Small fine for novel ePRN offence

A recent prosecution by the Environment Agency of a South Yorkshire MRF [Materials Recovery Facility] concluded with no evidence being offered in respect of one summons, and a small fine for a technical breach of Regulation 24 of the Transfrontier Shipment of Waste Regulations 2007.

The Defendant company is a waste broker, based in South Yorkshire. In a rare prosecution under Regulation 40(5) of the Producer Responsibility Obligations (Packaging Waste) Regulations 2007, the Environment Agency alleged that the Defendant had issued packaging waste export recovery notes for more than the total amount of packaging waste which, as an accredited exporter, it exported during 2012 for reprocessing.

Other charges were withdrawn at the hearing before the Wakefield Magistrates Court on 7th September. Following a plea of guilty on a limited basis, District Judge Lower imposed fines totally £5,000 and costs of £5,000 having decided to follow the new Environmental Offences Sentencing Guidelines, issued on 1st July 2014, even though the guidance did not cover the actual offences charged.

The case involved two shipments of approximately 3,000 tones of glass packaging waste (broken glass bottles) being exported to Ireland. The first shipment was returned because the defendants’ buyer in Ireland rejected it. The second shipment was repatriated at the request of the Irish authorities because it was found to be heavily contaminated with non-glass waste types.

Following the instruction of expert witnesses by the company, it was accepted by the Prosecution that the first consignment had been wrongly screened on instruction of the Environment Agency prior to it being shipped.As the reprocessing company in Ireland relied upon the latest technology to screen waste in it’s raw form, the instruction to clean up the waste had the unfortunate result in meaning that the waste could not be recycled, but had to end up in landfill.

The offence was committed as the Company sold the ePRNs on transport of the waste to Ireland. Although entries were made on accounting documents to indicate that the consignment had been repatriated, this invalidated the ePRN, it should have been cancelled, and a new ePRN issued in due course.

The Environment Agency alleged that the company had taken advantage of an increase in the price of ePRNS from £8.50 per tonne to £75 per tonne, thus making a profit in excess of £225,000. However, at the hearing, it was conceded that there was no attempt to take advantage of the market price, and that the company had made the mistake in not recording the repatriation in the database as this was the first time that such a transaction was conducted, and that his was in effect a trial run, to evaluate the business potential around the development of a similar glass reprocessing facility in the UK.

The Judge considered whether or not to use the new sentencing guidelines issued by the Sentencing Guidelines Council on 1st July 2014, but noted that the offences were not actually covered by this comprehensive document. Following submissions by both the EA and the Defence, the Judge decided however to follow the approach in the guidelines, and noted that this would be a useful starting point for his decision.

District Judge Lower accepted a number of mitigating features that resulted in the imposition of a small fine of £5,000 despite the large fine that was nvited based on turnover of the business. He also reduced the substantial claim for costs by the EA to from £25,000 to £6,000. The principal mitigating features were:

• There was no benefit to the company as the waste was sold on before they realised that it was an issue.
• The company and main director were of good character-
• In respect of Harm; there was no evidence of pollution, in fact in this case the regulatory action had prevented a more environmental ‘circular economy’ approach taking place.-
• The EA were satisfied that this offence would not be used to revoke any license held by the company
• This was a case where the company had a system in place to ensure compliance with the database regulations and the transactions were recorded in other company documentation, but those systems had not worked on this occasion.
• The company had spent considerable sums in legal and expert witness fees demonstrating that the allegations under Regulation 40(4) & Schedule 5 paragraph 1(d) of the Producer Responsibility Obligations ( packaging waste ) Regulations 2007  were misguided

The Circular Economy Approach to Glass Reprocessing

In Wales, where the waste glass originated, in order for material to be classed as recycled, and count towards national recycling targets, it must meet the end of waste criteria. This requires that glass cullet is destined for the production of glass substances or objects in re-melting processes. Therefore, glass sent for remelt will count as recycling, and glass used for aggregates will not pass the end of waste criteria and will not be considered to have been recycled.

This is known as ‘Closed Loop’ recycling within the broader concept of the circular economy where waste is retained in the productive economy. This approach is recognised by the WFD European Directive which says at Article 4

“Member States shall take measures to encourage the options that deliver the best overall environmental outcome.”.

The Company argued that by insisting on screening the material thus preventing reprocessing to create glass products, the enforcement action taken by the EA had the unfortunate effect of sending the glass cullet to landfill, the least preferred solution. This was of course not a deliberate policy by the EA, but the unintended consequence of regulation in a highly technical area, where new techniques were being effectively trailed by a company, keen to do the right thing in an emerging market sector.