UK & Europe
Insurance & Reinsurance
A major shake-up in international agreements governing the export of plastic will come into effect in the New Year, with amendments to the Basel Convention due to strengthen the controls on the export of waste plastic.
With these changes applying to plastic exports to all Basel member countries, businesses involved in recycling their plastic waste will need to be familiar with and prepare for these revisions in advance.
What is changing?
From 1 January 2021, only plastics which are destined for recycling operations, which consist nearly exclusively of one type of plastic and which are almost free from contamination, can continue to be exported as ‘Green List’ waste which does not require notification to the Environment Agency (EA).
As part of the changes, a new hazardous waste code – AC3000 – has been created which now includes waste plastic or mixtures of such wastes containing hazardous constituents.
The forthcoming changes also impact on the exportation of mixtures of polypropylene (PP), polyethylene (PE) and polyethylene terephthalate (PET) which can only continue to be exported under 'Green List' controls on the proviso they are to be separated – it's key for businesses to make sure separation will in fact take place when the waste arrives, else risk falling foul of the requirements.
If you are involved in disposing of waste plastic, it's now more important than ever to make sure that those in the supply chain disposing your waste have in place the correct notification documentation or risk breaching your duty of care obligations.
Prior to the changes coming into force, the EA has helpfully issued guidance on the movement of notified plastic waste internationally which provides operators with a steer on the documentation requirements and steps to be taken as part of the new notification process.
The EA has been accepting applications for notification since 1 November 2020 but is unable to guarantee applications will be determined by 1 January 2021 when the changes come into force. It is therefore vital that you act early – as businesses begin to get to grips with the changes, there is no doubt the EA will be faced with an influx of notifications from organisations involved with exporting plastic waste.
If businesses do not have the required notification in place by the deadline and chose to export waste, they place themselves at risk of an EA investigation who, as outlined below, have a full suite of enforcement tools to utilise.
Interestingly, to ensure compliance, the EA has confirmed it is taking a risk-based, intelligence-led approach to compliance monitoring. This will include: auditing notifiers; inspecting waste; information sharing between overseas authorities; and intervention using Notices.
Until March 2021, the EA will aim to tackle non-compliance with the new requirements for movements of waste by advice and guidance where possible to allow businesses to adapt. However, this should not lull those affected in to a false sense of security. The EA has an arsenal of enforcement tools available to it where businesses do breach the requirements.
As expected, protecting the environment and human health will be at the centre of the EA's decision making when it comes to enforcement. The EA has a range of options available to it for non-compliance if serious, significant or repeated breaches occur. These include:
Clearly, the EA is adopting a moderate and levelled approach to enforcement to begin with when the changes first come into force, but they still hold some tough powers to enforce against businesses who find themselves falling outside of compliance (particularly for serious and repeated offenders).
Breaking the mould
The changes to the Basel Convention are clearly being implemented to tackle and manage the ongoing global plastic waste issue – which is a welcome development.
The EA is already focusing its attention on waste companies, farmers, and agricultural businesses as a result of concerns regarding contaminated agricultural plastic waste being intercepted at shipping ports, bound for illegal export. The EA has urged these sectors to check their waste management processes are compliant or face enforcement action. It is only a matter of time before the EA's attention focuses more broadly on other sectors processing plastic waste.
With the notification process in some instances historically having taken many months to be granted, businesses need to act swiftly to obtain notification from the EA to ensure any exports do not face unnecessary delays.
Those who do not act quickly to obtain the relevant notifications, risk being at the bottom of the pile when an influx of requests land on the EA ahead of the New Year.
Authors: Stephanie Lunt, Associate, and Rod Hunt, Partner
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 The overarching objective of the Basel Convention is to protect human health and the environment against the adverse effects of hazardous wastes. Its scope of application covers a wide range of wastes defined as “hazardous wastes” based on their origin and/or composition and their characteristics, as well as two types of wastes defined as “other wastes” - household waste and incinerator ash.