Environment Agency overruled on transfrontier waste shipments

Recycling businesses in Britain won a significant legal victory at the end of May when the High Court quashed the Environment Agency's interpretation of EC rules governing the transfrontier shipment of wastes. The decision will allow mixtures of "green list" wastes to be imported for recycling without the need for consent from the authorities, even though they are not specified on the green list. The Agency had been supported by the European Commission in its view of the law, and the outcome may lead to urgent international discussions on amendments of the system of control.

R v Environment Agency ex parte Dockgrange Ltd and Mayer Parry Ltd (Queens Bench Division, High Court, 22 May 1997) was concerned with the 1993 EC Regulation on the supervision and control of waste shipments within, into and out of the Community. The Regulation introduced a common system of controls on transfrontier shipments, and was intended to implement the principles of the global Basel Convention and OECD agreements on transfrontier shipments of waste for both recovery and disposal.

The applicants carry out recycling operations in Britain and import fragmentiser waste from the Netherlands and Germany. The waste originates from cars and white goods, and is crushed and partly processed before coming to Britain for further processing and recovery.

The EC Regulation contains lists of various types of waste, divided into green, amber and red. Green list wastes are considered to be the least environmentally hazardous, and when they are moved for recycling operations they are essentially subject to no specific transfrontier controls other than a requirement for tracking documentation.

Amber list wastes require prior notification to the competent authorities in the countries of dispatch and destination. The authorities are entitled to object to such shipments on certain grounds, but if no objection is made within 30 days tacit consent is deemed to have been given.

Transfrontier movements of the most environmentally hazardous red list wastes are also subject to prior notification, but in this case explicit consent is required. No time limit is provided for the giving of such consent.

The green list contains categories consisting of both individual substances (such as copper and zinc waste and scrap) and waste products (such as electronic scrap). In the present case, fragmentiser waste of the sort being imported by the applicants was not expressly listed as such, but the applicants argued that since it consisted of a mixture of components already on the green list it should be treated as such under the Regulation.

This, in fact, was the position taken by most British waste regulation authorities until April 1996. The Environment Agency then took over responsibility for waste regulation, and decided that this interpretation was wrong. In its view, the green list was specific and exclusive, and since fragmentised mixtures were not mentioned they remained "unassigned". Under Article 10 of the Regulation, unassigned wastes are to be subject to the same requirements as red list wastes.

After some confusion, the Agency, recognising the practical problems which this change of interpretation would pose, announced a period of amnesty to allow importers to change contracts and adopt the necessary procedures. But it declared that from October 1996 any imports of such mixtures would be illegal unless the red list procedures had been followed.

The applicants found this impossible to comply with, especially as the authorities in some countries of dispatch did not agree with the interpretation and were not prepared to give the necessary consents. Furthermore, the Regulation sets no time limit for the giving of consents, imposing severe time problems on the firms. For Dockgrange, at least, the new interpretation threatened to put it out of business.

The applicants argued by way of judicial review that the Agency's interpretation was wrong. There was no question that their operations were genuine recovery operations, and, given that one of the Regulation's aims was to encourage environmentally sound recovery, it appeared illogical that a consignment consisting of a mixture of green list wastes should be treated as falling outside the provisions and subject to the most severe procedures. They argued that the Article 10 provision concerning unassigned wastes, while legitimately based on the precautionary principle, was clearly designed for substances or components whose environmental characteristics were unknown or as yet unconsidered.

The Agency's main argument was that the applicants had concentrated too much on the environmental characteristics of the components of the fragmentiser waste, and had failed to understand the rationale behind the green list. It was clear from the Regulation that the green list was based on an OECD listing procedure, and, although the European Commission was given the delegated power to amend the list, this could only be done in accordance with amendments already agreed at OECD level.

According to the Agency, when the relevant OECD committee dealt with the green list, it considered not simply the environmental dangers posed by the substance in question, but also the potential for recovery. Each type of waste was considered separately, and unless a specific type of mixture had already been listed, it did not follow that mixtures generally had been considered for their recoverability. Allowing any mixture of green list wastes, unless it had been specifically considered and listed, to be subject to the very light green list procedures could well encourage sham recovery operations.

The difficulty for the applicants was that the OECD mechanism contains no specific controls for unassigned wastes. Until they were expressly listed they fell outside the lists, and it followed that they also fell outside the green list in the EC Regulation. Rightly or wrongly, the EC had decided to adopt a different approach to unassigned wastes and treated them as subject to the red list procedures. This, the Agency argued, was a simple application of the precautionary approach.

The Agency recognised the problem that its interpretation posed for the applicants, but it was one supported by the European Commission and several other Member States. The solution, the Agency argued, was for the applicants to seek to have their wastes explicitly listed under the Regulation as either green or amber using the OECD procedures. In fact, Mayer Parry has already initiated such an application via the Department of the Environment, but the Court heard that such procedures were likely to take several years, causing severe economic damage in the meantime.

In the High Court, Mr Justice Carnwath agreed with the applicants that "ordinary principles of purposive construction and proportionality argue in favour of adopting a solution which does not involve their clients being put out of business for no sensible reason, so long as there is an alternative construction which avoids that result and which does not have unacceptable consequences in relation to the scheme of the Regulation as a whole."

The Court agreed that there seemed no reason why a particular shipment should not include a number of different wastes nor, where they were amber, why details of several different wastes should not be given within one notification. The Regulation provided that wastes falling within different categories of green, amber or red should not be mixed during shipment, but apart from that provision the critical question was whether it was necessary for each waste to be separately identifiable within the shipment or whether it mattered if they were mixed.

Mr Justice Carnwath noted that there was nothing in Article 10 itself which says that wastes may not be mixed. Annex II contained the green list, and "if one simply applies the words to the present case, the individual components of the mixture are all listed in Annex II and therefore it cannot be said that they are shipments of waste...which have not yet been assigned to Annex II."

He agreed with the Agency that the allocation of unassigned wastes to the red list procedures was consistent with the principle of precaution, but found no justification for taking such an approach where, "as here, the facts are known and the mixture in question is known to consist entirely of green waste."

In holding that such mixtures fall within the green list, the Court did not give a carte blanche to importers. It stressed that they would still have to comply with the tracking documentation requirements of Article 11 of the Regulation, which obliges the shipper to provide the usual commercial description and quantity of the waste.

Where, as in this case, the importer was relying on the fact that all the components in the mixture had been individually assigned, Article 11 would have to be complied with in relation to the components. The commercial description of each component would have to be notified, as would the quantity - "it is not enough that he gives the quantity of the mixture."

The court was told that while the quantities of the components could not be given precisely, they could be estimated to an accuracy of at least 95%. This would make substantial compliance with Article 11 possible, although since breach of Article 11 is an offence it would be a matter for a criminal court to determine in any particular case whether it had been sufficiently complied with.

Mr Justice Carnwath urged the Agency to adopt a sensible policy on the matter, since in green list cases at least he felt that the degree of accuracy required in specifying the quantities of components in a mixture was a matter on which the Agency could allow some latitude consistent with the objects of the Regulation. "I am happy to reach that conclusion," he said, "since nothing is more likely to bring disrepute on the systems of control under the European Treaty than over-rigid application of the criteria resulting in needless hardship."

Given his finding, and at the request of both the Agency and the applicants, the court then issued an order prohibiting the Agency from taking any enforcement action based on an interpretation that mixtures of green list wastes were unassigned wastes under the Regulation. The Agency was given leave to appeal, but it may be that before an appeal is heard the matter will have been dealt with more effectively at EC or OECD level.

The decision clearly affects all mixtures of green list wastes and not just fragmentiser waste, and it may be that the OECD, despite its apparent case by case approach to listing, will have to consider a generalised rule about mixtures. An alternative would be to amend the EC Regulation by making mixtures and unassigned wastes subject to amber procedures unless otherwise expressly dealt with. This would provide a protective mechanism without the excessive delays of the red list procedures.

The Dockgrange decision clearly at this stage affects the UK only - though the court was informed of a decision by a Dutch court which had come to similar conclusions concerning green list wastes - but it is hardly satisfactory if countries are adopting different legal interpretations of what is meant to be a common set of rules.

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