As the Basel Convention receives a major update, outsiders like the US may suddenly have to face their own trash.
A trade agreement signed in late October but kept secret until last week will allow Canada to keep shipping plastic scrap to the US for disposal — possibly in unsafe, or even illegal, ways.
Watchdog groups have called the bilateral agreement a violation of the UN’s Basel Convention. Their concerns raise serious questions about a lack of transparency in the international waste trade and whether US trash brokers will act as a conduit for waste sent from Canada to less industrialized nations around the world.
The deal comes just weeks before January 1, 2021, when the Basel Convention’s Plastic Waste Amendments go into effect. These new rules add a wide variety of plastics to the waste listings regulated under the Basel Convention and are designed to keep developed countries from dumping their trash on less industrialized nations.
“The Basel Convention … recognizes that the problem we face is that there’s this incredible imbalance of power between the wealthy, economically privileged [Organisation for Economic Co-operation and Development] countries and developing countries,” explained Kathleen Ruff, founder of RightOnCanada and a leading advocate for human rights and environmental sustainability. “It’s there specifically to address that and put obligations on the more powerful countries.”
The Plastic Waste Amendments will make it illegal for any of the 188 countries that ratified the Basel Convention to import mixed plastic and other hazardous waste from any nonmember unless they signed a separate contract with standards equal to or higher than those of the Basel rules. On top of that, members of the Organisation for Economic Co-operation and Development (OECD), members of the European Union (EU), and Liechtenstein won’t be allowed to ship hazardous waste for any reason to any nation not part of their group
“The US is outside of the Basel Convention. So the traders in the US can export with impunity. They are not going to be prosecuted for shipping stuff off to countries that are Basel countries and that have banned the import.”
The US is the only industrialized country never to have ratified the Basel Convention. Canada has, but its leaders committed to the Plastic Waste Amendments only recently and under public pressure. Canada’s initial stalling and requests for extensions are out of character for a government that otherwise has postured as a leader in controlling plastic waste by launching zero waste initiatives and championing ocean plastics charters. Behind the scenes, however, commercial trash haulers have been exploiting Canada’s weakness in tracking its waste exports — for example, shipping mislabeled trash to Malaysia and the Philippines. The US-Canada deal negotiated under the table only adds to Canada’s perceived hypocrisy.
Several advocacy groups contend that the arrangement is illegal because it would let Canada evade its Basel obligations. Article 11 of the Basel Convention allows its members to sign trade deals with nonmembers, but the US-Canada arrangement is merely an assurance of good intentions. Good intentions are neither enforceable nor transparent, and so offer a glaring loophole in the US-Canada arrangement.
“What’s important here is that there be a legal requirement that certain standards are followed,” Ruff said. “This arrangement doesn’t do so. So it’s a way of undermining and weakening the convention. And that’s why it is seriously wrong.”
Critics also complain about the lack of transparency in the newly signed arrangement. It doesn’t cover many of the plastics that are subject to Basel’s requirement for prior informed consent from importing and transit states, designed to ensure that all parties involved — including the public — know exactly which kind of trash is being exchanged and between whose hands. Without prior consent, shipments are deemed illegal traffic, and any nation having ratified the Basel Convention can prosecute bad actors within its borders.
Without close tracking from start to finish, the trajectory of plastic becomes a blur, and there is no assurance that waste is handled safely for humans or the environment. Domestic notice and consent procedures outside of the Basel Convention’s control are less stringent, often bordering on perfunctory, and they use definitions of “hazardous” that are not harmonized internationally.
“There are clauses [in the federal Resource Conservation and Recovery Act] that pertain to international transfers, but they’re nowhere near as rigorous in terms of the cradle-to-grave documentation [required inside the US],” explained Dr. Bill Daniell, physician and epidemiologist at the University of Washington’s Department of Environmental and Occupational Health Sciences. “When it gets to international [trade] there’s not the same degree of closed-loop accounting. It’s basically, you fill out papers and hope everyone is doing what they’re supposed to do.”
Lack of transparency is worrisome domestically and has far-reaching consequences overseas. No word is given, not even in the spirit of unenforceable assurances, that would keep the US from funneling Canada’s waste to non-OECD countries. Jim Puckett, head of the nonprofit Basel Action Network, notes that “the US is outside of the Basel Convention. So the traders in the US can export with impunity. They are not going to be prosecuted for shipping stuff off to countries that are Basel countries and that have banned the import.”
Puckett gauges the intention of US trash brokers from their track record on electronic waste. His organization is instrumental in combating pollution being forced into developing countries, and it traces the trajectory of discarded electronics. Millions of tons continue to be shipped to countries in South Asia and Africa where insufficient labor laws offer no meaningful protections. Laborers are exposed to heavy metals and toxic fumes as they burn plastic casings or wash them in acid to get at precious metals.
“Fundamentally, the fact that [countries] have to be notified allows civil society to get access to that information and see what’s going on,” said Puckett. “The industry wants to keep everything in the dark, and this thing that Canada and the US have just signed, this bogus agreement, is designed to keep everything in the dark, as per usual.”
All of this is perfectly legal under US law as long as brokers don’t misrepresent what is being shipped. Basel rules regulate electronic waste, but as a nonmember the US doesn’t need to care. The same scenario is unfolding with regard to plastic waste. “They don’t care about that, they haven’t cared about it for electronic waste. So we know what will happen, the brokers will just continue to try to find weak points in the chain, places where they can export,” Puckett warned. “The lion’s share of these mixed and dirty wastes that we’re talking about will not get recycled. They will get dumped and burned.”
At the MRF Summit held last month to discuss issues in materials recovery facilities, Adina Renee Adler celebrated that the trade deal’s signing “will preserve the status quo of trade” in all nonhazardous plastics. As the vice president of advocacy for the Institute of Scrap Recycling Industries, she is invested in keeping the trash business going the way it always has, especially between the US and Canada.
Canada is the largest single importer of US plastic scrap. Numbers pulled from the US Census Bureau estimate that more than 130,000 metric tons of scrap were exported up north through October 2020. That translates to 80 standard shipping containers being trucked through the US and over the border every day, each 20 feet long and weighing more than five tons. The analysis was done by Jan Dell, an independent engineer and founder of The Last Beach Cleanup, who for years has been fighting to make waste trade accountable and transparent. She’s an expert on tracking waste streams, yet when it comes to pinpointing where exports really end up, she is one of many who can’t get a straight answer.
“No one can really explain it to me,” said Dell. “I do know, for example, some places in Canada actually send their waste to Michigan, just to landfill it. And there are recyclers in Canada that take Seattle’s waste. There’s a famous one, Merlin. But it’s a mystery to me how that trade is actually really happening.”
Dell explained how curbside plastics, set out for recycling, are sorted by materials recovery facilities. Out the other end come bales of PET bottles with market value, along with less desirable trash that a facility is looking to sell. At that point, trash brokers step in to purchase the bales and export them. That’s where the mystery begins, because often facilities are not required to report exactly where their broker might send their trash.
Such a disconnect is found over and over at facilities across the country. A Wisconsin facility reported that “the broker has the ability to do what they see fit with the material,” without the state’s Department of Natural Resources requiring any tracking. In North Carolina, a county solid waste director admitted that he has “no guarantee what someone will do with it once they get it. Whether they recycle it or landfill it or burn it, we don’t know.”
At the same time, federally promoted waste-diversion goals drive plastics to be exported instead of landfilled in the US. California leads the pack with its 75 Percent Initiative, aimed at lowering its reliance on landfills, but in the absence of local recycling centers that can handle the massive volume of waste, a lot of it has to be carted elsewhere. And plastics transported elsewhere still count as having been recycled — even if they ultimately end up being landfilled or incinerated — and add up to an inflated tally of what the industry calls “wishcycling.”
Businesses feeding off this frenzy to get rid of waste welcome the lack of transparency built into the US-Canada contract. In fact, waste incineration projects depend on it. Lafarge, the world’s largest cement company, is notorious for burning plastic scrap to fuel its cement kilns. Toxic emissions, often left uncontrolled, are devastating to local communities, and yet wider commercialization of the technology is being proposed on both sides of the border. Cement visionaries want to legitimize burning plastics as a solution to the nation’s waste problem.
What might be coming to Erie, PA, however, is much larger. The International Recycling Group announced plans for what it calls the world’s largest plastic processing center, proposed to be built by 2022. The goal is to collect 400 trucks of all-grade plastics per day and turn the cargo into pellets. In theory these pellets would be sold as feedstock for all sorts of products, and thus would be recycled, but the group already signed a memo of understanding with Canadian steel company StelCo Inc. to incinerate plastic in its furnaces as a way to purify iron.
Canada and the US may well be feeding each other’s landfills and incinerators. Another analysis of US census data by Jan Dell shows that the net exchange of plastics between the two countries nearly zeroes out. While about 20 percent of trade focuses on easily recyclable PET bales that are imported exclusively by the US, the rest of the shipments, mixed bales of so-called 3-7s, are exchanged between the two countries in similar amounts. Neither wants these grades of trash because they are too expensive to recycle, and yet there’s a steady stream of waste crossing the border that is likely to end up feeding something other than plastic sorting machines.
Incineration projects and their suppliers could not survive if Canada took its obligations under Basel rules seriously. The convention states that “any transboundary movement of hazardous wastes or other wastes that results in deliberate disposal” of such wastes is illegal. Its definition of “deliberate disposal” includes landfilling and incineration, along with 13 other common operations that do not lead to resource recovery. The convention’s rules on criminal behavior are spelled out clearly, and its demand for prior informed consent attempts to stymie shady business.
“Fundamentally, the fact that [countries] have to be notified allows civil society to get access to that information and see what’s going on,” said Puckett. “The industry wants to keep everything in the dark, and this thing that Canada and the US have just signed, this bogus agreement, is designed to keep everything in the dark, as per usual.”
Asked about the loophole in the US-Canada arrangement last week, Canadian Minister of Environment and Climate Change Jonathan Wilkinson assured that “through this agreement, we can ensure that waste that goes between our two countries will be managed in an environmentally sound way.” Puckett disagreed. “[Wilkinson] had the gall to say ‘Don’t worry, it’s all going to be environmentally sound management.’ Well — they have absolutely no way to affirm that that’s the case. Zero.”
As the new year approaches and the plastic amendments take effect, the United States will be reminded of its failure to ratify the Basel Convention. The US doesn’t have Article 11 contracts that would let it send waste to the countries in its primary dumping grounds in Southeast Asia.
“All these countries like Indonesia, Malaysia,” Puckett explained, “they’re not going to be able to legally receive it and yet we’re going to be throwing it out there on the high seas. So as soon as it gets on a container ship and gets into international waters it’s illegal traffic and contraband.”
The US is about to wake up to a regulatory nightmare. At a Sustainable Materials Management webinar in September, Rick Picardi, chief of the International and Transportation Branch of the US Environmental Protection Agency (EPA), touched on the upcoming challenges: “We’re going to see dramatic change starting on January 1. We’re gonna have a number of countries that are going to view US plastic scrap exports as illegal traffic from their perspective.”
As the regulatory community braces itself for outcry around the world, US exports continue to ramp up. This year’s third quarter saw a 25 percent increase in plastic shipments to non-OECD countries compared with those at the beginning of the year. Southeast Asia is being hit particularly hard. Malaysia, Thailand, and Vietnam are drowning in trash that is overflowing dumps and landfills, highly mismanaged, and dangerous to human health.
Targeted nations are now fighting to stem the tide. Malaysia announced that it will ship 3,000 tons of waste back to its originators in Europe and North America. Cambodia is in the process of returning 83 shipping containers to the US and Canada. Indonesia rejected 547 containers of garbage and is sending them back to Europe. In the wake of China’s National Sword policy, many Southeast Asian countries have already started to crack down on illegal imports. The new Basel rules are meant to help those countries’ policing efforts pack more of a punch.
Yet as a nonmember, US trash brokers can play by their own rules. They don’t need to honor the Basel Convention’s requirement for prior informed consent. Their waste stream is large enough to drown out any objections. Which brings one big question into focus: Will the US respect other countries’ laws?
If the answer is no, nations awash in trash need to rely on their own governments to shut down trade, but that’s a big ask for some.
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“People say, ‘Why is Malaysia buying it?’ Well, Malaysia is not buying it, these little rogue recyclers who are illegal are buying it, and it sneaks in through all these ports. The country Malaysia itself doesn’t have the strength or wherewithal to go and police everything and say ‘Don’t bring this in!’” says Dell. She estimates the US alone is shipping 80 containers of trash per day to Malaysia. “They can’t stop it. It’s up to us to respect their laws and not send it.”
Officials at the EPA seem to be taking a wait-and-see stance as they recognize that big changes are coming. “We see more countries considering a wider variety of plastics as hazardous,” Picardi noted in his closing remarks at the webinar. “We think there’s going to be a lot of confusion in the regulatory community.”
Only last year, the EPA formally objected to these changes. As observers at the 14th Convention of Basel, US officials spoke out against increased regulation of electronic waste, arguing that it would hinder legitimate recycling efforts. Basel parties disagreed.
There are reasons for slight optimism. Michael Regan, recently announced as President-elect Joe Biden’s pick to head the EPA, has eight years of experience at the Environmental Defense Fund, an organization seeking to limit plastic pollution.
In Congress, the Break Free From Pollution Act was introduced in both chambers earlier this year. Sponsored by Sen. Tom Udall (D-NM), Rep. Alan Lowenthal (D-CA), and Rep. Katherine Clark (D-MA), the bill would, among other things, prohibit waste from being shipped to non-OECD countries. It has yet to move through Congress.
The Presidential Plastics Action Plan, proposed by more than 550 community and conservation groups, urges executive action. It calls on Biden to “join international efforts to address the global plastic pollution crisis through new and strengthened multilateral agreements” and to deny permits for plastic production facilities wanting to export.
These initiatives get at the flavor of the Basel Convention but don’t mention it directly, leaving everyone guessing how far US intentions will go. Whether it’s ratifying Basel or signing some other binding multilateral contract, the Basel Action Network and other advocates want action come January. “I really hope that the Biden administration wakes up to this and says we’ve got to be part of the plan here — either ratify Basel or make sure that we’re not going to be exporting to countries that have banned imports,” said Pucket, who hopes the nation won’t continue to “bathe in criminality.”
Related front page panorama photo credit: Adapted by WhoWhatWhy from Unsplash users: Maria Mendiola, Brian Yurasits, Brian Yurasits, Barthelemy de Mazenod, Erik Mclean, Pedro Aguilar, Ishan Seefromthesky, Jonathan Gonzalez, Justin Bautista, and Denys Nevozhai.
