23 October 2006

Mr. Stavros Dimas
Environment Commissioner
European Commission
Brussels, Belgium

Dear Mr. Stavros Dimas:

In the wake of the waste dumping tragedy last month in the Ivory Coast it is certain that efforts need to be made by the European Union to prevent this type of illegal dumping of hazardous waste from ever happening again. Additionally, it is vital to address the far more common, but no less deadly, ongoing exports from European shores to developing countries of post-consumer wastes such as electronic wastes and ocean going vessels, now and in future.

To this end, we were very gratified to hear your strong words of concern and your vow to take serious action within the scope of your office to this end. In this regard, Greenpeace International, the European Environment Bureau, the Basel Action Network, and the NGO Platform on Shipbreaking, that have collectively been working to end the scourge of economically motivated hazardous waste trade for many years, wishes to bring to your attention the following concrete urgent proposals for your consideration. We have listed the proposed actions below and provide further detail and explanation of the need for such actions in the attached annex.

I. ACTIONS TO BE TAKEN AT THE 8TH CONFERENCE OF THE PARTIES OF THE BASEL CONVENTION
(November 2006)

Basel Ban Implementation

1. The European Commission must press with EU Member States for a Common Position to Ensure an Entry into Force of the Basel Ban Amendment at the earliest possible date and that Annex VII will not be amended beyond the EU/OECD/Liechtenstein group.

Capping Hazardous Waste Generation

2. The European Commission must press for a Common Position supporting a decision that will call upon Basel Annex VII countries to stabilize and then reduce their generation of hazardous waste, de-coupling it from economic growth.

End-of-Life Ships

3. Press for a Common Position to ensure that the Basel Convention does not weaken its COP7 decisions on ship dismantling and retains full competency over the issue of ships, demanding that any other instrument convened elsewhere requires an “equivalent level of control” as that of the Basel Convention.

II. ACTIONS TO BE TAKEN AT EU LEVEL

Basel Ban Implementation

4. The European Commission should press EU member states that have not already done so, to ratify the Basel Ban Amendment at the earliest possible date. These states are Greece, Ireland, Italy, Malta, and Slovenia.

EU Waste Framework Directive

5. Support Parliament and Council amendments to the December 2005 Commission proposal to revise the EU Waste Framework Directive that would set a target to stabilize all waste generation (therefore including hazardous wastes) by 2012 and further significant reductions in waste generation by 2020. In addition support amendments to the same proposal to strengthen and clarify the rules for management of hazardous waste in the EU (permitting, traceability, mixing ban, when waste ceases to be a waste, waste management hierarchy etc).

General Enforcement

6. That the European Commission consider means to enhance the resources of the IMPEL-TFS enforcement program including renewing the work of the very successful Seaport Project.
   
   
7. Strong consideration should be given for an EU requirement for a mandatory minimum level of enforcement (e.g. spot checks at ports) of the waste shipment regulation by member states. This could take the form of an adjunct regulation.
   
   
8. That the European Commission in cooperation with IMPEL consider funding a joint EU/West African workshop with customs and environmental officials to create better cooperation between African port states and EU to control illegal traffic.
   

Electronic Waste Export Enforcement

9. That the European Commission explores mechanisms to ensure that member states possess the authority to demand that exporters of used electronics conduct evaluations to certify whether the equipment is waste or non-waste.
   
   
10. An education program be conducted on electronic waste for customs police so that their enforcement of traffic in the same becomes far more diligent.
    

End-of-life Ships

11. That the European Commission ensure that end-of-life ships remain under the Waste Shipment Regulation at least until a new IMO Convention is in force and demonstrated to be fully protective of the environment and worker and community health and possess at least an “equivalent level of control” as that of the Basel Convention and the Waste Shipment Regulation.
    
    
12. That the European Commission explore mechanisms for active support of Green Shipbreaking/Pre-Cleaning businesses and facilities in the European Union starting with, but not be limited to assuring capacity for all government owned ships. The development of a ship-dismantling fund, in line with the Principle of Producer Responsibility, should be strongly considered in this regard.
    
    
13. That the European Commission explore legislative mechanisms to ensure that commercial vessels e.g. single hulled tankers operating under the jurisdiction of member states (either through flag or jurisdiction of ship owners) are pre-cleaned or scrapped in the European Union and are not allowed to circumvent the principles and obligations of the Waste Shipment Regulation.
    
    
14. That the European Commission include end-of-life vessels in its bilateral waste forum with India. Discrepancies between the EU and India’s interpretation of waste on end-of-life vessels need to be rectified. A similar waste forum should also be held with Bangladesh and Pakistan.

Probo Koala

15. An education program of officials implementing the MARPOL Convention regarding when wastes are normal ship operational waste and when wastes are in fact wastes covered under the Waste Shipment Regulation, is necessary. This training could happen under the auspices of the IMPEL program.

While it is understood that many of the important efforts to redress the Probo Koala scandal will need to take place at national level, (e.g. within Netherlands to prosecute export to Cote d’Ivoire of wastes), there is much the Commission can do to prevent the next Probo Koala and moreover prevent the ongoing egregious and illegal toxic waste trade in the form of electronic waste and ships-as-waste. As NGOs that are focused on the issues of international waste trade, we sincerely hope that we can all learn from this tragedy. We are convinced that the ideas outlined above will prove useful in this regard and stand ready to further assist in any way we can. We are very grateful for your concern over these important matters and your careful consideration.

Sincerely yours,

Jim Puckett
Basel Action Network

Kevin Stairs
Greenpeace International

Ingvild Jenssen
NGO Platform on Shipbreaking

John Hontelez
Secretary General - EEB

ANNEX

Further explanations

1. Currently the Basel Ban Amendment has 62 ratifications. That was always seen as the “magic” number which would finally bring the Ban Amendment into force as is 3/4ths of 82 (the number of Parties present in 1995 when the Amendment was adopted). However a careful reading of Article 17 of the Convention reveals ambiguity in meaning and there is currently a debate within the Convention on which of three interpretations should be agreed by the Parties. Indeed it will be the Parties that will have to decide and not the Office of Legal Affairs of the United Nations. Currently there is a letter from the President of the Bureau that has gone out to all the regional centers asking for which of three interpretations they believe should be adopted
   
   (see http://www.basel.int/meetings/bureau/bureau%203%20cop%207/10e.pdf)
   
   The position the EU takes on this matter will be very influential. BAN is calling for the earliest entry into force of the Ban Amendment and are hoping that the EU do the same. (see http://www.ban.org/Library/ban_entry_into_force_06.pdf)
   
   
2. The Basel Ban Amendment created Annex VII (EU, OECD and Liechtenstein) due to the fact that these countries should have differentiated responsibility to control their waste exports as the countries with the most waste and the most resources to manage it in an environmentally sound manner. However, even more to the point would be if the Basel Convention would place responsibilities on these same, most wasteful countries to delink waste generation from growth to stabilize and then reduce hazardous waste generation. This would have the added benefit of ensuring that Annex VII countries are not seen as a “club” within the Basel Convention that can trade in waste.
   
   
3. The European Union was instrumental at the last Conference of the Parties in achieving the landmark decision VII/26 which was vital in reiterating that principles upon which the Basel Convention was established would apply to ships. The vital aspects of VII/26 that must be retained in the new decision on shipbreaking are as follows:

1. Ships can be ships and wastes at the same time.
2. Ships can moreover be hazardous wastes.
3. Calls on all Parties to fulfill their Basel obligations with respect to ships in particular their obligations with respect to prior informed consent, minimization of transboundary movements of hazardous wastes and the principles of environmentally sound management….”
4. Calls for the IMO instrument to ensure an “equivalent level of control” to that of the Basel Convention.

4. By some artifact of history, there remain certain EU member states that have failed to individually ratify the Basel Ban Amendment. This, despite the fact that the EC has done so and the EU has transposed the Ban into EU law in the Waste Shipment Regulation, is not helpful in sending a message of commitment to the Ban and its underlying principle and moreover will not help move the Ban into global force should there be an interpretation that only member states present and voting in 1995 are eligible to be counted among those making up the 62 Parties. There should be no reason that Greece, Italy, Ireland, Malta and Slovenia do not move immediately to ratify the Ban. The commission should encourage them to do this at the earliest opportunity.
   
   
5. It is vital that the Waste Framework Directive not allow backsliding in any way on the subject of waste definitions, waste management hierarchy, but more importantly, finally make significant and not just rhetorical steps to achieve waste the apex of the hierarchy -- prevention. This can be accomplished by the European Commission’s acceptance of the Council and Parliament amendments to the 2005 Commission proposal. It must be fully recognized that hazardous waste is not a “good”, it is rather something to be minimized and eliminated from society. So far the European Union has spoken about this as a priority but fails to programmatically and financially consider it as such.
   
   
6. The Seaports program which involved just a handful of member states was a stunning success in that it revealed the rate of illegal waste exports such as electronic waste currently leaving the European Union for developing countries due to lax enforcement and some ambiguity in applying the law. Unfortunately this program was largely financed by just certain member states such as the Netherlands and was unable to be continued even before its promise was fulfilled. It is vital that the Commission find additional funding for this program and extend it to all member states. This is precisely the kind of program which serves to educate both police and bureaucrats while providing the data for additional corrective legislation.
   
   (http://www2.vrom.nl/docs/internationaal/eindrapport_europees_zeehavenproject.pdf)
   
   
7. The IMPEL-TFS Seaports Program found 51% non-compliance out of hundreds of spot checks. Such regional cooperation is necessary to continue but in addition, at a national level enforcement must become more of a priority. During the revision of the Waste Shipment Regulation many pointed this out, but unfortunately the final regulation only stated the following:
   
   Member States shall, by way of measures for the enforcement of this Regulation, provide, inter alia, for inspections of establishments and undertakings in accordance with Article 13 of Directive 2006/12/EC, and for spot checks on shipments of waste or on the related recovery or disposal. (Article 50, para 2)
   
   The problem with this language is that it can be fulfilled by having but two or three spot checks and does not indicate a regular programmatic, institutionalized national effort to identify and punish illegal traffic. What is needed is a requirement upon member states to establish a minimum level of staff allocation to enforcement and have them cooperate in the IMPEL, European Wide network.

8. At its last meeting the IMPEL-TFS program highlighted the need for a West-African/European workshop designed to establish coordinating efforts to combat illegal traffic in hazardous waste cars, electronics and other wastes (Probo Koala) between Africa and Europe. Another goal would be to begin to bring customs officials and environmental officials together for the first time in Africa. Such a workshop, once established could be replicated in East Asia at a later stage. The Commission should see fit to fund this proposed workshop.
   
   
9. While the Probo Koala case grabbed headlines in the latter part of the year 2006, it must be noted that a constant flood of hazardous waste in the form of post-consumer electronic waste flows is the greatest problem by far. The export of hazardous electronic waste from the European Union in the guise of used, working electronics is the greatest problem currently with respect to enforcement of the waste shipment regulation. Every year hundreds of tonnes of computer and other electronic waste flows from the EU under the pretense that the equipment is functional non-waste material. However investigations by the Basel Action Network in Nigeria revealed that about 75% of this material is junk, is waste and is not able to be re-used even when repair is involved. Yet customs police believe they do not have the authority to demand functionality testing and certification on the part of the exporter that the material truly is a non-waste. This is a gaping loophole that must be closed at the earliest opportunity. BAN has written on this subject and has provided the proper “decision tree” approach that diligent enforcement of the Basel Convention and the Waste Shipment Regulation requires. See http://www.ban.org/Library/briefingp10_april2006.pdf
   
   
10. It is vital that the IMPEL program, together with the Commission hold a workshop on diligent enforcement of the Waste Shipment Regulation so that all member states are applying the law in the same way and that unscrupulous waste traders are not able to find weak points in the EU and in the legislative net.
    
    
11. It has become sadly apparent that the work underway at the International Maritime Organization is minimalist in the extreme, and has abandoned many established principles found in the Basel Convention and in European law. These principles include the Polluter Pays Principle, National Self-Sufficiency Principle, Proximity Principle, Principle of Prior Informed Consent, and the Principle of Producer Responsibility to name but a few. The European Union cannot allow its principles to be sacrificed simply because the shipping industry has run to a new venue – the IMO to create a regime that will be far less than what is currently required under the Waste Shipment Regulation. Furthermore, even if the IMO instrument becomes stronger and can provide an “equivalent level of control” to that of the Basel Convention and Waste Shipment Regulation, it will not likely be in force for another 10-15 years. Meanwhile during this time the disposal of toxic ships at the global level will peak due in no small part to the 2015 phase-out of single hulled tankers. It is vital even due to the interim period before an IMO regime is in place that the European Union seek to diligently enforce the waste shipment regulation for ships and moreover seek ways to prevent circumvention of its intent and principles.
    
    
12. The European Council and the Parties of the Basel Convention have called for fulfilling current obligations with respect to the export of ships for breaking including implementing the obligation to minimize the transboundary movement of hazardous ships in particular to developing countries. Further within Europe the export ban to developing countries implementing the Basel Ban Amendment is already law. Finally, it is very clear that global capacity for “green ship-recycling” does not exist and will not be adequate during the next ten years. Europe has the responsibility to ensure that ships under the jurisdiction of EU member states are recycled or at least pre-decontaminated (to allow them to transit as non-hazardous waste) in the European Union. It is vital therefore to ensure that there is capacity for pre-cleaning and ship recycling in Europe. In order to finance this, Europe should consider establishing an environmental fund, and directing the funding toward the establishment of green ship-recycling capacity. Further the use of structural funds for such efforts in countries with historic shipbuilding capacity (e.g. Poland) should be considered as a means to develop this program and needed local employment. While in normal situations, EU subsidy of industry should be discouraged, it is vital that the EU find mechanisms and incentives to spark this needed industry. See http://www.greenpeaceweb.org/shipbreak/fund.pdf
    
    
13. It is well understood that should Europe attempt to implement the Waste Shipment Regulation to avoid economically motivated dumping of toxic ships on developing countries, it is currently possible for ship owners to find easy means to avoid diligent enforcement of the Waste Shipment Regulation. Means to do this include re-flagging, or announcing intentions to dispose, outside of the EU area. To prevent this undermining of the intent of the law due to the special nature and mobility of ships, it is vital that the Commission consider its jurisdictional responsibilities over owners based on their established location in addition to responsibilities due to flagging. Further, the Commission should explore possibilities of ensuring that ships of a certain age, are automatically prevented from re-flagging and must provide a green-recycling plan that will not violate the terms of the Waste Shipment Regulation. Further ideas for closing loopholes have been provided by Greenpeace and BAN in the following paper: http://www.ban.org/Library/BAN_Submission_shipbreaking_jan04.pdf
    
    
14. It is vital that the European Commission raise the problems of discrepancies in legal definitions of waste with India. Already there has been considerable problems arising from this issue in the case of Denmark (Riky) and France (Clemenceau) where the Indian refusal to regulate ships as waste under the Basel Convention despite the Decision VII/26 of the Basel Convention clarifying that a ship can be a waste, have created scandal. India must, at the very least respect the EU definition of waste as is required under the Basel Convention. This lack of respect for the EU definitions of hazardous waste is a serious breach of the Basel Convention and must be addressed to avert future scandal. tremendous diplomatic and environmental That the European Commission include end-of-life vessels in its bilateral waste forum with India. Discrepancies between the EU and India’s interpretation of waste on end-of-life vessels need to be rectified. A similar waste forum should also be held with Bangladesh and Pakistan.
    
    
15. One of the issues that has come to light as a result of the Probo Koala scandal has to do with the failure on the part of officials to correctly distinguish between the scope of the MARPOL Convention and the Basel Convention. It is vital that relevant officials in ports understand which waste are considered wastes from the normal operations of a ship and which wastes are waste covered under the Waste Shipment Regulation and what is required in both instruments. It would be vital to hold a training on this key issue, perhaps under the auspices of the IMPEL program.