Minding the Rules

Surely every public-relations-conscious company anywhere in the world would wish to proclaim that it is soundly managed from an environmental standpoint. Proclaiming is one thing, but proving that one’s company is environmentally soundly managed is not so easy, yet it can be done.

Companies may more easily prove this if they are situated in any of the 30 industrialized countries that are members of the OECD (Organization for Economic Co-operation and Development). Companies in countries that are not members of that club can still use the OECD criteria to demonstrate that they are environmentally soundly managed.

The question is, though, whether measuring all companies against the same measuring stick is fair. After all, Article 11 of Rio Declaration Agenda 21 states, "Environmental standards, management objectives and priorities should reflect the environmental and developmental context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries."

Questions of this nature are moving higher up the international agenda in particular with respect to recovery and recycling operations in non-OECD countries. Pressure will increase on companies to prove they are environmentally soundly managed, especially if they procure their industrial feedstock on the international market. This is in light of the current tendency toward nationalism and protectionism, which reinforce arguments that call for companies to be given preferential access to recyclables by their own governments.

The concept of environmentally sound management (ESM) has been on international policy agendas for nearly 20 years now. ESM may have originated in the late 1980s with the United Nations Environment Program’s Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal dates from 1989 and entered into force in 1992. By May 2009 there were 172 parties to the Basel Convention out of the 192 member states of the United Nations. The most notable non-party is the United States of America.

At the turn of the millennium, the OECD began to formulate its own concept of ESM for its 30 member countries and concluded with its Council Recommendation in June 2004 on the environmentally sound management of waste. This club of industrialized countries agreed on precise criteria for ESM.

The OECD member countries are Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States.

The Basel Convention defines "Environmentally sound management of hazardous wastes or other wastes" 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 effects which may result from such wastes." The convention is not concise in setting out its ESM criteria.

First, it is important to recognize that the scope of the Basel Convention is defined as hazardous wastes and what is termed "other wastes," which are household wastes and residues from incinerators that are listed especially on its Annex II. While the vast majority of recyclables are outside the scope of the Basel Convention, the convention casts a long shadow over them.

The Basel Convention text places obligations on the countries that are parties to the convention. Those countries have to ensure "the availability of adequate disposal facilities for the ESM of hazardous wastes and other wastes" to the extent possible within their countries.

The convention demands countries cooperate with each other to improve and achieve ESM. That cooperation may include harmonization of technical standards and practices for the adequate management of hazardous wastes and other wastes. Also included is the development and implementation of new low-waste and non-waste technologies and the improvement of existing technologies to eliminate hazardous wastes and other wastes generation as far as is practicable. Concepts of effectiveness and efficiency are included as well as the economic, social and environmental effects of new or improved technologies.

Besides the Basel Convention text itself, many technical guidelines have been produced by the convention’s working groups on certain materials, for example plastic scrap and used tires, or on certain recovery or disposal operations, for example "Specially Engineered Landfill" and "Incineration on Land," which could be relevant regarding any residual material coming from other operations taking place in the same country. However not all these technical guidelines are used by every country, sometimes because certain countries have equivalent requirements.

The Basel Convention parties were to decide on environmentally sound management criteria at their first meeting. That led to the "Guidance Document on the Preparation of Technical Guidelines for the Environmentally Sound Management of Wastes Subject to the Basel Convention." It also sets out certain ESM criteria.

The criteria to assess ESM include that sites or facilities are authorized and of an adequate standard of technology and pollution control to deal with the hazardous wastes. Facility operators have to monitor the effects of their activities and take appropriate action where monitoring gives indication that the management of hazardous wastes have resulted in unacceptable emissions. The persons involved in the management of hazardous wastes have to be capable and adequately trained.

The obligation on countries to avoid or minimize waste generation and to ensure the availability of adequate facilities for their waste is reiterated from the convention itself. Countries also have to identify and quantify the types of waste being produced nationally; use best practices to avoid or minimize the generation of hazardous waste, such as the use of clean methods; and provide sites or facilities authorized as environmentally sound to manage its wastes, in particular hazardous wastes. International cooperation is again promoted.

In June 2004 the OECD adopted a Council Recommendation on the Environmentally Sound Management of Waste—C(2004)100. Though not binding, member countries have agreed to it. It includes a set of six core performance elements (CPEs) for companies to implement in their EMS.

The OECD ESM applies to all kinds of waste, whether hazardous or non-hazardous, and to recycling, recovery and disposal facilities, especially to those facilities that trade internationally in material. The system does allow for the size of the enterprise, especially the situation of small and medium enterprises (SMEs). Nevertheless, it is the view of the Bureau of International Recycling (BIR) that competent authorities in countries with high protection of human health and the environment may desire that material exported from their territories are recycled in facilities that are operated under similar ESM standards as in their own facilities. For OECD Countries, the OECD ESM criteria may likely be taken into account regarding exports to non-OECD Countries.

The BIR has developed Tools for Environmentally Sound Management in such a way that they incorporate the OECD’s six core performance elements within the ISO 14000 Environmental Management System. It is done that way so that, with minimum manpower and funds, an EMS program can be implemented in steps. By using those tools to implement an EMS program according to ISO 14000, it also will include compliance to the OECD requirements. It is freely available at www.bir.org/Publications/ESM Tools in English and Spanish and will soon be published in French.

The OECD recognizes "Tailor Made" EMS programs, such as BS8555 in the United Kingdom; the EFB/SWAM system widespread in Germany, Austria, the Czech Republic and the Slovak Republic; and the Recycling Industry Operating Standard (RIOS) is a management system integrating environmental, quality and health and safety standards offered by the Institute of Scrap Recycling Industries Inc. (ISRI), Washington, D.C., in the United States.

The six OECD core performance elements are:

Regarding the Basel Convention obligations on exporting countries to prevent hazardous and other waste shipments if they have "reason to believe" the material will not be treated in an ESM facility, some lawyers have concluded from the construction of ESM in the convention that, except where the lack of proper facilities is notorious, the exporting state’s conclusion would be based on relevant information received from the importing state. The prospective state of import would have the parallel obligation to believe that those materials would not be managed in an environmentally sound manner. Under such uncertainties, a company desiring access to recyclables would be wise to seek ESM status itself.

EMS integrating the OECD core performance elements that allow for third party audits, registration by certifying bodies and certification allow companies to demonstrate to the world that they are soundly management from an environmental standpoint. Companies can be proactive and take control of their own destiny for international trade by demonstrating compliance with the OECD criteria whether in or outside the 30 OECD countries.