Moving waste abroad? How to keep it legal

Written by: RWW | Published:

Thanks to rising landfill tax rates, excess treatment capacity in some European countries and excess shipping capacity, the shipment of waste in Europe has risen. Emma Andrews and Nick Churchward at Burges Salmon explore possible pitfalls that face waste exporters.

Waste treatment is a global issue. International transport networks continue to develop and the ever wealthier societies of developed countries present more and more resource management challenges and opportunities, as waste producers and handlers seek out the most economic destination for their waste materials. This has given rise to a growing trade in waste for recovery, apparent both globally and within Europe, with regulation becoming increasingly widespread and stringent in response.  

Within the UK there are a number of factors that have given rise to the growth in waste exports at a European level. These include excess shipping capacity due to the economic downturn resulting in lower costs; rising landfill tax rates which, for active waste, reached £80 per tonne as of 1 April 2014 and are not expected to drop below this rate before 2020; and excess treatment capacity in a number of European jurisdictions.

Global response

The Basel Convention came into force in 1992, as a global response to the growing trade in hazardous waste between developed and developing countries. 

As a result, in 2001 the Organisation for Economic Co-operation and Development (OECD) adopted a decision - known as the ‘OECD Decision’ - 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.

At a European level, the EU Waste Shipments Regulation implements the UN Basel Convention, establishing procedures and control regimes dependent upon the origin, destination and route of shipment, the type of waste shipped and the type of treatment to be applied at destination. 

Known as ‘The EU Regulation’, this applies to all shipments between member states imported into or exported from the EU or in transit through the EU.

UK legislative framework

In the UK, the Transfrontier Shipment of Waste Regulations 2007 supplement the EU Regulation and create a procedural framework for the safe shipment of waste, as well as prohibiting export of waste to and import of waste from certain countries.

There are two different procedures which apply to shipment of waste within the EU: a ‘green listed’ procedure which applies to non-hazardous waste intended for recovery, and a notification procedure which applies to all hazardous waste and to non-hazardous waste intended for disposal (in the limited circumstances where this is not prohibited). 

It is the latter that should be of concern to those in the waste and transport industries.

The notification procedure requires:

Prior notification of a proposed shipment to the competent authority of dispatch and provision of related information 

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 

The provision of a financial guarantee or equivalent insurance covering the costs of transport, recovery or disposal and storage for 90 days 

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 legislation 

The keeping of documents for at least three years following commencement of shipment 

The take-back of shipments that cannot be completed and of illegal shipments 

Supervision and control throughout the process by the competent authorities and

No mixing of waste during shipment.

Imports of waste intended for disposal or recovery from non-EU countries are prohibited, with the exception of imports from four areas: OECD countries; 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 policy makers’ concerns about the export of waste to developing countries, the EU Regulation prohibits exports from the Community of any waste destined for disposal and exports from the Community of, among other things, hazardous wastes and wastes which a competent authority has reason to believe will not be managed in an environmentally sound manner destined for recovery in non-OECD countries.

On 1 May 2014, new legislation came into force in the UK which amends the UK Regulations, improving enforcement by authorising HMRC to disclose relevant export data to the UK competent authorities, and clarifying who is the competent authority for waste transiting the UK, as well as for waste moved to/from the marine area.

Recent prosecutions 

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 a person transports waste that is destined for recovery in a country to which the OECD Decision does not apply.  

Here are some key points that all waste exporters should be aware of. 

Firstly, the breadth of the activities caught by the transfrontier shipment of waste regime is wide and, therefore, 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.

Also, the criminal offence of transporting hazardous waste to a non-OECD country is a strict liability offence and is not disproportionate. 

In short, all the offences created under the UK Regulations use the language of close regulation in pursuit of the safe management and shipment of waste and the legislation’s intended effect is to deter those in the business of handling such material for export from taking risks with the environment. 

Lastly, it is important to acknowledge that all waste can be destined for recovery in a non-OECD country long before it reaches the point of physically leaving the EU.

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