Statutory Rules 1996 No. 2831
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Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations
I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council and under section 4 of the Acts Interpretation Act 1901, make the following Regulations under the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
Dated 11 December 1996.
WILLIAM DEANE
Governor-General
By His Excellency’s Command,
ROBERT HILL
Minister for the Environment
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PART 1—PRELIMINARY
Citation
1. These Regulations may be cited as the Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations.
Commencement
2. These Regulations commence on 12 December 1996.
Object
3. The object of these Regulations is to make regulations for section 13C of the Act giving effect to the OECD Decision.
[Note: Regulations made for the purposes of section 13C of the Act are known as a “set of Article 11 regulations”: see ss. 13C (3) of the Act.]
Interpretation
4. (1) In these Regulations, unless the contrary intention appears:
“Act” means the Hazardous Waste (Regulation of Exports and Imports) Act 1989;
“amber list hazardous waste” has the meaning given by regulation 7;
“appropriate insurance” has the meaning given by regulation 5;
“approved recovery facility”, for Australia, means a facility approved under regulation 42;
“approved recovery facility”, for an OECD country (other than Australia), means a facility that has been approved by the country, in accordance with Section IV of Annex I to the OECD Decision, to carry out recovery operations on particular types of hazardous waste;
“exporting country”, for a special import permit, means the OECD country from which the hazardous waste proposed to be imported under the permit originated;
“importing country”, for a special export permit, means the OECD country to which hazardous waste that is proposed to be exported under the permit is finally destined;
“OECD country” means a country that is a member of the Organisation for Economic Cooperation and Development under the Convention on the Organisation for Economic Cooperation and Development done at Paris on 14 December 1960;
“OECD Decision” means the Decision of the Council of the Organisation for Economic Cooperation and Development concerning the control of transfrontier movements of wastes destined for recovery operations (adopted by the Council at its 778th Session on 30 March 1992):
(a) declared by the Minister to be an Article 11 arrangement for the purposes of the Act (a copy of the declaration being published in the Gazette on 12 December 1996); and
(b) a copy of the English text of which is set out in Schedule 1;
“recovery facility” means a facility that carries out recovery operations on hazardous waste;
“recovery operation” means an operation mentioned in Part B of Annex IV to the Basel Convention;
“red list hazardous waste” has the meaning given by regulation 6;
“transit country”, for particular hazardous waste, means a country through which the waste is proposed to be transported on the way to its final destination;
“working day” means a day, other than a Saturday, Sunday or public holiday, in the Australian Capital Territory.
[Note: Words and phrases used in these Regulations that are defined in the Act have the same meaning in these Regulations as they do in the Act: see Acts Interpretation Act 1901, s. 46. For example, section 4 of the Act includes definitions of “Basel Convention”, “competent authority”, “environmentally sound management”, “export proposal”, “hazardous waste”, “holder”, “import proposal”, “special export permit”, “special import permit”, “special permit”, “special transit permit” and “transit proposal”.]
(2) A reference in these Regulations to an acknowledgment, consent, notification or objection made or given by the competent authority of an OECD country is a reference to an acknowledgment, consent, notification or objection made or given in accordance with the OECD Decision.
Meaning of “appropriate insurance”
5. For these Regulations, an applicant for a special permit has “appropriate insurance” if, were the permit to be granted, the applicant would be:
(a) reasonably insured against risks that might arise in relation to the hazardous waste to which the permit relates; or
(b) whether because of arrangements made by the applicant or otherwise—able to discharge his or her liability that might arise in relation to the waste.
What is red list hazardous waste
6. (1) Subject to regulation 8, for these Regulations, “red list hazardous waste” means:
(a) hazardous waste mentioned in Appendix 5 to the OECD Decision, as set out in the Decision of the Council of the Organisation for Economic Cooperation and Development amending the OECD Decision, adopted by the Council on 21 September 1995 (a copy of the English text of which is set out in Schedule 2); and
(b) waste that:
(i) is contaminated by hazardous waste mentioned in paragraph (a); and
(ii) as a result, has any of the characteristics mentioned in Annex III to the Basel Convention.
(2) Waste mentioned in paragraph (1) (b) is prescribed for paragraph (a) of the definition of “hazardous waste” in section 4 of the Act.
[Note: Paragraph (a) of the definition of “hazardous waste” in section 4 of the Act provides that hazardous waste is:
“(a) waste prescribed by the regulations where the waste has any of the characteristics mentioned in Annex III to the Basel Convention;”.]
What is amber list hazardous waste
7. (1) Subject to regulation 8, for these Regulations, “amber list hazardous waste” means:
(a) hazardous waste mentioned in Appendix 4 to the OECD Decision, as amended by the Decision of the Council of the Organisation for Economic Cooperation and Development amending the OECD Decision, adopted by the Council on 21 September 1995 (a copy of the English text of which is set out in Schedule 2); and
(b) waste that:
(i) is contaminated by hazardous waste mentioned in paragraph (a); and
(ii) as a result, has any of the characteristics mentioned in Annex III to the Basel Convention.
(2) Waste mentioned in paragraph (1) (b) is prescribed for paragraph (a) of the definition of “hazardous waste” in section 4 of the Act.
[Note: Paragraph (a) of the definition of “hazardous waste” in section 4 of the Act provides that hazardous waste is:
“(a) waste prescribed by the regulations where the waste has any of the characteristics mentioned in Annex III to the Basel Convention;”.]
Circumstances in which amber list waste is red list waste
8. (1) This regulation has effect for the application of these Regulations to a special permit application relating to a substance or object that, apart from this regulation, would be amber list hazardous waste.
(2) If the amber list hazardous waste is contaminated by hazardous waste mentioned in paragraph 6 (1) (a) or (b), the Minister may decide, in writing, that the waste should be taken to be red list hazardous waste for the special permit application.
(3) Before making a decision, the Minister must consider:
(a) the extent of the contamination; and
(b) the type of contamination; and
(c) whether the contamination significantly alters the character of the substance or object; and
(d) having regard to Australia’s international obligations in relation to the international movement of hazardous waste (for example, obligations under the Basel Convention and the OECD Decision), whether dealing with the substance or object as amber list hazardous waste would be consistent with the environmentally sound management of the waste.
(4) As soon as practicable after making a decision, the Minister give the applicant for the special permit:
(a) written notice of the decision; and
(b) if the decision is that the amber list hazardous waste should be taken to be red list hazardous waste for the application—the reasons for the decision.
PART 2—APPLICATIONS FOR SPECIAL PERMITS
Application for special permit
9. (1) A person may apply under these Regulations for a special permit in relation to a particular substance or object that:
(a) is amber list hazardous waste; or
(b) is red list hazardous waste; or
(c) under subsection 4F (2) of the Act, is taken, for a particular OECD country, to be hazardous waste for the purposes set out in subsection 4F (1) of the Act.
(2) Application for a special export permit under these Regulations may be made only for hazardous waste that is proposed to be exported to an OECD country to undergo a recovery operation in that country.
(3) Application for a special import permit under these Regulations may be made only for hazardous waste that is proposed to be imported from an OECD country to undergo a recovery operation in Australia.
(4) Application for a special transit permit under these Regulations may be made only for hazardous waste that is:
(a) produced in an OECD country (other than Australia); and
(b) proposed to undergo a recovery operation in another OECD country (other than Australia).
Variation of applications
10. (1) At any time before the Minister grants or refuses a special permit, the applicant may give the Minister a notice stating that the application is varied as set out in the notice.
(2) The notice must:
(a) be in the form approved by the Minister; and
(b) set out, or be accompanied by, the information about the variation as requested in the form.
(3) If the Minister receives a notice from the applicant:
(a) the application is taken to be varied in accordance with the notice; and
(b) the application, as varied, is taken to have been received by the Minister on the day on which the Minister receives the notice.
Minister may request more information
11. (1) If the Minister needs more information to deal with an application for a special permit, the Minister may ask the applicant to provide the information in writing.
(2) The request must be in writing and must be given to the applicant:
(a) for a special export permit—within 40 days after the Minister receives the application; or
(b) for a special import permit or special transit permit—within 30 days after the Minister receives the application.
Acknowledgment and notification
12. (1) Within 3 working days after receiving an application for a special permit, the Minister must give the applicant written acknowledgment of the receipt.
(2) Within 3 working days after receiving notification from the competent authority of an OECD country of an import proposal, the Minister must give the competent authority written acknowledgment of the receipt.
(3) If notification is not received from the competent authority of an OECD country about a particular import proposal, the Minister must give the competent authority written notice of the receipt of an application for the special import permit to which the proposal relates, within 3 working days after receiving the application.
(4) Within 5 working days after receiving an application for a special export permit, the Minister must give the competent authority of the importing country a written notice that sets out the following information:
(a) the fact that the application has been received;
(b) the waste to which the application relates;
(c) full details (including name, business address, telephone number and facsimile number) of:
(i) the applicant; and
(ii) the proposed recipient of the waste; and
(iii) if the proposed recipient is not a recovery facility—the recovery facility at which the waste is proposed to undergo a recovery operation;
(d) the transit countries in relation to the waste;
(e) the time when, or period during which, the export is proposed to occur.
PART 3—GRANT OF SPECIAL PERMITS
Division 1—Special export permits
Interpretation
13. In this Division:
“decision period” means the period mentioned in subregulation 14 (1), together with an extension (if any) of that period under subregulation 15 (1).
Decision on permit application
14. (1) Subject to regulation 15, within 40 days after receiving an application for a special export permit, the Minister must grant or refuse the permit.
(2) As soon as practicable after granting or refusing the permit, the Minister must give the competent authority of the importing country written notice of the decision, and:
(a) if the decision is to grant the permit—give the permit to the applicant; or
(b) if the decision is a refusal—give the applicant written notice of the decision, and the reasons for it.
(3) Contravention of subregulation (2) does not affect the validity of the decision.
Circumstances affecting decision period
15. (1) If, within the period mentioned in subregulation 14 (1):
(a) the competent authority of the importing country has neither consented nor objected to the grant of the permit; or
(b) if it is proposed to transport the hazardous waste through 1 or more other OECD countries—the competent authorities of those countries have neither consented nor objected to the grant of the permit;
the period within which a decision must be made is extended until the end of 5 days after the Ministerial receipt day.
(2) “Ministerial receipt day” means:
(a) if there is only 1 consent or objection—the day when the Minister receives the consent or objection; or
(b) if there are 2 or more consents or objections and the Minister receives them on the same day—that day; or
(c) if there are 2 or more consents or objections and the Minister receives them on different days—the last of those days.
(3) If the Minister thinks that a decision cannot be made within the decision period, the Minister may extend the period by not more than 60 days.
(4) As soon as practicable after extending the decision period under subregulation (3), the Minister must give written notice of that decision to:
(a) the applicant; and
(b) the competent authority of the importing country.
(5) If, within the decision period or that period as extended under subregulation (3):
(a) action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to the export proposal the subject of the application; and
(b) the procedures required by that Act because of that action have not been completed;
the Minister must grant or refuse the permit within 5 days after the completion of those procedures.
[Note: See section 6 of the Act as to when action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to a proposal, and when procedures under that Act are completed.]
(6) Before the end of the 5 day period, the Minister may agree with the applicant, in writing, to extend that period.
(7) If the Minister has not granted or refused the permit by the end of the day by which the Minister is required by regulation 14 or this regulation to have done so, the Minister is taken to have refused the permit.
Grant of special export permit
16. (1) The Minister must not grant a special export permit authorising the export of hazardous waste unless the Minister is satisfied that:
(a) the application for the permit is permitted by regulation 9 to be made; and
(b) dealing with the hazardous waste concerned in accordance with the export proposal would be consistent with the environmentally sound management of the waste; and
(c) the competent authority of the importing country has given written consent to the movement of the waste; and
(d) the waste will undergo a recovery operation in the importing country at a recovery facility that is authorised to carry out recovery operations on waste of that type; and
(e) having regard to the requirements of clause 1 of section IV of Annex I to the OECD Decision (concerning written contracts covering the movement of waste), it is appropriate to grant the permit; and
(f) the waste will be allowed to be transported through any foreign country through which the waste is proposed to be transported; and
(g) the waste will be transported in a way that is consistent with the environmentally sound management of the waste; and
(h) the applicant:
(i) is a suitable person to be granted the permit; and
(ii) has appropriate insurance.
(2) The Minster may refuse to grant the permit if the Minister considers that it is in the public interest to do so.
(3) The Minster may refuse to grant the permit if the Minister is satisfied that:
(a) there is another way in which the hazardous waste could appropriately be dealt with; and
(b) dealing with the waste in that way would not pose significant risk of injury or harm to people or the environment; and
(c) having regard to Australia’s international obligations, the waste should be dealt with in that way rather than according to the export proposal.
(4) The Minister may refuse to grant the permit if the Minister is satisfied that:
(a) the hazardous waste could be disposed of safely and efficiently by using a facility in Australia; and
(b) such a disposal would be consistent with the environmentally sound management of the waste; and
(c) having regard to the desirability of using facilities in Australia for the disposal of hazardous waste, the waste should be disposed of by using that facility rather than according to the export proposal.
(5) For paragraph (1) (c), if the waste proposed to be exported is amber list hazardous waste, the competent authority of the importing country is taken to have given written consent to the grant of the permit if:
(a) the country has acknowledged receipt of the notice mentioned in subregulation 12 (4); and
(b) for waste that is not proposed to be sent to an approved recovery facility in the country:
(i) written objection to the export proposal has not been made by the importing country or a transit country; or
(ii) if an objection has been made—the objection has been withdrawn.
(6) A consent that, under subregulation (5), is taken to have been given to the grant of a permit, has effect for the export proposal for 1 year after the date of the acknowledgment mentioned in paragraph (5) (a).
(7) For subparagraph (1) (h) (i), the Minister must consider:
(a) the applicant’s financial viability; and
(b) the applicant’s previous record on environmental matters; and
(c) other relevant matters.
Period of grant of permit
17. A special export permit may be granted for up to 1 year from the day on which it is granted.
Matters to be specified in permit
18. (1) A special export permit must set out the following details:
(a) in relation to the permit holder:
(i) if the person is a company—the name and Australian Company Number of the company; and
(ii) if the person is another type of organisation—the name of the organisation; and
(iii) in any other case—the full name of the person; and
(iv) the business address, telephone number and facsimile number of the person;
(b) in relation to the hazardous waste to be exported under the permit:
(i) the name, business address, telephone number and facsimile number of the proposed recipient of the waste; and
(ii) the type of the waste; and
(iii) the maximum quantity of the waste that may be exported; and
(iv) how the waste is to be contained during export; and
(v) how the waste is to be transported during export; and
(vi) the time at which, or period during which, the waste is to be exported; and
(vii) the port or ports from which the waste is to be exported; and
(viii) the port of the importing country to which the waste is to be exported; and
(ix) the transit countries; and
(x) the facility at which the waste is to undergo a recovery operation; and
(xi) the type of recovery operation the waste is to undergo.
(2) The permit must also set out:
(a) the condition mentioned in regulation 32; and
(b) conditions specified by the Minister under regulation 33; and
(c) other information the Minister considers appropriate.
Division 2—Special import permits
Interpretation
19. In this Division:
“decision period” means the period mentioned in subregulation 20 (1).
Decision on permit application
20. (1) Subject to regulations 21 and 22, within 30 days after giving the competent authority of an exporting country notice under subregulation 12 (2) or (3), the Minister must grant or refuse the special import permit to which the notice relates.
(2) As soon as practicable after granting or refusing the permit, the Minister must give the competent authority of the exporting country written notice of the decision, and:
(a) if the decision is to grant the permit—give the permit to the applicant; or
(b) if the decision is a refusal—give the applicant written notice of the decision, and the reasons for it.
(3) Contravention of subregulation (2) does not affect the validity of the decision.
Circumstances affecting decision period—general
21. (1) If the Minister thinks that a decision cannot be made within the decision period, the Minister may extend the period by not more than 60 days.
(2) As soon as practicable after extending the decision period, the Minister must give written notice of that decision to:
(a) the applicant; and
(b) the competent authority of the exporting country.
(3) If, within the decision period or that period as extended under subregulation (2):
(a) action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to the import proposal the subject of the application; and
(b) the procedures required by that Act because of that action have not been completed;
the Minister must grant or refuse the permit within 5 days after the completion of those procedures.
[Note: See section 6 of the Act as to when action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to a proposal, and when procedures under that Act are completed.]
(4) Before the end of the 5 day period, the Minister may agree with the applicant, in writing, to extend that period.
(5) If the Minister has not granted or refused the permit by the end of the day by which the Minister is required by regulation 20 or this regulation to have done so, the Minister is taken to have:
(a) for an application relating to amber list hazardous waste (other than waste mentioned in regulation 22)—granted the permit; or
(b) for an application relating to hazardous waste other than amber list hazardous waste—refused the permit.
Circumstances affecting decision period—amber list hazardous waste intended for approved recovery facility
22. (1) If the Minister:
(a) receives an application for a special import permit authorising the import of amber list hazardous waste that is proposed to undergo a recovery operation at an approved recovery facility in Australia; and
(b) has not granted or refused the permit within 7 days after giving the competent authority of the exporting country notice under subregulation 12 (2) or (3);
the Minister is taken to have granted the permit at the end of that time.
(2) Subregulation (1) does not apply if, before the end of that time:
(a) action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to the import proposal the subject of the application; and
(b) the procedures required by that Act because of that action have not been completed.
[Note: See section 6 of the Act as to when action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to a proposal, and when procedures under that Act are completed.]
(3) If subregulation (1) does not apply, the Minister must grant or refuse the permit within 5 days after the completion of the procedures mentioned in subregulation (2).
(4) Before the end of the 5 day period, the Minister may agree with the applicant, in writing, to extend that period.
(5) If the Minister has not granted or refused the permit by the end of the day by which the Minister is required by subregulation (3) or (4) to have done so, the Minister is taken to have granted the permit.
Grant of special import permit
23. (1) Before granting or refusing a special import permit, the Minister must consider whether the waste to which the relevant import proposal relates should be dealt with in a way other than the way set out in the proposal.
(2) In considering whether the waste should be dealt with in another way, the Minister must have regard to Australia’s international obligations in relation to the international movement of hazardous waste (for example, obligations under the Basel Convention and the OECD Decision).
(3) The Minister must not grant the permit, unless the Minister is satisfied that:
(a) the application for the permit is permitted by regulation 9 to be made; and
(b) dealing with the hazardous waste concerned in accordance with the import proposal would be consistent with the environmentally sound management of the waste; and
(c) the waste will undergo a recovery operation in Australia at a recovery facility that is permitted under Australian law to carry out recovery operations on waste of that type; and
(d) having regard to the requirements of clause 1 of section IV of Annex I to the OECD Decision (concerning written contracts covering the movement of waste), it is appropriate to grant the permit; and
(e) the waste will be transported in a way that is consistent with the environmentally sound management of the waste; and
(f) the applicant:
(i) is a suitable person to be granted the permit; and
(ii) has appropriate insurance.
(4) The Minister may refuse to grant the permit if the Minister considers that it is in the public interest to do so.
(5) For subparagraph (3) (f) (i), the Minister must consider:
(a) the applicant’s financial viability; and
(b) the applicant’s previous record on environmental matters; and
(c) other relevant matters.
Period of grant of permit
24. A special import permit may be granted for up to 1 year from the day on which it is granted.
Matters to be specified in permit
25. (1) A special import permit must set out the following details:
(a) in relation to the permit holder:
(i) if the person is a company—the name and Australian Company Number of the company; and
(ii) if the person is another type of organisation—the name of the organisation; and
(iii) in any other case—the full name of the person; and
(iv) the business address, telephone number and facsimile number of the person;
(b) in relation to the hazardous waste to be imported under the permit:
(i) the name, business address, telephone number and facsimile number of the proposed exporter; and
(ii) the type of the waste; and
(iii) the maximum quantity of the waste that may be imported; and
(iv) how the waste is to be contained during import; and
(v) how the waste is to be transported during import; and
(vi) the time when, or period during which, the waste is to be imported; and
(vii) the port through which the waste is to be imported; and
(viii) the transit countries; and
(ix) the facility at which the waste is to undergo a recovery operation; and
(x) the time when, or period during which, the waste is to undergo the recovery operation; and
(xi) the type of recovery operation the waste is to undergo.
(2) The permit must also set out:
(a) the condition mentioned in regulation 32; and
(b) conditions specified by the Minister under regulation 33; and
(c) other information the Minister considers appropriate.
Division 3—Special transit permits
Interpretation
26. In this Division:
“decision period” means the period mentioned in subregulation 27 (1).
Decision on permit application
27. (1) Subject to regulation 28, the Minister must grant or refuse a special transit permit authorising the carrying out of a transit proposal within 30 days after the competent authority of the OECD country from which the waste is to be exported gives the Minister written notification of the export.
(2) As soon as practicable after granting or refusing the permit, the Minister must give the competent authority of the OECD country written notice of the decision, and:
(a) if the decision is to grant the permit—give the permit to the applicant; or
(b) if the decision is a refusal—give the applicant written notice of the decision, and the reasons for it;
(3) Contravention of subregulation (2) does not affect the validity of the decision.
Circumstances affecting decision period
28. (1) If the Minister thinks that a decision cannot be made within the decision period, the Minister may extend the period by not more than 60 days.
(2) As soon as practicable after extending the decision period, the Minister must give written notice of that decision to:
(a) the applicant; and
(b) the competent authority of the OECD country from which the hazardous waste is to be exported.
(3) If, within the decision period or that period as extended under subregulation (2):
(a) action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to the transit proposal the subject of the application; and
(b) the procedures required by that Act because of that action have not been completed;
the Minister must grant or refuse the permit within 5 days after the completion of those procedures.
[Note: See section 6 of the Act as to when action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to a proposal, and when procedures under that Act are completed.]
(4) Before the end of the 5 day period, the Minister may agree with the applicant, in writing, to extend that period.
(5) If the Minister has not granted or refused the permit by the end of the day by which the Minister is required by regulation 27 or this regulation to have done so, the Minister is taken to have:
(a) for an application relating to amber list hazardous waste—granted the permit; or
(b) for an application relating to other hazardous waste—refused the permit.
Grant of special transit permit
29. (1) The Minister must not grant a special transit permit authorising the carrying out of a transit proposal unless the Minister is satisfied that:
(a) the application for the permit is permitted by regulation 9 to be made; and
(b) carrying out the transit proposal will not pose a significant risk of injury or damage to human beings or the environment; and
(c) the waste will be transported to and from Australia in a way that is consistent with the environmentally sound management of the waste; and
(d) the applicant:
(i) is a suitable person to be granted the permit; and
(ii) has appropriate insurance.
(2) The Minister may refuse to grant the permit if the Minister considers that it is in the public interest to do so.
(3) For subparagraph (1) (d) (i), the Minister must consider:
(a) the applicant’s financial viability; and
(b) the applicant’s previous record on environmental matters; and
(c) other relevant matters.
Period of grant of permit
30. A special transit permit may be granted for up to 1 year from the day on which it is granted.
Matters to be specified in permit
31. (1) A special transit permit must set out the following details:
(a) in relation to the permit holder:
(i) if the person is a company—the name and Australian Company Number of the company; and
(ii) if the person is another type of organisation—the name of the organisation; and
(iii) in any other case—the full name of the person; and
(iv) the business address, telephone number and facsimile number of the person;
(b) in relation to the transit proposal to be carried out under the permit:
(i) the type of hazardous waste to which the proposal relates; and
(ii) the maximum quantity of the waste to be transported under the proposal; and
(iii) how the waste is to be contained during transit; and
(iv) how the waste is to be transported during transit; and
(v) full details of the carrier transporting the waste (including name, business address, telephone number and facsimile number); and
(vi) the time at which, or period during which, the waste is to be brought into Australia; and
(vii) the port at which the waste is to be brought into Australia; and
(viii) the time at which, or period during which, the waste is to be taken out of Australia; and
(ix) the port from which the waste is to be taken out of Australia.
(2) The permit must also set out:
(a) the condition mentioned in regulation 32; and
(b) conditions specified by the Minister under regulation 33; and
(c) other information the Minister considers appropriate.
Division 4—Special permit conditions
Movement/Tracking form to accompany shipment of waste
32. (1) It is a condition of a special permit that each shipment of hazardous waste under the permit be accompanied by a completed Movement/Tracking form.
(2) The Movement/Tracking form must be in the form approved by the Minister.
Other conditions specified in special permits
33. (1) The Minister may:
(a) grant a special permit subject to conditions specified in it; and
(b) specify the day on or before which the permit holder must comply with the condition.
(2) The day specified may be before or after the particular export or import, or before or after the carrying out of the particular transit proposal, authorised by the permit.
(3) A special permit may be granted subject to a condition relating to the giving of 1 or more guarantees or security deposits for ensuring compliance by the permit holder with his or her obligations under, or arising out of, these Regulations.
(4) A special transit permit may be granted subject to conditions that the Minister considers necessary or desirable for the purposes of ensuring the particular transit proposals are carried out.
(5) A condition does not exclude the operation of a State or Territory law unless an intention to exclude the law is expressed in the permit.
PART 4—REVOCATION, SURRENDER AND VARIATION OF SPECIAL PERMITS
Revocation of permits
34. (1) The Minister may revoke a special permit if:
(a) the Minister becomes aware that:
(i) information set out in, or given with, the application for the permit, a notice of variation of the application, or an application for variation of the permit, is false or misleading in a material detail; or
(ii) the applicant for the permit, or variation of the permit, did not disclose information that ought reasonably to have been disclosed; or
(b) the Minister becomes aware of information about which, had the Minister been aware at the time of granting the permit, or variation of the permit, the Minister would not have granted the permit or variation; or
(c) the permit holder has contravened a condition to which the permit is subject.
(2) Before deciding to revoke a permit, the Minister must consider:
(a) for the matters mentioned in paragraph (a)—having regard to the seriousness of the false or misleading information or failure to disclose, whether a variation of the permit under regulation 41, rather than revocation of the permit, may be appropriate; and
(b) for the matter mentioned in paragraph (c)—the type and seriousness of the contravention; and
(c) any other relevant matter.
(3) If a special permit authorises:
(a) a single import or export of hazardous waste; or
(b) the carrying out of a single transit proposal;
the Minister may not revoke the permit after the import or export has taken place, or after the transit proposal has been carried out, as the case requires.
(4) If a special permit authorises:
(a) 2 or more imports or exports of hazardous waste; or
(b) the carrying out of 2 or more transit proposals;
a revocation of the permit applies only to an import or export, or the carrying out of a transit proposal, that has not begun at the time of the revocation.
(5) A revocation takes effect on the day on which the permit holder is given written notice of the revocation and the reasons for it.
Surrender of permits
35. (1) The holder of a special permit may surrender it by returning the permit to the Minister with written notice of its surrender.
(2) However, if the permit is a special import permit, it may not be surrendered after an import authorised by the permit has begun.
(3) Also, if the permit is a special export permit, it may not be surrendered after an export authorised by the permit has begun.
(4) Also, if the permit is a special transit permit, it may not be surrendered after the carrying out of a transit proposal authorised by the permit has begun.
(5) A surrender takes effect on the day on which the permit and notice are given to the Minister.
Applications to vary permits
36. (1) The holder of a special permit may apply to the Minister to vary the permit in a particular way.
(2) The holder of a special export permit or special import permit must apply to the Minister to vary the permit if, after the export or import of hazardous waste to which the permit relates, the waste is not dealt with in accordance with the permit.
(3) An application must:
(a) be in the form approved by the Minister; and
(b) set out, or be accompanied by, the information about the proposed variation as requested in the form.
Minister may request more information
37. (1) If the Minister needs more information to deal with a variation application, the Minister may ask the applicant to provide the information in writing.
(2) The request must be:
(a) in writing; and
(b) given to the applicant within 60 days after the Minister receives the application.
Acknowledgment and notification
38. (1) Within 3 working days after receiving a variation application, the Minister must give the applicant written acknowledgment of the receipt.
(2) Within 5 working days after receiving the application, the Minister must:
(a) for a proposed variation of a special export permit—give the competent authority of the importing country:
(i) written notice of the receipt; and
(ii) full details of the proposed variation; or
(b) for a proposed variation of a special import permit—give the competent authority of the exporting country written notice of the receipt; or
(c) for a proposed variation of a special transit permit—give the competent authority of the OECD country from which the hazardous waste concerned is to be exported, written notice of the receipt.
Decision on variation applications
39. (1) Within 60 days after receiving an application to vary a special permit, the Minister must vary the permit or refuse to do so.
(2) The Minister must vary the permit if the Minister is satisfied that, had the Minister been asked to grant, under these Regulations, the permit as proposed to be varied, the Minister would have done so.
(3) However, for an application to vary a special import permit to allow the export to an OECD country (other than the originating exporting country) of hazardous waste that, after import under the permit, was not dealt with in accordance with the permit, the Minister must not make the variation without the written consent of the original exporting country.
(4) As soon as practicable after varying the permit or refusing to do so, the Minister must:
(a) give the applicant written notice of the decision and, if the decision is a refusal, the reasons for it; and
(b) if the decision relates to a special export permit—give the competent authority of the importing country written notice of the decision; and
(c) if the decision relates to a special import permit—give the competent authority of the exporting country written notice of the decision; and
(d) if the decision relates to a special transit permit—give the competent authority of the OECD country from which the hazardous waste concerned is to be exported, written notice of the decision.
(5) A variation takes effect:
(a) if a day is set out in the written notice given to the applicant—on that day; or
(b) if no day is set out—on the day after the day on which the notice is given.
(6) Contravention of subregulation (4) does not affect the validity of the decision.
Variation applications—circumstances affecting decision period
40. (1) If the holder of a special export permit applies to vary the permit and, within the period mentioned in subregulation 39 (1) (“the decision period”):
(a) the competent authority of the importing country has neither consented nor objected to the proposed variation; or
(b) if it is proposed to transport the hazardous waste through 1 or more other OECD countries—the competent authorities of those countries have neither consented nor objected to the proposed variation;
the period within which a decision must be made is extended until the end of 5 days after the Ministerial receipt day.
(2) For the meaning of “Ministerial receipt day” see subregulation 15 (2).
(3) If the Minister thinks that a decision on an application to vary a special permit cannot be made within the decision period (including, for a special export permit, that period as extended under subregulation (1)), the Minister may extend the period by not more than 60 days.
(4) As soon as practicable after extending the decision period, the Minister must give written notice of that decision to the applicant and:
(a) if the decision relates to a special export permit—the competent authority of the importing country; or
(b) if the decision relates to a special import permit—the competent authority of the exporting country; or
(c) if the decision relates to a special transit permit—the competent authority of the OECD country from which the hazardous waste concerned is to be exported.
(5) If, before the end of the decision period, or that period as extended under subregulation (3):
(a) action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to a varied import proposal or varied export proposal; and
(b) the procedures required by that Act because of that action have not been completed;
the Minister must vary the permit or refuse to do so within 5 days after the completion of those procedures.
[Note: See section 6 of the Act as to when action is begun under the Environment Protection (Impact of Proposals) Act 1974 in relation to a proposal, and when procedures under that Act are completed.]
(6) Before the end of the 5 day period, the Minister may agree with the applicant, in writing, to extend that period.
(7) If the Minister has not varied the permit or refused to so by the end of the day by which the Minister is required by regulation 39 or this regulation to have done so, the Minister is taken to have:
(a) for an application to vary a special import permit or special transit permit relating to amber list hazardous waste—varied the permit; or
(b) in any other case—refused to vary the permit.
(8) A variation under paragraph (7) (a) takes effect on the day after the day mentioned in that subregulation.
Variation of permits without application
41. (1) Without the need for an application under regulation 36, the Minister may vary a special permit by giving written notice of the variation to the permit holder.
(2) A permit may be varied:
(a) by imposing a condition to which the permit is subject; or
(b) by varying or revoking a condition; or
(c) if a condition is to be complied with on or before a particular day—by varying the day.
(3) However, the Minister may vary a permit only if:
(a) the Minister becomes aware that:
(i) information set out in, or given with, the application for the permit, a notice of variation of the application, or an application for variation of the permit, is false or misleading in a material detail; or
(ii) the applicant for the permit, or variation of the permit, did not disclose information that ought reasonably to have been disclosed; or
(b) having regard to information that was not considered before granting the permit or variation of the permit, the Minister is satisfied that the variation is required to protect human beings or the environment from a significant risk of injury or damage.
(4) Before deciding to vary a permit, the Minister must consider:
(a) for the matters mentioned in paragraph (a)—having regard to the seriousness of the false or misleading information or failure to disclose, whether revocation, rather than variation, of the permit may be appropriate; and
(b) any other relevant matter.
(5) If the Minister varies a special permit under this regulation, the Minister must set out in the notice given to the permit holder the reasons for the variation.
(6) Regulation 33 applies to the imposition or variation of a condition under this regulation as if it were imposed at the time of granting the permit.
(7) A variation under this regulation takes effect:
(a) if a day is set out in the written notice given to the permit holder—on that day; or
(b) if no day is set out—on the day after the day on which the notice is given.
PART 5—MISCELLANEOUS
Approval of recovery facilities
42. (1) The Minister may approve, in writing, a facility for the purpose of carrying out recovery operations on amber list hazardous waste imported under special import permits granted under these Regulations.
(2) The Minister must not approve a facility unless the Minister is satisfied that the facility is capable of carrying out recovery operations on amber list hazardous waste in a manner appropriate to give effect to Australia’s obligations under the OECD Decision.
Review of decisions
43. Application may be made under the Administrative Appeals Tribunal Act 1974 to the Administrative Appeals Tribunal for review of a decision of the Minister:
(a) that particular amber list hazardous waste should be taken to be red list hazardous waste for a special permit application (see regulation 8); or
(b) to grant a special permit for less than a year (see regulations 17, 24 and 30); or
(b) refusing to approve a facility (see regulation 42).
[Note: Section 57 of the Act provides for review of decisions relating to, among other things, the grant, revocation or variation of special permits and the imposition of conditions on special permits.]
Delegation
44. The Minister may delegate, in writing, any or all of the Minister’s functions and powers under these Regulations to:
(a) the Secretary to the Department; or
(b) an officer of the Senior Executive Service performing duty in the Department.
_______________
Annex 1
I. DEFINITIONS
For the purposes of this Decision:
WASTES are as defined in OECD Council Decision C(88)90(Final) of 27 May 1988.
RECOVERY OPERATIONS mean activities leading to resource recovery, recycling, reclamation, direct re-use or alternative uses as listed in Table 2B of the Annex of OECD Council Decision C(88)90(Final) of 27 May 1988.
TRANSFRONTIER MOVEMENT means any shipment of wastes destined for recovery operations from an area under the national jurisdiction of one OECD Member country to an area under the national jurisdiction of another OECD Member country.
RECOVERY FACILITY means an entity which, under applicable domestic law, is operating or is authorized to operate in the importing country to receive wastes and to perform recovery operations on them.
INTERNATIONAL WASTE IDENTIFICATION CODE ("IWIC") is the classification system specified and described in OECD Council Decision C(88)90(Final) of 27 May 1988.
EXPORTING COUNTRY means any OECD Member country from which a transfrontier movement of wastes is planned or has commenced.
IMPORTING COUNTRY means any OECD Member country to which a transfrontier movement of wastes is planned or takes place for the purpose of submitting the wastes to recovery operations therein.
COUNTRY OF TRANSIT means any OECD Member country other than the exporting or importing country across which a transfrontier movement of wastes is planned or takes place.
CONCERNED COUNTRIES means the exporting and importing OECD Member countries and any OECD Member countries of transit.
OECD AREA means all land or marine areas under the national jurisdiction of any OECD Member country.
COMPETENT AUTHORITIES means the regulatory authorities of concerned countries having jurisdiction over transfrontier movements of wastes destined for recovery operations.
PERSON means any natural or legal person whether public or private.
NOTIFIER means the person under the jurisdiction of the exporting country who has, or will have at the time the planned transfrontier movement commences, possession or other forms of legal control of the wastes and who proposes their transfrontier movement for the ultimate purpose of submitting them to recovery operations.
CONSIGNEE means the person to whom possession or other form of legal control of the waste is assigned at the time the waste is received in the importing country.
RECOGNISED TRADER means a person who, with appropriate authorisation of concerned countries, acts in the role of principal to purchase and subsequently sell wastes; this person has legal control of such wastes from time of purchase to time of sale; such a person may act to arrange and facilitate transfrontier movements of wastes destined for recovery operations.
GENERATOR means a person whose activities create wastes.
II. GENERAL PROVISIONS
(1) All of the following conditions shall apply to transfrontier movements of wastes subject to this Decision:
(a) The wastes shall be destined for recovery operations within a facility which, under applicable domestic law, is operating or is authorized to operate in the importing country;
(b) The transfrontier movements shall be carried out under terms of applicable international transport agreements. (Appendix 1 contains an illustrative list of such agreements); (c) Any transit of wastes through a non-member country shall be subject to all applicable international and national laws and regulations.
(2) A three-tiered system serves to delineate controls to be applied to such transfrontier movements:
(a) "Green" tier
Wastes destined for recovery operations included on the green list shall move among OECD Member countries toward recovery operations subject to all existing controls normally applied in commercial transactions. These provisions shall not apply to wastes on this list which are contaminated by other materials to an extent which increases the risks associated with the wastes sufficiently to render them appropriate for inclusion in the amber or red lists, when taking into account the criteria in Annex 2.
(b) "Amber" tier
Wastes destined for recovery operations included in the amber list shall be subject to the control system set out in Section IV of this Annex.
(c) "Red" tier
Wastes destined for recovery operations included in the red list shall be subject to the controls indicated in Section V of this Annex.
(3) The criteria listed in Annex 2 must be taken into account for evaluating wastes for inclusion on the green, amber or red lists. In accord with provisions of this Decision, items may be added, altered or deleted periodically. Subject to Section III (2) no single criterion shall be used in isolation in assigning wastes to the lists.
(4) While the lists are intended to be exclusive, a specific waste included in either the amber or red lists might not be legally defined or considered to be a hazardous waste in the exporting country because the competent authorities of that country are satisfied that it does not exhibit any of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88)90(Final) as determined using national procedures . If, however, this waste is legally defined or considered to be a hazardous waste by the importing country, then all of the requirements set forth in Section IV or Section V - whichever is applicable - shall apply as follows: the importing country shall assume the obligations of the exporting country under these Sections, in particular as regards the notification requirements. A copy of the notification form must be transmitted to the competent authorities of the exporting country. Member countries operating under provisions of this paragraph shall promptly inform the OECD Secretariat of the waste(s) involved and applicable legislative requirements.
(5) Member countries who prescribe the use of certain tests and testing procedures in order to determine whether a waste exhibits one or more of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88)90(Final) shall inform the OECD Secretariat concerning which tests and testing procedures are being so utilized; and, if possible, which wastes would or would not be legally defined or considered to be hazardous wastes based upon application of these national procedures.
(6) This Decision does not prejudice the right of Member countries to control certain wastes which have been assigned to the green list as if those wastes had been assigned to one of the other lists, in conformity with domestic _legislation and the rules of international law, in order to protect human health and the environment. In such cases, Member countries exercising this right shall immediately inform the OECD secretariat citing the specific waste(s) and applicable legislative requirements.
(7) Wastes which are destined for recovery operations but have not yet been assigned to the green, amber or red lists shall be eligible for transfrontier movements pursuant to this Decision subject to the following conditions:
i) Member countries shall identify such wastes and bring them to the attention of the review mechanism established by operative paragraphs II and III of this Decision;
ii) such wastes shall be promptly examined by the Review Mechanism in order to assign them to the appropriate list;
iii) pending assignment to a list, such wastes shall be subject to the controls required for the transfrontier movements of wastes by the domestic legislation of the concerned countries in order that no country is obliged to enforce laws other than its own;
iv) however, if such wastes exhibit a hazardous characteristic listed in Table 5 of OECD Council Decision C(88)90(Final) as determined using national procedures and any applicable international agreements, such wastes shall be subject to controls applicable to the red tier.
(8) If two or more lots of wastes are mixed and/or otherwise subjected to physical or chemical transformation operations, the person who performs these operations shall be deemed to be the generator of the new wastes resulting from these operations.
III. GREEN TIER
(1) Specific items included in the green list are shown under their corresponding main categories. Only the items specified under a main category and not the main categories themselves are part of the green list. (2) Wastes may not be included in the green list if they exhibit any of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88)90(Final). The procedures in force in each Member country for determining whether a specific waste does or does not exhibit one or more of these characteristics are taken into account in placing or not placing a waste onto the green list.
(3) If green list wastes are re-exported, responsibilities of the exporting country under other relevant agreements or conventions shall transfer to the country initiating the re-export, and shall not apply to the original exporting country.
(4) Green list of wastes
The green list of wastes is set out at Appendix 3.
IV. AMBER TIER
(1) Conditions
Transfrontier movements of wastes under the amber control system may only occur under the terms of a valid written contract, or chain of contracts, or equivalent arrangements between facilities controlled by the same legal entity, starting with the notifier and terminating at the recovery facility. All persons involved in the contracts, or arrangements shall have appropriate legal status.
Such contracts shall include provisions for financial guarantees in accordance with applicable national or international law requirements. Financial guarantees so required are intended to provide for alternate recycling, disposal or other means of sound management of the wastes in cases where arrangements for the shipment and the recovery operations cannot be carried out as foreseen. These contracts shall also specify which party to the contract shall assume responsibility for alternate management of the wastes. These contracts shall also specify and, as the case may be, require from the consignee the notification required in 3(a) below (Re-export to a Third Country).
In such cases :
i) the person having actual possession or physical control over the wastes shall immediately inform the notifier and the competent authorities of the exporting and importing countries and, if the wastes are located in a country of transit, the competent authorities of that country;
ii) the person specified in the contract shall assume responsibility for the adequate management of the wastes in compliance with applicable laws and regulations including, if necessary, their return. The competent authorities of the concerned countries shall require that the necessary actions are carried out within a limited period of time, and shall not oppose, hinder or prevent the return of those wastes to the exporting country.
(2) Control System
Procedures are provided under the amber control system for the following two cases:
i) transactions which require consent for specific shipments to a recovery facility; and
ii) transactions involving specific recovery facilities to which the competent authorities having jurisdiction over such recovery facilities have granted general pre-consent concerning the reception of certain wastes.
Case (1): Provisions concerning transactions requiring specific consent.
(a) Prior to commencement of the transfrontier movement, the notifier shall provide written notification to the competent authorities of the concerned countries; this notification shall include all of the information listed in Appendix 2.A. The competent authorities of the exporting country may, in accord with domestic laws, decide to transmit this notification instead of the notifier.
(b) The competent authorities of the importing country, upon receipt of the completed notification referred to in paragraph (a) above, shall transmit an acknowledgement to the notifier with a copy to the competent authorities of other concerned countries within three (3) working days of their receiving the notification.
(c) The competent authorities of the exporting and importing countries shall have thirty (30) days to object in accord with their respective domestic laws to the proposed transfrontier movement. The 30-day period shall commence upon issuance of the acknowledgement referred at paragraph (b) above.
(d) Countries of transit may, in accord with domestic laws, object to the transfrontier movement entering their territory.
(e) Any objection by any of the concerned countries must be provided in writing to the notifier and to the competent authorities of other concerned countries within the 30-day period.
(f) If no objection has been lodged, the transfrontier movement may commence after the 30-day period has passed. Tacit consent, however, expires within one (1) calendar year from that date.
(g) The competent authorities of the concerned countries may decide to provide written consent in a period less than the 30 days. The transfrontier movement may commence immediately after all necessary consents are received.
(h) Written consent or objection may be provided by post, or by telefax followed by post. Such consent shall expire within one (1) calendar year unless otherwise specified.
(i) Each transfrontier movement shall be accompanied by a tracking document which includes the information listed in Appendix 2.
(j) Within three (3) days of the receipt of the wastes by the recovery facility, the recovery facility shall provide a signed copy of the tracking document to the notifier and to the competent authorities of the concerned countries. The recovery facility shall retain the original of the tracking document for three (3) years.
(k) In cases where essentially similar wastes (e.g. those having essentially similar physical and chemical characteristics) are to be sent periodically to the same recovery facility by the same notifier, the competent authorities of the concerned countries may elect to accept one notification for these wastes for a period of up to one year:
i) Such acceptance may be renewed for further periods of up to one year each;
ii) Revocation of this acceptance may be accomplished by means of official notice to the notifier from any of the competent authorities of the concerned countries. Notice of revocation of acceptance for shipments previously granted under this provision shall be given to the competent authorities of all concerned countries by the competent authorities of the country that revokes such acceptance.
Case (2): Provisions relating to pre-consent by competent authorities for shipments to specific recovery facilities.
(a) Competent authorities having jurisdiction over specific recovery facilities may decide not to raise objections concerning shipments of certain types of wastes to a specific recovery facility. Such decisions can be limited to a specified period of time; however, they may be revoked at any time.
(b) Competent authorities who elect this option shall inform the OECD Secretariat of the recovery facility name, address, technologies employed, waste types to which the pre-consent applies, and the period covered. Any revocations must also be notified to the OECD Secretariat.
(c) All proposed transfrontier movements to such facilities shall require notification; the notifier shall provide to the competent authorities of the concerned countries the information listed in Appendix 2.A. Such notification shall arrive prior to the time the shipment is dispatched.
(d) The competent authorities of the exporting and transit country may, in accord with their domestic laws, prohibit or otherwise restrict any such transfrontier movement.
(e) In instances where competent authorities acting under terms of their domestic laws are required to review the contracts referred to in (1) above (Conditions), these authorities shall so inform the OECD Secretariat. In such cases, the notification information plus the contract(s) or portions thereof to be reviewed must arrive seven (7) days prior to the time the shipment is dispatched in order that such review may be appropriately performed.
(f) Paragraphs (i), (j) and (k) of Case (1) shall apply.
(3) Additional provisions relating to re-export to a third country
(a) Re-export from an importing country of wastes subject to the amber control system may only occur following notification by a notifier in the importing country to the competent authorities of the initial exporting country, which shall be acknowledged within three (3) working days of receipt. The competent authorities of the initial exporting country shall have thirty (30) days to object to the proposed movement. The 30-day period shall commence upon issue of the acknowledgement referred to above. If no objection has been lodged, the transfrontier movement may commence after the 30-day period has passed. The competent authorities may decide to provide written consent in a period of less than 30 days. The transfrontier movement may commence immediately after such consent is received. Written consent may be provided by telefax in the first instance, followed by post if required.
(b) Re-export to a country outside the OECD area shall be fully subject to, and in accord with, all international agreements and arrangements to which the importing OECD Member country is a party.
(4) Provisions relating to recognised traders
(a) A recognised trader who takes physical custody of the wastes and intends to perform any of the operations in Table 2 B of OECD Council Decision C(88)90(Final) shall require appropriate authorisation from its competent authorities to act as a recovery facility.
(b) A recognised trader may act as a notifier or consignee for wastes with all the responsibilities associated with being a notifier or consignee.
(c) The contracts referred to in (1) above (Conditions) shall:
i) clearly identify: the generator of each type of waste; each person who shall have physical custody of the wastes; each person who shall have legal control of the wastes; and the recovery facility;
ii) provide that all requirements of this Decision are taken into account and are legally binding on all parties to the contracts.
(d) The notification information called for at Appendix 2A shall include a signed declaration by the notifier that the appropriate contracts are in place and are legally enforceable in all concerned countries.
(e) Competent authorities of the exporting and importing countries may under terms of their domestic laws require the notifier to provide copies of such contracts or portions thereof.
(f) Any information contained in the contracts provided under terms of paragraph (e) above shall be held as strictly confidential in accordance with, and to the extent allowable by, domestic laws.
(5) Provisions relating to wastes designated for exchange or accumulation prior to submission to recovery operations designated R1-R11 in Table 2B of OECD Council Decision C(88)90(Final)
(a) The notification information included in Appendix 2A shall also indicate that exchange or storage is foreseen for the wastes covered by the notification.
(b) The competent authorities of concerned countries may request that the recovery facility where operations designated R1-R11 in Table 2B of Council Decision C(88)90(Final) will occur be identified.
(c) The tracking document referred to in Appendix 2B shall accompany the wastes to the recovery facility noted in paragraph (b) above which shall then comply with paragraph (j) of (2) above (Control System).
(6) Amber list of wastes
The amber list of wastes is set out at Appendix 4.
V. RED TIER
(1) The red list represents certain specific substances which, even moved in an adequately managed way, nevertheless must be controlled in a more stringent way than provided for by the amber control system. Wastes included in the red list shall be subject to the same controls as applied to wastes included in the amber list (see Section IV), and shall move in accord with Case (1), except that the importing and any transit countries must provide written consent prior to commencement of the transfrontier movement.
(2) Red list of wastes The red list of wastes is set out at Appendix 5.
VI. ACTIONS TO PROMOTE HARMONISED IMPLEMENTATION
(1) Member countries individually, and as a group acting through the Review Mechanism established in this Decision, shall take appropriate steps toward improving the green, amber and red lists of wastes and toward uniform application of this Decision.
(2) Member countries shall cooperate in efforts aimed at:
i) developing procedures for evaluating the criteria in Annex 2 to determine to which list a waste should be assigned; and
ii) harmonising procedures for determining whether a waste exhibits any of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88)90(Final).
(3) Member countries shall cooperate to identify and assess steps taken toward optimization of environmentally sound and economically efficient practices for recovery operations of each waste.
(4) When Sections II(4), II(6) and II(7) must be resorted to, Member countries shall cooperate to ensure that the provisions of this Decision are fully complied with.
(5) The OECD Secretariat shall circulate to all Member countries the information provided in accordance with this Decision, in particular under Sections II(4), II(5), II(6) and II(7).
Appendix 1
INTERNATIONAL TRANSPORT AGREEMENTS
1. Chicago Convention: Convention on International Civil Aviation (1944) Annex 18 which deals with the carriage of dangerous goods by air (T.I.: Technical Instructions for the Safe Transport of Dangerous Goods by Air);
2. ADR: European Agreement concerning the International Carriage of Dangerous Goods by Road (1957);
3. ADNR: Regulations of the Carriage of Dangerous Substances on the Rhine (1970).
4. MARPOL Convention: International Convention for the Prevention of Pollution from Ships (1973/1978);
5. SOLAS Convention: International Convention for the Safety of Life at Sea (1974);
6. IMDG Code: International Maritime Dangerous Goods Code; (incorporated into SOLAS since 1985)
7. COTIF: Convention concerning the International Carriage of Goods by Rail (1985);
8. RID: Regulation on the International Carriage by Rail of Dangerous Goods (1985) [Annex I to COTIF];
Appendix 2
NOTIFICATION AND TRACKING INFORMATION
A. INFORMATION TO BE SUBMITTED UPON NOTIFICATION
1) Serial number or other accepted identifier of notification form.
2) Notifier name, address, telephone, telefax.
3) Recovery facility name, address, telephone, telefax, and technologies employed
4) Consignee if not the recovery facility, address, telephone, telefax
5) Intended carrier(s) and/or their agents.
6) Country of export and relevant competent authority
7) Countries of transit and relevant competent authorities.
8) Country of import and relevant competent authority.
9) Is this a single notification or a general notification? If general, period of validity requested.
10) Date foreseen for commencement of transfrontier movement.
11) Certification that any applicable insurance or other financial guarantee is or shall be in force covering the transfrontier movement.
12) Designation of waste type(s) on the appropriate list (amber or red) and their description(s), probable total quantity of each, and an accepted uniform classification code (such as the IWIC) for each.
13) Certification of the existence of written contract or chain of contracts or equivalent arrangement as required by this Decision.
14) Certification by notifier that the information is complete and correct to the best of his knowledge.
B. TRACKING DOCUMENT
Include all information at A. above plus
(a) Date shipment was dispatched
(b) Shipper (if not notifier), address, telephone, telefax
(c) Actual carrier(s)
(d) Means and mode of transport including types of packaging
(e) Any special precautions to be taken by carrier(s)
(f) Declaration by notifier that no objection has been lodged by the competent authorities of all concerned countries. This declaration requires signature of the notifier.
(g) Appropriate signatures for each custody transfer.
C. ALL OF THIS INFORMATION SHALL BE PROVIDED ON A FORM TO BE DEVELOPED FOR USE WITHIN THE OECD AREA
D. NOTE. Under terms of domestic legislation, some Member countries require information in addition to that included in A and B above in order to assess aspects of the environmentally sound management of wastes. Affected countries shall inform the OECD Secretariat and provide a list of the additional information needed.
Annex 2
CRITERIA
A) Properties
1) Does the waste normally exhibit any of the hazardous characteristics listed in Table 5 of OECD Council Decision C(88)90(Final)? Furthermore, it is useful to know if the waste is legally defined as or considered to be a hazardous waste in one or more Member countries.
2) Is the waste typically contaminated?
3) What is the physical state of the waste?
4) What is the degree of difficulty of cleanup in the case of accidental spillage or mismanagement?
5) What is the economic value of the waste bearing in mind historical price fluctuations?
B) Management
6) Is there technological capability to recover the waste?
7) Is there a history of adverse environmental incidents arising from transfrontier movements of the waste or associated recovery operations?
8) Is the waste routinely traded through established channels and is that evidenced by commercial classification?
9) Is the waste usually moved internationally under the terms of a valid contract or chain of contracts?
10) What is the extent of reuse and recovery of the waste and how is any portion separated from the waste but not subject to recovery managed?
11) What are the overall environmental benefits arising from the recovery operations?