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July 1998
[There is also available a footnoted version of this paper in text format.]
ACKNOWLEDGEMENT
I would like to dedicate this paper to the memory of Professor Brian Peckham who was a tremendous inspiration and influence to me and who was most helpful in assisting me to complete this paper.
CONTENTS
1. INTRODUCTION
A recent environmental issue which has caused a great deal of concern in the "New South Africa" has been the management of hazardous waste. Evidence of the harmful effects of hazardous waste can most clearly be seen in the Thor Chemical case of 1994, analyzed in detail below. Not only does South Africa suffer from the lack of management strategies, but it also lacks the capacity to monitor and enforce the regulations that are in place.
Another conundrum faced by South Africa is that the new constitution divides responsibilities of environmental management between the National government, provincial, and local governments which can lead to both overlap and confusion. Even within the national government itself there tends to be a lack of co-ordination between various departments, as will be illustrated by the Thor Chemical case.
In this paper I will explore the measures that are currently in place in the realm of hazardous waste management. I will focus on the Basel Convention on Trans-boundary Movements of Hazardous Waste and its subsequent amendments. Basel is of particular importance to South Africa as South Africa has in the past become a dumping ground for waste, particularly from northern developed countries. I will also discuss the Thor Chemical debacle as a case study for compliance with the provisions of Basel. Finally, I will examine the role of government in ensuring compliance with the Basel Convention.
2. BACKGROUND
The international hazardous waste trade gained much prominence during the 1970's when developed countries increasingly exported the waste to developing nations in the Southern Hemisphere for disposal. The environmental lobby gained a great deal of power and influence in countries such as the United States and the nations of the European Union. As a result, legislators and officials in these countries realized that due to public pressure, they could no longer allow hazardous waste disposal practices which posed threats to both the environment and human health. In the U.S., Congress enacted legislation that imposes stringent controls on the storage, treatment, and disposal of hazardous waste.* While most companies in the U.S. accepted and complied with the new regulatory regime and continued to dispose of hazardous waste domestically, not withstanding incurred costs, the option of exporting the waste to unsuspecting developing nations became a much more attractive and less expensive option for some multi-national corporations. This form of "environmental racism" became directed primarily to the countries of the Southern hemisphere, particularly those in Africa.
Many of these African states saw importing hazardous waste as an attractive means of earning foreign exchange in order to assist in reducing the tremendous debt burden facing many of these countries. Some corporations from the north, mainly the nations of the Organization for Economic Co-operation and Development, OECD, have found it more expedient to pay large sums to less developed countries, LDC’s, to accept waste rather than incur increased costs for domestic disposal or face the wrath of educated and well financed environmental lobby groups at home. Because environmental standards and regulations are typically weak or non-existent in LDC’s, developed countries, DC’s, have found willing recipients for their waste. This interest by LDC’s can best be understood by the fact that in the late 1980s, the average disposal costs for one ton of hazardous waste in Africa ranged between $2.50-$50.00 American, as opposed to $100.00-$2000 US in industrialized countries. Also, in most developing countries, jobs are scarce and the waste disposal and recovery industries provided much needed employment to those who desperately need it. In many of these countries, the environmental debate tends to focus on jobs versus the environment, and more often than not, jobs take precedence. There also has traditionally been a lack of environmental education and awareness in LDC’s, so the dangers of importing hazardous waste were not always apparent.
Two other factors are also worthy of note. First there is a distinction between exporting or importing waste for final disposal, as opposed to recovery or recycling purposes; however, there is a risk that "sham" recycling can be used as a cover for what is in effect exportation for final disposal. Second, smaller LDC’s may lack – and not be able to afford -- the facilities or technology for hazardous waste disposal; legitimate arguments can thus be made for allowing these countries to export hazardous wastes to countries with adequate facilities. However strong regulations are needed wherever either recovery or recycling, or export from small countries who lack proper facilities, is involved.
3. INTERNATIONAL EFFORTS TO CONTROL HAZARDOUS WASTE MANAGEMENT
The environment first gained institutionalized international recognition with the formation of the United Nations Environment Program, UNEP, in Stockholm in 1972. With the adaptation of the Stockholm Principles in that same year, the foundations for international environmental management were set out. Of particular importance was Principle 21, which states that under the guarantee of national sovereignty and territorial integrity, countries have a right to develop and control their own resources and environment. However it also states that a country does not have the right to conduct actions which may negatively affect the environment of another. Thus transboundary pollution may constitute a violation of international law.
As a follow-up to the Stockholm Conference, the United Nations Conference on the Environment and Development (UNCED, or the Earth Summit), was held in Rio in 1992. This conference included the adoption of Agenda 21, which is a list of goals and principles in the realm of sustainable development and international environmental management. Section 20 of Agenda 21 deals with the international management of hazardous waste. Some of the goals include: the prevention and minimization of hazardous wastes; strengthening hazardous wastes management and institutions; the improved co-operation on the transboundary movements of hazardous wastes, and the prevention of illegal international traffic in hazardous wastes. This is to include improvement in the capacity to monitor the transboundary movements of hazardous wastes and the establishment of national and regional tracking systems for the movements of hazardous wastes.
By the late 1980s, due to pressure from LDC’s, the international community developed an international convention to tackle the problem of the transboundary movement of hazardous waste. This agreement became known as the Basel Convention, and it was negotiated under the auspices of UNEP. The Basel Convention came into force in 1992, and so far over ninety states have ratified it, including South Africa in 1994. Unfortunately the original Convention did not place a ban on the transboundary movements of hazardous waste, but merely sought to control the practice. Due to continued pressure from LDC’s, the Basel Convention was amended in 1995 to include a total ban on exports of hazardous waste from OECD nations to non members - clearly a victory for LDC’s.
4. THE BASEL CONVENTION
The Basel Convention covers the transport of wastes both for recycling and for final disposal. It defines hazardous wastes as "substances or objects which disposed of, or are intended to be disposed of, or are required to be disposed of by the provisions of national law." Article II defines disposal as "any operation specified in annex IV of the Basel Convention." Annex IV separates waste destined for final disposal from recyclable wastes. Section (A) of annex IV deals with final disposal, whereas section (B) speaks to recovery and re-use. Wastes are considered to be hazardous under the Basel Convention if "they belong to any category contained in annex I, . . . but they must possess characteristics contained in annex III." Wastes are also defined in annex II. The convention also takes into account domestic legislation when defining hazardous waste. Annex I is divided up into two categories. The first encompasses hospital and pharmaceutical wastes. Section II of annex I handles lead, mercury, and asbestos. It classifies wastes according to its constituents. These wastes are considered to be hazardous if they possess any of the properties of annex III. Annex III lays out the elements that constitute hazardous waste. It includes explosives, flammable liquids and solids, as well as substances which are likely to spontaneously combust. It also mentions toxins. Household wastes are listed in annex II. To assist in clearing up confusion regarding the definitions, three lists of wastes for Basel have been created. List (A) wastes are automatically considered to be hazardous under Basel. Wastes under list (B) are not considered to be hazardous under Basel unless they possess elements of annex II wastes dangerous enough to have characteristics of annex III. List (C) wastes are still not fully defined. As of February 1998 both list (A) and (B) have been officially incorporated as two new annexes of the Convention.
5. RESPONSIBILITY OF STATES UNDER THE BASEL CONVENTION
A. Provisions of the Convention
The Basel Convention incorporates some fundamental principles of environmental management. Firstly, parties of the Convention are required to take steps to minimize the level of hazardous waste from its source of generation. Parties must make use of the best available technology and the best environmental practices, while taking into account economic factors and the country's level of development. Signatories to the convention are also encouraged to develop new and more affordable "environmentally sound low waste technologies." The Basel Convention links all of these issues to the formation of effective management and control of waste at the domestic level. The transfer of appropriate technology from DC’s to LDC’s in the realm of waste management is also promoted. This is a most crucial issue as developed countries must be obligated to assist developing countries in treating any wastes which are being dumped on them. This also forces DC’s to act in a more responsible manner toward the nations of the south.
The Basel Convention also stresses "the proximity principle", which requires each signatory to "ensure that that they have adequate disposal facilities for the environmentally sound management of hazardous waste, . . . to be located to the extent possible, within the state of generation." Parties are also obligated to have their waste managed by competent persons and that they "take all necessary steps to prevent pollution from hazardous waste". They must also make all reasonable efforts to minimize consequences to human health and the environment in the event of pollution as a result of the generation or disposal of the waste.
In terms of the transboundary movement of hazardous waste under Basel, signatories are required to prohibit the import or export of hazardous waste to or from non-parties, unless the material in question is needed for recycling in the state of import, or when the exporting state lacks the technology to dispose of the waste in an environmentally sound manner. Any party can place an out right ban on the export or import of hazardous wastes if it chooses to do so. An exporting state is also obliged under the Convention not to export, if it believes that the waste will not be handled in an environmentally sound manner in the recipient state. Similarly, an importing state is obliged not to accept waste if it feels that the waste will not be properly managed. Basel places the onus on the exporting state to ensure that the importing state possesses the capacity to manage the waste in accordance with the principles of the best environmental practices and the best available technology. To this extent, Basel evens the playing field by ensuring that the same rules apply for transport of wastes as for domestic disposal.
Basel further extends the principle of exporter liability by compelling the exporting state to re-import the waste if the importing state can not dispose of it in a manner consistent with the principles laid out in the Convention. In defining this obligation Basel states, "except where the lack of proper facilities is notorious the term "reason to believe" must be based on relevant information received from the importing state." States of import and transit are to require that the exporter must ensure that any transboundary movement of hazardous waste is transported in a safe manner. The issues of strict liability and compensation are still to be determined, but it has been suggested that the permanent Court of International Justice could play a role in addressing these issues; alternatively, a Basel tribunal should be formed.
Unfortunately, the Basel Convention gives a rather broad definition of the phrase "environmentally sound management of hazardous waste" as, "taking all practical steps to ensure that hazardous wastes are managed in a manner which will protect human health and the environment against the adverse affects which may result from such wastes." The Basel Bi-national Commission responsible for overseeing the Convention should endeavor to adopt a more encompassing definition to make the Convention stronger and more enforceable. A vague definition such as this, may provide "environmentally racist" states with a loophole to get around some of its obligations under the convention.
Basel seeks to control the transboundary movement of hazardous waste through the method of "prior informed consent", PIC. This means that the exporting party must obtain the prior informed written consent of the importing state, as well as the consent of each state of transit, prior to shipment. A contract between the exporting company and the disposer also must be produced which specifies the form of environmentally sound management which will be given to the waste in question. Full disclosure must also be given to any and all parties concerned as to the possible effects on human health and the environment as a result of the shipment of the waste. The movement of unauthorized wastes is considered to be illegal and is subject to criminal prosecution by any state of import, export, or transit, which are parties to the Basel Convention.
Due to continued pressure by LDC’s, the Conference of the Parties adopted a total ban on the export of hazardous waste from OECD to non-OECD countries in March 1994. Then one year later an amendment to incorporate the ban was passed and article (4A) was inserted into the text of the Convention. It also created annex 7 which consists of the members of the OECD, the EU and Lichtenstein, which must cease exporting hazardous waste to all countries not listed on the Annex, namely LDC’s. Since then, there has been tremendous jockeying by countries such as Israel, which are not currently listed in annex 7, to be included in the Annex so as to be permitted to accept hazardous waste from these countries. The entire ban, which includes both wastes for final disposal and recycling, was to have taken effect on December 31, 1997. To date only the countries of the EU, Uruguay and Norway have ratified the ban amendment, however, and 62 states must ratify it before it can take effect.
It is definitely in South Africa’s interest to ratify the ban amendment as it seeks to prevent developing nations from becoming the waste dump of the north. South Africa must also enact domestic legislation in order to comply with the international agreements that it has signed. There are some fears that, even when it becomes effective, the ban can be circumvented by agreements under Article 11 of the Convention, which allow for parties to enter into arrangements outside of the Convention - providing that the agreements are in keeping with the Convention. This gross abuse of the international waste management system must not be permitted in South Africa. Although the profits involved may be tempting, this policy will have long term negative consequences of the health and welfare of both its citizens and the environment. In fact, a legal opinion obtained by the EU found that it will not be permissible for countries listed in Annex 7 to continue the trade in hazardous waste with parties not listed under an Article 11 agreement. In keeping with the concept of sustainable development, South Africans must ensure the environment is not sacrificed for a "quick buck", as there is a clear duty to preserve and protect the environment for future generations.
B. A South African Case Study-Thor Chemicals
The importance of enforcing and monitoring the provisions of the Basel Convention is illustrated by the case of Thor Chemicals. Thor provides evidence that a better and more co-ordinated approach by the various government departments is also necessary for effective environmental management.
Thor Chemicals SA (Pty) Ltd is a multi-national firm operating a mercury recovery site at Kato Ridge in Kwa-Zulu-Natal. Thor accepts wastes from domestic companies, and from firms abroad. Thor entered into an agreement with AECI Chlor Alkali and Plastics (now Polifin) to provide a mercury-containing catalyst used in the production of a plastic raw material. Additionally, Thor agreed to recover the mercury catalyst spent during plastic production. At the same time, Thor also agreed to import mercury-containing waste from Europe and the United States. This type of operation required state of the art incineration technology.
As Thor continued to recycle waste from mercury catalysts, it became apparent that the Kato Ridge facility was not handling the volumes of mercury being recovered in an environmentally sound manner. Consequently, the river and soil at the facility measured high levels of mercury content from the late 1980's to the early 1990's. This environmental "death trap" was by and large ignored by officials and government departments responsible for enforcing environmental regulations. Following the death of two workers, in February 1994, due to mercury poisoning and documented contamination of the soil and waters of the Umgeni river downstream from Kato Ridge, the operations at the plant were temporarily halted and a Commission of Inquiry was formed under the Department of Environmental Affairs and Tourism.
It was concluded that through various commissions and omissions by several government departments between the years of 1980-1995, Thor was given virtual carte blanche to operate a mercury plant without adhering to many domestic and international requirements or principles. In other words, government either lacked the capacity to regulate Thor, or simply viewed the case as unimportant. The Department of Environmental Affairs and Tourism freely admitted that poor communication and a lack of co-ordination between the relevant departments exacerbated the disaster involving Thor. Although "a policy exists which makes provision for inter-departmental co-ordination" under the Hazardous Substances Act, the Thor Chemicals Commission of Inquiry notes that "submissions from the different departments to the Commission gave the clear impression that this co-ordination was not well structured prior to 1990."
Among the departments involved were the Department of Water Affairs and Forestry, the Department of Health, the Department of Labor, the Department of Trade and Industry, and the Department of Foreign Affairs as well as the Department of Environmental Affairs. Thor was found to be in breech of several laws pertaining to all of those departments. According to the Chemical Worker’s Union, which testified at the Commission, Thor was in violation of the following statutes: The Hazardous Substances Act, The Atmospheric Pollution Prevention Act, The Environmental Conservation Act, 1979, The Water Act of 1956, The Health Act, and The Occupational Health and Safety Act. At no point did the departments responsible for these acts attempt to enforce the statutes. In fact, until the deaths of Thor employees, permission was granted for continuation of mercury-recovering activities.
The spent mercury waste imported by Thor is classified as a hazardous waste material under Basel, and as such is subject to the restrictions set forth by that Convention. Clearly government officials "dropped the ball" on this case by allowing Thor to degrade the environment for fifteen years. Thus it was crucial to hold a public forum with participation from all aspects of civil society, including NGOs and those who were affected by the operation of this plant. The Commission of Inquiry was attended by officials from all of these various departments, as well as the Environmental Justice Networking Forum, EJNF, the Council for Scientific and Industrial Research, CSIR, and other NGOs. It concluded that, for the time being, the best practical environmental option is to permit Thor to incinerate the waste in order to recover the mercury, while making certain modifications and following certain guidelines.
The landfill option was flatly rejected due to the absence of a proper landfill in the Kato Ridge area and the risk of transporting the waste. EJNF suggested that the imported waste be re-exported to its state of origin, which Basel permits as part of the "polluter pays" model. This option was also rejected because the Commission felt that transporting the waste would in itself be a hazard. They also pointed out that since some of the waste is generated domestically, shipment of the imported waste back to its origin would still not alleviate the problem. It was also decided that the use of new alternative technologies would be too costly, especially since most of these methods of recovery are unproven. The Commission did find, also in accordance with the polluter pays model, that Thor is responsible for soil remediation and any other clean-up costs incurred. However it was also determined that the government bears some responsibility for the current situation and as a result would contract independent assessments of the Kato Ridge site.
Based on the findings of the Thor Commission, it is most obvious that an integrated waste management strategy on behalf of the relevant government is urgently needed. Currently, Section 20 of the Environmental Conservation Act of 1989, places the responsibility of granting permits to import and recover hazardous waste with the Department of Water Affairs and Forestry. It now seems as if the Department of Environmental Affairs and Tourism is playing the supervisory role and is overseeing management of waste at Kato Ridge.
6. REGIONAL AGREEMENTS
Besides Basel, South Africa is also a signatory to the Lome Convention, a major trade agreement between the countries of the EU and the African, Caribbean and Pacific states, the ACP countries. Article 39 of title I of the Convention deals with transboundary movements of hazardous waste. It prohibits the export of hazardous wastes from EU states to ACP states. In extending its scope to cover radioactive waste, a major omission of Basel is included in Lome IV.
Thus Lome is much more comprehensive than Basel in terms of defining what constitutes a hazardous waste. This is emphasized by the fact that under Lome, substances under categories I and II of Basel are banned. Currently, 32 of the 71 ACP states have ratified both the Lome and Basel Conventions.
In terms of domestic legislation in South Africa, a general ban has been placed on the importation of hazardous waste into South Africa destined for final disposal. However the authorities allow for a special sub-region in South Africa where the ban will not apply. In making this decision, the South African government argues that as South Africa plays a leading role in the development of the Southern African region, it has an obligation to develop and operate state of the art facilities of the latest technology. South Africa can assist its developing neighbours in safely disposing of their waste while alleviating the threats to human health and the environment. Although this policy may comply with Basel and Lome IV, as the imports would not come from northern countries, South Africa should look at sharing its waste disposal technology with its neighbours, and not limit itself to importing the waste of other countries. This in turn will assist these countries in developing their own self -sufficiency.
For imports and exports of hazardous waste bound for recycling or recovery, it was felt that a total ban on these industries would be detrimental to many economic activities. As a result, South Africa’s economic development could be jeopardized. Once again, jobs and development take precedence over the environment. It is also argued that existing arrangements with recovery industries should remain in place. Of course, once South Africa ratifies the ban amendment to Basel, many of these agreements may be rendered illegal. It is also important to note that the US in not a signatory to Basel and is not bound by its provisions. However, South Africa will be obligated to stop the import of wastes from all OECD countries, even non-parties to Basel. Also, under the provisions of Lome IV a clear ban is imposed on the exportation of hazardous wastes destined for both final disposal and recycling from EU to ACP countries. Therefore, South Africa can only continue to import hazardous waste for recycling from ACP states under Lome . It is also worth noting that the more stringent regulations of Lome supercede the less strict provisions of Basel. However, since Basel is a global treaty its depth is much more far reaching.
In their response to the transboundry movements of hazardous waste, so detrimental to the human health and environment of Africa, the states of the Organization of African Unity, OAU have concluded the Bamako Convention, which places a total ban on all imports of hazardous wastes by African countries regardless of their state of origin. Due to the strict provisions of the Bamako Convention, it has met with a great deal of resistance from many African states which engage in the hazardous waste trade. To this extent, it is unlikely that South Africa will ratify the Bamako Convention. South Africa has focused on the Basel and Lome Conventions, both of which it has ratified, in order to control trans boundry movements of hazardous waste. Furthermore, the South African government would like to be able to continue hazardous waste trade with other ACP countries, which would be prohibited under the Bamako Convention. South African legislators and officials argue that they have a duty to provide adequate waste disposal facilities for other lesser developed countries in the region.
7. DOMESTIC LEGISLATION
In schedule 4 of the new constitution of South Africa, 1996, the environment is categorised as falling under the concurrent jurisdiction of the national and provincial governments. This has led to a great deal of overlap and confusion however, as it is unclear as to where the responsibilities of one level of government ends and the other begins. Currently waste management is to be monitored by the Department of Water Affairs and Forestry who is responsible for granting the necessary permits whereas the department of Environmental Affairs and Tourism is primarily responsible for implementing international environmental treaties and co-ordinating environmental management amongst other relevant ministries. In many cases, the monitoring of environmental legislation is delegated to the provinces which lack the capacity and financial resources to accomplish this task. As a result environmental hazards such as Kato Ridge occur. Perhaps the new proposed environmental management bill will clarify the specifics of precisely where the responsibility lies. Unfortunately it appears that the new draft environmental management bill is as vague on the matters of government responsibility on the environmental management as is the constitution. A specific example of the vagueness pertaining to monitoring, taken directly from the draft environmental management "Should any person fail to comply, or inadequately comply, with a directive under subsection (3), the Director-General or the Director-General of a provincial department may take the measures he or she considers necessary to remedy the situation" .
The draft bill is riddled with these unclear and muddled references to the definitions of monitoring and enforcement of environmental legislation. It is beyond the scope of this paper to delve any further into the ramifications of the draft environmental management bill, but it will certainly provide material for an interesting future case study when the bill is in a more advanced stage. There is a clear lack of accountability in this system as far too often in South Africa, government departments refuse to accept responsibility for environmental damage and try to "pass the buck" in downloading responsibility to provincial government without giving them the financial resources to deal with these issues effectively.
A concrete way to help ensure effective environmental management would be to create the position for an environmental third party. As Brian Peckham clearly and succinctly explains, This individual would be non-partisan and would assess each case of environmental misconduct and could clearly delegate functions and tasks for each level of government and could mediate between them . "The duties of the 'Auditor' should include a general audit of the manner in which government is fulfilling its duties to protect and conserve the environment, as set out in the relevant legislation, policy statements, cabinet decisions, as well as in terms of international law"
It is most interesting that also under the proposed environmental management bill, chapter 7 allows for individuals to have environmental redress. It provides a method for private citizens to instigate legal action against companies or individuals in the name of the environment. There is even a provision for the government to take action on behalf of an individual with sufficient evidence. This will hopefully assist in South Africa’s public participation in environmental issues. Under the polluter pays principle, the corporation will be responsible to pay the individual’s court costs, if the case is successful. This should add to the level and quality of environmental discourse in South Africa. NGO's can also play an important role in capacity building in providing information and training in environmental management issues. South Africa has shown definite signs of progress as next year the center for hazardous waste management for english-speaking Africans will be located in South Africa. This should help in instilling the best environmental practices in the region.
8. CONCLUSION
As outlined in this paper, hazardous waste management in South Africa is a complex issue. Although there is agreement that "something" should be done, the government's response has been convoluted and disjointed to say the least. It does seem that with the proposed environmental management bill, that perhaps the Department of Environmental Affairs and Tourism may be able to bridge the gap between the needs of the public and the environment along with South Africa's right to development.
As I write this paper, South Africa has not formally adopted the ban amendment to the Basel Convention but it has been urged to do so by the Department of Environmental Affairs and Tourism. It is probable that South Africa will ratify the Ban Amendment to the Basel Convention. Monitoring the Basel Convention will pose a great challenge for the department as the department's importance under the former regime was undermined and it was not allocated the relevant resources to operate effectively. It will take a great deal of time and diligence for the department to overcome its shortcomings in dealing with its newly found prominence.
9. BIBLIOGRAPHY