Biffa loses appeal against waste export charges

In 2015 Biffa Waste Services sent 175 tonnes of waste from its recycling plant in Edmonton, London destined for two reprocessing plants in China. Investigators stopped seven 25 tonne containers of ‘mixed paper’ leaving Felixstowe as they suspected the contents were contaminated. On inspection they were found to contain used nappies, sanitary towels, and incontinence pads along with hot water bottles, hi-vis vests and food packaging.

A prosecution by the Environment Agency for breaching waste export regulations followed and in 2019 after a contested trial Biffa was fined £350,000 and ordered to pay prosecution costs of £240,000. The company appealed.

The Basal Convention

The UK is a party to the Basal Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989. The Convention makes clear that it reflects international concerns about the risks of damage to human health and the environment caused by transboundary movements of hazardous wastes and other wastes. This includes “wastes collected from households[1].

In 2001 the Organisation for Economic Co-operation and Development adopted a decision (“the OECD” Decision) which developed the Convention. China is not a country to which the decision applies.

In 1994 under the Basel Convention rules were established that are now included in EU Regulation 1013/2006 which applies to the UK. Article 36 of these Regulations states:

Exports Prohibition:

Exports from the Community of the following wastes destined for recovery in countries to which the OECD Decision does not apply are prohibited:

(a) wastes listed as hazardous in Annex V

(b) wastes listed in Annex V Part 3…….

(g) wastes which the competent authority of dispatch has reason to believe will not be managed in an environmentally sound manner, as referred to in Article 49, in the country of destination concerned."

Biffa were charged under the Transfrontier Shipment of Waste Regulations 2007:

Appeal

Biffa argued that that in applying the Regulations further consideration should be given to where the waste company’s planned export met China’s environmental standards for recycling and processing of waste. They submitted two grounds for appeal:

Ground 1: the judge had erred in law in excluding, as admissible and irrelevant factual and expert evidence as to -

  • whether the disputed waste complied with Chinese standards as recyclable paper and was recoverable i.e. (recyclable) as paper in China
  • whether paper could be recovered in an environmentally sound way in China

Ground 2: the judge had erred in acceding to the respondent’s application that evidence be admitted of the appellant’s bad character in order to correct and apparent false impression under s101(1)(f) of CJA 2003[2].

Under the Waste Shipment Regulations 1013/2006, Paper, paperboard and paper product waste can be exported as category B3020, but ‘waste collected from households’ , category Y46 cannot. Biffa based their appeal on the fact that the waste met the Chinese waste contamination limits and could be treated in an environmental manner when it arrived in China. The trial judge had ruled that this was irrelevant if the waste could be proved to classed as category Y46.

For Y46 household waste to become B3020 paper it must be properly sorted and so the nature of the quality and quantity of contaminants was an issue to be considered. The Court of Appeal stated:

'Where, as in this case, waste has been collected as mixed recyclable household waste, it (or some of it) can only become paper by being properly sorted. In this context, "properly sorted" means that the sorting is sufficient to remove contaminants to the point where any contamination which remains is "so small as to be minimal and not preventing waste from becoming waste paper under B3020". If that minimal level of contamination has not been achieved by the time the export to a non-OECD Decision country begins, the material remains Y46 household waste: the prohibition therefore applies, even if further sorting or processing in the country of destination would remove all but a minimal level of contaminants.'

This meant that neither the destination of the waste, nor any standard applied by the recipient was relevant. The Basel Convention and the 2006  Regulation impose a standard for determining whether waste is B3020 paper waste which applies regardless of the destination of a particular consignment of waste.

The appeal was therefore dismissed. In relation to the first ground it was irrelevant as to whether the waste met China’s contamination limits or not: the issue was whether it was in accordance with the Waste Shipment Regulations categorisation. The second ground was dismissed as the trial judge had not erred in allowing a jury to hear evidence of Biffa’s previous environmental convictions because Biffa had claimed at trial that it was not the sort of company to commit such as offence.

Mike Appleby and Louise Smail are the authors of HSE and Environment Agency Prosecution: The New Climate and The Law of Renewable Energy.

[1] Article 1.2 (2. Wastes that belong to any category contained in Annex II that are subject to transboundary movement shall be “other wastes” for the purposes of this Convention) and Annex II http://www.basel.int/Portals/4/Basel%20Convention/docs/text/BaselConventionText-e.pdf#page=96

[2] Criminal Justice Act 2003 101 Defendant’s bad character https://www.legislation.gov.uk/ukpga/2003/44/section/101

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