“All listed wastes have the opportunity to be classified as non-hazardous based on a showing that they do not express an Annex III characteristic.”

From p. 1 of response by the United States 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.

The reference to "Annex III" in the quotation above is a reference to Annex III of the Basel Convention. Annex III provides a list of characteristics that determine substances to meet the condition of hazardous. Annex III contains a provision for testing that opens the Annex to wide interpretation. The subsection of Annex III called "Tests" reads in part, "[t]he potential hazards posed by certain types of wastes are not yet fully documented; tests to define quantitatively these hazards do not exist. Further research is necessary tin order to develop means to characterise potential hazards posed to man [sic] and/or the environment" (Basel Convention, Annex III). This section of Annex III also notes that "[m]any countries have developed national tests" (Basel Convention, Annex III) to determine hazardous characteristics. The net results are an ambiguity around determining the status of substances as hazardous and non-hazardous. If tests do not exist or are not universally agreed upon, the argument can be made that given substances may not meet the threshold of hazardousness are thus outside the jurisdiction of the Basel Convention. Also, the reference to 'national tests' implies that individual signatories of the Basel Convention may come to different conclusions about the hazardousness (or lack there of) of a given substances, thus leading to national definitions supplanting definitions with the Basel Convention.