Industrial Declarations and the CWC: Paper 17

RONALD G. SUTHERLAND, THOMAS STOCK, THOMAS KURZIDEM, PATRICIARADLER AND YORK VON LERSNER

Bad Homburg, Germany
8- 10 September 1995

One of the major aims of the Chemical Weapons Convention (CWC) is the preventionof the production of chemicals for chemical weapons (CW) production. Thisis not an easy task given that the definition of a chemical weapon is complexand based on the 'general purpose criterion' which means that a toxic chemicalis only a weapon when it is intended for use as a weapon. This bedevilstheir control since it is possible to divert legal production into illicituse.

The control strategy developed under CWC requires that the production anduse of chemicals that could present a danger to the convention be monitoredbut that the system used does not unduly hamper the legitimate use of thesechemicals. The eventual system developed devides chemicals into three schedulesessentially based on the risk certain chemicals pose to the CWC and thatthe risks posed by other chemical production facilities be dealt with under'Discrete Organic Chemicals' with those containing Phosphorus, Sulfur orFluorine, 'PSF' being separated out for special scrutiny.

The CWC has envisaged a two level system: - international control by theOrganization for the Prohibition of Chemical Weapons (OPWC) and nationalcontrol by a National Authority (NA) representing a State Party. The StateParty will demonstrate compliance with the CWC by presenting declarationson:

- Schedule1;
- Schedule 2;
- Schedule 3; and
- Discrete Organic Chemicals (DOCs)

As required by the Verification Annex of the CWC, the OPWC through the TechnicalSecretariat (TS) will, by routine inspections and examination of the datasupplied, determine that a given State Party has demonstrated its compliancewith the CWC.

The above is a dramatic oversimplification of what has to be done; it leavesout the compelling fact that most States Parties do not produce, process,or consume chemicals directly - industry and individuals do. It is thenthe task of the State Party usually through its National Authority to devisea system of obtaining the required information in a timely fashion fromits industry and other users of chemicals.

At this time most signatories do not know the extent of the task of informationcollection required by the CWC declarations. In a discussion of industrialdeclarations there is no need to examine the requirements of Schedule 1only Schedule 2, 3 and DOCs are likely of general industrial interest.
Following the risk concept, the monitoring regime becomes less invasiveas one moves from Schedule 2 to 3 to DOCs.

Schedule 2 Requirements

If one ignores 'past production for CW purposes', then the following declarationsare required for Schedule 2:

1. Initial Declarations on aggregate National Data (AND) and plant sites30 days after entry into force (EIF);
2. annual Declarations on past or completed activities 90 days after yearend for AND and plant sites;
3. annual Declarations for anticipated activities 60 days before the annualproduction cycle begins at plant sites; and
4. additional production over that declared under 3 above should be declared5 days before the production cycle begins.

The list of agreed Schedule 2 chemicals appears in the CWC as the Annexon Chemicals.
Article VI of the Convention covers all 'Activities not prohibited underthis Convention' and the required declarations are described in Part VIIof the Verification Annex with the full expectations of the ProvisionalTechnical Secretariat (PTS) described in a Declaration Handbook.

Schedule 2 requirements include aggregate national data (AND) on quantitiesproduced, processed, consumed, imported, and exported of each Schedule 2chemical including full specification of imports and exports for each chemicalinvolved.
Declarations are required for all plant sites involved in production, processingor consumption above a threshold amount of:

- 1 kg of a '* ' chemical in 2A;
- 100 kg of other chemicals in 2A; and
- 1 tonne of a chemical in 2B. A considerable amount of detailed informationis required on the actual plants and plant site where a Schedule 2 chemicalis produced above the threshold.

The initial declaration for each plant site has to cover the three previouscalendar years. There are two major unresolved issues with respect to Schedule2; these are

- the precise meaning of AND; and
- mixtures containing a 'low concentration' of a Schedule 2 chemical.

The CWC does not give a definition of aggregate national data as it wasinitially assumed that AND would cover all production including that fromsites below the declaration threshold. This is disputed by some who preferthe aggregation of data from declared sites; this would provide no additionalinformation since it merely involves the addition of all declared data onproduction, processing and consumption above the threshold together withthe actual import and export quantities.

The matter will be further complicated by the PTS´s proposed 'Roundingrules' where, for example, quantities less than 500 kg would be roundeddown to 0 tonne, e. g., production, processing or consumption of 1,5 tonneswould be declared as 1,0 tonne, while 1,6 tonnes would be rounded up to2 tonnes.

The CWC text states that declarations 'are not generally required for mixturescontaining a low concentration of a Schedule 2 chemical' and goes on tostate that declarations are only required in accordance with 'guidelines'that relate to the ease of recovery of the Schedule 2 chemical and its totalweight.

The guidelines are to be developed by the Preparatory Commission (PrepCom)and approved by the conference of States Parties (cf. Article VIII). TheExpert Group seems now to have reduced its options to two:

(I) agreement on total weight and a percentage below which a declarationwould not be required provided that the Schedule 2 chemical was not isolated,
(II) an elaboration of criteria related to ease of recovery together withquantitative thresholds.

It would seem that the important points should be

(I) is the quantity above the threshold for declaration for the chemicalconcerned?
(II) can the chemical be selectively converted, without separation fromthe mixture, to a Schedule 1 chemical?

In either case, the mixture will pose a risk to the CWC and the processshould be one that leads to a declaration and a routine inspection wherethe threshold is exceeded.

Schedule 3 Requirements

The following declarations are required for Schedule 3 chemicals:

1. Initial declarations on AND and on plant sites 30 days after EIF;
2. annual declarations on past or completed activities 90 days after yearend both for AND and plant sites;
3. annual declarations for anticipated activities at plant sites 60 daysbefore the year begins; and
4. any proposed change after the anticipatory declarations to be made 5days before additional production begins.

The list of agreed Schedule 3 chemicals appears in the CWC as the Annexon Chemicals as described in Article VI. Part VIII of the Verification Annexdescribes the required declaration with the PTS´s Handbook on Declarationsproviding additional details.
Schedule 3 requirements include aggregate national data and plant sitesbut only specifies production, imports and exports with no requirementsrelated to processing or consumption.

Declarations are needed for plant sites producing more than 30 tonnes ofa Schedule 3 chemical but the production is expressed in ranges:

- 30 to 200 tonnes;
- 200 to 1000 tonnes;
- 1000 to 10000 tonnes;
- 10000 to 100000 tonnes; and
- above 100000 tonnes.

The same two problems as related under Schedule 2 exist for Schedule 3 chemicals:(I) aggregate national data, (II) low concentrations. Again 'guidelines'have to be developed as to when declarations are required for Schedule 3chemicals which are part of mixtures and an understanding of what AND meansin the CWC.

There are two problems relating to AND. If it relates to total productionat both declared and non declared plant sites then it is a straight forwardproduction number that assesses monitored as opposed to non- monitored production.

If it is regarded as a summation of all declared production than it becomesa non- meaningful number in that it would involve the summation of 'productionranges'.
The only useful way to provide such AND would be to provide the number ofproducers in each of the production ranges.

If as already noted with Schedule 2, the AND is merely a summation of declaredplant data then there is no point to the collection of the data and theresources implied. A decision as to whether a declaration is necessary fora mixture containing a Schedule 3 chemical should depend on

(I) is the quantity involved greater than the threshold amount? (30 tonnesin a calendar year),
(II) could the Schedule 3 chemical be easily separated or can it be convertedto a Schedule 2 (1) chemical without isolation from the mixture to provideanother scheduled chemical in greater than a threshold quantity?

If the answer to either of these is Yes, then it should be considered asproduction that has to be declared under the CWC.

Other Chemical Production Facilities Since there are many chemicals thatare not on the schedules but which could play a role in CW development,the CWC negotiations looked for solutions to the problem of ensuring thatfacilities capable of being used or converted into facilities that couldbe used for the production of scheduled chemicals or other chemicals thatcould pose a threat to the
CWC were included in a monitoring regime.

The strategy adopted involved a declaration on other chemical productionfacilities.
The production was classified as 'unscheduled discrete organic chemicals'with a subclass of 'unscheduled discrete organic chemicals containing theelements Phosphorus, Sulfur or Fluorine'. These are known as DOC and PSFchemicals respectively.

In this class declarations are required for plants that synthesize:

- 200 tonnes or more of DOC´s; and
- 30 tonnes or more of PSF chemicals.

The declaration requirements are

(I) declaration of plant sites 30 days after EIF (2) annual update of thislist 90 days after the calendar year end.

The list of plant sites should also include an aggregate amount of the productionof each DOC given in the ranges:

- under 1000 tonnes;
-1000 to 10000 tonnes; and
- above 10000 tonnes.

The production of PSF chemicals in PSF plants is to be expressed in theaggregate ranges:

- under 200 tonnes;
- 200 to 1000 tonnes
- 1000 to 10000 tonnes ; and
- above 10000 tonnes.

There is no list of DOC`s nor PSF chemicals in the CWC, the declarationrequirements are found in Part IX of the Verification Annex with other informationto be found in the Declaration Handbook.

The CWC provides the following definition for DOC´s: any chemicalbelonging to the class of chemical compounds consisting of all compoundsof carbon except for its oxides, sulfides and metal carbonates, identifiableby chemical name, by structural formula, if known, and by Chemical AbstractsService registry number if assigned.

The above definition is all- encompassing and must have some restrictionsattached to it. The first exceptions were made for plant sites that exclusivelyproduced explosives or hydrocarbons. The term hydrocarbons includes allthe normal processes, chemical and physical, carried out in petroleum refiningto produce chemicals containing only carbon and hydrogen and these are excludedfrom the term production in Part IX of the Verification Annex.

There clearly is still a substantial amount of work to be done on DOC exemptions,e. g., polymers from monomers, beverages from a fermentation process, highsulfur crudes etc. A specific process whereby a DOC is excluded from monitoringshould be developed.

The Declaration Handbook and the National Authority The PTS has, as partof its activities, drafted a handbook for the use of National Authoritiesin compiling CWC information for transmission to the Technical Secretariatof the OPCW.

For most NAs, Section B as Industrial Declarations will form the major componentof their declaration activities. As currently constructed it seems to becomplex and unwieldy and so it should be carefully scrutinized to see ifit can be simplified. It does not appear to be directly applicable to thetask of obtaining the required raw data from industry by a National Authority.

Schedule 2 contains 7 individual compounds and 7 families of compounds andso will form a group of approximately 30 compounds to be declared; thereare 17 compounds on Schedule 3 and so one may estimate that some 50 compoundscould be declared when produced above the threshold.

Each one of these scheduled chemicals will have to be declared separatelywhen there is activity above the threshold. The following abridges the declarationforms suggested by the PTS in their handbook.

Schedule 2:

Declarations No. of Forms AND

- initial 4
- annual 4

Plant sites

- initial 6
- annual (past) 6
- annual (anticipatory) 6

Additional Activities 7

Total 33


Schedule 3:

Declarations No. of Forms AND

- initial 4
- annual 4

Plant sites

- initial 4
- annual (p) 4
- annual (a) 4

Additional Activities 5

Total 25


Other Chemical Production Facilities:

Declarations No. of Forms

initial 3
annual update 3

Total 6

This combination suggests that for each Schedule 2 chemical produced therecould be a need for as many as 33 declaration forms, 25 for each Schedule3 chemical and 6 for the DOC´s where there is PSF production.

These are the requirements over the first cycle of initial and annual updatedeclarations over the first year. We could assume that an average workloadfor a National Authority could comprise of:

5 Schedule 2 companies,
85 Schedule 3 companies,
150 DOC producers.

This means that the National Authority would have to deal with 240 companiesproducing chemicals at a number of plants in various plant sites, i. e.,there will be more chemicals than companies and also more plant sites thancompanies.

If one assumes that each company has only one plant site at which it produces:

two Schedule 2 chemicals;
three Schedule 3 chemicals; and
three DOC´s

then the initial declaration requirements are:

Schedule 2 2 x 4 x 5 40 Schedule 3 3 x 4 x 85 1020 DOC´s 3 x 3 x 1501350 for a total of 2410 AND declarations.

The initial plant site declaration would be:

2 x 6 x 5 60 3 x 4 x 85 1020 for a total of 1080, i. e., the National Authoritywould need to be able to process about 3500 declarations within the firstyear after entry into force.

This calculation is based on a modest number of companies with a minimalproduct set and only one plant site per company. It is clear from this thatbefore entry into force each National Authority needs to know:

- the number of chemicals to be declared;
- the number of plant sites to be declared; - the number of plants involved;and
- the number and type of declarations required.

Conclusion

The PrepCom, the PTS and the Expert Groups have made a great deal ofprogress in preparing for entry into force in developing a methodology forcollecting the required information in a form that is suitable for the OPWCto ensure that a State Party´s industrial activities are in compliancewith the Convention.

The current structure of the declarations seems to be unnecessarily complicatedand not easily applicable to the task of the National Authority in obtainingdata from the chemical industry. The model devised also suggests that thevolume of declarations, even for a State Party with a small chemical industry,would best be carried out using computers for data transfer.