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Stop press: Shake up in plastic waste exportation

  • 19 January 2021 19 January 2021

We previously reported on a major shake-up in international agreements governing the export of plastic came into effect on 1 January 2021, with amendments to the Basel Convention[1] strengthening the controls on the export of waste plastic.

Stop press: Shake up in plastic waste exportation

With these changes applying to plastic exports to all Basel member countries[2], businesses involved in recycling their plastic waste will now need to be familiar with and ensure they comply with these revisions.

What is changing?

From 1 January 2021, a number of changes have been implemented:

  • The existing code for non-hazardous waste plastics B3010 has been replaced by B3011.
  • Furthermore, non-hazardous waste plastics (namely, B3011) can only be exported on the 'Green List' if wastes are destined for recycling in an environmentally sound manner and are almost free from contamination and other types of waste.  By way of further comment, specific categories of waste plastic in B3011 which include non-halogenated polymers, cured resins/condensations products, fluorinated polymers, and mixtures of separated polypropylene (PP), polyethylene (PE) and polyethylene terephthalate (PET) can continue to be exported under Green List controls on the proviso that they are destined for separate recycling - 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.
  • The Basel Convention states that exporters of B3011 plastics do not need prior consent and notification from the EA to move under the 'Green List’ controls to another OECD country[3].
  • However, B3011 plastics being moved to a non-OECD country will still require prior consent and notification to be obtained from the EA until an agreement is made directly between the UK and those non-OECD counties – this at the time of writing remains pending.
  • Some non-hazardous waste plastics will require prior consent and notification before exportation, for instance waste plastics that are contaminated, whether they are moved to OECD or non-OECD countries.
  • 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.

Given the above, 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.

What is not changing?

Notwithstanding the above, it is worth noting the EA's guidance for those exporting and importing waste plastic reiterates that their current guidance for Green List waste still applies, whereby waste which is believed to be on the 'Green List' may need prior notification and consent, or may be prohibited if it is:

  • Not properly sorted or unsorted;
  • Mixed with a hazardous substance;
  • Mixed with another waste material which is more than a de minimis level of contamination, and to an extent which prevents the recovery of the wastes in an environmentally sound manner; or
  • Contaminated by household or mixed municipal waste.

EA Approach

Prior to the changes coming into force, the EA helpfully issued guidance on the movement of notified plastic waste internationally[4] which provided 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 was unable to guarantee applications would be determined by 1 January 2021 when the changes come into force.

If businesses do not have the required notification and EA consent in place and choose to export waste, they place themselves at risk of an EA investigation which, as outlined below, has 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.

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 if serious, significant or repeated breaches occur. These include:

  • Warnings- either verbal or in writing;
  • Enforcement Notices;
  • Use of civil sanctions; and
  • Criminal sanctions - including fixed penalty notices, formal caution or prosecution.

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.

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 in due course.

Significantly, the EA has taken the unusual step of recently highlighting that it has not received anywhere near the expected levels of applications of prior consent to move certain types of plastics internationally which suggests either the EA will in due course receive a surge of notifications to process, or that businesses are not aware of the recent changes and the ramifications for non-compliance. Either way, it is essential businesses ensure they have submitted and obtained the relevant notification to and consent from the EA before they export waste plastics affected by these changes.

Authors: Rod Hunt, Partner, and Stephanie Lunt, Associate

 

[1] 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.

[2] http://www.basel.int/?tabid=4499

[3] https://www.oecd.org/about/document/list-oecd-member-countries.htm

[4] https://www.gov.uk/guidance/importing-and-exporting-waste

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