Futher clarification on Basel Convention amendment to the classification of plastic waste

06 JULY 2020

From 1 January 2021, amendments to the Basel convention will mean that some plastic waste types currently exported under Article 18 Green list procedures will have to be notified, a process that can take over 3 months before export can take place.

Basel FAQ’s have been published which provide a detailed explanation, but in summary, the changes are:

B3010 will be replaced by B3011 which will list the plastic waste types that can be exported under green list.

The following will not be subject to notification provided it is destined for recycling in an environmentally sound manner and almost free from contamination and other types of wastes:

  • Plastic waste almost exclusively consisting of one non-halogenated polymer including but not limited to PE, PP, PS, ABS, PET, PC, polyethers.
  • Plastic waste almost exclusively consisting of one cured resin or condensation product including but not limited to urea/phenol/melamine formaldehyde resins, epoxy/alkyd resins.
  • Plastic waste almost exclusively consisting of one of the following fluorinated polymers:
    • Perfluoroethylene/propylene (FEP)
    • Perfluoroalkoxy alkanes:
    • Tetrafluoroethylene/perfluoroalkyl vinyl ether (PFA)
    • Tetrafluoroethylene/perfluoromethyl vinyl ether (MFA)
    • Polyvinylfluoride (PVF)
    • Polyvinylidenefluoride (PVDF)
  • Mixtures of plastic waste, consisting of polyethylene (PE), polypropylene (PP) and/or polyethylene terephthalate (PET), provided they are destined for separate recycling of each material and in an environmentally sound manner, and almost free from contamination and other types of wastes.

There is a new entry A3210 that covers plastic classified as hazardous waste including constituents that may be found in plastic waste due to their use as additives in various applications such as lead compounds (used as heat or light stabilisers) and organohalogen compounds (e.g. halogenated organic compounds used as flame retardants);

A new entry Y48 covers plastic waste requiring special consideration:

  • highly mixed plastic waste consignments (except for mixtures of PE, PP and PET), 
  • plastic waste consignments that are contaminated or mixed with other (non-plastic) wastes,
  • consignments made up of polymers of vinyl chloride (PVC), and
  • consignments made up polymers and co-polymers of fluorinated ethylene (PTFE).

All shipments to and from GB of Y48 will be subject to notification controls regardless of the end destination (OECD or non-OECD).

The Agencies  are producing guidance for those applying for 2021 packaging exporter accreditation to ensure that they understand the new requirements. The key change will be the limited scope of mixed plastic waste that can be exported under green list and the interpretation of ‘recycling in an environmentally sound manner’ and ‘free from contamination and other types of waste’. The current requirement is ‘provided they are not mixed with other wastes and are prepared to a specification’, so the new requirement is much tighter, but as has been constantly debated over many years, with no quantifiable position in terms of contamination and given the difficulties of achieving zero contamination with household plastic waste in particular, how will ‘free from contamination’ be interpreted and enforced? 

A recent ruling by the European Court of Justice indicated that contamination was permitted so long as it did not prevent recovery in an environmentally sound manner. This implies that the destination site could be taken into account in assessing whether the waste could be considered green list. However, last Friday, a Court of Appeal considering the conviction of Biffa for attempting to export waste as green list when it should have been prohibited under the Y46 classification, stated categorically that the destination site and opinion of the destination competent authorities was irrelevant in determining whether waste could be green list, only the determination by the Agencies as to whether the waste met green list criteria. Without defining 'small' it stated:

  • If more than a small quantity of contaminants remains, it must follow - regardless of the nature or quality of the contaminants - that the Y46 household waste cannot have been properly sorted and cannot have become a green list waste.
  • To counter the risk which we have identified, it is in principle open to a defendant to adduce evidence with a view to showing that, regardless of the precise destination, the bales of paper waste produced by its sorting process could without further sorting be recycled in an environmentally-sound manner.
  • If the jury find the quantity to be small, then it is necessary for them to consider the nature and quality of the contaminants. In this regard, because the prohibition relates to exports of waste for recovery, we see some force in the appellant's submission that it is relevant for the jury to know whether those contaminants prevent or impede the recovery of the waste, in an environmentally sound manner, as recycled paper. We think there is merit in the point that, absent any such evidence, a jury might assume that the mere presence of a particular contaminant, in however small a quantity, must necessarily mean that the Y46 household waste could not have become B3020 paper. The jury might be tempted to make such an assumption if the contaminant was unpleasant (eg a soiled nappy) or notably incongruous (eg a hot water bottle).
This will leave exporters scratching their heads as to whether any 'contaminants' can be present as even a tiny amount could lead the waste to be considered unsorted. It will be down to the Agencies to determine whether, when they open a container at port awaiting shipment under green list, the material meets their unknown, subjective quantitive or qualitive contamination requirements.