Biffa loses appeal against waste export charges

Waste management company Biffa has lost an appeal against a guilty verdict handed down in June 2019 for being in breach of waste export regulations after attempting to export contaminated waste to China.

The original ruling dealt by Wood Green Crown Court was upheld by the Court of Appeal last Friday (3 July), with Biffa found guilty of breaching regulation 23 of the 2007 Transfrontier Shipment of Waste Regulations.

The original prosecution was brought by the Environment Agency (EA), after officers stopped the export of seven 25-tonne containers from Felixstowe Port in 2015, which, although marked as ‘mixed paper’ dispatched from the company’s materials recycling facility (MRF) in Edmonton, north London, when searched at the port were found to contain a selection of highly-contaminated, unsorted waste, including soiled nappies, food packaging and items of clothing.

Biffa was originally sentenced to a fine of £350,000 and ordered to pay court costs of £240,000, both of which were upheld by the Court of Appeal’s ruling.

Biffa submitted two grounds of appeal to the Court of Appeal:

• ‘Ground 1: the judge erred in law in excluding, as inadmissible and irrelevant, factual and expert evidence as to (1) whether the disputed waste complied with Chinese standards for recyclable paper, and was recoverable (ie, recyclable) as paper in China; and (2) whether the waste could be recovered in an environmentally sound manner in China.
• ‘Ground 2: the judge erred in acceding to the respondent's application that evidence be admitted of the appellant's bad character in order to correct an apparent false impression under s101(1)(f) of CJA 2003.’

The Appeal Court heard that under Waste Shipment Regulations, ‘paper, paperboard and paper products waste’ can be exported as category B3020 waste, but ‘waste collected from households’ – category Y46 – cannot.

Biffa’s appeal was based on the argument that the waste met Chinese waste contamination limits and that it could be treated an environmental manner on its arrival in China, whereas the judge ruled that the discussion of whether the waste could be dealt with in an environmentally sound manner was irrelevant if the waste could be proven to be classed as category Y46.

The court stated that for Y46 household waste to become B3020 paper “it must be properly sorted” and therefore the focus of the case was on the Edmonton MRF and that “the nature, quality and quantity of contaminants have to be considered by the jury in order to decide whether the waste has been properly sorted, not to decide what will happen in another country”.

The court added: “It follows, as both parties recognise, that the correct categorisation of the waste material in question must be determined as at the point where its export begins: here, when the loaded containers left the Edmonton facility. If at that stage the material is properly categorised as Y46 household waste, its export to a non-OECD Decision country is unlawful, regardless of what might happen to it when it reaches its destination.

“Where, as in this case, waste has been collected as mixed recyclable household waste, it (or some of it) can only become paper by being properly sorted. In this context, "properly sorted" means that the sorting is sufficient to remove contaminants to the point where any contamination which remains is "so small as to be minimal and not preventing waste from becoming waste paper under B3020"”

The Court of Appeal dismissed Biffa’s appeals on the grounds that the first was inadmissible due to the irrelevance of whether the waste met China contamination limits or not but whether it accorded with Waste SHipment Regulations categorisation, and that in the second instance the judge did not err in allowing the jury to hear evidence in Biffa’s previous environmental convictions because Biffa claimed it was not the sort of company to commit such an offence.