23 July 2019

What is the legislative regime that governs international waste export and how does it work?

The main principles and objectives in this area are found in the Basel Convention of 1989 on the Control of Transboundary Movement of Hazardous Wastes and their Disposal. The key driver for the Basel Convention was a desire to reduce movements of hazardous waste between nations, and specifically to prevent transfer of hazardous waste from developed countries to less developed countries.

The EU Waste Shipment Regulation (EC 1013/2006) was enacted to further those objectives at EU level, and the Transfrontier Shipment of Waste Regulations 2007 provide for a range of enforcement powers and procedures at national level. Importantly for this case, the EU regulations provide a list of categories of waste which are prohibited for export to non-OECD member countries.

It is also worth noting that this body of legislation pre-dates the recent change in attitude, particularly in Asia, to the receipt and processing of European waste. However, such geopolitical factors play an important role when it comes to enforcement attitudes especially when considering whether prosecution is in the public interest.

What are the facts of this case?

Biffa Waste Services Limited had a contract in place with a Chinese-based customer for the delivery of "mixed waste paper" for recycling. Certain consignments of that product were inspected by the Environment Agency at the Port of Felixstowe en route to China. The case put forward by the EA was that its officers found the consignments to be contaminated with soiled nappies, sealed bags of excrement, clothing, food packaging, plastic bottles and so on.

The EA’s position was that there had been inadequate and insufficient sorting such that the consignments were not “mixed waste paper” (which could be legally exported) but were in fact still “household waste” (which could not be legally exported). It was Biffa’s case that the waste in question had been the subject of rigorous mechanical and manual sorting processes at its Edmonton facility, which had achieved a high degree of separation of the relevant elements; and that any remaining degree of contamination was residual and minimal.

Ultimately the Court of Appeal found that the question of whether there was sufficient waste contamination for the consignments to fall within the prohibited waste category (namely household waste) “was a matter of fact and degree for the jury”. In the subsequent Crown Court trial the Jury found against Biffa on that basis.

What are the practical implications of this case?

This is the latest in a long history of difficult cases on the classification of waste. These sort of cases always turn on their facts and without having been in the trial we need to be careful about drawing sweeping conclusions. However, we think there is no doubt that it is a decision that will trouble the waste sector, because it highlights how a judgement call on classification can lead to criminal consequences if you get it wrong, and the difficulties in defending that judgement call before a lay jury. 

Biffa’s stated position is as follows: throughout the case, the EA accused Biffa of failing to meet standards but the EA has resisted the opportunity to provide specific standards (i.e. numerical purity levels) to the industry through guidance. Therefore, at the heart of this case is the question: how much processing is enough?  Given the low and often negative value of segregated waste streams and the tight margins in turning mixed waste into segregated streams, it is not realistic to expect purity. But how good is good enough?  Biffa and its customers in China agreed on 98.5% purity as being an acceptable level for its mixed paper streams (and that percentage can be found in other industry documents) but of course that still allows 1.5% of the load to be non-paper items. 

When presented with stories about nappies and excrement in bags (and influenced no doubt by the EA assertion that Biffa exported more than 340,000 nappies in “mixed paper” consignments to China during 2015), it may be no surprise that a jury of 12 lay people might have sided with the EA.  It does beg the question whether the technical judgements required for classification of waste are best addressed by a jury, but that is the system the waste industry has to deal with. 

Ultimately, we are back to the age old problem of different interpretations in the classification of waste. Industry wants clear limits and tolerances. The EA will have concerns about supplementing a legal test (and an international one at that) with its own domestic interpretation which could lead to accusations of fettering its discretion. As the EA has said in response to criticism: the law is the law and all it is doing is enforcing it.

The law is clear, in so far as there is no ambiguity over the words. But that is not the same as having clarity over how to comply with the law.

One thing is for sure: we have not heard the last in this matter.

Key contact

Michael Barlow

Michael Barlow Partner

  • Head of Environment
  • Head of Water
  • Head of ESG

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