Basel Action Network (BAN) Comments with Respect to OECD Recommendations Regarding “Harmonizing” OECD Waste Management Decisions with the Basel Convention

The Basel Action Network (BAN) believes fundamentally that a globally harmonized system already exists in the Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal, including the subsequent amendments to that treaty.

We strongly believe that Basel’s Article 11, which allows agreements outside of the Basel Convention, was never intended to be nor should it ever be used to circumvent, “streamline”, or otherwise weaken the obligations required under the Convention. Rather Article 11 serves only two purposes -- First, to establish agreements that are stronger than those of the Convention, and Second, to allow trade in specific instances between Parties and non-Parties provided that it is at least as rigorous as that of the treaty and its amendments.

Given the above, it is our strong belief that the OECD Council Decision C(92)39 (red, amber, green) was inappropriate in the first instance as it served to “streamline” or weaken the Convention all in the name of promoting, rather than reducing the transboundary movements of hazardous waste. It applied control procedures and definitions less stringent and rigorous than that of the Convention.

With the above general comments in mind, we further submit the following with respect to the recommendations of the EPOC of the OECD with respect to “harmonization”:

(1) The OECD Control System and the related Council Acts should be retained in a streamlined form which would make the OECD Control System more efficient and effective and enhance harmonization with the Basel Convention;

We strongly disagree. The purpose of the Basel Convention is not to facilitate the trade in hazardous waste, but rather to minimize it. “Streamlining” is not appropriate and will lead to lax scrutiny over transboundary movements and to very dangerous recycling operations. If the OECD countries had not wished to apply all of the obligations of the Basel Convention, including true “Prior informed Consent” they should not have joined the treaty in the first place. If global “harmonization” is truly the goal, then the OECD Council Decision (red, amber, green) should be abandoned completely.

(2) Certain procedural elements of the OECD Control System, such as time limits for the approval process for transfrontier movement, tacit consent (as well as the possibility for a written consent) and preauthorization procedures, should be retained. The definitions of waste and hazardous waste, and the general principles concerning transfrontier movements of wastes should be retained;

We strongly disagree. It is inappropriate to set a double standard whereby a certain club of countries can remove themselves from the full obligations of the Basel Convention. The purpose of the Convention is to minimize transboundary movements, not facilitate them.

(3) The OECD Control System should be harmonized with the Basel Convention by: (I) replacing the OECD green, amber, and red lists of wastes with Annexes VIII and IX of the Basel Convention, (ii) applying the green procedure to Annex IX wastes and the amber procedure (including the possibility of written consent) to Annex VIII wastes, and (iii) eliminating the present OECD Review Mechanism, but retaining the possibility of applying differing levels of control within the OECD Control System, in exceptional cases, to Annex VIII and Annex IX wastes, from those applied under the Basel Convention;

We believe again that true harmonization takes place within the global instrument. If harmonization is the goal, then why run two separate regimes? While we can accept the OECD adopting annexes VIII and IX of the Basel Convention, it entirely inappropriate not to likewise fully accept the Basel Convention and Amendment obligations with respect to those annexes.

(4) The mandatory OECD data collection on exports and imports of waste, and periodic or annual review of action taken by Member countries in pursuance of a number of Council Acts should be eliminated;

This data collection is one of the most useful exercises of the OECD. Nowhere else in the world is this type of valuable data gathered in a comprehensive and useful manner. This is precisely what the OECD should be doing as this is precisely the area that the Basel Convention has not been very helpful. We cannot evaluate the effectiveness of Waste Management Strategies and instruments without good data. Why is the OECD planning to discontinue this work?

(5) All waste related Council Acts except Council Decision C(92)39 should be consolidated into one Act;

We would recommend simply making one Act which says that all of the OECD work on the subject is now subsumed by the Basel Convention and its amendments.

(6) Work towards further harmonization of the different international control systems for transfrontier movements of wastes should be continued, with the ultimate goal of achieving a globally harmonized control system;

This statement is inappropriate as global harmonization already exists in the Basel Convention. If further “harmonization” is to take place with respect to all of the various agreements that exist under Article 11, then we must ensure that the harmonization is toward the highest levels of protection and rigor and not the lowest.

(7) The OECD work in the field of waste management should be reoriented to focus on emerging crosscutting issues regarding reuse and recycling of waste such as: (I) adapting the control procedures to encourage the implementation of endoflife product takeback programs and to facilitate closedloop recycling of materials; and (ii) developing standards for environmentally sound management of wastes destined for recovery operations; and,

This recommendation is misguided and dangerous. The recycling of hazardous waste, continues the OECD’s fixation on downstream waste management strategies, rather than upstream management. It is our firm belief that once the recycling of hazardous waste is considered, then we have already settled for a non-solution to the waste crisis. Only by moving upstream and ensuring that toxic substances are not introduced into our products and manufacturing processes in the first place will we be able to end the waste crisis. Hazardous waste recycling operations have proven to be some of the most polluting and harmful enterprises with respect worker health and environmental protection ever known. Environmentally Sound Management cannot be divorced from the priority of hazardous waste prevention and elimination as this recommendation does.

Further, the recommendation to develop criteria for the environmentally sound management of hazardous waste recycling, is irresponsible as it flies in the face of the clear wishes of the Basel Convention Parties NOT to develop any such criteria or standards prior to entry into force of the Basel Ban Amendment. The terms “standards” or “criteria” were explicitly ruled out with respect to the terms of reference of the Study on Annex VII mandated by the Parties at COP4 and in the Basel Technical Working Group. The OECD, now appears to be trying very hard to undermine the Basel Ban by forging ahead in the very task which was seen as unacceptable by the Basel Parties with respect to the entry into force and viability of the Basel Ban Amendment. Thus recommendation 7 must be condemnedby the global community as bad faith on the part of the OECD.

(8) WGWMP activities should be continued as a Part I program to facilitate participation of all Member countries in the work.

No comment.

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