1. Environment Agency & The Waste Shipment Regulation Howard McCann Principal Counsel Environment Agency Bratislava 26-27 June 2012 howard.mccann@environment-agency.gov.uk

2. 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

3. 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)

5. Environment Agency (3) Illegal waste dumping Illegal waste exports Ozone depleting substances Water pollution Radioactive substances Illegal fishing and poaching Boat navigation Flood defence

6. 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?

7. 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)

8. Incident reporting & Evidence Eye witness – Agency hotline number Agency officers and professionals (Police & Local Authority) surveillance Photographs Video footage Samples Expert & international evidence

9. 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

10. 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

11. 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

12. It was not me!

13. WSR (2) - Introduction Regional agreement – Article 11 Basel Convention Recognises right of Basel States (especially non- OECD) 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

14. 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

15. 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

16. 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

17. 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.

19. 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!!!

20. 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

21. 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

22. 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

23. 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

24. Window dressing

25. 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

26. WSR 11 – Article 37 continued Requirements for export of green list to non- OECD 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

27. Waste Classification?

28. 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

29. 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

30. 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

31. WSR (15) – Other provisions Article 28 – if disagreement between CAs about waste or non-waste then it shall be waste. If CAs 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.

32. 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

33. 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

34. 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

35. Questions ?