Environment Agency & The Waste Shipment Regulation

Howard McCann

Principal Counsel

Environment Agency

Bratislava

26-27 June 2012

howard.mccann@environment-agency.gov.uk

Environment Agency (1)

Main Environmental Regulator

for England and Wales

Population 54 million people

11,000 employees, 7 Regions

1,500 enforcement trained staff

120 lawyers

44 prosecutors environmental

crime only

Environment Agency (2)

Partly self-funded organisation

National Environmental Crime Team – cross regional cases – 30 officers

National intelligence Team

International Waste Shipments Team

Regional crime teams – 120 officers

Own investigators (ex-police and technical specialists)

Environment Agency (3)

Illegal waste dumping

Illegal waste exports

Ozone depleting substances

Water pollution

Radioactive substances

Illegal fishing and poaching

Boat navigation

Flood defence

Motives of Environmental Crime

Greed

Deliberate acts – waste deposit or poaching

Profit or Cost saving

Calculated business decision

Undercutting legitimate operators

Ignorance of the law?

Emergency?

Enforcement figures 2011

694 Prosecutions, 686 successful

Total fines £4.6 million, costs £2.1 million

20 Prison sentences, maximum 5 years

Longest sentence 4 years (money laundering)

Incident reporting & Evidence

Eye witness – Agency hotline numberAgency officers and professionals (Police & Local Authority)surveillancePhotographsVideo footageSamplesExpert & international evidence

Criminal Legislation

Police and Criminal Evidence Act 1984

Criminal Procedure and Investigations Act 1996

Criminal Justice Act 2003

Regulation of Investigatory Powers Act 2000

Serious and Organise Crime Act 2003

Crime (International Co-operation) 2003;

Human Rights Act 1998

Waste Shipment Regulation (WSR) 1013/2006

First Preamble Waste Shipment Regulation

The main and predominant objective and component of this Regulation is the protection of the environment, its effects on international trade being only incidental”

High level of environmental protection in European Treaty. Similar to Basel

Useful Abbreviations

TFS – Transfontier Shipment of Waste UK RegulationsWSR – Waste Shipment RegulationWFD – Waste Framework DirectiveWEEE – electrical wasteY46 – waste collected from householdsOECD – Organisation for Economic Co-operation and DevelopmentNon-OECD – emerging countriesCA – Competent Authority

“It was not me!”

WSR (2) - Introduction

Regional agreement – Article 11 Basel Convention

Recognises right of Basel States (especially non-OECD) to prohibit import of hazardous waste and Y46 – household waste

Deals with shipments into, out of and transit through the European Community.

Excludes radioactive waste, explosives, waste generated by armed forces or relief organisations

WSR (3)

All relevant definitions taken from European Law.

Adopts “traffic light” system of OECD Decision

Green List – normal commercial controls plus contract in case of illegal shipment – Annex III & V Part 1

Amber List – prior notification and consent – Annex IV

Red list – prohibition – Annex V Parts 2 & 3

WSR (4) – Definitions Article 2

Definitions of ‘waste’, ‘producer’ ‘disposal’, ‘recovery’, ‘holder’, ‘collector’ ‘broker’ found in Waste Framework Directive‘notifier’ – Article 2(15) – top down approach‘export’ – Article 2(31)‘transport’ – Article 2(33)‘shipment’ – includes planned shipment‘Illegal shipment’ – Article 2(35) 7 categories follows similar definition to Basel Article 9

“Shipment” – Article 2(34)

“the transport of waste destined for disposal or recovery which is planned or takes place”

EU Wood Trading case (Case C-277/02) 'shipment' of waste was to be perceived in its entirety, from the point of departure in the member state of dispatch to the end of its processing in the member state of destination;

Pre-2006 WSR but approved in English case of R v KV

WSR (5) Shipments within member states Green List Waste – Article 18

Single entry wastes in Annex III & Annex V Part 1 List B for RecoveryMust be accompanied by Annex VII DocumentMUST be a contract between person arranging shipment and consignee:In place when the shipment startsobligation where shipment cannot be completed or is illegal for waste to be taken back or recoveredMUST copy of contract when requested by CA.

Annex VII form – Green List Waste

Always look for:

Person who arranges shipment

Consignee

Carriers

Waste Generator - is this the site of loading?

Where waste is being recovered

Description

Contract between person arranging shipment and consignee – IMPORTANT!!!

WSR (6) Shipments within Member States Amber List Waste -

Prior written notification and consent of all Competent Authorities involved in the shipmentApplies to all wastes destined for disposalAlso applies to recovery of (i) wastes listed in Annex IVA(ii) waste not classified in a single entry(iii) mixed municipal waste(iv) Hazardous waste listed in Annex VIII of Basel

WSR (7) – Notification continued

Lengthy procedure – Articles 4 -17

Includes contract between parties

Financial guarantee in case of shipment not being completed or being illegal

Competent Authorities can object to proposed shipments

If consented, recovery facility must provide confirmation in writing that waste has been received

Notification Documents at Annex 1A & B and Annex II

Similar to Article 6 Basel Convention

WSR (8) – Prohibition (Red List)

ALL Exports of waste from the EU for disposal are prohibited except EFTA (European Free Trade) Countries

EFTA = Iceland, Norway, Switzerland and Liechtenstein

Procedure to EFTA is notification with additional provisions of Article 35

WSR (9) – Prohibition continued

Exports to non-OECD countries of waste for recovery are prohibited: Article 36 – Biggest Concern!(i) waste listed as hazardous in Annex V(ii) Waste listed in Annex V Part 3 - e.g. Y46(iii) mixtures of hazardous waste, and non-hazardous waste(iv) waste notified as hazardous by destination country or prohibited by them.(v) waste the cannot be managed in an environmentally sound manner in destination country

“Window dressing”

WSR (10) – Other exports to non-OECD

Not all exports for recovery are prohibitedArticle 37 procedure for exports green list wasteCountries must notify EU of procedures they require for export, eitherArticle 18, notification or prohibitionIf country does not respond then notification

WSR 11 – Article 37 continued

Requirements for export of green list to non-OECD countries listed in

(i) Commission Regulation (EC) No 1418/2007

(ii) Commission Regulation (EC) No 740/2008

(iii) Commission Regulation (EC) No 967/2009

(iv) Commission Regulation (EU) No 837/2010

Waste Classification?

WSR (12) - Other Exports

OECD Articles 38 – notificationAll export to the Antarctic are prohibitedAll exports to overseas countries or territories are prohibitedImports for disposal prohibited Article 41 except from Basel Countries or other Article 11 agreements – Notification appliesImports for recovery prohibited except Basel Art 11 and OECD - Notification applies

WSR (13) – Take Back

Articles 22-25

Applies where shipment cannot be completed or is illegal

Where CA finds shipment is illegal they must immediately inform all other competent authorities

Waste must be taken back by notifier, if no notification then notifier de jure, if impracticable then by CA, or impracticable

Recovered or disposed of by CA

WSR (14) - Costs of take Back

Costs arising from take back including storage transport, recovery or disposal from(i) notifier, if no notification(ii) notifier de jure(iii) the CA of dispatch

Person who arranged shipments is subject to the same obligations as notifier if using Annex VII form and(i) waste is not green list; or(ii) not specified materially in Annex VII

WSR (15) – Other provisions

Article 28 – if disagreement between CA’s about waste or non-waste then it shall be waste.

If CA’s cannot agree on classification of waste then it shall be Annex IV – notification

Article 49 - Protection of the Environment – producer notifier and others involved must make sure that waste is dealt with in an environmentally sound manner

CA of dispatch shall prohibit export if it believes waste will not be managed in a sound manner.

WSR (16) – Other provisionsArticle 50 – enforcement - penalties in member states must be effective proportionate and dissuasive

Member States must carry out checks on shipments at the point of origin, within and at the frontiers of the EU and its destination

Member States must co-operate in the prevention and detection of illegal shipments

A Member State may request another to take enforcement action against person suspected of being involved in illegal shipments

WSR (17) – Other provisions

Article 52 – Member States co-operate with Basel and other organisations to share information, promote environmental technologies and develop good practice

Article 57 – the Commission shall examine questions raised by implementation of WSR e.g. guidelines for EEE/WEEE and export

Article 63 – transitional provisions e.g.: Green List waste to Poland must be notified until 31 December 2012

WSR (18) - Finally

2008/99 EC – Directive on the Protection of the Environment through Criminal LawObliges Member States to have offences for a number of environmental breaches including WSRMust be committed at least with negligence, but can also be without any mens reaPenalties must be effective proportionate and dissuasiveAgainst legal persons as well;Must have been implemented by December 2010

Questions ?