Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Mark Davies consider requirements for UK waste exporters to review contingency plans in the event of a ‘no deal’ Brexit, a possible merger of DEFRA Non-Departments Public Bodies and new guidance for organisations to ensure compliance with modern slavery regulations.

Government issues reminder to waste industry in the event of a ‘no deal’ Brexit

The Government has reminded companies that export waste from the UK to review their contingency plans in case of disruption at ports, should the UK leave the European Union without a deal.

With or without a deal, all existing consents which authorise the export of hazardous waste, known as ‘notified waste’, to any EU country will remain valid when the UK leaves the EU (it is understood that Spain was the last EU member state to reach agreement on this, to whom our principal waste export is apparently car batteries). Companies that export waste from the UK should see no change in the processes that govern the export of ‘non-notified waste’ (green-list wastes) to the EU.

However, the Government has warned that in the event of a no deal Brexit, there may be “some delays” at ports which operate ‘roll-on, roll-off’ systems, with Dover predicted to be most affected. Consequently, businesses are advised to:

• Review their own capacity and how long they can store waste at their site;
• Identify alternative storage facilities that could accept their waste;
• Assess if there are other export routes to market that avoid impacted ports;
• Identify any alternative recovery or disposal routes for their waste;
• Contact their haulage operator to discuss any potential changes to transport plans.

If export routes are changed, then the export notification must also be changed and must be agreed with the UK and overseas competent authority. If additional waste is kept on site, this gives rise to potential environmental risks which will need to be assessed and controlled and could lead to visits by the Environment Agency!

The UK cannot deal with its own waste. It does not have the infrastructure. In addition, some waste has an economic value to other countries. There is a suggestion that the Government will publish detailed plans on the future of the waste export industry soon. Unsurprisingly, however, the only current intention is to try and maintain the status quo. The International Waste Shipments (Amendment) (EU Exit) Regulations 2019 were approved on 7 March. There was little debate. The Opposition in the Delegated Legislation Committee debate stated that due to the Government’s last-minute rushing through of Statutory Instruments, their ability to examine in depth their implications had been constrained and there had been insufficient time to consult stakeholders or to review whether the Statutory Instrument raised any problems.

One interesting aspect is that the UK has been a recipient of hazardous waste from Ireland for some time now, at the request of the Irish Government, due to the fact that suitable disposal facilities are not available in Ireland. In the UK this hazardous waste is subjected to high-temperature incineration. When the UK leaves the EU, Ireland is likely to be prohibited from exporting that hazardous waste to the UK under EU law.

Michael Gove suggests a merger of DEFRA Non-Departments Public Bodies

In evidence before the Environment, Food and Rural Affairs Committee on 27 March, Michael Gove stated that once we are outside of the EU, there will be new responsibilities that will fall to DEFRA that have been the responsibility of the EU. 2,800 staff have been recruited into DEFRA in order to deal with Brexit. Their roles (and whether they will still be needed if the UK does leave the EU) will form part of the forthcoming Comprehensive Spending Review.

A team is also currently considering what the future of DEFRA will look like and in particular the responsibilities of its numerous NDPBs, to see if any can be merged or if they need to be extended. There is, according to Michael Gove, an element of overlap (and potential gaps) that need to be addressed. He cited the fact that in other Government departments he has been responsible for closing other NDPBs and stressed the importance of having bodies that are fit for purpose.

The future of the Environment Agency was not specifically discussed.

New guidance on the publication of annual modern slavery statements

We thought we might be forgiven for occasionally adding an important issue from the wider regulatory world to our environmental fare, as corporate reporting requirements increase.

On 12 March the Government published guidance to help organisations identify whether they need to publish a modern slavery statement and, if so, best practice on how to do so. The requirement for certain commercial organisations to publish an annual statement setting out the steps they take to prevent modern slavery in their business and supply chains comes from s.54 of the Modern Slavery Act 2015.

If a commercial organisation meets all of the following criteria, it must publish an annual statement:

• It is a body corporate or partnership, wherever incorporated or formed;
• It carries on a business, or part of a business, in the UK;
• It supplies goods or services; and
• It has an annual turnover of £36 million or more.

The onus falls on commercial organisations themselves to determine whether or not they need to publish an annual statement and there are some fine distinctions within the criteria that could easily lead an organisation to think that it might not need to prepare one, when in actual fact it does. For example, it is not immediately apparent from the wording of the criteria that the turnover threshold is in fact the turnover of the organisation and any of its subsidiary undertakings, including those operating wholly outside the UK. So, if your parent company is registered at Companies House, but in fact is little more than a figurehead for the supply of goods and services overseas through subsidiary companies, and those companies have a combined turnover of £36 million or more (after trade discounts, VAT and any other taxes) then the parent company may need to prepare a statement.

Why, you might ask, should a commercial organisation bother doing this? What’s the penalty for failing to do so? In past years, organisations (which shall remain nameless in this article, but are easily found on Google) have failed to comply with the requirements and have been named and shamed for their failings. Still then, a business might shrug off that criticism, and view the requirement as an unnecessary regulatory requirement; be warned, in the Second interim report of the Independent Review of the Modern Slavery Act (the product of Frank Field MP, Maria Miller MP and Baroness Butler-Sloss – see here, published in January 2019, the authors recommended that the Independent Anti-Slavery Commissioner should monitor compliance and report annually and that the Government should make legislative provision to strengthen the approach, including warnings, fines (as a percentage of turnover), court summons and even directors’ disqualification.

So, with that warning given, the Government’s guidance may be found here

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