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Practical aspects of the implementation and enforcement of the Basel Convention rules governing transboundary movements of hazardous and other wastes
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Basic principles (1) Basel contains a detailed Prior Informed Consent procedure with strict requirements for transboundary movements (TBM) of wastes (notification and movement documents). Right for each Party to prohibit import/export/transit of all or specific wastes (see national legislation) Transboundary movements between Parties and non-Parties, including transit, generally not permitted Ban amendement: not in force
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Basic principles (2) TBM not following the appropriate notification and consent procedures or resulting in deliberate dumping of wastes constitutes illegal traffic, which is to be considered criminal under national legislation. National legislation to provide for penalties for illegal traffic No comprehensive data on illegal traffic
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Stages of customs intervention
4 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 of the movement document)
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Practical Challenges Mix of legitimate trade and illegal traffic
Incentives for customs Detection Identification and classification Safety procedures Ship back procedure Cooperation among relevant entities
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Legitimate trade Aggregated TBM over period. Numbers in the red squares show movements within the region in tonnes. No data on illegal traffic: no systemic, comprehensive collection of cases (no reporting for instance). Normally, every CA should have an overview of what is detected, but still is not the whole picture as one may suspect that many illegal shipments are not detected.
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Incentives for customs
Appropriate legal framework Awareness and capacity Focus on both import and export Environmental protection= policy priority at the highest level Clear competences Support from other relevant entities Recognition for performance Appropriate legal framework: for customs to play an enforcement role, they need to be mandated to do so. This means that an appropriate legal framework needs to be put in place Awareness and capacity: customs need education about the BC, officers need training and also resources to play the role of enforcement officer for the BC. Customs are required to enforce numerous legislations, they are faced with competing demands Focus on both import and export: usually customs focus on imports (revenue collection), but in the case of BC; customs need to also focus on exports Environmental protection= policy priority at the highest level: the customs hierarchy must put environmental protection as a priority along side other more traditional roles entrusted to customs. Clear competences: customs need clarity as to what is expected from them Support from other relevant entities: customs will have a delimitated role: they must know who they can and must rely on: port authorities, BC competent authorities, police… Recognition for performance: for customs to do a proper work they also need recognition from their hierarchy and beyond when they perform.
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Detection: the trigger for enforcement action
Random or routine check, international inspections/enforcement actions (eg, WCO Operation Demeter, INECE SESN, IMPEL-TFS) Tip/intelligence: foreign source or local/national Suspicious shipment: based on appearance or paper work (eg, movement document): Country of origin or destination, Inadequate packaging Content Absence of, torn or mutilated placards and labels, broken seals, Low value of the shipment Random check, inspection exercise or routine. International Inspections/enforcement actions: WCO Operation Demeter: Between 23 March and 11 May 2009, Customs administrations of 65 countries launched Operation Demeter, targeting the illicit transboundary movement of hazardous and other waste from Europe to countries in the Asia/Pacific and Africa. The primary targets were 16 types of waste which are most frequently traded and smuggled. Customs officers at more than 300 seaports and other selected locations intensified their risk assessment and profiling. More than 2,000 physical controls were carried out to identify high risk shipments. Participating Customs administrations notified each other of suspicious shipments across continents. They were supported by their national environmental agencies, police forces, the SBC, the EU IMPEL TFS, and 7 WCO Regional Intelligence Liaison Offices (RILOs) from the participating regions. The Operation led to seizures of over 45,641,000 kg plus 1,830 pieces of wastes in reported 86 cases, ranging from metal scrap, household waste, waste tires, and end-of-life vehicles, to non-functioning or “used” electrical and electronic equipment, granite and silicon barrels. INECE SESN: June 2010 inspection month: The International Network for Environmental Compliance and Enforcement (INECE) Seaport Environmental Security Network (SESN) convened an International Hazardous Waste Inspection Month at Seaports in June The INECE SESN Hazardous Waste Inspection Month at Seaports is an international exercise for competent authorities at ports designed to strengthen capacity for performing inspections of transboundary movements of (hazardous) waste. During the simultaneous inspections month, participating countries will prepare and carry out focused hazardous waste inspections in their own seaports. IMPEL TFS: The European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL) TFS is a network of representatives from authorities of the European Union Member States and other countries involved in the inspection and enforcement of Transfrontier Shipments of Waste. IMPEL TFS regularly organizes shipment inspections within the EU. IMPEL TFS had developed guidance tools on how to conduct inspections. Tip/intelligence: foreign source (from other country) or local/national: it can be that customs from the exporting countrx have been unable to prevent an illegal shipment from leaving a country. It can also be that port authorities from the same country have identified a suspect shipment and alert enforcement authorities within the same country but within another location. Suspicious shipment: Based on the information indicated in the movement document or on the aspect of the shipment. Example: compost coming from Singapore, used computers coming from Mozambique and going to China transiting through Latin America, solvent not contained in a metal container, corrosive material not in plastic container, bulging drums, strong smell from « paper waste », discrepancy between declared good and its value, shipment declared as « second hand electronic or electrical goods ».
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Should an illegal shipment of hazardous wastes be suspected, four essential steps should be followed: Assess the situation; Identify the hazardous substance; Secure the scene; Report the incident to relevant health, safety and regulatory personnel.
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Identification and classification (1)
Dangerous liquid residues:
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E-waste: computer screens and TV monitors:
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Biomedical waste
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Contaminated plastic wastes
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Waste batteries
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Clean paper waste (ie not hazardous): is something hidden inside the paper?
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Mixed plastic and paper waste: household waste: falls under Basel
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X ray of a truck : waste batteries declared as mixed metal scrap and hidden at the back of the truck and underneath clean scrap metal (non hazardous)
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Idem as previous slide, closer view
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Identification and classification (2)
Physical identification Visual: eg, glass waste from cathode-ray tubes, contaminated paper waste, household waste, lead-acid batteries, metal cables insulated with plastics… Sample analysis: if waste is liquid or sludge. Will require specific safety measures and expertise Sampling is the most difficult and dangerous activity conducted at any scene of crime where hazardous waste has been abandoned. The proper gathering of chemical evidence goes far beyond collecting liquid or solid samples and placing them in containers. Those doing sampling must be concerned with such issues as personal safety, evidence cross-contamination, proper sampling methodology and maintaining the chain of custody for the chemical evidence.
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Identification and classification (3)
Legal classification Definition of « waste »: substances or objects which are disposed of are intended to be disposed of or are required to be disposed of. Mainly subjective appreciation Used, second-hand goods? BC Annexes I, II, III, VIII and IX National legislation: national definition of hazardous wastes and import/export prohibitions of specific or all BC wastes Used goods: What if used goods are disposed of? What if the intent to « dispose » is not clear? Objective criteria? Annex I: list of wastes (waste streams and waste constituents) to be controlled. Further defined by Annex VIII (wastes presumed to be hazardous) and Annex IX (wastes presumed to not be hazardous) Annex III: definition of « hazardous » Annex II: definition of « Other wastes »: household wastes and residues arising from the incineration of household wastes Difficulties in interpreting some waste, lack of uniform interpretation of some wastes definitions between countries.
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Safety and handling 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. A confined space is any space with limited openings for entry and exit and unfavourable natural ventilation which could contain or produce dangerous air contaminants. Examples of confined spaces include trailers, holds of ships, storage tanks, process vessels, all of which may be encountered by Customs officers, particularly when investigating an illegal shipment of hazardous materials or wastes. Officers can keep themselves and others safe at a scene if they follow and do not exceed the limits of their training. Injuries and damage may have already occurred prior to the officers’ arrival. It is the officers’ responsibility to prevent further injuries or damage by keeping themselves and others safe and waiting for 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 stabilize the situation until someone with the relevant training arrives and then follow their instructions. 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
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Safety and handling (1) « Hazardousness » of wastes defined in BC Annex III, eg: Explosive - Flammable – Oxidizing - Poisonous - Infectuous – Corrosive – Toxic Selected United Nations Packaging Symbols: Warning, gaz under pressure Danger, Very toxic to aquatic life Source: the United Nations Economic and Social Council’s Committee of Exports on the Transport of Dangerous Goods and on the Globally Harmonised System of Classification and Labelling of Chemicals has been charged with developing a single, harmonised system to address classification of chemicals, labels and safety data sheets. Below are some selected packaging symbols, you may find more information on these symbols and others at Placarding and labelling: Shipments of hazardous materials and wastes must be shipped in trucks with appropriate placards indicating the type of hazardous substance being shipped. The Customs officer should verify that the placards are appropriate for the type of substance being shipped and that they correspond to the shipping and movement documents. The absence of placards is illegal. Torn or mutilated placards or labels may indicate that the container has been changed or tampered with. Danger, toxic Danger, may cause fire or explosion Danger, explosive Danger, flammable
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Safety and handling (2) Any container may contain hazardous wastes
Drums In bulk: can be mixed with solids (metal, plastic, paper or products) Corrosive content? Plastic container Solvent content? Metal container Leaking, dented, bulging or mishandled container ? Could indicate illegal shipment Lack of placards? Could indicate illegal shipment Drums and containers Tankers, drums, storage tanks and compressed gas containers are all capable of containing hazardous substances. A Customs officer approaching any of these should assume that the containers may contain a hazardous substance. Drums for hazardous wastes normally look like drums for chemical products or they may be oversized in order to hold a regular sized drum within that may be leaking. Illegal shipments of hazardous waste residues can be found in drums that are corroded or almost empty and even in five-gallon pails or laboratory and medical packaging. Hazardous waste can also be mixed in with waste paper, scrap metal or chemicals intended for recycling. Products shipped from the factory generally have their seals intact. If the seals are broken, the contents are suspect. Hazardous materials must be packaged in appropriate containers. For example, if the Movement Document states the material is corrosive, the container should be plastic. If the material is a solvent, the container should be metal. The Customs officer should review the shipping and Movement Documents to be sure the container is appropriate. Leaking containers could indicate an illegal shipment. Transportation regulations require that hazardous substances be packaged in sealed containers for safety. The Customs officer should verify that containers have no leaks or visible spills. Dented or mishandled containers can also be indicative of illegally transported hazardous waste, as products must be kept in a good condition in order to be acceptable to a lawful consignee. The same applies for recently painted drums (it is important to look at all sides of the drum to determine whether the paint covers old labels or marking). If a drum is bulging this could indicate the possibility of a chemical reaction creating pressure in the container. An inspecting officer should be careful not to open such a container without proper protective gear as pressurized drums could be dangerous if opened without appropriate precautions.
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Safety and handling (3) Only customs officers trained to handle hazardous substances should do so. Precautions for untrained officers: Do not open trailer doors of trucks suspected of containing hazardous substances; Do not open tanks, drums, or other containers that may contain hazardous substances; Do not presume that what is marked on a label, drum or container is what is inside since illegal traffickers often mix hazardous wastes with other materials; Do not enter confined spaces that may contain hazardous substances.
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Ship back procedure (1) BC Article 9.2: In case of a TBM deemed to be 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, (b) are otherwise disposed of in accordance with the provisions of this Convention (i.e. environmentally sound management) Article 9.3: In the case of a transboundary movement of hazardous wastes or other wastes deemed to be illegal traffic as the result of conduct on the part of the importer or disposer, the State of import shall ensure that the wastes in question are disposed of in an environmentally sound manner by the importer or disposer or, if necessary, by itself within 30 days from the time the illegal traffic has come to the attention of the State of import or such other period of time as the States concerned may agree. To this end, the Parties concerned shall co-operate, as necessary, in the disposal of the wastes in an environmentally sound manner. Article 9.4: In cases where the responsibility for the illegal traffic cannot be assigned either to the exporter or generator or to the importer or disposer, the Parties concerned or other Parties, as appropriate, shall ensure, through co-operation, that the wastes in question are disposed of as soon as possible in an environmentally sound manner either in the State of export or the State of import or elsewhere as appropriate.
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Ship back procedure (2) Costly measure, both financially and politically Between Competent Authorities Role of the shipping company Role of the Secretariat: good offices and legal/technical support Role of the Implementation and Compliance Committee: submission for non-compliance with article 9.2 Delays means storage/safety measures Monitoring the returned shipment Costly measure, both financially and politically: exporting countries should have every incentive to make sure that illegal shipments do not leave their country of origin as the return rule under BC has great financial implications for the exporter and can cause significant diplomatic damage Between Competent Authorities: it is usually CA from the respective exporting and importing countries that will get in contact to work out the shipment back, but some legislations may provide roles for other entities (for example an enforcement agency or the ministry of foreign affairs) Role of the shipping company: Although the BC provides that the return is to be worked out between government entities, some CAs act directly through cooperation with the shipping company (case of Hong Kong). In such circumstances, there is a SOP: if the CA informs the shipping company that it deems one shipment to be illegal then the shipping company ships it back. Only therafter is contact made with the CA of the exporter that is just informed that a specific shipment is coming back. Role of the Secretariat: The Secretariat is not mandated to take a unilateral decision to intervene when a case of alleged illegal traffic is brought to its attention. The Convention provides that Parties can request the Secretariat « To assist Parties upon request in their identification of cases of illegal traffic and to circulate immediately to the Parties concerned any information it has received regarding illegal traffic” (article 16.1 i). Role of the Implementation and Compliance Committee: if a Party wishes, it may make a submission to the Committee concerning compliance by another Party with article 9.2 (see: Delays means storage/safety measures:difficulties may arise regarding a shipment: difficulty in identifying the exporter, exporter refutes its responsibility, in these cases, the drums/containers must be secured and stored in a safe place. Problem: costs involved? How to solve the case if exporter cannot be found? Monitoring the returned shipment: it has happened that shipments are shipped back to the country of export, and they come back again. It is important to have good contact with the CA of the exportting Party to ensure that the illegal shipment is indeed received. Example of guidance on returning illegal shipments in accordance with EU legislation:
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Institutional Structure of the Convention
Cooperation (1) Institutional Structure of the Convention The Basel Convention relies on an interaction between the national and international levels Customs services are in a unique position to detect illegal traffic in wastes at border crossings. They are on the frontlines to ensure proper implementation of the Convention. The Basel Convention institutional framework is as follows: The Conference of the Parties is the main governing body of the Convention, and is comprised of all State Parties. The COP gives directions to its subsidiary bodies, the Open-ended Working Group, Expanded Bureau and the Implementation and Compliance Committee which, in turn, make recommendations to the COP. The Secretariat provides support to the Parties to help them implement the Convention. The Secretariat works under the supervision of, and under the instruction of, the Conference of the Parties. The Basel Convention 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 transboundary movement of hazardous wastes or other wastes. Both these entities are dependent on the capacity of their enforcement officers to properly monitor transboundary movements of hazardous wastes. The Focal Point and the Competent Authority should ensure that all national enforcement agencies, including Customs, are kept appropriately informed. It is imperative for you to know who the Competent Authority is in your country. The list of competent authorities can be found on:
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Many entities with specific roles
Cooperation (2) Many entities with specific roles National Level: Governmental: Customs officers; Police; Coast Guards; Port Authorities; Focal Points; Competent Authorities; Ministries of Justice; and Prosecution services: Others: shipping company, generator, disposer, consignee, laboratories, NGOs => Establish a national task force International Level: Basel Convention Secretariat, other countries, WCO, Interpol, BCRCs, informal networks 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.
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Cooperation (3) Cooperation with the Competent Authority at every stage of the enforcement procedure: Preventive, eg development of risk profiling, information sharing, training, and Reactive, i.e. as soon as possible illegal waste shipment is detected (legal and technical support). Backed by a Memorandum of Understanding Possible elements of an MoU: exact definition of legislations involved (customs legislation and environmental legislation, so respective legal bases are clarified), specify tasks and powers of customs (well delimited and how they relate to other tasks and competence of other entities, for example, clarify if customs have the authority to take sample, clarify how is done, under whose authority etc…, ) have a contact point within customs that is « specialized » on BC, and allocate resources within customs to deliver on the implementation of the MoU willingness of CA to support customs in their work (ie answer questions about technical and legal matters and accept responsibility for follow up), agreement to share information and procedures on how to do so agreement on common priorities between CA and customs (waste streams, destinations etc…), develop risk assessment approach common to both, secure that regular high level meeting between management of customs and CA.
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Relevant Basel Convention Reference Materials
Guide to the Control System (Instruction Manual) Instructions for Completing the Notification and Movement Documents Guidance Elements for Detection, Prevention and Control of Illegal Traffic in Hazardous Wastes Training Manual on Illegal Traffic for Customs Officers and other Enforcement Agencies
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Other sources of information
Globally Harmonised System of Classification and Labelling of Chemicals (GHS) Interpol: UN Recommendations on the Transport of Dangerous Goods, Model Regulations: World Customs Organisation: Green Customs Initiative: IMPEL TFS:
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THANK YOU! For further Information
Visit the Basel Convention’s Website:
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