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

Malaysia, 6-10 October 1997

UNEP/CHW.4/2

DRAFT POSITION PAPER ON HAZARD CHARACTERIZATION AND CLASSIFICATION OF
WASTES WITHIN THE FRAMEWORK OF THE BASEL CONVENTION

Note by the Secretariat

I. Reference

1. Decisions III/1 (Amendment to the Basel Convention) and III/12 (Hazard characterization) of the third meeting of the Conference of the Parties.

II. Background

2. At its third meeting, held in Geneva from 18-22 September 1995, the Conference of the Parties endorsed the work and recommendations of its Technical Working Group and, in particular, requested / the Group to continue the development of lists of wastes which are hazardous and wastes which are not subject to the Convention for adoption by the Conference of the Parties at its fourth meeting, in October 1997. The Conference also noted / that the Technical Working Group had identified a number of options

in regard to the use of the hazard characteristic H13, and requested / it to continue its work on criteria for hazard characteristics in conjunction with Annex I (Categories of wastes to be controlled) of the Convention, in particular for classes H10 to H13.

3. At the ninth session of the Technical Working Group, in December 1995, some experts expressed concern about the process leading to the preparation of lists of wastes, the status of lists and the applicable procedure for their review. The Group also highlighted the need for clarifying the framework within which this work has to be carried out.

4. An informal meeting of technical experts to the Basel Convention on hazard characterization, held in January 1996, made proposals on the development of a logical approach for addressing the issues of classification and hazard characterization of wastes.

5. Following the discussion that took place during the informal meeting of technical experts, and to address concerns raised during the ninth session of the Technical Working Group, the Secretariat of the Basel Convention undertook, in close consultation with and assistance from the Chairman of the Technical Working Group, to prepare a draft position paper on hazard characterization and classification of wastes within the framework of the Basel Convention. This draft position paper was meant to assist the experts of the Technical Working Group in their further discussion and deliberation concerning hazard characterization and classification of wastes. The draft position paper was subsequently revised by the Technical Working Group at its tenth, eleventh and twelfth sessions, held in April 1996, September 1996, and February 1997.

6. The text of the draft Position Paper on Hazard Characterization and Classification of Wastes within the Framework of the Basel Convention as agreed by the Technical Working Group at its twelfth session is annexed to the present note.

III. Proposed action

7. The Conference may wish:

(a) To consider the draft Position Paper together with the consolidated lists A and B of wastes, and the applicable procedure for reviewing or adjusting the lists A and B;

(b) To adopt the draft Position Paper on Hazard Characterization and Classification of Wastes within the Framework of the Basel Convention;

(c) To request the Secretariat to publish the draft Position Paper, in the official languages of the United Nations and disseminate it to Parties, signatories of the Convention, other States, intergovernmental organizations, industry and business as well as to environmental non&endash;governmental organizations.

DRAFT POSITION PAPER ON HAZARD CHARACTERIZATION AND CLASSIFICATION OF WASTES WITHIN THE FRAMEWORK OF THE BASEL CONVENTION

Text agreed by the Technical Working Group
at its twelfth session, Geneva,
24-28 February 1997

Fourth Revision
March 1997

SUMMARY

This paper reviews progress made by the Technical Working Group on the issue of hazard characterization and classification of wastes. Its purpose is to form a basis on which the Technical Working Group could take decisions.

The paper describes in its first part the process initiated at the first meeting of the Conference of the Parties to the Basel Convention on hazard characterization and provides a detailed account of the decisions adopted by the Conference of the Parties, by the TWG and by its informal groups on this matter. In its second part, it highlights a number of issues requiring special attention, in particular concerning the preparation of lists of wastes and the applicable procedure for their review, and the use of Annex III hazard characteristics.

I. BACKGROUND

COP 1

1. In its decisions I/16 (Transboundary movements of hazardous wastes destined for recovery operations) and I/22 (prohibition decision), the first meeting of the Conference of the Parties (December 1992), recognized the uncertainties in regard to the identification of and control procedures for wastes destined for recovery operations. Also, in its decision I/18 (Cooperation between the International Maritime Organization (IMO) and UNEP in the review of existing rules, regulations and practices with respect to transport of hazardous wastes by sea), the Conference requested the Secretariat of the Basel Convention (SBC) to cooperate with the UN Committee of Experts on the Transport of Dangerous Goods, as well as with other relevant international organizations, in the development of criteria for the definition of hazardous characteristics as referred to in Annex III to the Convention.

Cooperation

2. In order to advance with the development of criteria for the definition of hazardous characteristics (Annex III to the Basel Convention), the Secretariat convened an informal inter-Secretariat consultation on 22 July 1993. Representatives from IMO, the United Nations Economic Commission for Europe, the United Nations Industrial Development Organization, the International Programme on Chemical Safety and OECD attended the consultation. The meeting reviewed and revised the note prepared by the Secretariat on the development of criteria for the definition of hazardous characteristics and discussed the issues of classification, the harmonization of criteria developed at the international level, testing procedures and control systems. In considering those issues, the meeting recognized that it may be difficult for the competent authorities of the Parties to the Convention to implement a control system for the hazard classes H10 (Liberation of toxic gases in contact with air or water), H11 (Toxic, delayed or chronic), H12 (Ecotoxic) and H13 (Capable of yielding another material).

Difficulties

3. The informal consultation developed preliminary elements that might be considered by the relevant national authorities when deciding on the inclusion of a waste in class H10, H11, H12 or H13. It emphasized the need to strengthen international cooperation with a view to sharing information and benefiting from the work of the respective interested organizations, and because of the necessity to harmonize the development of criteria. Consideration was given to Annex III to the IMO International Maritime Dangerous Goods Code (on the regulations for the prevention of pollution by harmful substances carried by sea in packaged form), which contains criteria used for the classification of marine pollutants.

COP 2

4. The second meeting of the Conference of the Parties (March 1994), by its decision II/24 (Cooperation between the IMO and UNEP in the review of existing rules, regulations and practices with respect to transport of hazardous wastes by sea), requested the Secretariat to continue its cooperation with IMO and other relevant international organizations in the development of criteria for the definition of those hazardous characteristics which are currently not well defined. It also requested its Technical Working Group (TWG) to consider the issue of the development of such criteria and to present its recommendations to the third meeting of the Conference of the Parties.

TWG

5. The sixth session of the TWG (July 1994) considered the issue of the development of criteria for the hazardous characteristics in Annex III to the Basel Convention and agreed to the proposal of the Secretariat to prepare a report on this issue. Since the beginning of its functioning, the TWG clearly identified this issue to be of great importance in relation to the implementation of the Basel Convention.

Need for lists

6. At its seventh session, the TWG, taking into account the document prepared by the Secretariat concerning hazardous waste characterization under the Basel Convention, reviewed the issue and identified two possible ways of approaching the subject of hazard characterization:

a. providing a clearer definition of the classes described in Annex III of the Convention, in particular for the classes H10-H13, and/or

b. developing lists of hazardous wastes and the applicable procedure for their review.

The development of lists would respond to the need to find a fast-track approach to the issue of hazard characterization.

In assessing whether or not a waste is hazardous - that is, does it meet one or more of the Annex III hazardous characteristics - it was considered helpful to refer to the testing protocols recommended by the United Nations Committee of Experts on the Transport of Dangerous Goods and set out in the Manual of Tests and Criteria for the hazard classes H1, H3-H6.1 and H8. However, it was felt necessary to ensure that any testing or assessment procedures adopted are appropriate to the purpose of the Basel Convention.

7. At the initiative and invitation of Senegal, a Global Workshop on the Implementation and Applicability of decision II/12 (prohibition decision) was held in Dakar from 15 to 17 March 1995. A consensus emerged to the need for governments and industry to work together to solve and clarify the remaining questions of uncertainty relating to definition problems, in particular concerning criteria to determine the hazardousness of a waste. The meeting considered this work critical and one that needed to be accelerated. The participants to the Workshop agreed that a major problem with the implementation of the Basel Convention, including decision II/12, is the lack of sufficient definition, classification and characterization of which materials are covered by the Basel Convention.

8. In response to the expectations of the participants to the Global Workshop, the delegation of the Government of Denmark proposed to host an informal advisory group in Denmark in May 1995 to discuss further the issue of the characterization of wastes; the progress being made at this meeting would then be reported to the TWG.

Introduction of Ade minimis@

9. The informal meeting of technical experts was held in Snekkersten (Denmark) from 22 to 24 May 1995. It considered the following three topics:

a. how to identify a waste as being hazardous, including the introduction of the Ade minimis@ approach to focus attention not only on the presence of a particular constituent in a waste but at the level at which such constituent causes a waste to exhibit a hazardous characteristic of Annex III to the Basel Convention;

b. hazard criteria, in particular concerning H6.2, H10, H11, H12, and H13;

c. identification of wastes not covered by the Basel Convention.

10. In summary, the informal meeting made rapid progress in classifying the categories of waste in Annex I to the Convention. The group considered that fast progress towards the required lists could be made by identifying those categories in which it could readily be agreed that all the constituent wastes were probably hazardous, and by identifying wastes which were not hazardous, or not covered by the Convention for other reasons. The group drew up three tables:

- a table of Annex 1 categories in which all the wastes were likely to be hazardous (Aalways hazardous@ list);

- a table of Annex 1 categories thought to include some significant non-hazardous wastes (Asometimes hazardous@ list), also identifying areas of uncertainty; and

- a table of wastes thought to be beyond the scope of the Convention. As a starting point, the group only considered wastes not covered by Annex I, and derived the list from other internationally used lists, but it was recognized that a subsequent step would be required to identify wastes covered by Annex I but which were not hazardous.

11. The eighth session of the TWG (June 1995) made an extensive review of the outcome of the informal meeting held in Snekkersten. In doing so, and building on the progress made at Snekkersten, the TWG considered that the following tasks were necessary:

a. drawing-up of lists of wastes which are clearly hazardous;

b. identification of wastes which cannot be so readily classified and need further consideration;

c. elaboration of the use of Annex III characteristics;

d. drawing-up a list of wastes which are not likely to be subject to the Basel Convention.

12. The tables prepared in Snekkersten were not reviewed by the TWG in detail and so were not formally accepted as such. The TWG further elaborated on the Ade minimis@ approach and the use of Annex III characteristic H10-H13; it also offered a number of clarifications in regard to Annex I categories of wastes, in particular concerning metal wastes.

COP 3

13. The third meeting of the Conference of the Parties (COP3 - September 1995) endorsed the work and recommendations of the TWG. In particular, COP3 asked the TWG to continue to prepare lists of wastes for adoption by the fourth meeting of the Conference of the Parties (October 1997). COP3 also noted that the TWG had identified a number of options in regard to the use of the hazard characteristic H13, and encouraged the TWG to continue its work on criteria for hazard characteristics in conjunction with Annex I of the Convention, in particular for classes H10 to H13. The COP also requested the TWG to develop technical guidelines to assist any Party or State that has the sovereign right to conclude agreements or arrangements including those under Article 11 concerning the transboundary movement of hazardous wastes.

Sub-working groups set up

14. The ninth session of the TWG took place, at the invitation of the Government of Germany, in Bonn from 11 to 13 December 1995. The main purpose of the meeting was to advance with the issue of hazard characterization and classification of wastes. It organized its work in three sub-working groups which, hopefully, could function as standing groups until the next meeting of the TWG (22-26 April 1996). The three sub-working groups were:

a. Sub-working group 1: Metals

b. Sub-working group 2: Lists

c. Sub-working group 3: General principles.

15. The main progress achieved in Bonn concerns clarification of the classification of metal wastes on a preliminary list of hazardous metal wastes and a preliminary list of metal wastes not covered by the Convention. Some progress was also made in the preparation of lists (other than metals) based on the work of the eighth session of the TWG. In regard to the work on General Principles, a number of proposals were made to consider this matter. Proposals on the Ade minimis@ approach were formulated by Canada, UNIDO and the Chairman of the TWG. In order to advance with the Ade minimis@ approach, the TWG agreed that an informal meeting of technical experts to the Basel Convention should be convened in January 1996 to discuss the proposals formulated by Canada and the Chairman. The industry observers were specifically invited to contribute proposals for the Ade minimis@ approach using their specialist knowledge of the relevant wastes.

16. An informal meeting of technical experts to the Basel Convention on hazard characterization met in Geneva on 30 and 31 January 1996. The discussions centred on two topics:

a. The need for establishing a system that brings clarity and certainty in classifying wastes or in evaluating their hazardousness;

b. The purpose of using the Ade minimis@ approach and its applicability.

Framework

The informal meeting developed a logical framework of action, including a time-table of activities for the TWG, as well as the elements concerning the Ade minimis@ approach (purpose, level and scope). The meeting further agreed on a number of practical steps to advance with the issue of the Ade minimis@ approach that should be reviewed by the next informal meeting of technical experts (25-26 March 1996 in Geneva). It should be noted that the informal group proposed a series of lists for wastes that differ form the preparation of the two lists as agreed upon by the TWG. The series of lists identified by the informal group are:

List A: wastes subject to the Basel Convention and the Amendment (Decision III/1);

List B: wastes not subject to the Amendment (concerns Article 1, paragraph 1(a) of the Convention);

List C: wastes where uncertainties prevailed as to their classification on list A or list B.

Consolidated lists of wastes and the applicable procedure for their review or adjustment

17. At its tenth session in Kuala Lumpur (April 1996), the TWG made real and substantial progress in actually preparing the lists of wastes by approving the preliminary lists of wastes A and B and by recommending the placement of additional wastes on either list A or list B. The TWG adopted a set of procedures for the presentation of applications to the TWG, the format and content of the application form itself. The procedure adopted is as follows:

- Any Contracting Party, observer State, national authority, NGO, company or individual person has the right to fill in the application form with the proposed placement of wastes under list A or list B and present it to national authorities for the Basel Convention within its country.

- It is for the Party to decide how and, for those Parties that have more than one Competent Authority, through which Competent Authority and/or Focal Point of the Basel Convention this application form will be forwarded to the Secretariat of the Basel Convention.

- It is understood that the Competent Authority(ies) and/or Focal Point is/are to decide if it considers the application form properly filled in and if it agrees to forward this application form for consideration at the next meeting of the TWG.

- The TWG or any special group with competencies to review the application form will consider the application at its next meeting if possible. If the TWG would be of the opinion that the special additional information, explanation or any further advice would be needed, it would have the right to approach appropriate bodies/authorities/NGO including private sector/industry for the necessary expertise.

18. The eleventh session of the TWG (Manchester, September 1996) expanded and consolidated the lists of wastes. It provided clarification on critical issues dealing in particular with the classification of metal wastes, and provided detailed explanatory notes with the proposals for placement of wastes on list A or on list B. At its twelfth session (February 1997), the TWG completed its work on the preparation of lists A and B, and agreed to the format and content of the Application Form and procedure.

Working list C

19. The TWG is giving priority to the assessment of all wastes temporarily placed on list C for their final placement on list A or list B. Wastes on list C are wastes for which uncertainties prevail as to their classification on list A or list B. In order to advance with this work, States Party to the Convention, States non-Party, industry/business and environmental organizations were invited to provide explanatory materials on a number of wastes placed on list C for their further assessment by the TWG.

II. ISSUES REQUIRING SPECIAL ATTENTION

Status of the lists of wastes

20. At its third meeting, the Conference of the Parties, by its decision III/1 (Amendment to the Basel Convention), instructed the TWG to give full priority to completing the work on hazard characterization and the development of lists and technical guidelines in order to submit them for approval to the fourth meeting of the Conference of the Parties (October 1997). In view of the substantial progress made by the TWG, it is now clear that the TWG would be able to meet that request in regard to the preparation of lists of wastes.

21. In submitting the lists of wastes to COP4, the TWG wishes to provide advice on the status of lists - that is, how they are to be interpreted and used by competent authorities within the framework of the control procedure established under the Basel Convention. The following elements on the current qualifications of the lists as discussed by the TWG might form the basis of such an explanation:

LIST A: The waste placed on list A are characterized as hazardous wastes for the purpose of Article 1, paragraph 1(a) of the Basel Convention which states that the wastes that belong to any category contained in Annex I, unless they do not possess any of the characteristics contained in Annex III, that are subject to transboundary movements shall be hazardous wastes. In accordance with Decision III/1 (Amendment to the Convention) of COP3, the wastes placed on list A will be subject to the Amendment to the Convention referred to above.

LIST B: The wastes placed on list B will not be wastes characterized as hazardous under Article 1, paragraph 1(a) of the Convention, unless they contain Annex I material to an extent causing them to exhibit one or more Annex III hazard characteristics. In this latter case, the waste will be dealt with in the same way as those wastes placed on list A. Wastes placed on list B either do not belong to Annex I to the Convention, or belong to Annex I but, in this latter case, do not exhibit any of the hazard characteristics described in Annex III to the Convention. Wastes on list B could be defined, or considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit by virtue of Article 1, paragraph 1(b) of the Convention, in which case they would be subject to the control procedure established under the Convention.

LIST C: List C is a working list of wastes, for internal use of the TWG, awaiting classification. The wastes placed on this list are those for which uncertainties prevail as to their hazardousness or any other criteria qualifying their placement on list A or list B. All wastes on list C should be assessed for placement on either list A or list B. The entries on list C are, therefore, temporary. The TWG has considered whether or not wastes appearing on list C should have some particular status. The Group considered the possibility of list C wastes being regarded as hazardous until demonstrated otherwise, or alternatively being considered not to be covered by the Convention until they had been assessed. However, the most satisfactory interpretation of list C was that it has no status other than guidance as to priority wastes to be considered by the review process. Wastes appearing on it should have a status no different to any other waste which does not appear on either list A or list B. At the moment, such wastes are considered hazardous or not hazardous on a case by case basis by the relevant competent authorities - that is, the competent authorities of export, transit and import. The TWG recommends that list C wastes are dealt with in the same way, until such time that they have been assigned to list A or list B through the review process, and that assignment has been endorsed by the Parties to the Convention. Wastes on list C could be defined, or considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit by virtue of Article 1, paragraph 1(b) of the Convention.

ACTION: The TWG is invited to review, amend if necessary, and then endorse the explanations of the status of lists of wastes, and to agree to submit it to COP4 together with the lists A and B of wastes.

List A and Annex III

22. The TWG recognizes that there will be occasions on which exporter(s) takes the view that their waste, while appearing to conform to an entry on List A, is nevertheless not hazardous by reference to Annex III. It is clear that the exporter(s) has/have to check that their opinion that their waste is not hazardous is shared by their national competent authority. Failure to do so will leave them liable to prosecution. The competent authority will normally require the exporter(s) to support their case by providing information about the wastes and its hazards.

23. If the competent authority agrees that the waste does not exhibit any Annex III characteristics, then according to Article 1, paragraph 1 (a) of the Convention, as far as that country is concerned, the Basel Convention control procedures will not apply unless the waste in question falls under Article 1, paragraph 1(b) of the Convention as applied in the regulations of the countries of export, transit or import. Although there is no explicit requirement in the Convention it is clear that the exporter or the Competent Authority of the State of export will provide all required relevant information to other competent authorities about the waste in order that they can decide whether or not they agree with its classification as not hazardous and so determine whether or not Basel Convention control procedures apply to this particular movement of the waste.

24. Where trade is already well established between two countries there will normally be procedures in existence to ensure that competent authorities are informed of the properties of the waste and are in a good position to determine for themselves whether or not the waste is hazardous by their standards. However, in certain cases, particularly where one of the parties is a developing country without well established expertise or assessment procedures, the competent authority in that country may be unable to come to a decision on the basis of the information received about whether the waste is hazardous or not. In such circumstances it is recognised that the competent authority would normally wish to regard the waste as hazardous as an appropriately precautionary measure.

25. It should be noted that several experts from developing countries have already stressed that a clear and stable list A of wastes would be an important factor in ensuring efficient and effective implementation of Decision III/1 (Amendment to the Basel Convention) of COP3.

Further work on developing the lists

26. The original concept of a fast track approach involving lists included, as a complement, a more long-term exercise elaborating and defining the hazard characteristics in Annex III - considering work undergoing on hazard characterization in other intergovernmental fora - with a view to providing guidance on the way they should be used for future evaluation of wastes. Progress on developing this guidance has halted while priority, as instructed by the Conference of the Parties has been given to the development of the lists. It should be noted however that the TWG, while preparing the lists of wastes, has used Annex III hazard characteristics as its prime criteria for selecting wastes.

27. Nevertheless, for the longer term, the development of this guidance seems to be essential. As substantial work has now been carried out on the lists, the TWG may wish to consider whether or not it should resume its work on hazard characteristics, possibly through the creation of a small standing working group.

28. It should be pointed out that, in the short term, appropriate use of Annex III hazard criteria is required for placing wastes, for which uncertainties prevail as to their hazardousness, on list A or on list B.