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TRADING in Hazardous Waste Whether a gain for the environment or an impediment to international trade, the Basel Convention attempts to legislate global environmental accountability. KRIS
CHRISTEN
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© 2000 American Chemical Society
lmost seven years in the making, an international liability regime for environmental accidents involving hazardous waste shipments was opened for signature in Bern, Switzerland, in March. The so-called Basel Protocol on Liability and Compensation for Damage Resulting From the Transboundary Movement of Hazardous Wastes and their Disposal was adopted in December at the Fifth Conference of Parties (COP5) and is the latest addition to the 10-year-old Basel Convention, the United Nations treaty regulating transboundary shipments of toxic wastes. But as much of the rest of the world moves on to this new liability protocol and seeks to resolve lingering prob-
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lems with the convention as a whole, the United States has yet to even ratify the original Basel Convention and is the only major industrialized country that has failed to do so (see sidebar on next page). The Basel Convention came about in 1989 following international furor over the dumping of hazardous wastes in developing countries by companies trying to circumvent high disposal costs in countries with more stringent environmental controls. The convention entered into force in 1992, and as of May, 135 countries and the European Union (EU) had become parties. Essentially, this treaty recognizes every country's sovereign right to ban hazardous waste imJULY 1, 2000 / ENVIRONMENTAL SCIENCE & TECHNOLOGY / NEWS • 3 0 1 A
ports and obliges signatory countries to ensure environmentally sound management and disposal of hazardous wastes. Moreover, countries are supposed to both minimize generation of hazardous waste and dispose of it as close to the generation source as possible. If toxic waste is exported, the convention requires exporting countries to notify transit and importing countries, which must provide prior informed consent to the shipment.
Strict liability established The result of long and arduous negotiations, the new liability protocol is designed to determine which party is financially responsible in the event of a hazardous waste accident. It considers each phase of the waste's transboundary movement from the point where it is loaded onto the means of transport to its international transit, import, and final disposal. In so doing, "the Basel Convention is the first environmental treaty to establish a legally binding regime for liability and compensation," said Per Bakken, head of the Basel Convention secretariat. The protocol establishes strict liability as a rule, making waste exporters liable for any damage until the disposal facility has taken possession of the waste, at which point the disposer becomes liable. The protocol also imposes minimum insurance requirements on both waste exporters and disposers. Exporters must obtain transport risk coverage, ranging from 1 million to 30 million special drawing rights (SDR), depending on the tonnage, and disposers
2 million SDR. SDR are units of account defined by the International Monetary Fund and correspond to approximately $1.35. The liability limits named in the protocol are mere "thresholds from which each country can have higher requirements for insurance," said Philippe Roch, director of the Swiss Agency for the Environment, Forests, and Landscape and COP5 president. But these limits are not without controversy. Various countries expressed concerns during the COP5 meeting that limits not be set so high as to be impractical, discouraging countries from ratifying the protocol because they cannot afford to ship wastes. Others questioned the approach of setting financial limits based on mass as opposed to toxicity. For example, how can 50 kg of municipal waste coming from Pennsylvania, be equivalent to 50 kg of dioxin? asked Mostafa Tolba former executive director of the U.N. Environment Programme (UNEP) and the father of the Basel Convention Suian Pavel legal officer of the Basel secretariat under UNER acknowledged that the limit values were a compromise because countries could not agree on a clear definition of toxicity The limits will be discussed again at the next conference of parties however and are subject to change before the protocol enters into force and before that hannens 20 countries must sign arid ratify it The establishment of an emergency and compensatory fund as an integral part of the new protocol also was negotiated at the COP5 meeting to pay for cleanup operations resulting from accidents in-
Impediments to U.S. ratification Although the United States has supported the Basel Convention secretariat financially every year and has worked extensively on determining hazard characteristics, a number of amendments would have to be made to the Resource Conservation and Recovery Act (RCRA) before U.S. ratification could take place. For one, Congress would have to give EPA the authority to stop waste exports in cases where it believes the waste would not be managed in an environmentally sound manner. "Right now, EPA has limited authority to stop waste exports," said Paul Hagen, an attorney with Beveridge & Diamond, P.C., in Washington, DC. "Once a company has the approval of the receiving government, EPA can't weigh in and stop that shipment." Other major challenges to U.S. ratification include defining what environmentally sound management (ESM) actually is and determining how EPA could evaluate the ESM of overseas receiving facilities. "There haven't been a lot of guidelines [for ESM]," Hagen said. For instance, suppose something gets exported
to China, Australia, or South Africa for recycling. "Each of these countries has a different level of capacity for managing the waste," Hagen noted. Indeed, the Basel Convention can be interpreted to say that a facility's ESM is "guilty until proven innocent or innocent until proven guilty," an EPA official said, and different countries have interpreted the ESM provision in different ways. Another inconsistency between the Basel Convention and current U.S. law is the "go get it and bring it back provision," which requires countries to repatriate wastes when they are not managed in an environmentally sound manner abroad, as well as illegal shipments, Hagen said. "Current U.S. law doesn't have that mechanism where EPA could order a company to go get waste at a foreign location and bring it back to the U.S. for proper disposal or recycling." Interagency negotiations have been under way for years on implementing legislation, but nothing has emerged outside of a draft form. Language currently under discussion would allow EPA to
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verify that a facility receiving exported U.S. waste meets U.S. standards for proper disposal management, but discussions are still ongoing over whether such a scheme would be equivalent to exporting RCRA in demanding that other countries do everything the way the United States does, a state department official said. "[Although] Basel requires ESM, it doesn't necessarily require that every country do whatever another country is doing." The Clinton administration has not made a decision yet on when to bring any resulting new legislative proposals before Congress, but it was not likely to happen during this congressional session, an EPA official said. In Congress, House Representative Bliley (R-VA), commerce committee chair, sent a letter to the State Department in November expressing disappointment over the administration's inability to produce any implementing legislation for Congress to review and asking for a timeline on when such legislation might come about.
volving transboundary movements of hazardous wastes until liable parties are identified. But nothing concrete was agreed to, and contributions from member countries were not made mandatory, a point environmentalists and developing nations decried. Exemptions from strict liability A primary limitation of the new liability protocol in the eyes of environmentalists is a clause mat would exempt most hazardous waste shipments currently taking place. Article 3 of the protocol excludes any transboundary movement of hazardous waste and its disposal that occurs pursuant to a bilateral, multilateral, or regional agreement, provided a comparable liability and compensation regime exists. Since most such shipments occur among countries belonging to the Organization for Economic Cooperation and Development (OECD) and already are covered under domestic liability regimes, Jim Puckett, coordinator of the Basel Action Network, said he believes the Basel Convention's liability protocol will never enter into force. "OECD countries have a multilateral agreement among them, so they have no incentive to ratify it, and developing countries, in turn, are probably going to realize mat they too might be liable for their exports." Moreover, the U.N. treaty does not require "cradle to grave" liability. So technically, according to Puckett, a U.S. company could get rid of its liability by exporting its waste. In other words, once the generator turns the waste over to the disposer, the generator's liability ends. Another stated problem with the new protocol is that the disposer can only be held liable for a maximum of 10 years. Because the bulk of environmental problems occur over time—as contaminants leach into soil or groundwater gradual contamination as a result of improper disposal is not covered. The protocol does contain a fault-based liability provision, however, with no financial limits But because a controversial amendment to the Basel Convention in 1995 prohibits the export of hazardous wastes destined for final disposal in non-Annex VII countries, or non-OECD countries, such shipments are not common, said Paul Hagen, an attorney with Beveridge & Diamond, EC, in Washington, DC. In addition, the so-called ban amendment phased out shipments destined for recycling or recovery operations in non-OECD countries as of 1998. Furthermore, countries are required to discourage shipments to countries mat do not have the infrastructure to handle them in an environmentally sound manner, Hagen added. Sixty-two countries must ratify the ban amendment before it can enter into force. But the amendment does not apply to trade between non-OECD countries (see photos atright).Only 20 countries along with the EU have done so thus far.
The Formosa Plastics Corp.'s waste was shipped in bags falsely labeled as "polyester chip".
Hazardous waste definition still a sticking point Another issue that has impeded the Basel Convention from the outset is the lack of a globally accepted definition of hazardous waste. Because each country has developed its own definition, statistics on how much hazardous waste individual countries generate are difficult to compare.
Of die countries that have ratified die Basel Convention, only 29 report on how much hazardous waste tiiey generate, export, and import, according to Tolba. The treaty will become "useless" if an accurate picture cannot be gleaned of overall generation and what happens to it, Tolba said.
Although the Basel Convention bans hazardous waste exports from OECD member countries to non-OECD countries, it does not restrict such trade between developing countries, as when Formosa Plastics Corp. of Taiwan shipped mercury-laden waste to Cambodia in 1998.
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FIGURE 1 Hazardous waste generation within OECD
Note: Figures are estimates and reflect hazardous waste generation in the mid-1990s. Source: OECD
Estimates indicate an annual and steadily growing global production of more than 330 million tons of hazardous waste materials, with petrochemicals and chemicals making up nearly 70% of current generation (2). Between 50% and 75% of this waste continues to be disposed of on land (1). An estimated 3 million tons annually crosses national borders, said Klaus Topfer, UNEP's current executive director, but most of it is transferred from one industrialized country to another. The OECD, whose members account for the vast majority of global hazardous waste generation (see Figure 1), also has continuously grappled with the definition of hazardous waste. On the basis of environmental performance reviews carried out in all OECD member countries and the 1999 OECD Environmental Data Compendium, most member countries reported increases or no charges in hazardous waste generation between 1985 and 1997, said Henrik Harjula, principal administrator of the OECD's Environmental Health and Safety Division. And, "in relative terms, annual hazardous waste generation in the mid-1990s could be estimated to have been an average of 5.4 kg per $1000 of gross domestic product " he added. Harmonizing OECD control system with Basel's The OECD is seeking to harmonize its procedures and requirements for transboundary shipments of hazardous waste with those of the Basel Convention and eliminate areas of duplication. Currently, OECD uses a green-amber-red waste classification system to control transboundary shipments of hazardous waste. Green-listed wastes can be traded without any controls other than those nor3 0 4 A • JULY 1, 2000 / ENVIRONMENTAL SCIENCE & TECHNOLOGY / NEWS
mally applied to commercial transactions. Amberlisted wastes pose little risk and have few rules imposed on them. Red-listed wastes pose such a risk to human health and the environment that they are either not traded at all or have very tight rules imposed on them. The basic tasks under the harmonization process are replacing the green-amber-red lists with the Basel Convention's Annexes VIII and IX; considering the application of the green control to Annex DC wastes and amber control to Annex VIII wastes; and eliminating the OECD review mechanism, but retaining the possibility of applying the different levels of controls in exceptional cases. Negotiations are well under way, Harjula said. He was hopeful that a decision laying down harmonized control procedures for transboundary shipments destined for recovery operations within the OECD would be made by the end of this year and available for final adoption early next year. Wastes destined for recycling Another nagging issue of the Basel Convention is whether or not wastes destined for recycling should be included in the ban amendment (see photo on next page). Trade in recyclable materials that might be considered hazardous has always been an extremely sensitive issue, particularly in countries such as India and Brazil, whose industries rely on such shipments of secondary raw materials. Scrap metals are especially valuable. A Canadian economist present at the COP5 meeting noted that some countries such as Singapore have recycling facilities that are more modern than some within the EU. But under the ban amendment, diese
countries would not be able to import recyclable ma terials from OECD countries even though they are assumed to have a comparative advantage in this market. A U.S. state department official also said that the ban has gone too far, noting that it has significantiy impacted Israel's recycling industry. Israel, a resourcepoor country, heavily dependent on metal-bearing waste imports, asked to join the so-called Annex VII states, including the OECD countries and Liechten stein, but was denied entry. Discussion over expand ing membership to other countries has been put on hold until after the ban enters into force. According to Harvey Alter, head of the Business Recycling Coalition in Frederick, MD, in denying rap idly industrializing countries secondary raw mate rials, die ban is "harmful to the countries who need the material most," which, he argued, explains why India, the Phillippines, and China oppose it. To the contrary, environmentalists contend that recycling "represents a perpetuation of the waste cri sis and a further excuse for unsustainable consump tion and wastefulness," insisting that the ban will en courage clean production methods using a minimum of toxic materials and creating a minimum of waste (2). But the Basel Convention does ban exports for recycling unless an environmentally sound manage ment (ESM) system is in place, implying that any re sidual materials could be handled properly. This is something industry wholeheartedly supports. "ESM is a pillar of the convention, and we're great believ
A pending controversial ban on trade in hazardous recycla ble waste puts some countries who rely on secondary raw materials, such as those in printed circuit boards, at a disadvantage.
ers in it," Alter said.
OECD countries currently account for 80% of the global hazardous waste recycling trade, the value of which is estimated at $25 billion per year. Europe ac counts for 50% of this intra-OECD trade, the United States for 33%, Canada for 10%, and Japan for 2% (3). The total mass of wastes annually crossing OECD bor ders on their way to recovery operations stands at an estimated 200 million tons (4). However, a large amount of hazardous waste is in creasingly being generated in developing countries, par ticularly China, India, and South American nations, noted Andre Bourassa, a vice president at the Interna tional Council on Metals and die Environment. Basel's next 10 years Whereas the first 10 years of the Basel Convention suc ceeded in putting hazardous wastes and the implica tions of their indiscriminate disposal on the global agenda, "the second decade must be one of imple mentation," Topfer said at the COP5 meeting. And "a clean production convention must be the main aim," Topfer said. "It is imperative to come step-by-step to an integrated life-cycle approach and to leave behind us the throw-away-based society." Producer responsibility and waste prevention through environmental management and the use of clean technologies will be key for decoupling eco nomic growth and hazardous waste production, said Svend Auken, the Danish environment minister. The forward-looking ministerial declaration adopted at the COP5 meeting outlined several focus areas for achieving this goal, including prevention, minimi
zation, recycling, recovery, and hazardous waste dis posal; cleaner technologies and production meth ods; further reduction of transboundary shipments of hazardous waste; prevention of illegal traffic; and further capacity building and technology transfer to aid compliance with the technical, legal, and insti tutional requirements for the ESM of hazardous wastes. Environmentalists voiced their approval of the declaration, particularly the emphasis on waste min imization. "With more emphasis on prevention and clean production, recycling could be reduced tre mendously, and we see this as the only ultimate so lution to the hazardous waste crisis," said Kevin Stairs of Greenpeace International. Industry offered its sup port of the declaration as well, particularly the rec ognition of ESM. References (1) Tolba, M. K.; Rummel-Bulska, ,I Global Environmental Di plomacy: Negotiating gnvironmental Agreements for the World, ,973-1992; ThT MIT Press: London, 1998; pp. 98 and 122. (2) The Basel Ban: A Triumph for Global Environmental Jus tice; Basel Action Neework, Briefing Paper Noo ., Dec. 1999. (3) Waste Management, Organization for Economic cooper ation and Development, www.oecd.org/env/waste/ index.htm (accessed March 2000). (4) Main Achievementtsf the OECD Waste Management Pro gram; Organization for Economic Cooperation and De velopment. www.oecd.org/ehs/waste/achieve.htm (accessed March 2000). Kris Christen is an assistant editor or ΕS&T. JULY 1, 2000 / ENVIRONMENTAL SCIENCE & TECHNOLOGY / NEWS • 3 0 5 A
