TRANSBOUNDARY WASTE SHIPMENTS
This Summary is intended to provide readable starting-point for understanding those EU and UK laws which concern the transboundary shipments of waste: exports and imports of waste (including the transit of waste to and from third countries).
The Summary is concerned ultimately with transboundary shipments so far as they concern imports and exports in and out of the UK. However, UK law is so closely connected with EU provisions, that the EU provisions have to be discussed. UK law applies relevant EU law, and this is one area where the rules do not change after the end of the ‘Brexit’ implementation period.
As a ‘Summary’, that is just what this is. The contents are not intended to replace the voluminous permutations of the regulations which appear in the relevant legislative provisions.
Overview – the relationship between international agreements and EU and domestic laws
The EU and UK rules reflect the detailed provisions of an international treaty, namely the Basel Convention on the Control of Transboundary Movements of Hazardous Waste. This is a treaty the aim of which, principally, is to restrict the export of hazardous waste to a minimum, especially for disposal to less developed countries.
Additionally, EU and UK laws accommodate the contents of an agreement made between OECD countries, which is designed to regulate the movement of waste for recovery by other OECD countries, recyclable waste being a valuable commodity.
The most recent OECD Decision (C(2001)107/Final) was concluded in order to ensure that the OECD’s procedures and requirements did not duplicate amendments made to the Basel Convention in 1998. This harmonisation is therefore reflected in the EU law (and also, therefore, the UK law).
The key EU law from which the ‘Brexit’ post transition law is derived is Regulation 1013/2006/EC on Shipments of Waste (also known as the Waste Shipments Regulation).
Regulation 1013/2006 contains detailed provisions about the movement of waste, the rules and procedures for which may be referenced to the provisions of the Basel Convention and the OECD Decision.
For instance, in the case of those shipments within the EU which require a procedure of prior written notification to be observed, a Member State may object to an import of waste destined for disposal if that State wishes to exercise its right pursuant to Art.4(1) of the Basel Convention to object to importation (on the ground that it has given prior notification to the parties to the Convention that such waste is unacceptable). (See Art.11(1)(e).)
Another example can be taken from the section of the EU Regulation which concerns imports of waste into the EU from third countries. All imports of such waste for the purposes of recovery are prohibited, save for various categories, including “from (a) countries to which the OECD Decision applies; (b) other countries which are parties to the Basel Convention”. (See Art.43.)
It will be observed that the provisions of both the Basel Convention and the OECD Decision need to be followed to understand the detailed working of the Waste Shipments Regulation. This may extend to the separate classifications of the wastes themselves.
Criminal offences in the UK
The ECJ has considered a very wide range of aspects of Regulation 1013/2006.
In the UK courts, the major concern has been the breadth and meaning of the criminal consequences of domestic law when read with the Shipments of Waste Regulation, in particular the prohibition on the export of certain classes of waste for recovery (rather than disposal) outside the EU. An example is waste paper which has been collected and sorted by UK traders for export to China.
Thus, the EU Regulation, as it has been interpreted by the criminal appeal court in London, means that the process of export commences at the point where export starts, for instance on consignment or loading. The relevant offence is one of strict liability, and the prosecution is required to prove only that the characteristics of the waste fall within one of the classes of waste prohibited by the Convention. If there is a minimal degree of contamination so that what is being shipped can be characterised as a non-prohibited class of waste, then that would provide a defence. It is not a defence to show that, on sorting at the place of destination, a local sorting facility would turn the exported material into a different class of (permitted) waste material.
See R v. KV (2011), R v. Ideal Waste Paper Co Ltd (2011), R v. Biffa Waste (2019) and R v. Biffa Waste (2020).
The Basel Convention and the OECD Decision
In order most conveniently to explain how EU and therefore UK legislation operates, it is useful to say more about the underlying core treaty.
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted on 22 March 1989 and came into force on 5 May 1992.
The Convention seeks to ensure that parties to the Convention take necessary measures to control the export and import of hazardous (and other) wastes, in particular so as to ensure that the movement of wastes between States is regulated in order to protect human health and the environment.
As of October 2020 there were 188 parties to the Convention (being States which have expressed their consent to being bound by the treaty).
The Convention classifies wastes as hazardous according to either (i) a combination of specific waste streams, their chemical constituents and hazardous characteristics or (ii) their classification by parties to the Convention.
37 States forming a group, consisting of OECD, EU Member States and Liechtenstein, have special status as “Annex VII” States. By amendments dated 5 December 2019 (known as the BAN Amendment, to which 99 states are parties), these States are obliged to prohibit all transboundary movements of hazardous wastes for the purposes of many disposal and recovery and recycling activities specifically listed in the Convention. That is to say that there is a ban of their movement to non-Annex VII States in respect of the specified disposal, recovery and recycling activities.
The BAN amendment apart, the Convention allows parties to notify the other parties that they prohibit the import of hazardous waste. Where such notification has taken place, the export of such waste to those parties is prohibited.
The export of those hazardous wastes, the specific import of which has not been prohibited, is permissible, so long as consent in writing to their import has been obtained in an individual case.
Subject to the proviso that State parties can put in place their own additional requirements in order better to protect human health and the environment, the Convention includes a wide range of additional measures intended:
- to minimise the generation of hazardous wastes
- to ensure the availability of adequate disposal facilities for such waste
- to prevent pollution and harm to human health from hazardous wastes
- to ensure that transboundary movement of such wastes is kept to a minimum and safely managed
- to prohibit their export to parties where there is reason to believe that they will not be managed in an environmentally safe manner
- to provide information about the transboundary movement of a hazardous waste when such movement takes place
- to prevent the import of hazardous waste if a party has reason to believe that it will not be managed in an environmentally sound manner
- to cooperate with other parties in achieving the aims of the Convention
- to ensure that within its jurisdiction, (i) actors are authorised, (ii) hazardous waste is appropriately packaged, labelled and transported and accompanied by a movement document from the point at which a transboundary movement takes place to the point of disposal
- to ensure that exported wastes are managed in an environmentally safe manner in states of importation
- to ensure that the transboundary movement of waste is only allowed if (i) the exporting State does not have the technical capacity to dispose of the wastes in an environmentally friendly manner, or (ii) the waste is required as a raw material in the State of import, or (iii) the movement of the waste is managed according to the criteria to be decided by the parties
EU law – Regulation 1013/2006/EC
As stated above, the Basel Convention became part of EU law by virtue of Regulation 1013/2006/EC (the Waste Shipments Regulation).
This Regulation establishes procedures and control regimes for waste shipment “depending on the origin, destination and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination”. It applies, therefore, to shipments of waste according to whether the shipment is between Member States (whether or not in transit through third countries), whether it is in transit through the EU, whether it is exclusively within Members States, or whether it is imported into or exported from the EU.
Shipments within the EU (Title II): a system of prior notification and consent
In respect of shipments of waste within the community, Regulation 1013/2016 sets out an overall procedural framework which consists of a system of prior written notification and consent depending on whether or not the waste is destined for disposal or recovery (see Title II). Waste destined for disposal is subject to the more stringent set of requirements.
“Notification” for the purpose of the Regulation requires information to be provided in keeping with the details of the waste, the conclusion of a contract (for disposal or recovery) as between notifier and consignee, and the existence of a financial guarantee. The financial guarantee may alternatively be a contract of insurance, but whichever financial vehicle is chosen, it is for the purpose of assisting in the take-back of a shipment which cannot be completed.
Notification is handled by the ‘competent authorities;’ of the Member States, although detailed documentation must be completed by exporters and importers.
The purpose of a financial guarantee is to make provision for the costs of transport, storage and recovery or disposal. It will be called upon where a shipment cannot be completed or it has to be returned because the shipment is found to be illegal.
Exports of waste for disposal to third countries (Title IV)
Articles 34 and 35 contains a series of prohibitions on the export of waste destined for disposal, save for some limited circumstances (waste destined for disposal to an EFTA country which is a party to the Basel Convention). The Title II provisions concerning notification apply, with certain adaptations.
Article 36 contains a separate prohibition of exports of waste from the EU to non-OECD Decision countries. This is the article which has preoccupied the court of criminal appeal in London. It has been relevant by reason of the recycling industry of material abroad, in particular to China.
The Art.36 prohibition is complex, but at its core is the prohibition of waste defined by reason of its categorisation within certain hazardous waste categories. The prohibition also applies in respect of waste mixtures, waste the import of which is prohibited by the country of destination or waste which the competent authority of dispatch reasonably believes will not be managed in an environmentally safe manner.
The Title II provisions apply with various stringent adaptations and additions.
Imports into the EU, and waste in transit to and from third countries
Titles V and VI of the Waste Shipments Regulation concerning shipments of waste into the EU (whether for disposal or recovery), and also shipments of waste in transit to and from third countries, require separate consideration. The relevant provisions (Arts.41-46 and Arts.47-48) are less complex than the foregoing.
The specific transboundary provisions of the Basel Convention and of the OECD Decision as incorporated into Regulation 1013/2006 are to be enforced in UK law by means of the Transfrontier Shipment of Waste Regulations 2007/1711.
A central part of the 2007 Regulations are the series of offences which they create.
Regulation 17 creates an offence of shipping waste in breach of the requirements of the EU Regulation to manage shipments in an environmentally sound manner and without endangering human health.
Regulations 19 and 20 create offences for failure to comply with the procedural requirements in the EU Regulation that apply to shipments of waste to or from the United Kingdom to or from other member States.
Regulations 21 to 25 create offences for failure to comply with the prohibitions and procedural requirements in the EU Regulation that apply to exports of waste from the United Kingdom to third countries. It is regulation 23 in conjunction with Art.36, Regulation 1013/2016 (prohibition on export of wastes for recovery to non-OECD countries) which has formed the basis for the prosecutions to which reference has been made in the introductory section above.
Regulations 26 to 31 create offences for failure to comply with the prohibitions and procedural requirements in the EU Regulation that apply to imports of waste into the United Kingdom from third countries.
Regulations 32 to 35 create offences for failure to comply with the procedural requirements in the EU Regulation that apply to the transit of waste through the United Kingdom to and from third countries.
Regulations 36 to 45 create offences for failure to comply with the duties in the EU Regulation of various categories of persons, including notifiers, persons who arrange shipments of waste subject to the general information requirements, operators of facilities, consignees and laboratories in respect of the shipment, recovery or disposal of waste in the United Kingdom.
Regulations 58 through to 59C provide for penalties and sanctions. Under reg.59 penalties (a) on summary conviction, are to a fine not exceeding the statutory maximum available in the magistrates, or to imprisonment not exceeding three months, or both and (b) on conviction on indictment, to an unlimited fine or to imprisonment for a term not exceeding two years, or both.
The 2007 Regulations will continue to have effect in the UK at the end of the implementation period by way of the amendments contained in the International Waste Shipments (Amendment) (EU Exit) Regulations 2019/590.
Just by way of an example, here are versions pre- and post- 31 December 2020, of Art.23 (the prohibition on the export of certain waste for recovery to non-OECD countries), which has featured so significantly in criminal cases in London.
This is the pre-31 December 2021 version:
“A person commits an offence if, in breach of Article 36(1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply.
This is the post-31 December version:
“A person commits an offence if, in breach of Article 36(1), he transports waste specified in that Article that is destined for recovery in a non-EU country to which the OECD Decision does not apply”.
In other words, the relevant EU and UK legislation remain closely aligned.