Waste exporters lose battle of Geneva - but the fight over scrap metal goes on

A ban on all hazardous waste exports from OECD to non-OECD countries by 1997 was agreed after fierce debate at a meeting under the Basel Convention in Geneva in March. Scrap metal traders responded by predicting that the world's metal industries will come to a halt, but some secondary metal producers are more sanguine. Crucial negotiations over the next three years over differences in the definitions of what is "hazardous waste" under the Convention and OECD and EC law will determine how much of the trade in waste for recovery will continue. Meanwhile, the UK Government is likely to announce soon whether it will live up to its promises and ban imports of hazardous waste for disposal from industrialised countries.

Events do not always turn out as planned. Back in 1985, the OECD recommended the establishment of an international convention to regulate the then rapidly growing trade in hazardous waste. What it envisaged was a system of prior notification of waste movements to allow transit and importing countries to decide whether they wanted to accept a particular consignment, backed by liability and insurance provisions in case something went wrong (ENDS Report 123, pp 11-13).

However, as ENDS commented at the time, "nobody is pretending that the move to strengthen controls on transfrontier waste shipments will begin and end with the establishment of a consignment note system. On its own, this would do little to reduce the incentive created by differences in national disposal standards and their enforcement to move wastes from one country to another." Events have indeed taken the regulation of the waste trade well beyond what was envisaged in 1985.

The OECD's prompting led to the adoption of the UN Basel Convention on the control of transboundary movements of hazardous wastes in 1989. The first conference of parties followed in December 1992 (ENDS Report 215, pp 37-38 ).

Recycling sham
At that meeting, Greenpeace, backed by several industrialised nations and the G77 group of developing countries, called for a complete ban on hazardous waste exports to non-OECD states, arguing that there was no way of guaranteeing that they would be dealt with in a safe manner. A major issue then, as in 1985, was that of waste shipped under the guise of recycling but often being dumped or recycled with little regard for the health of workers or the environment. Greenpeace's campaign has shown that the illicit trade is thriving under the cover of legitimate exports, and the group has produced numerous case studies exposing so-called recycling operations as a sham.

Greenpeace reaped the reward for its campaigning at the second conference of parties to the Convention, held on 21-25 March in Geneva. This reached a consensus to adopt a complete ban on hazardous waste exports from OECD to non-OECD countries. The group hailed the decision as "a striking victory for global environmental justice".

In the UK, the run-up to the meeting brought strong pressure on the Government to agree to the ban. Labour and the Liberal Democrats urged it to join the majority of OECD states in agreeing to ban exports of all hazardous wastes to non-OECD countries, whether for disposal and recovery.

Church intervenes
Less predictable was the ecumenical theme of the proceedings. Just before the Geneva meeting and following closely on Environment Secretary John Gummer's much publicised conversion to the Catholic faith, the Archbishop of York and seven bishops took issue in a letter to The Times with the Government's claim that exporting wastes for recovery to developing countries "offers environmental benefits provided that adequate environmental standards are maintained."

They countered: "We disagree. This is an issue of justice and of our taking responsibility for our own actions. Jesus said: `Do to others as you would have them do to you.' If the UK economy produces toxic waste, we should remain responsible for it. The UK should do all in its power to avoid the exploitation of countries that do not have the resources and infrastructure to enforce strong environmental standards."

Few were betting that the UK would convert to the cause. Going into the meeting, it was one of seven OECD states refusing to commit to a ban. But at the EC Environment Council in Brussels which coincided with the end of the Geneva meeting, Mr Gummer was won round - because, according to official reports, the G77 coalition wanted it.

Danish initiative
The issue was put on the agenda by the Danes, who had pledged at the first conference of parties to press their EC partners to agree to a ban. The Danes tabled a proposal that this should take effect from the end of 1996. The G77 group had earlier proposed 1995 as the phase-out date. But the final version that won the reluctant backing of the most intransigent parties - the UK, Germany and the European Commission - stipulates a phase-out date of 31 December 1997.

The EC decision was submitted to the Geneva meeting, where proponents of a ban were also pressing for backing from Canada, Australia and Japan. They were hindered by lobbying by the USA, which is not a party to the Convention. The change in the phase-out date to 1997 was just enough to win them round, enabling the decision to be made by consensus. This was politically important because the three countries had reportedly threatened that if they were seen to lose a vote they would not contribute funding to the Convention.

The decision is based on the presumption that "transboundary movements of hazardous wastes from OECD to non-OECD states have a high risk of not constituting an environmentally sound management of hazardous wastes as required by the Basel Convention."

As an interim measure, the decision provides that until the end of 1997 any non-OECD country which has not banned waste imports and wants to permit them for the purpose of recovery should inform the Convention secretariat. In doing so it must specify the categories of wastes it considers acceptable, the quantity to be imported, the recovery process to be used, and the disposal route for residues from the recovery operation. The UK also repeated earlier pledges that it will seek to ensure the "environmentally sound management" of wastes exported for recovery in the interim period (ENDS Report 228, p 34 ).

Surge in landfilling?
The events in Geneva appear to have caught the British Secondary Metals Association (BSMA) flat-footed. The chairman of its international committee, Robert Voss, told ENDS that "the UK Government appears to have taken an absolute U-turn without any consultation. We do not understand why they have taken that attitude."

Most of the UK's waste exports for recovery are thought to constitute metal-bearing residues, although no official statistics are available to confirm this. Environment Minister Robert Atkins said earlier this year that total hazardous waste exports to non-OECD countries for recovery amounted to 16,300 tonnes in 1991, but only 8,196 tonnes in 1992 (ENDS Report 228, p 34 ). The BSMA estimates that its total exports for recovery are worth £1 billion annually to the UK economy.

Prior to the Geneva decision, Mr Voss had told ENDS that the countries in favour of a ban had not appreciated its full consequences. Following the decision, he predicted that developing countries would be deprived of large quantities of raw material which, if mined, would have much bigger financial and environmental costs. He also warned of a massive increase in dumping of low-value metal residues in the landfills of industrialised countries.

Definitional differences
Despite such protestations, for EC countries at least the Geneva decision may not in fact be the blanket prohibition it has been made out to be. The key distinction to make is that the decision applies only to hazardous wastes and not others. But the Convention and the EC's rules define these differently.

Under the Convention, wastes considered hazardous are listed in its Annexes I and II. Wastes listed in these sections are automatically treated as hazardous unless they do not possess any of the characteristics listed in Annex III, such as toxicity, ecotoxicity, flammability and corrosivity.

However, under Article 11, the Convention provides for national and regional laws to regulate traffic in waste between Convention parties, as long as those rules "are compatible with the environmentally sound management of hazardous wastes and other wastes as required by this Convention."

The EC's waste shipment rules are embodied in a 1992 Regulation (ENDS Report 213, pp 31-34 ). This will come into force on 6 May, enabling the EC to ratify the Basel Convention two days later.

Red, amber and green lists
The distinction between hazardous and non-hazardous wastes under the EC Regulation is taken from a 1992 OECD Council Decision on transfrontier movements of waste destined for recovery. This lists wastes under three headings: red, amber and green. The first two categories are regarded as hazardous, while wastes on the green list are generally accepted as non-hazardous. Correspondingly, shipments of red list wastes are subject to the most stringent notification procedures, while amber list wastes are subject to a fast-track version of these.

Green list wastes are subject only to the controls of normal commercial transactions. The preamble to the EC Regulation states that they "shall be generally excluded from the control procedures of this Regulation since such waste should not normally present a risk to the environment if properly recovered in the country of destination."

The Department of the Environment (DoE) believes that the Regulation will not have to be amended in order to give effect to the Geneva decision. Although the Regulation allows for exports for recovery of hazardous and other wastes in line with the OECD classifications, it also stipulates that the export arrangements "shall guarantee an environmentally sound management of the waste in accordance with Article 11 of the Basel Convention." The presumption behind the Geneva move - that there is a high risk that hazardous waste shipments to non-OECD countries will not be handled in an environmentally sound manner - thus extends to the EC Regulation.

DoE plays it cool
In January, the European Commission initiated a survey of non-OECD countries to seek written confirmation of their policies on waste imports. They were given the options of continuing to receive green list wastes as normal commercial transactions, subjecting them to the more stringent controls of amber or red list wastes, or stopping imports altogether.

According to the DoE, if an EC country wants to ship a green list waste to a non-OECD country that is happy to receive it under that classification, then the transaction will be unaffected by the Geneva decision. The DoE therefore believes that secondary metal traders have exaggerated the impact of the decision, since the existence of the green list should enable the majority of their waste business to continue unabated.

However, the DoE does accept that there will be a hiatus until responses to the Commission's questionnaire have come in from importing countries - few have done so to date - and that the interim arrangements leading up to the entry into force of the Geneva decision will add to the confusion.

The Convention secretariat told ENDS that the question of wastes on the OECD's green list will have to be resolved in the period leading up to the ban. "Now that the political decision has been taken, it is important that there are no loopholes," an official commented. "No exceptions will be permitted after 1 January 1998."

Overall, it is possible that exports of some green list wastes will be permitted after 1997, provided they do not contradict the Convention's definition of hazardous waste. The hope is that careful scrutiny of exports over the next three years will pinpoint those likely to cause problems in legal terms. Parties to the Convention are required to report on the application of the Geneva decision to a committee which will meet for the first time later this year to consider these issues.

The key difference between the Convention's and OECD's approaches to defining hazardous wastes is that the former classifies materials according to their intrinsic hazardous properties, while the OECD system is based on risk rather than hazard. It applies the distinction of whether wastes are likely to be dispersible or not in their normal state. For example, lead waste and scrap appear on the OECD green list and are by definition non-hazardous, while lead ash and residues appear on the amber list and are therefore considered hazardous.

Greenpeace has long argued that the distinction on the basis of dispersibility is impractical. In a report submitted to the first conference of parties, it described cases where exported metals such as ferrous wastes had been found to be contaminated with other heavy metals. It pointed out that "as no analytical testing is required as either part of the Basel Convention or the OECD Decision, it is unlikely that any restriction would ever be placed on [such an] export." The group also argues that even if wastes sent for recovery are not hazardous, they often give rise to hazardous residues during the recycling process.

Scrap traders fight back
Greenpeace considers that the EC was unwise to use the OECD lists as the basis for its Regulation. And, following the Geneva decision, it argues that the Regulation can remain consistent with the Convention only if it is amended to incorporate the Convention's definition of hazardous waste for all exports to non-OECD countries, even if the red, amber and green lists remain in use for waste traffic among OECD countries.

What really concerns secondary metal traders is the prospect that most developing countries may decide that green list wastes should be treated as amber or red list wastes, making them subject to the ban. The BSMA says that 95% of the wastes its members export are on the green list. Mr Voss told ENDS that if these "come into a ban on international recovery the entire metals industry - I mean both primary and secondary - will grind to a halt within a very short time. It would cause a worldwide catastrophe."

The industry will now be stepping up its efforts to overcome the ban. The Bureau for International Recycling (BIR) is lobbying to have ferrous scrap and non-ferrous wastes removed from the OECD's green list. It argues that these are in fact products that can be re-used, once subjected to recycling, and should not be classed as waste at all.

However, a DoE official commented that although this proposition is "certainly a topic of discussion both in the EC and OECD, there is no immediate prospect of that happening". One obvious obstacle is that a change in the OECD definition would contradict the EC framework Directive on waste.

Apocalypse or market adjustment?
Not everyone in the secondary metals industry takes the same apocalyptic view as the BSMA about the implications of the Geneva decision. The British Non-ferrous Metals Association (BNMA) commented that these would vary for each of the dozen or so metal sectors. In the case of copper, for example, it believes that a ban on exports to non-OECD countries might help to avoid outflows of valuable secondary materials which currently go to countries prepared to pay the highest price for them. The BNMA says that it would be imprudent to prejudge the impact of any restriction in the market given that many commercial factors are involved.

The Lead Development Association (LDA), which represents secondary lead smelters and consumers of recycled lead, foresees no major problems in accommodating waste currently sent to non-OECD countries at recycling facilities in the UK or Europe. Neither does it believe that an export ban would result in a surplus of lead on the market, given that western Europe has been a net importer of lead in four of the last five years.

The LDA said it has no current data on the quantity of waste sent to non-OECD countries from the UK, but a spokesman added that he was certain it was only a very small proportion of the total amount recycled each year. In the case of used lead batteries, he estimated that it was well under 10% of the 80,000-100,000 tonnes of lead recovered from this source.

Greenpeace used the example of shipments of car batteries to south-east Asia and Brazil as a case study in its campaign to ban exports for recovery to non-OECD countries. It estimates that the UK exported 3,406 tonnes of lead waste - including batteries - to 11 countries in 1993, with the Philippines, Indonesia, India and Brazil being the main destinations.

A Greenpeace report says that "the crudest conditions" were found at battery recycling facilities in south-east Asia. For instance, at "a small factory in the back streets of Manila it was almost impossible to breathe because of sulphuric acid fumes. Lead waste and sulphuric acid drained into open drains in the surrounding area and slag from the smelter was dumped on open ground next to the plant." The group says that "by exploiting lower environmental standards in the Third World, traders can get a higher price for batteries and avoid the high cost of pollution technology and safety regulations enforced in British smelters."

Commenting on the report, the LDA said that Greenpeace had "obviously talked to a number of countries where there are at least questions that can be raised. I do not know how accurate they are or how serious are the effects that are being reported. I can see legitimate concern if materials are being sent to plants which are not adequately equipped for treatment."

Financial guarantees
Aside from the Basel Convention meeting, there were other items on the waste trade agenda in March. The DoE released draft regulations and an accompanying circular which will implement the EC Regulation.

Several industry spokesmen bemoaned the confusion surrounding the implementation of the Regulation by other Member States, and the unclear definition of what constitutes "environmentally sound management" of waste - a point which is still being clarified by the Convention secretariat. But apart from such general concerns, the main beef of both the BSMA and the National Association of Waste Disposal Contractors (NAWDC) is the new system of financial guarantees.

The Regulation provides that "a financial guarantee or equivalent insurance" must accompany waste movements, so that if a shipment cannot be completed within the authorised terms, the cost of returning the waste or of making alternative disposal or recovery arrangements would be covered. The guarantee system does not apply to green list wastes as the EC Regulation excludes these from its controls, as described above.

The DoE's draft circular notes that the Regulation does not specify whose responsibility it is to provide the financial guarantee. But its interpretation is that "at the notification stage the only person with whom the competent authorities will have direct contact is the `notifier'." Thus the guarantee "will normally be obtained by the person wishing to ship the waste."

The DoE plans to implement these provisions by means of a certification system. Wastes will not be allowed to enter or leave the UK unless the relevant authority has issued a certificate stating its satisfaction with the guarantee provided.

NAWDC acknowledges that many of its criticisms of the guarantee system are levelled more fairly at the EC Regulation itself than at the UK's implementation of it. But it regards the introduction of a separate certification system as "a needless complication, as it appears that not only will the movement have to be processed but also the linked certification system for a financial guarantee." It suggests that the system could be simplified by viewing it as "a single measure applying to many movements", but concedes that "the fact that each movement is an individual case requiring assessment of its particular circumstances tends to make that unlikely."

Decision on imports
Missing from the proposals was any indication whether the Government will continue to allow waste imports from other industrialised countries. Over the past two years it has given ample grounds for believing that it will not. In May 1992, junior Environment Minister Tony Baldry told the Commons that the UK "is opposed in principle to the continuing import of hazardous wastes from developed countries. In principle, imports of such waste should continue only in respect of developing countries" (ENDS Report 209, p 23 ).

Of the 45,307 tonnes of hazardous waste imported into England and Wales in 1992/3, 72% came from other EC countries and 26% from EFTA states. The top three sources were Belgium (9,417 tonnes), Germany (9,198 tonnes) and Switzerland (8,334 tonnes).

While, strictly speaking, there is no obligation on the Government to clarify its policy on imports by the time the EC Regulation is brought into force on 6 May, officials acknowledge that it would be "highly desirable" for a decision to be taken by then, given the jitters of waste operators.

Incinerators at risk
Of the UK's hazardous waste management companies, two - ReChem and Cleanaway - have lobbied the DoE hard on the issue. Both have already suffered a loss of income because of the recession, and now face a new challenge from the increasing diversion of solvent wastes to cement kilns. Also facing a significant loss of business from any import curbs are Leigh and Lanstar (ENDS Report 228, p 34 ).

Import restrictions would affect ReChem more deeply than Cleanaway, which imports little waste. One-third of ReChem's throughput comes from abroad. The firm argues that even if immediate steps were taken by exporting countries to become self-sufficient in incineration capacity, it would take up to ten years to obtain the necessary permits and build new units.

Its position, the firm says, would be different if the UK's waste disposal standards were as high as those in parts of northern Europe. ReChem's parent company, Shanks & McEwan, recently published a study which argued that 100,000 tonnes of the UK's annual hazardous waste arisings should be diverted from landfills to other routes such as incineration which were judged to be the "best practicable environmental option".

This would be more than enough to keep the UK's incinerators burning round the clock. The Government could, of course, divert some wastes to incineration by changing its mind and accepting the proposed EC ban on co-disposal landfills. But on present form it is more likely to devise some means of allowing hazardous waste imports to continue - while knowing full well that this would look like another broken promise.

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