Government dodges promised ban on hazardous waste imports

Regulations implementing the 1993 EC Regulation on transfrontier shipment of waste come into force throughout the UK on 6 May.1 But, with a last-minute change to the rules, the Government ducked the opportunity to give effect to its policy that hazardous waste should not be imported into the UK from developed countries, and looks like dragging the issue out at least into next year.

The EC Regulation, which comes into force on 6 May, implements the global UN Basel Convention on transfrontier shipments of hazardous waste, and extends controls on waste traffic introduced within the Community in 1984.

Although the Regulation is directly applicable, additional UK legislation was needed to give effect to some of its provisions, and this has been done with the new regulations. Their main provisions are:

  • Designation of waste regulation authorities as competent authorities for the purposes of the Regulation in respect of waste imports and exports. The Secretary of State will be the competent authority for wastes passing through the UK.

  • Establishment of a certification system under which anyone shipping waste into or out of the UK will have to apply to a competent authority for a certificate demonstrating that he has a financial guarantee or equivalent insurance sufficient to cover the costs of the shipment - including any costs arising from the need to return the waste to its origin if it cannot be delivered to its proposed destination or proves to be illegal - as well as its disposal or recovery.

    Authorities must issue a certificate if they are satisfied that financial cover is available or will be by the time the shipment takes place.

  • New powers for competent authorities to ensure the return of waste to the UK where an exported consignment cannot be delivered to its destination or is deemed to be illegal traffic for which the exporter was responsible. Authorities will be able to act as "agents" of the exporter if he fails to comply with a notice to return the waste to the UK. Authorities have also been given powers to ensure the environmentally sound disposal or recovery of waste illegally imported into the UK.

  • Establishment of a register of waste dealers and brokers.

    Convictions for most breaches of the regulations will attract a maximum fine of £5,000 in a magistrates court, or a prison term of up to two years and/or an unlimited fine in a higher court.

    A conviction of a company or individual under the regulations may have wider implications, in that it will count as a "prescribed offence" or "relevant offence" for the purposes of existing regulations dealing with waste carriers and waste management licensing, respectively. This means that a registered waste carrier could lose his registration, or a licence-holder be regarded as no longer "fit and proper" to hold a licence, if convicted under the transfrontier shipment rules.

    The regulations also require the Secretary of State to prepare a waste management plan which must "contain his policies in relation to the import and export of waste for recovery or disposal into and out of the United Kingdom."

    In preparing the plan, he must act in accordance with certain principles laid down in the EC Regulation. These empower Member States to "prohibit generally or partially or to object systematically to shipments of waste" in order to "implement the principles of proximity, priority for recovery and self-sufficiency at Community and national levels".

    Under the proximity and self-sufficiency principles, Member States must seek to establish a network of waste disposal facilities "to enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually," and to enable waste to be disposed of "in one of the nearest appropriate installations."

    The draft version of the regulations issued by the Department of the Environment (DoE) in March gave no indication that such a plan was being contemplated. Instead, it proposed that the Secretary of State should draw up a list of shipments of waste intended for disposal. Exports or imports of anything on the list would have been prohibited.

    The draft regulations went on to provide that the Secretary of State "may" list classes of shipment of waste "by reference either to the composition of the waste included in the shipments or the proposed method of disposal or by reference to both of those factors." However, they did not expressly preclude him from using other criteria, such as the source of the waste.

    Finally, the draft regulations would have obliged the Secretary of State, when compiling or modifying the list, simply to give at least 28 days' notice of its entry into force by placing an advertisement in the London Gazette.

    The idea of a list has been dropped altogether from the final regulations and substituted by the duty on the Secretary of State to prepare a waste management plan. No official explanation for the policy change has been forthcoming, but it is almost certainly connected to the pressure exerted on the DoE by companies which import hazardous waste into the UK to delay any ban on imports from developed countries. Almost all such imports originate in western Europe.

    Ministers have stated on several occasions in the past three years that such imports should cease. However, the opportunity to impose a statutory ban has coincided with a serious downturn in the hazardous waste incineration business within the UK. This is partly attributable to the recession, and partly to the growing diversion of some wastes to cement kilns, eroding the market position of incinerator operators.

    ReChem International in particular has been warning the Government that one of its plants at Pontypool and Fawley might have to be closed if imports were banned. The knock-on effects of a ban could also put further pressure on Cleanaway's incinerator at Ellesmere Port, which is believed to be in a rickety commercial position.

    The last-minute change to the regulations appears to be a deliberate ploy by the DoE to fudge the issue. Instead of issuing a list of wastes which will not be allowed into the UK, it will instead go out to consultation on a waste management plan. This will be done "within the next few months", according to the DoE. With an extended consultation period followed by deep deliberation on the responses, a decision on the issue could be spun out well into 1995.

    In the meantime, however, there appears to be some leeway for waste regulation authorities to restrict imports in line with Ministerial statements. The EC Regulation entitles competent authorities of destination to raise reasoned objections to planned shipments "in order to implement the principle of self-sufficiency at Community and national levels". A DoE spokeswoman confirmed that they "will have powers to ban...Until our plan is up and running and agreed it will be up to the competent authority."

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