The International Movement of Hazardous Waste

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391 International Movement ofHazardous Waste (1998) 17 AMPU THE INTERNATIONAL MOVEMENT OF HAZARDOUS WASTE: MAKING A PERMIT APPLICATION UNDER AUSTRALIAN LAW Martijn Wilder· The production and disposal ofhazardous waste has been one ofthe more difficult environmental management issues facing both private companies and national governments in recent years. International and domestic regulation regarding the transboundary movement ofhazardous waste has tightened significantly, thereby further limiting the ability to move hazardous waste in and out of Australia. Attention today is increasingly on reducing the production of, and limiting the movement in, hazardous waste as opposed to developing the means by which to regulate this transportation. Nonetheless, in places where no suitable domestic disposal options exist, the need to move hazardous waste internationally, whether it be for final disposal or for recycle, reuse or recovery remains. This article provides an overview of the international and domestic legal regimes governing the transboundary movement ofhazardous wastes and outlines the procedures that are to be followed in obtaining a permit to export, import or transit hazardous wastes to, from or through Australia. In this respect, the purpose ofthis article is to assist individuals who may be interested in actually making an application for a relevant permit under the Hazardous Wastes (Regulation ofExports and Imports) Act 1989. 1. INTRODUCTION "[In 1988] one of the worse cases of an illegal dumping occurred in Nigeria. Investigations revealed that 3,800 tons of hazardous waste were being stored at a site at Koko. The owner had no knowledge ofthe contents ofthe drums but had been renting out his land to importers for five years for storing merchandise. The importer, and Italian Businessman a resident in Nigeria, had forged documents and permits for importing the drums. The drums were identified as containing several different types of hazardous waste including PCBs and radioactive material. Many drums were damaged and leaking. Workers packaging the drums into containers for re-transportation to Italy suffered severe chemical bums. Some were hospitalised and one man was paralysed. The waste has now been removed, but the land within a 500 - metre radius ofthe dump site has been declared unsafe and there is concern about surface and ground water contamination." "In 1992, Italian and Swiss companies took advantage of the confused political situation in war-tom, famine stricken Somalia to secure an $80,000,000, 20 - year contract for dumping toxic waste there. The contract was supposedly signed by the Somalia Minister ofHealth, but at the time none ofthe warring factions in Somalia truly held power.,,2

2 Senior Associate, Allen, Allen & Hemsley and Adjunct Lecturer in International Environmental Law at the University of New South Wales. The author wishes to thank Environment Australia's Hazardous Waste Section for their assistance. Lipman Z "The Convention on the Control of Transboundary Movements and Disposal of Hazardous Wastes and Australia's Waste Management Strategy" in Environmental and Planning Law Journal, December 1990: 283 at 284 and J Brooke, "Waste Dumpers Turning to West Africa" in N. Y: Times, July 17 1988 atAl. H.N.Q. "Yu The Law of Treaties and the Export of Hazardous Waste in UCLA Journal ofEnvironmental Law and Policy Yo112, 94 at 298-434 at 390. (1998) 17 AMPLJ International Movement ofHazardous Waste 392 The generation of unwanted by-products, or "waste", is a normal feature ofindustrial activity. In most cases waste can be managed or treated with relative ease. However, where such waste is of a more hazardous nature, real difficulties arise, particularly where it is to be subject to international movement. The term "hazardous waste" is defined in a variety of ways, especially within different legal regimes. Nonetheless, the term is generally used to refer to material that, despite any other features, is characterised by toxicity, reactivity, corrosiveness, explosiveness and inflammability. Its treatment or disposal can therefore be extremely difficult or dangerous. In fact, of the total hazardous waste produced internationally, 10% is intractable.3 In practical terms this means that there is currently no environmentally suitable means of disposal available in the country where it is produced. During the course ofthe last 20 years the production and disposal of hazardous wastes, particularly those of an intractable nature, has become one of the main environmental management issues facing both private companies and national governments. The substantive increase in the level ofwaste generation has not been met with a parallel increase in disposal or treatment options. Countries that produce hazardous waste often fmd themselves without any, or only limited, capacity to deal with the hazardous waste generated. Where treatment technologies do exist, it is often only in the early stages of development, environmentally unproven or prohibitively expensive. During the 1970s and 1980s large volumes of extremely hazardous waste was illegally shipped to developing third world countries where, with little or no environmental protection regimes, it was dumped in exchange for hard currency, irrespective of the environmental consequences. While such an "out-of-sight, out-of-mind" approach was not the norm, it did for a time become a well established practice. Only with international reaction to incidents such as at Koko was effective regulation implemented to halt such illegal dumping. Nonetheless, in the absence of adequate safe domestic disposal facilities, hazardous waste has either been placed in storage until adequate disposal options are found or disposed of locally in an environmentally unsafe manner such as dumping. Alternatively, producers of hazardous waste have exported it elsewhere, to countries with the technological capacity to treat, recycle or dispose ofthe waste. It is in the case ofthe latter option that international regulation has now been implemented to ensure that the import and export of hazardous waste is undertaken in an environmentally safe manner. In recent years the continued tightening of controls on the transboundary movement of hazardous waste has resulted in far less opportunity to move hazardous waste across national boundaries. Movement for final disposal is permitted only in exceptional circumstances. While movement will continue to be strict, the focus ofmanaging hazardous waste is now on decreasing overall production, encouraging the development oflocal treatment technologies and ensuring that any hazardous wastes which are produced are dealt with in an environmentally safe manner, irrespective ofwhere they are ultimately treated. 2. THE INTERNATIONAL REGULATION OF HAZARDOUS WASTE MOVEMENTS The international regime to regulate the transboundary movement ofhazardous waste is comprised of a range of principles and agreements, the central being the 1989 Convention on the Control of Transboundary Movements ofHazardous Waste and their Disposal (the Basel Convention). While differences between the 3 Intractable waste includes that range of chemicals not found in nature and for which nature has no mechanism for breakdown, such as substances which include PCBs, other chemicals used in plastic, pesticides, refrigerants, fire extinguishers, solvents and so on. 393 International Movement ofHazardous Waste (1998) 17 AMPU various principles and agreements exist, particularly at the philosophical level, the existing regime places three basic restrictions on the export and import ofhazardous waste: • States have the sovereign right to ban imports and to restrict or prohibit exports to various countries.4 • The transboundary movement in hazardous waste is limited between parties to relevant conventions which regulate international movement but only in circumstances where the state ofexport does not have the capacity or facilities to dispose ofthe waste in an environmentally sound manner itself: unless that export is for recycling purposes.s To this end the international regime is designed to minimise the generation ofhazardous waste and promote disposal at source. • That the international movement in hazardous waste is done so only on the basis of the notion ofprior informed consent of export, transit and import states. The objective is to prevent any illegal trade with movements in hazardous waste occurring only where they are agreed to beforehand by all parties involved.6 These three basic restrictions represent what may be seen as a compromise between differing international standpoints on the permissibility of the export and import of hazardous waste.7 Industrialised countries, particularly those within the GECD and the European Union, have traditionally seen the objective of regulation as minimising the production of hazardous waste as far as possible, ensuring the disposal occurs only in member parties and in accordance with environmentally sound management. Where trade does take place, it is to be in accordance with prior informed consent. In this respect the focus has been upon regulation, rather than the banning oftrade entirely. 8 It is an approach that was clearly identified in a range of GECD declarations and decisions, and further endorsed in the fIrst international attempt to address the issue, UNEP's 1987 Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Waste ("the Cairo Guidelines"). The Cairo Guidelines called for the effective control ofhazardous waste movement through international regulation. In particular, the Guidelines sought procedures to allow the notification of receiving and transit nations of any export and consent by those nations to such export prior to its taking place. UNEP's ultimate objective in the Cairo Guidelines was to establish a global convention for the regulation of the international trade in hazardous waste. 4 The Convention on the Control ofTransboundary Movements ofHazardous Wastes and their Disposal, Basel, 22 March 1989 UNDOC.UNEP Aug. 190/4 reproduced in 2ILM (1989) (hereafter called the "Basel Convention") preamble; OECD Decision C(83)180; Convention on the Ban of Imports into Africa and the Control of Transboundary Movement and Management of Hazardous Waste within Africa (1991) 21 EPL (1991) 66 in 30 ILM 1991 (hereinafter called the "BAMAKO Convention") preamble. 5 The Basel Convention, Preamble, Articles 4(2)(a), (b), (d), 4(s), 4(9); OECD Recommendations C(76)155, Annex, Para 3; UNEP Cairo Guidelines into Principles of Environmentally Sound Management of Hazardous Wastes (1985) UNEPIWG. 122/3 (hereinafter called the Cairo Guidelines). 6 Basel Convention, Article 6; BAMAKO Convention Articles 4, 6, 7. 7 For a general discussion of the three basic restrictions on the export and import of hazardous waste and ofthe different philosophical approaches adopted by the industrialised and developing world see P. Birnie and A. Boyle, International Law and the Environment (Oxford University Press, Oxford 1992) at pages 332 - 335. 8 The position ofindustrialised countries particularly those ofthe OECD and European Union, is reflected in the following: OECD Decision and Recommendation C(83)180; Recommendation C(76)155; Resolution C(85)100; Decision and Recommendation C(86)68; Decision C(88) 90; Resolution C(89)112; Decision C(90)178; 1997 Council Decision (1992) 39/Final; EEC Council Regulation No. 259/93. (1998) 17 AMPLJ International Movement ofHazardous Waste 394 For many regional groupings however, particularly those developing countries previously subjected to uncontrolled dumping, the international regulatory approach being pursued by the developing nations was little more than a means of legitimising an already unacceptable practice. In particular, many African states strongly objected to anything less than a total prohibition on the movement ofhazardous waste. In 1988 the Organisation of African Unity (the "OAU") adopted a number of resolutions condemning international trade in hazardous waste and in particular declaring the dumping of nuclear and industrial waste as a crime against the African people. Such objections led to the adoption ofthe 1991 Convention on the Ban ofImports into Africa and the Control ofTransboundary Movement and Management ofHazardous Waste within Africa ("the BAMAKO Convention"). The BAMAKO Convention prohibits imports into Africa from non-contracting parties and deems such import illegal and criminal.9 As a consequence ofthis difference in philosophical approach, the two year period between 1987 and 1989 resulted in the emergence of ad hoc arrangements comprising of binding and non-binding acts of various international and regional groupings. At the same time the desire, particularly among developed industrial nations, to establish a truly international regime persisted. Following on from UNEP's Cairo Guidelines, an international convention to regulating hazardous waste took place in Basel, Switzerland in March 1989, the outcome being the Basel Convention. 2.1 The Basel Convention The Basel Convention does not regulate the domestic movement of wastes, does not place any limitations on the quantity of waste generated or attempt to ban the transboundary movement of hazardous waste. Rather, it seeks to control and limit transboundary movements of hazardous wastes within the context ofthree basic objectives: • Transboundary movements of hazardous waste should be reduced to a minimum consistent with their environmentally sound management and on the basis of prior informed consent. In this respect any threat to human health and the environment should be eliminated. • The treatment and disposal of hazardous waste should occur, as far as is compatible with environmentally sound and efficient management, as close as possible to the source of generation. • Through enhanced control and regulation, an incentive will be created so that hazardous waste generation is reduced and minimised at source. As indicated earlier the Convention is concerned only with wastes that are identified as hazardous and which are destined for disposal. While this would seem to suggest that the Convention is limited in scope, the Convention remains relatively broad in its application. Firstly,·disposal includes land fill, release into water courses, the sea or sea-bed, incineration, permanent storage or recycling. 10 Secondly, the Convention applies to a wide range of wastes that are characterised by their toxic, reactive, corrosive, explosive or inflammable nature. However, wastes that are either 9 The position adopted by developing countries is clearly indicated in the organisation of African Unity's CN/Res. 1153 28 ILM (1989) 567; and the BAMAKO Convention. 10 Basel Convention Article 2(4) and Annex IV. 395 International Movement ofHazardous Waste (1998) 17 AMPU radioactive or derive from the operations ofa ship are not covered by the Convention in cases where other international agreements exist for their regulations. 11 At a procedural level, the Convention does not adopt a list of wastes per see Rather it adopts four Annexes which enable a hazardous waste to be identified on the basis of a series of criteria relating to its nature and character. In determining therefore whether or not a waste is to be covered by the Convention, it is necessary to ensure that the waste concerned does in fact fall within these Annexes. 2.1.1 Identification ofHazardous Wastes Annex I identifies the categories of waste to be controlled under the Convention. This includes waste streams (such as hospital and pharmaceutical waste; waste from organic solvents, polychlorinated biphenyls, adhesives and so on). It also includes wastes that contain certain substances such as lead, mercury, asbestos, arsenic, cadmium, phenols and organohalogen compounds. Once identified as falling within one ofthese two categories, a waste will then only be hazardous if it displays one of the characteristics enumerated in Annex III. Such characteristics include a waste being explosive, flammable, oxidising, poisonous, infectious, corrosive, toxic, leachable and spontaneous combustible. In addition, under Article 3(1) a waste may simply be hazardous because a State has informed the Convention Secretariat that the particular waste is classified as hazardous under its national legislation. 2.1.2 Procedural Rules Once identified as hazardous the transboundary movement of that waste will be subject to the procedural rules ofthe Convention, including the obtaining of an appropriate permit. These rules are in effect as follows. With respect to the regulation of the transboundary movement of hazardous waste, parties to the Convention are required: • To recognise and observe the Sovereign right of States to prohibit the import of hazardous waste (Article 4(1)(a)(b)(e)). • To ensure that the transboundary movement of hazardous waste is reduced to a minimum consistent with environmentally sound management. Full information is to be provided regarding the hazards involved in any such movement (Article 4(2)(a) (f)) and the environmental soundness ofthe facilities involved. • To prohibit the export or import of hazardous waste to or from non-parties to the Convention (Article 4(5)). The movement ofwaste therefore between parties is only to be permitted where the State of export does not have the technical capacity and the necessary facilities to dispose of the waste in an environmentally sound manner, unless the waste(s) in question is required as a raw material for recycling in the state ofimport. 11 The Basel Convention Article 1. (1998) 17 AMPLJ International Movement ofHazardous Waste 396 • To ensure that all countries involved in a transboundary movement give their Prior Informed Consent to that movement (Article 4(a)). • To prohibit nationals from exporting or transporting hazardous waste without authorisation. Wastes that are to be transported must be packaged and labelled in accordance with the recognised international rules and must be accompanied by the necessary documentation and insurance. • To impose criminal sanctions for illegal trafficking in hazardous waste or other waste (Article 9(5)). With respect to the disposal ofwaste: • Parties are required to ensure the availability of adequate disposal facilities for the environmentally sound management ofhazardous waste and other waste. • Persons involved in the management ofhazardous waste are required to take all necessary steps to prevent pollution and where pollution does occur, to minimise the consequences of it for human health and the environment. • All exported waste must be re-imported ifit cannot be disposed of in the importing country in an environmentally sound manner. And finally, with respect to the reduction ofwaste: • Contracting parties are required to reduce the generation of hazardous waste as far as possible, taking into account social, technological and economic factors. 2.1.3 Further Development ofRegulation The Basel Convention has had a mixed reception and in many areas has been substantially criticised for not going far enough. However, as Sands notes, there appears to be a consensus among commentators that although far from providing the perfect solution to the problem oftransboundary movements of hazardous waste, it does address most ofthe relevant issues and is therefore a step in the right direction. 12 Furthermore, it is important to recognise that in accordance with Article 15 of the Convention the parties have met on a number of occasions to further develop the way in which hazardous waste movement is regulated. In March 1994, the second meeting ofthe Conference of Parties to the Basel Convention sought to provide additional protection to developing countries because of their special vulnerability to hazardous waste. In what was largely a direct recognition ofthe approach adopted by the OAU, the parties implemented what has now become known as the "Ban Decision". The fIrst operative part ofthat decision, banned immediately the export of waste for fmal disposal from OECD countries to 12 P. Sands Principles of International and Environmental Law (Volume 1) (Manchester University Press, Manchester 1995 at page 504 referred to K. Kummer, the International Regulation ofTransboundary Traffic and Hazardous Waste: The 1989 Basel Convention 41 ICLQ 530,560 (1992). 397 International Movement ofHazardous Waste (1998) 17 AMPU Non-OECD countries. While this ban was endorsed by most parties to the convention and is in effect now practised, the second operative part of the decision was far more controversial. It provided that trade in hazardous waste destined for recycling or recovery operations from OECD to non-OECD countries was to be phased out by 31 December 1997. Incorporation of the second aspect of the Ban Decision amendment has been strongly debated at each subsequent Conference of the Parties since its introduction in 1994. While most countries would appear to support the decision for its political value, many feel that they should be able to retain control ofwhat may be imported into their own territory. As a consequence, incorporation of the ban amendment into the Convention remains outstanding with only a small proportion of the parties having ratified the decision. As at April 1998, Australia had still not done so. 2.1.4 Liability and Compensation for Damage One fmal issue worth mentioning is that of liability and compensation for damage arising from the transboundary movement of hazardous wastes and their disposal. Illegal dumping incidents such as those in Nigeria and Somalia clearly raise the issue of liability for environmental damage. In fmalising the terms of the convention it was agreed that parties would cooperate with a view to adopting as soon as practicable a Protocol setting out appropriate rules and procedures in a field of liability and compensation for damage, rather than address the issue at the time. 13 Significant progress has been made on this issue with parties having negotiated Draft Articles ofa Protocol on Liability for Compensation for Damage resulting from the Transboundary Movements ofHazardous Wastes and their Disposal. 14 Although at least 12-18 months from fmalised (let alone ratified), the Draft Articles have played with the inclusion of articles which provide that there be no fixed fmancial limit on liability. If ultimately endorsed this will have important ramifications for private companies attempting to obtain unlimited insurance coverage. It may well be that even if such coverage is available, it may be so prohibitively expensive that the overall cost of moving hazardous waste across international boundaries is simply no longer a viable option. 2.2 Other International Arrangements While the Basel Convention operates as the global regulatory regime for the transportation of hazardous waste, it is by no means exclusive. Article 11 of the Basel Convention does allow for parties to enter into agreements with other parties and non-parties, provided that the controls prescribed within those agreements do not reduce the level of protection provided by the Basel Convention. A range of other agreements, particularly at the regional level, therefore now exist alongside the Convention. 13 The Basel Convention Article 12. In the absence of such liability provisions issues of liability and compensation for damage resulting from the transboundary movements of hazardous wastes and their disposal would need to be resolved in accordance with the basic principles ofintemationallaw in this area. 14 UNEP/CHW. I/WG.l/3/2. (1998) 17 AMPLJ International Movement ofHazardous Waste 398 Table 1: Countries and Entities which are Party to the Basel Convention· Antigua & Barbuda Argentina Australia Austria Bahamas Bahrain Bangladesh Barbados Belgium Bolivia Brazil Bulgaria Canada Chile China Columbia Comores Costa Rica Cote d'Ivoire Croatia Cuba Cyprus Czech Republic Denmark Ecuador Egypt El Salvador Estonia European Commission Fiji Finland France Germany Greece Guatemala Guinea Honduras Hungary Iceland India Indonesia Iran Ireland Israel Italy Japan Jordan Kuwait Kyrgyzstan Latvia Lebanon Leichtenstein Luxembourg Malawi Malaysia Maldives Mauritania Mauritius Mexico Micronesia (Federated States) Monaco Morocco Namibia Netherlands New Zealand Nigeria Norway Oman Pakistan Panama Papua New Guinea Paraguay Peru Philippines Poland Portugal Qatar Republic ofKorea Romania Russian Federation Saint Kitts & Nevis Saint Lucia Saudi Arabia Senegal Seychelles Singapore Slovak Republic Slovenia South Africa Spain Sri Lanka Sweden Switzerland Syria Tanzania Trinidad & Tobago Tunisia Turkey United Arab Emirates United Kingdom Uruguay Uzbekistan Vietnam Yemen Zaire Zambia

  • Countries which had ratified the Convention at 22 July 1997. There are many others that have signed, but not

ratified, the Convention. (See United Nations Environment Program website at: 399 International Movement ofHazardous Waste (1998) 17 AMPU 2.2.1 The OECD Council Decision C(92) 39/FINALIS As early as 1984, OECD countries had been making a number of Decisions and Recommendations regarding the. transfrontier movement of hazardous waste. However, with the finalisation of the Basel Convention OECD countries were concerned that it would hinder movements within the OECD of waste for recovery, which provided valuable substitutes for raw materials. Consequently the OECD Decision on the Control of Transfrontier Movements of Waste destined for Recovery Operations ("the OECD Decision") was made. As the title suggests the Decision applies only to wastes destined for recovery, not fmal disposal. The decision, when placed alongside other OECD regulations, provides a more streamlined approach for the movement of hazardous waste for recovery between OECD countries, while still ensuring that the objectives of the Basel Convention are met. The philosophy behind the OECD Decision is that all ofthe OECD countries which are subject to the decision are developed countries. In this respect the countries are all taken to have the appropriate environmental safeguards in place to allow for the movement and treatment of hazardous waste and much of the preliminary assessment which would otherwise be required in determining the environmental soundness of a facility, will not be required. Drawn up as a multilateral Agreement under Article 11 ofthe Convention, it places all categories of waste for recovery on one of three lists - green, amber or red - according to the degree of hazard. Red listed substances (which include dangerous materials with high toxicity such as asbestos, PCBs and dioxins) cannot be traded except for fmal disposal and with express prior consent. Amber listed products, which include waste with moderate toxicity, can be traded for recycling or and recovery provided there is prior informed consent. Finally, green listed waste, those with lower marginal toxicity, can be freely traded unless the importing state expressly rejects their receipt. For Australian companies or governments seeking to move waste for recovery between other OECD countries, these regulations (and not the Basel Convention) will govern such movements. Table 2: Organisation for Economic Cooperation and Development (GEeD) Member Countries· Australia Austria Belgium Canada Czech Republic Denmark Finland France Germany Greece Hungary Iceland Ireland Italy Japan Korea (Republic of) Luxembourg Mexico Netherlands New Zealand Norway Poland Portugal Spain Sweden Switzerland Turkey United Kingdom USA 15

OECD Council Decision on the Control of Transfrontier Movements of Waste destined for Recovery operations (the "OECD Decision") 30 March 1992, C(92)39/FINAL. As at January 1997 Membership is also currently under consideration for the Slovak Republic. (1998) 17 AMPU International Movement ofHazardous Waste 400 2.2.2 European Union Legislation In February 1993, the European Community Council adopted Council Regulation (EC) No. 259/93 on the Supervision .and Control of Shipments of Waste within, into and out of the European Community.16 The Regulation seeks to integrate the provisions ofthe OECD Council decision and, as the title suggests, applies to shipments ofwaste within, into and out ofthe community. In doing so the Regulation establishes rules ofcontrol to govern four different situations: • Shipments ofwaste between member states; • Shipment ofwaste within member states; • The export ofwaste; and • Imports ofwaste. Additional rules are also established for transit, and in respect of provisions common to each ofthe four types ofshipments. 2.2.3 1989 Lome Convention Further supplementing Council Regulation 259/93, is the 1989 Lome Convention which subjects the EC to a blanket prohibition on all direct or indirect exports of hazardous waste and radioactive waste from the European Community to the African-Caribbean-Pacific (ACP) states. It also requires ACP states to prohibit the direct or indirect import ofsuch waste from the EC or from any other country.17 These obligations are however without prejudice to other specific international undertakings to which the parties have subscribed. 2.2.4 The Waigani Convention Also of direct relevance to Australia is the Convention to Ban the Importation into Forum Island Countries ofHazardous and Radioactive Waste and to Control the Transboundary Movement and Management of Hazardous Waste within the South Pacific Region (the Waigani Convention). Opened for signature on 16 September 1995, the Convention has still not entered into force, Australia itself having signed but not yet ratified. Designed to cover most countries and territories within the South Pacific Region, the main obligations ofthe Convention are: • The implementation of an import and export ban on hazardous waste and radioactive waste. The Convention provides that each Pacific island developing party shall take appropriate measures within the area under its jurisdiction to ban the import of all hazardous waste and radioactive waste from outside the Convention area. Furthermore, each other party is to take appropriate measures within the area under its jurisdiction to ban the export of all hazardous waste and radioactive waste to all Forum Island Countries or to territories located in the Convention area with the exception ofAustralia and New Zealand. • Where transboundary movements of hazardous waste generated within the Convention area occur they are to be carried out in accordance with the provisions ofthe Convention. 16 Council Regulation 259/93/EEC, OJ L 30 6 February 1993. The regulation replaces Directive 84/631/EEC, OJ L 326, 13 December 1984, 31. For a full analysis of this legislation see P. Sands Principles ofInternational Environmental Law at p509-514. 17 Lome, 15 December 1989, in force 1 September 1991,29 ILM (1990), 783. 401 International Movement ofHazardous Waste (1998) 17 AMPU Once the Convention enters into force exports of hazardous and radioactive waste to countries and territories in the Convention area (except New Zealand and Australia) will be banned. Imports of hazardous and radioactive waste from these countries to Australia will be allowed but it must be undertaken in accordance with the international rules forthe import ofother waste. Table 3: Countries and Territories within the Waigani Convention Area American Samoa Australia Fiji French Polynesia Guam Republic of Marshall Islands Micronesia (Fed.States) 2.2.5 UNCED: Agenda 21 Nauru New Caledonia and Dependencies New Zealand Niue Commonwealth ofNorthern Mariana Islands Republic ofPalau Papua New Guinea Pitcairn Islands Tokelau Tonga Tuvalu Vanuatu Wallis and Futuna Western Samoa Finally, mention should also be made of the United Nations Program of Action, Agenda 21. Following the United Nations Conference on Environment and Development (UNCED), the need for a more concerted effort to regulate waste internationally was recognised. Chapter 20 of Agenda 21 deals specifically with the environmentally sound management of hazardous waste, including the prevention ofillegal international traffic in such waste. It states: Within the framework ofintegrated life-cycle management the overall objective is to prevent to the extent possible, and minimise, the generation of hazardous wastes, as well as to manage those wastes in such a way that they do not cause harm to health and the environment. 18 To that end, the overall objectives of Agenda 21 are to ensure that the international regime to manage the transboundary movement of hazardous waste leads to developing an integrated, cleaner production approach; eliminates or reduces to a minimum transboundary movements; and implements "self-sufficiency principles" to ensure that management, as far as possible, takes place in the country of origin. 19 It is intended that Agenda 21 will form the basis of future international measures, including treaties and other international acts, to ensure a comprehensive and effective international regime for ensuring the environmentally sound management ofhazardous waste. 3. THE AUSTRALIAN LEGISLATIVE FRAMEWORK In line with the overall objectives sought by the Basel Convention and other relevant instruments, Australia has significantly reduced its movement ofhazardous wastes. Where such movements do occur it is in almost all cases for the purposes of recovery, recycling or reuse and not [mal disposal. Nonetheless, the need to export and import hazardous waste internationally has not been totally eliminated. 18 UNCED, Agenda 21, Chapter 20, para 20.6. 19 Paragraph 20.7(a). (1998) 17 AMPLJ International Movement ofHazardous Waste 402 Given the unacceptability oflandfilfo and the inadequate solution that storage provides, hazardous waste will usually be exported from Australia where the absence of suitable domestic treatment technology requires waste to be taken overseas to a facility that is capable of disposing of it. Of those eight export permits in force in January 1998, all are for recycling, reclamation or for trials at overseas facilities. 21 The need to import hazardous waste into Australia usually arises in cases where Australia has a disposal facility not available in the country generating the waste or it is in fact being returned to Australia as a result of activities undertaken by Australian companies or government authorities in other countries. For example ofthe eight import permits in force in January 1998, a large number relate to the recycling of aluminium and zinc ashes from New Zealand. Another relates to the return to Australia of waste from French Antarctic activities.22 The Australian Defence Force also often imports hazardous materials used in its overseas defence activities. Finally, the Australian Government will also grant transit permits where trade moves through Australia. The Federal Government recently granted a permit for a New Zealand company to ship lead acid batteries from Guam to be recycled in Wellington, New Zealand with transit through Port Botany.23 3.1 The Hazardous Waste (Regulation of Exports and Imports) Act 1989 Following Australia's signing ofthe Basel Convention, the Commonwealth Government passed the Hazardous Waste (Regulation ofExports and Imports) Act 1989 to implement the Convention into Australian domestic law. However, the Australian legislation differed slightly from the Convention in a way that limited its application to waste intended for final disposal. Waste for recovery or recycling was not covered and as a consequence waste exported overseas for recycling or recovery did not require an export permit. In addition, prior informed consent was often not obtained. In order to address this deficiency, the Federal Government amended the Act in 1996 to give full effect to the Basel Convention and to Article 11 Agreements.24 The Hazardous Waste (Regulation ofExports and Imports) Act 1989 (as Amended 1996) (the "Act") now governs all transboundary movements of hazardous within and out of Australia by directly implementing the Basel Convention, and providing for the OECD arrangements. The main features of the Australian legislation are as follows. 3.1.1 Object The object ofthe Act is to regulate the export, import and transit of hazardous waste to ensure that exported, imported or transmitted waste is managed in an environmentally sound manner so that 20 For example the Queensland Cabinet has recently agreed to prepare legislation to close the Brisbane City Council Gurulmundi Hazardous Waste Landfill. (see: Environmental Manager Issue 193, page 3.) 21 Hazardous fVaste Act Current Pennit Table as reproduced at: 22 Hazardous Waste Act Current Pennit Table as reproduced at: 23 Hazardous JVaste Act Current Pennit Table as reproduced at: 24 Hazardous Waste (Regulation ojR"(ports and Imports) Act 1989 ("Hazardous Waste Act"), Section 3. 403 International Movement ofHazardous Waste (1998) 17 AMPU human beings and the environment, both within and outside Australia, are protected from the harmful effects ofthe waste.25 To achieve this objective the legislation provides for the granting oftwo forms ofpermits. The first a Basel Permit for movements in accordance with the Basel Convention. This will normally involve movement between parties to the Convention, where such movement is not subject to another arrangement. It will also include movements for fmal disposal (as opposed to recovery) between DECD countries. The second is a Special Permit where the permit being sought is one for movements in accordance with an Article 11 agreement or arrangement. For example, any movements for recovery between DECD countries would fall under this in accordance with the DECD Decision, as will movements between parties to the Waigani Convention once it comes into effect. In the absence of a permit being obtained, transboundary movement is prohibited.26 3.1.2 The Granting of a Basel Permit Where the Minister receives an application for a Basel Permit, the Minister must decide within 60 days whether or not to grant that permit. Allowance is made for this time to be extended particularly where there is a delay in receiving adequate consents from other governments.27 In making a determination as to whether or not to grant a Basel permit, the Minister must be satisfied, under Section 17 ofthe Act, ofthe following: • That dealing with the hazardous waste concerned in accordance with the import proposals or export proposals would be consistent with the environmentally sound management of the hazardous waste. • If the permit sought is for export, that in authorising the export of hazardous waste to a particular foreign country: (i) the component authority of that country has given written consent to the grant ofthe permit; and (ii) such consent was given in accordance with Article 6 ofthe Basel Convention. • If the permit sought is for export, that the hazardous waste will be allowed to be transported through any foreign country through which the waste is proposed to be transported. • That, having regard to: (i) the applicant's fmancial viability; and (ii) the applicant's previous record in relation to environmental matters; and (iii) any other relevant matters; the applicant is a suitable person to be granted a Basel Permit. 25 Hazardous Waste Act, Section 3(1). 26 Full details ofthe procedures involved in applying for a Permit are outlined later in this Article. 27 Hazardous Waste Act, Section 16. (1998) 17 AMPLJ International Movement ofHazardous Waste 404 • The applicant has appropriate insurance.28 Appropriate insurance will exist where the applicant is reasonably insured against risks that might arise in relation to the hazardous waste to the extent that it would enable the applicant to discharge any liability which might arise in relation to the hazardous waste concern ifthe permit were granted. As noted above nearly all permits granted in recent years, and particularly those in force as at January 1'996, are for material destined for recycle, reuse or recovery. Nonetheless, where an application is made for a Basel export permit for fmal disposal, such permits may only be granted in exceptional circumstances which would not be inconsistent with the environmentally sound management of the hazardous waste. In deciding whether such circumstances exist the Minister will have regard to: • whether there will be a significant risk ofinjury or damage to human beings or the environment ifthe Minister decides not to grant the permit; • whether the waste is needed for research into improving the management ofhazardous waste; • whether the waste is needed for testing for the purposes ofimproving the management of hazardous waste.29 3.1.3 Refusal to Grant a Basel Permit Even in the event that all such criteria are met the Minister still has a discretion not to grant a permit where to do so would neither be appropriate or in the public interest.30 Furthermore, the Minister may also decide not to grant a permit ifthe Minister is ofthe view that: • there was another way in which the hazardous waste could be dealt with; and • dealing with the waste any other way would not pose a significant risk of injury or damage to human beings or environment; and • having regard to Australia's international obligations, the waste should be dealt with in the other way rather than in accordance with the proposed method.31 Finally, the Minister may also decide not to grant a Basel Permit ifthe Minister thinks that: • in the case of export, the hazardous waste could be disposed of safely by using the facility in Australia; and • having regard to the desirability of using facilities in Australia for the disposal of hazardous waste, the waste should be disposed of by using that facility rather than in accordance with the Basel export.32 28 Hazardous Waste Act, Section 17. 29 Hazardous Waste Act, Section 18A. 30 Hazardous Waste Act, Sections 17(2A) and 17(3). 31 Hazardous Waste Act, Section 17(4). 32 Hazardous Waste Act, Section 17(5). 405 International Movement ofHazardous Waste (1998) 17 AMPU Obviously the Minister must not grant a Basel permit where movement of a hazardous waste involves countries which are not parties to the Convention.33 3.1.4 The Granting of a Special Permit As indicated earlier, there will be cases where because ofsome other arrangement the transboundary movement of hazardous waste will be governed by an alternative arrangement under Article 11 of the Convention. In relation to Australia, the regulation of hazardous waste movements for recovery involving other OECD countries will be governed by the OECD Council decision, while movements between Australia and certain Pacific Islands Countries will be governed by the Waigani Convention once in force. Also in some cases Australia may have entered into a distinct bilateral Article 11 agreement with another country for a particular export. In such cases a Special Permit, as opposed to a Basel permit, will be required. The Hazardous Waste Act makes provision for agreements falling under Article 11 to be implemented into Australian law through regulations attached to the Act. Where this is the case, the regulation will set out the requirements under that other arrangement for obtaining a Special Permit and the factors to be taken into account by the determining authority in assessing an application. In granting a Special Permit the Minister must be satisfied that the requirements of the Article 11 regulations are met and do not pose a lower standard than that required by the Basel Convention.34 However, even where an Article 11 agreement exists, and that agreement has been implemented into Australian law by the appropriate Article 11 regulations, the Minister may, if satisfied that special circumstances exist, determine that assessment of the application will rather be in accordance with the criteria used for assessing Basel Permits.35 Such a situation is most likely to arise where the Minister is ofthe view that the objectives ofthe Basel Convention may not be met, . or some assessment of the environmental soundness of the transboundary movement disposal processes, is required. In general terms, in deciding a special permit application the Minister must again be satisfied that granting the approval would be consistent within the environmentally sound management of hazardous wastes. The specific criteria on which a decision is made will obviously differ depending on the relevant agreement. Nonetheless, by way of example a decision by the Australian authorities to grant a Special Permit under the OECD Council Decision would require the Minister being satisfied, amongst other things, that the following requirements are met: • all requirements ofthe OECD council decision are complied with; • the receiving facility is operating or authorised to operate as a recovery facility under the relevant domestic law of the country to which material is being sent or that the receiving facility in Australia is licensed to operate as a facility ifit is receiving imported waste; 33 Hazardous Waste Act, Section 17(7) and (8). 34 Hazardous Waste Act, Sections 13C - 13F, Division 2 - Special Permits Under a Set ofArticle 11 Regulations. 35 Hazardous Waste Act, Section I3B. (1998) 17 AMPU International Movement ofHazardous Waste 406 • evidence of a valid written contract or chain of contracts between the waste generator and the receiving or recovery facility which complies with the minimum OECD and national requirements; • prior informed consent has been obtained from the competent authorities of all countries concerned with respect to the transboundary movement; • the applicant has appropriate insurance; • all appropriate documentation has been completed. The OECD arrangements provide for Notification forms and Transfrontier Movement ofWaste Tracking forms to be completed. In the case of Special Permits the obligation upon the Minister to determine such applications will largely depend upon the provisions ofthose other agreements. In the case ofOECD special permits a decision should usually be made within 30 days. 3.1.5 Further provisions The 1996 amendments to the Hazardous Waste Act introduced two important additions to the Act. Firstly, the amending legislation provides for the establishment of a Hazardous Waste Technical Group to assist the Minister in assessing the technical, scientific, social, economic and environmental aspects of an application. Assessments made by the Hazardous Waste Technical Group form a essential component of the assessment process which is then relied upon by the Minister in making a fmal determination. 36 Furthermore, Part VA ofthe Act also gives the Minister the power to make arrangements directed towards achieving the object or aims ofthe Act including: • Helping to reduce the generation ofhazardous waste in Australia. • Developing adequate disposal facilities for the environmentally sound management of hazardous waste in Australia. • Encouraging persons involved in the involvement of hazardous waste in Australia to take steps to: (i) prevent or reduce pollution arising from the management ofthe waste; and (ii) prevent or reduce the adverse consequences of any such pollution for human health and environment. 3.1.6 Penalties Finally, the Act contains a number of offences for failure to comply with its provisions. While the range of penalties varies, the maximum penalties include imprisonment for up to 5 years and fmes 36 Hazardous Waste Act, Section 58E. 407 International Movement ofHazardous Waste (1998) 17 AMPU up to $1,000,000. In addition, executive officers of bodies corporate may be held liable ifthey are found to have known ofor been reckless or negligent in respect of, an offence.37 4. APPLYING FOR A BASEL OR SPECIAL PERMIT: PRACTICAL STEPS An Application for a Basel or Special Permit is to be made to the Federal Minister for Environment through the Hazardous Waste Section of the Chemicals and Environment Branch of Environment Australia (the Federal Government's Environment Department). Any application for a permit must contain sufficient information to convince the Minister that those factors which are to be taken into account by the Minister in making a determination are fulfilled. Preparing an application therefore requires attention to be paid to such details, as well as meeting specific criteria identified in the Act. Detailed below is a briefguide to preparing such an application: 4.1 Threshold Issues 4.1.1 Is the Waste Hazardous? In making an application for a Basel or Special Permit it is necessary at the outset to ensure that the waste for which approval is required is in fact hazardous. As indicated earlier a waste will be hazardous if it meets the criteria under the Basel Convention or it is identified as such under the Hazardous Waste Act. Where movement involves OECD countries, then a waste will be hazardous where it falls within the relevant OECD listings. 4.1.2 Can a Permit be obtained? Once identified as hazardous, it is then necessary to identify if a permit can be obtained. This will involve assessing both: (a) the countries which are to be involved in the shipment ofthe waste including both recipients and transit states; and (b) the purpose ofthe shipment (ie: final disposal or recovery/reuse). With respect to (a) above, it must be determined whether or not the countries to be involved in the proposed hazardous waste movement are ones for which a permit may in fact be obtained. As indicated earlier, the transboundary movement of hazardous waste may only take place between countries which are parties to the Basel Convention, unless, in accordance with Article 11 of the Convention, a specific agreement exists with a non-party in the form of a bilateral or multilateral agreement or arrangement. In the case of applications made in Australia, it will therefore be necessary to show that: (a) the proposed shipment involves countries which are parties to the Basel Convention (see Table 1)38; and/or 37 Hazardous Waste Act, Section 40B. 38 Movements for final disposal will only occur in exceptional circumstances. Nonetheless, where they are approved for movements between Australia and other OECD countries then the Basel Permit rules will apply (1998) 17 AMPLJ International Movement ofHazardous Waste 408 (b) The proposed movement involves countries and circumstances that fall within some other arrangement which is endorsed under Article 11 ofthe Basel Convention. As noted earlier, for Australia this would most likely be an OECD movement, where waste is destined for recovery.39 Shipments to developing countries will not be permitted. Secondly, and as indicated above, export permits for fmal disposal, (ie. incineration or landfill) irrespective of the countries involved will only be granted in exceptional circumstances. Unless such circumstances exist, consideration needs to be given as to whether or not an application will be successful. However, where waste is destined to be recovered, recycled, reused or reclaimed, then the likelihood of obtaining a permit will be far greater provided that the conditions of the Act are complied with. Again, the criteria will differ depending upon whether or not the transportation is to or from non-OECD countries and therefore falls under the Basel Convention or is covered by an Article 11 agreement. 4.2 The Type ofPermit Required Once the threshold issues have been crossed, the type of permit required must then be identified. While the basis for doing so is outlined above, there is a range or permits currently available under Australian legislation. 4.2.1 Basel Permits Where a transboundary movement of hazardous waste is to occur for fmal disposal involving any countries, or for recovery involving countries who are parties to the Basel Convention but are at the same time non-OECD countries, then a Basel Export or Import Permit will be required. Again there are several types ofpermits depending on the countries and operations involved: (a) A Basel Export Permit will be required for exports of Basel wastes to non-OECD Basel Convention parties (such as Indonesia and the Philippines). If the shipments transit any other countries, consent will be required from them before a permit can be issued. Australia defmes transit to include a ship entering a port or roadstead (anchorage) or an aircraft landing. (b) A Basel Import Permit will be required for imports of Basel wastes from non-OECD Basel Convention parties (such as Malaysia or Thailand). (c) A Basel Transit Permit will be required for shipments of Basel waste that transit Australia on their way to the country ofimport. For example ifwaste is being sent from Fiji to Singapore on a ship that enters an Australian port. In addition, transit through the Suez Canal requires the appropriate countries being notified ofthe shipment, although an actual permit is not required. because the GECD rules apply only to waste sent for recovery not final disposal. 39 The United States is not a party to the Basel Convention but is an DECD party. Shipments to the US will therefore never fall under the Basel Convention, but will rather either be in accordance with the GECD rules such as when sent to recovery or a specific bilateral Article II agreement between Australia, the US (and any transit states if applicable) iffor final disposal. 409 4.2.2 Special Permits40 International Movement ofHazardous Waste (1998) 17 AMPU Movements of hazardous waste which fall under an Article 11 arrangement will require a special permit, the most relevant for Australian purposes being movements for recovery, to or from, OECD countries. These will require an OECD Special Export or Import Permit in accordance with the Hazardous Waste (Regulation ofExports and Imports) (OEeD Decision) Article 11 Regulations 1996. Again, these rules apply only to waste destined for recovery not final disposal. Waste categorised as red or amber will require an OECD special permit to be obtained. In this respect it is important to classify the waste within the appropriate category as the approvals required will differ as follows: • Red listed waste. A special permit under the Act is required and written consent is needed from all countries ofimport or transit; • Amber listed waste. A special permit under the Act is required. However, tacit consent will be taken to have been granted by other OECD countries ifno objection is received within 30 days of notification. Furthermore, the process will be further streamlined where the facility is a preauthorised facility. • Green listed waste. Is not generally covered by the Act and therefore normal commercial controls apply. However, where a green listed waste is contaminated by amber or red listed materials then a permit will be required. Once the material has been classified into one ofthese categories then, depending on the direction ofshipment, one ofthe following permits will be required: (i) An OECD Special Export Permit required for shipments of OECD red or amber waste to OECD countries for recovery. Consent will also be required for each state of transit before a permit can be issued. (ii) An DECD Special Import Permit required for shipments of DECD red or amber waste from OECD countries for recovery in Australia. (iii) An DECD Special Transit Permit required for shipment of DECD red or amber waste that comes from an DECD country and transit Australia on their way to another DECD country of import where recovery will take place.41 4.3 Preparing an Application Once a decision has been made to apply for a particular permit then it will be necessary to obtain an application package from Environment Australia. While such forms are standard in format, as a general guide, a Permit Application will need to contain the following information. 40 These classifications are taken directly from Environment Australia's A Guide to Australia's New Laws on Importing and Exporting Hazardous Waste" (Environment Protection Group, Canberra, 1996). 41 These classifications are taken directly from Environment Australia's A Guide to Australia's New Laws on Importing and Exporting Hazardous Waste" (Environment Protection Group, Canberra, 1996). (1998) 17 AMPLJ International Movement ofHazardous Waste 410 4.3.1 Details ofthe Proposed Movement An application should detail the proposed movement clearly outlining issues such as the type of permit being applied.for (ie. export, import or transit); the hazardous waste to be exported and the nature of that waste; and full details regarding all transportation arrangements. Details of transportation arrangements will include information on all countries to be involved, the mode, method and timing ofthe movement and the proposed routes which are to be followed. It should be noted that permits granted under the Act will be valid for 1 year. In the event that the proposed shipment(s) cannot be completed in that time, then a new permit will be required as the Hazardous Waste Act makes no provision for the renewal ofexisting permits. 4.3.2 A Statement Supporting the Permit Application An application will need to contain a supporting statement which provides some form of justification for it to be approved. Obviously it will be easier for an applicant to justify a transit or import permit, as opposed to an export permit, particularly where that export permit is for final disposal. Nonetheless, in all cases it will be necessary to prove that the proposal is consistent with the environmentally sound management ofthe hazardous waste and if approved will not present any significant risk ofinjury or damage to human beings or the environment. This will involve showing one or more ofthe following: • that no other alternatives or options are available, or likely to be available in the near future, for the safe disposal ofthe hazardous wastes; • that the material is to being moved for research purposes; • that movement ofthe waste will not hinder the development of domestic treatment facilities in the country oforigin; • that, in the case of waste exporters, the applicant is committed to developing locally based solutions; and/or • that it is in the publie interest. In the case of Export Permits, the impact that such exports will have on the development of local technologies is often the more important consideration. The priority is obviously to manage waste domestically before approving movement. In making an assessment on these issues the Minister will usually refer the matter to the Technical Working Group for advice. If the issue is significant enough environmental impact assessments may be required under the Environment Protection (Impact ofProposals) Act 1974. 4.3.3 Details on Applicant It will be necessary to provide details showing that the applicant has a good environmental record; is fmancially viable; has appropriate insurance; and any other relevant matters. These may include the applicant's endeavours to explore various treatment ofoptions for the waste domestically. 411 International Movement ofHazardous Waste (1998) 17 AMPU 4.3.4 Details ofReceiving Facility It will also be necessary to demonstrate that the receiving facility is environmentally sound and has all the necessary approvals required to operate. 4.3.5 Insurance and Financial Guarantees Records will need to be evidenced to show that the applicant holds all relevant insurance relating to the movement of the waste. Furthermore, where a Special OECD Permit is being applied for, requirements also exist that in some circumstances fmancial guarantees will be provided by the exporting party. 4.3.6 Contracts While not a strict requirement of the Australian legislation, the applications for OECD Special Permits require evidence of a valid written contract, or chain of contracts, between the exporter and the consignee/recovery facility. Where import involves ED countries the supplementary EC Regulations require that the contract contains the following obligations: • that the supplier take the waste back ifthe shipment cannot be completed or ifit is conducted in violation ofthe regulations governing export; • that the consignee provides as soon as possible and not later than 180 days following the receipt ofthe waste a certificate to the notifier that the waste has been recovered in an environmentally sound manner; • the consignee provides notification that the material has been despatched. The exact details to be contained in an application will vary depending upon the nature ofthe permit sought. Where export is to an unknown facility a greater review of that facilities environmental soundness will be required. However, where shipment is between OECD Countries and for recovery the procedures tend to be more streamlined. Nonetheless, all applications should be made in accordance with the application packages provided by Environment Australia. Once a permit application is received Environment Australia will contact all relevant parties to ensure that their prior informed form consent is obtained prior to the application being granted.42 Finally, all shipments must be accompanied by a Transfrontier Tracking form which is to be returned to the relevant authority in the country oforigin on the completion ofthe movement. 42 In the case of a an OECD application to move a red listed material, formal written consent will be required from all countries involved. However where a material which is to be exported is amber listed then the Minister may deem "tacit consent" to have been granted if no objection to the shipment has been lodged by any of the concerned OECD countries within 30 days of sending out the notification. Furthermore, the Minister may also deem consent to have been granted if the recovery facility is a pre-authorised facility for that waste and an acknowledgment from the importing country has been received. (1998) 17 AMPLJ International Movement ofHazardous Waste 412 4.4 Submitting an Application Applications for Basel or Special Permits should be made at least 65 days before the proposed movement, while applications for OEeD permits should be made at least 35 days before the proposed movement. Applications are to be accompanied by the appropriate fee which as at January 1998 were as follows: Basel Export Permit Special (OECD) Export Permit Basel or Special (OECD) Import Permit Basel or Special Import Permit with waste destinedfor an approved recoveryfacility Basel or Special Transit Permit $4,440.00 (plus $110 for each transit state involved) $480.00 (plus $110 for each transit state involved) $270 $210 $110 Applications may also be made to vary a permit which would attract the relevant fee. 4.5 Other Matters It is also important to be· aware that any proposed transboundary movement ofhazardous waste will also require coordination with the relevant state environmental agencies. For example, in NSW the movement ofhazardous material will require the appropriate licensing from the State's Environment Protection Authority. In addition, the relevant domestic and international requirements with respect to packaging material will need to be complied with. 5. CONCLUSION The direction ofinternational efforts to "manage" the production and disposal of hazardous waste has clearly shifted. Despite the existence of clear rules to facilitate transboundary movements, the primary objective has increasingly been to restrict not only the movement of hazardous waste, but also to eliminate as far as possible the production of hazardous waste. It is a shift that has also clearly been borne out by recent changes to the Australian legislative framework. In particular, the caveat on limiting the export of hazardous waste for fmal disposal to exceptional circumstances, coupled with the introduction of a Technical Working Group, places far greater scrutiny on any applications submitted for the transboundary movement of hazardous waste. Not only will it now be necessary to show that proposed movements pose no harm to human health or the environment, but it will also have to be demonstrated that such movements do not in any way encourage further production or restrict the development of local treatment and disposal technologies. Nonetheless, in circumstances where there is a genuine need to export, import or transit hazardous waste, then it will be necessary to obtain the appropriate permit from the Australian authorities in the manner outlined above.