Basel Action Network
A Global Alliance Against Toxic Trade

BRIEFING PAPER
No. 5 - December 2000

The environmental and health dangers of persistent organic pollutants (POPs) are now well known. The POPs treaty aims to eliminate such threats by eliminating POPs from manufacture, and from unintentional by-products of manufacture. This is an essential and laudable goal. However there is very real danger that if serious attention is not given to how POPs are disposed or destroyed, the POPs treaty could very easily cause in the long run, more environmental damage than it prevents.

For example, if in the rush to rid society of POPs, we hastily allow them to be dumped in landfills which will eventually leak (as all landfills will), or if we burn them in incinerators which are likely to produce more POPs by-products (which in turn need to be managed), then we will have not solved a global crisis but simply would have moved it from commercial cycles to natural ones.

For this reason it is absolutely vital that the POPs treaty take its responsibility for true environmentally sound destruction of POPs very seriously.

The Current Drafts of the POPs Treaty both include language (Article D, 4 (c) ii) that allows POPs wastes to be disposed solely in accordance with the Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal. Yet the Basel Convention does not set legally binding destruction obligations, rather it only can offer weak, non-binding disposal guidelines.

The Basel Action Network (BAN) as an international watchdog organization working very closely on matters pertaining to the Basel Convention, is disturbed by the misleading and overly territorial statements of competence made to POPs treaty negotiators by the Basel Parties. While the Basel Convention has just now agreed to hastily draft some guidelines on POPs waste management, the most recent communiqué from the Basel Convention to INC5 vastly overstates the scope and competence of the Basel Convention with respect to POPs disposal obligations.

In fact it must be known, that the Basel Convention was designed for the very specific purpose of regulating transboundary movements of hazardous wastes. It was not designed to regulate disposal practices or operations.

Thus, while the Basel Convention has strict legally binding rules for exporting and importing toxic wastes, it only possesses very general rules or non-binding guidelines for waste disposal. Furthermore, most of those disposal rules and guidelines only apply in the context of waste that has moved across a national border.

While it is true that the Basel Convention now covers all of the 12 POPs targeted for elimination in its waste definitions, it is also true that with but two exceptions it only deals with disposal issues for wastes when they are subject to transboundary movements. The POPs treaty will necessarily need to cover all POPs disposal and not just that which moves across borders. These noted exceptions are very general obligations to:

• ensure the availability of adequate disposal facilities, for the environmentally sound management of hazardous wastes and other wastes, that shall be located, to the extent possible, within it, whatever the place of their disposal; (Basel, Article 4.2 (b))
• ensure that persons involved in the management of hazardous wastes or other wastes within it take such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimize the consequences thereof for human health and the environment; (Basel, Article 4.2 (c))

Even when the waste in question is subject to transboundary movement, the Convention still only applies the most vague requirements for environmentally sound management (ESM) for the subsequent disposal operation. ESM is defined in the Convention simply as:

"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."

Unfortunately this definition is general enough to provide a very subjective interpretation. Some criteria for ESMt in the context of waste exports have been elaborated in what is known as the Basel Framework Document and are listed as follows:

1. There exists a regulatory infrastructure and enforcement that ensures compliance with applicable regulations;
2. Sites or facilities are authorised and of an adequate standard of technology and pollution control to deal with the hazardous wastes in the way proposed, in particular taking into account the level of technology and pollution control in the exporting country;
3. Operators of sites or facilities at which hazardous wastes are managed are required, as appropriate, to monitor the effects of those activities;
4. Appropriate action is taken in cases where monitoring gives indication that the management of hazardous wastes have resulted in unacceptable emissions;
5. Persons involved in the management of hazardous wastes are capable and adequately trained in their capacity.

The above criteria may bring us a step closer to ESM but they still fail to better define what types of technologies and standards are to be employed, what minimum infra-structural and environmental democracy requirements are guaranteed etc. For example, there is no requirement for public right-to-know, or minimum destruction removal efficiency standards for POPs. Most importantly, the framework document of the Convention is not legally binding.

Only once in the history of the Convention, have the Parties decided to place legal obligations on the parties by reference to ESM and that was done when they recognized "that transboundary movements of hazardous wastes from OECD to non-OECD States have a high risk of not constituting an environmentally sound management of hazardous wastes as required by the Basel Convention" and therefore decided to amend the Convention to prohibit all transboundary movement from OECD states and Liechtenstein to all other countries (The Basel Ban Amendment).

This to date is the most significant achievement of the Basel Convention. However it is not yet fully in force and, as valuable as it is, says nothing whatsoever about how wastes should be disposed.

Article 4.8 of the Basel Convention requires that the Parties develop Technical Guidelines for the ESM of wastes. These Technical Guidelines however can not adequately serve to provide a high standard of environmental protection with respect to POPs disposal or destruction for the following reasons:

• As in the case of the ESM Framework Criteria, the Technical Guidelines, have been required in the context of wastes subject to transboundary movements.
• In any case, they are not considered to be legally binding, nor are "guidelines" usually considered as such. As "guidelines" they are far too flexible to provide adequate environmental protection from POPs. They are written in such a way that huge latitude is given for accepting various disposal options.
• They are often out-of-date. To our knowledge none of the guidelines has ever been updated, nor is there an agenda to do so. Indeed the time and resources necessary to adopt these texts makes it almost prohibitive for them to be updated in a timely fashion. As technology with respect to waste management changes rapidly, we can thus expect that all but the most recently adopted guidelines are now out-of-date.
• They have been somewhat blind with respect to the very real problems of dioxins and furan impacts as well as the recent discoveries of the harm posed by endocrine disrupting compounds. This shortcoming is evident in the fact that there is no preference to "destruction" over disposal or even recycling, and they lack up-to-date information on non-combustion methods of POPs destruction which will not form byproduct POPs.

The fact remains that the Basel Convention cannot prescribe how POPs wastes should be destroyed, beyond the most general and legally non-binding terms. If the intention and will of the POPs treaty negotiators is to set out a rigorous, safe, legally-binding way forward, as we believe it must be, then negotiators must place language within the POPs treaty to ensure this is the case.

In fact, they have already done so. This language is found in the first part of (Article D, 4 (c) ii): "managed so that the persistent organic pollutant content is destroyed or otherwise transformed into chemicals that do not possess the properties of persistent organic pollutants...." Unfortunately, this strong text is then undone by the second half of the sub-paragraph with a very large and inappropriate "or" -- as in or managed according to the Basel Convention.

Given what we have learned about the shortcomings of the Basel Convention above, such a formulation is tantamount to saying you either must destroy the POPs wastes in a careful and possibly expensive manner so as to render them harmless, or you may dispose or even recycle them in any manner you desire, so long as you take into account non-legally binding guidelines and criteria. These two options represent vastly different scenarios and levels of protection, and yet they are currently presented as relative equals!

The solution is found by not offering the two very different regimes as alternative, competing options, but rather asking for adherence to both -- that is, replace the "Or" with an "And" as follows:

(ii) managed so that the persistent organic pollutant content is destroyed or otherwise transformed into substances that do not possess the properties of persistent organic pollutants as specified in Annex D and, managed in a manner consistent with the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

Indeed there are numerous instances during the transboundary movement of POPs where the Basel Convention is very prescriptive and absolutely appropriate with respect to POPs management. Thus it is logical and best for both of these regimes should apply together in tandem and not as options competing with one another.

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