ICT Environmental, Sustainability and Supply Chain Counsel Roundtable

Thursday, October 4, 2018

Garden Court Hotel| Palo Alto, CA Furthering the Circular Economy: The Basel Convention Paul Hagen, Beveridge & Diamond, P.C. Rick Goss, Information Technology Industry Council Overview

• Parties to the Basel Convention have launched an ambitious negotiation to review and revise the scope of the Convention • Initial focus on: – Waste classification of used electronics destined for reuse and repair – Hazardous waste classification of electronics, lithium-ion batteries – Control of waste plastics • Active industry engagement will be required to preserve circular economy business models

Quick History of Basel Convention

Global concern Parallel Basel over dumping of agreement Convention United States hazardous waste 186 Parties to governs trade in signed in 1989, signed but is not in developing the Convention recyclables entered into party countries among OECD force in 1992 (1980s) countries Basel Convention

• Global agreement covering waste shipped for disposal or recycling • Provides framework for “waste” and “hazardous waste” classifications • Covered shipments subject to prior notice, consent, documentation • Environmentally Sound Management • Various trade bans • Implications for repair, EPR programs, and circular economy Revisions to Convention Annexes

• When are used electronics wastes? • Are waste electronics hazardous? • Should movements of waste plastics be controlled? • Negotiations already underway with decisions at COP-14 (May 2019) and COP-15 (2021) • Legally binding – outcome will change national waste laws world-wide Electronics Destined for Repair, Reuse Negotiations to Amend Annexes

• Parties established a new Expert Working Group (EWG) to review Convention Annexes and to propose amendments – Annex I: Waste streams and constituents considered hazardous – Annex III: Hazardous characteristics – Annex IV: Final disposal and recycling operations (waste scope) – Annex IX: Waste entry for non-hazardous electronic waste (and related references to reuse and repair) • Outcome will determine legal and logistical requirements for shipments for repair, reuse and recycling world-wide • EWG meeting held in March (Geneva); meets again in December (Buenos Aires) • Discussions at COP-14 (2019) and decisions expected at COP-15 (2021) Waste Classification for Electronics Will changes further the circular economy?

Non-Wastes Other Wastes in Hazardous Waste No Basel Presumptively non- Annex II Requirements hazardous Wastes Subject to Basel Apply in Annex IX controls Annex I & Annex No Basel III with listing in Annex IV and U.S. non-party Annex VIII B1110 in Annex IX Requirements ban applies but (and TGs) not Basel Ban Controls and Amendment trade bans apply EWG-RA: Direct Reuse and Repair

• “Direct re-use” in Annex IV.B heading • Waste operations listed in Annex IV.B – Proposals to reference “preparation for reuse” • Remove text in Annex IX B1110 waste listing for electronics referencing re-use and repair • Glossary and Technical Guidelines Waste listings for electronics to be revised (hazardous/non-hazardous)

A1180: Waste electrical and electronic B1110:Electrical and electronic assemblies: assemblies or scrap containing components o Electronic assemblies consisting only of metals or alloys o Waste electrical and electronic assemblies or scrap such as accumulators and other batteries (including printed circuit boards) not containing included on list A, mercury-switches, glass from components such as accumulators and other batteries cathode-ray tubes and other activated glass included on list A, mercury-switches, glass from cathode-ray tubes and other activated glass and PCB- and PCB-capacitors, or contaminated with capacitors, or not contaminated with Annex I Annex I constituents (e.g., cadmium, mercury, constituents (e.g., cadmium, mercury, lead, lead, polychlorinated biphenyl) to an extent polychlorinated biphenyl) or from which these have been removed, to an extent that they do not possess that they possess any of the characteristics any of the characteristics contained in Annex III contained in Annex III o Electrical and electronic assemblies (including printed circuit boards, electronic components and wires) destined for direct reuse, and not for recycling or final disposal Proposals to Expand Hazardous Waste Classifications for Electronics (Annex I - Presumptively Hazardous)

• Aluminium, aluminium compounds • Brominated flame retardants • Electrical and electronic assemblies • Lithium/lithium batteries • Wastes containing nanomaterials • Wastes from production, use of plastic products • Waste toners • Other waste consumer items Products with Lithium-Ion Batteries

• Different views on hazardous waste classification • EWG-RA to consider changes to Annex I (constituents/categories) • Priority for review (EU, Canada) • Risk of hazardous waste listing • Risk of Annex II listing? • Guidance for national inventories (COP-14) Plastic Waste Listing Negotiations

Hazardous Waste Other Wastes Annex IX EU to propose changes to Norway proposal for all Norway proposal to delete Annex I constituents and plastics in Annex II current Annex IX listing for categories (EU) Mixed reception at OEWG plastics Negotiations on Annex III characteristics Narrower listing? Parties appear supportive of keeping some plastic Proposals for threshold limit values on constituents wastes on Annex IX COP-14 to consider Basel controls apply revisions Non-party trade ban (U.S.) Ban Amendment Applies Basel controls apply Outside Basel controls Non-party trade ban Beneficial to circular (U.S.) economy Opportunities to Promote Circular Economy

• Proposals for concentration values or “limits of contaminants” for Annex I constituents • Clarify testing procedures for Annex III characteristics, in particular H10 through H13 • New Annex IX listings (presumptively non-hazardous) Other COP-14 Decisions

• Inventories and reporting for waste cartridges and toners • Future work on wastes containing nanomaterials • New guidance document for governments on EPR and financing • Coordination between Basel and WCO on HS Codes

BRS MEAS https://www.flickr.com/photos/63284352@N08/4 4487973871/in/album-72157699400085271/ Basel “Ban Amendment”

• Adopted in 1995 but not yet in force • Prohibits exports from OECD to non-OECD countries • Applies to “hazardous wastes” defined under Art. 1(1)(a) (not to “other wastes”) • Already implemented by EU and others • Likely to take effect within 12-24 months • Outcome of Annex negotiations will define long-term impact

Comment and Meeting Timeline

• Sept 28, 2018: Comments due on Annex I and III • Early Oct, 2018: Norway to release revised proposal for plastics listing in Annex II and IX • Oct 31, 2018: Comments due on COP decision on marine plastics litter and microplastics • Dec 5-8, 2018: Meeting of the EWG on ESM • Dec 10-13, 2018: Meeting of the EWG on Annexes (Buenos Aires) • Dec 17, 2018: Comments on terms of reference and work plan for plastics waste partnership • Jan 31, 2019: Comments on options for further work on wastes containing nanomaterials • Feb 19, 2019: Comments due on Glossary of Terms • April 28 – May 9, 2019: COP-14 (Geneva) • Sept 2020: OEWG-11 • May 2021: COP-15 Optimizing Engagement and Advocacy

• Confirm working group participation of 8-10 companies • Coordinate advocacy through ITI and other trade groups • B&D to continue strategic advice and legal support – Funded directly by participating companies? • Monthly updates and strategy calls • Comments on key documents and proposals – anticipate need for more technical input • Participation at COP, OEWG and EWG-RA meetings Questions? Thank you! Next Meeting Data Centers April or May 2019 Austin, TX 2018 Fall ICT Environmental, Sustainability and Supply Chain Counsel Roundtable

Ellen Jackowski Rick Goss Russ LaMotte [email protected] [email protected] [email protected]

Lauren Hopkins Paul Hagen [email protected] [email protected]