CRITICAL BARRIERS TO MANAGING HAZARDOUS WASTE IN AFRICA

Note: A shorter version of this post will appear as an article in ReSource Magazine (South Africa).

     Discussions of hazardous waste in Africa all come down to the same issue: how to get from an essentially unregulated situation to a well-regulated system with adequate commercial waste management capacity.  In some ways, the prevalence of open dumping of municipal wastes mask a possibly larger problem. As rules tighten, the incentives to avoids or ignore the rules grows. The plethora of new hazardous wastes rules in Africa creates huge incentives for non-compliance. These incentives reach a crisis level when there are few or no legal alternatives within many African countries and the ability to export the waste to better facilities in other African countries is overly restrictive. We will likely find that the literal mountains of municipal waste in open dumps have provided a low-cost – if illegal – option for hazardous waste dumping. Vast territory and limited enforcement capacities in Africa  also make the prevention of direct dumping of hazardous waste problematic.

     The politically correct view is to simply say that everything has to get better. It is easy to list the deficiencies and recite how they need to be corrected. Missing in the public narrative is a serious discussion of specific solutions to the critical barriers to improvement. What is most important to achieve, in what sequence, and how. The most crucial reality underlying possible solutions is that it is easier to legislate than build. The new series of aggressive rules are on the books in most African countries affecting the domestic management of hazardous waste and its export. The rules to date have outstripped the physical capacity for compliance. In the United States, we described that type of environmental regulation as “technology forcing.”   The biggest example was auto emission standards which were set in the 1970s when there was no known technical solutions. The rules were prospective and provided a lead time for their achievement. The commercial market was so large that there were enormous economic incentives for car manufacturers (both domestic and foreign) to develop the innovations that lead to today’s low emission vehicles. But in Africa, we do not see the necessary level of effort to develop the technical capacity for meeting the current rules or the new rules often being “cut-and-pasted” from laws of industrial nations, such as the waste hierarchy and landfill bans.

     We have grossly over-estimated the impact of simply changing the rules. The experience of the European Union in regulation of “WEEE” or e-scrap is instructive. Non-compliance is more prevalent than compliance. There are few economic incentives to recycle the litany of material being regulated. The “command-and-control” system has failed in most EU countries, especially in the lower income new member states. Compliance depends on those who are least able to make the necessary changes, i.e. customers and local governments. The lesson is that any seriously more restrictive environmental scheme must be based upon a sound model of commercial compliance. Recycling occurs where there are sufficient economic incentives (aluminum cans, paper and precious metals). It is problematic where there are not good economic incentives (plastics and organic waste). The lesson is that any regulatory scheme must have a sound economic model for compliance.

     As we discuss how to transform the hazardous waste management system in Africa understanding the underlying economics, the financial impacts of compliance or noncompliance, and which parties need to have their economic motivation incentivized is the key element. Failures in the current efforts are normally caused by misunderstanding these underlying dynamics.

Basel Convention Leakage

     The Basel Convention and then the Bamako Treaty have imposed tight restrictions of the trans-boundary movement of hazardous wastes. The latest version of Basel and the Bamako Treaty make it illegal to transport hazardous waste from OECD countries to Africa. The initial problems arose in the 1980s precisely because of government regulation in the OECD.  The cost of compliance was vastly increased and the pressure to find alternative, illegal means to handle the wastes created the market of the so-called “toxic traders.” This proved difficult to manage until the avoided cost of compliance was reduced by the growth of commercially viable means of compliance back in the OECD. Public relations disasters and economic damage claims in Africa also helped tip the balance.

     It is still important to enforce these restrictions and one of the key problems is the definition of what is hazardous waste. The Basel Convention definitions are frequently different than national definitions, even within the EU. This problem has received widespread attention and is being addressed as it should be.

     The unintended consequences of the Basel and Bamako restrictions is the problem of what to do with hazardous waste in African countries that lack the means for legal compliance and certainly lack commercially viable compliance options. Improper management of domestically-produced hazardous waste is incentivized and – intuitively – I suspect that illegal trans-border shipments are far more common than acknowledged, since legal cross-border shipments are extremely difficult to arrange. The growth of domestically generated hazardous waste in Africa is quite significant as well as large stocks of “legacy waste” such as unused pesticides.

     Seen in this light, the problem is really how to develop the commercial capacity to mean the current and evolving rules. Making legal compliance physically possible and financially viable is the key to fixing the problem.

What causes the lack of a commercial infrastructure?

     There is literally hundreds of billions of dollars in equity investment and debt capacity in the global economy seeking “green investment” projects.  By this, I do not mean the pilot, demonstration or “one-off” projects handled by international government-related funding. There are no international not-for-profit funding sources adequate to deal with the African waste infrastructure problem. But adequate commercial funding is potentially available, but has not occurred in most cases in Africa. Why?

     Private investment by equity funds or large industry players seeks return on investment. This is fundamentally achieved by a sound business model for each project. Special tax incentives or case-by-case development assistance is not a substitute for such a model. Inducing a bad business investment does not work and would not solve anything if it occurred.

     How does one create a commercially viable market for improved hazardous waste management? I think that there are only three main elements: (1) create the rules which “divert” the waste from other disposal options, (2) assure the commercial viability of the investment in the compliance alternatives and (3) enforce the rules.  The rules must be clear and must be prospective (allowing for a period of capacity building, education and awareness, and the development of regulatory expertise). The cycle of project development in this industry unavoidably  requires a long lead time (five to seven years after the new rules are clearly announced).

     The core issue that has been mostly unaddressed is why there already are inadequate investment incentives to build this capacity. Many countries have already changed the rules without a lot of results on the ground. Two factors seem to contribute the most to this problem: (1) the low expectation that new rules will be enforced; and (2) the inadequate size of most domestic waste markets in African countries. Dealing with them in reverse order, the lack of regional markets exist because of the difficulties of approving intra-Africa waste shipments.  Most African countries do not produce enough hazardous wastes to be a commercially viable market. As the demand for more elaborate treatment and recycling technologies rises, this becomes more acute. Since compliance depends upon economically feasible alternatives, the need for commercial scale of operations is even greater. Some solutions may contribute to resolution of this problem in the interim (before new capacity is added) including the accelerated approval of the use of cement kilns for waste incineration. There are also proposed ways to increase the expertise and information for the prior consent necessary for exporting waste. See Mott, “Improving Hazardous Waste Management in Africa,” Journal of Sustainable Development in Africa (Volume 18, No.4, 2016).

Steps toward a Solution

    1.  A key solution is vital to make the “prior informed consent” provisions of Basel actually work. My proposal is to create a third-party entity that conducts waste facility reviews that are available to both the exporting and importing country’s government officials. Following commercially proven procedures, this would allow for the best possible information to be considered in approving exports and raise the confidence level on those decisions. This can be financed once in place by fees charged to the parties seeking the approvals. An internationally-funded training program for understanding and using the reviews would be essential. It would also provide the side benefits of training regulators on risk management issues that would build expertise in permitting and enforcement, not simply in approval of shipments (helping to address the first factor from above).

2.  Specific Bamako provisions on the need to approve every shipment separately may create a permanent barrier to the creation of regional markets in some countries. This needs to be reinterpreted or revised to allow approval “by rule” (once a waste is approved, the same wastes can be shipped in subsequent transactions simply with advanced notification).

3. Right now a major step could be taken by simply requiring all Basel signatory nations in Africa to provide a list of licensed hazardous waste facilities on a public platform (including a description of their operations and what wastes they are licensed to manage). This would at least create a “rolling” list of options for hazardous waste producers to consider as they face growing regulatory requirements in their individual African locations.

4. To assure that hazardous waste is actually delivered to the intended waste management facility, waste producers should start require their contractors to provide an electronic manifest tracking system. This would provide a straight-forward online method of tracking the waste shipment, just like we do with private internet orders and Uber drivers. It is required in the United States now, but could be introduced company-by-company in Africa to create a changing market.

     There is no simple fix and certainly no way out of the situation without a real dialogue on the key parts of the problem. Contrary to the popular culture, most international companies have strict rules on the management of their production wastes, which often exceed local legal requirements. Many of these firms operate in Africa and should form the basis for a new waste economy that moves the infrastructure in the direction of better environmental and health practices.     

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The author is a graduate of Georgetown University Law School, Washington DC and has been involved in hazardous waste issues  in the US, EU and Africa for over thirty years. He is current Director for Europe, Africa and the Middle East of CHWMEG Inc. (a nonprofit association of over 290 manufacturers devoted to waste stewardship that conducts waste facility reviews on behalf of its members). The views expressed here are solely those of the author.  randymott@envirosolutions.co