Environmental Law News Update

In this latest Environmental Law News Update, William Upton QC and Christopher Badger consider the law on exports of waste and waste classification, the Environment Agency’s report on the performance of water companies in 2018 and publication of the first international standard for climate change.

Waste categorisation – do we just leave it to a jury?

The UK relies on exporting large quantities of its waste for recovery abroad, both to OECD and non-OECD countries. This trade is regulated under the Basel Convention and the Waste Shipment Regulation (EC) No 1013/2006 (as applied by the Transfrontier Shipment of Waste Regulations 2007), and certain types of export to non-OECD countries are prohibited, including the shipment of household waste.

Getting it wrong can lead to criminal prosecution, as seen in R. v Biffa Waste Services Ltd [2019] EWCA Crim 20 (reporting restrictions have now been lifted). When the Environment Agency intercepted consignments of ‘mixed waste paper’ bound for China at the dockside, their examination revealed that some of the containers included significant contamination – and they found examples of soiled nappies and sanitary wear, clothing, food packaging, plastic bottles and so on in amongst the waste paper. The Agency argued that these were still really consignments of what had been collected, namely mixed household waste and not mixed paper waste.

Whilst it must be difficult to accept that waste paper may be contaminated with soiled items, there is no such thing as zero contamination. The case illustrates how our recycling industry works – the initial loads of household waste had been the subject of rigorous mechanical and manual sorting processes, which had achieved a high degree of separation of the relevant elements, and it was said that any remaining degree of contamination was residual and minimal. It has to be remembered that these consignments were still loads of waste, being sent for recovery.

The Court of Appeal were asked to rule on what case the defendant actually had to meet. They agreed with the Agency that this technical categorisation point was for the jury to decide. It was a matter of fact and degree whether there was sufficient household waste contamination for a consignment properly to be styled as Y46 household waste (rather than the B3020 mixed paper designation given in the export documentation).

There is a real oddity about this case. It is clear from the Court of Appeal judgment that the Agency was careful to reduce the prosecution to a case about waste categorisation. They said that this was not a case about proving whether contamination in the shipment would prevent the recovery of the waste in an environmentally-sound manner (which most would think is actually the primary purpose of the Basel Convention). They also avoided saying what level of ‘minimal’ contamination might still be allowed, even though, at the time of the offences in 2015, China accepted waste shipments for import and onward processing and recovery so long as the residual contamination of the waste paper was 1.5% or less.

It feels like this story is far from over, and the standards to which the UK’s recycling industry are being asked to work remain uncertain.

Water company performance for 2018

The Environment Agency has published its assessment of the environmental performance of the 9 water and sewerage companies operating in England, reporting that it was “simply unacceptable”.

The report identifies that:

• With one exception, none of the companies are performing at the level that the environment needs;
• The performance of most companies has deteriorated, reversing the trend of gradual improvement since environmental performance assessment was introduced in 2011;
• Serious pollution incidents (category 1 and 2) have increased, from 52 in 2017 to 56 in 2018.

Southern Water, South West Water and Yorkshire Water received a two star rating, ‘requiring improvement’. The best performing company was Northumbrian Water, which received four stars or ‘industry leading’.

There were 5 prosecutions against water companies in 2018, with fines totalling £2,227,000, ranging from £15,000 to £2 million. 15 Enforcement Undertaking offers were accepted, totalling £3,432,150, with offers ranging from £35,000 to £975,000.

The Environment Agency have identified that they are setting up an ‘Improving Water Company Performance’ programme which is intended to adjust the Environment Agency’s approach to regulation and to help water companies to drive what it considers are the necessary improvements. This will result in closer regulation and use of enforcement and sanctions outcomes for poorer performing companies. The Environment Agency are also continuing to discuss with OFWAT how they can work closely to use financial penalties and incentives associated with the environmental performance of the companies.

At the same time, Thames Water have just been ordered to pay over £700,000 in fines and costs following the release of up to 30 million litres of sewage from its Maidenhead Sewage Treatment Works, entering the Maidenhead Ditch which joins the River Cut. Hundreds of fish died. There were repeated discharges of untreated or poorly treated raw sewage into the river and failures to react adequately to alarms used to alert Thames Water to problems. The Environment Agency’s press release can be found here

The environmental performance assessment can be found here

First international standard for climate change launched

ISO 14090:2019 ‘Adaptation to climate change – principles, requirements and guidelines’ has been published by the International Organisation for Standardisation. It is intended to provide organisations with an approach that will allow them to give appropriate consideration to climate change adaptation when designing, implementing, improving and updating policies, strategies, plans and activities. The document notes that climate change adaptation activities should be carried out in parallel with, or integrated with, climate change mitigation activities and other sustainability priorities.

It is hoped that applying the approach set out in the standard will assist in demonstrating that a particular organisation’s approach to climate change adaptation is credible and that it ought to provide reassurance to investors or insurance companies when seeking to understand another organisation’s climate change adaptation.

The ISO is also developing other related standards which include:

• ISO 14091 ‘Adaptation to climate change: vulnerability, impacts and risk assessment;
• ISO 14092 ‘GHG management and related activities: requirements and guidance of adaptation planning for organisations, including local government and communities.

The ISO’s press release can be found here

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