Commentary: What waste professionals need to know about the export of recyclable hazardous materials and the Basel Convention

My company recently worked with a large chemical company who was selling a used solvent stream with hazardous characteristics that would be sent to South Asia for reuse “as is.” The seller’s corporate legal team got involved, concerned the transaction might run afoul of the Basel Convention. Our account manager called me in to consult, as he was unfamiliar with this regulation, and he’s certainly not alone. Even waste management professionals deeply versed in RCRA and state-level regulations governing reuse and reclamation may be taken by surprise when questioned about this set of rules.

So, a little background on the Basel Convention. The full name is the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, and it is an international treaty which entered into force in 1992. Its purpose is to restrict the transfer of hazardous wastes from industrialized countries to developing countries, which became a serious problem in the 1970s and 1980s as new regulations like RCRA made it costlier for generators in industrialized nations to dispose of hazardous wastes domestically, culminating in several high-profile cases of hazardous waste from the United States and other western countries being irresponsibly dumped in places like Africa and the Caribbean.

This treaty was intended to restrict disposal, but anyone who works within the RCRA regulatory environment is aware that “use constituting disposal” can include reclamation/recycling in a regulator’s eyes. Waste recycling and beneficial reuse professionals who regularly send secondary material streams into the emerging markets of China, India, etc. may be wondering how Basel impacts their ability to lawfully make these transactions.

The good news is that individuals and companies aren’t directly regulated by the Basel Convention. Per its Article 4, the Basel Convention itself does not apply directly to private actors, but instead obligates parties to the Convention (i.e., governments) to implement the Convention’s requirements through national legislation or other legal measures. If the United States is a party to the Convention (the United States signed the Convention, but has not ratified it), then it is the United States government’s responsibility to enact laws in accordance with the Convention. Thus, individuals and companies are not obligated to interpret and comply directly with the Basel Convention, only to comply with the laws and regulations of the country in which a secondary material is generated, and the country to which it will be exported.

A conscientious generator with a global presence may want assurances that the prohibition against shipping wastes is being respected. In that case, it’s important to consider how the Basel Convention defines wastes, namely as “substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law.” The Convention defines disposal as “any operation specified in Annex IV to this Convention.” Section A of Annex IV covers only “operations which do not lead to the possibility of resource recovery, recycling, reclamation, direct reuse, or alternative uses,” that is, Section A of Annex IV only prohibits end of life disposal.

Section B of Annex IV addresses “operations which may lead to the possibility of resource recovery, recycling, reclamation, direct reuse, or alternative uses.” Even though it would be natural for an American beneficial reuse professional to assume the RCRA definition of “recycling,” which includes reuse “as is,” we must determine how the Basel Convention uses the term. The text of the Convention itself does not provide an explicit definition; however, the caption at the top of Annex IV Section B enumerates “recycling” and “direct reuse” as separate activities. The Basel Convention has developed a glossary of terms for the purpose of providing legal clarity. In the explanatory notes for the definition of “waste,” the glossary states:

“In some countries, production residues are considered waste because they are not intentionally produced. However, in other countries, production residues may be non-waste or may be referred to as byproducts if they meet specific conditions in accordance with national legislation and if they do not meet the waste definition. As the manual on the implementation of the Basel Convention notes, having the conditions set down in national law, it is possible that a production residue may be regarded as a non-waste in one state, but as a waste in another.”

This further confirms that national laws on the definition of waste determine an exporter’s legal obligation.

I point out again that the caption at the top of Annex IV Section B enumerates recovery, recycling and direct reuse as separate activities. The glossary echoes this demarcation. Recycling is “distinguished from other recovery operations: Recycling operations usually involve the reprocessing of waste into products, materials or substances, though not necessarily for the original purpose. Resources are saved by recovering material benefits from the waste.”

The glossary states that recovery is commonly used to refer to operations specified in Annex IVB, but then later makes a clear distinction between recovery and direct reuse stating, “The term ‘recovery’ does not include the actual reuse or direct reuse. The caption to Annex IV B refers to operations that may lead to direct reuse. However, no operation listed may lead to direct reuse, as that term itself requires that reuse will occur without repair or refurbishment.” This final statement makes it clear that Appendix IV(B) does not govern as-is reuse of a secondary material.

So, now it’s clear that hazardous secondary materials may be shipped overseas for reuse as-is under Basel, but what about shipping these materials over to a buyer who intends to reprocess them? Here in the U.S., transfer of a hazardous secondary material is governed by conditions and exclusions to the Definition of Solid Waste that have been influx at the federal and state levels in recent years, and likely will change again under the Biden administration. Basel, fortunately, is much more straightforward; its Article 4 (9)(b) allows for transboundary movements provided “the wastes in question are required as a raw material for recycling or recovery industries in the state of import.” Persons intending to ship hazardous secondary materials from one country to another must simply notify the environmental regulatory agencies of both the country of origin and destination, and wait for their approval, which agencies have 60 days to grant.

In summary, the Basel Convention is a treaty between nations—individuals and companies are not required to be familiar with it or comply with it. The convention accommodates and encourages transnational transfer of recyclable materials; however, exporters are required to know and comply with the laws of the origin and destination countries for any materials, and materials generated in the U.S. are subject to the restrictions in 40 CFR 262. Beneficial reuse professionals and their suppliers and customers can be confident that if they are complying with RCRA, they needn’t be concerned about the Basel Convention. Once I explained the ins and outs of the convention to our customer's head environmental lawyer, he went from barrier and gatekeeper to enthusiastic supporter on this and other projects. Regulatory conversations like these, even when it seems the customer is being overly cautious, can actually be opportunities to increase the customer's comfort level with your waste management/beneficial reuse firm's competence in navigating the regulatory landscape and commitment to responsible product stewardship.

Mark Myers is the owner and principal at GAIA Science Advisors LLC, an ESG and environmental compliance consulting firm in Houston that specializes in chemical recycling compliance. He can be reached through www.gaia-science.com.