At a first glance the fact that illicit pesticides should be considered as hazardous waste is obvious. However ongoing discussions, particularly within the lawyers’ environment, require more solid clarification. There is no good quality illicit pesticides or bad quality illicit pesticides – they are simply illicit. Such products must be removed from the market, as their chemical composition is unclear and their impacts on human health, environment and agricultural business are unpredictable. FAO Code of Conduct is clearly pointing out that the Governments should “detect and control counterfeiting and illegal trade in pesticides through national inter-agency and intergovernmental cooperation and information sharing” (6.1.13). It refers both to original and generic pesticides.

However, there is no single approach on what must be done with this waste. On one hand, illicit pesticides should be destructed. The US regulatory framework on pesticides management - FIFRA - declares that “if the pesticide or device is condemned it shall, after entry of the decree, be disposed of by destruction” (Sec. 13). But on the other – in most of the countries it is unclear who will have to be charged for destruction. The answer to this principal question can be obtained by applying a waste management legal framework. Present document assesses possibility of such application in European Union.

1.      FAO-WHO position on illicit pesticides

In March 2011 WHO and FAO developed “Guidelines on Control of Pesticides”. This Position Paper confirms joint UN approach that marketing of illicit pesticides is a matter of serious concern. FAO and WHO encourage Member States to develop legal framework, aimed on taking enforcement actions relating to illicit pesticides; specifying the procedure of seizure the products; imposing adequate penalty for non-compliance and carrying out prosecution of the offenders. (Source: http://www.fao.org/3/a-bt477e.pdf).

Quote:

Although enforcement is not the only tool to enhance the quality of pesticides marketed, it is, however, important and essential, particularly in countries where substandard and counterfeit pesticides are frequently encountered. For effective enforcement, the pesticide legislation and supplementary regulations should include the following provisions for:

•        taking enforcement actions relating to poor-quality, unregistered and banned as well as counterfeit pesticides;

•        specifying the procedure for seizure of products;

•        imposing adequate penalty to act as a deterrent for non-compliance;

•        officially appointing officers to take enforcement samples as well as carry out prosecution of offenders.

p. 8.3 of this document states that:

If products taken by inspectors for enforcement purposes have been found not to be in compliance with specifications and labelling and packaging requirements, corrective actions, including prosecution in court, should be taken. At the same time, the responsible authority could also withdraw the registration status of the product. Warnings, with conditions for corrective actions to be taken within a certain timeframe for minor contraventions, could also be acceptable.

Proof of disposal of non-compliant material via legal waste disposal routes should be required as part of any corrective action. Such proof could be in the form of official destruction certificates issued by licensed hazardous waste disposal facilities. Enforcement agencies have often faced problems with the disposal of pesticides on completion of court cases, particularly when the quantities of seized pesticides are large. Violators should be required by law to pay for the costs of the disposal of the pesticides at the conclusion of enforcement actions.

It means that both FAO and WHO consider seized pesticides as hazardous waste.

2.      Provisions of EU Waste Framework Directive

Directive 2008/98/EC sets the basic concepts and definitions related to waste management, such as definitions of waste, recycling, recovery. It explains when waste ceases to be waste and becomes a secondary raw material (so called end-of-waste criteria), and how to distinguish between waste and by-products. The Directive lays down some basic waste management principles: it requires that waste be managed without endangering human health and harming the environment, and in particular without risk to water, air, soil, plants or animals, without causing a nuisance through noise or odours, and without adversely affecting the countryside or places of special interest.

The Directive introduces the "polluter pays principle".

According to p.3(1) of WFD ‘waste’ means any substance or object which the holder discards or intends or is required to discard. In the same time, there are other common definitions of waste, determining it as any substance which is discarded after primary use, or is worthless, defective and of no use. In the same time, FAO clearly names obsolete pesticides as waste. Based on these definitions, in line with FAO-WHO Guidelines on quality control of pesticides, it is no other way except considering seized illicit pesticides as waste.

Article 3. Definitions

Following definitions are relevant for understanding the nexus between seized chemicals and WFD:

3(1) ‘waste’ means any substance or object which the holder discards or intends or is required to discard;

3(2) ‘hazardous waste’ means waste which displays one or more of the hazardous properties listed in Annex III;

3(5) ‘waste producer’ means anyone whose activities produce waste (original waste producer) or anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste;

3(6) ‘waste holder’ means the waste producer or the natural or legal person who is in possession of the waste;

3(15) ‘recovery’ means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. Annex II sets out a non-exhaustive list of recovery operations;

3(16) ‘preparing for re-use’ means checking, cleaning or repairing recovery operations, by which products or components of products that have become waste are prepared so that they can be re-used without any other pre-processing;

3(17) ‘recycling’ means any recovery operation by which waste materials are reprocessed into products, materials or substances whether for the original or other purposes. It includes the reprocessing of organic material but does not include energy recovery and the reprocessing into materials that are to be used as fuels or for backfilling operations;

3(19) ‘disposal’ means any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I sets out a non-exhaustive list of disposal operations.

Article 4. Waste hierarchy

Waste legislation and policy of the EU Member States shall apply as a priority order the following waste management hierarchy:

It is obvious that seized pesticides (illicit goods) - either counterfeit or falsified or sub-standard - cannot be re-used (or prepared for re-use) in the market due to violation of IPR and/or approved dossiers. It means that procedure ‘End-to-Waste’ cannot be applicable. It is also impossible to recycle illicit pesticides or ensure recovery in environmentally friendly manner.

Hence, there is no other choice than to consider disposal of illicit pesticides (normally by incineration on land - D10), as in accordance with Article 12, Member States shall ensure that, where recovery is not undertaken, waste undergoes safe disposal operations which meet the provisions of Article 13 on the protection of human health and the environment.

This is in line with the position of FAO, related to other pesticides waste: “In most cases, the only option for dealing with unused and obsolete pesticides stocks is to destroy them.”. (Source: http://www.fao.org/agriculture/crops/obsolete-pesticides/how-deal/disposal/ru/).

Article 14. Costs

Article 14 states that:

1.   In accordance with the polluter-pays principle, the costs of waste management shall be borne by the original waste producer or by the current or previous waste holders.

2.   Member States may decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such product may share these costs.

In practice it means that financial responsibility for disposal may be put either on producer (if it is possible and/or feasible), or on the local distributor (or importer) of illegal goods. If KYC is applicable in the legislation, it will be also possible to consider shipping companies as a ‘waste holder’.

Management of hazardous waste.

Article 17 introduces traceability from production to destination and control of hazardous waste in order to meet the requirements of Articles 35 and 36. Article 19, states that Member States shall take the necessary measures to ensure that, in the course of collection, transport and temporary storage, hazardous waste is packaged and labelled in accordance with the international and Community standards in force.

In practice it means, that after decision confirming that pesticides are illicit hence becoming waste, waste holder is obliged to ensure relabeling of the containers as hazardous waste. Moreover, whenever hazardous waste is transferred within a Member State, it shall be accompanied by an identification document, containing the appropriate data specified in Annex IB to Regulation (EC) No 1013/2006. International shipments of hazardous waste are possible only in line with the provisions of Basel Convention.

Finally, Article 36 declares that Members States shall lay down provisions on the penalties applicable to infringements of the provisions of this Directive and shall take all measures necessary to ensure that they are implemented. The penalties shall be effective, proportionate and dissuasive.

3.      Conclusions

•        If pesticides are seized and their illicit status is proven, such pesticides may be legally considered as hazardous waste. In this case EU waste management legal framework is fully applicable.

•        From waste management perspective, there is no way of recycling or recovery of seized pesticides; only destruction is possible.

•        There is no possibility to ship seized pesticides to the place of origin or to re-address it to the third party as goods. The only possible movement is to destruction facility in country or in the third country.

•        In case of in-country transportation to a waste management facility shipping party will have to follow relevant national regulations. International shipment is possible only in line with procedures of Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal.

•        It is up to the law enforcement to decide who will have to be charged for destruction of seized stocks alongside the supply chain, as according to EU WFD, waste holders -producers and/or distributors - can be charged for waste destruction.

•        EU Member States may have specific provisions in national waste management regulations – in line with EU WFD. Law Enforcement authorities will need to contact relevant national Government institutions responsible for waste management in order to clarify such provisions or procedures. 

 

Mikhail Malkov,

Deputy FAO Programme Coordinator in Ukraine

PhD student of the Department

of Natural-Technogenic and Environmental Safety