Tighter regulation ahead for waste shipments

Annual registrations and powers allowing the environment agencies to serve notices on operators are among proposals to overhaul the regulation of waste shipments issued for consultation by the Environment Department (DEFRA) on 18 December.1

Controls on the international waste trade are set out in the 1993 EU Regulation on transfrontier waste shipments, which implements international controls on the movement of waste set by the OECD and the UN Basel Convention on hazardous waste shipments.

The Regulation was recently revised to take account of changes to the Basel Convention and the OECD rules and will apply from 12 July 2007.

A key change is that the same procedure of prior notification and written consent will generally apply to all notifiable shipments, regardless of their destination and whether they are for disposal or recovery. The list of wastes and their code numbers have been updated to bring them into line with those used under the Basel Convention and OECD rules. Only one waste code is now allowed on each notification.

The Regulation will also be extended to shipments outside the EU of "green list" wastes - non-hazardous wastes sent for recovery. They must be accompanied by a movement form specifying the composition, quantity and destination of the waste, and a declaration that a contract has been agreed with the consignee.

There is also a new obligation on the producer, notifier or other parties involved in a waste shipment or its recovery or disposal to ensure waste is managed in an environmentally sound way. This applies to notifiable and non-notifiable shipments.

Where shipments are made initially for storage or other interim recovery or disposal operations, controls will continue until the notified waste is subjected to a substantive recovery or disposal operation.

The consultation paper includes draft legislation replacing the 1994 transfrontier shipment of waste regulations, taking account of the new EU Regulation.

DEFRA is also taking the opportunity to strengthen the regulatory regime, particularly with regards to detecting and preventing illegal shipments. It hopes the regulations will be laid in June 2007 and come into force on the same day as the EU Regulation.

  • Illegal shipments: Recent inspections have shown that illegal waste shipments are rife across the EU. This is particularly so for municipal waste or poorly sorted recyclables incorrectly labelled as "green list" waste. Environment ministers warned in October that there is an "urgent need" to improve compliance and increase inspections (ENDS Report 382, pp 49-50 ).

    In the UK, enforcement of the controls for notified shipments is funded through a charging scheme but there are no charges for green list waste and enforcement work has to be funded through grant in aid. But there are competing pressures on this aid set against an increasing volume of green list waste exports.

    Income from charges on notified shipments could be used to combat illegal operators, but such a charge would be regarded as unfair, says DEFRA. Instead, it suggests raising a charge through an annual registration system for those shipping waste to or from the UK.

    But changes to the charging system could only start after the regulations come into force. Proposals would be subject to further consultation. DEFRA therefore proposes to include transitional charges in the regulations which will come into force on 12 July 2007.

    Transitional charges for Northern Ireland are set out separately in the regulations. They are based on the existing charges for the province currently set out in separate regulations. The charges, including their structure, will be reviewed at a later date once comprehensive notification data are available.

  • Liability for non-compliance: The 1994 regulations apply only to the notifier or the person who should have notified the waste, making it difficult for authorities to trace the person responsible for illegal shipments. The new regulations will extend liability to "the notifier, any transporter, any freight-forwarder or any other person involved in the shipment of waste."
  • Offshore marine area: The environment agencies are the regime’s competent authorities, but their authority does not generally extend to the offshore marine area - territorial waters and the continental shelf - which, according to the EU Regulation, must also be covered by a designated competent authority.

    The draft regulations appoint this role to the Secretary of State, with the intention that it be delegated to the environment agencies. But the environmental permitting review, which will merge waste management licensing and pollution prevention and control permitting, is seeking to extend the Environment Agency’s jurisdiction to 12 nautical miles in England and Wales. If approved, DEFRA will reconsider the Secretary of State’s designation.

  • Financial guarantees: The current system requires details of financial guarantees to be submitted to the relevant agency before a shipment commences. DEFRA intends to take advantage of provisions in the new EU Regulation that permit member states to allow the guarantee to be in place after notification, provided this happens before shipments begin, and to accept a signed declaration that a guarantee is in place instead of assessing the actual instrument.
  • New powers for regulators: The agencies will be given powers to serve a range of notices on operators. These could include an information notice requesting further information on the waste or destination of a shipment, an enforcement notice requesting compliance with controls, or a prohibition notice stopping the movement of a shipment in breach of controls. It will be an offence not to comply with a notice.

    The agencies will receive the power to seize waste where there is an immediate risk to human health or the environment, or where an operator is in breach or likely to breach a notice.

    The draft regulations also allow the agencies to impose fixed penalty notices of £300 for minor offences.

  • Reporting exports of recyclables: Properly sorted recyclables may be exported to non-OECD countries without prior written notification and consent provided the importing country has agreed to this. But because the shipments are not notified, it is difficult to estimate the scale of the trade and assess how much domestic recycling capacity is needed.

    The new Regulation requires non-notifiable waste shipments to be accompanied by a form including information on the type and quantity of waste, and allows member states to require copies of these forms if they wish.

    Taking advantage of these provisions, says DEFRA, would not only improve knowledge of the types and quantities of green list wastes shipped to and from the UK, it would help the agencies monitor compliance with the regulations.

    One option, it says, would be to require operators to submit copies of the form to the agencies on a quarterly or annual basis. But it appears to prefer requiring only information that is relevant for waste planning purposes. This would also allow electronic submissions, perhaps in a way that builds on the existing quarterly reporting system for hazardous waste producers.

  • UK waste shipments plan: DEFRA is also consulting on changes to the UK management plan for waste exports and imports. The statutory plan came into force in 1996 and generally prohibits shipments for disposal into and out of the UK. However, it allows imports of hazardous waste to high-temperature incinerators from all countries in an emergency (ENDS Report 256, pp 33-34 ).

    The new plan would define the term "emergency" more narrowly, in that waste should present a "clear and immediate" risk to human health and the environment in the country of dispatch. The exception would not apply if waste could be safely stored before disposal.

    Hazardous waste shipments between the Irish Republic and Northern Ireland will be allowed where they are destined for disposal by specially engineered landfill, high-temperature incineration or physico-chemical treatment before disposal by either of the former two methods. Any waste entering Northern Ireland under this exception must not enter other parts of the UK for disposal.

    The current plan also allows waste shipments into the UK for high-temperature incineration from the Irish Republic and Portugal because they have limited disposal capacity.

    DEFRA wants to change this so that notifications for imports are assessed from any member state on a case-by-case basis. This would take account of the hazardous waste management capabilities in countries that have recently joined the EU.

    Shipments out of the UK would also be permitted in emergency situations, abandoning the UK’s longstanding policy of self-sufficiency in waste disposal. The change is proposed because of the difficulties in pre-treating certain "problematic" hazardous wastes, such as spent pot linings from aluminium smelters, so that they meet waste acceptance criteria for hazardous landfills (ENDS Report 374, pp 18-19 ).

    The exception would only apply where the UK government has decided it provides the preferable environmental option. It would be limited to hazardous waste shipments requiring disposal in a facility which applies best available techniques, but would exclude disposal in specialist landfill. It would only apply to specific waste for a defined time period.

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