EN Official Journal of the European Union CE 84/346

(2004/C 84 E/0404)

WRITTEN QUESTION E-0274/04

by Johanna Boogerd-Quaak (ELDR) to the Commission

(5 February 2004)

Subject: Arsenic acid

On 21 December, a large number of barrels of wood preservative were lost overboard from an Ethiopian ship off the coast of the Netherlands. The ship had departed from England and had also called at the port of Antwerp. Its ultimate destination was Ethiopia, via Bremen. An investigation has shown that there are numerous questions to be answered concerning the registration and labelling of the barrels/substances and the associated handling of the barrels/substances.

1. The wood preservative CCA contains copper oxide, chromium trioxide and arsenic acid. In 1992, the Netherlands Government decided to change the name of arsenic acid to arsenic pentoxide. Is the Commission aware that the name of one of the three active substances (arsenic acid) has been replaced by a different name (arsenic pentoxide)?

2. Does the Commission agree that these are two different chemical substances? According to disaster response experts, the substances require different approaches to disaster response or recovery. (Different UN numbers and GEVI (hazard identification) numbers).

3. Have other Member States acted in a similar way?

4. What implications does this have in relation to Regulation (EC) No 142/97 (1), in which only arsenic acid is mentioned as a classification?

5. What effect does this have on other legislation based on Regulation (EC) No 142/97?

6. Is the Netherlands Government seeking to evade European law by means of this classification?

7. If so, what measures will the Commission take to deal with this?

8. What role does Transport Directive 2002/59/EC (2) play with regard to this classification?

9. Did the competent authorities have a duty to notify other Member States of this transport operation, and did they comply in this case?

10. If not, ought the ship to have left port?

11. How damaging is it if labels and bills of lading relating to toxic substances do not correspond to the content?

Answer given by Mrs Wallström on behalf of the Commission

(2 April 2004)

The Commission is not aware of the decision adopted in 1992 by the Dutch Government according to which arsenic acid was renamed arsenic pentoxide. Neither is the Commission aware of other Member States having introduced similar modifications.

From a chemical point of view, arsenic acid and arsenic pentoxide are two different compounds: the chemical formula of arsenic acid is AsH3O4 and the substance name is arsenic acid (CAS # 7778-39-4 and Einecs # 231-901-9); the chemical formula of arsenic pentoxide is As2O5 and the substance name is diarsenic pentoxide (CAS # 1303-28-2 and Einecs # 215-116-9). The former substance is easily obtained by dissolving the latter in water.

From a toxicological point of view, the two substances are equally toxic to humans and the environment. Both have a harmonised classification as category 1 carcinogens (may cause cancer to humans), are considered very toxic to aquatic organisms and may cause long term adverse effects in an aquatic environment pursuant to annex I of Council Directive 67/548/EEC of 27 June 1967, on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (3).

Although both the United Nations (UN) and International Maritime Dangerous Goods (IMDG) Code identify these substances with different numbers, the emergency measures to contain pollution caused by either one of the two substances are similar. Both substances are soluble in water. According to the IMDG Code, they may only be transported by ships in watertight packages. Therefore, for both compounds, the response to a disaster involves the recovery of the lost containers.

Indeed, only arsenic acid is mentioned in the priority list annexed to Commission Regulation (EC) No 142/97 of 27 January 1997 concerning the delivery of information about certain existing substances pursuant to Article 12(2) of Council Regulation (EC No 793/93 of 23 March 1993, on the evaluation and control of existing substances (4). Arsenic pentoxide is in none of the priority lists established pursuant to Article 8 of Regulation (EC) No 793/93. The classification and labelling of dangerous substances is governed by a different legislation, i.e. Council Directive 67/548/EEC.

However, arsenic acid and arsenic pentoxide are both included in Commission Directive 2003/2/EC of 6 January 2003 relating to restrictions on the marketing and use of arsenic (5) compounds according to which the use of wood treated with arsenic in consumer applications (e.g. in fencing and decking) is banned as of 30 June 2004 at the latest. A derogation is provided for certain professional uses under specific circumstances.

Directive 2002/59/EC of the Parliament and of the Council of 27 June 2002 setting up a Community vessel traffic and information system includes provisions concerning notification of ships' movements and their cargoes. It requires notably operators of vessels leaving a port in the Community to notify the competent authority for the port of departure of several pieces of information, including the correct technical names of the dangerous or polluting goods as well as the UN numbers or the International Maritime Organisation (IMO) hazard classes. However, the purpose of the Directive is not to set up requirements concerning labelling or classification of dangerous or polluting goods.

According to Directive 2002/59/EC, the competent authorities do not have a duty to notify other Member States on a routine basis, but they must be able to provide the information referred to in the Annex by electronic means on request by another Member State, in particular in case of accident or for other safety-related reasons. According to the Directive, the provision of information is not a condition for allowing the ship to leave port.

As regards maritime transport of chemicals, Appendix I of Annex II to the Marpol 73/78 Convention contains specific Guidelines for the categorization of noxious liquid substances. These provisions are relevant irrespectively of the labelling applied by the Member States. In addition, the IMDG Code is the standard guide to all aspects of handling dangerous goods and marine pollutants in sea transport. The Code entered into force on 1 January 2004 and is mandatory for Governments for adoption or for use as the basis for national regulations as they put the requirements of SOLAS 1974 and Marpol 73/78 Conventions into effect. The IMDG Code lays down basic principles; detailed recommendations for individual substances, materials and articles; and a number of recommendations for good operational practice including advice on terminology, packing, labelling storage, segregation and handling, and emergency response action.

(1) OJ L 25, 28.1.1997, p. 11.

(2) OJ L 208, 5.8.2002, p. 10.

(3) OJ P 196, 16.8.1967.

(4) OJ L 84, 5.4.1993.

(5) OJ L 4, 9.1.2003.