Beginning in December 2019, the Ban Amendment to the Basel Convention will prohibit shipments of hazardous waste from OECD countries to non-OECD countries for disposal or recovery. While the Ban Amendment was originally adopted by the parties to the Basel Convention in 1995, it languished pending the need for sufficient ratifications to meet its entry into force threshold. Two recent ratifications have finally brought the Ban Amendment over the finish line. The Basel Convention is a global agreement governing the transboundary movement of hazardous and other wastes. The Convention imposes controls and, in some instances, trade bans on covered waste shipments destined for final disposal or recycling, making the agreement the primary international legal framework governing the circular economy.

On September 6, 2019, Croatia submitted its ratification of the Basel Amendment to the depositary, following the ratification deposited by St. Kitts and Nevis on August 29, 2019. With those two ratifications, the Ban Amendment has reached the threshold requirement for ratification. The amendment will enter into force between parties who have accepted it on December 5, 2019 (i.e., 90 days after the depositary received Croatia’s ratification). 

Ban Amendment – Scope and Applicability

The Ban Amendment will affect shipments of “hazardous wastes” from parties listed in Annex VII of the Convention to countries not listed in Annex VII. 

The parties listed in Annex VII are defined as those parties and other states that are members of the OECD, European Community (now the European Union), and Liechtenstein.

The Ban Amendment will prohibit the following shipments from Annex VII countries:

• All shipments of “hazardous wastes” (defined broadly under the Convention, and including anything that is hazardous in the exporting or importing country) to non-Annex VII countries for final disposal (i.e., operations specified in Annex IV A of the Convention).
• All shipments of a subset of hazardous wastes (i.e., those defined under Article 1(1)(a) of the Convention) to non-Annex VII countries for recycling and similar recovery operations specified in Annex IV B of the Convention. 

If a waste is hazardous due to the laws of the exporting or importing country but not according to Article 1(1)(a) of the Convention, the Ban Amendment will not apply if the shipment is for recycling.

The Ban Amendment also does not affect shipments of “other wastes” under the Convention, which is significant in light of the recent amendment of the Convention to add certain plastic wastes as “other wastes” under Annex II. (For more information about the recent plastics amendment, please see this alert.)

Entry into force at the international level means that the Annex VII-listed countries that have ratified the Ban Amendment will be required to have legislation or other measures in place to implement the requirement to stop exports. That obligation will apply to Annex VII-listed parties who have ratified the agreement regardless of whether the destination country is a party to the Ban Amendment (or even to the Basel Convention itself) – it applies to all “states” not listed in Annex VII. 

Many developing countries have also ratified the Ban Amendment, and they and others will likely adopt measures as a matter of their domestic law to refuse hazardous waste imports from Annex VII-listed countries (whether those countries on Annex VII have ratified the Ban Amendment or not). Indeed, many non-OECD countries have already done so by adopting import bans or refusing consents for certain imports.

Impact on International Shipments for Recycling

The entry into force of the Ban Amendment could significantly affect logistics for management and recycling of hazardous wastes around the globe. It is noteworthy, for example, that several countries with advanced recycling infrastructure and capabilities (e.g., Singapore, China, and Malaysia) are not Annex VII countries. A wide range of recyclable hazardous wastes listed as presumptively hazardous in Annex VIII of the Convention are covered by the Ban Amendment, including certain types of end-of-life electrical and electronic equipment and scrap, certain types of waste batteries, and some spent catalysts. Beginning January 1, 2021, certain types of waste plastics will also be classified as presumptively hazardous under the Convention following recent amendments to Annex VIII. As a result, the Ban Amendment could disrupt some company recycling, product stewardship, and circular economy initiatives.

In addition, the Convention has initiated a process to review and amend several of the Convention annexes that collectively define the universe of wastes considered “hazardous.” The parties have convened an Expert Working Group that will meet again in November (in Bratislava, Slovakia) to continue negotiations on the review of annexes. The outcome of this review is expected to further define and possibly expand the scope of hazardous wastes covered by the Convention and the Ban Amendment.

The impact of the Ban Amendment’s entry into force may be tempered by the fact that the EU has already implemented the Ban Amendment in its Waste Shipment Regulation as a matter of EU law, so any Ban Amendment restrictions on shipments from the EU should already be in place. 

As the US is a non-party to the Basel Convention, shipments of wastes covered under the Basel Convention (both “hazardous” and “other” wastes) are already prohibited under the Convention’s ban on trade with non-parties, unless the shipment is covered by a separate “Article 11” agreement allowing the movement. Similarly, the Ban Amendment will not affect trade between Annex VII countries, between non-Annex VII countries, or shipments of hazardous waste from a non-Annex VII country to an Annex VII country.

The Basel Convention continues to evolve and inform the environmental legal requirements governing the classification, management, and international movement of wastes in most countries worldwide. Companies should review their current waste management, product stewardship, and circular economy initiatives to ensure current and future operations account for the expanded scope of wastes covered by the Convention and the new legal prohibitions on certain international shipments.