Redistributed as a Service of the National Library for the Environment*
Waste Trade and the Basel Convention:
Specialist in Environmental Policy
December 30, 1998
The volume of wastes transported from generating nations for disposal in foreign countries increased markedly in the 1980s as the United States and other highly industrialized nations implemented laws which placed tighter restrictions and imposed higher costs on the domestic disposal of hazardous and other wastes. Although much of the trade in hazardous wastes has occurred among industrialized nations, companies worldwide have shipped a variety of wastes from developed nations to developing nations at relatively low cost. Frequently, transactions have been legal, with authorized government officials accepting the wastes, but too often, the disposal has been arranged between private parties without the advice, knowledge or consent of the recipient governments. Numerous incidents have occurred where wastes were illegally or inappropriately used or dumped, resulting in health and environmental problems for local communities. In the late 1980s, a flurry of such incidents in developing countries made waste trade a politically charged international issue and prompted nations to address this issue unilaterally and through bilateral, regional, and international agreements.
Despite incidents of improper waste management. proponents of continued, but regulated, waste trade cite environmental and economic reasons to support their position, including: 1) geographic proximity of appropriate treatment facilities in another country, 2) the availability of newer, more cost-effective technologies, 3) economies of scale, 4) the lack of a suitable facility in the country of generation, and 5) the beneficial re-use of secondary materials, instead of virgin materials. for economic development. Proponents include many industrialized nations, various developing nations, and recycling industries.
Those generally opposing waste trade (including numerous developing nations, several European nations, and a few environmental groups) counter these arguments with their own which include: 1) the difficulty of enforcing an international regulatory regime, 2) past experiences where toxic wastes have been improperly labeled as recyclable or nonhazardous. 3) the technical and legal inability of many developing nations to monitor and manage waste shipments and 4) the concern that exporting wastes may undermine the regulatory incentives for waste generators to minimize waste production and diminish interest in research and development of cleaner production technologies.
U.S. Waste Export Controls
Since 1984, the Resource Conservation and Recovery Act (RCRA, Section 3017) has imposed some restrictions on the export of hazardous wastes from the United States. The statute requires that, for wastes defined as hazardous under RCRA, any potential exporter must give prior notice of the waste shipments composition and quantity (including a description of how the waste is to be treated or disposed) to EPA, which must the inform the proposed recipient country. EPA must receive written documentation of that country's informed consent. If consent is given, EPA forwards the written consent to the exporter, who may then proceed with the transaction. In 1986, EPA promulgated regulations implementing these statutory provisions. These waste export regulations are administered jointly by the EPA and the State Department.
Critics have pointed to several gaps in the federal government's authority to control hazardous waste export. Primarily, they note that once a foreign government consents to receive hazardous waste, no provisions exist for monitoring the waste to its final disposal. Nor does RCRA authorize the federal government to consider the recipient nation's ability to control the use or disposal of the accepted waste. Another major concern is that U.S. law does not regulate the transboundary shipment of waste that is not defined as hazardous, including medical waste, municipal incinerator ash, and municipal solid waste.
EPA estimates that less than 1% of hazardous waste generated annually in the United States is exported. In an average year, roughly 95% of the amount exported remains within North America, with most of that amount going to Canadian facilities for disposal or recovery operations. Some waste goes to Mexico for recycling or recovery; however, Mexico prohibits the importation of wastes for disposal. In 1995, the most recent year for which statistics are available. EPA reports that countries that received smaller amounts of hazardous wastes from the United States for reuse and/or recycling (i.e., not disposal) included Finland, France, Japan, Sweden, and Switzerland.
EPA notes that commercial interest in shipping hazardous wastes to developing countries began increasing in the late 1980's, although most prenotifications for shipments were rejected by the prospective recipient countries. Since then. interest appears to have decreased, partly because of the negative attention hazardous waste trade has received and also because of national and international efforts to control this activity.
The key international effort to control waste trade was the development of the Basel Convention on the Control of the Transboundry Movement of Hazardous Wastes and Their Disposal. The United States played a key role in crafting the Convention which was agreed to by 116 countries :n March 1989. Thirty-five countries signed immediately and the United States added its signature in 1990. The Convention entered into force in May 1992. As of June 1998, it had been ratified by 121 countries, including Canada, Mexico, and the European Union, but not the Untied States.
The Basel Convention's key purposes are: 1) to encourage the environmentally sound management of hazardous wastes, and 2) to protect developing countries from receiving hazardous wastes without prior informed consent. The Convention was crafted to maintain flexibility for safe transboundary movements of waste among nations with existing environmental protection programs, and to prevent the shipment of waste to inappropriate facilities in countries without the means to control management and disposal activities. The treaty covers all wastes defined as hazardous by the originating, receiving and transit countries. It also covers medical wastes, municipal solid waste and incinerator ash which are not considered hazardous under U.S. law. It adopts RCRA-like obligations of prenotification to and approval by, importing as well as transit countries, and expands beyond RCRA the information required in prenotification and shipment documents. The Convention also obliges Parties not to engage in waste trade with non-Parties unless a compatible bilateral or regional agreement is in place.
Bilateral and Regional Agreements. In March 1992, the Organization for Economic Cooperation and Development (OECD) adopted the OECD Decision on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations. The Decision establishes a three-tiered system for controlling the intentional shipment of wastes to recycling facilities located within OECD countries. In April 1996, EPA issued a final regulation implementing the OECD Decision for RCRA-regulated wastes.2 The purpose of the Decision is to establish a regional agreement consistent with the Basel Convention. Consequently, the United States is able to continue trade in recyclable wastes with OECD countries that have ratified the Convention even though the United States is not a Party to the treaty. Because the United States already has in place bilateral waste trade agreements with Canada and Mexico, the EPA regulation implementing the OECD Decision does not apply to waste shipments sent to or received from Canada or Mexico.3 The United States also has entered into agreements with Malaysia and Costa Rica (both Basel Parties) to allow those countries to ship hazardous wastes to the United States.4
Trade ban Amendment Some countries and environmental groups (primarily Greenpeace) preferred an outright ban on hazardous waste shipments, particularly to developing countries and were dissatisfied with the Basel Convention. In September 1995, at the third Conference of Parties to the Basel Convention (COP III), participating nation's approved an amendment to the Convention that would ban the export of hazardous wastes from highly industrialized countries (specifically, OECD countries and Liechtenstein) to all other countries.5 The amendment first would ban the export of hazardous wastes destined for final disposal (effective immediately upon entry into force of the amendment) and then would ban the export of such wastes destined for recovery or recycling (effective 90 days after entry into force of the amendment). Three-fourths of the voting Parties at COP III must ratify the amendment before it enters into force. As of February 1998, seven European countries had ratified the ban amendment, while most other countries awaited the results of a technical working group's effort to develop the list of wastes, including recyclables, to be considered hazardous under Basel and, thus, covered by the ban. By late 1998, one additional country had ratified the ban.
Although not a Party to the Convention, the United States has been permitted to participate in the meetings and on technical working groups. During the debate on the ban, the United States generally supported a ban on exporting wastes destined for disposal, but took the position that a ban on the shipment of wastes destined for recycling could be a non-environmentally based barrier to trade, and that legitimate trade in recyclable materials should be permitted under Basel.6 A concern was that a broad ban on the shipment of wastes to developing countries for recycling would deny those countries' access to secondary materials and put pressure on virgin materials or hamper certain industries important to economic development (e.g., the steel industry). Countries favoring the ban cited their interest protecting developing countries from unwanted imports, as these countries often lack the financial technical, legal and institutional capacity for monitoring waste shipments and preventing illegal imports. According to the U.N. Environment Program, the ban is partly intended to help remedy weaknesses in developing countries waste import bans and to encourage waste minimization.
This contentious and complex matter was partially addressed at the fourth Conference of Parties in February 1998. There, the Parties agreed to a list of hazardous wastes (the A list, contained in Annex VIII of the Convention) that would be subject to the Convention, and thus covered by the ban, and a list of non-hazardous wastes (the B list, contained in Annex IX) that would be exempt from the ban as wastes that can be safely recycled or reused (e.g., scrap iron, steel or copper ceramics, certain plastics, and pa per and textile wastes). Although the Parties have resolved the issue of which wastes are covered by the Basel Convention, it remains uncertain whether countries will now move quickly to ratify the ban. Reportedly, a number of developing countries have begun to consider that the ban could have a negative impact on their economic development.
In 1994, the Clinton Administration sent to Congress a statement of principles on waste exports for use as the basis of Basel implementing legislation. The principles ultimately called for a ban on exports of all hazardous waste, municipal waste, and municipal incinerator ash outside of North America with exceptions to be decided by the President in limited circumstances. As explained by the EPA Administrator, these principles would ensure that wastes are managed close to where they are generated and would permit the government to monitor the environmentally sound management of any exported wastes.8 The principles would allow wastes to he exported to OECD countries for recycling for 5 years and then, with exceptions permitted, would ban waste exports to all nations outside of North America.
The 1995 Basel ban amendment caused major U.S. recycling industries to withdraw their support for ratification of the Basel Convention, largely because the ban drew what were perceived to be arbitrary distinctions between developed and developing countries. In addition to the ban amendment, the uncertainty about which potentially recyclable wastes would be covered by the Convention, and thus banned from trade, further contributed to the lack of interest in Basel ratification. Consequently, the Administration has not sought congressional action on the Basel Convention in recent years. Now that the lists of Basel-covered wastes have been adopted (generally satisfying business and environmental groups), the Administration is considering ratification, and has stated that it would offer a legislative proposal during the first session of the 106th Congress. The Administration is expected to adhere to its 1994 principles which are more restrictive than the Basel ban amendment which was opposed by recycling industries and supported by some environmental groups (primarily Greenpeace). In the past, industry and the Departments of State and Commerce have favored implementing legislation that meets the requirements of the 1989 Basel Convention without the ban amendment.
The Senate consented to ratification of the Basel Convention in 1992; however, the Administration had stated that changes to domestic law were needed before the United States could deposit its instrument of ratification.9 The 102nd Congress considered the Bush Administration's proposal to implement the Basel Convention but legislation was not passed. Although there appeared to be broad support for strengthening U. S. controls over waste trade, no consensus emerged before the 102nd Congress adjourned.
The l03rd, l04th, and 105h Congresses did not consider Basel legislation. A key issue for Congress (as with the Administration) concerned the Convention's treatment of recyclable materials. With the loss of industry support after the ban was adopted, congressional efforts to ratify Basel virtually ceased.10 However, during the 2nd session of the 105th Congress, Basel Parties resolved the issue of which recyclable wastes are exempt from the Convention. Subsequently, the House Commerce Committee and the Senate Environment and Public Works Committee expressed interest in taking up implementing legislation, but have waited to hear the Administration's current position on Basel implementation. Given the Administration's stated interest in Basel, this matter may be taken up in the 106th Congress.
Notwithstanding the fact that the United States has not ratified the Basel Convention, U.S. waste trade has become more controlled as those countries participating in the Convention are prohibited from engaging in trade with the United States in the absence of a compatible bilateral or regional agreement. With such agreements now in place with major U.S. waste trading partners, and with U.S. wastes increasingly being managed within North America the practical need for formal U.S. participation in the Convention appears to have declined. Nonetheless, the United States is the only OECD member that is not a Party to the Convention, and is limited in its ability to influence developments at Basel meetings. Moreover, numerous Basel Parties that are not OECD members have expressed interest in engaging in waste trade with the United States.
1 Because U.S. law does not authorize EPA to regulate the shipment of wastes that are not considered hazardous under RCRA, EPA has not collected data on this trade. Some data on waste materials imported into the United States are included in the General Accounting Office report, Solid Waste: State aid Federal Efforts to Manage Nonhazardous Solid Waste, GAO/RCED-95-3. Additionally, information on Canadian solid waste shipments to U.S. landfills is available in CRSR report 97-349 ENR, Interstate Shipment of Municipal Solid Waste: 1997 Update.
2 The purpose EPA notes that "this rule does not increase the scope of wastes subject to U.S. export and import controls: it does, however, modify the procedural controls governing their export and import when shipped for recovery among OECD countries." (61 FR 16290) however, for wastes not defined as hazardous under RCA but defined as hazardous by another OECD country, "U.S. parties would need to comply with the provisions of the Decision as implemented by the other OECD country." (61 FR 16303)
3 The waste shipment agreement between the United States and Mexico (Annex III to the 1983 Agreement between the United States of America and the United Mexican States on Cooperation for the Protection and Improvement of the environment in the Border Area, commonly called the La Paz Agreement) requires that hazardous wastes generated in Mexico by maquiladora industries using raw materials from the United States must be shipped back to the United States.
4 On March 4, 1996, the U.S. Department of State published its "Notice to Seek Public Comment on Entering into Bilateral Agreements with Parties to the Basel Convention on the Transboundry Movements of Hazardous Wastes and Their Disposal to allow those Countries to Export Wastes to the United States Consistent with the Convention" (61 FR 8323). The notice sought comment on entering into bilateral agreements for import (but not export)of Basel-covered wastes into the United States. Numerous Basel Parties have approached the United States to enter into agreements to allow the shipment of wastes from and /or to the United States.
5 These countries are listed in Basel Annex VII. Delegates to the fourth Conference of Parties decided not to amend the Annex VII list until the ban amendment enters in to force.
6 For a review of recycling and trade in secondary materials, see Alter, Industrial Recycling and the Basel Convention, Resources, Conservation and Recycling Journal, 19 (1997) 29-53.
7 Israel, for example, has a growing recycling industry that depends on imports of wastes from Europe, and shipment of these wastes would cease if the ban enters into effect. Israel tried unsuccessfully to be included in the Annex VII list along with OECD countries and Liechtenstein so that it could continue to receive hazardous wastes for recovery operations. (This information is based on telephone communications with EPA's Office of Solid Waste, on May 6-7, 1998.)
8 Statement of Carol Browner, Administrator, U.S. E.PA. before the Global Legislators Organization for Balanced Environment, Washington General Assembly. March I, 1994.
9 U.S. Senate. Message from the President of the United States Transmitting the Basel Convention. Treaty Doc. 102-5. May 20 1991. p. X.
10 The Honorable Edolphus Towns has repeatedly introduced legislation to limit waste trade.
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