On 28 October 2020 the Environment Agency (“EA”) announced that a consignment of 21 waste containers, which were illegally shipped to Sri Lanka in 2017, had been successfully returned to their point of origin in the UK.
The containers, which are believed to have been shipped in 2017, were contended to include reusable products such as used mattresses, carpets and rugs. However upon inspection, authorities said that plastic, polythene as well as ‘hospital waste’ were found. The type of hospital waste was not confirmed, but previous illegally imported containers had included bandages and body parts from mortuaries.
This case is the latest in a line of stories which have made it into the mainstream media regarding recycling exports where illegal waste has been returned to the UK. Malaysia is just one particularly high profile example where the UK was found to have sent illegal contaminated waste to its ports. Malaysia returned 42 shipping containers of illegal plastic waste, with their Environment Minister publically stating that they would ensure that Malaysia did not “become the garbage dump of the world”.
The Global Waste Trade
Countries such as the UK, US, Germany, Canada, and Australia are among those who send large consignments of waste overseas.
Until 2018 a significant proportion of the world’s waste materials were exported to China. However due to concerns about contamination and pollution, China refused to buy recycling which was not 99.5% pure. This caused many exporting countries to redirect their waste material to Malaysia, Vietnam, Thailand, Indonesia, Taiwan, South Korea, Turkey, India and Poland.
The UK relies upon other countries to buy its waste as it simply does not have the infrastructure to deal with the volume of waste it produces domestically, meaning that millions of tonnes of waste are shipped overseas every year. This helps reduce domestic landfill, meet recycling targets and is cheaper than dealing with the waste domestically. For many of the countries receiving this waste, it is a valuable source of income. However the quick economic gain from importing or exporting hazardous material is overshadowed by its potential harm to the environment and society, particularly when it is sent to countries which may not be able to guarantee its safe and proper handling. For example, a recent Greenpeace report highlighted that in spite of the Malaysian government closing 218 plastic recycling factories between 2019 and 2020 for regulatory non-compliance, the UK continues to export waste there.
Difficulties can also arise when the waste which is exported is not sufficiently recyclable, mislabelled and/or hazardous and the country importing the waste has not actually consented to receive material of this nature. This is what is said to have occurred in Sri Lanka, with the material being labelled as ‘recycling’ when it was in fact plastic and hazardous waste.
What action will the UK authorities take in respect of this export to Sri Lanka?
EA enforcement officers have said that they are now seeking to confirm the types of waste within the containers to Sri Lanka and who exported it.
In the UK, the export and import of waste products is governed by the Transfrontier Shipment of Waste Regulations 2007 (“TSWR 2007”) which implemented the EU Waste Shipments Regulation 2006 (EC 1013/2006). TSWR 2007 sets out the UK procedures, offences, penalties and relevant enforcement authorities with oversight over the shipment of waste.
A person will commit an offence if they do not ship waste in an environmentally sound manner (Reg. 17 TSWR 2007). A person will also commit an offence if they transport waste that is destined for recovery in a country to which the OECD decision does not apply (Reg. 23 TSWR 2007). The OECD decision does not apply in Malaysia. Significantly, the Reg.23 offence is one of strict liability and so it is no defence for an accused to show they acted reasonably. Corporates can also be found guilty of offences under the TSWR 2007 if it can be shown that it was committed with the consent or connivance of an officer, or attributable to any neglect on their behalf (Reg.55 TSWR 2007). If found guilty, the court can impose penalties up to an unlimited fine and/or a two years’ imprisonment (Reg.59 TSWR 2007). A confiscation order under the Proceeds of Crime Act 2002 can also be made. Aside from bringing criminal proceedings, the EA has the alternative power to issue fixed penalty notices (Reg.59 TSWR 2007) or enforcement notices – a civil sanction remedy (Reg.59A TSWR 2007).
An example of the potentially costly consequences of a prosecution are illustrated by the September 2019 case of Biffa Waste Services Ltd, one of the UK’s largest waste management companies. Following a three week trial, Biffa was found guilty of sending contaminated household waste, containing plastic bags, bottles, nappies, incontinence pads and hot water bottles, described as waste paper, to China in contravention of Reg.23 TSWR 2007. The company was fined £350,000 and ordered to pay the costs in bringing the prosecution, amounting to £240,000. A confiscation order of £9,912 was also made. Biffa appealed the decision but the appeal was refused in July 2020.
The issue of international waste movement is one which is only likely to become more critical, particularly as the world population grows and we continue to produce, consume and seek to recycle waste at the rate we do today. Businesses are likely to be challenged more on the classification of their waste and potentially face strict liability proceedings under Reg.23 TSWR. For those placed in this position, utilising non-prosecution options available to the EA and/or challenging the definition of ‘waste’, will need to be carefully considered to avoid very costly implications.
In considering a business’s options, company directors need to be mindful that on conviction they risk a Disqualification Order under the Company Directors Disqualification Act 1986. Companies also need to be alive to the fact that alongside ‘consent, connivance or neglect’ provisions, a number of environmental offences have the ability to pierce the corporate veil and hold corporates to account (see our blog here). This can have far-reaching financial consequences, be it through fines and/or confiscation orders, for businesses and its officers alike.