New International Restrictions on Plastic Waste Will Disrupt US Plastic Waste Exports – Lexology

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The Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal (the Basel Convention or Convention), which entered into force in 1992, is a multilateral agreement governing the transboundary movement of hazardous waste and certain other wastes. The Convention generally requires that private parties seeking to ship certain kinds of wastes receive consent from the governments of the exporting and importing countries as well as any countries of transit. The Convention was amended in 2019 to expand the type of plastic wastes subject to these requirements, effective January 1, 2021. These amendments will substantially change transboundary shipments of plastic waste and the waste and recycling industries overall. Barring a permissible separate agreement, nonparties to the Convention, which includes the United States and a handful of other countries, will not be allowed to ship regulated plastic waste to Basel parties. This will likely have serious effects on the United States, which shipped more than 1 billion pounds of plastic waste to 96 countries in 2019.

Overview of the Basel Convention

The Convention currently has 187 parties. Nonparties include East Timor, Fiji, Grenada, Haiti, San Marino, Solomon Islands, South Sudan, Tuvalu, and the United States. The Convention generally regulates two types of waste: “hazardous wastes” and “other wastes.” Both categories are generally subject to the same requirements under the Convention. Each party to the Convention also may, by domestic legislation, establish additional standards for what wastes are regulated under each category. That is, the Convention definitions are a floor, not a ceiling.

The Convention defines what constitutes hazardous waste both by the nature of the waste, such as coming from a certain waste stream (e.g., medical waste), as well as hazardous characteristics (e.g., explosivity, toxicity). Since its adoption, the Convention has defined “other wastes” as including household wastes. Previously, plastic waste was generally not regulated by the Convention unless the waste exhibited listed hazardous characteristics.

The Convention’s requirements include a prior informed consent (PIC) regime; an obligation to ensure environmentally sound management; mandatory packaging, labeling, and transport requirements; and information requirements. The PIC regime generally requires that a party seeking to export regulated waste receive consent from the countries of export and import as well as any countries through which the shipment will transit. The goal of these requirements is to ensure that the receiving country has capacity for the environmentally sound management of the proposed waste shipment. The specific procedures for notice and consent are set by domestic legislation in each party, typically with the national environmental authority.

In addition, the Convention prohibits shipments between parties and nonparties unless the countries involved in the shipment are covered by a separate bilateral or multilateral agreement under Article 11 of the Convention. The provisions of an Article 11 agreement must not be less environmentally sound than the Convention. One such agreement exists among the 37 nations in the Organisation for Economic Co-operation and Development (OECD), which include the United States, Canada, Japan, South Korea, Israel, Australia, New Zealand, and various counties in Latin America and Europe. All OECD members except the United States are also parties to the Basel Convention.

The Plastic Waste Amendments

The Plastic Waste Amendments (the Amendments) have added to “other wastes” a range of plastic wastes, with certain exceptions. Accordingly, as of January 2021, the Convention will regulate the international shipment of most plastic wastes under the regulated category of “other wastes.” Some parties have already enacted the Amendments in advance of the January 2021 deadline. The new rules are expected to significantly change the plastic waste trade among the 187 Basel party-nations as well as their trade with nonparties.

In general, certain types of clean, presorted plastic waste that are ready and destined for recycling will be excluded from the Convention. Mixtures of plastic waste, contaminated plastic waste, and plastic wastes mixed with other materials (e.g., paper, metal) will generally be considered “other wastes.” Plastic waste that qualifies as hazardous waste under the Convention will still be managed as hazardous waste.

Impact on United States Waste Trade

The Amendments will effectively stop U.S. shipments of plastic waste to non-OECD countries and potentially also to OECD members that are also parties to the Basel Convention. This is particularly significant because, historically, a substantial share of U.S. exports of plastic waste have been to non-OECD Basel parties, such as India, Hong Kong, Malaysia, and Indonesia.

OECD Council Decision OECD/LEGAL/0266 establishes the OECD Control System for waste recovery, which is a framework for international shipments of wastes similar to the Basel Convention, with some divergent classifications and procedures. Under that decision, OECD member countries are permitted to trade Basel-covered waste with other OECD countries that are Basel Convention parties. According to a recent U.S. Environmental Protection Agency webinar, the United States traded approximately 55 percent of its plastic waste with OECD countries in 2019.

The OECD Council Decision automatically incorporates changes to the Basel Convention waste listings unless a member country objects. In July 2019, the United States objected to the automatic incorporation of the Plastic Waste Amendments. This objection triggered an OECD negotiation, which failed to fully resolve the situation. Plastic waste that is hazardous will still be subject to the OECD’s PIC regime. However, there remains uncertainty with how intra-OECD trade of nonhazardous plastic waste will be handled.

OECD nations have agreed to review the nonhazardous plastic waste issue in 2024. Until then, each OECD nation can determine what controls apply to shipments of nonhazardous plastic waste. Additionally, OECD countries have committed to inform the OECD Secretariat of their decisions and publicize the list of controls applied to nonhazardous plastic waste.

The implementation of the Amendments will likely lead to the following:

  1. Greater incentives to enter into Article 11 Agreements: This includes those between the United States and parties to the Basel Convention, such as the agreement between the United States and Canada, signed in October 2020. That arrangement will allow the United States to continue the trade of nonhazardous plastic waste with Canada.
  2. The expansion of plastic recycling capabilities in the United States: A reduction in foreign markets for plastic waste will likely increase demand for domestic recycling. Similarly, the Environmental Protection Agency (EPA) announced this year its “50 by 30” goal as part of the National Recycling Strategy, seeking to raise nationwide recycling rates to 50 percent by 2030. EPA’s announcement has prompted industry, state, and federal officials to strategize on policy options, aimed at achieving the goal.
  3. Efforts to limit transboundary shipments to wastes expressly excluded from the Agreement: We expect Basel-party jurisdictions to be focused on enforcing new plastic restrictions in the near term. Although there is significant uncertainty surrounding the interpretation and applicability of certain key terms related to the scope of plastic wastes, it appears that certain types of clean, presorted plastic waste that are prepared and destined for recycling will be excluded from the Convention.

The expansion of waste subject to the Basel Convention is expected to alter the organization and operation of the global plastic waste trade, for parties and nonparties alike. The Plastic Waste Amendments are likely to significantly disrupt the export of plastic waste from the United States.