Metals Practice

Overview:

Not only are metals essential to human health, they also play a vital role in virtually every aspect of everyday life through their use in energy and electricity systems, packaging, transportation, consumer goods, and much more. By volume, metals and metal compounds represent the vast majority of marketed chemical substances. Consideration of how these essential materials can and should be regulated under U.S. and international laws is often misunderstood. And metals’ unique physical and chemical characteristics can be inappropriately regulated in ways that result in restrictions disproportionate to their real or potential risk. Excess or inexact regulation can hamper important developments across industries -- from medical to IT. It is critical that regulatory systems recognize the unique physical and chemical properties of metal and metal substances, which are very different than organic chemicals, and adopt risk assessment and risk management schemes that appropriately reflect those issues.

Bergeson & Campbell, P.C. (B&C^®) in conjunction with its affiliate, B&C^® Consortia Management, L.L.C. (BCCM), is uniquely well-suited to assist metal producers and downstream metal users and other stakeholders in successful engagement on legal, regulatory, and science policy issues pertinent to their issues.

Our Experience:

B&C has been a leader in providing representation of and advocating for metal-specific groups for many years. We fully understand the metal community and its unique needs and challenges. B&C is the recognized leader in addressing the complexities of reporting metal substance byproducts under the U.S. Environmental Protection Agency’s (EPA) Chemical Data Reporting (CDR) rule.

B&C played a pivotal role in ensuring the metal community’s unique issues and interests were understood and reflected in discussions surrounding legislative changes in chemical management under the Toxic Substances Control Act (TSCA). We offer an experienced group of professionals with strong relationships with decision-makers within EPA and other agencies, including the Small Business Administration (SBA), the Occupational Safety and Health Administration (OSHA), the European Commission (EC), and the European Chemicals Agency (ECHA) -- all of which play pivotal roles in regulatory decision-making for metal substances.

Our strong working relationships with key trade groups, such as the International Council on Mining and Metals, Eurometaux, and the Mining Association of Canada, are invaluable to our clients in the metals community. Through these interactions, and our diligent and thorough monitoring and assessment of international, national, and state activities, we allow our clients to remain updated on legal, regulatory, and science policy issues pertinent to their interests and respond in a timely manner. Our ability to share intelligence on regulatory initiatives timely and efficiently is unparalleled.

An essential element of our success is the reliable network of global partnerships and strategic alliances we have developed to meet our clients’ needs. We are able to deploy the resources brought to bear through this network to provide a high standard of service. Our business model relies on a nimble team of embedded agents located around the globe who are able to respond quickly and efficiently to our requests for information. We excel in accessing information, analyzing its implications for particular business sectors, such as the metals industry, and communicating those impacts quickly and clearly. Our partners work in an unobtrusive manner to influence decision-making without causing offence or adopting a high profile, direct approach. This is an important point, as cultural differences among countries, Asian countries in particular, must be considered. Furthermore, several of the Asian countries are in the process of evaluating and revising existing legislation and guidance documents. This makes the need for embedded assets and resources all the more important.

Our partners, in many cases, are former government regulators intimately involved in the jurisdiction’s chemical control legislation and/or regulatory implementation. These relationships are also instrumental in ensuring that our clients maintain a good, ongoing working relationship with relevant government personnel and in fostering a better understanding of existing regulatory measures and their enforcement. Several of our partners are involved in specific metal consortia/task forces and/or technical committees. 

What We Do:

The wealth of B&C’s experience working at and with numerous state, federal, and international agencies positions us to advocate effectively for our clients before problems arise and to mitigate issues after the fact. We have worked for years with staff at EPA, OSHA, the U.S. Department of State, state regulatory agencies such as California’s Office of Environmental Health Hazard Assessment (OEHHA), and other governmental venues. Areas in which we advise clients include the following:

• Legislative Policy –
  • Advise clients on impacts of proposed legislative actions or policies, including the U.S, Securities and Exchange Commission’s (SEC) conflict minerals regulations
  • Provided leadership role for metals industry in an ad hoc coalition of chemical trade associations in TSCA reform debate
• U.S. Chemical Control and Assessment Actions –
  • Active participation in Science Advisory Board (SAB) reviews, and participation in workshops, peer review efforts, and expert consultations
  • Provide context of ongoing regulatory actions by EPA in chemical control programs and potential impact to the metals industry and develop strategies to minimize burden or unintended consequences, including
    • Scheduled assessments of numerous metals under the Integrated Risk Information System (IRIS) process
    • Reporting of metals and metal byproducts under CDR
    • Inclusion of metal substances in EPA’s TSCA Work Plan efforts
    • Prioritization of chemicals in commerce
• Classification and Labeling Requirements –
  • Provide educational outreach to metals community on impacts of new classification and labeling requirements in the U.S. and other regions
  • Remain engaged in ongoing research and modeling developments that better address the physical and chemical characteristics of metals within a classification context
• Research –
  • Conduct and publish research focused on providing more scientifically robust approaches to regulate and manage metal substances
• International Treaties and Programs –
  • Lead industry efforts in providing input to U.S. delegates to International Maritime Organization (IMO) and United Nations Environment Programme (UNEP) on mercury, sustainable development, and other international activities impacting metals
  • Meet with U.S. State, Commerce, and Transportation Departments to assist the U.S. in developing a position on the Strategic Approach to International Chemicals Management (SAICM) and mercury-related issues
• Coordination with Key Government Groups on Sustainability Issues –
  • Monitor and report on developments with respect to the international “3Rs” initiative (reduce, recycle, reuse), Health Canada Exposure Model, draft Canadian Ecological Categorization of Organometallics, and UNEP Executive Director’s draft report
  • Establish and maintain connections along the value chain in conjunction with key government organizations to address issues related to procurement processes and sustainability goals for those government groups
• Training –
  • Coordinate and host seminars for metals industry

Representative Engagements:

• As legal counsel to the North American Metals Council (NAMC), a group of organizations with diverse commercial interests in a wide range of metals and metal industries along all aspects of the value chain, B&C tracks regulatory and legislative issues and advises NAMC of their effect on the metals industry.
• B&C’s affiliate, BCCM, manages NAMC, conducts specialized training for NAMC members on the exposure and use information reporting requirements required on metals and inorganics in the upcoming CDR reporting cycle, and supports scientific dialogues at events such as the 2012 Aquatic Toxicology Symposium to provide a forum for discussion among leading researchers on the more problematic research questions in aquatic toxicology.
• We are counsel to, and BCCM manages, the Titanium Dioxide Stewardship Council.
• B&C monitors global legislation, research, and regulations concerning nanomaterials, and prepares a monthly update summarizing, by country, plans for nanoparticle regulation and/or research relevant to nickel and nickel compounds, as well as other primary inorganic metal compounds such as copper, silver, and zinc.
• We provided comments to Washington State’s Department of Ecology, successfully urging on scientific grounds that metals be excluded from the state’s proposed PBT program.
• B&C played a key role in EPA’s development of a science-based Metals Assessment Framework, including the submission of comments on successive drafts of the framework.
• B&C participated in briefings on the Convention on Long-Range Transboundary Air Pollution (LRTAP) Heavy Metals Protocol and provided input to the U.S. government delegation on issues of interest.
• We represented the North American metals industry at stakeholder meetings on SAICM with the U.S. delegation, and successfully advocated for removal of the term “heavy metals” and greater emphasis on scientifically-based determinations.
• We submitted letters supporting legislation to permit U.S. ratification of the Stockholm Convention on Persistent Organic Pollutants and related international instruments.
• B&C hosted a Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) and Globally Harmonized System of Classification and Labeling of Chemicals (GHS) seminar for the metals industry in Washington, D.C. where more than 70 companies participated.
• B&C monitors federal, state, and international regulatory developments and prepares monthly and quarterly updates concerning specific metals, such as molybdenum, cadmium, aluminum, cobalt, platinum, and tungsten.