1. Environment Agency & The Waste Shipment Regulation
Howard McCann
Principal Counsel
Environment Agency
Bratislava
26-27 June 2012

2. 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

3. 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)

5. Environment Agency (3) Illegal waste dumping Illegal waste exports
Ozone depleting substances
Water pollution
Radioactive substances
Illegal fishing and poaching
Boat navigation
Flood defence

6. 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?

7. 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)

8. Incident reporting & Evidence
Eye witness – Agency hotline number
Agency officers and professionals (Police & Local Authority)
surveillance
Photographs
Video footage
Samples
Expert & international evidence

9. 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

10. 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

11. Useful Abbreviations
TFS – Transfontier Shipment of Waste UK Regulations
WSR – Waste Shipment Regulation
WFD – Waste Framework Directive
WEEE – electrical waste
Y46 – waste collected from households
OECD – Organisation for Economic Co-operation and Development
Non-OECD – emerging countries
CA – Competent Authority

12. “It was not me!”

13. 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

14. 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

15. 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

16. “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

17. WSR (5) Shipments within member states Green List Waste – Article 18
Single entry wastes in Annex III & Annex V Part 1 List B for Recovery
Must be accompanied by Annex VII Document
MUST be a contract between person arranging shipment and consignee:
In place when the shipment starts
obligation where shipment cannot be completed or is illegal for waste to be taken back or recovered
MUST copy of contract when requested by CA.

19. 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!!!

20. WSR (6) Shipments within Member States Amber List Waste -
Prior written notification and consent of all Competent Authorities involved in the shipment
Applies to all wastes destined for disposal
Also 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

21. 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

22. 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

23. 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

24. “Window dressing”

25. WSR (10) – Other exports to non-OECD
Not all exports for recovery are prohibited
Article 37 procedure for exports green list waste
Countries must notify EU of procedures they require for export, either
Article 18, notification or prohibition
If country does not respond then notification

26. 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

27. Waste Classification?

28. WSR (12) - Other Exports OECD Articles 38 – notification
All export to the Antarctic are prohibited
All exports to overseas countries or territories are prohibited
Imports for disposal prohibited Article 41 except from Basel Countries or other Article 11 agreements – Notification applies
Imports for recovery prohibited except Basel Art 11 and OECD - Notification applies

29. 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

30. 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

31. 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.

32. WSR (16) – Other provisions
Article 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

33. 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

34. WSR (18) - Finally
2008/99 EC – Directive on the Protection of the Environment through Criminal Law
Obliges Member States to have offences for a number of environmental breaches including WSR
Must be committed at least with negligence, but can also be without any mens rea
Penalties must be effective proportionate and dissuasive
Against legal persons as well;
Must have been implemented by December 2010

35. Questions ?