“The Guidance Document must bear in mind that the Basel Convention makes no exceptions based on business practices. For this reason the exemption from normal Basel procedures for warranty returns should not be allowed without an amendment to the Convention itself. Otherwise we set a precedent where Guidelines alter the letter of the rules and intent of the Convention.”
“While the MPPI and PACE working groups have agreed to provide an exception for Warranty material, this in BAN’s view is now proving to be unworkable. Moreover it is on the face of it illegal. The Basel Convention makes no exception for business arrangements like Warranties but rather establishes its definitions of what is a waste or hazardous waste based on inherent characteristics or recycling destinations. Since proposing this exception, we have seen industry trying very hard to propose other loopholes and expand this exception to the point where very large amounts of hazardous waste electronics could be exported. This is unacceptable. It is not the business of a guideline to rewrite the Basel Convention. BAN strongly urges that this exemption that was agreed in the industry dominated discussions of PACE, MPPI be removed. It is not legally defensible.”
From p. 1 and 9 of BAN response to Basel Secretariat. 2011. ‘Draft Technical Guidelines on Transboundary Movement of E-Waste, in Particular Regarding the Distinction between Waste and Non-Waste (Version: 21 February 2011 )’. http://archive.basel.int/techmatters/code/comments.php?guidId=78.
“Rather, the proposed exemptions appear to imply value judgments or additional criteria that are not found in the Basel Convention and are thus not acceptable in a guideline on Basel implementation.
We will take these each in turn:
- Equipment under warranty exported for repair with the intention of re-use
This exemption existed (with more qualification) in the PACE and MPPI guidelines. However those negotiations did not enjoy the widespread participation of Basel Parties, particularly from developing countries and were heavily skewed toward certain business stakeholder interests. The present guideline effort is an opportunity to close this loophole and provide greater legal clarity and unambiguous implementation of the Basel Convention. The loophole (especially as loosely defined above) could be quite large as a warranty can be written for anything and again exports for repair usually entail the replacement of hazardous parts such as circuit boards. The exemption has no basis in the Convention. We strongly urge that guidance documents are not used to “amend” the Convention. Very simply, these exports either need to be shown to be fully functional or non- hazardous to fall outside of Basel Convention rules.
- Used equipment for professional use exported for refurbishment or repair with the intention of re-use
This exemption exists, as does the following one, due to a last minute industry lobby which injected this into the WEEE recast in the European Union with the help of Germany. However, despite the EU acceptance of this, it is absolutely inappropriate as worded, as it fails to limit or define “professional use”. Most IT equipment on earth today can be considered equipment for “professional use” and thus the exemption is open-ended. This exemption does not exist in the PACE and MPPI guidelines. Again it has no basis in the Basel Convention and as such is illegal. Very simply these exports either need to be shown to be fully functional or non-hazardous to fall outside of Basel Convention.
- Used equipment for professional use exported for root cause analysis
This exemption BAN has more sympathy for if it is tightly defined and does not result in hazardous parts being discarded in the recipient country. However, this exemption does not exist in the PACE and MPPI guidelines and as worded above it appears to be yet another unsupported exemption from Basel definitions.
- Equipment under leasing
This exemption has been argued for by certain Original Equipment Manufacturer associations for a long time now. Yet it was never accepted in the PACE and MPPI context. Off-lease equipment can amount to a massive volume of e-waste in the marketplace today. There is no scientific basis for exempting it. There is no legal basis in Basel for exempting it. Very simply these exports either need to be shown to be fully functional or non-hazardous to fall outside of Basel Convention. However BAN does believe that a demonstration of functionality in the leasing context need not require a functionality test but might be accomplished in a manner of enforceable leaser declarations of the material having been working at the time of decommissioning.”
From p. 2-3 of BAN response to Basel Secretariat. 2012. ‘Draft Technical Guidelines on Transboundary Movement of E-Waste, in Particular Regarding the Distinction between Waste and Non-Waste (Version 8 May 2012)’. http://www.basel.int/Implementation/Ewaste/TechnicalGuidelines/DevelopmentofTGs/tabid/2377/Default.aspx.
“ BAN does not believe that this is legal under the Basel Convention. The Parties cannot in our view so clearly derogate from the Basel requirements as warranties or other business arrangements are not recognised under the Basel Convention. Hazardous waste is dfeined [sic] by intrensic [sic] hazardous characteristics not business arrangements. That was never the intention of the Basel rules to provide sucn [sic] an exemption.”
From p. 10 of BAN response to Basel Secretariat. 2012. ‘Draft Technical Guidelines on Transboundary Movement of E-Waste, in Particular Regarding the Distinction between Waste and Non-Waste (Version 8 May 2012)’. http://www.basel.int/Implementation/Ewaste/TechnicalGuidelines/DevelopmentofTGs/tabid/2377/Default.aspx.