Commonwealth Numbered Regulations

1996 No. 283 HAZARDOUS WASTE (REGULATION OF EXPORTS AND IMPORTS) (OECD DECISION) REGULATIONS - SCHEDULE 1

                          SCHEDULE 1               Regulation 4

ORGANISATION FOR                        GENERAL DISTRIBUTION

ECONOMIC CO-OPERATION                   Paris, drafted:  06-Apr-1992

AND DEVELOPMENT                         OLIS:  06-Apr-1992

dist.: 06-Apr-1992
C(92)39/FINAL
Or. Eng./Fre.
COUNCIL
DECISION OF THE COUNCIL
concerning the control of transfrontier movements of
wastes destined for recovery operations*
(adopted by the Council at its 778th Session on 30th March 1992) THE COUNCIL,
Having regard to Article 5a) of the Convention on the Organisation for
Economic Co-operation and Development of 14 December 1960; Having regard to
the Decision and Recommendation of the Council of 1 February 1984 on
Transfrontier Movements of Hazardous Waste [C(83)180(Final)] which requires
Member countries to control transfrontier movements of hazardous wastes;
Having regard to the Decision of the Council of 27 May 1988 on Transfrontier
Movements of Hazardous Wastes [C(88)90(Final)] which defines "wastes",
identifies those wastes referred to as hazardous  wastes in relevant Council
Acts, and sets out a classification system for wastes subject to transfrontier
movements; Having regard to the Decision-Recommendation of the Council of 31
January 1991 on the Reduction of Transfrontier Movements of Wastes
[C(90)178/FINAL] which, inter alia, calls for delineation of such controls as
may be appropriate for the transfrontier movement of wastes destined for
recovery operations, clarification of the definition of such wastes and
characterization of those wastes which may require differing levels of
control; Having regard to the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal, adopted on 22 March 1989,
and noting that most Member countries and the European Economic Community have
become signatories to this Convention; Desiring to conclude an arrangement or
agreement under Article 11 of that Convention; Noting that recovery of
valuable raw materials from wastes has been an integral part of the
international economic system and that well established international markets
exist for the collection and processing of such wastes; Noting further that
many industrial sectors are already implementing waste recovery techniques in
an economically and environmentally satisfactory manner, thus protecting
limited virgin sources of raw materials, and convinced that further efforts in
this direction are necessary and should be encouraged; Recognising that
efficient and environmentally sound management of wastes may justify some
transfrontier movements of such wastes in order to make use of adequate
recovery facilities in other countries; Convinced however that, pursuant to
the obligations set forth in the relevant Council Acts and compatible with the
provisions of the Basel  Convention, an appropriate system should be
implemented to control transfrontier movements of those wastes destined for
recovery  operations; Convinced that all persons involved in any contracts or
arrangements for transfrontier movements of wastes destined for
recovery operations must have the appropriate legal status to ensure
environmentally sound  management of these wastes; and Recognizing that work
is now in progress within the United Nations Environment Programme concerning
the environmentally sound management of hazardous wastes. On the proposal of
the Environment Committee: I. DECIDES that Member countries shall control
transfrontier movements of wastes destined for recovery operations within the
OECD area as specified in Annex 1 which is an integral part of this Decision.
II. INSTRUCTS the Environment Committee in co-operation with other relevant
OECD bodies, in particular the Trade Committee, to review periodically the
control system and the lists of wastes set out in Annex 1, taking into account
the criteria listed in Annex 2, and to make any proposals it deems necessary
for revisions of Annex 1. III. INSTRUCTS the Environment Committee in
co-operation with other relevant OECD bodies to review annually action taken
by Member countries in pursuance of this Decision. IV. REQUESTS the Secretary
General to transmit this Decision to the Executive Director of the United
Nations Environment Programme and the Interim Secretariat of the
Basel Convention.
Annex 1
I. DEFINITIONS For the purposes of this Decision: WASTES are as defined in
OECD Council Decision C(88)90(Final) of 27 May 1988. RECOVERY OPERATIONS mean
activities leading to resource recovery, recycling, reclamation, direct re-use
or alternative uses as listed in Table 2B of the Annex of OECD Council
Decision C(88)90(Final) of 27 May 1988. TRANSFRONTIER MOVEMENT means any
shipment of wastes destined for recovery operations from an area under the
national jurisdiction of one OECD Member country to an area under the national
jurisdiction of another OECD Member country. RECOVERY FACILITY means an entity
which, under applicable domestic law, is operating or is authorized to operate
in the importing country to receive wastes and to perform recovery operations
on them. INTERNATIONAL WASTE IDENTIFICATION CODE ("IWIC") is the
classification system specified and described in OECD Council Decision
C(88)90(Final) of 27 May 1988. EXPORTING COUNTRY means any OECD Member country
from which a transfrontier movement of wastes is planned or has commenced.
IMPORTING COUNTRY means any OECD Member country to which a transfrontier
movement of wastes is planned or takes place for the purpose of submitting the
wastes to recovery operations therein. COUNTRY OF TRANSIT means any OECD
Member country other than the exporting or importing country across which a
transfrontier movement of wastes is planned or takes place. CONCERNED
COUNTRIES means the exporting and importing OECD Member countries and any OECD
Member countries of transit. OECD AREA means all land or marine areas under
the national jurisdiction of any OECD Member country. COMPETENT AUTHORITIES
means the regulatory authorities of concerned countries having jurisdiction
over transfrontier movements of wastes destined for recovery operations.
PERSON means any natural or legal person whether public or private. NOTIFIER
means the person under the jurisdiction of the exporting  country who has, or
will have at the time the planned transfrontier movement commences, possession
or other forms of legal control of the wastes and who proposes their
transfrontier movement for the ultimate purpose of submitting them to
recovery operations. CONSIGNEE means the person to whom possession or other
form of legal control of the waste is assigned at the time the waste is
received in the importing country. RECOGNISED TRADER means a person who, with
appropriate authorisation of concerned countries, acts in the role of
principal to purchase and subsequently sell wastes; this person has legal
control of such wastes from time of purchase to time of sale; such a person
may act to arrange and facilitate transfrontier movements of wastes destined
for recovery operations. GENERATOR means a person whose activities create
wastes.
II. GENERAL PROVISIONS (1) All of the following conditions shall apply to
transfrontier movements of wastes subject to this Decision:

   (a)  The wastes shall be destined for recovery operations within a facility
        which, under applicable domestic law, is operating or is authorized to
        operate in the importing country;

   (b)  The transfrontier movements shall be carried out under terms of
        applicable international transport agreements. (Appendix 1 contains an
        illustrative list of such agreements); (c) Any transit of wastes
        through a non-member country shall be subject to all applicable
        international and national laws and regulations. (2) A three-tiered
        system serves to delineate controls to be applied to such
        transfrontier movements: (a) "Green" tier Wastes destined for
        recovery operations included on the green list shall move among OECD
        Member countries toward recovery operations subject to all existing
        controls normally applied in commercial transactions. These provisions
        shall not apply to wastes on this list which are contaminated by other
        materials to an extent which increases the risks associated with the
        wastes sufficiently to render them appropriate for inclusion in the
        amber or red lists, when taking into account the criteria in Annex 2.
        (b) "Amber" tier Wastes destined for recovery operations included in
        the amber list shall be subject to the control system set out in
        Section IV of this Annex. (c) "Red" tier Wastes destined for
        recovery operations included in the red list shall be subject to the
        controls indicated in Section V of this Annex. (3) The criteria listed
        in Annex 2 must be taken into account for evaluating wastes for
        inclusion on the green, amber or red lists. In accord with provisions
        of this Decision, items may be added, altered or deleted periodically.
        Subject to Section III (2) no single criterion shall be used in
        isolation in assigning wastes to the lists. (4) While the lists are
        intended to be exclusive, a specific waste included in either the
        amber or red lists might not be legally defined or considered to be a
        hazardous waste in the exporting country because the competent
        authorities of that country are satisfied that it does not exhibit any
        of the hazardous characteristics listed in Table 5 of OECD Council
        Decision C(88)90(Final) as determined using national procedures*. If,
        however, this waste is legally defined or considered to be a
        hazardous waste by the importing country, then all of the requirements
        set forth in Section IV or Section V - whichever is applicable - shall
        apply as follows: the importing country shall assume the obligations
        of the exporting country under these Sections, in particular as
        regards the notification requirements. A copy of the notification form
        must be transmitted to the competent authorities of the
        exporting country. Member countries operating under provisions of this
        paragraph shall promptly inform the OECD Secretariat of the waste(s)
        involved and applicable legislative requirements. (5) Member countries
        who prescribe the use of certain tests and testing procedures in order
        to determine whether a waste exhibits one or more of the hazardous
        characteristics listed in Table 5 of OECD Council Decision
        C(88)90(Final) shall inform the OECD Secretariat concerning which
        tests and testing procedures are being so utilized; and, if possible,
        which wastes would or would not be legally defined or considered to be
        hazardous wastes based upon application of these national procedures.
        (6) This Decision does not prejudice the right of Member countries to
        control certain wastes which have been assigned to the green list as
        if those wastes had been assigned to one of the other lists, in
        conformity with domestic legislation and the rules of international
        law, in order to protect human health and the environment. In such
        cases, Member countries exercising this right shall immediately inform
        the OECD secretariat citing the specific waste(s) and applicable
        legislative requirements. (7) Wastes which are destined for
        recovery operations but have not yet been assigned to the green, amber
        or red lists shall be eligible for transfrontier movements pursuant to
        this Decision subject to the following conditions:
i) Member countries shall identify such wastes and bring them to the attention
of the review mechanism established by operative paragraphs II and III of this
Decision;
ii) such wastes shall be promptly examined by the Review Mechanism in order to
assign them to the appropriate list;
iii) pending assignment to a list, such wastes shall be subject to the
controls required for the transfrontier movements of wastes by the domestic
legislation of the concerned countries in order that no country is obliged to
enforce laws other than its own;
iv) however, if such wastes exhibit a hazardous characteristic listed in Table
5 of OECD Council Decision C(88)90(Final) as determined using national
procedures and any applicable international agreements, such wastes shall be
subject to controls applicable to the red tier. (8) If two or more lots of
wastes are mixed and/or otherwise subjected to physical or chemical
transformation operations, the person who performs these operations shall be
deemed to be the generator of the new wastes resulting from these operations.
III. GREEN TIER (1) Specific items included in the green list are shown under
their corresponding main categories. Only the items specified under a main
category and not the main categories themselves are part of the green list.
(2) Wastes may not be included in the green list if they exhibit any of the
hazardous characteristics listed in Table 5 of OECD Council Decision
C(88)90(Final). The procedures in force in each Member country for determining
whether a specific waste does or does not exhibit one or more of these
characteristics are taken into account in placing or not placing a waste onto
the green list. (3) If green list wastes are re-exported, responsibilities of
the exporting country under other relevant agreements or conventions shall
transfer to the country initiating the re-export, and shall not apply to the
original exporting country. (4) Green list of wastes The green list of wastes
is set out at Appendix 3.
IV. AMBER TIER (1) Conditions Transfrontier movements of wastes under the
amber control system may only occur under the terms of a valid written
contract, or chain of contracts, or equivalent arrangements between facilities
controlled by the same legal entity, starting with the notifier and
terminating at the recovery facility. All persons involved in the contracts,
or arrangements shall have appropriate legal status. Such contracts shall
include provisions for financial guarantees in accordance with applicable
national or international law requirements. Financial guarantees so required
are intended to provide for alternate recycling, disposal or other means of
sound management of the wastes in cases where arrangements for the shipment
and the recovery  operations cannot be carried out as foreseen. These
contracts shall also specify which party to the contract shall assume
responsibility for alternate management of the wastes. These contracts shall
also specify and, as the case may be, require from the consignee the
notification required in 3(a) below (Re-export to a Third Country). In such
cases :
i) the person having actual possession or physical control over the wastes
shall immediately inform the notifier and the competent authorities of the
exporting and importing countries and, if the wastes are located in a country
of transit, the competent authorities of that country;
ii) the person specified in the contract shall assume responsibility for the
adequate management of the wastes in compliance with applicable laws and
regulations including, if necessary, their return. The competent authorities
of the concerned countries shall require that the necessary actions are
carried out within a limited period of time, and shall not oppose, hinder or
prevent the return of those wastes to the exporting country. (2) Control
System Procedures are provided under the amber control system for the
following two cases:
i) transactions which require consent for specific shipments to a
recovery facility; and
ii) transactions involving specific recovery facilities to which the competent
authorities having jurisdiction over such recovery facilities have granted
general pre-consent concerning the reception of certain wastes. Case (1):
Provisions concerning transactions requiring specific consent.

   (a)  Prior to commencement of the transfrontier movement, the notifier
        shall provide written notification to the competent authorities of the
        concerned countries; this notification shall include all of the
        information listed in Appendix 2.A. The competent authorities of the
        exporting country may, in accord with domestic laws, decide to
        transmit this notification instead of the notifier.

   (b)  The competent authorities of the importing country, upon receipt of
        the completed notification referred to in paragraph (a) above, shall
        transmit an acknowledgement to the notifier with a copy to the
        competent authorities of other concerned countries within three (3)
        working days of their receiving the notification.

   (c)  The competent authorities of the exporting and importing countries
        shall have thirty (30) days to object in accord with their respective
        domestic laws to the proposed transfrontier movement. The 30-day
        period shall commence upon issuance of the acknowledgement referred at
        paragraph (b) above.

   (d)  Countries of transit may, in accord with domestic laws, object to the
        transfrontier movement entering their territory.

   (e)  Any objection by any of the concerned countries must be provided in
        writing to the notifier and to the competent authorities of other
        concerned countries within the 30-day period.

   (f)  If no objection has been lodged, the transfrontier movement may
        commence after the 30-day period has passed. Tacit consent, however,
        expires within one (1) calendar year from that date.

   (g)  The competent authorities of the concerned countries may decide to
        provide written consent in a period less than the 30 days. The
        transfrontier movement may commence immediately after all necessary
        consents are received.

   (h)  Written consent or objection may be provided by post, or by telefax
        followed by post. Such consent shall expire within one (1) calendar
        year unless otherwise specified.

   (i)  Each transfrontier movement shall be accompanied by a tracking
        document which includes the information listed in Appendix 2.

   (j)  Within three (3) days of the receipt of the wastes by the
        recovery facility, the recovery facility shall provide a signed copy
        of the tracking document to the notifier and to the competent
        authorities of the concerned countries. The recovery facility shall
        retain the original of the tracking document for three (3) years.

   (k)  In cases where essentially similar wastes (e.g. those having
        essentially similar physical and chemical characteristics) are to be
        sent periodically to the same recovery facility by the same notifier,
        the competent authorities of the concerned countries may elect to
        accept one notification for these wastes for a period of up to one
        year:
i) Such acceptance may be renewed for further periods of up to one year each;
ii) Revocation of this acceptance may be accomplished by means of official
notice to the notifier from any of the competent authorities of the concerned
countries. Notice of revocation of acceptance for shipments previously granted
under this provision shall be given to the competent authorities of all
concerned countries by the competent authorities of the country that revokes
such acceptance. Case (2): Provisions relating to pre-consent by competent
authorities for shipments to specific recovery facilities.

   (a)  Competent authorities having jurisdiction over specific recovery
        facilities may decide not to raise objections concerning shipments of
        certain types of wastes to a specific recovery facility. Such
        decisions can be limited to a specified period of time; however, they
        may be revoked at any time.

   (b)  Competent authorities who elect this option shall inform the OECD
        Secretariat of the recovery facility name, address, technologies
        employed, waste types to which the pre-consent applies, and the period
        covered. Any revocations must also be notified to the OECD
        Secretariat.

   (c)  All proposed transfrontier movements to such facilities shall require
        notification; the notifier shall provide to the competent authorities
        of the concerned countries the information listed in Appendix 2.A.
        Such notification shall arrive prior to the time the shipment is
        dispatched.

   (d)  The competent authorities of the exporting and transit country may, in
        accord with their domestic laws, prohibit or otherwise restrict any
        such transfrontier movement.

   (e)  In instances where competent authorities acting under terms of their
        domestic laws are required to review the contracts referred to in (1)
        above (Conditions), these authorities shall so inform the OECD
        Secretariat. In such cases, the notification information plus the
        contract(s) or portions thereof to be reviewed must arrive seven (7)
        days prior to the time the shipment is dispatched in order that such
        review may be appropriately performed.

   (f)  Paragraphs (i), (j) and (k) of Case (1) shall apply. (3) Additional
        provisions relating to re-export to a third country

   (a)  Re-export from an importing country of wastes subject to the amber
        control system may only occur following notification by a notifier in
        the importing country to the competent authorities of the initial
        exporting country, which shall be acknowledged within three (3)
        working days of receipt. The competent authorities of the initial
        exporting country shall have thirty (30) days to object to the
        proposed movement. The 30-day period shall commence upon issue of the
        acknowledgement referred to above. If no objection has been lodged,
        the transfrontier movement may commence after the 30-day period has
        passed. The competent authorities may decide to provide written
        consent in a period of less than 30 days. The transfrontier movement
        may commence immediately after such consent is received. Written
        consent may be provided by telefax in the first instance, followed by
        post if required.

   (b)  Re-export to a country outside the OECD area shall be fully subject
        to, and in accord with, all international agreements and arrangements
        to which the importing OECD Member country is a party. (4) Provisions
        relating to recognised traders

   (a)  A recognised trader who takes physical custody of the wastes and
        intends to perform any of the operations in Table 2 B of OECD Council
        Decision C(88)90(Final) shall require appropriate authorisation from
        its competent authorities to act as a recovery facility.

   (b)  A recognised trader may act as a notifier or consignee for wastes with
        all the responsibilities associated with being a notifier or
        consignee.

   (c)  The contracts referred to in (1) above (Conditions) shall:
i) clearly identify: the generator of each type of waste; each person who
shall have physical custody of the wastes; each person who shall have legal
control of the wastes; and the recovery facility;
ii) provide that all requirements of this Decision are taken into account and
are legally binding on all parties to the contracts.

   (d)  The notification information called for at Appendix 2A shall include a
        signed declaration by the notifier that the appropriate contracts are
        in place and are legally enforceable in all concerned countries.

   (e)  Competent authorities of the exporting and importing countries may
        under terms of their domestic laws require the notifier to provide
        copies of such contracts or portions thereof.

   (f)  Any information contained in the contracts provided under terms of
        paragraph (e) above shall be held as strictly confidential in
        accordance with, and to the extent allowable by, domestic laws. (5)
        Provisions relating to wastes designated for exchange or accumulation
        prior to submission to recovery operations designated R1- R11 in Table
        2B of OECD Council Decision C(88)90(Final)

   (a)  The notification information included in Appendix 2A shall also
        indicate that exchange or storage is foreseen for the wastes covered
        by the notification.

   (b)  The competent authorities of concerned countries may request that the
        recovery facility where operations designated R1-R11 in Table 2B of
        Council Decision C(88)90(Final) will occur be identified.

   (c)  The tracking document referred to in Appendix 2B shall accompany the
        wastes to the recovery facility noted in paragraph (b) above which
        shall then comply with paragraph (j) of (2) above (Control System).
        (6) Amber list of wastes The amber list of wastes is set out at
        Appendix 4.
V. RED TIER (1) The red list represents certain specific substances which,
even moved in an adequately managed way, nevertheless must be controlled in a
more stringent way than provided for by the amber control system. Wastes
included in the red list shall be subject to the same controls as applied to
wastes included in the amber list (see Section IV), and shall move in accord
with Case (1), except that the importing and any transit countries must
provide written consent prior to commencement of the transfrontier movement.
(2) Red list of wastes The red list of wastes is set out at Appendix 5.
VI. ACTIONS TO PROMOTE HARMONISED IMPLEMENTATION (1) Member countries
individually, and as a group acting through the Review Mechanism established
in this Decision, shall take appropriate steps toward improving the green,
amber and red lists of wastes and toward uniform application of this Decision.
(2) Member countries shall cooperate in efforts aimed at:
i) developing procedures for evaluating the criteria in Annex 2 to determine
to which list a waste should be assigned; and
ii) harmonising procedures for determining whether a waste exhibits any of the
hazardous characteristics listed in Table 5 of OECD Council Decision
C(88)90(Final). (3) Member countries shall cooperate to identify and assess
steps taken toward optimization of environmentally sound and economically
efficient practices for recovery operations of each waste. (4) When Sections
II(4), II(6) and II(7) must be resorted to, Member countries shall cooperate
to ensure that the provisions of this Decision are fully complied with. (5)
The OECD Secretariat shall circulate to all Member countries the information
provided in accordance with this Decision, in particular under Sections II(4),
II(5), II(6) and II(7).
Appendix 1
INTERNATIONAL TRANSPORT AGREEMENTS
1. Chicago Convention:     Convention on International Civil Aviation


(1944) Annex 18 which deals with the
carriage of dangerous goods by air (T.I.:
Technical Instructions for the Safe
Transport of Dangerous Goods by Air);
2. ADR:                    European Agreement concerning the

International Carriage of Dangerous Goods
by Road (1957);
3. ADNR:                   Regulations of the Carriage of Dangerous

Substances on the Rhine (1970).
4. MARPOL Convention:      International Convention for the Prevention

of Pollution from Ships (1973/1978);
5. SOLAS Convention:       International Convention for the Safety of

Life at Sea (1974);
6. IMDG Code:              International Maritime Dangerous Goods

Code; (incorporated into SOLAS since 1985)
7. COTIF:                  Convention concerning the International

Carriage of Goods by Rail (1985);
8. RID:                    Regulation on the International Carriage by

Rail of Dangerous Goods (1985) [Annex I to
COTIF];
Appendix 2
NOTIFICATION AND TRACKING INFORMATION
A. INFORMATION TO BE SUBMITTED UPON NOTIFICATION 1) Serial number or other
accepted identifier of notification form. 2) Notifier name, address,
telephone, telefax. 3) Recovery facility name, address, telephone, telefax,
and technologies employed 4) Consignee if not the recovery facility, address,
telephone, telefax 5) Intended carrier(s) and/or their agents. 6) Country of
export and relevant competent authority 7) Countries of transit and relevant
competent authorities. 8) Country of import and relevant competent authority.
9) Is this a single notification or a general notification? If general, period
of validity requested. 10) Date foreseen for commencement of transfrontier
movement. 11) Certification that any applicable insurance or other financial
guarantee is or shall be in force covering the transfrontier movement. 12)
Designation of waste type(s) on the appropriate list (amber or red) and their
description(s), probable total quantity of each, and an accepted uniform
classification code (such as the IWIC) for each. 13) Certification of the
existence of written contract or chain of contracts or equivalent arrangement
as required by this Decision. 14) Certification by notifier that the
information is complete and correct to the best of his knowledge.
B. TRACKING DOCUMENT Include all information at A. above plus

   (a)  Date shipment was dispatched

   (b)  Shipper (if not notifier), address, telephone, telefax

   (c)  Actual carrier(s)

   (d)  Means and mode of transport including types of packaging

   (e)  Any special precautions to be taken by carrier(s)

   (f)  Declaration by notifier that no objection has been lodged by the
        competent authorities of all concerned countries. This declaration
        requires signature of the notifier.

   (g)  Appropriate signatures for each custody transfer. C. ALL OF THIS
        INFORMATION SHALL BE PROVIDED ON A FORM TO BE DEVELOPED FOR USE WITHIN
        THE OECD AREA D. NOTE. Under terms of domestic legislation, some
        Member countries require information in addition to that included in A
        and B above in order to assess aspects of the
        environmentally sound management of wastes. Affected countries shall
        inform the OECD Secretariat and provide a list of the additional
        information needed.
Annex 2
CRITERIA A) Properties
1) Does the waste normally exhibit any of the hazardous characteristics listed
in Table 5 of OECD Council Decision C(88)90(Final)? Furthermore, it is useful
to know if the waste is legally defined as or considered to be a
hazardous waste in one or more Member countries.
2) Is the waste typically contaminated?
3) What is the physical state of the waste?
4) What is the degree of difficulty of cleanup in the case of accidental
spillage or mismanagement?
5) What is the economic value of the waste bearing in mind historical price
fluctuations? B) Management
6) Is there technological capability to recover the waste?
7) Is there a history of adverse environmental incidents arising from
transfrontier movements of the waste or associated recovery  operations?
8) Is the waste routinely traded through established channels and is that
evidenced by commercial classification?
9) Is the waste usually moved internationally under the terms of a valid
contract or chain of contracts?
10) What is the extent of reuse and recovery of the waste and how is any
portion separated from the waste but not subject to recovery managed?
11) What are the overall environmental benefits arising from the
recovery operations?