22 ELR 10701 | Environmental Law Reporter | copyright © 1992 | All rights reserved

The Transboundary Movement of Hazardous Waste: Implementation and Enforcement of Control Regimes in the European Community

Editors' Summary: The European Community (EC or the Community), in building its supranational political structure in preparation for full economic integration, increasingly regulates the conduct of individuals and corporations and obligates member nations to implement its regulatory decisions. This regulation is most evident in the environmental arena, and perhaps most significant to those doing business in Europe. Initiatives developed by the EC to control the transboundary trade and transport of hazardous wastes have been important vehicles in the development of the EC's supranational identity in environmental matters. This is due to the economics of such shipments, the relatively small size of the EC and the proximity of the member states to one another, and public concern about exporting hazardous wastes to developing countries and Eastern Europe. The authors, focusing on the experiences of the Netherlands and its stringent standards for hazardous waste management analyze the EC member states' experience in implementing existing EC hazardous waste transport legislation, which requires the prior informed consent of the parties involved. The authors analyze the difficulties experienced in both the formal and practical implementation of the existing EC transboundary waste legislation, and suggest that the aggressive Dutch enforcement program is exemplary. They then review recent international developments that will affect the EC's future approach to controlling transboundary movement of hazardous waste, particularly the Basel Convention, the fourth Lome Convention, and the 1992 Organization for Economic Cooperation and Development decision concerning control of wastes destined for recovery operations. Finally, noting the lessons the EC's experience provides for the world's efforts to control hazardous waste transport, the authors warn that those doing business in Europe must understand and comply with the existing EC transboundary hazardous waste transport regime, stay ahead of the curve to withstand increasingly heightened scrutiny and pressure, and seek ways to minimize the generation of hazardous waste.

The authors are staff attorneys in the United States Environmental Protection Agency, Office of Enforcement. The views expressed in the Article are solely those of the authors; they do not necessarily reflect the views or policies of the Environmental Protection Agency. The authors wish to thank Kathie Stein, Michele Anders, Wendy Grieder, and Peter Lallas for their assistance in researching and providing comments on this Article.

[22 ELR 10701]

Agrand experiment is unfolding in Europe. By integrating their economies, the 12 nations of the European Community (EC or the Community)¹ are rapidly creating an unprecedented supranational political structure that exhibits "quasi-sovereign" characteristics. This evolution is partly a function of the Community's original design,² and partly a "spillover effect" from more recent preparations [22 ELR 10702] for full economic integration, targeted for the end of 1992. Through means that derive as much from the tradition of diplomacy and treaty-making as that of national legislation-making,³ the EC increasingly regulates the conduct of individuals and corporations and obligates member nations to implement its regulatory decisions.⁴ With the exception of pure "economic" regulation, in no field is this evolution more evident, and perhaps more significant to those doing business in Europe, than in environmental regulation.⁵

The regulation of hazardous waste transport, and particularly transboundary waste shipments, has been an important vehicle in the EC's development of its supranational identity in the area of environmental regulation. The EC's involvement in controlling transboundary trade in hazardous waste derives from several factors. First, hazardous waste management, including the shipment of such wastes to treatment and disposal facilities, is an economic activity that has implications for the opening of international markets and integration of national economies. The siting of facilities capable of treating or disposing of particular types of hazardous waste from a number of generators in the region may be necessary to provide the economies of scale required to ensure viability of certain treatment or disposal options. To the extent such treatment or disposal options are environmentally desirable, some regional centralization of waste management facilities may have environmental as well as economic benefits. These waste management services may not be evenly distributed among and within the member states, requiring movement of wastes between the member states to achieve these economies of scale.

Second, given the relatively small size of the EC and the proximity of the member states to one another, the notion that "pollution knows no national boundaries" is particularly applicable in Europe, where improperly disposed hazardous wastes threaten the environment of neighboring states. Third, public concern about exporting hazardous wastes to countries in the developing world and Eastern Europe, which often lack adequate means to ensure environmental protection, has influenced the EC's relations with these and other countries and has shaped its role in regulating shipments of hazardous wastes from the EC.

This Article will analyze the EC's experience in implementing existing EC legislation controlling the transboundary movement of hazardous waste. The discussion particularly focuses on the experience of the Netherlands, a country whose hydrogeologic and geographic circumstances, combined with an aggressive approach to environmental protection, provides a unique example of member country implementation of the EC's transboundary waste regime. The Article then looks beyond the current EC regime, reviewing recent developments in the international community that will affect the EC's future approach to controlling the transboundary movement of hazardous waste, particularly the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal, the fourth Lome Convention governing trade between the EC and much of the developing world, and the 1992 Organization for Economic Cooperation and Development (OECD) decision concerning the control of transfrontier movements of wastes destined for recovery operations.

Implementation of EC Environmental Law

An understanding of the relationship between the four principle organs that formulate and implement EC environmental legislation (the Commission, the Council, the Parliament, and the Court of Justice), and the various legislative tools of the EC (for example, directives, regulations, and Council decisions), is essential to any analysis of EC environmental legislation and its implementation. Rather than reviewing in detail the basic anatomy of EC environmental law, however, the reader is referred to the wealth of existing literature on these topics.⁶

In the specific context of the EC's transboundary waste regulation, however, a few salient points are worthy of note. First is the notion that Council directives, historically the primary tool of Community environmental policy, are not immediately effective in member states, but must be implemented by the laws or regulations of the member states within time limits set by the Council.⁷ Regulations, on the other hand, are directly binding and applicable in member states. Although regulations have not been widely used for environmental legislation, in 1990 the Economic and Social Committee, a consultative body for the Commission, recommended that all future EC environmental laws be drafted as regulations, rather than as directives, to avoid delays in implementing legislation to address urgent pollution problems.⁸

Second, it is important to note that implementation of directives occurs in two stages: first, the incorporation of the directive into the member state's national laws and administrative measures (formal implementation), and second, ensuring that those laws and administrative practices properly implement the directive (practical implementation).⁹ States often will attempt to implement EC directives with the least possible change to their preexisting national [22 ELR 10703] laws.¹⁰ Whether a directive requires adoption of new statutory authority, as opposed to the adoption of administrative rules or orders, or simply the change of administrative practices, may well depend upon both the individual states' legal regime in place and the degree of authority and flexibility vested in that states' environmental administrative bodies.¹¹ Thus, the legal instruments chosen for formally implementing a directive, and the language employed in those instruments, vary widely among member states.¹²

Formal implementation fails when a state's laws deviate from a Community directive and its associated policy. Such deviations may occur in a variety of ways. For example, a national law might successfully implement most of a directive, but omit or be inconsistent with other parts of such a directive. Such departures from the directive in the text of the national laws, however, may be offset if the directive is implemented in practice.¹³ In other instances, national laws which regulate more stringently than the EC legislation they are designed to implement may infringe on EC law by contravening EC legal principles relating to nondiscriminatory trade, a particular problem when implementing controls on transboundary movements of regulated materials.

No matter what the mode of deviation, it may be difficult to determine whether national laws properly implement a directive without experience in the practical implementation stage, because "the internal logic of national legal systems means that precise equivalences often do not exist."¹⁴ Moreover, EC directives (and, often, regulations) leave the choice of enforcement mechanisms to the discretion of the individual member states.

Historically, the implementation of EC environmental directives has been marked by delay and a proliferation of infringement proceedings against member states. Some have argued that this situation may worsen, to the extent that the Council may adopt environmental legislation using its qualified majority powers pursuant to the 1986 Single European Act.¹⁵ The Commission has sought to address the chronic problem of delay through dialogue with member states seeking to minimize the need to resort to infringement proceedings.

The 1990 creation of the European Environmental Agency (EEA) may, in the future, have a significant impact on the EC's ability to ensure implementation of its legislation, particularly in the area of transboundary waste shipments.¹⁶ Originally conceived as a research and data collection agency, the EEA, in cooperation with the Commission, may come to play an important role in monitoring implementation of EC legislation. Indeed, some have called for vesting the EEA with supervisory authority over member state environmental regulatory agencies, including the authority to conduct independent inspections to supplement the enforcement role of the national bodies.¹⁷ With pressure within the European Parliament to imbue the EEA with complete enforcement powers, a possible compromise may result in granting the EEA a role in coordinating national enforcement authorities and auditing their inspections of regulated entities.¹⁸ If it is given a significant role, the EEA may be able to assist the Commission in addressing delays in implementing EC legislation. Moreover, because implementation of the EC controls on transboundary waste shipments requires a level of cooperation among the member states not required for regulation of wholly domestic activities, this may be a natural area for the EEA to play a major coordinating role in ensuring adequate implementation.

Transboundary Movement of Hazardous Waste Under EC Law

The Current Regime

The EC's experience in implementing environmental directives is exemplified in its efforts to effectuate a comprehensive regime to control transboundary movements of hazardous waste. In 1984, responding to public outcry over the disappearance and subsequent discovery in France of dioxin wastes from the cleanup of a chemical factory in Seveso, Italy,¹⁹ the EC adopted a directive (Council Directive or Directive) to control the movement of hazardous wastes from one member state to another.²⁰ The Directive was later amended to apply as well to member state hazardous wastes exported to non-Community countries.²¹

The Directive requires the prior informed consent of receiving countries to hazardous waste shipments, both within the EC and to third states.²² Notification is accomplished [22 ELR 10704] through a uniform consignment note, which the initiator of a transfrontier shipment (the "holder") must submit to all states involved with the export, import, and transit of the shipment.²³ The note must specify the source and composition of the waste, route of transport, and, for the purpose of ensuring against damage to third parties, measures to provide safe transport and the existence of a contract with the destination facility (the "consignee").²⁴ For shipments to non-EC states, the holder must obtain the consent of the destination state before submitting the notification.²⁵ The shipment is authorized by an acknowledgement of receipt,²⁶ entered on the consignment note, from the appropriate authority of the responsible member state. For shipments entirely within the EC, the responsible state is the destination state. For shipments from an EC state to a non-EC state, the EC state of origin generally provides the acknowledgment, based on demonstration of the receiving country's consent by the exporter.²⁷

Any objections to the shipment by the acknowledging state²⁸ must be based on "laws and regulations relating to environmental protection, public policy and public security or health protection" which conform with the Directive or other EC instruments or international conventions.²⁹ A state of origin or transit may impose conditions on the shipment through its territory, provided they are no more stringent than domestic shipment restrictions. For intra-EC shipments, however, the state of origin may only object to the shipment altogether if the shipment conflicts with international obligations or interferes with domestic waste management plans devised pursuant to EC waste directives.³⁰ The Directive sets up a system for tracking shipments similar to the hazardous waste manifest system in the United States, by requiring copies of the consignment note, including the acknowledgment, to accompany each shipment. The exporter, and for intra-EC shipments, the receiving facility too, must send copies of the note to each of the concerned EC states.³¹ For shipments outside the Community, the exporter must certify that the waste has reached its proper destination.³² The Directive allows the costs of implementing the notification system to be charged to the generator or the exporter and imposes on the generator the responsibility of arranging for disposal "so as to protect the quality of the environment."³³

The Directive defines "hazardous wastes" by reference to [22 ELR 10705] preexisting EC definitions.³⁴ These covered wastes, however, do not include nonferrous metal waste "intended for re-use, regeneration, or recycling on the basis of a contractual agreement," which is exempt from the controls of the Directive, provided both the exporter and the consignee declare their intentions that the material actually be so used.³⁵

Formal Implementation of the Transboundary Waste Directive

Full implementation of the Directive has not been quickly or easily accomplished. The transboundary hazardous waste system was originally drafted and proposed by the Commission as a regulation, however, the Council preferred to adopt it as a directive requiring implementation via the laws or regulations of the member states within the time limits set by the Council. The Directive's specific language, however, attempted to meet this problem by apparently leaving member countries little room for flexibility in implementing the Directive. Thus, the Council chose aggressive timetables for implementation of both the original Directive and its 1986 Amendment in member states.³⁶

By the beginning of 1987, however, only Germany had adopted legislation to implement the original Directive, and this covering only intra-Community shipments.³⁷ The Commission became increasingly frustrated by the lack of an integrated response to the Directive, especially after the 1986 Amendment.³⁸ The Amendment's expansion of the Directive to include regulations of non-EC waste transactions linked the Community's global reputation as a responsible actor in controlling hazardous waste exports to the Commission's ability to ensure effective implementation of the EC's directives. Thus, in late 1987, the Commission initiated discussions with high-level officials of the member states, which responded by intensifying efforts to implement the Directive and its 1986 Amendment.³⁹

The Commission's frustration peaked in the first half of 1988, when it became aware that a German ship, the Karin B, loaded with 2,100 tons of Italian hazardous waste, had sailed to Nigeria to dump its cargo, in contravention of the Directive. After the ship was turned away in Nigeria, 66 African, Caribbean, and Pacific nations issued a declaration decrying the export of wastes from the developed world and seeking EC enforcement of the Directive.⁴⁰ The Commission responded by initiating infringement proceedings against the nine member states that had not adopted implementing legislation,⁴¹ and having the Commissioner personally appeal to each of these state's environment ministers for compliance with the Directive.⁴² However, the return of the Karin B to European waters in August 1988, and the refusal by at least four EC countries to accept the hazardous cargo, kept the issue in the forefront of public concern.⁴³

The Commission met the public's concern by discussing implementation problems bilaterally with the member states. By the end of 1988, 10 EC member states had adopted legislation. In addition, the increased dialogue helped to ensure that these pieces of legislation did not suffer from defects due to carelessness or misunderstanding of the Directive. Nonetheless, the Commission was not able to eliminate intentional deviations from the Directive, to ensure even partial implementation in all member states, or to prevent delay in the implementation of the Directive.⁴⁴

As of September 1990, with the Commission preparing a new proposal to expand and reform the transboundary waste control regime, the EC's newest members, Spain and Portugal, had not adopted implementing legislation. France and Greece had problems in implementing the Directive, while the Federal Republic of Germany and the Netherlands had only partially implemented the Directive.⁴⁵ By the end of 1990, Directive-infringement proceedings initiated in early 1988 were still pending against five member states.⁴⁶ Although most of these proceedings have been resolved, [22 ELR 10706] the Commission has more recently discovered other infringements of the Directive by member states.⁴⁷

For many states, adapting the Directive's procedures to national institutions, and moving the new rules through internal legislative processes, has been far more intricate than originally predicted.⁴⁸ Member countries cited the vagueness of the EC definition of "hazardous waste" as a reason for delay, because it allowed individual states flexibility in defining hazardous wastes under their own laws, creating confusion and practical difficulties in designing national programs requiring notification to other countries when transboundary waste movements are contemplated.⁴⁹ Perhaps the most significant reason for delay, however, was anticipation of fundamental changes in the regime for transboundary movement of hazardous waste, while both the OECD and the United Nations Environment Program (UNEP) were already contemplating a new regime, with its own definition of wastes subject to transboundary controls.⁵⁰ The delay in implementation may have been enhanced further by the dependence of successful operation of the control regime upon the cooperation of all member states.⁵¹

Problems With Formal Implementation — Infringement of the Directive

In addition to delays in adoption of formal implementing legislation, in some countries, the legislation adopted appeared to the Commission to deviate from the Directive or from EC policy regarding trade liberalization within the Community. For example, the Commission is considering bringing an infringement action against Germany in the European Court of Justice. Germany's Waste Management and Waste Avoidance Act of 1986,⁵² and its Ordinance on the Transfrontier Shipment of Waste of November 18, 1988,⁵³ adopt a permit system for authorizing hazardous waste exports. The ordinance allows Germany to reject a proposed export based on its evaluation of whether management of the waste in the receiving country is likely to cause harm in Germany. The EC's position is that this exceeds the Directive's limitations on the authority of the exporting country to object to shipments and thereby interferes with the operations of the EC internal market.⁵⁴

Another infringement proceeding, this against Belgium, is pending before the European Court of Justice. One of Belgium's major political subdivisions banned all imports of hazardous waste. The Court's Advocate General has issued a preliminary ruling that this regulation infringes on the Directive, again on the ground that it interferes unduly with the EC's principles of open trade among its members.⁵⁵ And, in another matter discussed more fully infra, a Dutch tribunal, ruling on an appeal of Dutch environmental officials' rejection of a proposed export, found that the Dutch statute and regulations which implement the Directive contravene free trade principles of the European common market. These examples underscore the tension inherent in the dual nature of hazardous waste as a potential environmental risk, and as a potential good in both domestic and international commerce subject to EC laws concerning the creation of a single Community market.

Problems With Practical Implementation — Cooperation and Integrated Implementation

The Directive's reliance upon the interdependence of member states has contributed to problems of practical implementation. For example, though an exporting country may have implemented the Directive by imposing compliance obligations on its own industries, where a receiving country has not yet implemented the Directive, exporters in complying countries have been either unable to identify the competent authority in the receiving country for sending the notification, or have found the receiving country unable to process and respond to notifications.⁵⁶ The problems associated with different levels of implementation have been exacerbated by the Directive's lack of clarity in allocating compliance obligations among parties involved in the export transaction. The Directive requires notifications to be submitted by the "holder," defined as "the producer of the waste or any other person or undertaking who or which proposes to carry out or to have carried out a transfrontier shipment of waste."⁵⁷ The Directive more generally establishes the responsibility of the waste producer to "take all necessary steps" to ensure disposal of the waste "so as to protect the quality of the environment …."⁵⁸ Yet there is no clear allocation of regulatory responsibility among the producer and others involved in the transaction.⁵⁹

Difficulties in practical implementation of the Directive are also a result of different interpretations by member states of its scope, which derives from differing approaches to implementing the EC's definition of "hazardous waste."⁶⁰ Some member states have even applied the Directive to a broader scope of [22 ELR 10707] wastes than contemplated, including certain waste solvents that are specifically excluded from the Directive's regulation of transboundary shipments but which may otherwise be considered hazardous wastes under EC law,⁶¹ and household wastes which fall outside of the EC hazardous waste definition altogether.⁶² Other practical implementation problems arise from circumvention of the hazardous waste system by exporters through the mislabelling of wastes as goods. At least one member country has complained of examples where the authorities of a fellow EC state have not adequately monitored for false claims that shipments do not involve wastes.⁶³ Similarly, it may be difficult to ensure that claims for the exemption for nonferrous metal wastes destined for recycling are scrupulous.⁶⁴

Practical implementation of the Directive depends on the development of administrative capabilities for processing notifications and acknowledgments, as well as the capacity for, and vigilance in, enforcing its requirements. The cooperative exchange of information between the member states regarding basic data on shipments and enforcement investigations is essential to the success of the transboundary control system. Though both the pace of development of adequate enforcement and administrative structures and the adequacy of information exchange has been criticized,⁶⁵ the EC's supranational identity, including its growing role in monitoring and enforcing implementation of EC environmental legislation, makes it unique as a regional multinational entity poised to ensure effective control of transboundary movements of hazardous wastes.⁶⁶ This role is complemented by the growing cooperative interaction of member states, particularly at the subregional level. For example, by mid-1990, Germany, Belgium, the Netherlands, and Luxembourg had established an informal consultative body for cooperation and the exchange of information on transboundary movements of hazardous waste.⁶⁷

The Dutch Experience: A Case Study in Implementation

The Netherlands is one of the most densely populated countries in the world, creating a premium on available space. In addition, its unique hydrogeology, characterized by large portions of land at or below sea level and a high groundwater table, has led to the adoption of stringent standards for hazardous waste management and disposal. These two facts combine to make hazardous waste disposal in the Netherlands inherently expensive, and its export to foreign countries particularly attractive. Accordingly, the Netherlands has instituted an aggressive approach to controlling transboundary shipments, including an exemplary program for enforcing its laws implementing the EC's transboundary waste Directive.

As a result of the aggressive Dutch enforcement program, and a policy emphasizing self-reliance in hazardous waste management, recent increases in Dutch hazardous waste exports appear to have levelled off, notwithstanding increases in the amount of hazardous waste generated in the Netherlands. In 1989, nearly 20 percent of the approximately one million tons of hazardous wastes generated in the Netherlands that year were exported for treatment, incineration, or disposal — an increase from previous years.⁶⁸ Nearly half of this waste was exported to East Germany for land disposal, with substantial amounts also going to Belgium, West Germany, Britain, and France for treatment, incineration, and disposal.⁶⁹ Between 1989 and 1991, however, exports from the Netherlands remained stable despite significant increases in quantities of waste generated — and 1991 figures represented a substantial decrease in wastes exported for land disposal, as opposed to recycling, incineration, or treatment.⁷⁰

Dutch Implementing Legislation

The Dutch Chemical Waste Act (DCWA) was amended in 1988 to implement the EC transboundary waste Directive, as amended in 1986. Adopting a policy of promoting reduced dependence on other countries for disposal, the 1988 amendments and implementing regulations allowed the Dutch Ministry of Housing, Physical Planning, and the Environment to prohibit proposed export shipments to other EC countries if the waste could be processed or disposed of in the Netherlands. The Ministry's decision is to be based on several factors, including the possibility that the receiving country's withdrawal of its permission to accept the waste might disrupt the continuity of disposal, the effectiveness of the foreign treatment or disposal method compared with the effectiveness of, and capacity for, domestic treatment or disposal, and the risk that exporting wastes to a cheaper foreign facility will result in underutilization of existing disposal capacity in the Netherlands and thereby endanger the viability of the domestic facility. The latter consideration was to be balanced against the benefit to the waste generator of exporting the waste. The Ministry can also prohibit the export, or allow it for only a limited period, if it is possible to prevent generation of the waste in the first place.⁷¹

[22 ELR 10708]

In September 1990, the Netherlands Council of State deemed those regulations that allow the Dutch Ministry to deny a proposed export of wastes to be inconsistent with the EC transboundary waste Directive and violative of free market principles of internal EC trade, particularly as expressed in Article 30 of the Treaty establishing the European Economic Community.⁷² Ruling on an appeal of the Ministry's denial of a proposed export shipment to Germany, the Dutch Council of State found that the regulations gave the Ministry broader authority to reject proposed export shipments than was contemplated in the EC Directive.⁷³ The Directive presumes that member states will manage wastes with equally high base levels of protection. Therefore, while the Directive provides the receiving country with the right to object to proposed intra-EC shipments, it limits the right of the exporting state to object. In particular, it prohibits the exporting state from judging the treatment capacity of the proposed state of receipt. Accordingly, the Council of State found that the Dutch regulations provided its Ministry with power not authorized by the Directive, as applied to intra-Community waste exports from the Netherlands.⁷⁴

In addition to its provisions governing shipments to EC countries, the Dutch statute and regulations implementing the EC Directive contain several other interesting aspects. For exports to non-EC countries, the regulations implementing the DCWA and its amendments envision evaluating the environmental merits of the foreign disposal method in light of Dutch standards, taking into account geohydrologic considerations. Evaluation of the foreign disposal method would be carried out in consultation with experts from the proposed receiving country. This would effectively preclude exports to developing countries.⁷⁵

The DCWA amendments and implementing regulations also address hazardous waste imports to the Netherlands, which are limited.⁷⁶ They allow rejection of an import proposal not only if the proposed disposal would not conform with the receiving facility's permit, but also if the disposal "is otherwise detrimental to the environment."⁷⁷ In addition, imports to a storage facility in the Netherlands would require adequate information about, and approval of, the ultimate destination of the waste.⁷⁸

Administration and Enforcement

Administration and enforcement of the transboundary control scheme in the Netherlands is shared by three organizations within the Ministry of Housing, Physical Planning, and Environment. The Bureau for Notifications, and the DCWA, are responsible for processing notifications. The Policy Department of the Waste Management Section makes the actual decision whether to allow a transboundary shipment to occur. The Office for the Enforcement of EC Directives is responsible, through inspection and control, for detecting violations and bringing appropriate enforcement responses.⁷⁹

The Dutch government has an aggressive policy of enforcement of the EC's transboundary waste Directive, as implemented in its national laws.⁸⁰ Enforcement techniques include routine inspections and review of documents, as well as random border checks, responses to public tips, and cooperation with other law enforcement agencies. Criminal and civil enforcement actions are taken when violations are detected, and efforts are made to persuade shippers of noncomplying shipments to halt shipment.⁸¹ Dutch officials emphasize that truly effective implementation of the system requires EC-wide implementation and coordination.⁸²

Dutch officials have expressed particular interest in enhancing detection and control of waste exports shipped under false claims that the shipments are secondary products for use in further manufacturing.⁸³ In addition, a program of stringent enforcement has considerably increased the number of notifications received by the Dutch government for proposed shipments of nonferrous metal wastes, which facilitates verification of claims that such shipments are exempt from the EC control regime because they are destined for recycling.⁸⁴

The problem of false claims that materials shipped are not subject to regulations becomes particularly complex when the laws of the exporting country and the importing country differ as to the regulatory treatment of a specific waste. For example, some countries' regulations are more lenient on industrial byproducts to be reused in further manufacturing processes than are the Dutch regulations. A recent incident involving the import of "steel filter dust" from Germany to the Netherlands exemplifies this problem and highlights the typical difficulties in taking enforcement [22 ELR 10709] actions against waste traders, who are often foreign companies with an unstable existence.

A German company failed to obtain the consent of Bulgaria, Poland, and one of the Soviet republics for the importation of 1,700 tons of filter dust for processing, and so allegedly exported the waste into the Netherlands without complying with the DCWA regulations requiring the company to obtain authorization from the Ministry for the shipment. The government ordered the company to return the waste to Germany immediately. The company did not remove the waste and, in the first such action taken by the Dutch government against a foreign company, the Ministry imposed a fee of $28,000 per day, up to a maximum $840,000, for each day the waste remained in the Netherlands. The company reportedly had exported other shipments of the same waste to Poland after it had banned imports of hazardous waste.⁸⁵ Although the German exporting company had apparently dissolved, its former officials claimed that the filter dust in question was not waste. Apparently, although the material was considered a waste under Dutch regulations, German regulations considered the material to be a product. Notwithstanding these problems, the Dutch government reported that the matter was resolved to its satisfaction and the material was returned to Germany.⁸⁶

Beyond the Current Regime: Basel, Lome, and OECD Initiatives

As EC countries began to confront the difficulties of implementing the transboundary waste Directive, multilateral efforts requiring significant alteration of the EC transboundary waste regime were underway. As early as February 1984, the OECD⁸⁷ had begun to focus on the need to control the transfrontier movement of hazardous wastes and to recommend principles for a hazardous waste transport control system.⁸⁸ In June 1985, the OECD Council issued a resolution calling for development of an OECD control system, and instructed the OECD Environment Committee to craft a control system agreement by the end of 1987.⁸⁹

The Basel Convention

The OECD's efforts provided the foundation upon which UNEP could develop a global transboundary hazardous waste control regime.⁹⁰ In June 1987, UNEP began to craft a control regime agreement which was completed in March 1989, and formally named the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.⁹¹

The EC supported the OECD and UNEP efforts from the outset. In 1987, the Commission proposed unified EC participation in the OECD efforts.⁹² In November 1988, the Council adopted a decision formally mandating the Commission to participate in efforts to negotiate the broader UNEP agreement,⁹³ and the following month adopted a resolution stressing "the urgency of reaching an agreement on a system at the widest possible international level."⁹⁴ Early negotiations had yielded an outline of an agreement that "reflect[ed] on a wider scale" the principles of the EC's transboundary waste Directive, including minimization of waste, prior informed consent, safe disposal, and generator responsibility for proper waste management.⁹⁵ Negotiations were concluded in Basel, Switzerland, on March 22, 1989, at which time the Convention was signed by the EC Council and eight member states.⁹⁶ The remaining EC members, Portugal, Germany, the United Kingdom, and Ireland signed within the following several months.⁹⁷ Although the EC Commission had pressed for the EC to ratify the Convention quickly, as a single bloc,⁹⁸ controversy over its implementation in the EC has delayed ratification, and France has now ratified the agreement separately.⁹⁹ On February 5, 1992, the twentieth Party deposited its instrument [22 ELR 10710] of ratification, causing the Convention to enter into force 90 days later.¹⁰⁰

The Basel Convention unfolds a new fundamental principle over the prior informed consent system already in place in the EC: A country may not allow the export or import of defined wastes if it has reason to believe the wastes will not be managed in an environmentally sound manner.¹⁰¹ The Convention forbids exports to countries that are not parties to the Convention, unless a bilateral, multilateral, or regional agreement or arrangement that includes provisions that are "not less environmentally sound" than those of the Convention, with that country is in place.¹⁰² The Convention also requires the exporting state to permit exports of covered wastes only when: (1) it lacks "the technical capacity and the necessary facilities, capacity or suitable disposal sites" to ensure disposal "in an environmentally sound and efficient manner"; (2) the wastes are required as a raw material for recycling or recovery industries in the importing state; or (3) the shipment otherwise meets criteria to be decided by the Parties to the Convention in accordance with the Convention's objectives.¹⁰³

The Convention covers hazardous wastes, as defined in it, as well as household wastes and residues from their incineration that are defined as "other wastes."¹⁰⁴ "Hazardous waste" includes all wastes considered hazardous under the domestic law of the party of import, export, or transit, as well as wastes listed in Annex I to the Convention which exhibit characteristics listed in Annex III.¹⁰⁵ Annex I includes a list of waste streams and a list of waste constituents, of which the presence of the latter renders a waste hazardous.¹⁰⁶ Characteristics listed in Annex III include explosivity, flammability, combustibility, acute poisonousness, chronic toxicity, corrosiveness, infectiousness, and ecotoxicity. Rather than set forth tests for determining if wastes listed in Annex I meet these characteristics, Annex III states that further research is needed, but allows countries to apply their own procedures developed for waste characterization.¹⁰⁷ By including household wastes and a definition of hazardous waste that is not equivalent to the EC's, the scope of wastes covered by the Convention is broader than that covered in the EC's transboundary waste Directive.

When a shipment of covered waste cannot be completed in accordance with the terms of the contract between the exporter and consignee, the Convention obligates the exporting state to ensure that the waste is returned by the exporter or that alternative arrangements be made for environmentally sound disposal.¹⁰⁸ In addition, shipments are "illegal traffic" if they occur without notification or consent. Consent is obtained through false information provided in the notification or other misrepresentation that the shipment does not materially conform to the documents, or that the shipment results in deliberate disposal in contravention of the Convention or general principles of international law.¹⁰⁹ If the illegal traffic was the result of conduct by the exporter or generator, the state of export must ensure return of the waste or, if impracticable, alternative "environmentally sound" disposal.¹¹⁰

The linchpin of the Basel Convention is the prohibition of waste exports unless the receiving country provides for their environmentally sound management. The Convention defines this to mean "taking all practicable steps to ensure that [covered wastes] are managed in a manner which will protect human health and the environment against the adverse effects which may result from such wastes."¹¹¹ However, the extent of this "environmentally sound management" standard is left for further definition by the Parties and will likely be among the first items of business at early meetings of the Parties (scheduled to begin in late November 1992, in Geneva) now that the Convention has entered into force. Thus, with the exception of France, the EC's participation in these critical implementation meetings is likely to be by observer status only, unless the EC or its members finalize implementing legislation and ratify the Convention before such meetings begin. In addition, because the Convention generally forbids transboundary shipments between a Party and a non-Party,¹¹² any shipments of covered waste after May 5, 1992, between an EC country (except France) and another country that is a Party to the Convention will violate the Basel Convention Party's international legal obligations, unless the EC or the member state first ratifies [22 ELR 10711] the Convention or enters into an alternative agreement or arrangement with the Basel Convention Party.¹¹³

The Lome Convention

Even as the Basel Convention was being negotiated and signed, it was clear that it would not be the last word by the international community on the export of hazardous wastes to the developing world. Many African officials were concerned that the Convention did not provide adequate mechanisms to receiving countries to enforce the Convention's obligations on industrialized exporting countries,¹¹⁴ and so, none of the 39 African nations represented at the final negotiating session signed the Convention.¹¹⁵ In response to the Karin B incident, 66 African, Caribbean, and Pacific (ACP) nations in mid-1988 called for a ban on toxic waste dumping in their countries by the developed world.¹¹⁶ These 66 nations were parties to the Lome Convention for economic development, assistance, and cooperation between the EC and the ACP states. In light of the call by the ACP nations to ban toxic waste dumping in their countries by developed countries, the fourth revision of the Lome Convention (Lome IV) in December 1989, by agreement, included a provision prohibiting the export of all hazardous and radioactive waste from the EC to any ACP state and banning the import by the ACP countries of such waste from any country.¹¹⁷ "Hazardous wastes" subject to the prohibition of Lome IV by definition include wastes listed in Annex I and II of the Basel Convention, and thus include household wastes and incinerator residue therefrom.¹¹⁸

EC Efforts to Implement Basel, Lome IV, and the Single Market

On October 26, 1990, the EC Commission adopted a proposal for revising the existing EC transboundary hazardous waste control regime in order to implement the Basel and Lome IV Conventions' new international obligations.¹¹⁹ The proposal is based on revisions to the requirements for shipping within the EC that are consistent with the abolition of the EC's internal borders, which is linked to the completion of the internal market by the end of 1992. Moreover, the proposal seeks to address difficulties experienced in defining the scope of the existing regime, and in implementing the transboundary waste Directive's exemption from most control requirements for nonferrous metal waste destined for recycling.¹²⁰ To avoid the "disorderly and confused situation" associated with the varied and unpredictable procedural implementation of the existing EC transboundary waste Directive and instead guarantee "simultaneous and harmonious application in all Member States," the Commission's proposal was presented to the Council in the form of a regulation, as opposed to a directive.¹²¹

The proposed regulation adopts a broader scope than the existing transboundary waste Directive, in part to implement the Basel Convention's expanded coverage, and in part to respond to difficulties experienced when implementing the existing Directive. Differences between member states' definitions of hazardous waste and the lack of a clear line of demarcation between hazardous and nonhazardous wastes, as exemplified by several member states acting to, or considering to expand their lists of hazardous wastes covered by the Directive, created the potential for abuse of the Directive. In addition, the Commission noted that dumping of nonhazardous wastes in neighboring states often may create as much of a negative reaction in the receiving country as does trade in hazardous waste. Thus, it saw an expanded scope as necessary both to protect the environment and to help complete the EC's internal market.¹²² Accordingly, the proposed regulation starts with the assumption that all waste is covered, excepting only certain categories of nonhazardous wastes intended for reuse and household waste before being collected and dumped.¹²³

The proposed regulation sets forth distinct procedures for transport of waste within the EC and shipments involving third countries. Several provisions seek to implement the requirements of the Basel Convention, requiring the state of origin to ensure the consent of the receiving state, to [22 ELR 10712] apply the Basel Convention's "environmentally sound management" standard, and to prohibit exports to the ACP countries and other states not party to the Basel Convention, unless a bilateral agreement exists in accordance with Article 11 of the Basel Convention.¹²⁴ Where a shipment of waste cannot be completed, and where shipments were exported illegally, responsibility for return of the waste to the country of origin applies to shipments within the EC as well as those involving third countries.¹²⁵ In addition, a security bond in an amount to be determined by the Commission would be required for all shipments.¹²⁶

For intra-EC shipments, the proposal omits the Basel Convention requirement that the country of export prohibit exports if it has reason to believe the waste will not be managed in an "environmentally sound" manner in the receiving country.¹²⁷ The proposal does, however, promote the principle of "proximity" — wastes should be managed as close as possible to the point of generation. An exporting country would be given the opportunity to object to the shipment at its discretion, if there is an alternative authorized facility that can manage the waste using suitable, highly protective technologies, and it is significantly nearer than the proposed receiving facility.¹²⁸ The country of origin also may object to a shipment if the exporter or importer has a history of illegal trafficking in waste.¹²⁹ The receiving state may object on the same grounds or on the basis of domestic environmental, public order, or public health laws and regulations that are in accordance with the EC law.¹³⁰ Unlike the existing EC transboundary waste Directive, the proposed legislation would bifurcate the acknowledgement of receipt and consent process, with the receiving country sending an acknowledgment upon receipt of the notification, followed by a consent, objection, or request for additional information within 30 days.¹³¹

The proposed intra-EC regime would eliminate the exemption for nonferrous metal wastes intended for recycling, but replace it with an alternative notification procedure applicable to all wastes intended for further use. The proposal would still require notification for these wastes shipped within the EC, but would allow the shipment to proceed on the basis of implied, rather than written, consent of the receiving country if no objection were made within 15 days of first acknowledging the notification.¹³²

The proposed regulation was immediately met with controversy. In preparation for an Environment Council meeting in March 1991, the member states expressed widely diverging views on how best to implement the Basel and Lome IV Conventions, and adjust the intra-EC regime to prepare for the single market. Italy, for example, proposed a ban on exports to any non-EC or non-OECD nation. The United Kingdom suggested a prohibition on any waste exports from the EC for disposal. The Netherlands would have extended this ban to recyclable wastes, with certain exceptions. Regarding intra-EC shipments, the United Kingdom, Germany, and the Netherlands posited that the proposal did not go far enough to encourage member state self-sufficiency in hazardous waste disposal capacity, and that it was too tolerant of transboundary movements.¹³³

Industry representatives, on the other hand, have argued that extending the notification system to nonhazardous wastes will bury the regulatory authorities in paperwork, perhaps resulting in the collapse of the waste management system. In addition, others argue that the opportunity to raise proximity principle objections to exports by the country of origin will interfere with the availability of sophisticated waste management services, result in a form of environmental protectionism inconsistent with the removal of trade barriers in the EC internal market, and force smaller waste generators with little competence in waste management to manage their own wastes.¹³⁴

Responding to the concerns of some of the member states, the European Parliament proposed amendments that would render the regulation more stringent by making the proximity principle a mandatory as opposed to discretionary means for the state of origin to object to a shipment and allowing the importing state to object on the basis of "national waste management plans or policies" in addition to its own laws and regulations that are consistent with the EC legislation.¹³⁵ The Parliament also came out in favor of a complete ban on exports from the EC of wastes for final disposal, allowing exports from the EC of recyclable wastes to the OECD members only, and only for a seven-year period.¹³⁶ Moreover, Parliament sought to link its approval of the regulation to the establishment of the EEA, with the idea that the EEA would operate a shared database on transboundary shipments to facilitate coordination, enforcement, and implementation among and within the EC member states.

The Commission opposes Parliament's amendments, arguing that a broad export ban could cause problems under the General Agreement on Tariffs and Trade, which has been the subject of sensitive negotiations on other matters.¹³⁷ The Commission argues that EC adoption of a regulation that allows ratification of the Basel Convention without squandering time needed to resolve controversy over more stringent proposed measures, is necessary to preserve [22 ELR 10713] Community cohesion on environmental matters.¹³⁸ Moreover, the Commission wishes to avoid tying the regulation to the establishment of the EEA, which exists in form but is without funds or headquarters.¹³⁹

The beginning of 1992 was marked by intermittent periods of progress toward reconciliation of the views of Parliament and the Commission, but a final agreement has not yet been reached.¹⁴⁰ It appears that a ban on all exports for disposal may be acceptable to the member countries, provided that the parties to the European Free Trade Agreement (EFTA) are exempted from the ban.¹⁴¹ The Commission, however, has held firm against banning waste exports for recycling, preferring instead to allow such trade to continue within the OECD and with countries with whom a separate, bilateral agreement could be negotiated under Article 11 of the Basel Convention.¹⁴² The Commission's refusal to accept a blanket ban has led Parliament's environment committee to abandon its refusal to report its opinion in a first reading of the regulation, thereby removing a procedural obstacle to final adoption by the Council. Parliament was motivated by the need to ratify the Basel Convention, but it did not abandon its call for a total ban on exports, but rather preferred to argue this position directly to the Council.¹⁴³ More recently, progress has been noted in solving disagreements on the principles of self-sufficiency and proximity, export and import of wastes for disposal, the level of control by member states of transit, and the issue of movements of waste within a member state.¹⁴⁴ The disagreements between the Commission and Parliament, however, have delayed adoption of the regulation and hindered the EC's ratification of the Basel Convention.

Although unified EC ratification of the Convention is caught in a political quagmire, several EC countries, most notably Germany and the United Kingdom, are moving either toward independent ratification or, at least, toward obtaining legislative authority to implement the Convention.¹⁴⁵ Other countries arguably have existing authority to implement at least part of the Basel Convention.¹⁴⁶ France, which has already deposited its instruments of ratification, adopted its transboundary waste law in December 1988 to implement the existing EC transboundary waste Directive. French lawmakers anticipated the obligations of the Basel Convention, based on the ongoing negotiations leading to the Convention, and so included provisions that reach beyond that required by the transboundary waste Directive.¹⁴⁷ The French law, for example, allows the government to control nonhazardous household waste, covered by the Convention but not the Directive.¹⁴⁸ In addition, the law forbids the export or import of waste when there is no guarantee that its disposal will not endanger the public health or the environment, and it empowers the government to return to the country of origin any waste improperly exported or imported.¹⁴⁹

Similarly, the DCWA provides authority to prohibit hazardous waste exports which derogate from the Basel Convention's "environmentally sound management" standard by allowing applications to export wastes to be rejected if the exports "would be detrimental to the effective disposal of waste or otherwise detrimental to the protection of the environment."¹⁵⁰ The German hazardous waste statute allows the granting of an export license "only if there is no reason to fear any impairment of the public interest" resulting [22 ELR 10714] from management of the exported waste.¹⁵¹ While other adjustments of their national laws may be required to implement the Basel Convention's expanded scope of coverage and its requirements for state and individual responsibility for misdirected or mismanaged waste shipments, these states appear well-situated to ratify the Basel Convention separately from the EC.

Because the EC law has not yet been adjusted to implement the Basel Convention, however, member states' laws enacted to conform their national laws to the Convention may conflict with existing Community law, creating grounds for infringement proceedings against these states. Thus, unilateral ratification of the Convention by member states may not be as simple as it seems, even for those states whose laws arguably approximate the Basel Convention's requirements.¹⁵²

OECD Scheme for Wastes Destined for Recovery

As noted above, the Basel Convention prohibits shipments of covered wastes between a Party and a non-Party to the Convention, the latter of which includes states that have not ratified the Convention yet, unless a separate international agreement or arrangement is in place with that country providing at least equivalent protection, as set forth in Article 11 of the Convention. A problem arises in that this prohibition could interrupt trade in covered recyclable wastes between Parties and non-Parties, in the absence of an alternative international agreement or arrangement. It should be noted that in transactions wholly between Parties to the Convention, such international arrangements can be used to create procedures that operate in lieu of the specific requirements of the Basel Convention, as long as they meet Article 11's requirements that they "not derogate from the environmentally sound management of hazardous wastes and other wastes" and "stipulate provisions which are not less environmentally sound" than those provided in the Convention.¹⁵³

These impending restrictions on the trade of recyclable wastes led the OECD Council to adopt a multilateral "arrangement" (Decision) governing transboundary movement of wastes intended for recycling on March 30, 1992, just prior to the Basel Convention's entry into force.¹⁵⁴ The aim was to prevent interruptions in shipments of recyclable wastes among participating OECD members, including the EC countries and the United States. In addition, by predating the Basel Convention's effective date, the OECD Decision arguably faces a more relaxed standard of protection to qualify as an alternative agreement under the standard of the Basel Convention's Article 11 than agreements created after the Convention enters into force;¹⁵⁵ thus, the OECD scheme modifies the strict requirements of the Basel Convention for wastes traded among participating OECD countries and destined for recovery operations.

The OECD Decision sets up a three-tier system for controlling transboundary movements of wastes destined for recovery operations. The most restrictive tier of waste — red tier — requires written notification to the competent authorities of all countries involved and written consent by the importing country and any countries of transit. Movements under the red tier are subject to a tracking system, requiring the receiving facility to return a copy of tracking documents, which accompany the shipment, to the exporter and the competent authorities of all concerned countries. A legal contract is also required between the exporter and the receiving facility and should both include any provisions for financial guarantees required by applicable national or international law requirements,¹⁵⁶ and specify which party is responsible for alternate management of the waste, should circumstances require.¹⁵⁷ The red list includes wastes containing or contaminated with PCBs,PCTs, or PBBs at concentrations of 50 mg/kg, polychlorinated dibenzo-furans and polychlorinated dibenzo-dioxins, asbestos, and leaded "anti-knock" compound sludges. Also listed, but specifically reserved for reexamination, are tarry waste residues from refining, distillation, and pyrolitic treatment, and peroxides other than hydrogen peroxide.¹⁵⁸

The second tier — amber tier — includes the same contract requirement between the exporter and receiving facility, and the same tracking mechanisms as that of the red tier. Consent of the receiving and transit countries for the transport of amber tier wastes, however, may be obtained through one of two expedited procedures, either of which might be appropriate depending upon the scenario. The first requires notification by the exporter on a per-shipment basis (or, if the importing country elects, annually for multiple shipments of the same waste), but consent to the shipment(s) may be tacit. The importing country is required to acknowledge receipt of the notification within three days of receiving it. Any objections by the importing and/or transit country must be raised within 30 days of the acknowledgment, after which time consent to the shipment is presumed, for up to one year.¹⁵⁹ The second procedure permits the competent [22 ELR 10715] authority to elect not to raise objections to shipments of specified types of wastes to a specific recovery facility for a specified period of time, by notifying the OECD Secretariat. All proposed shipments require advance notification, but may proceed without further acknowledgment or express or tacit consent from the importing country.¹⁶⁰ The amber tier wastes include a wide array of process-specific and chemical-specific hazardous wastes. The amber tier list also provides a list of wastes which will be subject to amber tier controls but will be reexamined, as a priority matter, for potential reclassification.¹⁶¹

Wastes on the third tier — green tier — may be shipped among OECD members for recovery operations without any additional controls other than those "normally applied in commercial transactions."¹⁶² These wastes are presumptively nonhazardous, and include, for example, scrap metals in nondispersible form; certain metal-bearing wastes from melting, smelting, and refining of metals; certain mining wastes in nondispersible form; solid plastic wastes; paper, paperboard, and paper product wastes; nondispersible glass and ceramic wastes; certain textile wastes; certain rubber wastes; untreated cork and wood wastes; certain wastes from agro-food industries; and certain animal wastes from tanning and leather use.¹⁶³ Any wastes on the green or amber lists must be transported in accordance with higher tier controls if they are contaminated with other materials to the extent that the risks associated with the wastes warrant more stringent treatment, or recovery in an "environmentally sound manner" is prevented.¹⁶⁴ Moreover, because the OECD Decision only applies to wastes shipped for recovery operations, such as resource recovery, recycling, reclamation, or direct reuse,¹⁶⁵ if the waste cannot be recycled or otherwise recovered it may not be shipped under this Decision.

In the event that an amber- or red-tier waste is considered a hazardous waste by the importing country but not the exporting country, the OECD regime shifts the procedural notification obligations of the exporting country to the importing country. The Decision sets up a Review Mechanism, which, in addition to improving the lists, may serve as a means of harmonizing waste determination procedures,¹⁶⁶ something several OECD members (including some EC states) deem a high priority.¹⁶⁷

It is not clear what measures EC member states would take collectively or individually to ensure implementation of this multilateral arrangement. Though the red-tier system is essentially in place in the EC, it is likely that some adjustments will have to be made to the EC and/or national legislation to allow movements, by either implied or blanket consent mechanisms, of some of the wastes on the amber list. Nonetheless, the formal adoption of the OECD Decision just prior to the entry into force of the Basel Convention provided an alternative arrangement intended to qualify under Article 11 of the Convention for allowing movement of recoverable wastes to continue between states that have ratified the Convention and those that have not, and for permitting expedited notification for some recoverable wastes traded between developed countries regardless of whether they are party to the Basel Convention. Now that the OECD Decision has been adopted, however, the EC and its member states, as well as other OECD members, will need to review closely their existing systems to determine what adjustments are required.

Conclusion

The European Community was the first multinational organization that attempted to implement a system of prior informed consent to the transboundary movement of hazardous waste among its members and to and from third countries. Although the EC experienced delay and frustration in ensuring full implementation of this system, its experience in this area has secured its place as a leader in revising and improving systems that guarantee not merely informed consent, but also that any movements of waste will be managed in an environmentally sound manner. In many ways, the efforts of the Community are an attempt to grapple with the global experience in controlling waste shipments. The pitfalls of the Community's initial attempts to control waste transport are the results of experimentation where the EC has served as the world's laboratory. The results indicate that any waste transport control system depends upon the integration of numerous aspects of varied countries and systems. The integral nature of a control system demands coordination in implementation, harmonization in the scope of the system, and cooperation in its enforcement among countries whose systems and policies, although similar at the surface, deviate from each other in significant respects. The EC may be able, at least partially, to approach the hurdles associated with the integral nature of its own control system by conducting the next round of legislating in the transboundary waste realm through the device of a regulation rather than by directive, and by creating an EEA to facilitate both tracking of waste transport and ensuring compliance. On a global scale, however, where national systems and levels of development deviate more markedly than within the EC, the ability to avoid pitfalls similar to those associated with the implementation of the Basel Convention is less certain.

Full implementation of the EC's once-revolutionary prior informed consent system is now more or less complete, albeit with minor hitches, as the EC rushes toward a single market and the world embraces improved controls on transboundary movement of hazardous waste. What this means for people doing business in Europe is three-fold: First, it is incumbent to understand, and comply with the existing regime. This requires knowledge of not only the existing EC transboundary waste Directive, but its manifestation in the national legislation and policies of each of the member states through which waste may pass.

Second, it is essential for business interests intending to remain in Europe to stay ahead of the curve. As transboundary environmental concerns take on increasing policy significance in Europe, exporters and importers of hazardous waste will find themselves under heightened scrutiny and [22 ELR 10716] pressure; and transboundary waste regulations will become increasingly prominent on each member country's list of enforcement priorities, perhaps spurred on by the oversight of the EC Commission or the EEA. The notion of the "proximity principle" preventing any export of waste, even to another EC state, if it can be disposed of effectively in the country of origin, may indeed become reality in one form or another. Given the array of sources of legal requirements for waste transported across national boundaries and the fast-evolving nature of the transboundary control regime, it is most advisable to strive for compliance with the most stringent denominator, and to adjust business practices in anticipation of future requirements. Third, and finally, whether motivated by a desire to limit the increasing costs of waste transport and disposal caused by regulatory developments, to minimize liability, or to achieve good corporate stewardship of the environment and any attendant benefits in either increased efficiency or improved public relations, hazardous waste producers should seek ways to minimize the generation of hazardous waste altogether.

1. The EC's member states are: Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, and the United Kingdom.

2. By transferring a portion of their sovereign power to a common bureaucracy, the member states originally vested this bureaucracy with some characteristics of limited governmental authority. See Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, Common Mkt. Rep., (CCH) P8023, at 7390. As conceived in the Treaty Establishing the European Economic Community, economic cooperation among the nations of Europe would lead them to "an ever closer union." Treaty Establishing the European Economic Community, Mar. 25, 1957, preamble 298 U.N.T.S. 11, 14.

3. Nigel Haigh, The Environmental Policy of the European Community and 1992, 12 Int'l Envtl. Rep. (BNA) 617, 618 (1989).

4. See Auke Haagsma, The European Community's Environmental Policy, a Case-Study in Federalism, 12 FORDHAM INT'L L.J. 311 (1989).

5. Id. at 313.

6. An excellent discussion of the institutions, legislative procedures, and legal bases for environmental lawmaking, as well as the role and legal bases or environmental lawmaking, as well as the role of the EC Commission in supervising and enforcing national implementation of EC environmental legislation is found in Turner T. Smith, Jr. and Roszell D. Hunter, The European Community Environmental Legal System, 22 ELR 10106 (Feb. 1992). Other authors explore these topics in detail as well. See, e.g., Haagsma, supra note 4; Dirk Vandermeersch, The Single European Act and the Environmental Policy of the European Economic Community, 1987 EUR. L. REV. 407; Haigh, supra note 3; Trevor Adams, Environmental Law in the European Communities, in INTERNATIONAL ENVIRONMENTAL LAW AND REGULATION (1991); Turner T. Smith, Jr. & Jessine A. Monaghan, Environmental Regulation in the European Community (unpublished Materials for Program on Transnational Environmental Controls, the Critical Issues for the 1990s, at American Bar Association Annual Meeting, Chicago, Aug. 6, 1990) (on file with author).

7. See Introduction to EUROPEAN COMMUNITY ENVIRONMENTAL LEGISLATION, 1967-1987, COMMISSION OF THE EUROPEAN COMMUNITIES DIRECTORATE-GENERAL FOR ENVIRONMENT, CONSUMER PROTECTION AND NUCLEAR SAFETY, Doc. No. XI/989/87, Vol. 3 Chemicals & Waste, Sec. 2.2, at xv.

8. Regulations, not Directives, Recommended to Implement Environmental Laws Faster, 13 Int'l Envtl. Rep. (BNA) 323 (Aug. 8 1990).

9. Nigel Haigh, Comparative Report: Water and Waste in Four Countries, Chapters 6 and 7 (Graham & Trotman Limited 1986) (published as Vol. 1 of EUROPEAN COMMUNITY ENVIRONMENTAL POLICY IN PRACTICE, 1986) [hereinafter Comparative Report].

10. Diana Good, 1992 and the U.S. Manufacturing Industry: Harmonization of Product Standards, Product Liability and Environmental Law, Practicing L. Inst., Mar. 6, 1989, at 49.

11. See Comparative Report, supra note 9, at 84-85.

12. Good, supra note 10, at 49.

13. Comparative Report, supra note 9, at 86.

14. Id.

15. "Environment: MEPs Urge Financial Sanctions for Non-Application of Directives," European Report, Internal Market, at 7 (Nov. 14, 1991) (on file with author).

16. Council Regulation 1210/90, 1990 O.J. (L 120) 1.

17. "Environment: MEPs Call for a European Environment Police Force," European Report No. 1721, Internal Market, at 13 (Nov. 16, 1991) (on file with author); David Stringham, "Stringent Enforcement," Environmental Strategy Europe, 1991 (on file with author).

18. "EC Waits for Its Environment Agency to Reveal Its Strength," ECN Environment Review Supplement, July 1991, at 18-20 (on file with author). The idea of inspections conducted by Community institutions was first introduced in the 4th Environmental Action Program, 1987-1991, but has not yet been implemented. Letter from Karl Von Kempis, EC Commission, DG XI, to Lawrence Sperling, Attorney, U.S. Environmental Protection Agency, Office of Enforcement (June 3, 1992) (on file with author).

19. Carel H.V. de Villeneuve, Waste Movements: EC and Outside, PROC., INT'L ENFORCEMENT WORKSHOP 223, 226 (Utrecht May 8-10, 1990) (organized by the U.S. Environmental Protection Agency and the Netherlands Ministry of Housing, Physical Planning, and Environment).

20. Council Directive 84/631, art. __, 1984 O.J. (L 326) 31.

21. Council Directive 86/279, art. __, 1986 O.J. (L 181) 13. As used herein, "Directive" or "the transboundary waste Directive" refers to Directive 84/631, supra note 20, as amended by Directive 86/279, supra. Other EC directives are mentioned explicitly by name.

22. For further analysis of the mechanics of the Directive, and an excellent comparison of the Directive to the regulations in the United States creating a similar "prior informed consent" regime for hazardous waste exports, see F. James Handley, Hazardous Waste Exports: A Leak in the System of International Legal Controls, 19 ELR 10171, 10175-78 (Apr. 1989). See also Patrick E. Thieffry & Peter E. Nahmias, The European Community's Regulation and Control of Waste and the Adoption of Civil Liability, 14 HASTINGS INT'L & COMP. L. REV. 949, 958-60 (1991).

More recently, the Council adopted a system of prior informed consent for transboundary shipments of radioactive waste. See Council Directive 92/3/Euratom, art. __, 1992 O.J. (L 35) 24 (on the supervision and control of shipments of radioactive waste between member states and into and out of the Community).

23. Council Directive, 84/631 (as amended by Council Directive 86/279, art. 5, 1986 O.J. (L 181) 13). The notification, or copies thereof, must be submitted to the "competent authority" of the concerned states. Each member state must designate their competent authority or authorities for processing and responding to notifications. Id. arts. 2(b) and 16.

24. Id., art. 3, para. 3.

25. Id.

26. The terminology "acknowledgment of receipt" is somewhat misleading with regard to shipments within the EC. The Directive contemplates forwarding, within one month from receipt of the notification, "the acknowledgment of receipt or any objection." Id. art. 4(2). Thus, in essence, the acknowledgment of receipt serves not only as the country of import's acknowledgment that it received the exporter's notification, but as the importing country's consent to the shipment. Nonetheless, some have interpreted the Directive as creating a system of "tacit" or "implied" consent in the absence of objections, rather than a pure written consent system. See Roszell D. Hunter, Proposed Waste Transfer System Within the European Community, 14 Int'l Envtl. Rep. (BNA) 695 (Dec. 18, 1991). This inherent ambiguity would be corrected under the Commission's proposal for a regulation to revise the current transboundary waste notification and consent regime, by separating the acknowledgment of receiving a notification for proposed shipments from the actual consent to the shipment. See infra discussion accompanying note 131.

27. Council Directive 84/631 (as amended by Council Directive 86/279, art. 4, paras. 1, 2, 1986 O.J. (L 181) 13). Where the waste is to be disposed in a state bordering the EC, the last state through which the waste is transported may opt to serve as the state that provides the acknowledgment. Id. This provision was included at the request of Germany, which was concerned about the possible transboundary impacts in the Federal Republic of the large amounts of wastes exported from the EC to East Germany for relatively cheap disposal. Germany was the only country to exercise this option. Telephone Interview with Karl Von Kempis, Directorate-General for Environment, Nuclear Safety, and Civil Protection (DG-XI), Waste Management Policy Division, EC Commission (Mar. 6, 1992).

The EC regime contemplates direct notification of the receiving country government by the exporter, for shipments within the EC. For shipments to third countries, the exporter is similarly responsible for direct communication with the receiving country to obtain its consent, which it then provides to the competent authority of the country of origin for authorization to send the shipment. The U.S. system, by contrast, requires government-to-government communications to obtain the consent of the receiving country for proposed hazardous waste exports from the United States. Exports of Hazardous Waste, General Requirements, 40 C.F.R. § 262.52.

28. The acknowledging state is the receiving country for shipments to destinations in the EC, and the country of export or last country of transit for exports from the EC. See supra note 27 and accompanying text.

29. Council Directive 84/631 (as amended by Council Directive 86/279, art. 4, paras. 2, 3, 1986 O.J. (L 181) 13). An important issue is the consistency of objections to shipments based on domestic environmental laws and policies with international trade obligations of EC members. Objections based on domestic environmental laws or policies internal to a member state may be subject to scrutiny under the economic integration principles of the Single European Act, especially as regards shipments entirely within the EC, or under the nondiscriminatory trade provisions of the General Agreement on Tariffs and Trade (GATT). For example, objections made for the purpose of preserving the receiving country's limited waste management capacity may be particularly suitable for challenge under the GATT or EC trade laws, especially for proposed shipments to recycling facilities. The environmental policy rationale for the objection is likely to be weighed against the burden on international trade posed by such objections, whether the arbiter of such a challenge be an EC forum or a GATT Dispute Resolution Panel. For an excellent overview and analysis of the inexorable nexus between environmental law and international trade law, with particular focus on the environmental issues under GATT, see Peter Lallas et al., Environmental Protection and International Trade: Toward Mutually Supportive Rules and Policies, HARV. ENVTL. L. REV. (forthcoming summer 1992).

30. Council Directive 84/631 (as amended by Council Directive 86/279, art. 4 para. 6, 1986 O.J. (L 181) 13). Objections to intra-EC shipments based on the exporting country's desire to maintain a supply of waste adequate to ensure that its domestic recycling (or other waste management) facilities achieve the economies of scale contemplated in domestic waste management capacity plans, may be subject to challenge on the ground that the country's waste management plan is not truly based on environmental considerations and contravenes intra-EC or GATT principles of free trade. See generally Lallas et al., supra note 29.

31. Council Directive 84/631 (as amended by Council Directive 86/279, art. 6, 1986 O.J. (L 181) 13).

32. Id. art. 7.

33. Id. arts. 10 and 11(1). Article 11(3) charges the Council with determining conditions for imposing civil liability on the generator and other responsible parties, and for setting up a system of insurance. Efforts to address civil liability for transboundary movements of hazardous waste are not the subject of this Article. For a discussion of developments regarding civil liability for waste in the European Community, see Paul Luiki & Dale Stephenson, European Community Waste Policy: At the Brink of a New Era, 14 Int'l Envtl. Rep. (BNA) 403 (July 17, 1991).

34. The Directive covers wastes defined in Council Directive 78/319 on toxic and dangerous waste, art. 1(b), 1978 O.J. (L 84) 43, except for certain chlorinated and organic solvents, and also includes PCBs. Council Directive 84/631 (as amended by Council Directive 86/279, art. 2, para. 1(a), 1986 O.J. (L 181) 13). Directive 78/319 defines "toxic and dangerous waste" as waste containing any of 27 toxic constituents in such quantities as to constitute a risk to health or the environment, leaving discretion to the member states to determine what constitutes such a risk. In an effort to ensure increased uniformity among member states in their regulation of hazardous wastes, the EC amended Directive 78/319 in December 1991. Council Directive 91/689, 1991 O.J. (L 377) 20 (hazardous waste). In defining "hazardous waste," the amendment, originally proposed in 1988, adopts a system of listed wastes and hazardous waste characteristics similar to the system for defining hazardous waste under the United States' Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, 6921. The new Directive lists generic waste categories and specific constituents, upon which the Commission is to develop a list of specific wastes. Council Directive 91/689, art. 1(4), and Annexes I and II. The definition also includes any other waste considered by a member state to exhibit any of 15 properties characteristic of hazardous wastes. Id. art. 1(4), and Annex III. See also Luiki & Stephenson, supra note 33, at 409.

35. Council Directive 84/631 (as amended by Council Directive 86/279, art. 17, 1986 O.J. (L 181) 13). The exemption for nonferrous metal wastes to be recycled has been criticized because it may result in excessive quantities of these wastes being shipped to developing countries, which are not equipped to safely manage the residues generated from their reclamation. de Villeneuve, supra note 19, at 232. The EC's proposed regulation to implement the Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal, see infra text accompanying notes 119-44, would eliminate this exemption.

36. Less than a year was given for adoption of implementing legislation for the original 1984 Directive, and six months were given to implement the 1986 Amendment. See de Villeneuve, supra note 19, at 229.

37. EC Targets Toxic Waste Exports, J. OF COMM. 9B (June 24, 1988).

38. de Villeneuve, supra note 19, at 230.

39. Id.

40. "Karin B Dilemma Highlights EEC Toxic Waste Controversy," European Report No. 1429, Internal Market, at 5 (Sept. 10, 1988) (on file with the author).

41. Of the 12 EC member states, only Belgium, Denmark, and Greece had adopted legislation to the satisfaction of the Commission.

42. Clinton Davis Urges Ministers to Apply Toxic Waste Directive, EC Press Release (Brussels, July 27, 1988); EC Targets Toxic Waste Exports, supra note 37, at 9B.

43. "Karin B Dilemma Highlights EEC Toxic Waste Controversy," supra note 40, at 5-6.

44. de Villeneuve, supra note 19, at 231.

45. See "The European Commission Proposes Further Reinforcement of Control of the Movement of Waste Within, At Entries to and Exits from the EEC, EUROPE, No. 5334, at 12 (Sept. 22, 1990) (on file with author); Rob Bouma & Jo Gerardu, Netherlands Case Study in Enforcement of Hazardous Waste Import/Export, in PROC., INT'L ENFORCEMENT WORKSHOP, supra note 19.

46. European Commission, "Eighth Annual Report to the European Parliament on Commission Monitoring of the Application of Community Law, 1990," COM(91) 81 (Oct. 16, 1991).

47. Telephone Interview with Karl Von Kempis, supra note 27. Significant infringement proceedings are discussed in more detail infra at notes 52-55 and accompanying text.

48. de Villeneuve, supra note 19, at 229-30.

49. Id. at 230. The EC definition, adopted in 1979, allows member states to determine threshold concentrations and quantities for hazardous waste. Council Directive 78/319, 1978 O.J. (L 84) 43.

50. de Villeneuve, supra note 19, at 230. See discussion infra at notes 87-113 and accompanying text.

51. Id. at 229.

52. Waste Management and Waste Avoidance Act of 1986, Abfallgesetz - AbfG, art. 13 (on file with author).

53. Ordinance on the Transfrontier Shipment of Waste, Bundesgesetzblatt I.S. 2126 (Nov. 18, 1988) (on file with author).

54. Telephone Interview with Karl Von Kempis, supra note 27.

55. Id.

56. de Villeneuve, supra note 19, at 232.

57. Council Directive 84/631 (as amended by Council Directive 86/279, art. 2, para. 1(e), 1986 O.J. (L 181) 13).

58. Id. art. 11, para. 1.

59. de Villeneuve, supra note 19, at 232. A natural reading of the Directive implies joint and several regulatory liability on all parties involved in the transaction, because "holder" is defined in the alternative to include the producer or others arranging the transaction. However, without more clarity, producers may be able to argue that their responsibility is limited if the waste has been shipped to another domestic facility which arranges for the actual export transaction. While they may retain ultimate civil liability for damages caused by illegal shipments, they may also argue that, when intermediaries are involved, they are shielded from responsibility for ensuring actual compliance with the notification and acknowledgment requirements of the directives.

60. See Bouma & Gerardu, supra note 45, at 205. For example, whereas Belgium adopts a very far-reaching definition of hazardous waste, Germany's definition excludes a number of wastes intended for recycling and interprets the expression "hazardous" restrictively. Telephone Interview with Karl Von Kempis, supra note 27.

61. See supra note 36.

62. de Villeneuve, supra note 19, at 232.

63. Telephone Interview with Karl Von Kempis, supra note 27.

64. See Hunter, supra note 26, at 700.

65. See Bouma & Gerardu, supra note 45, at 205.

66. Even if it is vested only with information-gathering powers, the new European Environment Agency may potentially serve an important role in crystallizing cooperative enforcement information exchange among member states with respect to compliance with the transboundary waste regime, and in assisting the Commission in monitoring member state compliance with EC legislation in this area and preparing infringement actions where discrepancies are found.

67. Id. at 208.

68. Id. at 201.

69. Id. at 202. In 1988, the Netherlands was seeing a sharp trend of increasing exports of hazardous waste to England. This consisted mostly of heavy metal-bearing wastes, exported for treatment and disposal. Letter from E. Nijpels, Minister of Housing, Physical Planning, and Environment to the Chairman of the Second Chamber of the States, Regarding Import, Export and Transit of Hazardous Waste Substances, 3 (Sept. 26, 1988) (on file with author). This trend appeared to have tapered off markedly by 1990, however. Bouma & Gerardu, supra note 45, at 202. Between 1988 and 1990 exports of hazardous wastes to East Germany for disposal had increased markedly. Id. C.f. Nijpels, supra, at 4.

70. Memorandum from Hans van Zijst, Counselor for Health and the Environment, Royal Netherlands Embassy, Washington, D.C., to Lawrence Sperling (July 30, 1992) (on file with author).

71. Letter from E. Nijpels, Minister of Housing, Physical Planning, and Environment to the Chairman of the Second Chamber of the States, Regarding Import, Export and Transit of Hazardous Waste Substances, 10 (Sept. 26, 1988) (on file with author).

72. AGB 6 Sept. 1990, AB 1991, no. 12 (as cited in N. de Munnik, "Practical Implications of Environmental Law in the European Community: The Netherlands," at 16 (Materials for ABA section of Natural Resources Energy and Environmental Law, Stamford, Conn., Apr. 18, 1991) (on file with author)).

73. The ruling of the Dutch Council of State is limited to the specific matter before it, and therefore does not serve to invalidate the portions of the Dutch Chemical Waste Act governing exports within the EC. Rather, future decisions of the Dutch Ministry on export applications may be subject to similar case-by-case review.

74. Id. See also Provision in Chemical Waste Substances Act Violates EC Legislation, Dutch Court Rules, 13 Int'l Envtl. Rep. (BNA) 440 (Oct. 24, 1990). This ruling, which acknowledges that the interests of European economic integration may conflict with a country's desire to restrict waste exports based on the effectiveness of foreign waste management practices, is particularly significant in light of the Basel Convention on Transboundary Movement of Hazardous Wastes and Their Disposal, which requires parties to prohibit waste exports if the waste will not be managed in an environmentally sound manner in the receiving country. The EC's proposed approach to this problem is discussed in greater detail infra at notes 119-52 and accompanying text.

75. Nijpels, supra note 69, at 10. Dutch statistics detect no exports to developing countries. Id.; see also Bouma & Gerardu supra note 45, at 204.

76. Despite earlier reports that hazardous waste imports were on the rise, see Bouma & Gerardu, supra note 45, at 203, the Netherlands has seen a recent marked decline in hazardous waste imports, due to a decrease in importation of contaminated soil into the Netherlands. Memorandum of Hans van Zijst to Lawrence Sperling, supra note 70.

77. Nijpels, supra note 69, at 11.

78. Id.

79. Bouma & Gerardu, supra note 45, at 205-06.

80. For an overview of Dutch environmental enforcement, see Hans Lefevre, Enforcement of Environmental Regulations in the Netherlands, 13 Int'l Envtl. Rep. (BNA) 401 (Sept. 26, 1990).

81. See Bouma & Gerardu, supra note 45, at 207.

82. Id. at 207-08; Memorandum of Hans van Zijst to Lawrence Sperling, supra note 70.

83. Bouma and Gerardu, supra note 45, at 202.

84. Memorandum from Hans van Zijst to Lawrence Sperling, supra, note 70.

85. Dutch Ministry Accuses German Firm of Illegal Movement of Waste, Threatens Fine, 14 Int'l Envtl. Rep. (BNA) 683 (Dec. 18, 1991).

86. Telephone Interview with Hans van Zijst, Counselor for Health and Environment, Royal Netherlands Embassy, Washington, D.C. (July 30, 1992).

87. The OECD consists of the following 24 member states, including all 12 EC members: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States.

88. Decision and Recommendation of the Council on Transfrontier Movements of Hazardous Waste, C(83)180 final (adopted Feb. 1, 1984) (on file with author).

89. OECD Council Resolution C(85)100 (1985). See also MONITORING AND CONTROL OF TRANSFRONTIER MOVEMENTS OF HAZARDOUS WASTES, OECD Environment Committee, Monograph No. 34, at 8 (May 1990) [hereinafter OECD Monograph].

90. OECD Monograph, supra note 89, at 18-19.

91. Many of the concepts found in the Basel Convention, and the list of covered wastes, are modelled largely on a draft OECD Convention presented to the OECD Environment Committee in December 1988. Id. at 16, 19.

92. Proposal for a Council Decision on the Draft OECD Council Decision Concerning Those Hazardous Wastes for Which Transfrontier Movements Shall be Controlled, COM(87) 333 final (July 10, 1987) (on file with author); Recommendation for a Council Decision Authorizing the Commission, on Behalf of the Community, to Negotiate Within the OECD an International Agreement on the Control of Transfrontier Movements of Hazardous Wastes, COM(87) 487 final (Oct. 23, 1987) (on file with author).

93. See "Toxic Waste: Experts Meet to Draft International Convention on Transfrontier Movement of Hazardous Wastes," European Report No. 1447, External Relations, at 2 (Nov. 11, 1988) (on file with author).

94. Resolution Concerning Transfrontier Movements of Hazardous Waste to Third Countries, 1989 O.J. (C 9) 1.

95. Id.

96. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Mar. 22, 1989) UNEP IG 80/3 (Appendix) [hereinafter Basel Convention]. See also Press Release, Council of the European Communities General Secretariat, No. 5608/89 (Presse 49), Brussels, Mar. 29, 1989; Commission Proposal for a Council Decision Concerning the Signature of a Global Convention on the Control of Transboundary Movements of Hazardous Wastes, COM(89)97 final (Brussels, Mar. 15, 1989).

97. Basel Convention, supra note 96, App.

98. Commission Proposal for a Council Decision on the Conclusion, on Behalf of the Community, of the Basel Convention, COM(90)362 final (Brussels, July 26, 1990) (urging simultaneous depositing of instruments of ratification by EC and member states). See also Council Decision on the Acceptance by the EEC of an OECD Decision/Recommendation on the Control of Transfrontier Movements of Hazardous Wastes, 90/170 EEC (Apr. 2, 1990) (urging rapid ratification of Basel Convention).

99. Telephone Interview with Gilbert Dubois, First Secretary for Energy, EC Mission to the United States (Dec. 17, 1991). At least three other EC members were reportedly also moving toward separate ratification of the Basel Convention. Id.

100. See Basel Convention, supra note 96, art. 25. The following 20 countries ratified the Basel Convention on or before February 5, 1992, and therefore became Parties to the Convention on May 5, 1992: Argentina, Australia, China, Czechoslovakia, El Salvador, Finland, France, Hungary, Jordan, Liechtenstein, Mexico, Nigeria, Norway, Panama, Romania, Saudi Arabia, Sweden, Switzerland, Syria, and Uruguay. 57 Fed. Reg. 20602, 20603 (May 13, 1991). In addition, Poland ratified and Latvia acceded to the Convention shortly thereafter. EPA Environmental Fact Sheet, Entry Into Force of the Basel Convention (May 1992) (on file with author). More recently, Chile and India have ratified the Convention, and the Bahamas, Estonia, and the Malidives have acceded to it. As a result, at the time of publication, there will be at least 27 Basel Convention Parties.

101. Basel Convention, supra note 96, art. 4(2)(e).

102. Id. arts. 4(5), 11(1).

103. Id. art. 4(9). Although the first restriction appears to limit when a country may export wastes based on domestic environmental management considerations as well as concern for sound management in the receiving country, the remaining provisions of this sub-article allow a great deal of flexibility to allow exports on other grounds, including criteria yet to be developed based on practical experience in implementing the Convention. In addition, by allowing the exporting country to justify allowing an export based on its domestic capacity for "efficient" as well as "environmentally sound" management, the Convention allows the exporting country enormous latitude in determining that domestic conditions justify exporting wastes to another country that can manage it more cheaply, as long as the receiving country provides for environmentally sound management of the waste.

104. Id. art. 1, and Annexes I-III.

105. Id. art. 1(a).

106. Id. Annex I. The waste stream list includes, inter alia, medical wastes, PCB-containing wastes, waste oil and refinery wastes, a number of process-specific wastes, and industrial waste disposal residues. The constituent list includes, inter alia, a number of metals and their compounds, and additional organic and inorganic compounds.

107. Id. Annex III.

108. Id. art. 9.

109. Id. art. 9(1).

110. Id. art 9(2).

111. Id. art. 2(8).

112. Such shipments are forbidden unless an agreement or control arrangement ensuring environmentally sound management under Article 11 is in place between the Party and non-Party. See supra text accompanying note 102.

113. Several non-EC countries in Europe, with whom EC countries currently engage in at least some trade in wastes, have ratified the Convention. These include Finland, Liechtenstein, Sweden, and Switzerland. In addition, Czechoslovakia, Estonia, Hungary, Latvia, Poland, and Romania have ratified or acceded to the Convention.

Like the EC, the United States has been unable to meet its goal of ratifying the Convention before the May 5, 1992, entry into force of the Convention. Although the U.S. Senate voted in August 1992, to consent to ratification, legislation remains pending in the U.S. Congress to implement the obligations of the Convention and thereby permit the United States to deposit its instruments of ratification. Accordingly, as of May 5, 1992, until the United States ratifies the Convention, Parties to the Convention likewise may not engage in trade in wastes with the United States, unless separate international agreements or arrangements meeting Basel's standards are entered into.

114. Steven Greenhouse, U.N. Conference Supports Curbs On Exporting of Hazardous Waste, N.Y. TIMES (Mar. 23, 1989) at A1. During negotiations, for example, Kenyan President Daniel arap Moi condemned the "garbage imperialism" of industrialized nations, which threatened to turn Africa into "the world's dustbin." 'Toxic Waste: Experts Meet to Draft International Convention on Transfrontier Movement of Hazardous Wastes," European Report No. 1447, External Relations, at 2 (Nov. 11, 1988).

115. Greenhouse, supra note 114, at A1.

116. "Environment: Karin B Dilemma Highlights EEC Toxic Waste Controversy, European Report No. 1429, Internal Market, at 5 (Sept. 10, 1988). See supra text accompanying notes 40-43.

117. Fourth ACP-EEC Convention Signed in Lome on 15 Dec. 1989, Part Two, Title I, art. 39(1) (reprinted in The Courier: Africa-Caribbean-Pacific-European Community, No. 120 (Mar.-Apr. 1990)).

118. Id. art. 39(3).

119. EC Commission proposal for a Council Regulation on the Supervision and Control of Shipments of Waste Within, Into and Out of the European Community, COM(90)415 final — SYN 305, 1990 O.J. (C 289/05) (Oct. 10, 1990) [hereinafter Proposed Regulation].

This Article only briefly summarizes the proposed regulation, which, as discussed more fully infra, at notes 133-44 and accompanying text, has been met with some controversy and will likely be revised before it is adopted. For an excellent overview and analysis of the proposal, however, see Roszell D. Hunter, Proposed Waste Transfer System Within the European Community, 14 Int'l Envtl. Rep. (BNA) 695 (Dec. 18, 1991).

120. Explanatory Memorandum accompanying Proposed Regulation, supra note 119, at 2. See also "Environment/Waste: The European Commission Proposes Further Reinforcement of Control of the Movement of Waste Within, at Entries to, and Exits from the EEC," EUROPE, No. 5334, at 12 (Sept. 22, 1990) (on file with author).

121. Explanatory Memorandum accompanying Proposed Regulation, supra note 120, at 3.

122. Id.

123. See Proposed Regulation, supra note 119, arts. 2(1)(a) and 2(2); Explanatory Memorandum, supra note 120, at 3. As discussed more fully infra at note 132 and accompanying text, special, less restrictive notice procedures apply to intra-Community shipments of covered wastes intended for further use.

124. Proposed Regulation, supra note 119, arts. 9-12, 16.

125. Id. arts. 13-14.

126. Id. art. 15.

127. The Commission's view is that, because the EC is a complete economic area, without borders for trade purposes, as reflected by the EC's signing of the Convention as well as its member states doing so, the Basel Convention's requirements are not applicable in their totality for shipments entirely within the EC. Letter of Karl Von Kempis, supra note 19.

128. Proposed Regulation, supra note 119, art. 4(3).

129. Id.

130. Id. arts. 4(2) and 4(3).

131. Id. art. 4(1).

132. Id. art. 7. As aptly noted by Hunter, supra note 26, at 698, the proposal lacks a mechanism for imposing sanctions if the waste is never recycled or reused as claimed, thus encouraging the possibility of intra-EC exports under sham claims of intended further use.

133. "Hazardous Waste: Member States Take Their Positions Ahead of Council Meeting," European Report No. 1660, Internal Market, at 9 (Mar. 13, 1991).

134. Hunter, supra note 26, at 699-700; Dieter Vogt, European Waste Management, Environment Strategy Europe 1991 (on file with author).

135. See Hunter, supra note 26, at 702.

136. Action on Waste Export Measure Delayed by Commission, Parliament Disagreement, 15 Int'l Envtl. Rep. (BNA) 3 (Jan. 15, 1992). In support of Parliament's position, a GreenPeace representative noted that waste exports have shifted away from Africa to Latin American and Eastern European countries (which are not covered by Lome IV's ban on exports to ACP states). Id. at 4.

137. Id. at 4.

138. Id.

139. Telephone Interview with Gilbert Dubois, supra note 99; Telephone Interview with Karl Von Kempis, supra note 27. In May 1991, the Parliament's Environment Committee adopted a Resolution deploring the failure to reach a decision on the Agency's headquarters. Subsequently, in October 1991, the chairman of Parliament's Environment Committee announced plans to bring a lawsuit in the European Court of Justice against the Council for failing to agree on siting the Agency's headquarters. More recently, siting of the Agency was mired in a dispute over the future permanent home of the European Parliament. France wished to retain Parliament's headquarters in Strasbourg, while other EC members preferred it to be located in Brussels. France refused to approve the site for the Agency until the other states agreed to keep Parliament headquarters on French soil. Marlise Simons, Europe Environment Plan Hits Snag: France, N.Y. TIMES, Feb. 16, 1992, at A12.

140. See, e.g., Commission, Parliament Fail to Agree Waste Compromise (Reuter story, Feb. 26, 1992) (on file with author); Commission Softens Position on Waste Exports (Jan. 29, 1992) (on file with author).

141. See Letter of Karl Von Kempis, supra note 27. See also Parliament Committee Lifts Blockade on Waste Proposal (Mar. 12, 1992) (on file with author).

142. Parliament Committee Lifts Blockade on Waste Proposal, supra note 141.

143. Id. Reportedly, the Netherlands and Denmark, and possibly Germany and Portugal, supported a total ban. Id.

144. EC Council Press Release, Shipments of Waste (Mar. 23, 1992) (on file with author).

145. Telephone Interview with Gilbert Dubois, supra note 99. In addition to these countries, Denmark also reportedly indicated a willingness to ratify the Basel Convention unilaterally if progress was not forthcoming on the EC regulation. Commission, Parliament Fail to Agree Waste Compromise, supra note 140.

146. Indeed, it has been argued that the EC transboundary waste Directive may be interpreted as incorporating the environmentally sound management concept of the Basel Convention. See, e.g., Handley, supra note 22. The EC transboundary waste Directive requires the waste generator to "take all necessary steps to dispose of or arrange for the disposal of the waste so as to protect the quality of the environment" in accordance with EC waste management directives, regardless of the place of disposal, and requires member states to "take all necessary steps" to ensure that this obligation is carried out. Thus, the Directive stands at least as an early formulation of the operative principle of the Basel Convention; that exporting countries should prohibit waste exports if waste would not be managed in the receiving country in a manner that adequately protects the environment. However, this obligation is only indirectly imposed on the exporting country under the Directive, and it does not specify the extent of "necessary steps" to be taken by the generator or the exporting country. Moreover, the Directive, unlike the Basel Convention, is limited to hazardous wastes, and does not expressly impose Basel's requirements to take responsibility for proper disposal of wastes which are illegally exported, or are mismanaged or misdirected.

147. Serge Soumastre, France, in Pollution: Waste, 1991 EUR. ENVTL. Y.B. (DocTer Institute, Milan) 462, 464 (distributed in the United States by BNA Books).

148. Law of 30 Dec. 1988 (J.O.) (4 Jan. 1989), Tit. VII (arts. 23-1 to 23-5) (as cited in EUR. ENVTL. Y.B, supra note 147, at 463, 464).

149. Id. In proposing legislation to ratify the Basel Convention, the French Ministry of Foreign Affairs stated that France had been following the requirements of the Convention since passage of the 1988 law. Council of Ministers Receives Draft Law to Authorize Hazardous Waste Convention, 13 Int'l Envtl. Rep. (BNA) 325 (Aug. 8, 1990).

150. Dutch Chemical Waste Act, § 16(b)(1) (Oct. 1988). For exports to a non-EC country, this authority to reject the shipment may be exercised when the Minister "may reasonably assume that the intended manner of disposal will be detrimental to the protection of the environment." Id. § 16(b)(2). Similar authority is granted to reject a proposal for the Netherlands to serve as a transit state for export of waste from a non-EC country to another non-EC country. Id. § 16(c).

151. Waste Avoidance and Waste Management Act of August 27, 1986, art. 13(1) (on file with author).

152. Letter of Karl Von Kempis, supra note 27.

153. Basel Convention, art. 11(1). Note that the standard of Article 11(1) differs slightly from that of Article 11(2), which allows for alternative agreements provided they are "compatible with the environmentally sound management of hazardous wastes and other wastes as required by this Convention." Id. art. 11(2). Article 11(1) applies by its terms to agreements or arrangements entered into by "Parties," and Article 11(2) applies to agreements or arrangements "referred to in paragraph 1 and those which [Parties] have entered into prior to the entry into force of this Convention." (Emphasis added.) Arguably, therefore, Article 11(2)'s "compatible with" standard is a baseline standard which all alternative agreements or arrangements must comply with, whether entered into before or after Basel's effective date of May 5, 1992; whereas Article 11(1)'s "no derogation from" and "no less environmentally sound" provisions set forth a more exacting standard of equivalence to Basel's "environmentally sound management" requirement applicable only to alternative agreements or arrangements entered into after Basel's effective date.

154. OECD Council Decision C(92)39 concerning the control of transfrontier movements of wastes destined for recovery operations (Mar. 30, 1992). See Members of OECD Reach "Apparent" Accord on Program to Manage Waste, Official Says, 14 Int'l Envtl. Rep. (BNA) 588 (Nov. 6, 1991). Japan abstained from the Council Decision.

155. See supra note 153 and accompanying text. See also supra notes 112-13 and accompanying text.

156. The OECD Decision does not impose independent financial guarantee requirements, but merely requires the contract to include those required under other laws, for the purpose of providing for alternate sound management of the wastes if the intended arrangements cannot be carried out. OECD Council Decision C(92)39, supra note 154, Annex I, art. IV.

157. Id. Annex I, art. V.

158. Id. app. 5.

159. Id. Annex I, art. IV.

160. Id.

161. Id. app. 4.

162. Id. art. II.

163. Id. app. 3.

164. Id. apps. 3 and 4.

165. Id. Annex I, para. 1.

166. Id. art. VI.

167. Other OECD members recognize that such an effort will encounter significant practical difficulties.

22 ELR 10701 | Environmental Law Reporter | copyright © 1992 | All rights reserved