[Index] [Search] [Download] [Related Items] [Help]
HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS) (OECD DECISION) AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 73
Statutory Rules 2004 No. 73
Issued by the Authority of the Minister for the Environment and Heritage
Hazardous Waste (Regulation of Exports and Imports) Act 1989
Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Amendment Regulations 2004 (No. 1)
Section 62 of the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the Regulations is to update Australia's regulatory scheme for the control of transboundary movements of hazardous wastes, by giving effect to changes in the relevant multilateral arrangements.
Subsection 3(2) of the Act states that the Act aims to give effect to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention); and to give effect to agreements and arrangements of the kind mentioned in Article 11 of the Basel Convention.
Section 4C of the Act provides that the Minister must declare in writing that such an agreement or arrangement is an Article 11 arrangement for the purposes of the Act, and arrange for the declaration to be published in the Gazette.
Section 13C of the Act provides that regulations may give effect to an Article 11 arrangement (as declared, pursuant to section 4C of the Act). Subsection 13C(2) provides that Regulations made to give effect to an Article 11 arrangement must not be expressed to take effect before the day on which an arrangement comes into effect for Australia.
The Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (the Principal Regulations), among other things, implement the OECD's control system (set out in OECD Decision C(92)39/FINAL) for transfrontier movements between OECD countries of hazardous wastes destined for recovery operations. The OECD Decision operates on a system of prior notification by the country of export to the country of import, and written or tacit consent from the latter. Imports and exports of hazardous wastes under the Principal Regulations require permit approval, with applicants required to meet specified requirements relating to, for example, insurance and contractual arrangements.
In April 2000, Australia entered into multilateral negotiations to amend OECD Council Decision C(92)39/FINAL concerning the control of transfrontier movements of wastes destined for recovery operations. The Government's objectives in participating in the negotiations were to secure a control system for transboundary movements of wastes, destined for recovery within the OECD, that is consistent with the global system established in the Basel Convention, provides certainty and simplicity to industry and minimises administrative costs to the Commonwealth. Leading up to OECD Council Decision C(2001)107/FINAL, Australia argued in favour of the OECD adopting Annexes VIII and IX of the Basel Convention in place of the existing red, amber and green lists. Australia's preferred option was not agreed to but our fall-back position was adopted. This was partial adoption of Annexes VIII and IX, which retains some of the disadvantages of the status quo, but provided a means of securing a consensus decision.
The Regulations give effect to OECD Council Decision C(2001)107/FINAL, which was adopted by OECD Council on 14 June 2001 and came into effect for Australia on the same day. It was declared to be an Article 11 arrangement for the purposes of the Act on 19 December 2003. Section 13D of the Act prescribes the contents of a set of Article 11 Regulations. The Decision improves the existing control system for movements of hazardous wastes from one OECD country for recycling operations in another OECD country. The Decision harmonises the OECD lists of wastes with Annexes VIII and IX to the Basel Convention and amendments to Annexes VIII and IX will be automatically incorporated into the Decision from time to time.
Decision C(2001)107/FINAL continues an arrangement made under Article 11.2 of the Basel Convention, which exempts pre-existing control systems from the provisions of the Convention provided they are compatible with the Convention.
The Regulations were developed in consultation with the Hazardous Waste Act Policy Reference Group, on which various industry and community groups, and relevant Commonwealth, State and Territory Departments are represented.
The Act specifies no conditions that had to be met before the power to make the Regulations was exercised.
Details of the Regulations are attached. A Regulation Impact Statement is at Attachment A. A copy of the Declaration pursuant to section 4C of the Act is at Attachment B.
The Regulations commenced on the date of their notification in the Gazette.
ATTACHMENT
Details of the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Amendment Regulations 2004 (No. 1)
Regulation 1 provides that the Regulations are the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Amendment Regulations 2004 (No. 1).
Regulation 2 provides that the Regulations commenced on the date of their notification in the Gazette.
Regulation 3 provides for the Schedule to the amending Regulations to amend the principal regulations, the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996.
Unless otherwise indicated, the amendments would revise references and terminology to align the Principal Regulations with OECD Decision C(2001)107/FINAL, to be inserted as Schedule 1, under Schedule 1 and 2, below:
Subregulation 4(1) includes a number of amendments:
Item 1 substitutes the existing definition of "amber control procedure".
Item 2 omits the definition of an approved recovery facility.
Item 3 substitutes the existing definition of "EPIP Act" with a definition of "EPBC Act", to reflect recent legislative amendments.
Item 4 inserts definitions of "green control procedure" and "hazardous wastes".
Item 5 substitutes the existing definitions of "OECD Decision" and "pre-consented recovery facility".
Item 6 substitutes the existing definition of "recovery operation".
Item 7 omits the definition of "red list hazardous waste".
Item 8 inserts a definition of "transboundary movement".
Item 9 inserts a definition of "wastes".
Regulation 6 substitutes a new regulation, which prescribes control procedures of wastes that require transboundary movement.
Regulation 7 substitutes a new regulation, which prescribes procedures for other wastes including wastes not listed in Appendix 3 or Appendix 4 of the OECD Decision.
Regulation 8 substitutes a new regulation, which prescribes procedures for mixtures of wastes.
Regulation 8A substitutes a new regulation, which prescribes procedures for transboundary movement of wastes for laboratory analysis.
Subregulation 9(1) substitutes a new regulation, which defines wastes for which a person may apply for a special export permit.
Subregulation 15(1) omit "If, within the period mentioned in subregulation 14(1)", (which is within 40 days of receiving an application), and inserts "If, within 35 days of receiving an application", in subregulation 15(1). Under the previous subregulation 15(1), if the final consent was received on the 40th day, the Minister must grant or refuse the permit on the same day. Under the amendments, if the final consent is received on or after the 35th day, the Minister must grant or refuse the permit within 5 working days.
Subregulation 15(1)(b) omits the word "special" because it is superfluous and is not used in other relevant subregulations.
Subregulation 16(1)(e) substitutes a new paragraph which references the clause in Chapter II of Section D(1)(a) of OECD Decision C(2001)107/FINAL which refers to contracts.
Subregulation 16(5) and 16(b) substitutes existing regulations with new subregulations which prescribes the circumstances under which consent is taken to have been given by an importing country.
Subregulation 17(2) substitutes a new subregulation which prescribes the period for which special export permits have effect, that is not longer than three years for a pre-consented recovery facility, or not longer than one year in any other case.
Subregulation 21(5) substitutes a new subregulation which prescribes the procedures that apply to the granting of a special import permit and delete the existing reference to "hazardous waste other than amber list hazardous waste".
Subregulation 22(1)(a) substitutes a new paragraph which references the terms "waste subject to the amber control procedure" and "pre-consented recovery facility".
Subregulation 23(3)(d) substitutes a new paragraph which references the clause in Chapter II of Section D(1)(a) of OECD Decision C(2001)107/FINAL which refers to contracts.
Subregulation 24(2) substitutes a new subregulation which prescribes the period for which special import permits may have effect, that is not longer than three years for a pre-consented recovery facility, or not longer than one year in any other case.
Subregulation 28(5) substitutes a new subregulation which prescribes the procedures that apply to the granting of a special transit permit and delete the existing reference to "hazardous waste other than amber list hazardous waste".
Subregulation 30(2) substitutes a new subregulation which prescribes the period for which special transit permits may have effect, that is not longer than three years for a pre-consented recovery facility, or not longer than one year in any other case.
Regulation 42 substitutes a new regulation which references the terms "waste subject to the amber control procedure" and "pre-consented recovery facility", and provide that the Minister may give a pre-consent for a specified period of time and revoke a pre-consent at any time.
Subregulations 43(a), 43(b), and 43(c) substitutes new paragraphs which omit references to red list hazardous waste and inserts references to revoking a pre-consent.
Schedules 1 and 2 substitutes existing Schedules 1 and 2 to the Principal Regulations with a new Schedule 1 which provides the full text of the revision of the decision of the Council C(92)39/FINAL on the control of transboundary movements of wastes destined for recovery operations.
Subregulations 15(5A), 15(5A) note, 21(3), 21(3) note, 22(2) and (3), 22(3) note, 28(3), 28(3) note, 40(4A), and 40(4A) note are amended by omitting each mention of the EPIP Act (the Environment Protection (Impact of Proposals) Act 1974) and inserting EPBC Act (the Environment Protection and Biodiversity Conservation Act 1999).
ATTACHMENT A
REGULATION IMPACT STATEMENT
PROBLEM
1. In April 2000, Australia entered into multilateral negotiations to amend OECD Council Decision C(92)39/FINAL concerning the control of transfrontier movements of wastes destined for recovery operations. Prior to pursuing the negotiations, a Regulation Impact Statement (RIS) was prepared in accordance with the Government's requirements. A copy is at Annex 1.
OBJECTIVES
2. The Government's objectives in participating in the negotiations were to secure a control system for transboundary movements of wastes, destined for recovery within the OECD, that is consistent with the global system established in the Basel Convention, provides certainty and simplicity to industry and minimises administrative costs to the Commonwealth.
OPTIONS
3. The two options canvassed in the negotiations were full adoption of Annexes VIII and IX of the Basel Convention as they stood, or partial adoption of the Annexes.
IMPACT ANALYSIS
4. A detailed impact analysis of the options was undertaken (see Annex 1).
5. Australia argued in favour of the OECD adopting Annexes VIII and IX of the Convention in place of the existing red, amber and green lists. This option would provide certainty and simplicity to industry and minimise administrative costs to the Commonwealth. There would also be some benefits to importers of aluminium ashes and residues from OECD countries, who would no longer require a permit for such imports.
6. Negotiations were concluded at the 51st meeting of the Working Group on Waste Management Policy (WGWMP), in October 2000, which agreed and adopted amendments to Council Act C(92)39/FINAL. Australia's recommended option, that the OECD adopt Annexes VIII and IX of the Basel Convention as they stood, was not agreed but our fall-back position was adopted. This was partial adoption of Annexes VIII and IX, which retains some of the disadvantages of the status quo, but provided a means of securing a consensus decision. The main consequence of this in practice is that movements of electronic scrap destined for recovery operations will continue to be subject to Green tier controls within the OECD.
7. The amended Decision was adopted by OECD Council on 14 June 2001 as Decision C(2001)107, but without a technical appendix that included the forms for the notification of movement documents. The technical appendix was subsequently adopted by Council on 28 February 2002 and the full Decision was finally adopted by Council 21 May 2002, as OECD Council Decision C(2001)107/FINAL. It was on that date that a full legal text of the Decision became available and a copy is at Annex 2.
8. Implementing the requirements of OECD Council Decision C(2001)107/FINAL in amended regulations requires a number of consequent changes to the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996. Table 1 describes each amendment.
Table 1. Explanatory Table - Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Amendment Regulations.
Existing
Regulation
|
Change
and description
|
Rationale
for change
|
---|---|---|
4(1)
|
Substitutes
amber control procedure in place of amber list waste
|
The
new Decision contains a list of wastes subject to the amber control procedure,
not an amber list of waste
|
4(1)
|
Omits
the definition of an approved recovery facility in Australia
|
To
replace approved with pre-consented
|
4(1)
|
Omits
the definition of an approved recovery facility outside Australia
|
To
replace approved with pre-consented
|
4(1)
|
Substitutes
the Environment Protection and Biodiversity Conservation Act 1999
|
Replaces
the reference to the old Environment Protection (Impact of Proposals) Act 1974
|
4(1)
|
Inserts
definitions of green control procedure and hazardous wastes
|
The
new Decision contains a list of wastes subject to the green control procedure,
not a green list of waste. The definition of hazardous waste is new because we
no longer cite the OECD Decision of 1988.
|
4(1)
|
Substitutes
definitions of the OECD Decision and a pre-consented recovery facilities
|
Updates
the definition of the OECD Decision and replaces approved with pre-consented
|
4(1)
|
Substitutes
definition of recovery operation
|
The
definition of a recovery operation is new because we no longer cite the OECD
Decision of 1988.
|
4(1)
|
Omits
definition of red list hazardous waste
|
A
separate red list has been deleted and all wastes are now subject to either
amber or green control procedures
|
4(1)
|
Inserts
definition of transboundary movement
|
Definition
not included in old regulations
|
4(1)
|
Inserts
definition of wastes
|
The
definition of wastes is new because we no longer cite the OECD Decision of 1988.
|
6
|
Substitutes
control procedures to allow transboundary movement
|
The
new Decision contains a list of wastes subject to the amber control procedure,
not an amber list of waste
|
7
|
Wastes
not listed in the OECD Decision and having a hazardous characteristic are
subject to the amber control procedure
|
Unlisted
wastes were subject to red tier controls in the old Decision
|
8
|
Substitutes
mixtures of wastes
|
The
new Decision clarifies the status of mixtures of wastes subject to the amber
and green control procedures. More than a trivial amount of amber means amber
control procedure.
|
8A
|
Exempts
transboundary movement of wastes for laboratory analysis provided the Minister
confirms exemption within 30 days
|
Countries
may exempt up to 25 kilograms of waste for laboratory analysis to assess
physical or chemical characteristics, or to determine suitability for recovery
operations
|
9(1)
|
Substitutes
amber control procedure in place of amber list waste
|
The
new Decision contains a list of wastes subject to the amber control procedure,
not an amber list of waste
|
15(1)
|
Automatic
extension begins after 35 days, not 40
|
At
present the Minister may have to make a decision within hours if a consent is
received on the 40th day
|
15(1)(b)
|
Omits
the word 'special'
|
Inclusion
of the word 'special' is superfluous
|
16(1)(e)
|
Substitutes
the requirements of OECD Decision C(2001)107/FINAL
|
References
the new Decision in place of the old one
|
16(5)
|
Omits
'amber list hazardous waste' by inserting 'waste subject to the amber control
procedure'
|
The
new Decision contains a list of wastes subject to the amber control procedure,
not an amber list of waste
|
16(5)(b)
|
Omits
'an approved recovery facility' by inserting 'a pre-consented recovery facility'
|
To
replace approved with pre-consented
|
17(2)
|
Substitutes
the commencement and duration of special export permits for one and three years
|
Permits
to pre-consented facilities may be granted for up to three years. All others
for up to one year.
|
21(5)
|
Substitutes
amber control procedure in place of amber list waste
|
The
new Decision contains a list of wastes subject to the amber control procedure,
not an amber list of waste
|
22(1)(a)
|
Substitutes
amber control procedure in place of amber list waste
|
The
new Decision contains a list of wastes subject to the amber control procedure,
not an amber list of waste
|
22(1)(a)
|
Omits
'an approved recovery facility' by inserting 'a pre-consented recovery facility'
|
To
replace approved with pre-consented
|
23(3)(d)
|
Substitutes
the requirements of OECD Decision C(2001)107/FINAL
|
References
the new Decision in place of the old one
|
24(2)
|
Substitutes
the commencement and duration of special import permits for one and three years
|
Permits
to pre-consented facilities may be granted for up to three years. All others
for up to one year.
|
28(5)
|
Substitutes
by removing reference to 'hazardous waste other than amber list hazardous waste'
|
Removes
a reference to red list waste
|
30(2)
|
Substitutes
the commencement and duration of special transit permits for one and three years
|
Permits
to pre-consented facilities may be granted for up to three years. All others
for up to one year.
|
42
|
Omits
'an approved recovery facility' by inserting 'a pre-consented recovery facility'
|
To
replace approved with pre-consented, introduce a specified period of time and
provide for revocation
|
43(a),
(b) & (c)
|
Substitutes
provisions for review of decisions to include pre-consented recovery facility
and 3 year permits
|
To
replace approved with pre-consented
|
15(5A),
21(3), 22(2) and (3), 28(3), and 40(4A)
|
Omits
each mention of EPIP Act by inserting EPBC Act
|
Replaces
references to the old Environment Protection (Impact of Proposals) Act 1974
|
Schedules
1 and 2
|
Substitutes
C(2001)107/FINAL
|
Replaces
C(92)39/FINAL
|
CONSULTATION
9. The Commonwealth undertakes consultation with Australian industry, environment groups and State and Territory governments through the Hazardous Waste Act Policy Reference Group, which is convened once or twice each year by the Department of the Environment and Heritage ("DEH").
10. After the OECD meeting in April 2000, stakeholders' views were sought on the draft revision of C(92)39/FINAL at the 27th meeting of the PRG, on Thursday 22 June 2000. Stakeholders made no comment apart from noting the new waste lists in Appendix 3 and Appendix 4 of the draft amended decision.
11. After the WGWMP adopted the text of the new Council Decision in October 2000, stakeholders' views were sought at the 29th meeting of the PRG, on Thursday 23 November 2000. The minutes record that:
"Paragraph 3 of the agenda paper summarised the instructions agreed by the OECD Environment Policy Committee (EPOC) for amendment of Decision C(92)39/FINAL. On page 4, the Preamble records the desire of Member countries to continue C(92)39/FINAL as an arrangement under Article 11.2 of the Basel Convention. Page 7 contains the new definition of wastes, which for the first time separates wastes destined for (final) disposal from those destined for recovery.
"A number of amendments were agreed to the Amber tier control procedures. For example, up to 25 kg of material explicitly destined for laboratory analysis to assess its physical or chemical characteristics or to determine its suitability for recovery operations may be exempted from controls. Members of the Group noted the importance of having an effective procedure in place for testing materials and the need for arrangements to facilitate the testing. Many samples of varying sizes and weights were sent overseas for testing by Australian industry and in some instances, considerable problems had been encountered, particularly to the United States. Group members requested an additional two weeks to make comments on this issue.
"Under a draft of the amended Decision, competent authorities who issued written consents would have had to do so within thirty days. This would have been difficult for Australia because we usually have to wait more than thirty days for consent from countries of import or transit. We resolved this by inserting the words 'do not object', so that issuing an objection can effectively stop the clock until the necessary consents are received. Written consent will continue to remain valid for up to one year from the date of issuance, but shipments to pre-consented recovery facilities may be granted consent for up to three years.
"A significant amendment was made to the OECD Amber List when aluminium ashes and residues were deleted from it. This will have a significant impact for Australia when it comes into force because imports and exports of aluminium dross and residues will no longer require a permit when shipped within the OECD. This change will align the OECD controls with the Basel Convention. The amended Amber List also contains an Australian footnote that clarifies the hazard status of spent potlinings from aluminium smelting.
"The amended Council Decision is expected to be adopted by the OECD Council early in 2001 and to be implemented by amendments to the Australian OECD Regulations soon afterwards."
12. At the 31st meeting of the PRG, on Friday 9 November 2001, the minutes record that: "A new OECD Council Decision had been adopted on 14 June 2001 and Environment Australia was working on new Regulations to implement it."
13. At the 32nd meeting of the PRG, on Thursday 21 February 2002, the minutes record that "Environment Australia was resolving a number of issues with the Office of Legal Drafting."
14. At the 33rd meeting of the PRG, on Friday 25 October 2002, Members were advised that DEH was still working on amendments to the Australian OECD Decision Regulations.
15. Throughout this consultation process, stakeholders did not raise any substantive concerns.
16. In August 2003, DEH consulted directly with stakeholders including current applicants for permits and permit holders. The following comments were received:
§ New South Wales Environment Protection Authority. "The EPA confirms its support for the proposed implementation of the requirements of the OECD Council Decision C(2001)107/FINAL and endorses the RIS of the amendment regulations to enact the decision. The EPA would also encourage EA to specifically seek feedback from the aluminium and electronic industry sectors during the Hazardous Waste Act Policy Reference Group meeting on 19 September 2003".
§ Weston Aluminium Pty Limited. "We understand that many countries, such as New Zealand, have removed control and the need for licences for movement of Waste between OECD countries (from OECD to OECD). Why has this not occurred as yet in Australia? We have been promised it and yet we have been waiting for more than a year with no action. If this is done, then there would be no need for a permit for waste from NZ or any OECD counties to Australia. (Currently, you do not need a permit from Developing countries to OECD). That only leaves the need from OECD to Developing countries, which is understandable because that is what the Basel Convention intended - To protect developing countries from waste being "dumped" on them as exports by developing countries."
"We look forward to hearing the results of feedback about this proposal and hope that the need for special import permits for imports from OECD countries into Australia, NZ in particular, may in fact be removed."
17. At the 34th meeting of the PRG, on Friday 19 September 2003, the minutes record that: "Peter Netchaef asked whether there were any moves to amend the Customs Codes relevant to the OECD Decision Regulations. Mark Hyman replied that there were not: amendments to the Customs Codes had been proposed through the Basel Secretariat but this process took several years. At the request of several members, the Secretariat agreed to provide an additional opportunity to comment on the Statement."
18. After the 34th meeting of the PRG the following comment was received:
Mr David Sinclair. "I have some reservations about the regulation impact statement. My views are as follows: The statement provides an accurate description of the process including Australia's position and why it was necessary to adopt the fall back position to achieve consensus. It also provides a good description of the consultation process with the PRG, some of the states and individual industries. I do not think the paper provides enough detail on the impacts. I would have liked to have seen a table giving detail of the areas where the proposed regulation differed from the existing regulation and an assessment of the impact (positive and negative) of those differences. This would inform the view of key stakeholders on what changes are proposed and the impact on their business activities. An example which is in the text is the exemption which applies to laboratory samples, which from my perspective is a positive impact. Harmonising with Basel may be a positive or negative impact depending on your view on Basel and on the avoidance of duplication. I am sure that there are other examples where the impacts should be assessed."
19. At the 35th meeting of the PRG, on Friday 13 February 2003, the explanatory table requested by Mr Sinclair, was given to the Group and the draft minutes record that "Mr Sinclair noted that the table goes a fair way to what was asked for and assesses impacts". No other comments were received. (The table has been reproduced under the heading Impact Analysis.)
CONCLUSION
20. Implementing the requirements of OECD Council Decision C(2001)107/FINAL in amended regulations would ensure that Australia meets its international obligations. It would improve the harmonisation between the OECD and Basel lists of wastes and introduce potentially useful options such as the power to exempt small transboundary boundary movements of wastes from the Amber control procedure if they are explicitly destined for laboratory analysis, and to grant permits for up to three years for waste movements that are destined for pre-consented recovery facilities.
IMPLEMENTATION
21. OECD Council Decision C(2001)107/FINAL will be adopted by an amendment to the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations. DEH and the Department of Foreign Affairs and Trade will monitor the impact of the amendments to the OECD Decision and the Act on an ongoing basis. In addition, DEH has in place consultative arrangements to obtain regular feedback from industry and environment group stakeholders on the effectiveness of the Convention, the OECD Decision and the Act.
REVIEW
22. Section 61 of the Act requires the Minister to, as soon as practicable after the end of each financial year, prepare a report on the operation of the Act during that year; and cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after completion of the report. Consequently, the operation of the OECD Decision Regulations would form part of the annual report to the Commonwealth Parliament.