The Illegal Trade in Chemicals

The chemical and waste nexus

Chemical products can eventually become waste, and substances that are considered waste sometimes become products. Because the regulation of international trade in chemicals is partly basedonwhether a substance is considered a product or a waste, the distinction between these phases of the product life cycle is important. Countries distinguish between waste and non-waste differently, and regulators and private entities can face difficulties in determining whether waste or product legislation applies. In addition, countries designate a substance as hazardous differently depending on whether it is considered a waste or a product. Products can become waste as a result of regulations, such as when chemicals are banned and are no longer permitted for use or export. States may establish phase-out periods to allow existing stocks to be used before the new restriction on their use goes into effect. While this may be a way to reduce waste, it also facilitates the continued use of products that have been deemed unsafe. In Bolivia, stockpiles of imported and donated pesticides have been increasing (Haj-Younes 2015). The research undertaken in La Paz County in Bolivia revealed that banned, outdated and highly toxic pesticides were stored on smallholder farms, and estimated that 60 per cent of those chemicals were obsolete. Both retailers and farmers lacked knowledge on pesticide toxicity and safe handling practices, and poisonings were frequently reported (Haj-Younes, Huici and Jørs 2015). Another way that illicit products become waste is when they are seized by authorities. When banned or counterfeit chemicals are confiscated, their proper disposal can be a challenge, especially in developing countries, which often lack the technological means to safely dispose of or destroy the hazardous chemical. When this is the case, the products must be exported for environmentally sound disposal in accordance with the Basel Convention. The proper disposal of confiscated chemicals can be a problem in wealthier countries as well. While Canadian authorities were investigating a case of unregistered glyphosate imported from China, for example, the substance was reported as stolen from the importer’s storage facility, preventing the proper disposal of the chemical (UNICRI 2016). The waste management legislation in most countries places responsibility for waste disposal on the owner of the waste in question. These owners can attempt to avoid responsibility for disposal in a number of ways, including by selling it on the black market – a growing concern for previously confiscated counterfeit pesticides – or by declaring bankruptcy, which has led to huge amounts of waste accumulating in unguarded Products becoming waste

storage facilities where there is a risk that the chemicals may be relabeled and put back on the market.

To mitigate the challenges that arise from chemical products becoming wastes, some analysts suggest employing a combination of options that include charging the manufacturers and distributors of illicit pesticides for their disposal and using civil and criminal asset forfeiture and confiscation from persons and entities implicated in and convicted of illegal activities (UNICRI 2016). Wastes may reappear as products through recycling or diversion of seized goods to the black market, or when obsolete pesticides are returned to the market. Although domestic and international laws and guidelines provide a legal basis for designating the limited ways in which waste can become a product or secondary raw material, the most common way that chemical waste becomes a product is through illegal activity. A basic tenant of the circular economy is that materials should only stay in the waste phase temporarily because the ultimate objective is to recover and reintroduce them into the economy to replace primary materials. Banned chemicals, however, can contaminate new products made from recycled materials. Electronic and electrical products illustrate the convergence of products, chemicals, andwaste. Computers, mobile phones, televisions, and other electronic goods that are intended for disposal are classified as hazardous waste under the Basel Convention, due to the presence of toxic materials such as mercury, lead, and brominated flame retardants. The Basel Convention does not, however, cover goods that are intended for recycling, repair or recovery. Because countries distinguish between waste and non-waste, the determination of whether a product is waste depends on national law. If, for example, electronic equipment is destined for direct reuse or repair, domestic legislation may not consider it waste. Globally, most e-waste has not followed proper channels for disposal or recycling (Baldé et al. 2017). E-waste is often exported under the guise of repair or reuse to developing countries that do not have the infrastructure to recycle it safely. This poses a serious threat to both human health and the environment. Yet there is a demand for this waste because it can be a source of such valuable materials as gold, copper and rare earth metals. Waste becoming products

The Basel Convention has issued guidelines to help regulators distinguish between electronic waste and products (BRS

The Illegal Trade in Chemicals

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