Partner Karen Jones, head of our Planning & Environmental Law team, explains the impact of Brexit on the movement of waste between the UK and European Union.
The Brexit transition period came to an end at the end of December and the end of that period did not end the many uncertainties which lie ahead for the waste management industry in the UK. With a recognised lack of recycling capacity in the UK, the impact of Brexit on the export of waste abroad will be a pressing concern for those involved in waste management businesses and the Environment Agency.
From 31 December 2020, movements of waste between the UK and European Union are subject directly to the Basel Convention on the control of trans-boundary movement of hazardous waste and their disposal (1989). The EU regulation 1013/2006 on shipments of waste is now defunct. The difference in legal regulation results in a customs border being raised between the UK and EU and the Basel Convention regime restricts the export of plastic waste which is likely to result in greater scrutiny being applied to exports. It also means for each consignment of waste a customs declaration and related requirements will need to be complied with. The requirements of individual member states will apply. In some instances for some activities there will need to be a bilateral agreement between the UK government and the member state to which the waste materials are being exported. In those cases movement of waste will need to comply with the requirements of individual member states for the importation of waste into that state.
The EU regulation prohibits the export of waste for disposal and mixed waste and hazardous waste for recovery operations from EU countries to countries that are not within the EU or EFTA importing will consequently be further restricted than previously although corresponding capacity within existing facilities within the UK may be taken up by waste that is not easily exported as it is no longer permitted entry to the single market or subject to new border requirements which make it unattractive for exportation.
The Environment Agency’s recent success against Biffa Waste Services Limited and the cases reported on in recent months where the content of consignments has been inspected and point to increases in bureaucracy cost and delays resulting from additional regulatory requirements.
Customs borders may mean that market and regulatory incentives will be required for investment to occur in waste infrastructure. It is undoubtedly going to test the EA as a regulating body for the export of waste and whether sufficient resources will be forthcoming to tackle any issues or whether enforcement will be sporadic is a matter that remains to be seen.
The new office of Environmental Protection proposed in the Environment Bill looks to be increasingly diluted with the passage of the Bill through Parliament and its roll around policing the actions of the Environment Agency are at present an unknown factor in a post-Brexit world. The longer term ramifications from the legal changes are as yet by no means certain. The updated guidance from Defra is subject to continued change and contains updates on waste shipments from Great Britain to Northern Ireland and advice on controls that will apply to waste shipments. It states that there will be no new control on the transport of waste from Northern Ireland to Great Britain following the end of the transition period. Both the UK and EU are keeping their Brexit related guidance under review and reissuing stakeholder notices where necessary or appropriate to aid guidance post transition. The only option is to continue to check for updated guidance and without doubt movement of waste will be one of the dominant environment issues of 2021.
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This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice. A similar article was first published in Waste Planning Magazine.