Posts

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

, ,

Written by Jonathan Cocker, Borden Ladner Gervais LLP

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:

Destined for recycling in an environmentally sound manner and almost free from contamination and other types of wastes

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:

Taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner, which will protect human health and the environment against the adverse effects, which may result from such wastes;

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

_______________________

About the Author

Jonathan Cocker, Partner at BLG LLP, provides advice and representation to multinational companies on a variety of environmental and product compliance matters, including extended producer responsibilities, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, and contaminated lands matters. He assisted in the founding of one of North America’s first Circular Economy Producer Responsibility Organizations and provides advice and representation to a number of domestic and international industry groups in respect of resource recovery obligations.

Who’s Making the Rules on Global Plastics?

, ,

Written by Jonathan D. Cocker, Baker McKenzie

There is no question that dramatic changes are coming for the supply and reverse supply chain for plastics that will impact packaging, containers, and plastic products. From resins and polymer mixes to ocean plastic clean up and waste export bans and everything in between, it is difficult to not foresee a fundamental regime shift coming for the regulation of plastics globally. But just who decides on these new rules and how will disparate initiatives and goals lead to convergence on legal standards?

EU Plastics Strategy

The first place to start is, of course, the European Union. The broad-reaching 2018 strategy encompasses the landmark 2019 Single Use Plastics Directive, targeting certain commonly disposed products and includes:

  • Bans for a number of single use plastics (cutlery, straws, etc.) where non-plastic alternatives are readily available and affordable;
  • Reduction targets for food containers and cups;
  • Ambitious collection targets of up to 90%;
  • Producer payment obligations to help fund waste management and legacy clean-up costs;
  • Labelling of some plastics, indicating how to waste dispose and alerts as to the negative environmental impacts of plastics; and
  • Consumer awareness campaigns about negative impacts of plastic litter and re-use and waste management options. 

In short, it is a policy mix impacting various parts of the life-cycle. The Plastics Strategy goes further, however, and requires of all plastics:

  • Design of recyclability;
  • Creation of markets for recycled and renewable plastics;
  • Expanding and modernizing EU’s plastics sorting and recycling capacity;
  • Mandating producer-paid initiatives to curb plastic wastes;
  • A regulatory framework for plastics with biodegradable properties; and
  • Coming regulation on microplastics across a number of industries.

This relatively comprehensive set of product and supply chain requirements would apply to both inbound and outbound products, leaving little room for global plastics industry stakeholders to remain untouched by these coming standards.

Ellen MacArthur’s “New Plastics Economy”

What the Ellen MacArthur Foundation lacks in regulatory authority, it more than makes up for in ambition. The seminal publications on a “New Plastics Economy” involves macro-level systems to remake supply/reverse supply chains. Overall, it’s mission is described as follows:

  • Elimination of problematic or unnecessary plastic packaging through redesign, innovation, and new delivery models is a priority;
  • Reuse models are applied where relevant, reducing the need for single-use packaging;
  • All plastic packaging is 100% reusable, recyclable, or compostable;
  • All plastic packaging is reused, recycled, or composted in practice;
  • The use of plastic is fully decoupled from the consumption of finite resources; and
  • All plastic packaging is free of hazardous chemicals, and the health, safety, and rights of all people involved are respected.

The genius of the New Plastics Economy Global Commitment is its multi-stakeholders industry approach, enlisting some of the largest industrials and other stakeholders from across the plastics supply and reverse supply chain to make concrete, shared undertakings, thereby establishing common terms of reference and objective standards by which supply chain parties can systematize their efforts.

They’ve gone further and fostered the growth of “Plastic Pacts” in which countries are to enlist domestic industry to make commitments which exceed EU standards. The reference terms are not, however, entirely consistent, potentially creating future challenges for international industry to adopt a single compliance legal regime where long-term investment under the MacArthur Foundation model isn’t entirely exported into law.

Alliance to End Plastic Waste

January 2019 also saw the creation of the industry-led Alliance to End Plastic Waste, which has committed an astounding $1.5 Billion over the next five years with a mandate to “bring to scale solutions that will minimize and manage plastic waste and promote solutions for used plastics by helping enable a circular economy”.

To date, the Alliance appears to be focused upon funding plastics-relevant waste management projects, principally in Asia, but their heft will, no doubt, be relevant in the overall direction of plastics policy given their petrochemical representation and their planned investments. It remains to be seen when and how they might enter the plastics product design-for-environment field.

Basel Convention

Finally, the newest major entrant in the increasingly crowded field of new plastics standards is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. In addition to the deeming of most plastic wastes as controlled by the environmental and transfer protections built into the Basel Convention effective January 1st, 2021, the May 2019 resolutions also put the organization into the forefront of plastics regulation with some notable initiatives:

  • An expert working group is to be convened to consider whether to expand the categories of plastic wastes which should be classified as “hazardous” under the Convention (many will be simply classified as “other wastes” under the May 2019 resolutions);
  • A “partnership on plastic wastes” is to be convened which will include the (state) parties to the Convention, as well as certain other stakeholders (as either parties or observers) and will:
    • Engage in pilot projects and scaling exercises;
    • Assess best practices, as well as barriers, for the prevention, minimization, and environmentally-sound management of plastic waste movements; and
    • Consider options for increasing durability, reusability, reparability and recyclability of plastics.
  • A mandate to update the current Technical Guidelines which are to be a point of reference of parties’ national and international waste management and recycling standards, including how they relate to plastics.

With these goals, the Basel Convention has gone from a virtual bystander on most plastic waste issues to an aspirant for a central role, with the backing of almost all national governments (notably absent – USA). Further, the Basel Convention has overtly called for collaboration with the United National Environment Program, giving it a further platform to push through multi-lateral action on plastics. Whether the Basel Convention lacks the industry integration to remain relevant in this dynamic market, however, remains to be seen.

Where’s the Convergence?

In looking at these four major global initiatives, what’s most staggering is that they’ve all arisen in the past year, each arguably filling a vacuum on plastics stewardship to which great public animosity was paid.

While each has a somewhat different mandate and maybe all would benefit from each pursuing their own enterprises for now, there will soon be a need for convergence on the fundamentals of future plastics rules, such as permissible plastics types, hazards eliminations, recycled content minimums, environmental attributes, such as “compostable” or “biodegradable”, design for recyclability, usage bans, and reverse supply chain integration.

Without convergent, plastics industry stakeholders won’t find the market stability necessary to make any of these initiatives successful.


About the Author

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

New global rules curb unrestricted plastic waste exports

, , ,

Governments at the 14th Conference of the Parties (COP14) of the Basel Convention recently acted to restrict plastic waste exports by requiring countries to obtain prior informed consent before exporting contaminated or mixed plastic waste. A deluge of plastic waste exports from developed countries has polluted developing countries in Southeast Asia after China closed the door to waste imports in 2018.

Fourteenth Meeting of the Conference of the Parties to the Basel Convention

“With this amendment, many developing countries will, for the first time, have information about plastic wastes entering their country and be empowered to refuse plastic waste dumping,” said Dr. Sara Brosché, IPEN Science Advisor. “For far too long developed countries like the US and Canada have been exporting their mixed toxic plastic wastes to developing Asian countries claiming it would be recycled in the receiving country. Instead, much of this contaminated mixed waste cannot be recycled and is instead dumped or burned, or finds its way into the ocean.”

The unanimously adopted actions on plastic wastes include:

  • Removing or reducing the use of hazardous chemicals in plastics production and at any subsequent stage of their life cycle.
  • Setting of specific collection targets and obligations for plastics producers to cover the costs of waste management and clean-up.
  • Preventing and minimizing the generation of plastic waste, including through increasing the durability, reusability and recyclability of plastic products.
  • Significant reduction of single-use plastic products.

A group of cured resins and fluorinated polymers was not included in the requirement of prior informed consent, which means they can be freely traded without notification.

The theme of the meetings was “Clean Planet, Healthy People: Sound Management of Chemicals and Waste”. The meetings, attended by about 1,400 participants, from 180 countries, adopted 73 decisions.

Pressure Mounts on Canada to sign global ban on shipping recyclables

,

As reported by the Mia Rabson of The Canadian Press, there is increasing pressure on Canada by environmental activists and Asian nations to sign on to an amendment to an international treaty that would fully ban developed countries like Canada from shipping hazardous waste, including recyclables, to the developing world.

The Basel Convention amendment was proposed more than 20 years ago but Canada’s objection to it is resurfacing as the Philippines continues to press Canada take back more than 100 containers filled with mislabeled waste that were shipped to Manila in 2013 and 2014 labelled as recyclables.

The Basel Convention, adopted by all countries except the United States and Haiti, puts limitations on shipments of hazardous waste, and requires the destination country to be made aware of the contents of the waste and agree to receive it.

In 1995, an amendment was proposed to take the Basel Convention even further, and outright ban all shipments of hazardous waste — with or without consent — including waste intended for recycling. The belief was wealthy countries were avoiding the Basel Convention by labelling things as recycling. Canada has never agreed to it and still won’t.

At least three-quarters of the parties to the original convention have to agree to the amendment, and only two more countries need to say yes for it to be adopted. Debate about the amendment will again be on the agenda as countries meet about the Basel Convention in Switzerland in April.

“Canada, like other Basel Parties such as Japan, Australia and New Zealand for example, has not signed the amendment because the government believes that there are positive consequences to environmentally sound recycling and recovery operations,” wrote Environment Canada spokeswoman Gabrielle Lamontagne in an email.

That makes no sense, says Kathleen Ruff, founder of rightoncanada.ca, an online human rights advocacy site. “Why on Earth can we justify shipping it all the way around the world to poor countries that can’t deal with their own waste anyway?” she said.

In a letter sent to Prime Minister Trudeau on February 11, 2019, Canadian and international environmental, health and human rights organizations call on Prime Minister Trudeau to:

  • Ensure the expeditious return to Canada of 2,500 tons of wastes illegally exported from Canada and dumped in the Philippines, as required by the Basel Convention.
  • Ratify the Basel Ban amendment, which  would prohibit the export of hazardous waste for any reason from more developed countries to less developed countries. The amendment was put in place by an initiative of the developing and European countries and needs the support of only two more countries to come into effect. Canada is one of only 24 eligible countries that have not supported the amendment.

In 2013 and 2014, 103 containers arrived in ports in Manila from Canada, labelled as plastics for recycling, but upon inspection Filipino authorities discovered they were filled with household garbage, including adult diapers, food waste and discarded electronics. Except for a few of the containers that were illegally disposed of, most of the containers remain in quarantine in the ports.

Then Customs Commissioner Ariel Nepomuceno (2nd left) inspects on February 10, 2014 one of 50 container vans containing tons of garbage that are being kept on hold at the container port in Manila. The shipment from Canada was declared as plastic scraps but contained household trash instead. 

A Filipino court ordered Canada to take the garbage back, and Prime Minister Justin Trudeau promised during visits to the Philippines in 2015 and 2017 to deal with the issue. A bilateral working group was established last fall and meetings are to take place in the next few months.

When the shipments were sent, Canadian regulations applied the Basel Convention rules only to waste Canada considered hazardous. Lamontagne said that changed in 2016, so Canada now applies the convention to waste considered hazardous in the destination country. Lamontagne said that means the containers in the Philippines would be prohibited today.

However, Ruff noted the containers would still end up in the Philippines because they were labelled as recycling. They would only be barred if Canada adopted the amendment, she said.

For several decades, countries like Canada and the United States have found it cheaper to flatten plastic garbage into pallets and ship them across the ocean to Asian countries where companies buy the material and hope to recycle it for resale.

Ruff notes many of those nations don’t have sophisticated waste-management systems.

In 2017, the journal Environmental Science and Technology estimated that nearly 90 per cent of the plastics found in the oceans is believed to come from just 10 rivers in Africa and Asia.

Credit: Amanda Montañez; Source: “Export of Plastic Debris by Rivers into the Sea,” by Christian Schmidt et al., in Environmental Science & Technology, Vol. 51, No. 21; November 7, 2017

Aileen Lucero, the national coordinator of the EcoWaste Coalition of the Philippines, wrote an open letter to the Canadian Prime Minister early this year. In the letter, Ms. Lucero stated: “The dumping of Canadian waste in the Philippines is immoral and illegal.”

“The dumping of Canadian wastes in the Philippines is immoral and illegal,” organizations, including IPEN and Basel Action Network, said in a statement to Trudeau Monday. “It is a violation of Canada’s obligations under the U.N. Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes and their Disposal. Yet, despite making promises, Canada has failed to take action.”

Environment Minister Catherine McKenna is fond of citing a statistic that the equivalent of a truck full of plastic is dumped into the ocean every minute around the world. She is pushing Canada to eliminate plastic garbage entirely by 2040. But that would require much of the plastic produced to be recycled.

Can-Am Recycling of Batteries Made Easier Under New Cross-Border Regulation

, , , , ,

by Jonathan Cocker, Baker McKenzie

The interprovincial and international movement of hazardous recyclable materials, such as used batteries, is already big business and will only grow in the coming years in North America. Internationally, no less than 99% of all (lawful) hazardous recyclables (and hazardous waste) exported from, or imported to, Canada are with the United States.

The coming restrictions under amendments to the Basel Convention will also strengthen and foster demand for North American-based hazardous materials recycling as transfers to developing countries will be increasingly prohibited. The soon-to-be-replaced Canadian legal regime governing flows of such materials, however, has not evolved to match the market opportunities.

What was the Problem?

For starters, there are two principal outgoing federal regulations regarding the movement of hazardous recyclables and hazardous wastes:

  • the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (Export and Import Regulations); and
  • the Interprovincial Movement of Hazardous Waste Regulations (Interprovincial Movement Regulations)

These use different definitions of hazardous recyclables and hazardous wastes and mandate different movement documents, with neither adopting an electronic tracking system. The third hazardous waste law, the PCB Waste Export Regulations, 1996 set PCB concentration limits which rendered it incapable of facilitating exports to either the United States or elsewhere. As a result, there have been no PCB waste exports.

In short, a more commercially-responsive regime was desperately needed.

Growing International Alignment with New Cross-Border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations 

The new Cross-Border Movement Regulations, in final approval stages now with a 6-month lead time period to bring into force, combines the three regulations into one and adopts single definitions and processes for both interprovincial and international movements of hazardous recyclables and hazardous waste.

More notably, the Cross-Border Movement Regulation also seeks to harmonize the adopted definitions with accepted definitions in other jurisdictions (including the US) and international agreements. In other words, the international flows of hazardous recyclables and wastes no longer allow Canada to mainly uniquely domestic (if not parochial) practices.

Clarity on Battery Recyclables and Wastes Harmonizes Globally

The Export and Import Regulations did not expressly address used batteries, creating uncertainly as to which types must be treated as either hazardous waste or hazardous recyclable material. Some types of batteries were clearly caught – but there was uncertainly around certain categories.

The Cross-Border Regulations clarifies that all types of batteries (both rechargeable and non-rechargeable) being shipped internationally or interprovincially for disposal or recycling are regulated. Further, this expanded inclusion of used batteries is consistent with international standards, allowing the battery industry to more easily include Canada in multinational strategies for the resource recovery of these materials, while adhering to increasing restrictions as to where such recycling can take place.

Regional Battery Recycling Hubs to Grow?

With a growing move away from locally-mandated recycling towards open international markets for the delivery of recycling and other resource recovery services, the changes under the Cross-Border Regulation affecting used batteries could not have come too soon.

Further, circular economy laws imposing individual producer responsibility on the battery industry may well now allow battery producers to consider regionalizing its used battery recovery operations to best capture economies of scale without the regulatory difficulties in Canada now addressed by the Cross-Border Regulations.

_________________________________

The time is now for the North American battery industry to strengthen and extend their reverse supply chains across provincial /territorial boundaries and the US-Canadian border as the best available commercial strategy.

____________________________________

This article has been republished with the permission of the author. It was first published in Environmental Law Insights.

About the Author

Jonathan D. Cocker heads Baker McKenzie’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

The Impact of Brexit on Global Waste Shipments

, , , ,

by Shea Karssing, Smarter Business

As the people of Great Britain wait with bated breath for the March 29th deadline for a deal for the country to leave the European Union (Brexit), industry is starting to prepare for a ‘no deal’ Brexit inasmuch as possible.  While the British government has issued assurances that they are implementing measures make the process a smooth one, it is unsurprising that the nation is preparing for any eventuality.  

One area that stands to be notably affected by a ‘no deal’ Brexit is the translocation of waste. For those involved in such waste shipments, it is suggested you become au fait with the predicted changes in the case of a ‘no deal’ Brexit on 29 March.

THE CURRENT REGULATIONS

The guiding European Union (EU) legislation and guidelines on waste is predicated on the worries surrounding illegal waste movements and the burden on receiving states.  The EU legislation is particularly focused on the health and environmental concerns associated with such waste, as well as the requirement of waste as a raw material for recycling or recovery. The currently applicable international and EU legislation does not require a licence to be obtained for shipments of waste between the EU and the UK as union states.

The Basel Convention  

Under the Basel Convention, written consent is required in order to effect an international shipment of waste.  The reason for this is to ensure receiving nations are appraised of the nature of the waste and can offer assurances around its disposal. The Organisation for Economic Co-operation and Development (OECD) provides the framework for its implementation around transboundary waste movement.

EU Waste Shipment Regulations

Under these regulations, waste for disposal may not be shipped to extra-EU countries and European Free Trade Association (EFTA) members and export of hazardous waste to OECD members is prohibited.

Transfrontier Shipment of Waste Regulations

These United Kingdom regulations outline the authorities, offences, and penalties within the UK.

The OECD decision

Classifies waste as green or amber according to risk levels – those that pose least threat to human health and those requiring control in terms of risk.

WHAT CHANGES CAN WE EXPECT IN THE EVENT OF A NO-DEAL BREXIT?

A change in status

If no agreement is reached in March, EU law would no longer apply to the UK, which would become a “third country”  rather than a “member state” for purposes of waste export for disposal and recovery. However, the UK will remain a member of the Organisation of Economic Co-operation and Development (OECD) and bound by the Basel Convention.

Governed by regulation

Regulation (EC) 1013/2006 will govern the treatment of waste imports and, as a party to the Basel Convention and a member of the OECD, the international regulations contained in their rules would continue to apply.

Prohibitions

The 27 EU states would be prohibited from exporting waste for disposal and mixed municipal waste for recovery to the 27 UK.

Consent

Imports into a member of the EU-27 and from the EU to the UK will be allowed subject to re-approval of the requisite licences.

Ireland

While no changes are anticipated on green waste (for wastes presenting low risk for human health and the environment) recovery between Ireland and the UK, as well as amber waste (wastes presenting sufficient risk to justify their control) imports to the UK for recovery, imports into the UK for disposal and mixed municipal waste for recovery from Ireland may be affected.

While the government is giving due cognizance to the UK’s shared borders, movement of this waste between Northern Ireland and the Republic of Ireland hinges on the terms of the final agreement.  Brexit may also affect the eligibility of certain waste types to contribute to Ireland’s waste management targets depending on the treatment of that waste. In broad terms, this includes electronic and electric waste, batteries and accumulators; municipal waste for re-use and recycling, demolition and construction waste for re-use, recovery, and recycling; packaging and end-of-life vehicles for recovery and recycling.

For the most part, the substantive requirements of provisions will remain largely unchanged and alterations to existing regulations are expected to maintain the operability of existing processes around waste shipments.

CONSIDERATIONS FOR THOSE AFFECTED

Assess consent

If you have received consent for waste shipments, their status may change subsequent to withdrawal – with consent potentially being void, requiring re-submission, or facing additional customs requirements and obligations.

For exports into the EU

According to UK Department of the Environment, Food, and Rural Affairs (DEFRA), the UK “would be treated in the same way as any other OECD country, or country that is party to the Basel Convention, looking to export waste to an EU country.”  This would mean the submission of a duly reasoned request to the authorities detailing the reasons why and the inability of acquiring disposal facilities within its own borders.  In the case of exports of waste for disposal, this duly reasoned request would have to be submitted by the government to the EU before the UK exporter can submit notifications.

Get to know customs regulations

UK exporters would be well-advised to apply the customs guidelines around waste imports into the EU.

Waste for recycling

The Green Control procedure outlined in the WSR and OECD decision remains unchanged.

Get advice

Keep an eye out for announcements and government notices, in particular from DEFRA.  In the face of these uncertain times, it makes sense to get advice from the professionals and shape the way forward for your processes and systems to be prepared for any outcome.

About the author

Smarter Business is one of the UK’s leading independent consultancies, helping businesses secure the most comprehensive savings solutions from utilities contract management and procurement to business loans and facilities maintenance. https://smarterbusiness.co.uk/

Canadian Electronics Makers at Risk with e-Waste Exports

, , ,

by Jonathan Cocker, Partner at Baker McKenzie

“Canada continues to allow exports of hazardous e-waste to flow to developing countries (in this case, China and Pakistan)… These are all likely to be illegal.”
Export of e-Waste from Canada, October 10th, 2018, Basel Action Network

The release of this report by the Basel Action Network, subtitled A Story as Told by GPS Trackers, has thrown a veritable thunderbolt into the midst of the waste electrical and electronic equipment recycling industry in Canada (and beyond as these issues are not unique to any one country). Not only are current stakeholders engaging in the continued export of toxic materials to unlicensed (and unregulated) locations in developing countries, but these exports may well violate one or more laws, including national laws adopting the original Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.

e-Waste Monopolies and the Limits of Due Diligence
A question arises as to how manufacturers of electronics could allow their products and their industry representatives to engage in these exports long after the harmful environmental and societal impacts of such exports have come to light and addressed through international agreements. The answer lies in their proximity to the compliance activities undertaken on their behalf. In Canada, the makers of electronics are mandated to participate in a single government-approved WEEE recycling organization in each province. Decisions around this reverse supply chain are simply too remote to many in the electronics industry.

More importantly, there is too little incentive for the government designate to rigorously oversee the end-of-life compliance of the waste they transfer, as painfully demonstrated by the Export of e-Waste from Canada Basel Ban report. Instead, the organizations can rest upon the recycler qualifications and standards as due diligence and blame the bad apples when these scandals come to light. Their compliance mandate can be viewed as essentially process, not results, driven and they have little organizational risk, as the monopoly party, in whatever mischief happens thereafter. Equally, individual electronics manufacturers aren’t invested in the environmental outcomes as they are not at risk. It’s no coincidence that the report itself does not name one electronics company as culpable.

Electronics Industry Facing Coming Individual Producer Responsibility
Ironically, it is the Canadian e-Waste government designates which will lose their monopoly positions in the marketplace under the coming individual producer responsibility model (IPR) for many waste streams, including electronics. Under IPR, it will be individual producers who will assume direct responsibility for the proper resource recovery of the electronics they place on the market. These electronics companies will retain the liability for outcomes such as illegal shipments to:

“an area well documented as being a global e-waste trafficking and smuggling hub.”

The risks to the electronics industry participants become real, both regulatory and reputational, truly motivating them to ensure that their oversight role doesn’t end at a qualification program, in the same way that international brands in many other industries are increasingly scrutinizing their (front end) supply chains. Canada’s Province of Ontario will have IPR for e-Waste in 2020.

Small(er) Is Beautiful in Managing e-Waste
To conduct this kind of effective auditing and verification, electronics makers will want to stay closer to their reverse supply chains (and potentially lucrative secondary markets) through individual or smaller, market-segmented groups to best structure reverse supply chains which meet their individual or group needs. Leaving it in the hands of a single monolith entity acting on behalf of a myriad of parties, from manufacturers to retailers and everyone in between, across the broad spectrum of waste-relegated electronics and electrical equipment, will continue to prove ineffective in ensuring e-Waste compliance. It will be up to the producers themselves to finally bring these e-Waste exports to a permanent halt.

This article was originally published on the Baker McKenzie website.

______________________________

About the Author

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of its Global Consumer Goods & Retail and Energy, Mining & Infrastructure groups. He participated in founding one of North America’s first circular economy producer responsibility organizations. Jonathan is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations, and most recently the author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).