Basel Amendments Create Uncertainty In Global Plastics And E-Waste Markets – Environment

After what seemed like a distant obligation in May of 2019, and
overshadowed by an increase in plastic usage while managing the
virus in 2020, the plastics amendments decision to the Basel Convention will take effect in
January 2021 (the Plastic
Amendments).

Unfortunately, it seems that the Plastic Amendments provide more
questions than answers in how global markets will adjust to these
profound changes surrounding end-of-life plastics and products
containing plastic – including electronics and other consumer
goods.

What do the plastics amendments do?

Under the Plastics Amendments, end-of-life plastic waste, both
homogenous and mixed streams, will now be regulated under the Basel
Convention (subject to some exemptions) and their transboundary
transfer will either be:

• Prohibited as “hazardous”;
  or




• Controlled by domestic regulators
  through disclosure/Prior Informed Consent (PIC) requirements as
  “other wastes”.

Gone are the days of unregulated transfers of mixed (often
municipal) plastic wastes which became the subject of minor
international incidents in the months leading up to the Plastics
Amendments. But how do exporters of end-of-life plastics know
whether their material is banned, controlled, potentially exempt
under the convention, or otherwise not considered a waste at
all?

Convention “wastes” include resource recovery
materials

As a transboundary waste transfer agreement recognizing
“the need as far as possible to reduce such movement to a
minimum”, material is deemed a “waste” under the
convention when subject to a broad spectrum of treatments –
including both various disposal-related activities, as well
“operations, which may lead to resource recovery,
recycling, reclamation, direct re-use or alternative
uses”.

Unlike some domestic enabling legislation, the Basel Convention
does not have a companion agreement on recyclables so all
end-of-life processes are grouped together.  Further, the
Plastics Amendments have meant that there are now multiple avenues
for many post-consumer products containing plastic to fall under
the convention.

Reverse onus to prove not hazardous

Where the material is a waste, the Basel Convention may deem it
“hazardous” under broad, inclusive categories by:
 

• Direct listing of many conventional
  waste streams; or




• Combination of waste:
  

  • from defined activity or containing
    (any level) of listed substances; and

  
  

  • capture within certain United Nations
    Dangerous Goods Classes.

There is an ability to rebut the effective presumption that a
waste is hazardous but it may be more trouble than it’s worth
for exporters managing waste streams of varying composition,
including mixed plastics now subject to PIC requirements. 
Until recently, a hazardous designation was not fatal to the
possible export of such materials to developing world markets for
circular economy activities, but this has since changed.

Basel Ban Amendment on hazardous waste recycling in developing
world

In September of 2019, Croatia became the 97th signatory to the
“Basel Ban Amendment”, thereby entrenching a prohibition
against the transfer of hazardous wastes, for whatever purpose,
from the Organisation for Economic Co-operation and Development
(OECD)/ European Union (EU) Parties to developing world
nations.

In respect of products containing plastic (such as electronics),
this may mean very few Basel Convention non-OECD countries will be
willing to receive such wastes in potential violation of the
convention and transits to such countries through a non-convention
country such as the United States are also prohibited.

Other wastes and the exemption test

The majority of post-consumer plastic wastes will likely either
fall into the convention’s “other wastes” category
– which are subject to controlled mechanisms such as
shipment-specific PIC requirements or be exempt from these
mechanisms. The exemption test is whether the plastic waste is:

As to the meaning of “almost free of contamination and
other types of wastes”, the Plastics Amendments only note
cryptically “international and national specifications may
offer a point of reference. Unfortunately, the Secretariat has yet
to issue relevant guidance, but it would seem that plastics mixed
with paper, metals or glass, as well as products containing both
plastics and other “waste” materials such as some
electronics, would likely be “other wastes” where they
are not otherwise hazardous.

Further, only certain specified plastics streams which meet the
exemption test will be free from the Basel Convention control
mechanisms.

Due diligence required on the importer

Convention compliance is not assured even when an exporter has
managed to meet the requirements to establish that the transferring
materials are merely “other wastes” and has obtained PIC.
 Specifically, the Basel Convention further prohibits the
transfer of non-hazardous wastes where the exporter has reason to
believe that the wastes will not give “environmentally sound
management” (ESM), which is generally:

But how is an exporter to recognize ESM or its absence from
distant shores? For example, the Agbogbloshie e-waste recycling
site in Accra, Ghana is praised by some as model of local
opportunity in resource recovery, but has also been plagued by soil
contamination issues.

A rise in illegal traffic of international waste

The result of any attempts to skirt the full requirements of the
convention as it relates to plastics may draw a determination of
“illegal traffic”, which will have both domestic and
international implications for the exporter.

Of particular concern are shipped wastes deemed to have
been:

• misrepresented;




• don’t “conform in a material
  way” with the manifest documents; or




• result in deliberate disposal (i.e.
  dumping) in contravention of:
  

  • the Basel Convention; or

  
  

  • “general principles of
    international law”.

In other words, the contents of the shipments must get a fully
description and all material must fully conform to such
description. The host country regulator, now a direct participant
in waste transfers, will ensure this takes place.

With the Plastics Amendments, exporters of end-of-life plastics
should be aware that the Basel Convention includes a “Protocol on Liability and Compensation“,
which exposes export nations (and indirectly domestic recycling
industries) to potentially significant damage claims for improper
exports under the Basel Convention. The stakes in the trade of
global plastics and e-waste have risen considerably.

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