Sarah Holmes, environmental expert at law firm Womble Bond Dickinson, looks to address some of the ‘key areas of concern’ for waste management companies following the UK’s exit from the EU.
Will my usual waste removal arrangements change?
Under the Withdrawal Act and a plethora of statutory instruments, the legal framework for waste management in England, Wales and Scotland will remain largely unchanged, save that references to EU institutions, obligations and targets will be removed.
Businesses should continue operating as usual and ensure that transfer notes accompany waste consignments, that the duty of care for waste is complied with, that waste is only transported by suitably licenced carriers and that waste is taken to appropriately permitted recovery and disposal facilities.
However, it is expected that that the availability and costs of some waste disposal and recovery activities will change as a consequence of the new barriers to trade with the EU. For example, around three million tonnes of refuse derived fuel (RDF) is currently sent for recovery to Combined Heat and Power plants in the EU.
There will be UK port disruption for a length of time. If this inhibited exports of RDF then, in the short term, there could be logistical challenges as the only alternative to the export of RDF would be to transport it to the relatively few landfills that are permitted to accept it for disposal.
What about producer responsibility schemes?
In the short term, at least, it will be business as usual. England, Scotland and Wales will continue to have similar regulatory frameworks providing for producer responsibility for batteries, packaging and packaging waste, waste electrical and electronic equipment and end of life vehicles.
However, the potential for divergence between England, Scotland and Wales in the medium to long term is real and there is not yet clarity over arrangements for the integrity of the internal market in Great Britain.
The ability for any of England, Scotland and Wales – depending on whether or not there is an overarching set of shared environmental principles and a coherent internal market – to decouple general approaches to waste management from that of the EU, will need to take into account the extent to which goods, services and waste move between the two.
For example, if the Westminster Government permits the import of substances that are prohibited in the EU, this will affect the ability of materials or wastes containing such substances to enter the EU market.
What about waste materials that are shipped between Great Britain and Northern Ireland?
Under the Protocol on Ireland/Northern Ireland, the EU and the UK have committed to maintaining the necessary conditions for continued North-South cooperation, including on the environment. A number of EU laws will continue to apply in Northern Ireland after the end of the transition period.
This means that the prohibition on the export of waste for disposal from the EU to non EU and EFTA countries should apply to waste movements from Northern Ireland to Great Britain, and that movements of waste from Great Britain to Northern Ireland should be authorised in advance and notified to the authorities in Northern Ireland.
Will there be any change in the way that wastes are moved from Great Britain to the EU?
From 31 December 2020, movements of waste between Great Britain and the European Union will be subject directly to the Basel Convention on the control of transboundary movement of hazardous wastes and their disposal (1989) rather than EU Regulation 1013/2006 on shipments of waste.
The principal difference in the movement of wastes from Great Britain to the European Union will be that a customs border will be raised from 31 December 2020 and, for each consignment of waste, a customs declaration and related requirements will need to be complied with.
With less than a month to go to the end of the transition period, it is still not known whether tariffs will be applied. For activities that are not competences of the European Union, the requirements of individual member states will apply.
There will be impacts on the shipments of waste from the European Union to the UK
Some activities, for example the export of RDF, will need to be the subject of bilateral agreements between the UK Government and the member states to which waste materials are proposed to be exported. Movements of waste will need to comply with the requirements of individual member states for example in respect of waste carriage and driver certificates of professional competence.
There will be impacts on the shipments of waste from the European Union to the UK. Unlike the Basel Convention, the EU Regulation prohibits the export of waste for disposal and mixed municipal waste and hazardous waste for recovery operations from EU countries to countries that are not in the EU or EFTA.
This may leave capacity in some UK facilities, although it is yet to be seen the extent to which this could be taken up by waste that Great Britain would have exported but either is no longer permitted entry to the single market or becomes too costly owing due to new border requirements and related costs, including haulage.
Looking ahead – what may change?
It is not yet clear the extent to which England, Wales and Scotland will continue to use EU target based approaches for driving improvements in waste resources and efficiency. One option may be to shift from weight based targets for recycling to some other measurement, in order to incentivise more wide spread recycling of less heavy material.
There may be opportunities to adopt a different approach to the definition of by-products and end of waste and there may be opportunities to change the approach to the classification of hazardous waste to a more risk-based approach.
Increases in bureaucracy cost and delays that will arise as a result of the erection of regulatory and customs borders around England, Scotland and Wales may encourage the retention of resources within Great Britain rather than exporting for recycling. Market and regulatory incentives will be needed to encourage the necessary investments in infrastructure.
Amid uncertainty, how can your business prepare?
Businesses need to make sure they are aware of requirements that their waste management providers may place on them from 31 December 2020. There will be delays at border exit points from Great Britain, not least because lorries will need to have paperwork checked at facilities prior to driving to most ports of exit.
There will be corresponding checks at the ports of entry into the EU. This means that there will be some constraints on the availability of lorries and other infrastructure, and costs and regulatory requirements may be passed back through the waste chain.
Therefore, effective housekeeping in advance such as minimising waste retained on site and ensuring that any tenants are doing likewise (especially if they are in sectors likely to be adversely impacted by trade barriers) would be good practice.
*Womble Bond Dickinson is a transatlantic law firm with more than 1,000 lawyers based in 27 UK and US office locations.