ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS BASEL CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES

Introduction The Basel Convention regulates the trans-boundary movement of hazardous wastes and other wastes. The Convention applies whenever those wastes covered by the Convention cross from one national jurisdiction to another, whether or not the wastes are being shipped as part of a commercial transaction or under a trading relationship.

Unit Objectives Know the conditions for trans boundary movements including the requirement for Prior Informed Consent Specify the role of the focal point and competent authority Define wastes in relation to the Convention Learn the Basel Control System Determine the role of customs and border control

Unit Outline Introduction Scope of the Basel convention Conditions for trans-boundary movement Focal Points and Competent Authority Definition of Wastes Basel Control System Role of Customs and Border control Conclusion

Scope of Basel Convention The Basel Convention was adopted on 22 March 1989, and it entered into force on 5 May 1992*. There are 170 Parties to the Basel Convention All CARIFORUM countries, except Grenada, are parties to the Convention. http://www.basel.int/Countries/Statusofratifications/PartiesSignatories/tab id/1290/language/en-US/Default.aspx

Scope of Basel Convention The main goal of the Basel Convention is to protect human health and the environment against the adverse effects resulting from the generation and management of hazardous wastes and other wastes The Basel Convention was created to respond to increased public concern about toxic wastes in the 1980s. The misadventures of « toxic ships » such as the Katrin B and the Pelicano, sailing from port to port trying to offload their poisonous cargoes made the front-page headlines around the world. These tragic incidents were motivated in good part by tighter environmental regulations in industrialised countries. As the cost of waste disposal skyrocketed, « toxic traders » searching for cheaper solutions started shipping hazardous wastes to Africa, Eastern Europe and other regions. Once on shore these waste shipments were dumped indiscriminately, spilled accidentally or managed improperly, causing sever health problems – even death – and poisoning the land, water and air for decades or centuries. To combat these practices, the Basel Convention was negotiated under the auspices of UNEP in the late 1980s.

Scope of Basel Convention Basel Convention establishes the legal and procedural framework for the regulation of cross border shipments of hazardous and other wastes. The intention is to ensure that such shipments take place only when the transport and disposal of the wastes are conducted in an environmentally sound manner.

Purpose of BC To reduce trans-boundary movements of hazardous wastes and other wastes to a minimum consistent with their environmentally sound management To treat and dispose of hazardous wastes and other wastes as close as possible to their source of generation in an environmentally sound manner To minimise the generation of hazardous wastes and other wastes in terms of both quantity and potential hazard.

Conditions for Movement The State of export does not have the technical capacity and the facilities, capacity or suitable disposal sites needed to dispose of the wastes in question in an environmentally sound manner; or The wastes in question are required as raw material for recycling or recovery industries in the State of import.

Environmentally Sound Management (ESM) is defined as “taking all practicable steps to ensure that the wastes are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes” - (Article 2(8))

Prior Informed Consent Basel Convention has established a regulatory system based on the following: The requirement of Prior Informed Consent of a State of import and States of transit before a waste can be exported and the establishment of a notification Procedure Restriction on exports to a country that is not a party to the Convention A duty to re-import when an export has not complied with the provisions of the Convention.

Prohibitions - Import & Exports Parties may prohibit import of wastes Parties must not allow the export of waste prohibited by another party Party must not allow export of waste to a state incapable of ESM A party is prohibited from import /export to a non party state

Focal Points & Competent Authority BC provides for the designation of a focal point and a competent authority by each Party. A focal point is responsible for submitting information to and receiving information from the Secretariat. The Competent Authority is responsible for dealing with notifications of a trans-boundary movement of hazardous wastes or other wastes.

Focal Points & Competent Authority BC relies on an interaction between the national and international levels. State to State contacts are made through the Competent Authority A notification procedure is in place to ensure that a State has the information it needs to make an informed decision about permitting imports, exports or a transit shipment It is imperative for Border Control personnel to know who the Competent Authority is in your country:

Effective Enforcement The Focal Point and the Competent Authority should ensure that all national enforcement agencies, including Customs, are kept appropriately informed. The list of competent authorities can be found on: http://www.basel.int/Countries/CountryContacts/tabid/1342/ Default.aspx Customs officers must know about any restrictions or requirements that derive from the Convention or from measures adopted by individual States, when verifying shipments at the border. ( Refer to the following link: http://www.basel.int/Countries/ImportExportRestrictions/tabi d/1481/Default.aspx

BCRC-Caribbean The Basel Convention Regional Centre for Training and Technology for the Caribbean Region (BCRC-Caribbean) serves the Parties to the Basel Convention within the Caribbean in their efforts to implement the Convention. Located in Trinidad and Tobago, it was established under Article 14 of the Convention as well as Act Number 2 of 2008 of the Republic of Trinidad and Tobago.

BCRC-Caribbean The Centre forms an important functional and operational part of the institutional framework of the Basel Convention. The core functions of the BCRC-Caribbean include training, technology transfer, information dissemination, consulting, and awareness raising.

BCRC-Caribbean The countries served by the Centre are Antigua and Barbuda, Bahamas, Barbados, Belize, Cuba, Dominica, Dominican Republic, Guyana, Jamaica, Trinidad and Tobago, Saint Kitts and Nevis, Saint Lucia, and Saint Vincent and the Grenadines.

Definitions The Convention defines wastes as: “substances or objects which are disposed of, or intended to be disposed of, or are required to be disposed of by the provisions national law” -Article 2, paragraph 1) “Hazardous wastes” listed in Annex I and exhibiting Annex III characteristics, such as explosive, flammable, oxidizing, poisonous or corrosive. Annexes VIII and IX further clarify what is - and what is not - understood by “hazardous wastes”.

Annex 1- Hazardous Wastes Annex I lists waste streams (wastes resulting from activities such as medical care, pharmaceutical industries, photographic industries, etc., coded Y1 – Y18) and wastes having specific components /constituents (e.g. cadmium, lead, arsenic, etc., coded Y19 – Y45). The wastes are given codes to assist identification, and should be used in documents that must accompany each shipment of waste across frontiers.

Annex III – Hazardous Characteristics Annex III lists a number of hazardous characteristics that pose dangers because of the impact that such substance(s) or mixtures of substances may have. Such characteristics are, for example, explosiveness, flammability, production of inflammable or toxic gases, etc. and are coded H1 – H13.

Non Hazardous Wastes Some wastes are regarded as non-hazardous if it can be shown that they do not display one of the hazardous characteristics listed in Annex III and NOT covered by the provisions of the Basel Convention BUT they may still be covered when defined as, or are considered to be, hazardous wastes by the domestic legislation of the Party of export, import or transit

National Definitions of Hazardous Wastes ARTICLE 3.1 - Each Party shall, within six months of becoming a Party to this Convention, inform the Secretariat of the Convention of the wastes, other than those listed in Annexes I and II, considered or defined as hazardous under its national legislation and of any requirements concerning trans-boundary movement procedures applicable to such wastes. For more information on national definitions of waste visit the following link: http://basel.int/Procedures/NationalDefinitions/tabid/1321/Default.asp

Annexes to Basel Convention Annex I - Categories of wastes to be controlled Annex II - Categories of wastes requiring special consideration Annex III- List of hazardous characteristics Annex IV - Disposal operations Annex V A- Information to be provided on notification Annex V B - Information to be provided on the movement document Annex VI – Arbitration Annex VII - Not yet entered into force Annex VIII - List A -Wastes contained in this Annex are characterized as hazardous Annex IX - List B - Wastes contained in the Annex will not be wastes covered by Article 1

Identification and Classification The Secretariat of the Basel Convention co- ordinates with the WCO to continually review and identify the corresponding HS codes for the wastes covered by the Basel Convention. Customs declarations may contain either the codes assigned by the Convention or the Harmonized System codes available on the website of the World Customs Organization.: www.wcoomd.org

Case Study Discuss the challenges and possible solutions of managing the increasing volumes of e-waste in countries of the Caribbean. Refer to the Position Paper entitled “ The Views of E- Waste Recycling in the Caribbean” published by The Basel Convention Regional Centre for Training and Technology for the Caribbean Region (BCRC- Caribbean) https://www.sugarsync.com/pf/D7142258_4656752_689914

Case Study Divide the class into 3 groups and allow 15 minutes for discussion. Each group will appoint a representative to deliver a brief presentation ( 5 minutes)

Illegal Traffic in BC Wastes Illegal traffic refers to any trans-boundary movement of BC wastes (Art. 9): (a) Without notification to all States concerned; (b) Without the consent of a State concerned; (c) With consent obtained from States concerned through falsification, misrepresentation, or fraud; (d) That does not conform in a material way with the documents; (e) That results in deliberate disposal (e.g. dumping) of BC wastes in contravention of the Convention and of general principles of law

Illegal Traffic in BC Wastes Parties are required to consider illegal traffic as a crime. In cases of illegal traffic which is due to conduct of the exporter or generator, the State of export shall ensure that the wastes in question are: Taken back by the exporter or the generator or the State of export; or Are otherwise disposed of in accordance with the provisions of the Convention According to article 4(3): « The Parties consider that illegal traffic in hazardous wastes or other wastes is criminal ». Article 9(5) of the Convention requires Parties to introduce appropriate national/ domestic legislation to prevent and punish illegal traffic Article 9(2) states that in the case of illegal traffic as the result of conduct on the part of the exporter or generator, the State of export shall ensure that the wastes in question are: a) Taken back by the exporter or the generator or, if necessary, by itself into the State of export, or, if impracticable (Art. 9(2)(a)) b) Are otherwise disposed of in accordance with the provisions of the Convention (Art. 9(2)(b))

Basel Rules from Start to Finish Inform of proposed movement Stage 1: Notification Conclude a contract specifying ESM GENERATOR DISPOSER Inform of proposed movement Refuse to allow export The procedures form the heart of the Basel Convention control system and are based on three key elements (1) notification; (2) consent; and (3) the accompanying movement document. Stage 1. A transboundary movement requires all competent authorities of countries concerned to be notified. A notification usually covers only one type of waste and may cover only one shipment. However, the notification may cover several shipments of waste over a maximum period of one year. Before the shipment can be allowed to start the generator and the disposer conclude a contract for the disposal of the waste. Under the Convention this contract must ensure that the disposal is conducted in an environmentally sound manner. Upon conclusion of the contract, the Generator or the Exporter should inform the Competent Authority of the country of export of this proposed movement. If the Competent Authority has no objection to this export, it will transmit a notification document to the CA of the Country of Import, and to the CA of the countries of transit. The decision by a CA to refuse to transmit a notification is perfectly in order with the spirit of the Convention. The purpose of the notification is to provide the CA of the countries concerned with detailed, accurate and complete information on the waste itself, on the proposed disposal operation and other details relating to the proposed shipment. (trainer may wish to circulate the copies of the notification checklist) Send Notification Document COUNTRY OF IMPORT COUNTRY OF EXPORT COUNTRY OF TRANSIT

Basel Rules from Start to Finish Stage 2: Consent and Issuance of Movement Document GENERATOR DISPOSER If consent and proof of contract, then issue Movement Document On receipt of the notification document, the CA of the Country of Import must provide its written consent (with or without conditions) or denial (can ask for further clarification, if required). The CA of country of import must also confirm the existence of a contract between the exporter and the disposer. One of the most important conditions of the notification procedure is the verification of the existence of a legally binding contract between the generator and the disposer, specifying ESM of the wastes in question. The CA of any country of transit must acknowledge receipt and provide its written consent to the country of export (with or without conditions) or denial within 60 days. Countries of transit may decide not to require prior written consent, in which case the country of export may allow the export to proceed if it does not receive any response from that state of transit after 60 days. This procedure will only apply if the country of transit has informed all other parties through the Secretariat that it will not require prior written consent for transit shipments. Once the relevant CAs have established that all the requirements of the Convention have been met, and have agreed to the movement, the CA of the country of export can proceed with the issuance of the movement document and authorise the shipment to start. The movement document contains detailed information about the shipment and must accompany the consignment at all times at the time of departure to the arrival of the consignment at the disposer. (Trainer may wish to circulate the checklist for the movement document) Consent/Deny Movement (written) COUNTRY OF IMPORT COUNTRY OF EXPORT Confirm contract specifying ESM COUNTRY OF TRANSIT

Basel Rules from Start to Finish Stage 3: Transboundary Movement GENERATOR DISPOSER Send copy of Movement Document confirming receipt of shipment The Movement Document provides relevant information on a particular consignment, for example, on all carriers of the consignment, which customs officers it has to pass through, the type of waste and how it is packaged. It should also provide accurate information on the authorizations by the CAs for the proposed movements of wastes. The COP has recommended that the duly completed notification should always accompany the Movement document. Most countries accept a copy of the duly completed and fully authorized notification to be enclosed with the Movement Document. However, some countries require than an original notification, stamped and signed by the CA, shall always accompany the Movement Document. In the latter case, the generator will have to provide the CA with sufficient copies of the Notification for individual certification. COUNTRY OF IMPORT COUNTRY OF EXPORT COUNTRY OF TRANSIT

Basel Rules from Start to Finish Stage 4: Confirmation of disposal GENERATOR DISPOSER Upon completion, send confirmation that disposal taken place May wish to follow up in order to confirm completion The Convention also requires a confirmation from the disposer when the disposal has taken place, according to the terms of the contract, as specified in the notification document. If the Competent Authority of the Country of Export has not received the confirmation that disposal has been completed, it must inform the Competent Authority of the Country of Import accordingly. If no confirmation received, advise accordingly COUNTRY OF IMPORT COUNTRY OF EXPORT COUNTRY OF TRANSIT

Verification at Customs Illegal activities can occur at any of these four stages: When all countries have provided their consent, the transboundary movement is authorized to proceed. When one of the countries denies permission of the movement the transboundary movement is not authorized and should be stopped, as indicated by the red stop signs. When a Country of Transit denies permission, but the Country of Import consents, the Country of Export must not allow the shipment to leave the Country of Export to the Country of Transit, even when the carrier can prove that the country of final destination has given its consent to the movement. In such cases, the exporter has to find another transit country willing to permit the movement to cross its territory. Similarly, when the Country of Transit has consented to the movement, but the Country of Import has not, the Country of Export must not allow the shipment to leave until a Country of Import that consents to receive the shipment is found. It is important to note that some national legislations require that custom authorities sign and stamp the movement document (parts 20-22 of the movement document)

Border Control Procedures Customs at Country of Export Is there a movement document? Is there an export authorization by the Competent Authority? Do the contents correspond to the movement document? CUSTOMS – COUNTRY OF EXPORT As a customs officer you first need to verify that all the documents required are presented to you and correctly completed with all information required (formal verification). The next step is the physical inspection of the shipment (material verification): Verify if the truck and the containers are appropriately labeled Verify if the number of containers and their type, and their volume, correspond to that indicated on the movement document To the extent you are able, verify the contents of the containers to ensure that they correspond with the permitted substances: in case of doubt on the identification of the substances, contact the competent authority of your country (Trainer’s Note: Green arrows signify answer “YES”, whereas red signifies “No”, in which case cargo should be seized and the customs officer should phone the relevant authorities for more information) Is the packaging in order? RELEASE SHIPMENT FOR EXPORT

Border Control Procedures Customs – Transit Country (Entry) If no, then return shipment Is there proof of your CA’s consent? Do you agree with observations of Customs of exporting country? CUSTOMS – TRANSIT COUNTRY (ENTRY) As a customs officer you first need to verify that all the documents required are presented to you and correctly completed with all information required. The next step is the physical inspection of the shipment: Verify if the truck and the containers are appropriately labeled Verify if the number of containers and their type, and their volume, corresponds to that indicated on the movement document To the extent you are able, verify the contents of the containers to ensure that they correspond with the permitted substances Are the contents, quantity and packaging the same as on departure from Country of Export? RELEASE SHIPMENT FOR TRANSIT

Border Control Procedures Customs – Transit Country (Exit) Are the contents, quantity and packaging the same as on entry into Country of Transit? If more, is there adequate documentation to account for surplus? NO CUSTOMS – TRANSIT COUNTRY (EXIT) RELEASE FOR MOVEMENT TO COUNTRY OF IMPORT

Border Control Procedures Border Control Procedures Customs – Import Country If no, then return shipment Is there proof of your CA’s consent? Do you agree with observations of Customs of exporting country? CUSTOMS – COUNTRY OF IMPORT Customs in a Country of Import should be even more alert with respect to shipments of hazardous wastes, because the wastes will be disposed of in their country. Control procedures are similar to those explained above for Export or for Transit. If Customs is satisfied with the validity of the shipment, it may proceed to release the shipment for disposal. Are the contents, quantity and packaging the same as on departure from Country of Export? RELEASE SHIPMENT FOR DISPOSAL

Points to Note Shipments should be appropriately packaged and accompanied by all the appropriate documentation, including a hazardous waste movement document, hazardous materials placards and an “Acknowledgement of Consent” from the State of import.

Responding to a suspect shipment Four essential steps: Assess the situation; Identify the hazardous substance; Secure the scene; (d) Report the incident to relevant health, safety and regulatory personnel Do not approach a scene involving hazardous materials, but stop and assess the situation, particularly before entering a confined space. The correct action may be to take no immediate action at all. Officers need to assess the situation and restrain themselves from entering a dangerous situation. Officers have been killed in the line of duty by entering scenes containing hazardous materials without taking appropriate precautions. CONFINED SPACES: Is any space with limited openings for entry and exit and unfavourable natural ventilation which could contain or produced dangerous air contaminants. Officers can keep themselves and other safe at a scene if they follow and do not exceed the limits of their training. Keep yourself and others safe, and wait for requisite assistance. Under no circumstances should an officer without proper training and equipment enter a confined space. When arriving at a suspected hazardous waste crime scene, the officer should approach from an upwind direction and remain at a distance from a potential release. The officer should stabilise the situation until someone with relevant training arrives and then follow their instruction. TRAILERS: Examine the trailer exterior, including the under carriage Search for any vehicle identification number Off-loading: - Establish a safe and efficient method for removal and examination of drums - Essential that all safety regulations be followed carefully Once unloaded: examine for fingerprints, discarded tools, documents, rubbish and other physical evidence TANKERS: Measures to be taken before removing any chemical evidence or searching a vehicle cab: Driver interview Inspect movement document and permits Check placards: Lack of placards or the presence of wrong placards may be seen as evidence of efforts to mislead as to the tanker’s contents Field tests e.g. meter readings for flammable vapours, radiological meter readings and PH tests

Cooperation to enforce the Basel Convention National Level: Customs officers and enforcement agents; Port Authorities; Focal Points; Competent Authorities; Ministries of Justice; and Prosecution services Regional Level: Inter-regional cooperation and exchange of information International Level: Basel Convention, WCO, Interpol, Green Customs Synergies/Cooperation with other conventions In order to thoroughly implement the obligations under the Basel Convention, cooperation is required at all levels. Customs should cooperate closely with its national competent authority. This is to ensure that Customs are kept up to date with any changes to the wastes covered by the Convention. These changes may occur by (a) Amendment of the Annexes; (b) Receipt by the Secretariat of a notification of a change of national definition of hazardous wastes Only through close cooperation between customs authorities and national environmental agencies, will customs authorities be able to become effective agents in the battle against illegal traffic in hazardous wastes. Work currently being undertaken on the Harmonised System of the World Customs Organization by the Secretariat will provide greater understanding of the extent of the illegal traffic problem and will allow greater scope for identifying and targeting problem areas. The current Harmonised System Code does not allow for the specific identification of all hazardous wastes and other wastes covered by the Convention, making the task of customs officers even more difficult in identifying illegal traffic. Therefore, competent authorities and customs officers are encouraged to harmonise and align their procedures for dealing with Basel Convention wastes and for categories under the Harmonised System. In order to implement the sanctions regime for cases of illegal traffic effectively, close cooperation between customs and the following bodies could bring substantial benefits: Ministries of Justice; Prosecution Services; Police Enforcement Agencies

Relevant Basel Convention Reference Materials Guide to the Control System (Instruction Manual) http://www.basel.int/pub/instruct.doc Instructions for Completing the Notification and Movement Documents http://www.basel.int/techmatters/forms-notif-mov/vCOP8.pdf Guidance Elements for Detection, Prevention and Control of Illegal Traffic in Hazardous Wastes http://www.basel.int/legalmatters/illegtraffic/ge_e.doc Training Manual on Illegal Traffic for Customs Officers and other Enforcement Agencies http://www.basel.int/legalmatters/illegtraffic/trman-e.pdf

For Further Information Visit the Basel Convention’s Website: www.basel.int Acknowledgement : Adapted from a presentation delivered by Yvonne Ewang, Associate Legal Officer, UNEP Secretariat of the Basel Convention On the Control of Hazardous Wastes and Their Disposal at the Regional Green Customs Workshop for the Caribbean Network conducted by UNEP and held in the Dominican Republic, in November 2009.

Conclusion Discuss main Points and clarify any doubts Review Objectives Link to next lesson or unit