Legal Briefing

International shipment of waste: transporters beware

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Projects, energy and natural resources | 01 May 2013

As European society has grown wealthier, it has created more and more resource management challenges and opportunities. Each year in the EU alone we produce three billion tonnes of waste – some 90 million tonnes of it hazardous. This amounts to about six tonnes of solid waste for every man, woman and child1. The processing of waste is a Europe-wide issue with the Waste Framework Directive (WFD)2 providing the overarching legislative framework for the collection, transport, recovery and disposal of waste across 
the EU in a way that does not have a negative impact on the environment 
or on human health.


A revised version of the WFD was adopted 
in 2008 and, as well as setting out a common definition of ‘waste’3, it included key policy objectives, such as the waste hierarchy (prevention, re-use, recycling, recovery, disposal), and targets for increasing recycling rates for both household and construction and demolition waste. The European Commission has defined several specific ‘waste streams’ 
for priority attention, the aim being to reduce their overall environmental impact, including packaging waste, end-of-life vehicles, batteries and electrical and electronic waste.

Within Europe there is a growing trade in waste for recovery, with the amount of refuse-derived fuel exported from the UK for energy recovery rising threefold in 2012 compared to the previous year4.

However, with the development of international transport networks, waste treatment is now a global issue. The Basel Convention5 came into force in 1992 as a global response to the growing trade in hazardous waste between developed and developing countries, and in 2001 the Organisation for Economic Co-operation and Development (OECD)6 adopted a decision (OECD Decision)7, which classifies waste according to a traffic light system, with non-hazardous waste appearing on a green list and hazardous waste appearing on an amber or red list.

UK policy in this area is growing, influenced heavily by EU and international requirements, and the growing trend among UK waste market participants to take advantage of attractive gate fees being offered at European waste-to-energy recovery facilities. As a result, in England and Wales, the Environment Agency (EA) has recently devoted considerable efforts to detecting, investigating and prosecuting transporters of harmful wastes to developing countries, and we expect Natural Resources Wales to take a similar approach.

In addition, the EA’s Regulatory Position Statement on short-term storage of 
refuse-derived fuel at dockside prior to export or import8 recently came into force after concerns were raised around poor operating standards, inadequate containment, storage of excessive quantities and associated amenity problems such as odour and pests. There was a concern that the EA’s previous approach (via a ‘low risk waste’ position 
that such operations would not require a permit) was being exploited by operators storing waste at the dockside until they 
had critical mass to export, so much so 
that the position is being withdrawn with effect from 31 October 2013.

SHIPMENT OF WASTE: THE UK 
LEGISLATIVE FRAMEWORK

In the UK, the Transfrontier Shipment of Waste Regulations 2007 (UK Regulations) supplement the relevant EU regulation (EU Regulation)9 and create a procedural framework for the safe shipment of waste as well as prohibiting export to/import of waste from certain countries. The EU Regulation establishes procedures and control regimes depending on the origin, destination and route of shipment, the type of waste shipped and the type of treatment to be applied at destination. The EU Regulation applies to all shipments between member states, imported into or exported from the European Economic Community (the Community) or in transit through the Community.

There are two different procedures 
under the EU Regulation which apply to shipment of waste within the Community10: a ‘green listed’ procedure, which applies to non-hazardous waste intended for recovery, and a notification procedure, which applies to hazardous waste and to non-hazardous waste intended for disposal.

The notification procedure:

  • requires prior notification of a proposed shipment to the competent authority of dispatch11 and provision of related information;
  • requires the making of a written contract with the consignee for the recovery or disposal of the notified waste effective from the time of notification and for the duration of the shipment;
  • requires the provision of a financial guarantee or equivalent insurance covering the costs of transport, recovery or disposal and storage for 90 days;
  • allows the imposition of conditions for consent by the competent authorities of dispatch, transit and destination on specified grounds, such as the planned shipment not being in accordance with environmental protection, public order, public safety or health protection legislation or (where the shipment is of waste destined for disposal) the planned shipment not being in accordance with the Community principles of proximity, priority for recovery and self-sufficiency;
  • requires the keeping of documents for at least three years following commencement of shipment;
  • requires the take-back of shipments that cannot be completed and of illegal shipments;
  • requires supervision and control throughout the process by the competent authorities; and
  • requires no mixing of waste during shipment.

Imports from third countries of waste intended for disposal or recovery are prohibited, with the exception of imports from:

  • countries to which the OECD Decision applies;
  • countries which are party to the Basel Convention;
  • countries which have concluded a bilateral agreement with the EU or 
a particular member state; or
  • other areas during situations of crisis.

To address European policymakers’ concerns around the export of waste to developing countries, Article 34 of the EU Regulation prohibits exports from the Community of any waste destined for disposal12. Article 36 prohibits exports from the Community of, inter alia, (i) hazardous wastes; and (ii) wastes that a competent authority has reason to believe will not be managed in an environmentally sound manner, destined for recovery in non-OECD Decision countries.


PROPOSED AMENDMENTS 
TO THE UK REGULATIONS

Defra is currently consulting on draft Transfrontier Shipment of Waste (Amendment) Regulations 2013 (the 2013 Regulations), which will update the UK Regulations. The proposed changes in the 2013 Regulations contribute to the government’s commitment to improve enforcement and control of the waste exports regime. In summary, the key changes involve:

  • Setting up the required legal gateway to allow HM Revenue & Customs to disclose relevant export data to competent authorities in the UK. This will help competent authorities develop better intelligence on illegal waste exports.
  • Clarifying the role of the competent authorities for the transit of waste and the marine area. The 2007 Regulations designate the secretary of state as the competent authority for waste transiting the UK en route for disposal or recovery elsewhere, and waste moved to or from the marine area. This arrangement was only ever intended to be a short-term measure13.
  • Allowing the Border Force to stop and detain suspect containers should the opportunity arise. Under the UK Regulations, the Border Force can only stop and detain suspect containers at the request of a UK competent authority. The proposed amendment will allow the Border Force to stop suspect shipments and detain these at the port themselves.
  • Changing the fees payable for the import and export of waste into and from Northern Ireland. This will better reflect resources needed to enforce the UK Regulations in Northern Ireland14.

The consultation runs until 10 May 2013 and Defra intends that the 2013 Regulations will come into force this summer.

NEW CASE LAW: KEY POINTS

A series of recent prosecutions by the EA has led to the emergence of new case law on how to interpret the UK Regulations, in particular Regulation 23 of the UK Regulations, which makes it an offence if, in breach of Article 36 of the EU Regulation, a person transports waste that is destined for recovery in a country to which the OECD Decision does not apply. The key points, of which all those involved in the export of waste should be aware, are summarised below.

R V V & ORS [2011]

The defendants were due to stand trial in respect of various counts of transporting, or attempting to transport, waste for recovery in a non-OECD country.

At a preparatory hearing, the judge ruled that Regulation 23 applied to all those who were involved in transporting waste for export, from the point of origin where the waste was collected and stored for onward transmission to another country, through to the point where the waste was delivered to that country. An interlocutory appeal was heard by the Court of Appeal during which the defendants contended that an export did not occur until the waste actually left the Community or, alternatively, at the earliest when the waste started on the 
final journey.

The Court of Appeal dismissed the defendants’ argument. The prohibition in Article 36 contained two simple, but key, concepts. First, the waste had to be destined for recovery in the foreign country and secondly ‘export’ meant the action of waste leaving the Community. On the plain language of Article 36 therefore, waste could be destined for recovery in a non-OECD Decision country long before it reached the point of leaving the Community.

R V IDEAL WASTE PAPER 
COMPANY LTD & ORS [2011]

The appellants were charged with various counts of transporting waste for recovery in China.

The appellants collected waste that had been treated at a municipal recycling facility. The export of ‘waste collected from households’ for recovery is prohibited. However, the appellants argued that the waste they were transporting was ‘paper… and paper product wastes’, which is not subject to the prohibition on export for recovery unless it is contaminated by other materials to such an extent that it either:

  1. increases the risks associated with the waste to render it appropriate for submission to the written procedure; or
  2. prevents the recovery of the waste in an environmentally sound manner.

On inspection of the transportation containers, they were found to contain 
not only waste paper and cardboard, but items of household waste, plastics, metal cans, tetrapak cartons and rotting meat.

The appellants argued that the absence of any guidance from the EA or the setting of a standard to enable a judgment to be made by an operator as to whether its activities are likely to be treated as criminal or not meant that the proceedings against them amounted to an abuse of process.

The prosecution argued that it was a question of fact for the jury whether a particular consignment is household waste and the burden is on the prosecution to establish that it is still household waste, applying the criminal standard. There is clearly difficulty in specifying by weight or percentage what degree of contamination, if any, can be permitted. The quality of contamination, as well as the quantum of it, is a material factor.

The Court of Appeal dismissed the appeal, stating that a very high standard is required of operators in this field, but did comment that it saw scope for co-operation between the EA and operators to produce guidance.

R V EZEEMO & ORS [2012]

Seven appellants were convicted of 21 charges of transporting hazardous waste for recovery in Nigeria. The prosecution case was that the defendants transported mixed hazardous electrical waste comprising cathode ray tube televisions and fridge-freezers containing ozone depleting substances and compressor oil. The items had been collected from civic amenity or waste disposal sites and taken to collecting points where they had been loaded in containers destined for Nigeria. A random selection of the contents of the containers was examined by expert engineers and a significant proportion of the items examined were damaged beyond repair with some said to be dangerous.

The trial judge granted leave to appeal with the issues for determination by the Court of Appeal being whether the judge had been correct to rule and direct the jury that:

  1. if they were sure that the owner had discarded an electrical item at a civic amenity site (a) the item became waste for the purposes of the indictment; (b) the item did not cease to be waste until something was done to it to stop it being waste; and (c) when deciding whether something had been done to stop the item from being waste, the intention of the defendant as to what should be done or was going to be done with the waste was immaterial;
  2. there was evidence capable of proving the waste was destined for Nigeria for the purpose of ‘recovery’; and
  3. the offence was one of strict liability requiring no proof of knowledge that the product transported was waste or that there was an intention to transport waste to Nigeria for recovery.
Waste

The appellants’ case was that, by visual inspection and selection of the items for shipment at the waste amenity site and by portable appliance testing, by the time the items were consigned for delivery to Nigeria, they were no longer ‘waste’. Although the items were waste when they were discarded by owners at the waste amenity site, they, as intermediate holder of the waste had no intention of discarding the electrical items collected. The appellants had processed and tested the goods for re-use. Whether they achieved that aim or not was not relevant, it was a question of intention. The Court of Appeal examined in some detail previous authorities that held that, once an object has been discarded (and therefore become waste), the question of whether it has changed its status is one of objective fact. The fact on which the jury had to be sure was that the object was one of which the holder ‘discarded’ or ‘intended to discard’ and this was to be judged by what the holder did with it and not by the holder’s subjective belief.

Recovery

The appellants argued that the prosecution was unable to establish that what occurred in Nigeria was recovery rather than mere re-use. The key legislation in relation to the definition of recovery is the list of operations in Annex IIB of the WFD, which includes recycling and reclamation of metals, metal compounds and other inorganic materials. The Court of Appeal agreed with the prosecution’s contention that the list in the WFD should be construed generously so as to give Article 36 of the EU Regulation its intended effect. It cited Article 3 of the WFD, which requires member states to take appropriate measures to encourage ‘the recovery of waste by means of recycling, re-use or reclamation, or any other process with a view to extracting secondary raw materials…’, thereby recognising re-use of waste as a possible form of ‘recovery’. It also cited Article 5, which requires each member state to take measures to ensure that its waste is recovered with minimal danger to health and the environment, and to prohibit the abandonment, dumping or uncontrolled disposal of waste. The Court of Appeal concluded that the objective of Article 
36 is to protect non-OECD countries from 
the same dangers by prohibiting the export of hazardous waste to those countries 
for recovery.

Strict liability

The appellants contended that it cannot have been the intention of Parliament to create an offence, which, without fault, could result in criminal liability for all those who contributed to the transport of an unlawful shipment. The Court of Appeal held that all the offences created under the UK Regulations used the language of close regulation in pursuit of the safe management and shipment of waste. The offences were created for a failure to take the procedural steps required by the EU Regulation or the taking of a step that was prohibited by the EU Regulation. This was the language of strict liability. If a ‘guilty mind’ was required for the offence, in the absence of a specified lesser culpability, this would have to be knowledge of the material facts and this would substantially deprive the legislation of its intended effect, which was to deter those in the business of handling such material for export from taking risks with the environment.

CONCLUSION

The above cases will be of particular interest to those in the waste industry as well as those in transport organisations. In a warning to transporters, the Court of Appeal stated that the obligation placed upon them is to take care to acquire knowledge of the cargos they are transporting or risk breaching the UK Regulations. This series of decisions will be welcomed by the EA, with the onus firmly placed on those consigning and transporting to be vigilant and fully investigate the materials they are carrying.

Although this article has focused on prohibited shipments of hazardous 
waste, the EA is looking closely at waste offences as a whole. In addition, on 
14 March 2013, the Sentencing Council launched a consultation on a new guideline for environmental offences in England and Wales, including the unauthorised or harmful depositing, treatment or disposal of waste, following concerns that the levels of fines currently being given in the courts for environmental offences are not high enough and so neither reflect the seriousness of the offences committed nor have a sufficient deterrent effect on offenders15.

This is an area clearly on the radar of the EA and the courts and those involved in the consignment of waste should beware the growing trends in enforcement.

 

Key findings

  • The criminal offence of transporting hazardous waste to a non-OECD country is a strict liability offence and is not disproportionate.
  • Waste can be destined for recovery in a non-OECD country long before it reaches the point of physically leaving the Community.
  • Whether household waste has become a different waste stream is a question of fact for the jury. There appears to be a de minimis threshold for ‘contamination’ by other materials, but this is a question of fact.
  • The breadth of the activities caught by the transfrontier shipment of waste regime is wide – anyone involved in the transport of waste (by any form of transport) from the point of origin where the waste is collected/stored to the point of delivery is subject to the regime.

Notes

  1. http://ec.europa.eu/
  2. 2008/98/EC.
  3. Any substance or object which the holder discards or intends or is required to discard.
  4. Figures from the Environment Agency – 892,900 tonnes of refuse-derived fuel was exported throughout 2012, compared to 272,000 tonnes during 2011.
  5. UN Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.
  6. The OECD member countries are: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States.
  7. Council Decision C 107 on the control of transboundary movements of wastes destined for recovery operations.
  8. Regulatory Position Statement 128: the short term storage of refuse-derived fuel at dockside (www.environment-agency.gov.uk/business/topics/waste/145475.aspx).
  9. EU Regulation 1013/2006, which implemented the Basel Convention.
  10. And, with some modification, to certain shipments to European Free Trade Association (EFTA) and OECD Decision countries.
  11. The Environment Agency in England, the Scottish Environment Protection Agency in Scotland, the Department of the Environment in Northern Ireland for Northern Ireland 
and (as of 1 April 2013) Natural Resources Wales in Wales.
  12. Save to EFTA countries that are parties to the Basel Convention.
  13. The 2013 Regulations envisage a role for Department of Energy & Climate Change (DECC) in undertaking inspections and evidence gathering at offshore installations on behalf of the competent authorities. DECC will pass relevant information to the UK competent authorities who will continue to take the appropriate enforcement action. Defra is also asking for evidence in relation to the types and quantities of wastes generated by the offshore renewable energy sector and whether such waste is exported outside the UK mainland for recycling, treatment or disposal to understand whether further provision needs to be made in the UK Regulations to deal with such waste streams.
  14. Changes are also needed as a consequence of the establishment of the new Welsh competent authority, Natural Resources Wales. Defra hopes to make these changes, alongside the other changes, in the 2013 Regulations assuming legal technicalities are resolved in time. Otherwise the transfer of functions to the Welsh competent authority will be made in a further amendment to the UK Regulations as soon as possible.
  15. Sentencing Council: Environmental Offences Guideline Consultation, 14 March 2013 (http://sentencingcouncil.judiciary.gov.uk/get-involved/consultations-current.htm).