Background
Regulation of export of waste
Proposed increase
The legal effects of contravening the legislative provisions on the export of waste for disposal or recovery to developing countries can be substantial. The Norwegian Climate and Pollution Agency (NCPA) has proposed an increase in the criminal penalties for the illegal export of waste.
In industrialised countries such as Norway, growing affluence has led to increased consumption of consumer goods. The rapid development of technology has led to an increase in electrical and other waste-containing substances that are potentially harmful to the environment. At the same time, used goods have become a sought-after commodity in some developing countries. A key issue is often whether the object in question can be classified as waste or as used goods intended for resale. In the global economy, even waste destined for disposal or recovery has become a commodity and the subject of international trade. Due to such demand, waste and used goods have an intrinsic commercial value. This has created an industry for the cross-border shipment of waste.
The shipment of waste intended for disposal or recovery in developing countries may present a substantial risk to the local environment. The authorities in some of these countries often lack the financial power, competence and capacity to dispose of this waste in an environmentally sound manner. This may lead to severe pollution and risk of health damage.
Under international law, Norway is obliged to prevent developing countries from becoming a dumping ground for waste or used goods that endanger the environment and human health.(1) According to the NCPA,(2) over the past year there have been a number of attempts to export waste illegally from Norway to developing countries in Asia and Africa.(3) It is against this background that the NCPA has now proposed increases in the criminal penalties for the illegal export of waste.
Regulation of export of waste
Chapter 5 of the Pollution Control Act(4) regulates issues pertaining to the disposal of waste.(5) Chapter 5 is further implemented in the Waste Regulation,(6) Chapter 13 of which establishes provisions on the transfrontier shipment of waste. Pursuant to Section 13(1), EU Regulation 1013/2006(7) shall apply as the Norwegian regulation, subject to amendments and additions pursuant to the European Economic Area Agreement.(8) The objective of the EU Regulation is, among other things, "the protection of the environment, its effects on international trade being only incidental".(9) The procedural and substantive provisions set out in the EU Regulation shall prevent the illegal export of environmentally harmful waste.
Proposed increase
Chapter 10 of the act sets out provisions on penal measures for breach of the act and regulations issued pursuant to the act. According to Section 79(2), regulations issued pursuant to certain provisions on waste may establish that anyone that contravenes the regulations shall be liable to a fine. This is further implemented in the Waste Regulation; pursuant to Section 17(7), contraventions of Section 13(1) of the Waste Regulation may be penalised with fines unless the matter is covered by a more severe penal provision (eg, imprisonment).
The provisions on penal measures for breach of the act are supplemented by generally applicable provisions in the Criminal Code.(10) Pursuant to the Criminal Code, a breach of the above-mentioned provisions on the illegal export of waste is classified as a 'minor offence'. Attempts to commit a minor offence(11) are not subject to criminal liability.(12) Consequently, attempts to export waste illegally are not criminally punishable.
In light of recent attempted illegal export of waste to Asia and Africa, the NCPA has proposed an amendment to the act that may, if adopted, increase the maximum sentence for the illegal export of waste to developing countries to imprisonment for up to two years. If the amendment is passed, breach of the provisions on the illegal export of waste will no longer be classified as a minor offence, but rather as an offence, and will thus become subject to criminal liability. Further, the limitation period for pressing charges will be extended from two years to five years. In addition, the NCPA proposes that the police be given legal authority to search entities or persons on suspicion of illegal export of waste.
The proposed amendment has been forwarded to the Ministry of the Environment. No indications have been given regarding when (or even whether) the ministry will consider the proposed increase in penal measures. However, the ministry has stated that it is working on amendments to the act in order to strengthen the follow-up of the illegal export of waste.
For further information on this topic please contact Merete Kristensen at Arntzen de Besche Advokatfirma AS by telephone (+47 23 89 40 00), fax (+47 23 89 40 01) or email ([email protected]).
Endnotes
(1) Norway has ratified the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. The convention allows parties to the convention to prohibit the export of waste if it believes that the waste will not be managed in an environmentally sound manner.
(2) The Norwegian regulatory authority responsible for, among other things, pollution and waste.
(3) Article in Norwegian: www.klif.no/no/Aktuelt/Nyheter/2011/Desember-2011/Vil-straffe-ulovlig-avfallseksport-med-fengsel/.
(4) Act 1981/6.
(5) According to Section 31 and 32 of the act, the authorities may make additional provision on disposal of waste in the Waste Regulation.
(6) June 1 2004.
(7) Regulation 1013/2006 on Shipments of Waste.
(8) Norway is not a member of the European Union, but a member of the European Economic Area (EEA) Agreement. This multilateral agreement extends the internal EU market to Norway, Liechtenstein and Iceland (the EEA countries).
(9) See the preamble.