluntary Charter that in principle allows three further years of use of Trichloroethylene in open top vapour degreases on the basis of making a commitment to replace the machine exclusively with a closed system by December 2010!

I asked who had led the initiative of this working group looking at guidance.

HSE commented “As you said in your email there has been some confusion. Consequently HSE recently collaborated with Defra, EEF and SEA to produce guidance”

Defra report “The reference to 2010 you mention would seem to align to a voluntary agreement for health and safety purposes, unrelated to SED”
Does that seem odd then, that Defra attended the guidance meeting and subsequently gave permission to use their logo?

HSE state clearly that Trichloroethylene remains governed by existing regulation for Carcinogens. Defra say if you use over 1 tonne per annum the voluntary scheme has no relevance to existing SED obligations. You must comply.

Am I right or wrong to wonder then what makes the use of the product safer during a three year period when nothing changes until the end of 2010? What does the guidance tells us that is of new value?

If it is of low priority, I watch with interest to see what is the priority of HSE?
At the very least we must hope for consistency, given the long standing concerns which have already existed with Trike.

Such a consistent approach will relieve any issues of bias.
I have a serious concern regarding the official use of logos on guidance for a voluntary scheme. It is implied that suppliers of Trichloroethylene gain official support.

Ask yourself, if you agreed guidance with your own product, would you get permission to use the logos? To reduce confusion which misleads some to believe they now have HSE and Defra approval, I have asked these agencies to consider removing them and leaving the details of the meeting on record as an explanation of the voluntary agreement.

One writer drew my attention recently to EU Case Law Francovich v Italy 1991, in which it was accepted that any Government failing to adhere to a Directive can be sued by someone suffering ill health.

These are serious matters and inevitably, many feel it impossible to challenge those who claim authority over our lives.

What is vital for all of us is the need to understand what we are told and know that it is impartial and entirely in keeping with the law.

Product users have been on the rough end of legislation for years. Often it’s the same groups mapping out our lives. We are surrounded by misinformation and half truths and we need to get to the heart of the truth.

As they have spent so much time and care with Trichloroethylene, I have invited HSE and Defra to chair a broader meeting where anyone concerned about component cleaning and the future can share their thoughts. Suppliers, machine manufacturers, waste recoverers, product users and trade associations could use their experience to complete a puzzle that has been incomplete for too long in the minds of many.

In my experience the only way to get to the truth is for all concerned to be in the same room. It’s amazing how the landscape changes.

Given that the cost of a venue will be met externally at a time and date suited to the agencies involved, I see no reason to put this off.

As and when the agencies agree on the framework, Surface World will report the details. As a Finisher it will be a must do event on your list for 2008.

Click here for editorial report from the Surface Engineering Association magazine Watchword with their kind permission.

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page last modified on 17/12/09