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 number
Agency officers and professionals (Police & Local
Authority)
surveillance
Photographs
Video footage
Samples
Expert & 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
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
“It was not me!”
WSR (2) - Introduction
Regional agreement – Article 11 Basel
Convention
Recognises right of Basel States (especially nonOECD) 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 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.
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 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
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 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
WSR 11 – Article 37 continued
Requirements for export of green list to nonOECD 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 – 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
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 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
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 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
Questions ?