In a significant case for the UK waste management industry, the Environment Agency (EA) yesterday (22 February 2010) dropped charges against two companies alleged to have shipped contaminated waste paper to the Far East in 2006. This was because the Agency could not prove that the product destined for export was contaminated.
The decision was announced by counsel for the EA at Maidstone Crown Court. It is a very important case for the UK waste management industry as a whole because the regulations governing the export of waste have been enforced without practical guidance being issued by the EA about the level of permissible contamination in exported waste. At one point in the case, the EA asserted that the threshold for prosecution was zero contamination before shifting to an undefined minimum acceptable level.
The EA decision came only one week before the trial of the two companies, APG Atlantic Paper Ltd and Community Waste Ltd, was due to commence. The investigation started in December 2005 when EA officers stopped the export of 10 containers destined for China, Indonesia and Vietnam. The EA claimed that the containers could not be exported as green list waste because they were contaminated. However, the EA yesterday accepted that it could not prove these charges. The defendant companies were therefore found Not Guilty of the charges and a costs order was made in their favour.
The two defendant companies had instructed their own independent expert to examine the detained containers immediately after they were stopped in December 2006. The EA refused to attend the independent examination. The court today remarked on the time and money which could have been saved had this been done.
Philip Serfaty, a director of the companies, commented that: "As a responsible UK exporter, I fully support good regulation aimed at improving standards of waste produced for export. I also support strong enforcement but enforcement must always be fair and in this case it was not." Mr Serfaty also called upon the EA to publish detailed and realistic guidance on how it would enforce the law in the future. It is not yet known whether or when this will be done. In the meantime, all exporters of waste products remain at risk of prosecution until the EA publish a new policy on how the Transfrontier Waste Regulations will be enforced in future.
Specialist criminal and regulatory law firm Corker Binning represented the companies. Peter Binning, partner of...