“The Package Concept of the 26B Exemption
It is understood that exercising exemptions as is being proposed in 26b is to exercise derogation from the norm. The norm in Basel as articulated in the first pages of the guidance document prior to 26b, is that used equipment that is non-functional is considered to be a waste and when hazardous, is subject to the control procedures and obligations of the Basel Convention. Derogating from that norm, in certain circumstances is thus an especial procedure and indeed a privilege granted by the Parties. Such a privilege must not be taken lightly by Parties nor by companies benefitting from the procedure. The 26b exemption is designed to foster environmentally sound repair and reuse where it is demonstrably clear that there is a net gain for the environment and human health.
By embarking on the proposed exemption the Parties are in fact doing something rather dangerous. They are giving up jurisdiction and control over one fraction of the most traded and potentially dangerous waste stream subject to transboundary movement today. Again it must be understood that declaring something a non-waste means that it falls outside of the Convention and all of its obligations. Such a move should never be taken lightly and only should be done if it can be assured that:
. a) it applies to only a small fraction of the e-waste stream and in carefully controlled conditions
. b) the trade provides a net gain for the environment through guaranteed significant reuse of the product.
. c) it applies only to those players that can demonstrate a high level of responsibility and willingness to be held accountable
. d) it is accomplished under new modalities of accountability in lieu of the convention’s prior informed consent regime.
. e) it respects the Basel Ban Amendment which at its essence does not accept that hazardous waste emanating from Annex VII countries will be sent to and remain in non-Annex VII countries.
It seemed that the only way to dramatically limit the exemption to the most responsible actors, and a very small subset of this dangerous waste stream, while creating alternative methods of accountability, and respecting the Ban Amendment — a package of non-optional criteria were needed. Each criterion or condition provides a needed layer of protection to substitute for the lost safeguards of the Basel Convention and to respect the intent of the Ban Amendment. Each layer is needed to filter out traders that might seek to externalize costs rather than internalize them. The layers filter out wastes that do not possess characteristics of a safe, serious, significant second life.
Without each of these conditional layers, the proposal fails as a compromise as it fails to adequately safeguard all stakeholders, and in particular developing countries, their populations, and immediate environment.”
From p. 2-3 of BAN response to Basel Secretariat. 2014. ‘Draft Technical Guidelines on Transboundary Movements of Electronic and Electrical Waste and Used Electrical and Electronic Equipment, in Particular Regarding the Distinction between Waste and Non-Waste under the Basel Convention (Draft of 20 November 2014)’. http://www.basel.int/Implementation/Ewaste/TechnicalGuidelines/DevelopmentofTGs/tabid/2377/Default.aspx.