The Hazardous Waste (Control of Export, Import and Transit) (Amendment) Bill ("Amendment Bill")1 was read in Parliament for the first time on 6 January 2020. Its Explanatory Notes states that it seeks, amongst other things, to "amend the Hazardous Waste (Control of Export, Import and Transit) Act ("Act")2 to include plastic waste within the scope of the Act in compliance with Singapore's obligations under the Basel Convention". This update explores the implications of the amendment.

Introduction

Pollution from plastic waste and micro-plastics have become a planetary environmental problem. It is a matter of major concern, not only because of its scale, but also because of its durability hundreds of years and in some cases, toxicity. The ocean now contains an estimated 100 million tonnes of plastic, with 80 to 90% of it coming from land-based sources. If unaddressed, by 2050, there could be more plastic than fish in the oceans by weight. Plastic has also become ubiquitous in land and water ecosystems and has entered food webs and human bodies. Plastic waste became a particularly acute problem for some of the countries in Southeast Asia after China imposed a sweeping ban on the import of many types of waste materials, including plastic waste, for recycling and disposal in January 2018. The ban resulted in such waste materials being diverted to these Southeast Asian countries instead, where along with the not insignificant waste generated domestically, they often ended up being dumped, burned, or making their way into the sea, due to a domestic lack of capacity to manage the deluge of waste. These countries scrambled to strengthen their regulation of domestic and imported waste, but the global shipments of waste continue to seek out countries with weaker regulatory standards or enforcement.

Basel Convention

At its core, the 1992 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal ("Convention") requires exporting states to notify the competent authorities of the importing states and obtain the importing state's prior informed written consent for the import of hazardous and other waste.3 The scope of the Convention was amended during its 14th Conference of the Parties last year to include the transboundary movement of contaminated, mixed, or unrecyclable plastic waste ("Basel Amendments").4 The Basel Amendments will come into force as international law on 1 January 2021. These amendments are part of ongoing global efforts against plastic pollution, including the exploration of a new global convention on plastic waste and the regulation of plastic pollution from ships.

Implementing the Basel Amendments

The only relevant amendment sought by the Amendment Bill is to change the definition of other waste from its current definition in s 4 of the Act as,

(i) household waste; or

(ii) residues arising from the incineration of household waste, but hazardous and other wastes do not include wastes which derive from the normal operations of a ship and radioactive wastes.

to,

waste that belongs to any category contained in Annex II to the Basel Convention.

With this amendment, the definition of other waste in the Act now adopts by reference, the definition of other waste in the Convention. The Amendment Bill has not proposed to amend the definition of hazardous waste under the Act, as the relevant definition of hazardous waste under the Act is already the same as that under the Convention.

The Amendment Bill is expected to be passed in June 2020 and to come into force in October 2020.5

In fact, the substantive change of adding plastic waste to the scope of the Act is not found in the Amendment Bill itself, but in the changes directly made to the Annexes of the Convention, as detailed below.

The Basel Amendments

"Other Waste"

Firstly, the Basel Amendments amend Annex II of the Convention by creating a new category of waste, Y48. Under this category, most plastic waste which is subject to transboundary movement will be considered other waste for the purpose of the Convention, unless it falls within one of the following exceptions:

(a) it is hazardous waste (in which case it is still subject to control under the Convention);

(b) it almost exclusively consists of one non-halogenated polymer, or one cured resin or condensation product, or one fluorinated polymer specified in Y48, 6 provided it is destined for recycling in an environmentally sound manner and almost free from contamination and other types of wastes; or

(c) it is a mixture of plastic waste, consisting of polyethylene ("PE"), polypropylene ("PP") and/or polyethylene terephthalate ("PET"), provided it is destined for separate recycling of each material and in an environmentally sound manner and almost free from contamination and other types of wastes.

Other waste comes within the scope of the Convention and is regulated in exactly the same way as hazardous waste under the Convention; only waste that is neither hazardous waste nor other waste is excluded from the scope of the Convention.

"Hazardous Waste"

Secondly, the Basel Amendments amend Annex VIII by creating a new category of waste, A3210, comprising plastic waste containing or contaminated with any of the hazardous waste constituents set out in Annex I of the Convention. Such plastic waste which is subject to transboundary movement is prima facie deemed to be hazardous waste and is subject to the control of the Convention, unless it does not exhibit any of the hazardous characteristics set out in Annex III of the Convention, such as being explosive, flammable, poisonous, infectious, corrosive, or toxic.

Non-Hazardous Waste

Thirdly, the Basel Amendments amend Annex IX of the Convention by creating a new category of waste, B3011,7 comprising plastic waste that almost exclusively consists of one non-halogenated polymer, or one cured resin or condensation product, or one specified fluorinated polymer, 8 provided it is destined for recycling in an environmentally sound manner and almost free from contamination and other types of wastes. Such waste is prima facie deemed not to be hazardous waste under the Convention unless it contains any material set out in Annex I of the Convention to an extent causing it to exhibit a hazardous characteristic set out in Annex III of the Convention. As noted above in respect of the amendment to Annex II, plastic waste in this category is also not other waste, and therefore falls outside the scope of the Convention.

Coming into Force

Once the Convention comes into force as international law on 1 January 2021, the definition of hazardous waste under the Act, which follows the definition of hazardous waste under the Convention, will automatically adopt the amendments to Annexes VIII and IX of the Convention. Provided the Amendment Bill has also been passed and come into force, the definition of other waste under the Act, which adopts by reference the definition of other waste under the Convention, will also automatically adopt the amendments to Annex II of the Convention.

Practical Implications

For all plastic waste that is hazardous waste or other waste, a person will not be able to import or export such waste or bring such waste into Singapore in the course of transit, unless he holds an import, export, or transit permit (as the case may be) authorising him to do so, and has acted in accordance with the permit.9

As noted in Annex I of the Convention, the categories in Lists A and B of Annexes VIII and IX respectively are only intended to "facilitate" the application of the Convention. Ultimately, what is hazardous waste under the Convention is defined by reference to the waste streams or waste constituents in Annex I and hazardous characteristics in Annex III of the Convention.10 This means that in practical terms, plastic waste is considered hazardous waste only if it contains or is contaminated with an Annex I material, to an extent as to cause it to exhibit an Annex III characteristic. In practical terms, the amendments to Annexes VIII and IX are therefore relatively less significant. Instead, the more significant practical impact of the Basel Amendments is the expansion of other waste to include most plastic waste.

Plastic Waste Exports

Singapore recycled 4% of its 949,300 tonnes of plastic waste generated in 2018. Of this 4%, 93% was exported for recycling.11 Once the Amendment Bill and Basel Amendments come into force, only shipments of individual nonhalogenated polymers, resin or condensation products or specified fluorinated polymers (or mix of PE, PP, and/or PET), that are sorted (or in the case of a PE/PP/PET mix, destined to be sorted), cleaned, and uncontaminated, and destined for recycling can be freely traded globally. All other types of plastic waste will require the importing country's prior informed consent before they can be exported. This will likely raise the cost of exporting most types of plastic waste for recycling.

E-waste and Plastic Packaging

The increased cost of exporting plastic waste may be passed to those domestically responsible for managing such waste. Taking into account the impending duty imposed by the Resources Sustainability Act 2019 ("RSA")12 on qualifying producers of regulated electrical or electronic products to join licensed producer responsibility schemes, and to collect and dispose unwanted regulated non-consumer e-waste,13 affected producers may wish to explore alternative production designs, methods, and materials to avoid or reduce the additional cost of exporting the plastic waste in their products when the Amendment Bill and Basel Amendments come into force.14

Qualifying producers of specified packaging containing plastic will also have to consider the impact of the changes to the Act and the Convention when submitting to the National Environment Agency their plan to reduce, re-use or recycle the packaging under the RSA.15

Concluding Remarks

The linear economy continues to be a major threat to people and planet. The Basel Amendments and their implementation by Singapore through the Act are welcome steps to force the internalisation of the perils of contaminated, mixed, or unrecyclable plastic waste instead of externalising them to poorer countries less capable of dealing with them. The transition to a circular economy cannot come too soon.