October 01, 2002

Hazardous Waste

3 min

Many American companies looking for an effective and efficient means to manage wastes are looking abroad. Domestic law has made disposal or recycling in the United States extremely expensive and in some cases, has imposed an outright ban on domestic treatment or disposal. Additionally, in some areas, facilities in other nations use more advanced and economical technologies.

However, before any American company decides to export wastes it must be familiar with the complex regulatory procedures surrounding such export. Exporters who violate these regulations face civil and, possibly, criminal penalties. Further, should the wastes end up improperly disposed, whether through the fault of the exporter or others, that exporter faces public sanction for its activities.

In 1993, American companies exported 142,000 tons of waste abroad. While many of these exports have been perfectly legitimate, other exports have been made solely to take advantage of lower environmental standards and weaker enforcement capabilities in many developing nations. As a result, many developing nations have begun to ban imports of wastes from developed nations and, increasingly, for recycling as well. Pressure from these nations has led the international community to adopt stricter standards for the transboundary movement of hazardous wastes.

The primary international agreement governing the export of hazardous wastes is the Basel Convention on the Control of Hazardous Wastes and Their Disposal (Basel Convention). Though the United States was among the original signatories to the Basel Convention in 1989, the United States is still not a party to the Convention since Congress has yet to pass implementing legislation. Currently, over sixty nations, including all of the United States’ major trading partners, have become parties to the Convention.

The Basel Convention generally prohibits parties to the Convention from importing or exporting hazardous wastes or other wastes from or to a non-contracting party. However, a party to the convention may allow such import or export if it has a separate bilateral or multilateral agreement regarding the transboundary movement of hazardous wastes with a non-party if that agreement provides for “environmentally sound management.”

The United States has signed separate bilateral agreements with Mexico and Canada, its two largest trading partners, regarding hazardous wastes, as well as with Malaysia. The United States also is a party to multilateral agreement with several nations through the 1992 Organization for Economic Cooperation and Development (OECD) Decision on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations. The OECD agreement only allows transfrontier shipments for recovery while Mexico only allows hazardous waste imports due for recycling. Thus, companies in the United States may not export any wastes to many nations and may only export wastes for recycling to some nations.

Currently, United States law allows exporters to ship hazardous wastes if the exporter provides advance notice to the EPA and the receiving nation consents to that shipment. The bilaterals and the OECD agreement possess specific notification and consent provisions. Additionally, since the EPA has yet to fully implement the OECD multilateral, American exporters must comply with the EPA notification procedures as well as those required under the OECD agreement. However, since these provisions are quite similar, little extra information is required to fully comply with both notification provisions.

EPA has prosecuted companies civilly and criminally for failure to provide notification of hazardous waste shipments and for providing false information in notifications. However, once a receiving nation has provided consent to a shipment, EPA cannot unilaterally stop a shipment of hazardous wastes. EPA does cooperate closely with Canadian and Mexican environmental agencies and has prosecuted several companies for illegal waste shipments to both nations.

For further information on the export of hazardous and other wastes, please contact Andrew R. Herrup at (202) 962-4800.