Saving the Basel Liability Protocol

The Need to Reform the Negotiations

If the Liability Protocol is to become a credible instrument to protect the environment and potential victims from damage caused by the international trade and disposal of hazardous waste, it will require fundamental reform from its currently drafted form. While it has been noted that the Liability Protocol would be a symbolic achievement adding to the celebration of the 10th Anniversary Meeting of the Basel Convention (COP5) to be held in December 1999, it would be a mistake to adopt a fatally flawed instrument which will deserve to be denounced and judged as either redundant or worse than no regime at all.

In our judgement, there remain two fundamental shortcomings in the existing draft:

• generators of hazardous wastes are not liable for the wastes they create
• problems arising after deposit, combustion or processing of wastes escape liability

Fortunately, there is still time to redress these two simple yet grave problems as they remain in the articles that are still under consideration by the drafting group. The starting place therefore is with these remaining articles (3, 4, 10, 12, 13, 15, 16, and 23) and not with the proposed "wish list" of the German government (Package Proposal) that has been widely circulated. We do not find that package to represent a way forward, but rather probably the weakest form of protocol that can now be achieved.

We urge the Parties to bear in mind the obligations of the Convention to minimize both the transboundary movement of hazardous waste and its generation. These are the goals that must be served by the liability regime -- not the interests of large corporate polluters.

I. Generators of Hazardous Waste Must Not Escape Liability

Hazardous waste has been targeted by the Convention (Article 4, paragraph 2, (a)) and regulators the world over for minimization with an aim for its elimination. A liability regime for a subject matter targeted for elimination must be the most progressive, comprehensive regime and must hold those responsible for bringing the hazardous wastes into the world (generators) – liable for damage arising from its transport and disposal. In this way, the liability protocol will serve as an incentive toward the goals of elimination and source reduction and not as a contradictory disincentive.

The idea that generators should not be liable for mistakes made by their contractors sounds fair at the outset until we realize that the entire point of hazardous waste management is to provide incentives to:

• not produce hazardous waste in the first place;
• ensure that transboundary movements of waste are reduced to a minimum; and
• ensure that hazardous wastes that are exported are managed in the most environmentally sound manner.

By placing ultimate responsibility on those generating wastes, proper incentive will be installed to first; not produce hazardous wastes; second, to avoid transboundary movement to the extent possible; and third, only contract with the most safe and responsible transporters and disposers.

If generators are not liable the "Polluter Pays Principle" that is established in most national legislation including that of the European Union is contradicted in favour of a "Broker Pays Principle" – a nonsensical approach. In this way, large, wealthy, transnational corporations can avoid responsibility for their wastes by always passing responsibility to middle operators, brokers, even mail-box companies.

The most shocking, perverse results of this approach would occur in countries like the United States (worlds largest producer of hazardous waste) and Canada where generators are liable in domestic legislation for disposal and transport. In such countries, waste generators will have a very significant incentive to always export their wastes rather than dispose of it domestically. This incentive will be in direct violation of Basel obligations (Article 4, paragraph 2, (b) and (d)).

In any strict liability regime, the generator should be the ultimately liable person. This not only serves the interests of preventing damage and compensating for any damage which does arise, but it would greatly serve the interests of the Basel Convention itself - to minimise generation and transboundary movements of hazardous waste. Liability should therefore attach (joint and severally) to both the generator and the person in possession and/or operational control of the waste at the time of the incident giving rise to the damage. To fail to include the generator means omitting the central entity in the hazardous waste equation, and the one with the most ability to avoid damage. In earlier drafts of the protocol generators were part of the liability net but have been inexplicably dropped from consideration.

For the above reasons it is absolutely unacceptable that liability excludes the generator of the waste if that generator decides not to be the notifier or holder of the waste.

II. Failure to Attach Liability to the ‘Aftercare’ of Disposed Hazardous Waste

The draft liability protocol fails to apply to the most critical problem associated with hazardous waste disposal – gradual and long-term soil and groundwater contamination attributable to leakage and fallout from disposal and recovery operations. The impacts of long-term leachate, groundwater or other forms of pollution fallout and migration from a disposal facility are much more likely, significant and costly to remedy than are sudden spills of hazardous waste. Indeed most spills will occur during sea-transport, which as we shall see is already the province of another liability regime.

Under the current draft, leachate and ground-water contamination for example, occurring after "completion of disposal" would not attract liability. "Completion of disposal" is the end point of the protocol’s scope under Article 3.1.! The term "disposal" means any operation in Annex IV of the Convention. For example, one of these operations is D1 "Deposit into or onto land". Thus, according to this description, the disposal is completed at the moment that there is a "deposit". Likewise, recycling or combustion operations will be interpreted as being at the moment of processing.

Almost never, in the history of identified hazardous waste disposal problems is there a problem prior to or at this point in time! Rather it is very well known that the significant problems occur after that point in time. Illogically, the current draft definition of disposal does not extend to securing and monitoring the landfill over the longer-term (i.e., environmentally sound management which is required after "deposit"). If these hazards are not encompassed by the regime, there will be little incentive for operating disposal and recycling facilities in the best possible manner (e.g. why bother placing landfills in geologically stable areas)? Nor will there be incentive to avoid exporting wastes to facilities that are less environmentally sound than those at home – again these probable outcomes are in violation of the fundamental principles and obligations of the Basel Convention.

Indeed in countries where aftercare is clearly within the scope of liability, a huge incentive will be provided to export hazardous wastes to avoid having to ever worry about leaking landfills for example. It will be extremely negligent of the Parties if we allow this sort of monster loophole.

It is clear that the framers of the Basel Convention meant to include aftercare or they would never have explicitly included the concept in the definition of hazardous characteristics (H13 of Annex III). Likewise the definition of Environmentally Sound Management states, "protect human health and the environment against adverse effects which may result from such wastes." This "result" is not qualified with language such as "prior to and up until the point of deposit, combustion or processing"

In the present draft form, alternative provisions fail to adequately define "completion of disposal" to include aftercare as is clearly implied by the Basel Convention itself, and thereby render the draft protocol a potentially redundant and meaningless instrument. A liability regime already exists for most of the important transport (seagoing) aspects (e.g., IMO's Hazardous and Noxious Substances regime; Carriage of Dangerous Goods liability regimes). The potential added value of the Basel regime has to do with hazards arising from disposal – almost all of which come well after the moment of deposit, combustion or processing.

Thus Article III must be amended to encompass the concept of after-care. Past drafts included this concept but it was inexplicably dropped. If this is not included the entire exercise to draft this protocol these many years will be made largely meaningless.

III. Conclusion

If the negotiators fail to address the above noted two remaining fundamental problems with the liability protocol draft, there will be little to celebrate at COP5 and much to condemn. Indeed environmental NGOs and many delegations will likely be forced to admit that the protocol is unworthy of the great deal of time and effort spent to produce it. It is vital to remember that international instruments such as the Basel Liability Protocol must be as protective of the environment as possible. The environmental crisis on planet earth is not improving. On the contrary it is worsening daily. We all have a responsibility to our children and grandchildren to pass the most protective legislation practical and possible. Lets do that.

Basel Action Network (BAN)
c/o Asia Pacific Environmental Exchange
1827 39th Ave. E., Seattle, WA. 98112 USA
Phone/fax: 1.206.720.6426
E-mail: inform@ban.org
Website: www.ban.org