REGIONAL MANAGEMENT OF HAZARDOUS SUBSTANCES The case of EEC, OECD and OAU
Part 1
The European Community[1] (EC) responded positively to the worldwide environmental problems of the 1970s. This response aimed to control pollution and achieve better management of the community’s natural resources.
The horrifying Seveso incident of 1976 made the European Community members realize the consequences of improper treatment of hazardous substances and, in turn, paved the way for stricter environmental regulations. The policies of the European Community are largely in the form of commission directives. These directives are employed by the European Community Council to harmonize national laws, regulations or administrative actions of member states which hinder the functioning of the common market.
In 1976, the European Economic Community (EEC) issued a directive establishing a single set of rules for cosmetics. Article 1 of the directive defines a “cosmetic product” as
any substance or preparation intended for placing in contact with the various external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or principally to cleaning them, perfuming them or protecting them in order to keep them in good condition, change their appearance or correct body odors. Cosmetic products may be marketed only if their packaging, containers, or labels bear the following information in indelible, easily legible and visible lettering: Under the directive, member states are expected to take all measures necessary to ensure that only cosmetic products conforming to the composition and labeling criteria established are marketed. The Directive on Toxic and Dangerous Waste (1978),[2] relevant to our study, defines toxic and dangerous waste as “any waste containing or contaminated by the substances or materials ... (listed in Table 1) ... of such a nature, in such quantities or in such concentrations as to constitute a risk to health or the environment.”
This directive lays down common rules and provisions in respect to the major problems of the production and disposal of toxic and dangerous waste. An annex lists 27 important groups of toxic and dangerous substances, which are considered to be dangerous. The directive prohibits the uncontrolled discharge, uncontrolled transport and uncontrolled treatment and dumping of toxic and dangerous waste. Hence, transporters of wastes are required to follow systematic rules of appropriate labeling indicating the type composition and quantity of waste. In addition, the directive provides rules for the notification of sites at which toxic and dangerous waste is or
has been dumped and the identification of such waste. The other provisions are:[3] On receiving the report, the commission circulates it to other member states and reports to the council and European Parliament every three years on the application of the directive. The directive has been incorporated into the national laws of many member states and has been in force since 1980.
The EEC’s Sixth Amendment
In 1979, the Council of Ministers passed the Sixth Amendment to the 1967 Directive controlling dangerous substances. The Sixth Amendment
revised the scope, notification, packaging requirements and implementation provisions of the 1967 directive with a view to effectively regulating and collecting information on the problems of trading hazardous substances. The scope of the amended directive covers all chemicals manufactured within EEC states and intended for export to foreign destinations. However, the provisions of the directive do not cover medicinal products, narcotics and radioactive substances, transport of substances by common carrier, certain aerosols, explosives, foodstuffs, waste substances and materials in transit that are under customs’ supervision.[4] The definition of “substances” under the amended directive has been largely expanded so as to cover chemical elements and compounds in either a manufactured or natural state.
Article 5 (2) of the Sixth Amendment (1979) effectively limits the premarket notification provisions for substances, which entered the market after 18 September 1981. Under the notification process, the manufacturer (of a substance) must submit to an EEC member state a proposed classification, labeling and analysis of the substances’ adverse effects, precautions needed and other technical information at least 45 days before introducing a new substance to the market. The member receiving such notification must forward a copy of that information and any related studies to the commission for distribution to the other member states of the EEC, for examination. The original member state has 45 days to oppose the marketing of the substance. The notification need not cover small amounts of substances that are to be used only for market or laboratory research and certain other special compounds.
A “Competent Authority” appointed under Article 7 of the Sixth Amendment (1979) will examine new substance applications. Redundant testing is avoided by providing that approval by one member state constitutes approval in each member state. Also, the procedure laid down in Article 21 should be followed when confirming or amending proposals for classification, labeling and the recommended precautionary measures provided in Annex VII. Furthermore, the member states and the commission should ensure confidentiality of information concerning exploitation or
manufacturing.[5] A disagreement between any two member states on matters covered by the directive may be resolved by the commission.
Classification and packaging requirements are set out in Articles 13 through 18. If a manufacturer improperly classifies, packages or labels a substance, it will be banned from the market, despite an exemption from the notification procedures.
Articles 20, 21 and 22 deal with the implementation process. Under these provisions, no member state may restrict from its home market any dangerous substance once it has fulfilled the requirement of the amendment. This provision practically eliminates non-tariff trade barriers.
The Seventh Amendment (1992) is considered another important amendment. Though not phenomenal, it introduced the concept of risk assessing any new substances. Also, the concept of “sole representative” was added to the notification system. The Safety Data Sheet as a hazard communication facility for the professional user was also added.
The Seveso Directive
The Council of the European Communities in 1982 adopted a directive, which is popularly known as the Council Directive on Major Accident Hazards of Certain Industrial Activities. The directive has two goals:
- 1. To prevent major accidents caused by industrial activities and to limit the effects of such accidents on workers, adjacent populations and the environment.
- 2. It requires industrial facilities handling dangerous substances to identify existing major hazards, to take measures to mitigate their effects and to supply workers with the information, training and equipment needed to ensure their safety.
The directive provided for a system of alarm and notification procedures when incidents involving dangerous chemicals occurred. It addressed problems facing process installations and included storage and transportation of chemicals in its definition of industrial activity. The directive creates a
two-tiered regulatory framework based on the nature and quantity of dangerous substances handled and the type of activity conducted at a given plant.[6] Under the regulatory scheme, industrial facilities handling dangerous substances above a certain quantity must make available to local authorities upon request, a record identifying potential major hazards at the plant and safety measures taken to mitigate their effects and supply workers with the information, training and equipment needed to ensure their safety.
The directive, observes Arline M. Sheehan, “establishes an affirmative duty on chemical plants to take preventive measures to abate risk. Further, facilities handling particularly hazardous chemicals must inform adjacent communities of plant safety measures and appropriate community response procedures.” However, one of the directive’s major limitations is that the implementation of the mandatory provisions was by-and-large left to the discretion of each member state. As a result, member states are hesitant to fully implement it.
Despite such drawbacks, this directive has been well accepted in most EU nations. The latest amendment (published 24 July 2012) was adopted by the European Union and took into consideration the changes in the Union legislation on the classification of chemicals. It also increased rights for citizens to access information and justice, known as SEVESO III, which came into
force on 1 June 2015. The Seveso III Directive addresses the consequences of the regulation of major accident hazard sites of the repeal of the Dangerous Substances Directive and Dangerous Preparations Directive (implemented in the United Kingdom as the CHIP Regulations) and their replacement with European Regulation (EC) No. 1272/2008 on classification, labeling and packaging of substances and mixtures implemented in the United Kingdom as the CLP Regulation.[7] The implementation of Seveso III is dependent on the Control of Major Accident Hazards (COMAH) Regulations 2015 and through planning legislation which is the responsibility of the Department for Communities and Local Government (CLG) and the devolved administrations in Scotland and Wales.
The directive of 1996 was considered highly successful in putting a stop to the major accident hazards that involved dangerous substances. However, increasing developments in technology led to some lacunae in the directive, and it is in the wake of this same concern that the new amendment was brought into action. In order to not transgress on national rights, a condition was also introduced wherein several activities were defined as exceptions provided that they warranty the same level of protection under any national or other union law.
Another significant development was a recommendation adopted by the Council of Europe in 1983. The recommendation calls upon member states to
revise, if necessary, their health aid programmers, in order to assist developing countries with drug evaluation and improved access to useful drug information.
An important directive relevant to our study was adopted by the European Communities in 1984 (the Final Directive). This directive reduces the risks posed by transfrontier shipments of hazardous waste and deals with such shipments moving into and out of the European Community. Prior to this action by the council, the member states of the community had dealt with
transfrontier shipments of hazardous waste on the basis of ad hoc bilateral agreements.[8] But these agreements did not provide a satisfactory method of tracking and controlling transfrontier shipments of hazardous waste. To overcome these difficulties, the 1984 directive provides for a compulsory notification and tracking system for hazardous waste shipments made (1) between member states, (2) from any of the member states to countries outside the community (third party states) and (3) from a country outside the community to a member state. The Final Directive of 1984 adopts the definition of hazardous waste found in the Directive on Toxic and Dangerous Waste.
Notification provisions
Article 3(1) of the Final Directive requires a holder of waste who intends to ship it or have it shipped from one Member State to another, to have it routed through one or more Member States or to ship it to a Member State from a third State, (to) notify the Competent Authorities of the Member States concerned. The Authorities which must be notified include governmental Authorities not only of the Member State to which the waste is to be shipped, but also of the Member State in which the waste originates and any Member State through which the waste shipment will pass. When the waste is to be shipped outside of the community, the holder of the tests is required to notify “the third State of destination a where applicable, the third State or States of transit and the Competent Authorities of the Member States concerned.”
Notification is to be provided by means of a “Uniform Consignment note,” and is divided into the following five parts: (1) notification information; (2) acknowledgment by member state s; (3) information on transport arrangements; (4) acknowledgment of receipt of the waste by the
ultimate disposer and (5) customs endorsement (for waste shipped outside the community).[9] The Final Directive requires that the holder of the waste provide the member states concerned with detailed information including, inter alia, the identity of the procedures of the waste; provisions for routing;
damage to third parties; safety measures and compliance with member state transport regulations; and the existence of a contractual arrangement with the consignee of the waste.
The consignee “should possess adequate technical capacity for the disposal of the waste ... under conditions presenting no danger to human health and the environment.” If the waste is to be “stored, treated or deposited” within the community, the consignee of the waste must hold a permit issued in accordance with previous waste-related directives.
Objections by member states to waste shipments
Article 4 (1) of the Final Directive provides that “transfrontier shipment of hazardous waste covered by the directive may not be executed before the Competent authority of the member state ... has acknowledged receipt of notification.” The member state of the destination must forward to the holder of the waste an acknowledgment of receipt of notification or objection to the shipment within one month of receiving the notification. The member state also sends a copy of the acknowledged consignment note to the ultimate disposer of the waste and to the Competent Authorities of the other member states involved. If the holder receives an acknowledgment without objections, or an acknowledgment of satisfaction of objectives,
the holder of the waste must complete the note and send copies to the Competent Authorities of the relevant member states and to third party states before the shipment is carried out.[10] Within 15 days after receipt of the waste, the consignee must forward a completed copy of the consignment note to the holder of the waste, and to the Competent Authorities of both member states and third states concerned.
Objections to the shipment may be made by the member state for which the shipment is destined and by the member state in which the waste is generated. But objections must be “substantiated” on the basis of national environmental safety or health laws or regulations that are not inconsistent with the directive or other community law. If the holder satisfies objections made by a destination member state, then the member state is obligated to forward an immediate acknowledgment that the shipment is approved.
Packaging and labeling requirements
The Final Directive requires that transfrontier waste shipments be “properly packed.” The containers must be labeled with information on the nature, composition and quantity of the waste, as well as the telephone numbers of persons who may be contacted for instructions or advice at all times during shipment. The shipment must also be accompanied by accident instructions. Both the accident instructions and the labeling information must be in the “languages of the member states concerned.”
Requirement that waste be shifted to a permitted facility
The Final Directive sets up a complete “closed cycle” shipment tracking system by combining the requirement that waste be sent to a permitted facility with the requirement that a completed copy of the consignment note be sent to appropriate governmental authorities when the shipment reaches its destination. If this system is properly implemented, member states should
be able to monitor transfrontier waste shipments closely to ensure that each shipment reached its permitted facility destination.[11] Liability provisions Article 11 (1) of the Final Directive, dealing with liability provides that, without prejudice to national provisions concerning civil liability, irrespective of the place in which the waste is disposed of the producer of the waste shall take all necessary steps to dispose of or arrange for the disposal of the waste so as to protect the quality of the environment in accordance with (the Directive on Waste and the Directive on Toxic and Dangerous Waste) and with this Directive.
Under Article 11 (2), “member states shall take all necessary steps to ensure that the obligations laid down in article 11(1) are carried out.” The objectives of these two provisions, observes Mary Elizabeth Kelly,
is to force member states to adopt legislation or regulations that would, at a minimum, require a producer of waste operating within a member state to provide an assurance that its waste is disposed of properly, regardless of the country in which it is ultimately deposited.
In 1988, the European Commission adopted a proposal for a new council directive designed with a view to amending both the Waste Directive of 1975 and the Transfrontier Shipment Directive of 1984 and to replace the
Directive on Toxic and Dangerous Waste (1978). The proposal, in addition to expanding the definition of wastes, calls upon member states to develop public plans for the disposal of wastes, covering types, qualities, methods, authorized sites, disused tips and sites for surveillance. It calls for the creation of a community data bank, designed to facilitate the tracking of waste around the community by requiring regular notice on details of all authorized treatments.[12] On 1 September 1989, the commission issued its proposal for a council directive on civil liability for damages caused by wastes.
The grievance redressal provisions of the proposed directive permit private individuals and public bodies to seek remedy. If the directive comes into force, a private plaintiff may bring a suit to prevent an environmental injury or obtain an injunction ordering the restoration of the environment to its natural state although the plaintiff has not suffered a direct injury. In addition, common interest group associations also have a right under the directive to prohibit or seek cessation of acts giving rise to similar injuries, where this right is granted under member state law.
The proposed directive would impose joint and several liabilities where “two or more producers are liable for the pine damage or the same injury to the environment.” Under this provision, successive handlers of wastes could be made liable. In essence, everyone who has handled hazardous wastes from their creation to their proper disposal is answerable, and they must ensure proper treatment.
Under the proposed directive a plaintiff may recover damages due to death, physical injury or property damage. In addition, the plaintiff may also bring a suit for injury to the environment. Furthermore, suits brought under personal injury or property damage shall not be subject to liability ceilings.
Defenses available Under the proposed directive, the defendant may take the plea that “the damage or injury to the environment resulted from force majeure as defined in community law.”[13] Another ground of defense is that of contributory negligence. Under this ground “the liability of the producer may be reduced or disallowed, when having regard to all the circumstances, the damage is caused both by the waste and the fault of the injured party or of any person for whom the injured party is responsible.”
Article 9 of the proposed directive (1989) puts a time limit of three years for all suits. Hence actions for recovery of damages must be initiated within three years from the date when the plaintiff became aware of the damage or the injury to the environment and of the identity of the producer.
On 13 June 1990, the European Parliament recommended a few amendments to the proposed Waste Liability Directive, calling for a mandatory insurance scheme and the creation of a European fund for compensation for damage caused by wastes. Under the amendments the waste producers would finance the European Fund. Another amendment recommends suggestions for the passing of liability on the insurers of waste producers in the event of the waste producers facing dissolution, liquidation or insolvency.
Thus, the European Community has been very active in dealing with the problems faced by hazardous substances. Some of the other major directives adopted by it include:
- 1. Council Directive on the approximation of provisions on the classification, packaging and labeling of dangerous substances, 1967.
- 2. Council Directive on the approximation of the laws of the member states relating to detergents, 1973.
- 3. Council Directive on pollution caused by dangerous substances discharged into the aquatic environment of the community, 1976.
and
Legal effect and enforcement of a directive
Most of the environmental directives are adopted by the European Community under Articles 100 and Article 235 of the Rome Treaty. Once a directive is passed by the council, the member states are bound to implement its provisions fully through national legislation or administrative action. Moreover, at the community level, it is the duty of the commission to examine the provisions of national laws, regulations and administrative actions adopted by member states. To ensure the implementation of community legislation, the member states must provide the commission with the necessary information to perform this task. Further, Article 169 of the EEC Treaty provides that if the commission considers that a member state has failed to fulfil any of its obligations under this treaty, it shall give a reasoned opinion on the matter after requiring the state to submit its comments. If such state does not comply with the terms of such opinion within the period laid down by the commission, the latter may refer the matter to the Court of Justice.
Actions may also be brought in the Court of Justice by another member state, “If the Court of Justice finds that a member state has failed to fulfil
any of its obligations,” that state is bound to “take measures required for the implementation of the judgment of the court.”[15] Obligations of member states under council or commission regulations, directives and decisions may thus be implemented despite a state’s resistance.
Although most of the directives are implemented by member states, there are several difficulties that are not answered effectively. Firstly, member states’ laws implementing directives will vary with regard to the applicable degree of supervision, enforcement and interpretation thereof. Secondly, individuals operating in violation of a directive’s substantive provisions are not subject to sanction, absent implementing legislation. Additionally, violation of directives, substantive provisions in the absence of implementing legislation may not serve as evidence of fault before member states’ courts. This attitude partly explains the existing lacunae in the European system.
More recently, the European Commission has had a crackdown on member states for failing to implement environmental directives. In February 1990, the commission proposed to create a “Green Police” force to ensure
compliance with community environmental directives.” The “Green Police” would perhaps supplement the current prevailing practice of taking a member state before the Court of Justice for failing to implement a directive. Part 2 OECD (Organisation for Economic Co-operation and Development) action[16] Members of the OECD in the early 1970s agreed to the “polluter pays principle” as a means of allocating the cost of pollution control.
- 1. To see that the control costs of pollution are borne initially by the generators of pollution.
- 2. To avoid distortion of international trade and unfair competitive advantage for an industry of one country over that of another.
With these aims, the OECD, in cooperation with the United Nations and the EEC, has been able to restrict the manufacture and use of certain chemicals in all 24 of the OECD member nations.
But the main thrust of the OECD’s work in regulating the export of hazardous substances has been in the area of information and exchange. The OECD chemicals group, in 1977, established “Complementary Information Exchange procedure.” In 1980, the OECD’s special program on the control of chemicals set up an Expert Group on Information Exchange Related to Export of Hazardous Chemicals. The Expert Group reported on the need
for information on “banned or severely restricted chemicals.”[17] The report submitted by the Expert Group proposed a two-step notification process.
Matters relating to confidential data
In July 1983, the OECD Council recommended that, “Member Countries take steps towards creating conditions which will allow the exchange of confidential data,” suggested that member countries “explore the use of” a set of suggested principles to govern the exchange of confidential data, and it invited member countries to report any arrangements concerning transmission of confidential data to the OECD special program. Further, the OECD Council instructed the special program’s environment and management committees to review actions taken by member countries in accordance with these principles and report back to the council.
The principles are incorporated in the form of an appendix to the council’s recommendation and consist of several proposals:
1. The competent authorities of countries should exchange confidential information on chemicals to assess their hazards and to protect human health and the environment.
However, the final decision to transmit any confidential data under these principles is left to the government and not to the submitter.
Another important area of concern was the Decision and Recommendation for Transfrontier Shipments of Hazardous Wastes adopted by the OECD Council in 1984. The decision, which is binding for member countries, requires that member countries
shall control the transfrontier movements of hazardous waste and, for this purpose, shall ensure that the Competent Authorities of the countries are provided with adequate and timely information concerning such movements.
The general principles of the council decision are:
- 1. To ensure adequate management of hazardous waste within their own jurisdiction, including promoting development of appropriate disposal facilities and controlling the general, transportation, and disposal of this waste.
- 2. Require that transportation and disposal entities be authorized to:
a. Take steps to ensure that entities involved in transfrontier
shipments have the authorization required by the countries of origin, transit and destination.
b. Apply their laws on control of waste movements (labeling, packaging and notification) as stringently to exports as to domestic shipments; and, c. Ensure that entities within their jurisdiction provide directly or indirectly, the Authorities of the exporting, importing and transit countries with adequate and timely information (with regard to) the origin, nature, composition and quantities of waste ... the conditions of carriage, the nature of environmental risks involved, the type of disposal and the identity of all entities concerned with the shipment.
The principles also state that a country can object to or prohibit shipments if the information provided is inadequate or if the shipment does not conform to its national legislation regarding waste shipments. Furthermore, countries should require that a waste generator “reassume responsibility for the proper management of its waste ... if arrangement for safe disposal cannot be completed.”112
The OECD Action defines “hazardous waste” as any waste
other than radioactive waste considered as hazardous or legally defined as hazardous in the country where it is situated, or through, or to which it is conveyed, because of the potential risk to man or the environment likely to result from an accident or from improper transport or disposal.113
Under this definition, whether the waste is considered “hazardous” or not will depend upon how it is created by the exporting, importing and transit countries.114 If we compare this with that given under the Final Directive,115 the definition under the latter directive is much narrower. The OECD adopted a broader definition mainly due to its larger membership. But then, the OECD’s action is consistent with the Final Directive in two important respects. First, both actions are based upon the theory that appropriate governmental authorities in the countries of final destination, transit and origin should be notified before the shipment proceeds. Second, both recognize the rights of member countries to restrict or prohibit shipments of hazardous waste, provided that objections are made on the basis of valid national law.
1
ll Ibid, paragraph 5,216.
- 112 Ibid, paragraph (c) (general principles), 216.
- 113 Ibid 217.
- 114 Mary Elizabeth Kelly, ‘International Regulation of Transfrontier Hazardous Waste Shipments: A New EEC Environmental Directive’ [1985] 21 [1] Texas International Law Journal 117.
- 115 Directive on Toxic and Dangerous Waste 1978. Directive 1978, Article 1 (b).
Further, the implementation procedure for notification and objection under the EEC Final Directive is much more detailed.[19]
Defects in EEC Final Directive and OECD action
Both the EEC Final Directive and OECD action fail to address important issues like liability and insurance. The OECD action does state that member countries should impose obligations upon waste generators, but the action does not address the liability of generators for failure to meet these obligations. This weakness, especially in the European region, is overcome with the proposal for a council directive on civil liability for damage caused by wastes.
In 1986, the OECD Council in its decision imposed obligations on its members when they export hazardous wastes to non-member states. Under the decision, member states shall—
- 1. Monitor and control exports of hazardous wastes to a final destination which is outside the OECD area and to ensure that their competent authorities are empowered to prohibit such exports in appropriate instances.
- 2. Prohibit the movement of hazardous wastes to a final destination in a non-member state without the consent of that state and the prior notification to any transit states of the proposed movements.
- 3. Prohibit the movements of hazardous wastes to a non-member state unless the wastes are directed to an adequate disposal facility in that state and recommended for the implementation of this decision by member states. By another decision, the Council of OECD in 1988
called upon member states to implement the decisions, resolutions and recommendations of the council adopted in 1984,[20] 1985
The OECD has been very active in other areas pertaining to our study. For instance, the OECD’s recommendations have also supported public and environmental assessment by members in instances where significant private projects may have environmental consequences and where the member is involved in development assistance projects. In addition, the OECD Guidelines for Multinational Enterprises (MNEs) are equally important, since they are controlled by the host country. Under these guidelines, both the OECD members, as home states of most multinational enterprises, and the multinational enterprises are subject to several obligations. For example, each member must help ensure that the operations of MNEs “are in harmony with national policies of the countries where they operate.” MNEs should not bribe public officials and should refrain from improper involvement in local political activities.
The legal effect of OECD recommendations
A large majority of OECD members are market economy democracies and EEC members as well. Generally, the OECD “recommendations” are nonbinding. But then, the OECD may also announce “decisions” which do have a binding effect on member countries. In reality, the OECD’s recommendations have greatly influenced the development of standards and principles governing hazardous substances throughout the world.
The Organisation of African Unity (O AU) and hazardous waste trade During the late 1970s and early 1980s, incidents came to light which showed the movement of hazardous waste from developed countries to the developing African continent for various reasons.[21] Realizing the gravity of the situation, African Countries called for an end to this kind of “Garbage Imperialism”
Just nine months after the adoption of the Basel Convention (1989) 66 developing countries from Africa, the Caribbean and the Pacific— collectively known as the African, Caribbean and Pacific Group of States (ACP)—joined with the European Community to totally prohibit the international trade in waste between their countries. The agreement, which was signed at Lome, bans shipment of all radioactive and hazardous waste from
the EC countries to ACP countries. Further, they also agreed to ban imports of wastes from any other country.[22] The recently signed BAMKO
The Aarhus Convention or the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted and signed at Aarhus in the year 1998 at the Fourth Ministerial Conference as part of the “Environment for Europe” process. The Aarhus Convention was brought into effect in 2001. The aforementioned convention establishes a number of rights of the public both individually and as a group of people or association, with regard to the environment. The state parties to the convention are required to make the necessary provisions so that public authorities (at national, regional or local levels) will be able to make these rights effective. The convention provides for:
- 1. The right of everyone to receive environmental information that is held by public authorities (“access to environmental information”). The scope of information so sought by the public may range from being information on the state of the environment, to policies or measures taken or on the state of human health and safety where this can be affected by the state of the environment. Applicants are entitled to obtain this information within one month of the request and without having to say why they require it. In addition, public authorities are obliged, under the convention, to actively disseminate environmental information in their possession.
- 2. The right to participate in environmental decision-making. The country is obliged to make arrangements to enable the public affected and environmental non-governmental organizations to comment on, for example, proposals for projects affecting the environment, or plans and programs relating to the environment, these comments to be taken into due account in decision-making and information to be provided on the
final decisions and the reasons for it (“public participation in environmental decision-making”).[23] 3. The right to review procedures in order to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general (“access to justice”).
The Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region, also known as the Waigani Convention, was adopted in 1995 and came into force in 2001. The objective of the convention is to reduce and eliminate transboundary movements of hazardous and radioactive waste, to minimize the production of hazardous and toxic wastes in the Pacific region and to ensure that disposal of wastes in the convention area is completed in a manner that is harmless to the environment.
The Waigani Convention is modeled on the Basel Convention and is also strongly related to the London Convention of 1972. It constitutes the regional implementation of the international hazardous waste control regime (Basel, Rotterdam and Stockholm Conventions). There are, however, some differences between the two conventions; the Waigani Convention covers radioactive wastes and extends to the Exclusive Economic Zone (200 nautical miles) unlike the Basel Convention.
The Waigani Convention is an annex-driven convention; the obligations for the parties to reduce and control movement and production of hazardous wastes extend to all the wastes contained in Annexure I (categories of wastes which are hazardous wastes) or those that possess the characteristics contained in Annexure II (list of hazardous characteristics).
The Environmental Liability Directive (ELD)
Based on the “polluter-pays principle,” this directive came into force in 2004 to prevent and remedy environmental damage. As the ELD deals with the “pure ecological damage,” it is based on the powers and duties of public authorities (“administrative approach”) as distinct from a civil liability system for “traditional damage” (damage to property, economic loss, personal injury).” Subject to three amendments on the management of waste from extractive industries, the geological storage of carbon dioxide
and amending several directives,[24] and on safety of offshore oil and gas operations and amending directive,
any natural or legal, private or public person who operates or controls the damaging occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorization for such an activity or the person registering or notifying such an activity.
It also outlines environmental damage across three categories:
- 1. “Damage to protected species and natural habitats,” which is any damage that has significant adverse effects on reaching or maintaining the favorable conservation status of such habitats or species. The habitats and species concerned are defined by reference to species and types of natural habitats identified in the relevant parts of the Birds Directive 79/409 and the Habitats Directive 92/43.
- 2. “Water damage,” which is any damage that have significant adverse effects on the ecological, chemical and/or quantitative status and/ or ecological potential, as defined in the Water Framework Directive 2000/60, of the waters concerned.
- 3. “Land damage,” which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in, on or under land, of substances, preparations, organisms or micro-organisms.
The ELD also provides for two different liability regimes. One liability is that operators of certain activities deemed to be of actual or potential concern, listed in Annex III of the ELD, can be held liable in the event of damage to protected species and natural habitats, water damage and/or land damage. Among the activities concerned are large industrial installations; waste management operations; certain installations releasing polluting substances
into the air; installations discharging polluting substances into water; the manufacture, use, storage, processing, filling, release into the environment and onsite transport of dangerous substances and preparations; the contained use of genetically modified micro-organisms and deliberate release into the environment and the transport and placing on the market of genetically modified organisms.[25] It also excludes the norm of establishing fault or negligence on part of the operator as a prerequisite. The second liability applies to the damage of protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and to any imminent threat of such damage occurring by any of the listed activities, whenever the operator has been at fault or negligent.
