Draft Technical Guidelines on the Environmentally Sound Management of Mercury Wastes

UNEP/CHW.9/INF/25/Add.1

Distr.: General 16 April 2008

English only

Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal Ninth meeting Bali, 23–27 June 2008 Item 7 (h) of the provisional agenda∗ Implementation of the decisions adopted by the Conference of the Parties at its eighth meeting: technical matters

Draft technical guidelines on the environmentally sound management of mercury wastes

Comments received from the Basel Action Network (BAN)

Note by the Secretariat

Attached are comments received from the Basel Action Network (BAN), a non-governmental organization on the draft technical guidelines on the environmentally sound management of mercury wastes, for consideration by the meeting. These comments have not been formally edited by the Secretariat and are presented as received.

∗ UNEP/CHW.9/1.

230408

For reasons of economy, this document is printed in a limited number. Delegates are kindly requested to bring their copies to meetings and not to request additional copies.

UNEP/CHW.9/INF/25/Add.1

BAN AP Comments on the 3rd Draft of the Technical Guidelines for Mercury Wastes

Submitted by the Basel Action Network, Asia-Pacific 15 February 2008

I. General Comments

[Provided in this section are comments co-developed and supported by the Zero Mercury Working Group.1]

We are grateful that the Secretariat has undertaken this important task on the issue of mercury wastes, and for opening the floor for comments on the third draft of the Technical Guidelines on Mercury Wastes (3rd Draft).

Upon review, the 3rd Draft is still very much a work in progress and falls short in several crucial areas.

First, certain sections in the 3rd Draft need to be balanced. For instance, some of the sections glowingly present data on particular technologies without explaining the disadvantages, obstacles, or issues raised in the use of such technologies. Since the Basel Guidelines will be used by Parties as a tool in arriving at solutions, it is only proper that the Guidelines provide, the Parties who are the ultimate users of the Guideline, complete and unbiased information, particularly on the issue of certain types of technology.

Second, the drafters raise recommendations that still need to be agreed on by Parties. Moreover, some sections contain statements that editorialize specific issues, when the goal of the Guidelines is to present objective information to Parties.

Third, the draft is too ambitious in that it attempts to cover virtually all aspects of the mercury issue, and cannot possibly accomplish this well given space and resource limitations. Consequently, we urge that the drafters focus on providing critical detail in the areas most relevant to Basel where gaps in current guidance currently exist, and in other areas instead simply reference the detailed work of other organizations rather than duplicating their efforts in a less than satisfactory manner.

For example, chapter 7 attempts to describe the various products and processes using mercury and provide guidance on non-mercury alternatives or techniques to minimize mercury consumption. Given the variety of products and processes, and the inherent space limitations in this document, it is inevitable the discussion in this draft will be inadequate. The ASM area alone would require several chapters to be truly helpful to the reader.

We note that UNEP will be preparing a report on mercury products and the availability of alternatives for the upcoming Governing Council meeting next year. We further note UNIDO is preparing detailed BMPs for the ASM sector on reducing mercury use. Basel should emphasize the need to phase-out mercury use, and then reference these organizations and their documents in the draft, rather than providing incomplete text.

Similarly, in Chapter 10, the draft purports to discuss various options for the long-term sequestration from commerce of liquid mercury. This is another area where the Quicksilver Caucus and the U.S. Department of Defense have devoted considerable efforts and produced lengthy documents. This draft should simply refer the reader to these organizations and documents, rather than attempting to cover this area in any depth.

1 The Zero Mercury Working Group is an international coalition of non-profit environmental and public health groups whose aim is to reach “‘Zero’ emissions, demand and supply of mercury, from all sources we can control, in view of reducing to a minimum, mercury in the environment at EU level and globally.” The global coalition has been operating since 2005 and was formally launched on 7 April 2006. For more information about the group visit: http://www.zeromercury.org/index.htm

2 UNEP/CHW.9/INF/25/Add.1

We believe there are likely other parts of the Guidance where the draft merely attempts to duplicate information already available. We urge Basel to scrutinize the document more carefully, focus its efforts on where it is providing real value added, and for the remaining areas, articulate the principle policy directions and refer the reader to other sources for more detail.

Lastly, a big portion of the 3rd Draft is quite challenging to read because the ideas are not clearly and accurately written. Further, spelling, sentence structure, and word usage errors contribute to the overall difficulty.

In the following section, we will elaborate on most of the general comments made, provide suggestions, and primarily focus on substantive and accuracy issues, not dwelling too much on spelling or typographical errors.

II. Specific Comments

Page 10; 1.1 Background

BAN AP Comment: In paragraph 1, stating that mercury and methylmercuy were trigger chemicals that brought upon damage to human health and the environment in the areas mentioned, is understating the fact that these were in fact the main toxins involved in these tragic incidents. It is suggested that the sentence accurately reflect this fact, as in the suggested text in track changes below.

1. Mercury is a chemical element and exists as liquid at room temperature and pressure. Mercury is widely used in products, such as thermometers, barometers, fluorescent lamps, etc and in industrial processes, such as chlor-alkali production, vinyl-chloride-monomer (VCM) production, acetaldehyde production, etc, because of its unique characteristics. However, mercury and methylmercury (one of the organometallic forms) triggered were the toxins involved in the tragic incidents which caused the deadly damage to human health and the environment in Minamata City, Japan (1950-60’s), in many rural areas, Iraq (1950’s and 1972) and Sihanouk Ville, Cambodia (1998) (Amin-Zaki 1978; Ministry of the Environment 2002; NIMD 1999).

BAN AP Comment: Paragraphs 3, 4, 5, and 6 raise valid points about mercury, but at times makes sweeping generalizations that appear to overstate some facts, e.g. that fluorescent lights are important products for society; unnecessarily making an awkward argument for the need for mercury waste control. The following changes are suggested to help the potential readers ease into the points being raised for the need of establishing these technical guidelines without overstating facts and putting into context the importance of fluorescent lights and similar products.

3. There is a growing global trend to phase out Although mercury-containing products and industrial mercury uses are tend to be phased out because of the acknowledgement issue of mercury as a global pollutant. As efforts to phase out mercury-containing products and industrial mercury uses continue, ensuing mercury wastes arising from these phase outs will become a critical issue for a majority of nations. 4. Adding to the complexity of the mercury waste issue, and are known as one of the anthropogenic sources of mercury emission as mercury waste, the use of some of mercury-containing products areare expected to rise in the coming years, important products for human society, such as, fluorescent lamps (a replacement of incandescent lamps as a strategy for low carbon society), back-light for liquid crystal displays (high demand of information technology), etc. 5. In the instance of fluorescent lamps,For example, taking into consideration climate change, as one of the CO2 reduction programmes, is the replacement programme of fluorescent lamps to high frequency (Hf) fluorescent lamps (35% higher frequency and 1.5 longer life than normal types). This programme are is being implemented in several countries, particularly in the parties to the Kyoto Protocol (Team -6%

3 UNEP/CHW.9/INF/25/Add.1

Committee & Ministry of the Environment 2007). In this programme,. aA large number of used fluorescent lamps will become waste at the end of its product life cycle and will become generate mercury waste. It is critical for Waste waste fluorescent lamps should to be treated in an on the environmentally sound management (ESM)ner without any breakage. It is therefore important toA comprehensiveely plan for the collection, introduction of mercury free alternatives or a replacement programme, and recycling/disposal plans would be necessary. 6. In order to reduce risk of mercury pollution to human health and the environment as well as the environmentally sound use of mercury-containing products, it is necessary to consider, introduce and fully implement the environmentally sound management (ESM) of mercury waste. This Technical Guidelines on the Environmentally Sound Management of Mercury Waste is aimed at assisting Basel Parties guides thin achieving e ESM of environmentally unsound management of memercury waste to ESM.

Page 10; 1.2 Purpose

BAN AP Comment: The suggestions in track changes below are for consistency in the paragraph. Since the 3rd Draft covers mercury wastes only, this should be consistently reflected. Also, since the 3rd Draft only elaborates on international instruments this should be accurately stated as well.

8. The present technical guidelines provide guidance for ESM of mercury waste and give comprehensive information about mercury waste, including the chemistry and toxicology of mercury, source of mercury and mercury waste, adverse effects to human health and the environment caused by the environmentally unsound management of mercury waste. These guidelines provide knowledge and expertise on ESM of mercury waste and provisions for mercury waste under the international legal instruments.

Page 11; 1.3.2 General Guidance on ESM of Mercury Waste

BAN AP Comment: Paragraph 14 proceeds to sum up what the Basel Convention is but fails to touch on some of the aims of the Basel Convention as explained by the Parties under the Basel Declaration on Environmentally Sound Management. The suggestions in track changes below enumerate the aims of the Convention, and also streamline the summary of the Convention.

4. The Basel Convention is the world’s most comprehensive environmental on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal is the primary United Nations instrument that deals with hazardous wastes their international movement and disposal, agreement on hazardous and other wastes and aims at protecting human health and the environment from the inappropriate management of hazardous and other wastes. There are 170 Parties to the Convention as of May 2007. The Convention regulates the movement of hazardous waste and obliges its members to ensure that such wastes are managed and disposed of in an environmentally sound manner. It covers toxic, poisonous, explosive, corrosive, flammable, ecotoxic, and infectious wastes that are being moved from one country to another. Governments that are Parties to the Basel Convention are also expected to minimize the quantities of hazardous wastes generated, promote the transfer and use of cleaner technologies, minimize transboundary movement of hazardous wastes that are transported treat and dispose of hazardous wastes as close as possible to their place of generation and criminalize illegal exports of hazardous wastes, to treat and dispose of wastes as close as possible to their place of generation and to minimize the generation of hazardous waste at source. 5. In the context of the Basel Convention and this Guideline, ESM of mercury waste means taking all practicable steps to ensure that mercury waste is managed in a manner which will protect human health and the environment against the adverse effects which may result from such waste. The criteria of ESM under the Basel Convention are to ensure that: • Generation of mercury waste within it is reduced to a minimum, and promote the transfer and use of cleaner or mercury free alternative products or processes, taking into account social, technological and economic aspects;

4 UNEP/CHW.9/INF/25/Add.1

Page 11; New Para. 16

BAN AP Comments: The preceding paragraphs and bullets under this Section discuss among others the control measures which Parties to the Basel Convention can utilize under the Convention. It is logical that an explanation of the Basel Ban Amendment be given because it is another control measure used by Parties under the auspices of the Basel Convention. 63 Parties have ratified the Basel Ban Amendment, and these Parties have enacted national legislation implementing the Basel Ban. It is important for those reading the Guidelines to have an understanding of the Basel Ban Amendment as a tool under the Basel Convention. Our suggestion is as follows:

17. A control measure under the Basel Convention is the Basel Ban Amendment or Decision III/1, which prohibits the export of hazardous wastes, such as mercury wastes, either for disposal or recycling, from Annex VII countries, i.e. European Union, member countries of the Organization for Economic Cooperation and Development, Liechtenstein, to non-Annex VII countries, i.e. developing countries. The Basel Ban obligation primarily falls on 37 Annex VII countries to implement the export ban. As of December 2007, 63 parties have ratified the Amendment. The Basel Ban Amendment has not yet entered into force, and shall take place upon ratification by at least three-fourths of the Parties who accepted it. The Basel Ban can be considered de facto operational considering that 30 of the 37 Annex VII countries have already ratified or are implementing the export ban.

Page 15; 1.4.3.2 Elemental Mercury, New Para. 38

BAN AP Comment: Para 37 of the sub-section cites the WHO air quality guide standard but does not mention the recent WHO finding that mercury may have no threshold below which some adverse effects do not occur. In this regard we suggest a new paragraph 38mentioning this fact, to read as follows:

38. Recent studies suggest that mercury may have no threshold below which some adverse effects do not occur (WHO 2005).

Page 16; 1.4.4.3 Illegal Transboundary Movement of Mercury Waste - Paradise Poisoned Sihanouk Ville, Cambodia

BAN AP Comment: The data presented for the Sihanouk Ville toxic dumping case is incomplete. Please find in track changes the clarificatory data:

45. In November 1998, the infamous dumping incident, the of illegal transboundary movement of toxic waste, which was mainly composed of byproducts of battery production containing mercury, was happened in Sihanouk Ville, Cambodia. It The toxic mercury wastes wasere imported exported from Taiwan from a company called Formosa Plastics to Sihanoukville, Cambodia. The amount of hazardous waste was about 3,000 tonnes. Unfortunately, at the time of the incident Taiwan and Cambodia were not the partyies to the Basel Convention at that time. , and the toxic trade was facilitated primarily by Formosa Plastics in collusion with local officials. In the samples taken, The transboundary movement of the event was dealt with no legal agreement between both countries because the private sectors dealt with all transactions. Tthe highest of mercury concentration in the waste sample reached to 4,000 μg/g. Thise toxic waste dumping event made caused great a lot of the adverse effects to human health and the environment around Sihanouk Ville, as well as triggering the a social scandal in Cambodia. In many incidents around the site where the hazardous wastes were dumped, One of the actions by locals people was to steaolel the plastic bags encasing the hazardous waste containing mercury, because local people in order to sell the plastic or scavengers could make money to sell plastic bags to dealers as their for some income. However, tThise action made those persons that had directly contact with the hazardous waste containing mercury, and eventually most of them complained about somatise,

5 UNEP/CHW.9/INF/25/Add.1

dizziness, weakness, visual trouble, headache, etc. At least, 10 local people were hospitalised. All Through the combined efforts by the Cambodian government, local community, and non-governmental organizations the toxic wastes was retransportedurned to Taiwan in 1999 (Honda 2006b; NIMD 1999).

Page, 17; New Sub-section 1.4.4.4 Mercury Waste Recycling and Disposal – Thor Chemicals

BAN AP Comment: The sub-section discusses mercury pollution in its various forms. A well-known case on mercury recycling was overlooked that of the Thor Chemicals case. The case is instrumental in showcasing the dangers in mercury recycling, the role played by global trade in moving toxic elements such as mercury, and the responsibilities of governments and private companies in dealing with this toxin. We suggest the Thor Chemicals case be included in this sub-section, and our suggested text for this is as follows:

1.4.4.4 Mercury Waste Recycling and Disposal – Thor Chemicals

49. In the eastern province of Kwazulu-Natal, South Africa, Thor Chemicals, Inc. of Great Britain (Thor) was accused of poisoning its workers and putting surrounding communities at risk from mercury exposure. Thor was receiving shipments of mercury wastes from the United States and other countries as part of the company’s mercury recycling program. As one of the few facilities in the world to form a large-scale mercury reclaiming process, Thor quickly became target for many international companies facing the dilemma of what to do with mercury waste. In 1988 mercury levels in the Umgeni River, 15 km downstream where Thor’s facility was located, were reported to be 1000 times higher than WHO standards for drinking water. Water samples, taken from the Mngeweni River behind Thor and analyzed for mercury, were found to contain 1.5 million parts per billion (ppb) of mercury – 1500 times higher than the US limit for “sediment to be declared toxic” (Lambrecht, 2001). In 1990 samples taken by Greenpeace and local activists revealed equally high levels of mercury. Mercury levels in the river were found to be still 20 times the US limit as far as 40 miles downstream, near the coastal city of Durban, the second most populous city of South Africa with a population of 3.2 million.

Investigations revealed that the workers in Thor’s mercury reclaiming plant were uninformed of the potential dangers of and precautions to take against mercury poisoning. Employees when sick were either removed to another part of the factory or fired. A doctor from the Industrial Health Unit (IHU) diagnosed mercury poisoning in 4 workers. Further investigation by IHU into 80 medical records revealed that 87% of workers had mercury levels that were above safe limit (Butler, 1997). In 1992, an IHU report stated that 28% of workers were in danger of permanent health damage due to poisoning. A 1992 government report revealed that 29 workers had suffered mercury poisoning (Butler, 1997). In 1993, the first death related to mercury poisoning was reported. In 1998 it was shown that workers had been exposed to mercury levels up to 12 times higher that WHO regulations. To date at least four workers have died and an unknown number are mentally and physically impaired.

Three separate actions were brought against Thor Chemicals' parent company by former workers of the South African plant in the UK. To this day, although some of the cases were settled out of court, ex-workers of Thor Chemicals are still calling on compensation from government and Thor Chemicals for health impacts they relate to having worked at Thor Chemicals. Also, the mercury wastes have not been removed or returned to their senders, and remains a grave problem for the South African government. Mercury levels in the sediment and water from the stream to the north of the site have improved since 2002. The mercury level in the plants along the stream is significantly higher than in the water and sediment, suggesting that the plants are taking up and accumulating mercury.

Page, 21; 2.3.1 Industrial Processes using Mercury or for Consumer Products

BAN AP Comment: Para. 53 is a bit awkward because some of the sentences are incomplete, or the usage of the term environmentally sound management (ESM) or its variation is a little forced, which makes some of the

6 UNEP/CHW.9/INF/25/Add.1

ideas in the paragraph unclear. The suggestions in track changes below attempts to add in missing points and clarify these:

53. Industrial mercury processes (equipments using mercury) and mercury-containing products tend to be phased out. As this result, a large amount of equipments for industrial mercury processes and mercury- containing products become mercury waste. Although these mercury wastes should be separately dealt with on in an the environmentally sound manner , it is expected that mercury is easily mixed with municipal solid waste (MSW) due to no the absence of collection mechanism for mercury-containing products or no lack (or less) of awareness on that the product contains mercury-containing products. Once mercury waste as MSW enters waste stream the probability of it being released to the environment becomes greater because the mercury waste in the MSW could very well be subjected to unsound environmental management such as on the environmentally unsound management, this means that mercury enters the environment because mercury waste on the environmentally unsound management includes incineration and landfilling which are the most basic solid waste treatments. It is noted that mercury waste as well as other hazardous wastes is collected and treated as MSW in many developing countries, and this means that mercury waste is dumped at landfill sites or open dumping sites without any proper treatments.

Page 22; 2.3.4, Process at Artisanal and Small Scale Gold Mining

BAN AP Comment: Para. 60 makes a broad and harsh indictment against small-scale gold miners in that they do not consider the environment. There is no need to make judgmental statements in the Guidelines, considering the context, particularly the plight which pushed these individuals or families to engage in small- scale gold mining. We suggest that this statement be deleted, and be replaced with the following revisions in track changes below:

60. Mercury waste, called as “tailings”, released from artisanal and small scale gold mining (ASM) activities has been becoming as one of the hot issues, because almost all ASM activities are in developing countries and countries with economies in transition, and almost all miners of it is very challenging to exact regulatory action on ASM ASM miners due to the geographic locales where they operate, and most of ASM miners are driven by poverty to engage in such activity,do not consider environmental pollution due to their activities. ASM [activities are a poverty-driven activity that provides] becomes an important source of livelihood for rural communities because of increasing price of gold price. This means that those miners The impoverished miners are given the untenable choice of poverty or using mercury have to do ASM activities even though it will whatever mercury used at ASM activities causes the adverse effects to their health and the environment around them.

Page 23; 3.0 Provisions for Mercury in the UNEP and Basel Convention

BAN AP Comment: We suggest changing the title of this sub-section to “Legal Framework for Mercury and Mercury Wastes in the UNEP and Basel Convention, because the initial title of “Provisions” is too limiting. The UNEP and SAICM discussions under the Section 3.0 talks of decisions and plans of action, which are part of a legal framework. The discussion centers on legal frameworks established under UNEP, SAICM and Basel, so it only apt that this is reflected in the title. Our suggestion is as follows:

3.0 Provisions Legal Framework for Mercury and Mercury Wastes in the UNEP and Basel Convention

7 UNEP/CHW.9/INF/25/Add.1

BAN AP Comment: To state that there are only two options for ESM severely limits the concept of ESM under Basel. ESM is defined as “taking all practicable steps to ensure that hazardous wastes or other wastes are managed in a manner which will protect human health and the environment against the adverse effect which may result from such wastes.” “All practicable steps” does not necessarily mean just two, as what para. 64 states. For this reason we recommend the deletion of the last sentence of para. 64, in red brackets. There are also some minor recommendations that clarify some points in para. 64.

64. Only a limited numbers of countries have a capacity to treat mercury waste or used mercury-containing products, such as used fluorescent lamps, in an on the environmentally sound managementner (ESM) because of the existence of a facility with advanced appropriate technologies is necessary to to treat these wastes in these countries. Unfortunately, more often than not most mercury wastes or used mercury-containing products are treated by the in an environmentally unsound managementner, such as mixing with other wastes (e.g. municipal solid waste), open dumping or open burning. These likely , occur in particularly in developing countries and countries with economies in transition which do not lack the capacity have enough capacity to collect and treat mercury wastes. [For ESM, there are two options: 1) development and implementation of domestic ESM taking into account international framework and cooperation; and/or 2) international trade under the Basel Convention.]

Page 24; 4.1 General Provisions

BAN AP Comment: Paragraphs 70 to 75 attempts to enumerate the applicable Basel Convention provisions. However, in the course of the enumeration there are extraneous statements that editorialize the Basel provisions. There is no need to insert editorial statements in this sub-section and we suggest that the enumeration remain accurate as per the applicable Basel provisions. Please find our recommendations in track changes below, and our suggested deletions in red brackets:

70. The fundamental principles aims of the Basel Convention are the reduction of transboundary movements of hazardous and other wastes, the prevention and waste minimization of wastes, ESM, and the active promotion of the transfer of and use of cleaner technologies. [disposal at the country where the waste is generated, ESM of hazardous wastes and cradle-to-grave monitoring by means of an international control system towards an integrated approach to pollution control.] 71. All parties are required to take appropriate measures to ensure the reduction of the generation of hazardous waste to a minimum taking into account social, technological and economic aspects. [Due to lack of the capacity to undertake appropriate measures on waste minimization, parties, particularly, those of developing countries and countries with economies in transition, must cooperate in the development and implementation of new or advanced low-waste technologies with a view to eliminating, as far as practicable, the generation of hazardous wastes.] 72. Each party must endeavour to ensure the availability of disposal facilities located within and deal with hazardous wastes as close as possible to the source of generation, and ensure that the exports of hazardous wastes and other wastes is reduced to the minimum and is conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movement; 73. Each party must also prohibit the export of hazardous wastes or other wastes to a State or group of States belonging to an economic and/or political integration organization that are Parties, particularly developing countries, which have prohibited by their legislation all imports, or if it has reason to believe that the wastes in question will not be managed in an environmentally sound manner. exports must be minimized. Hazardous wastes may be exported only if the state of export does not have the technical capacity and facilities to dispose of them in an environmentally sound manneron ESM, or if the wastes are required as raw material for recycling or recovery industries in the state of import, or in accordance with criteria, to be determined by the party states. 74. Parties must require that hazardous wastes subject to transboundary movement are managed in an environmentally sound manner, whatever the place of their disposal. Thus, in accordance with the principle of non-discrimination, the same rules and standards must be applied to hazardous wastes generated and

8 UNEP/CHW.9/INF/25/Add.1

disposed of domestically or those wastes that are exported.moved out of the state of generation as to those disposed of domestically. Article 4-.10 of the Convention prohibits the transfer, “under any circumstances”, of the generating state’s obligation to ensure ESM of hazardous wastes to the states of import or transit. By implication, tThe duty to ensure ESM is allocated primary to the generating state. That state may not allow the export of hazardous wastes if it has a reason to believe that their ESM and disposal of the hazardous wastes would not be guaranteed in the prospective state of import. 75. Each Party shall take appropriate legal, administrative and other measures to implement and enforce the provisions of this Convention, including measures to prevent and punish conduct in contravention of the Convention., and consider criminal any instance of illegal traffic of hazardous wastes.

BAN AP Comment: In line with keeping with the accuracy of the Basel Convention obligations, we suggest the inclusion of a new para 76 below because this obligation was not mentioned in the enumeration:

76. Each Party shall ensure that persons involved in the management of hazardous wastes or other wastes within it take such steps as are necessary to prevent pollution due to hazardous wastes and other wastes arising from such management and, if such pollution occurs, to minimize the consequences thereof for human health and the environment;

Page 25; NEW 3.4.3 Prevention and Minimization

BAN AP Comment: The sub-section discusses what the Basel Convention responsibilities of Parties are. In the previous section, prevention and minimization of wastes are mentioned, however, there is no sub-section discussing the legal framework for this. The prevention and minimization of mercury wastes is a priority under globally accepted waste management hierarchy and also under the Basel Convention. The importance of prevention has also been acknowledged outside of Basel, for instance, Agenda 21 has various pronouncements on prevention and minimization of wastes which took off from the original Basel obligation. In light of the foregoing, we suggest that a new sub-section 3.4.3 be created to discuss the prevention and minimization of the generation of mercury wastes to appear as follows:

3.4.3 Prevention and Minimization of the Generation of Mercury Wastes

77. The prevention and minimization of the generation of hazardous wastes is an integral obligation under the Basel Convention. As early as 1992, under Decision 1/17 on the Responsibility of States for the Implementation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the Conference of Parties has invited States Parties to co-operate in developing cleaner production technologies and cleaner products which will lead to the reduction, and as far as practicable, the elimination of the generation of hazardous wastes.

78. Also, under Decision I/19, on the Technical Guidelines for the Environmentally Sound Management of Wastes Subject to the Basel Convention, the Conference of Parties requested that future technical guidelines should address economic aspects of different proposed disposal and recovery operations as well as preventative measures.

79. The principle of prevention has also become part of Agenda 21, in which the Basel Convention Parties under Decision I/23 are invited to cooperate with each other in the implementation of Chapters 20 and 21 of Agenda 21. Sub-section 20.2 of Chapter 20 of Agenda 21 identifies prevention of the generation of hazardous wastes as a key element in the ESM of hazardous wastes.

80. One of the first priorities in hazardous waste management is minimization, as part of a broader approach to changing industrial processes and consumer patterns through pollution prevention and cleaner production strategies (Subsection 20.9, Agenda 21).

9 UNEP/CHW.9/INF/25/Add.1

Page 25; 3.4.3 Transboundary Movement Control

BAN AP Comment: We disagree with the statement in para. 77 that the main reason for the export of toxic wastes is because of the potential value of these wastes. The statement glosses over the fact that toxic wastes are also moved so that certain inequalities between richer and poorer nations are exploited, such as cheap labor and lax environmental standards. There is also the factor of expensive disposal costs in richer nations who are primarily exporting countries in toxic waste trade. The current statement also makes it appear that all hazardous wastes have potential value, which is not necessarily the case. Some wastes are indeed exported because it has no value in the country of origin and would be too costly to dispose of.

It would therefore be naïve to simply cite potential value of wastes as a driver for their export. We suggest that the observation of Ms. Jennifer Clapp in her 2002 book, Toxic Exports, be used as the first sentence of para. 77 below that globalization has facilitated the trade in hazardous wastes: 77. Economic globalization has played a crucial role in the transfer of toxic wastes from countries, particularly from rich to poorer countries, because of the global networks for trade and investments facilitating the relocation of hazards (Clapp, 2001). A factor in the The main reason for the international transfer of hazardous wastes is the potential value of some hazardous wastes as secondary raw materials of certain wastes. Hazardous wastes with an economic value are treated as a tradable commodity and are exported in order to be subjected to operations leading to resource recovery, recycling, reclamation, reuse or alternative use. This accounts for a significant proportion of the movement of hazardous wastes across national borders, and there is a substantial trade in hazardous wastes destined for recycling and recovery (Kummer 1995).

BAN AP Comment: We also suggest a new para 78 be inserted to reflect the other reasons pushing toxic exports. Our suggestion is as follows:

78. Other factors driving the export of toxic wastes include the growing discrepancy of wealth between developed and poorer countries; expensive labor and disposal costs in the developed world; and cheap labor cost, lax environmental standards, inexpensive disposal costs in poorer nations.

BAN AP Comment: Recycling is an aspect of waste management, and it is not the ultimate goal under Basel. These facts should be recognized and explained in the discussion on recycling. Moreover, technology alone is enough to ensure that air and water pollution can be mitigated by a recycling facility. The presence of crucial social and legal safety nets are important, e.g. the right of workers to form union, freedom of speech, access to courts, and effective enforcement of laws by the country where the recycling is happening, is likewise needed.

The perils of recycling have also been recognized by the Basel Parties in numerous decisions they have passed, culminating in Decision III/1 or otherwise known as the Basel Ban Amendment. Particularly Decision II/12 and III/1 have called for the prohibition of exports for recycling of hazardous wastes from OECD and other rich countries. These facts should be reflected in the text of the paragraphs below. Our suggestion are in track changes as follows:

78. Recycling provides certain advantages. For instance, it can slow down the depletion of limited natural resources and reduce the quantity and hazard potential of wastes going to final disposal if it is on ESM. Provided the country of destination has more environmentally sound facilities, and higher environmental standards, other social liberties such as right to unionize, free press, access to courts, etc. and effective enforcement of laws than the country of origin, export of hazardous wastes for recycling can ultimately lead to an overall reduction of air and water pollution. From an economic viewpoint, recycling of certain

10 UNEP/CHW.9/INF/25/Add.1

wastes leads to the recovery of valuable raw materials. In this case, there usually is an established market for the wastes in question, and the relevant trade has substantive economic significance (Kummer 1995). Recently, with the increase in gold prices, mercury has established itself as a highly-traded commodity in the global market. 79. Recycling, however, has also been recognized by Parties to the Convention as a tool of transferring toxic wastes. At the first meeting of Contracting Parties (COP/I) to the Basel Convention in 1992, Decision I/22 was passed, where the Parties to the Convention noted that hazardous and other wastes destined for recovery and recycling operations should take place in accordance with the provisions of the Convention, in particular that the wastes be handled in an environmentally sound manner. 80. At the next opportunity in COP/II in 1994, the Parties passed Decision II/12 which calls for the banning of export of all hazardous wastes from the Organization for Economic Cooperation and Development (OECD) countries to non-OECD countries, and also for the prohibition by 31 December 1997, of all exports of hazardous wastes for recovery or recycling purposes from OECD to non-OECD states. 81. The concern of developing countries over toxic waste exports, particularly on exports based on recycling, resulted in an expanded export ban which was decided on by the Parties through Decision III/1, obligating not only OECD member countries but also to EC, Liechtenstein. Decision III/1 or the Basel Ban was passed at COP/III in 1995, installing the Basel Ban as an amendment to the Convention.

Page, 34; 6.5 Control of Exports or Imports of Mercury Waste

BAN AP Comment: Para 124 is unclear on how the Convention treats mercury wastes, and provides an incomplete illustration of how the Convention deals with mercury wastes, in the second sentence of paras. 124 and 125. We suggest that the second sentence of para 124 be deleted, and replaced with a broader statement that states that transboundary movement of wastes should be controlled according to the rules of the Basel Convention and its amendment. We also suggest that in para 125 the application of the Basel Ban Amendment be used as an example, to highlight the application of this tool. Our suggestions are in track changes below:

124. Under the Basel Convention, all wastes containing mercury are considered [subject] to be hazardous wastes. This means that a transboundary movement of mercury waste should be controlled according to the rules of the Convention and its amendment. [to countries where there are facilities on ESM, pursuant to the Article 6 of the Basel Convention. Therefore, it is possible that parties to the Basel Convention prohibit imports of mercury waste under the Article 4 of the Basel Convention.] 125. For example, if a party to the Basel Convention has ratified the Basel Ban Amendment and establishes a national legislation [to] prohibiting the importsing of hazardous wastes, including mercury waste, and report the information in accordance with para 1 (a) of the Article 4, other parties to the Basel Convention cannot export mercury waste to the party.

Page 56; 8.2.3 Take-back Programmes

BAN AP Comment: Take-back programmes fundamentally place the responsibility of the end-of-life product back to the manufacturers. An outcome from take-back programmes is that it utilizes market forces to create incentives for the manufacturer to re-design their product for recycling, and to eliminate toxic inputs. Since inefficiency in re-manufacturing and toxic disposal are costly to manufacturers, presumably manufacturers will have an incentive to avoid these high costs. We suggest that the above explanation be added to para. 180 to help explain to readers exactly how movement to mercury-free alternatives will be brought about by take-back programmes. Our suggestion are in track changes as follows:

11 UNEP/CHW.9/INF/25/Add.1

8.2.3 Take-back Programmes 180.180. Generally, take-back programmes focus on household (obsolete or used) products which are widely scattered but have the adverse potential to cause the environmental pollution if they are dealt with on the environmentally unsound management (Honda 2005). The main purposes of a take-back programme for mercury-containing products are to phase out mercury-containing products and to promote using mercury-free products or mercury-containing products whose mercury contents are as low as practically possible, to protect the adverse effects to human health and the environment due to mercury spillage. Take-back programmes fundamentally place the responsibility of the end-of-life product back to the manufacturers. An outcome from take-back programmes is that it utilizes market forces to create incentives for the manufacturer to re-design their product for recycling and to eliminate toxic inputs. Since inefficiency in re-manufacturing and toxic waste disposal are costly to manufacturers, presumably manufacturers will have an incentive to avoid these high costs. Of mercury- containing products, fluorescent lamps and other mercury-containing lamps, thermometers, mercury- containing batteries and mercury switches are main target of a take-back programme, because these products are widely used and have the high potential to be reused and recycled. At this moment, it is impossible to phase put use of fluorescent lamps and other mercury-containing lamps. Alternatives of mercury-containing thermometers and batteries are already available.

Page 60; 9.1 Introduction

BAN AP Comment: Para 187 is a bit problematic because of the syntax errors and missing information. Please find our suggested additions below in track changes and deletion in red brackets:

187. Mercury-containing products and industrial uses of mercury tend to be phased out in many countries, particularly developed countries. This results [On the other words,] in an increase in the number of used mercury-containing products and mercury for industrial uses becoming waste, [tend to be increased, and mercury for industrial uses is no longer uses]. The resulting Mercury wastes [used in] from mercury-containing products and industrial processes should be treated in an [on the] environmentally sound manner [agement (ESM)] to fully avoid the adverse effects to human health and the environment, because of the high probability of mercury wastes escaping to the environment if improperly managed. ]mercury used in mercury-containing products and industrial process would be released into the environment if it is on the environmentally unsound management.] Compared to other waste treatments, such as E-waste, used cars, etc, in some countries where [a legal-binding] mandatory ESM programmes exists, mercury waste management does not attract private sectors to [treat] manage mercury waste because of a small amount of waste, [and] the decreasing tendency of demand of mercury uses, and high regulatory and public health costs.

Page 60; 9.1 Introduction

BAN AP Comment: Para 188 is misplaced as it submits a recommendation at the introduction. Moreover the recommendation over a regional approach for recycling and treatment of mercury wastes is questionable considering that there is not yet any consensus on how mercury wastes should be handled and may be a probable violation of the Basel Ban Amendment. We suggest the recommendation of para 188 for a legally binding ESM be moved to the recommendations portion of the 3rd Draft, and for the deletion of the recommendation to utilize a regional approach in the recycling and treatment of mercury wastes. 188.

Page 62; 9.2.3 Roasting Process

BAN AP Comment: The whole section on Roasting Process is very contentious and some of the data presented herein is simply unacceptable. The Guidelines should discuss existing options for waste management but must do this in an objective light. The discussions under this section make it appear that

12 UNEP/CHW.9/INF/25/Add.1

there are no fugitive emissions coming out from the processes mentioned. Moreover, in certain instances it seems that the drafters simply took portions of the 1999 WHO guidelines on health-care waste incineration. The data the 3rd Draft is using, the WHO itself is presently revising. Also, requiring a mere 97% combustion efficiency with no specific requirements on pollution control, emission limits, incinerator design, etc. is simply unacceptable. Some of the data in this section could possibly go against the Stockholm BAT/BEP guidelines on waste incineration. It might be useful to reference the Stockholm guidelines here rather than the out-of-date WHO guidelines. In light of the foregoing concerns, we suggest that the whole section be put in brackets to allow Parties and other stakeholders more time to balance out the data in this sub-section.

Page 71; para 245.

BAN AP Comment: Para 245 does not make any sense at all. It starts with the premise that developed countries are unable to reuse and recycle hazardous wastes, and concludes that public participation is key in establishing a legally-binding ESM. We recommend that para 245 be deleted and replaced with:

245. Public awareness and participation play key roles in implementing a successful effort in the ESM of mercury wastes.

BAN AP Comment: Para 248 is redundant in discussing a point that has been well tackled before – people need to be made aware of the dangers posed by mercury. Since this has been discussed in other parts of the 3rd Draft, we suggest this para be deleted.

Page 76; Table 12-1

BAN AP Comment: We are concerned that some of the recommendations found in Table 12-1 might not necessarily apply to developing countries or communities, e.g. fish advisories. There should be a caveat to this fact, and the formulation of educational programmes must be geared for developing country needs. On the issue of risk management, its applicability is questionable in some instances from a developing country perspective. The issues of safe mercury levels, for instance, whose level are we talking about in the table? Was the data derived from a developing country study, or how were the levels arrived at? There must be a distinction for this type of recommendation, on when and where it is applicable. Please find our suggestions in track changes for Table 12-1.

13 UNEP/CHW.9/INF/25/Add.1

Table 12-1 Programmes for public participation (Honda 2005) Contents Expected results 1.• Booklet, pamphlets, brochures, magazines, posters, web sites, etc. in 3.• Knowledge sources various languages and dialects to Publications 4.• Explanation how people can easily explain mercury issues dispose of waste 2.• Guidebooks how to dispose of mercury waste 5.• Voluntary seminars • Community gatherings • Linkages with other health workshops 10.• Raising knowledge 6.• Demonstration of recycling Environmental 11.• Sharing common issues programme Education Programmes 12.• Opportunities to directly expose 7.• Scientific studies environmental issues 8.• Environmental tours to facilities, etc 9.• eLearning 13.• Take-back programmes 17.• Implementation of 14.• Mercury-free product campaigns environmental activities among all 15.• Waste minimization campaigns partners Activities • Community gatherings 18.• Environmental appeal for 16.• House-to-house visit citizens 19.• Closer communications 20.• Mercury exposure in general 24.• Proper understanding of safe living environment and risk levels of mercury exposure, Risk Communication 21.• Safe level of mercury exposure in appropriate circumstances 22.• Mercury pollution levels 25.• Avoidances of overreactions 23.• Fish consumption advisories

Page 76, Para 251 BAN AP Comment: Please find our suggested text in the last sentence to reflect the need for the publications to be translated to the various languages or dialects, ensuring efficient communication of information.

251.251. Publications for environmental activities are the basic element but plays as the most important tool to disseminate information about environmental issues, particularly for environmental education programmes. Publications provide basic knowledge of mercury properties, mercury toxicology, the adverse effects to human health and the environment, issues on mercury waste and mercury exposure way from mercury waste as well as how to deal with and dispose of mercury waste. It is crucial that publications are translated into the various languages and dialects to ensure information is efficiently communicated to the target population.

Page 76; Para 255 BAN AP Comment: We reiterate in para 255 our concern over the applicability of risk management to developing countries. Please find our suggestion in track changes, and deletions in brackets.

255.255. Risk communication is a tool for creating that understanding, closing the gap between lay people and experts, and helping people make more informed and healthier choices. However, there are instances where this could be properly applied, as in the case of developed countries, while it may be inappropriate or inapplicable in cases of developing countries. The value of communicating dangers posed by mercury is [It is sometimes happened that information about the adverse effects to human health and the environment strongly impress people to overreact against an environmental issue even if a pollution level is much lower than a regulation or standard. In order] to avoid misunderstanding about environmental issues, it is

14 UNEP/CHW.9/INF/25/Add.1

important to provide information about safe and risk levels of mercury exposure in general living environment as well as accidental mercury exposure, particularly to at-risk populations.

Page 78; Table 12-2

BAN AP Comment: We disagree with the allocation of the responsibilities for the public, private and CSO sectors. For instance, all technical knowledge may not necessarily fall within the realm of the private sector on the issue of mercury and mercury wastes. In some developing countries, for instance, the public sector relies on CSOs and the academe for technical information. In this regard, we suggest that instead of separating these three sectors, Table 12-2, simply put Private Sector and CSOs together. Please see our recommendation in track changes below:

12.3 Table 12-2 Model to develop a public-private partnership for mercury waste (Honda 2005) Stage 1: Development of master plan and strategic plan Contents Model α)• Identification of the γ)• There is legal framework of solid waste management, but no legal current problems on mercury framework of mercury waste despite the current problem on mercury waste; waste; β)• Decision of target and η)• A public-private partnership aims to introduce and implement an goal; ESM framework for mercury waste [mechanism on ESM]; χ)• Master plan: the basic ι)• Master plan: objective to set up a mercury a.o Development of a mercury waste management mechanism by waste management by public-private partnership on ESM. The responsibilities of each sector municipality or central are as follows: government. Its basic concept is P Public sector: all legal/political matters, such as legal “ESM” of mercury waste; framework, resource mobilizations, financial mechanism, δ)• Strategic plan: supervision; Materialization of the master PP Private sector and Civil society organizations (CSOs): all plan to identify progress, technical matters, such as separate collection, infrastructure, stakeholders, donors, etc in reusing/recycling, final disposal, operation of infrastructure[ ;] detail. PPP [Civil society organizations (CSOs):] community ε)• The elements and aspects level activities, such as environmental education, demonstration of on mercury waste are as separate collection, dissemination of knowledge; follows: P Citizens: separate collection, tax payment; f)o Elements: generation, Media: PR activities on the environment. separation, separate collection, transfer/transportation, reusing/recycling, reduction, treatment/disposal;

Page 79, Paras. 259 to 261 BAN AP Comment: Paras. 259 to 261 refer to matters previously discussed in previous sections, and does not add anything new. For this reason we suggest their deletion.

BAN AP Comment: It is arguable that developing a policy instrument is the most important element in solving the problem of mercury waste. Enforcement is equally as crucial. Clearly, the policy instrument establishes a framework that defines a policy, not necessarily creating a binding legal obligation, until it becomes a law. We need not overstate what a policy instrument does. To cure this, we suggest the following in track changes: 1. Policy instruments: A policy instrument [is the most important element because it] defines the strategy or path government will take to a basic legal rule to deal with the environmentally sound management of mercury waste on ESM.

15 UNEP/CHW.9/INF/25/Add.1

Policy instruments are at a national level legal framework of mercury waste (ideally, an integrated legal framework of hazardous wastes, including the concepts and strategy of mercury waste minimization, disposal at the country where waste is generated, phase out of mercury uses and mercury-containing products, promotion of mercury-free products and industrial processing, environmentally sound technologies, monitoring of mercury pollution and awareness-raising programme), as well as the international treaty and framework (e.g., UNEP Governing Council Decisions, the Basel Convention and SAICM) and regional framework (e.g., RoHS: Restriction of the use of certain hazardous substances in electrical and electronic equipment), and introduction of the concepts on ESM (e.g., OECD – Core performance elements, the 3R (Reduce, reuse and recycle) Initiative and EPR (Extended producer responsibility), etc). 2. Legislative and administrative arrangements (legal arrangement): Legislative and administrative arrangements mean to coordinate all stakeholders to effectively implement ESM of mercury waste following under a policy instrument. Legislative and administrative enforcement of rules are crucial in any successful policy instrument implementation. There are numbers of stakeholders who work on ESM of mercury waste, such as central and local governmental organizations, private sectors, local communities, and people. [For effective implementation of ESM of mercury waste, it is important to make legislative and administrative arrangements and to develop a coordination mechanism among all stakeholders to implement ESM of mercury waste.] The more effective legislative and administrative arrangements are made, the more effect ESM of mercury waste is implemented.

BAN AP Comment: The issue is both prevention and minimization, not one without the other. The need to eliminate toxics at the very beginning of the product life-cycle is a good example of preventive action, and not necessarily minimization. To better clarify this point in the recommendation portion, we suggest the following in track changes:

Activities 3. Mercury waste prevention and minimization: In order to reduce the amount of mercury waste, one a key approach is mercury waste prevention and minimization. Waste prevention is any action that eliminates the generation of waste in the first place. Action such as promotion and development of mercury-free technologies and alternatives is a good example of this method. Mminimization is any action that reduces the amount and/or toxicity of chemical wastes that must be controlled. Approaches of mercury waste minimization are a phase out programme of mercury-containing products and mercury industrial uses and a promotion of mercury-free products and industrial processing. Both of two approaches should be back-to-back implementation. The most important thing on mercury waste prevention and minimization is to reduce eliminate mercury at source to reduce the amount of anthropogenic mercury sources releases.

BAN AP Comment: It is worth mentioning in this portion as a reminder to the users of the Guidelines that environmentally sound technologies and techniques are not the end all of solution of the problem. We need to recognize the social, economic and legal safety nets that must be present in a community or society to ensure proper working and integration of such technology in a given locale or area. To better reflect this, we suggest the following in track changes: 4. Environmentally sound technologies and techniques: Environmentally sound technologies and techniques of mercury waste include collection, handling, storage (short- and long-term), transportation and treatment. A number of countries implement the environmentally sound technologies and techniques of mercury waste, such as the treatment facilities for fluorescent lumps on ESM. Many advanced technologies and techniques for mercury waste are available currently. Contribution from private sector is necessary. However, it is noted that such state-of-the arts technologies and techniques do not work in the countries where there is no hazardous waste mechanism on ESM or hazardous waste management, because of no capacity to operate the technologies and techniques, and because of the lack of social and economic safety nets to prevent abuse or give wide legal avenues for public participation and redress of grievance or damages. It is important that those countries should fully establish and enforce a national (or local)look into policy instrument with a plan how to introduce advanced technologies and techniques for mercury waste, if their needs require, and to integrate social and economic safety nets around these technologies. As the other option, in cases where geographic and other

16 UNEP/CHW.9/INF/25/Add.1

challenges are considerable, e.g. small-island states, a regional cooperation on ESM of mercury waste is recommended.

______