Illegal waste transport continues to present a regulatory challenge across UK ports. The Transfrontier Shipment of Waste (Amendment) Regulations 2014 (SI 2014/861) (“the 2014 Regulations”) came into force on 1 May 2014 and extend enforcement powers of the UK Border Force to target suspect waste consignments. Across the continent, plans to clamp down on hazardous waste shipment have been adopted by the European Council with future amendments to the Waste Shipment Regulation No 1013/2006 ("the WSR").
Implications of the new enforcement system will be relevant to businesses involved in waste transport, including brokers and companies sending waste abroad for treatment or disposal.
As an EU Regulation, the WSR provisions apply directly in the UK and do not require transposition into domestic law. However, domestic legislation is necessary to specify the relevant competent authorities responsible for enforcing the waste shipment regime. To this end the Transfrontier Shipment of Waste Regulations 2007 (as amended) (“TSWR”) apply in the UK.
The new domestic regime
Key changes to TSWR following the 2014 Regulations include:
- New definition of "Competent Authority". Policing responsibilities for marine areas have transferred from the Secretary of the State to environmental regulators. The Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency and the Department of the Environment in Northern Ireland have the power to authorise waste imported and exported within their territories and designated marine areas. The Environment Agency, however, has sole responsibility for dealing with the transit of waste and shipments in the marine area across the UK.
- Data from HM Revenue and Customs. HMRC Officers may choose to disclose export data to environmental regulators to help detect illegal shipments. The wording on this point is wide, providing that "any information in their possession" may be shared for enforcement purposes.
- Rules on Offshore installations. The Department of Energy and Climate Change (“DECC”) is now responsible for inspecting offshore installations and gathering evidence on behalf of environmental regulators.
- New power for UK Border Force. Customs officials may, on their own volition, seize and detain containers at ports for up to five days on suspicion that there has been a breach of waste shipment rules. During this period, environmental regulators can investigate the suspect containers.
- Increased fees for waste shipments to and from Northern Ireland. Depending on the number of containers, fees range between £940 and £14,625 for shipments brought into Northern Ireland, and £1,090 and £10,785 for waste exported from Northern Ireland.
New EU Regulation
On the horizon, EU legislation will see tighter regulation of waste shipment from 1 January 2016. The European Parliament has recently approved proposed amendments to the WSR introducing tougher provisions relating to enforcement and requiring Member States to produce inspection plans by 1 January 2017. Exports of hazardous waste to countries outside the Organisation for Economic Co-operation and Development and exports of waste for disposal outside of the European Free Trade Association area will be prohibited.
Competent authorities will have additional powers to require evidence from waste exporters to demonstrate that shipments meet legal requirements. Failure to provide sufficient evidence will render shipments illegal.
The new measures are designed to tackle "port hopping" with waste exporters choosing to send their waste through countries with fewer controls. Further detail on the changes to the WSR can be found on page 7 of our Spring Regulatory and Environment Review available here.
Implications for business
There is strong momentum for regulators to target suspect waste shipment activities across the UK. To guard against risks to their business, companies sending waste materials for export should review their operations to ensure that waste operations meet the required standards. While enforcement priorities will vary across waste streams, DEFRA has indicated that focus will be on waste electrical and electronic equipment and green list wastes (i.e. recyclable waste), such as tyres, plastics and paper. Dutyholders should ensure that all waste consignment paperwork is accurate.
Companies involved in the development and operation of offshore installations should be mindful of changes to the enforcement regime. Waste that is brought back to mainland UK should be appropriately managed by permitted facilities, and only transported by licensed carriers. Similarly, waste being exported for recycling, treatment or disposal must be accompanied by the right documentation to show that facilities in the final country of destination meet legal requirements.