TL: OEKOPOL REPORT: Recommendations for the Harmonisation of Legislation on Waste Imports of the People's Republic of China and Hongkong SO: GREENPEACE CHINA, (GP) DT: JUNE 1997 A TECHNICAL EXPERTISE L. FOREWORD This study has been elaborated on request of Greenpeace China. We have evaluated (i) the Hong Kong legislation on import of waste and (ii) the Interim Regulations' on the Administration of Environmental Protection in the Import of Waste Materials of the People's Republic of China and have compared their basic approach to the questions of waste import, possible exceptions and the focus of control and supervision. Based on this comparison, we have derived some recommendations with respect to future harmonisation between the two regulatory approaches. 2. CENTRAL PROVISIONS OF THE HONG KONG LEGISLATION 2.1 CLASSIFICATION OF WASTES ACCORDING TO LISTS (SIXTH AND SEVENTH SCHEDULE) The Hong Kong legislation on import of wastes is laid down in the Waste Disposal (Amendment) Ordinance 1995 ("Part IV A: Control of Movement of Waste Into and Out of Hong Kong"). According to this ordinance, movement of wastes into and out of Hong Kong is principally allowed provided that a permit has been issued by the waste disposal authority. In the annexes to this ordinance (Sixth and Seventh Schedule), different types of wastes are classified in a way similar to the OECD green, amber and red listing system. * Uncontaminated wastes of the Sixth Schedule (which largely corresponds to the OECD green list) may be imported or exported without any special permit. * Contaminated wastes of the Sixth Schedule require a permit for both import or export. The application form must contain the reason for the transport, details on the origin and the destination of waste, physical descriptions of the waste, information on packaging and transportation, and a description of the method of disposal or reuse. * Wastes listed on the Seventh Schedule (which contains both amber and red listed wastes according to OECD) and wastes not specified in the Sixth Schedule require the same information with the application form plus documents confirming the contractual arrangements, a contingency plan for potential accidents, and some liability insurance or financial guarantees. Since the Seventh Schedule does not make any distinction between wastes from the OECD red and amber lists, a fairly wide range of wastes with differing environmental( risks is treated identically by the legislation. (E.g. the same regulations apply for AA010 (ex261900) "Dross, scalings and other waste from the manufacture of iron and steel" and for RC010/020 "Any congenor of polychlorinated dibenzo-furan / -dioxin" although the associated risks to health and environment of these two types of waste differ by some orders of magnitude). The distinction between "uncontaminated" and "contaminated" wastes is defined in Article 20I [1]:' "For the purposes of this part, waste is contaminated if it is contaminated by a substance to an extent which (a) significantly increases the risk to human health, property or the environment associated with the waste; or (b) prevents the reprocessing, recycling, recovery or reuse of the waste in an environmentally sound manner." In practice, such a definition leaves room for interpretation that renders it difficult to enforce. Furthermore, the assumed risk of a certain waste is associated only with its accompanying minor components but not with the bulk of the waste itself. For example: With this approach, the import or export of cadmium waste and scrap (GA 240) and lead waste and scrap (GA 150) does not require a permit while the import or export of another waste (e.g. zinc waste) that is contaminated with cadmium or lead does require a permit. 2.2 IMPORT OF WASTES FOR DISPOSAL According to Article 20A (4) (c), a permit can be granted for the import of wastes for disposal when either " (i)the state of export does not have the facilities, capacity or disposal sites that would allow disposal of the waste in an environmentally sould manner; or (ii) the import of the waste is for a purpose which the waste disposal authority considers necessary or desirable in the interests of the environmentally sould and efficient management of the waste disposal system in Hong Kong." The first of these two pre-conditions is reasonable only for overcoming a short-term deficiency of adequate disposal facilities in the state of export. Otherwise there would be a conflict with the targets of the Basel Convention that each Party to the Convention shall take the appropriate measures - to reduce generation of hazardous wastes and other wastes to a minimum, - ensure the availability of adequate disposal facilities that shall be located within it, and - to reduce transboundary movement of hazardous wastes and other wastes to a minimum (Article 4 of the Basel Convention). The second pre-condition is a very broad opening clause that would even justify waste imports for purely economic reasons. Without further clarifications, Article 20A (4) (c) in combination with the Sixth and Seventh Schedule of the Hong Kong Waste Disposal (Amendment) Ordinance 1995 appears to be a very large loophole that will allow almost any import of waste someone could think of. 2.3 PERMISSION AND CONTROL OF WASTE IMPORTS AND EXPORTS In its Articles 20 A (2) and 20 B (2), the Hong Kong Waste Disposal (Amendment) Ordinance 1995 defines the information that is required with each application for an import or export of waste (other than uncontaminated waste of the Sixth Schedule that is imported for the purpose of reprocessing, recycling, recovery or reuse). These rather comprehensive information's appear suitable to allow the competent authorities a substantiate judgement on the quality of the waste shipment for which a permit is applied for. However, in the Hong Kong Waste Disposal (Amendment) Ordinance 1995 there are no criteria under which the authority should grant a permit for a waste import or export. Also, there are no regulations concerning the control of the treatment and final fate of the imported or exported waste. 3. INTERIM REGULATIONS OF THE PEOPLE'S REPUBLIC OF' CHINA ON WASTE IMPORTS 3.1 BASIC PRINCIPLES The "Interim regulations on the administration of environmental protection in the import of waste materials" of the People's Republic of China have been promulgated by the National Environmental Protection Agency, the General Administration of Customs, the Ministry of Foreign Trade and Economic Cooperation, the State Administration for Industry and Commerce and the State Bureau of Commodity Inspection. As a basic principle of these interim regulations, a ban is imposed on dumping, storage and disposal of imported wastes within the territory of the People's Republic of China (Article 3). Limitations are imposed on imports of waste materials that can be used as raw materials. Such wastes that can be used as raw materials and are restricted in importation by the state are listed in a positive list in the Annex to the Interim Regulations (see below). These basic principles are very clear and appear well suited to minimize the risk of unwanted imports of waste materials. It has to be stated, however, that no regulations exist with respect to possible contamination of the wastes. 3.2 LIST OF WASTES THAT CAN BE USED AS RAW MATERIALS This positive list contains 29 types of wastes in eight different categories plus a ninth category of wastes not further specified (see section 3.3). Out of the 29 wastes, 24 are explicitly mentioned in the OECD green list and identified by their commodity code. These 24 wastes are not only on the green list, but there is also no indication that their main constituents might be considered as hazardous under the Basel Convention (provided that they are not contaminated). Five wastes cannot be directly assigned to the OECD listing system. These are 7901.1000 copper mattes, 7901.2000 cement copper (precipitated copper), as well as waste electric motors, waste wires and cables and waste electric scraps. For these five waste streams, it would probably be worthwhile to refer to the work done by the Technical Working Group to the Basel Convention for further specification of unwanted contaminations and hazardous constituents or components. [2] 3.3 WASTE CATEGORY 9 (OPENING CLAUSE) Waste category 9 is the last entry on the Chinese "List of wastes that can be used as raw materials"; it reads "wastes that special need for importation". This is a very broad opening clause under which anything in the world could fit. No clarifications are given in the "Interim Regulations" concerning the types of waste or the circumstances for which this opening clause can be applied. 3.4 CONTROL AND MONITORING OF WASTE IMPORTS Besides specifying the required contents of an application for import of wastes, the "Interim Regulations" put an emphasis on the control and monitoring of the recovery operations once a permit for waste import has been given. This includes * a specification how the environmental risks associated with the use of wastes as raw materials have to be reported (Articles 11 and 13-15); * a quality certification procedure for those who perform the environmental risk assessment (Article 16); * a verification procedure for the environmental risk assessment (Article 19); * a limited validity of the import permit of one year (Article 20); * quarterly reporting on waste imports is obligatory for waste importers and users and * measures to be taken by waste users in order to prevent and control the environmental pollution caused by imported wastes (Article 22). These procedure appears well suited to allow the competent authorities a good control of the final fate of wastes that are imported as secondary raw materials into the People's Republic of China. 4. SUMMARY AND RECOMMENDATIONS The "Interim Regulations on the Administration of Environmental Protection in the Import of Waste Materials" of the People's Republic of China are obviously a much stronger instrument than the Hong Kong "Waste Disposal (Amendment) Ordinance 1995" in order to prevent unwanted imports of wastes. Furthermore, the Chinese Interim Regulations put an emphasis on the control and monitoring of the recovery operations which is completely missing in the Hong Kong legislation. In future harmonisation of the two legislations, we therefore recommend to adjust the Hong Kong legislation to the Interim Regulations of the People's Republic of China. Concerning the Chinese "List of Wastes that Can Be Used as Raw Materials and are Restricted in Importation by the State", we recommend some minor adjustments to the definitions of the Technical Working Group on the Basel Convention to make sure that no hazardous wastes (List A) are allowed to be imported into China. These adjustments would mainly imply some specifications in order to exclude certain hazardous constituents or contaminations associated with wastes that are basically non-hazardous. ANNEX - SYNOPSIS OF CENTRAL PROVISIONS IN THE WASTE IMPORT LEGISLATION OF HONG KONG AND CHINA. Hong Kong China lists of wastes Distinction between Principle: waste Principle: total legal and illegal imports and exports ban on the imports and exports: are allowed; importation of permit necessary any waste, a for most types limited number of waste of wastes that can be used as raw materials maybe imported on special permission. Permit not necessary for always mandatory OECD green list wastes (uncontaminated); mandatory for all other wastes Opening clause wastes for disposal very broad opening may be imported when: clause: "wastes - state of export that special need does not have disposal for importation". facilities; - wastes are necessary or desirable for the waste disposal system of Hong Kong. Areas covered Focus on information Focus on quality by the permission to be presented of the recovery procedure with the operation and application form. monitoring. ENDNOTES: 1. A similar definition is given in the "European Council Regulation (EEC) No. 259/93 on the supervision and control of waste, within, into and out of the European Community". 2. Because Annex I (Categories of wastes to be controlled) and Annex III (List of hazardous characteristics) of the Basel Convention have been found to exhibit certain problems in practical work, the Conference of Parties has set up a Technical Working Group (TWG) with the task of giving clearer definitions of those hazardous wastes whose transboundary shipments are prohibited under the convention. In its working process, the TWG presently is producing two lists which are called List A and List B. List A is the "List of wastes characterized as hazardous under Article 1 paragraph 1 (a) of the Convention", while List B is defined as follows: "Wastes placed on list B will not be wastes covered by Article 1, paragraph 1 (a) of the Basel Convention unless they contain Annex I material to an extent causing them to exhibit an Annex III characteristic". Although the TWG work has not finally concluded its work and the results have not yet been adopted by the Conference of Parties to the Basel Convention, the following definition of electronic waste and scrap as non-hazardous (List B) has been agreed upon by the TWG: "Electrical and electronic assemblies or scrap (including printed circuit boards) not containing components such as accumulators and other batteries included on list A, mercury-switches, glass from cathode-ray tubes and other activated glass and PCB-capacitors, or not contaminated with Annex I constituents (e.g. cadmium, mercury, lead, polychlorinated biphenyls) or from which these have been removed, to an extent that they do not possess any of the characteristics contained in Annex III (note the related entry on List A)."