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Preventing illicit waste-exports from the Netherlands to China

Authors:
  • National Police Netherlands

Abstract and Figures

Recyclable waste is big business. Large amounts are exported from Europe to other parts of the world, for example to be treated and re-used as raw materials. This concerns paper waste, scrap metal, electronic wastes, mixed plastics, waste tires and end of life vehicles. Destinations are countries in Asia and Africa, but more recently also in South America (IMPEL, 2014). Low shipping costs have made it economically attractive to move low value waste across the globe, and China’s industry is a major destination. The chapter discusses frauds with waste export to China and prevention of this type of environmental crime.
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1
P
REVENTING ILLICIT WASTE
-
EXPORTS FROM THE
N
ETHERLANDS TO
C
HINA
Toine Spapens, Shanna Mehlbaum and Rudie Neve
1
In: Mitsilegas, V, S. Hufnagel, A. Moiseienko, S. Yanan & L. Mingxiang (2019).
Transnational crime, European and Chines perspectives. London/New York: Routledge. Pp.
215-234.
1 I
NTROD UCTION
Recyclable waste is big business. Large amounts are exported from Europe to other parts of the
world, for example to be treated and re-used as raw materials. This concerns paper waste, scrap
metal, electronic wastes, mixed plastics, waste tires and end of life vehicles. Destinations are
countries in Asia and Africa, but more recently also in South America (IMPEL, 2014). Low
shipping costs have made it economically attractive to move low value waste across the globe,
and China’s industry is a major destination.
‘Waste-relations’ between China and the Netherlands are particularly interesting,
because the majority of waste shipments leaving the European Union (EU) are shipped through
the Dutch port of Rotterdam. The harbour is the biggest in the EU, handling some 50 per cent
of all cargo exported from the Union on sea-going vessels (UNEP, 2015). In 2009 this amounted
to almost 10 million twenty-foot equivalent unit (TEU) containers, of which 15 percent was
estimated to contain waste. The Netherlands and Germany mostly contribute metal waste,
cables and electronic waste. Ireland and the United Kingdom are important sources of
household waste, which is first shipped to the Netherlands where recyclable materials such as
plastic, paper and metal are sorted out and sent on to destinations outside the EU. Smaller
amounts of waste originating from a variety of other Member States are also transhipped via
Rotterdam (Mehlbaum and Spapens, 2017).
Although the market for transfrontier shipments of waste is carefully regulated, it is
assumed that large amounts of waste are unlawfully exported (Appelqvist and Cooper, 2013).
General estimates range from 10-20% (UNEP, 2012; Baird et al., 2014). Annual estimated
value of the illegal waste trade lies between 10 and 12 billion USD and the activity thus
generates very high revenues to the criminal actors involved in the trade (Comte 2006). How
many shipments exported from the Netherlands are in violation of regulations is unknown.
However, Dutch enforcement agencies investigate tens of substantial cases each year, far more
than other EU Member States (UNEP, 2012). How many cases involve waste shipments
destined for China is unknown.
The aim of this paper is to explore the modi operandi of operators who ship waste
illegally to China and how to better prevent these practices. This chapter is organised as follows.
1
Toine Spapens is professor of criminology at Tilburg University, the Netherlands; Shanna Mehlbaum is
researcher and PhD. at Tilburg University; Rudie Neve is a senior researcher at the Analysis & Research
department of the Dutch National police.
2
To begin with, section 2 describes the regulatory framework for waste shipments from the EU
to third countries and China in particular, as well as the different agencies involved. Section 3
presents an overview of the cases and section 4 describes the modi operandi of waste traffickers.
In section 5 we present an overview of the problems enforcement agencies experience in
tackling waste trafficking and address initiatives that have been taken to improve enforcement
and cross-border cooperation. Finally, section 6 offers some conclusions.
2 T
HE R EGULA TORY FRAM EWOR K
As mentioned above, transfrontier shipment of waste is carefully regulated to prevent unwanted
effects to the environment, to human health and to non-human species. The main instruments
at the international level are the Basel Convention on the Control of Transboundary Movements
of Hazardous Wastes and their Disposal (the ‘Basel Convention’) and the OECD Council
Decision on the Control of Transfrontier Movements of Waste Destined for Recovery
Operations. Within the EU these were transposed into the Regulation on the Supervision and
Control of Shipments of Waste within, into and out of the European Community, also known
as the Waste Shipment Regulation (WSR) (259/93/EEC, amended by Regulations 1013/2006
and 660/2014).
The main purpose of the WSR is to prevent the shipment of environmentally harmful
waste to countries that do not have the provisions to cope with these wastes. Another aim is to
ensure environmentally sound processing of the waste (ECRAN, 2016). The WSR and the Basel
Convention include the following important general obligations. To begin with, it is prohibited
to export or import hazardous wastes or other wastes to or from a non-party State. Second, no
wastes may be exported if the State of import has not given its consent in writing to the specific
import. Third, information about proposed transboundary movements must be communicated
to the States concerned, by means of a notification form, so that they may evaluate the effects
of the proposed movements on human health and the environment. Fourth, transboundary
movements of wastes must only be authorised where there is no danger attaching to their
movement and disposal.
The WSR categorises waste in two lists: green and amber. Green (Annex III, Annex IIIa
and Annex IIIb) refers to non-hazardous waste, whereas amber concerns hazardous waste
(Annex IV and Annex IVa). In addition, export or import prohibitions may apply to specific
countries (Annex V). With regard to third countries, export of waste intended for disposal is
prohibited unless to European Free Trade Association (EFTA) countries that are also party to
the Basel Convention. Export of hazardous waste to non-OECD countries is prohibited. Export
of non-hazardous waste is allowed to OECD countries and to non-OECD countries depending
on the response of the importing country.
The WSR requires either notification of shipments or a so-called Annex VII document.
Notification is usually necessary in cases of hazardous or non-listed waste and for any type of
waste shipped for disposal. If green-listed waste is shipped to a non-OECD country for
recovery, notification is necessary when the importing country requires this. It may allow a so-
called Annex VII procedure, which is less thorough. It requires the shipment to be accompanied
by an Annex VII document and the person arranging the shipment and the consignee must have
established a contract in accordance with Article 18 of the WSR. The procedure is also
3
applicable when waste listed in Annex III or IIIA is shipped for recovery to a non-OECD
country that has approved the lighter procedure for that particular type of waste and has
communicated this to the EU (Nurmi et al., 2017).
Although individual states differ widely when it comes to the authorities responsible for
enforcement of trans-frontier shipments of waste and their respective competences, three types
of agencies are generally involved: environmental inspectorates, the Customs and the police, as
well as the public prosecution service (IMPEL, 2006). In some countries competences to
enforce environmental regulations are shared between administrative authorities, the Customs
and the police, whereas in others a single authority, for example the Environmental Protection
Agency is responsible. Cases in which humans are injured as a result of environmental
violations will be handled by criminal enforcement agencies (usually in joint teams with
administrative enforcement agencies).
Administrative bodies are usually competent for inspections in harbours and processing
facilities, they may impose sanctions such as warnings or fines, and are entitled to revoke
licenses. Competence of the Customs is in some countries limited to inspection, but in others
the Customs may conduct independent criminal investigations as well. In the EU, the Customs
is competent for shipments coming in or going out to countries outside the Union.
In the Netherlands, violations of WSR regulations may be dealt with administratively
or through criminal procedure depending on the severity of the case. Less severe violations are
dealt with administratively. Cases in which societal and environmental impact is substantial
will be handled the by one of 11 specialised environmental police investigation teams
comprising about 400 detectives and the public prosecution service, usually with the aid of
environmental experts from administrative bodies. Inspection agencies may transfer a case to
law enforcement if administrative penalties do not have the intended effect. The public
prosecutor may start a criminal investigation independently if he or she is of the opinion that
the administrative bodies fail to take adequate measures. However, where possible multi-
agency cooperation and coordinated efforts are preferred (Spapens, 2016).
As explained above, this chapter focuses on trans-frontier shipments of waste from the
Netherlands to China. Because it is a third country and not a member of the OECD, China may
receive from the EU only recyclable non-hazardous waste. Although China allows shipments
under Annex VII, the country does require extra guarantees. First, China demands that the
composition of the green listed waste complies with its national procedures (Annex III, column
D). Second, exporting companies must have a Chinese license and only a limited number of
permits is available. Importing companies must also be licensed by the Ministry of
Environmental Protection of China and prior to shipment foreign exporters are expected to
check this. Third, every single shipment must be checked and authorised by the China
Certification and Inspection Group (CCIC), which is part of the General Administration of
Quality Supervision, Inspection and Quarantine (AQSIQ). A trader must send photos to CCIC
inspectors to allow determination of the composition of the waste. The CCIC performs its own
inspections of planned shipments in European harbours, including Rotterdam.
In addition, Dutch administrative authorities and the Customs may also carry out
physical inspections of containers or run these through scanners. However, given the vast
number of containers shipped through the Rotterdam harbour, such inspections must be based
4
on risk analysis and only a very small percentage of waste shipments is checked. Emphasis is
on shipments entering the country (and the EU) and less on export.
5
3 W
ASTE
-
TRAFF ICKI NG FR OM T HE
N
ETHE RLAN DS TO
C
HINA
:
CAS ES
Empirical data was mainly derived from the court files of 13 major criminal investigations of
illegal shipments of waste from the Netherlands to China. Each case required an investigation
that took several months up to more than a year to complete. In the Netherlands, files of police
investigations are available for academic research under specific conditions. Important
restrictions are that the cases must have been brought before the court of first instance (the case
may still be pending in the court of appeal and that persons and entities must be anonymised.
Case files may range from several hundred to several thousand pages and contain evidence
gathered by means of regular investigative methods (e.g. interrogation of suspects; hearing of
witnesses; searches of premises); special investigative methods (e.g. interception of
communication, covert observation); and financial investigation as well as information on how
the investigation was conducted.
The case files were collected in the context of an ongoing PhD. study by Shanna
Mehlbaum on waste related environmental crimes. She collected 110 cases in total on waste
dumping, asbestos, contaminated soil and waste trafficking covering the period of 2000 - 2012.
2
China was involved in 13 cases, all related to illegal waste shipments originating from the
Netherlands. The same cases were analysed by Rudie Neve in a study of waste shipments from
the Netherlands to Asia and Africa carried out for the National police (Neve, 2012).
3
Table 1
gives a brief overview of the empirical data.
Table 1: Criminal investigations of waste trafficking from the Netherlands to China
No. Period Type of waste Suspects Enforcement
agencies NL
1 2001-2003 PVC paste Trading companies Provincial
authorities
(licensing), police,
ILT (inspection).
2 2003 Metal waste Recycling company ILT, Belgian police
3 2003-2004
Cable and transformer waste Recycling companies;
shipping agent
ILT, Customs,
police
4 2005 Household waste R ecycling companies ILT, Customs,
Fiscal Investigation
Unit
5 2005 Shredded refrigerators (containing
CFKs and polyurethane insulation)
Waste collecting company Police
6 2005-2006 Metal waste and cables Import and export company Police, ILT
7 2005-2006
Metal waste (aluminium, motor
parts) polluted with chemicals
Waste collecting company;
shipping agent.
Police, ILT,
Customs
2
It usually takes several years before cases are handled by the court – cases are not considered urgent because
suspects are seldom kept in pretrial detention and often the main suspect a legal entity – which explains why more
recent cases could not be used.
3
The criminal business processes of four cases have been analysed earlier in the context of a EU research project
entitled Blockwaste (Sahramäki et al., 2016; see also blockwaste.eu), and one case was described in detail in an
instruction manual on the prosecution of waste trafficking (UNEP, 2012).
6
8 2006-2008 Plastic waste Waste collecting company ILT
9 2007 Plastic waste Recycling company ILT
10 2008 Used toner cartridges Recycling companies ILT
11 2009
Metal waste Recycling company;
shipping agent
Police, ILT,
Provincial
authorities
12 2009
Plastic waste Paper recycling company Police, ILT,
Inspectie
leefomgeving
Belgium
13 2009-2010 Plastic waste (toner cartridges,
wires, PCB’s, plastics contaminated
with glass and sand)
Waste collecting company;
shipping agent
Police, ILT,
Inspectie
leefomgeving
Belgium
The table shows that in most cases the waste destined for China had been sorted, at least to
some extent, before shipment. This is also visible in the fact that in a majority of the cases
recycling and waste collecting companies were organising the shipments. In the remaining
trading companies and shipping agents were the main suspects. Investigations were carried out
mostly by the Human Environment and Transport Inspectorate (ILT) and the police. The ILT
is the national administrative authority competent for inspection of waste shipments but it also
has a small intelligence and investigation department (IOD), to carry out criminal
investigations. However, special environmental investigation teams of the police usually carry
out large-scale criminal investigations with the support of a small number of experts from other
agencies, commonly staff of the ILT and the Customs. Other agencies involved were the Fiscal
Intelligence and Investigation Unit (FIOD) which is competent for tax-related offenses, and
provincial authorities who are responsible for licensing and inspection of treatment facilities,
for example.
4
Cooperation with foreign enforcement agencies mostly concerns Belgium.
Although shipments were destined for China (in some cases via detours), Chinese authorities
were not involved in the investigations.
4 M
ODI OPERANDI
General analysis of waste shipments that were found to be in violation shows that in 52% of
cases non-compliance was related to missing or incomplete documentation or to shipments of
non-hazardous waste contaminated with (small) residues of hazardous waste. The remaining
48% could be regarded as more serious illegal exports that were either not notified at all, or
consisted of a mix of hazardous and non-hazardous waste or were destined for countries to
where export was explicitly prohibited (Baird et al., 2014). Whether such figures also apply to
4
In 2013, environmental licensing and inspection of fixed installations (e.g. production facilities) and works (e.g.
infrastructural and building activities) was transferred from the provinces and municipalities to 28 Environmental
service agencies, because small municipalities in particular were unable to handle complex inspections and
because licensing and inspection was often the responsibility of the same person which was considered an integrity
risk (Ruessink and Spapens, 2014).
7
shipments leaving the Netherlands for China is unknown. The types of violations are, however,
comparable.
As explained above only recyclable waste may be exported from the Netherlands to
China. Problems may first occur when recyclable waste is contaminated with hazardous waste.
If contamination is not detected, this may result in products (partly) manufactured from polluted
materials and this may cause health risks. It may also result in economic damage for instance
when countries refuse to let the goods enter their markets. Second, criminals may export
hazardous waste under the pretext that is concerns recyclable waste. When this is discovered at
the destination, it may not be possible to return the shipment or dispose of the waste in an
environmentally sound manner. Table 2 gives a brief overview of the main modi operandi.
Table 2 Overview of modi operandi
No. Not properly
notifying
shipments/
Concealing the
composition of
the waste
Not notifying
shipments/
Exporting without
a permit
Company
collects or
exports waste
without an
operating
license
Concealing
the
shipment’s
destination
Contamination of
recyclable waste/
Mixing of recyclable
and hazardous waste
1 x x x
2 x x x
3 x x x
4 x x
5 x x x x x
6 x x
7 x x x
8 x x x
9 x x x
10 x x x
11 x x x
12 x x x x
13 x x x
The table shows that companies involved in illegal waste shipments from the Netherlands to
China use a range of methods to prevent detection, most importantly by avoiding the regulatory
system altogether by not notifying shipments, or collecting and exporting waste through
companies that do not have a permit for that type of business activity and by concealing the
shipments’ final destinations. Failing to disclose the true composition of the waste, or declaring
it as second-hand goods, and exporting recyclable waste contaminated with other pollutants or
intentionally mix it with hazardous waste, can be observed five cases. If shipments were
notified, the authorities received false or incomplete information in seven cases.
Hiding the true nature of the waste and not notifying
Falsifying transport documents to hide the true nature of the wastes shipped, is an important
method to circumvent WSR and is found in all cases (n=13). One way of doing this is by
declaring the goods as second-hand instead of waste. Waste may also be classified in a wrong
Met opmerkingen [RN1]:
Forging misschien beter hier?
8
category, for example to mask that it is hazardous waste but sometimes also to avoid taxes.
Legal definitions are complex and sometimes unclear as well as ambiguous, and even in the EU
the member states have implemented general provisions such as the WSR differently (Favarin
et al., 2017). Non-compliant operators may exploit such unclarities and gaps in regulations.
Within the WSR and the Basel Convention, waste is defined as ‘any substance or object
which the holder discards or intends or is required to discard.’ A waste holder is responsible for
classifying the waste. Despite this definition there are various interpretations of the term ‘waste’
and which goods it exactly covers. The problem is further compounded by a lack of
harmonisation between the codes of different countries, or by different requirements between
countries with respect to the conditions under which a substance or object must be disposed of
and thus considered a waste (UNEP, 2015). For example, in Germany second hand goods such
as electronics and vehicles are required to function upon export. If a computer is plugged in and
does not work or if a car fails to start, it is considered to be waste. In the Netherlands, however,
inspections are usually limited to face value checks of whether the goods are carefully packed
to avoid damage upon transport or simply crammed into a container.
Although uncertainties and gaps in regulations may be put forward by defence lawyers
afterwards, the perpetrators start with concealing the true nature of the shipment. A common
way of doing this is by putting neatly packed and clean recyclable waste in the front of the
container and other types of (hazardous) waste in the back. Inspectors can only detect this by
unloading a container or by running it through a scanner, which is time-consuming. The cases
analysed here show that waste exporters count on a low probability of getting caught.
The CCIC inspection method based on photographs is also vulnerable to fraud, because
exporters can submit pictures on which everything seems to be in order and add other types of
waste afterwards. They may also send photographs of completely different shipments (Neve,
2012). In one of the empirical cases the police investigation proved that pictures sent to the
CCIC were taken at entirely different locations. Even if CCIC inspectors perform a physical
check, exporters are able to add other waste later on because CCIC is not an enforcement agency
and cannot seal containers.
Detection of suspicious shipments is further complicated by the fact that (both in the
Netherlands and internationally) environmental inspectorates and the Customs use different
code systems: the WSR/Basel system on the one hand and the international tariff codes on the
other (Algemene Rekenkamer, 2013). As a result, a shipment that is classified as waste under
the WSR system may be documented as goods by the Customs and thus not inspected. The
issue is further complicated by the fact that shipments often contain waste collected from
different sources which is sorted and repackaged before it is sent on to Asia. In one example, a
shipment of waste cables contained ground cable with and without bitumen as well as other
types, such as household cable. In this case, ground cable with bitumen is a different category
of waste (Van Heeswijk et al., 2004). Although the EU has worked on a transposition table of
the WSR/Basel and the customs codes, harmonisation is still an ongoing process.
Apart from notifying but hiding the true nature of wastes exporters may also choose not
to notify the authorities about the shipment at all. They usually claim that this is not necessary
because it is a shipment of second hand goods, to which the WSR does not apply whereas in
reality the shipment contains (hazardous) waste. Because administrative enforcement agencies
and the Customs primarily focus on checking notified shipments, perpetrators assume that the
9
risk of getting caught if they avoid the regulatory system may be even lower. Of course, they
must also calculate the risk of interception when the containers enter China, but this too is
viewed as an acceptable risk (Neve, 2012).
Port hopping and taking detours to avoid inspection
Port hopping refers to non-compliant waste exporters trying to avoid detection and notification
procedures by shipping waste through European ports with more lenient scrutiny regimes.
Exporters may also deliberately send shipments destined for mainland China via other
destinations in order to circumvent the CCIC procedure. Neve (2012) observed that exporters
send shipments through the nearby Belgian port of Antwerp instead of Rotterdam because
inspections there are considered less thorough. In some of the cases studied here, offenders
chose the port of Antwerp because their shipments were flagged by the Dutch Customs because
of earlier rule violations. Port-hopping is not easy to detect, as operators will give logistical
reasons for switching ports, such as demurrage, handling, storage, lower transport costs, and a
particular shipping line may sail only from a particular port. To some extent Antwerp and
Rotterdam are indeed ‘twinned’ and many companies involved in waste export have offices in
Belgium as well as the Netherlands (UNEP, 2012).
The case examples above show that the practice of sending waste to China via detours
is a more serious problem, because it undermines the key requirement of the WSR that to ensure
proper treatment the final recipient of the waste must be known. Administrative agencies must
be able to check whether the recipient can indeed manage the waste adequately. However,
when waste is destined for Asia and Africa this is often impossible. Competent bodies in the
EU member states often cannot check if a specific company even exists and if so, whether it is
able to process specific types of waste without harming the environment. Furthermore, the
customs regulation requires only disclosure of the next country in transit (Algemene
Rekenkamer, 2013). CCIC inspections only apply to shipments destined for mainland China
and operators circumvent the procedure by sending waste via intermediate destinations, which
may be changed when the cargo is still under way (Neve, 2012).
Hong Kong is a popular stopover (on paper), but also Vietnam and the United Arab
Emirates (Neve, 2012). In five of the studied cases Hong Kong was the ‘final’ destination on
paper and in two others Malaysia. Neither of these territories have (major) facilities to treat or
reuse waste (Neve, 2012). In one of the cases studied the recipient in Hong Kong was a small
office located on the ninth floor of an office building. According to WSR the country from
which the shipment originated must be informed when the final destination changes and agree
with this, but in practice the requirement is unenforceable because it is impossible to keep track
of the shipment after it has left the harbour. Although Dutch agencies may be suspicious when
the aforementioned destinations appear in notification documents, they are usually unable to
refuse an export permit. Stopping the shipment in China is also difficult. If it is sent via an
intermediary destination – at which the waste may be sorted and repackaged again – it is often
impossible to trace back the shipment to the EU, whereas returning it to the previous port of
origin will probably not result in proper treatment. Sending a shipment back to the country of
origin is an expensive operation and can be complicated due to uncertainties about ownership,
especially when documents have been falsified, and containers that were refused entry may
well end up abandoned in the ports.
10
Unintentional contamination and intentional mixing of waste
Unintentional contamination of green-listed waste with hazardous waste is an important
problem. Paper waste, inevitably contains some metal in the form of staples and plastic from
binders. Recyclable waste such as paper and plastics is also sorted from household waste and
may be polluted with hazardous waste such as oil and with other banned substances such as
animal waste products (e.g. chicken feathers). Households in the UK and Ireland are not yet
obliged to separate paper and plastics from other waste and much household waste is exported
to the Netherlands (and Belgium) for sorting and re-export. If the waste is insufficiently cleaned
(or not at all) there is a substantial risk of contamination. Another important source of waste
plastics originating from the UK is agricultural plastics which often contain residues of
pesticides.
Although requiring recyclable waste to be 100 percent ‘clean’ is practically and
economically unfeasible, there exists no EU-regulation on how much contamination is
acceptable. Authorities may be reluctant to set such standards because it would enable exporters
to reduce their efforts to stay just within limits. Exact standards may lead to juridical bickering
if these are not accompanied by procedures on forensic testing, and those procedures and their
execution in the field may of course also be challenged in court.
Although some countries have set standards for certain types of waste, including China
and the Netherlands, others have not and shipping agents are thus confronted with judgements
of what is acceptable that may differ between jurisdictions (Algemene Rekenkamer, 2013).
According to a guideline of the Ministry of Infrastructure and the Environment, green listed
waste exported from the Netherlands may not be contaminated with hazardous waste and not
contain over 2 percent of other recyclable materials. The Chinese authorities for example
require waste plastics to be crushed, colourless and odourless and to have been washed to
remove any obvious contaminants. Remaining pollution of the total shipment may not exceed
0.01% for chemicals and 0.1% for metal or sand (Yoshida, 2005). Recently, the Chinese
authorities announced introduction of a maximum allowed contamination of 0.3% for all
imports of secondary materials by the end of 2017 (Latchem, 2017).
Contamination may also be the result of intentional mixing of green listed waste and
hazardous waste. In two cases studied here household waste was collected in the UK and sent
directly to China. The Netherlands have seen several other recent examples. One concerned a
paper and plastic recycling company that in 2016 handled 1.2 million tons of waste and shipped
it to destinations all over the world, including to China. In 2013, this company was suspected
of deliberately mixing paper and plastic with household waste, rendering a profit that was
estimated at several million euros. The company did not notify these shipments (RTL nieuws,
2013). In a similar case in 2011, a recycling company added residual waste and household waste
it had imported from the UK and Ireland to waste paper shipments. Furthermore, employees
drew up transport documents in which the weight of the waste was inflated to increase profits
even further. After the start of a criminal investigation, the company went bankrupt in 2013. It
took until January 2017 before the owners of the former company were convicted to prison
sentences ranging from 6 to 12 months (Van Klinken, 2017). Even if the waste is recyclable as
such, perpetrators may still cheat, for instance by mixing high quality metal scrap with inferior
metal waste to make extra money. Metals recycled from cable and electrical appliances for
11
example, are not suitable for the manufacture of high quality products, such as locks (Neve,
2012).
4 E
NFOR CEME NT AN D CRO SS
-
BORD ER CO OPERATION
The previous section showed that perpetrators apply a variety of methods to traffic waste. In
this section, we explore the difficulties experienced by enforcement agencies responsible for
tackling illicit trans-frontier shipments of waste. To begin with, we will describe, focusing on
the Netherlands challenges at the national level. Next, we will address cooperation and
information exchange within the EU, and finally between the EU and China.
Enforcement of waste trafficking in the EU Member States and the Netherlands in particular
A number of studies have been carried out to explore the main enforcement problems at the
national levels in the member states. These can be divided into three main categories.
The first is a general lack of priority when it comes to tackling waste trafficking, which
results in a shortage of staff, expertise and means with enforcement agencies (Van Heeswijk et
al., 2004; Arcadis, 2006). This may result in information and intelligence not being followed
up, but also in problems of interpreting complex regulations. For enforcers, the main challenge
is to detect illegal waste shipments before they leave port. The cases we studied often started
after inspections, sometimes in the course of special enforcement operations aimed at waste
transports. The large number of containers handled in the port of Rotterdam alone and the
limited resources available renders it impossible to check every shipment and thus only small
selections of waste shipments, either random or based on risk analysis, are inspected.
A second problem is that in most countries many organisations are involved in the
enforcement of WSR (Algemene Rekenkamer, 2013). This calls for cooperation and exchange
of information within countries, but both agencies’ priorities and their interpretation of specific
legal provisions may differ. In some countries regulators have good cooperation based on some
form of service-level agreement. This is not the case everywhere, and in some countries, there
is no cooperation at all (Van Heeswijk et al, 2004; UNEP, 2015). Lack of cooperation may lead
to uncoordinated actions, but also to information gaps, and differences in how respective
agencies carry out inspections (Isarin, 2014).
In the Netherlands, cooperation between inspection agencies, the police and the
Customs is relatively well established. In most of the cases included in our study, waste
trafficking is detected during inspections initiated by the ILT. Inspections are often executed
jointly with the Customs’ environmental specialists, the police and other agencies, such as the
Traffic Inspectorate of the Ministry of Traffic and Waterworks. These agencies exchange
information on case-by-case basis, as well as more structurally. Staff involved in these
inspections are usually trained in enforcement of Regulation 259/93 (Arcadis, 2006; Van de
Wardt et al., 2012). Since 2013 the parties decide collectively in the so-called Milieukamer
(Environmental Crime Decision Room) on how to follow-up detection of irregularities. These
may be dealt with administratively but they may also be the starting point of a criminal or joint
investigation. The Customs and the ILT also cooperate in drawing up risk profiles and in
implementing enforcement priorities (Van de Wardt et al., 2012). Although cooperation during
inspections runs smoothly, joint investigation teams sometimes experience troubles because of
Met opmerkingen [RN2]:
MOU gebruik ik tot nu toe alleen
ivm tot internationale relaties, en dan met hoofdletters, maar
misschien zit ik er naast hoor.
12
a knowledge difference between different agencies. Environmental police investigation teams
have more experience with criminal investigation tactics and techniques, whereas employees
of the ILT have far more knowledge of the technical aspects of waste trafficking and complex
environmental regulations. Where police officers often lack specific knowledge about waste,
environmental specialists lack experience in writing verbatim reports in the context of a
criminal case.
From a legal point of view, information exchange during (joint) investigations is
usually not a problem, because provisions exist in the shape of covenants. A serious case may
for instance be taken up in the context of a Regional Information and Expertise Centre (RIEC),
which is a platform for information exchange between the public prosecution service, the
police, administrative authorities, and the Tax authority. Relevant parties may use the RIEC to
coordinate respective actions or work together in a joint team, depending on the types of
interventions chosen. However, practical issues may still complicate information exchange,
such as the fact that all agencies have their respective information systems, which were
designed to tailor their needs but not so much with interchangeability in mind. One example is
that databases differ in how company names are registered meaning that all information has to
be checked by hand.
At a more general level, non-case based structural information exchange is less evident.
To begin with, this is more complicated because of differences in orientation and sometimes a
lack of trust, but also because data protection laws are far more restrictive when it comes the
provision of police information to other public agencies, than the other way around. To begin
with administrative authorities are future oriented and aim at halting non-compliant behaviour
rather than punishing crimes already committed, whereas the police and the public prosecution
service are predominantly rear-view oriented. As a result, the latter often judge administrative
enforcers as being too lenient (Spapens, 2012). Furthermore, whilst criminal law enforcement
is politically independent, this is different for administrative agencies. National, provincial and
local authorities may sometimes intervene to soften measures against violators of
environmental regulations, particularly when it concerns economically important corporations.
Instructions to move cautiously may also lead to a certain reluctance to exchange information
with the police, which detectives may in turn perceive as a sign of corruption (Spapens, 2012).
On their part, the police generally have a culture of secrecy, and when it comes to
exchanging information outside the context of an actual investigation, administrative agencies
often compare the police to a ‘black hole’: it gladly accepts every piece of information from
others but little or nothing is returned. Police information is subject to strict data protection
requirements, but administrative agencies often view the police as not very flexible when
privacy laws do leave an opening. From a psychological perspective good cooperation depends
on reciprocity and if one party fails to return information, this will also reduce motivation with
the others.
As explained above WSR offences may be punished administratively as well as
criminally. The ILT can issue warning letters and orders subject to a penalty payment, as well
as impose financial penalties and revoke export and operating permits. The public prosecution
service may bring cases to court and impose financial penalties and prison sentences, but it may
also choose to settle the case out of court (Van de Wardt et al., 2012). Although the maximum
prison sentence for economic offenses is six years, almost no perpetrators are sent to jail. The
13
ILT mostly issues warning letters and orders subject to penalty payments. Figures from the
Rotterdam district of the public prosecution service compiled by the General Accounting Office
(GAO), show that from 2008-2010 64 percent of the cases were settled out of court and 31
percent were not prosecuted at all. The GAO judged the latter as particularly disturbing. The
main reasons why prosecutors did not want to go to court were inadequate or unconvincing
evidence; the fact that an administrative intervention was preferred; and long procedural delays
which usually result in (strongly) reduced penalties. Of the cases that did go to court 78 percent
resulted in a fine. With 10 percent, the acquittal rate was also relatively high (Van de Wardt et
al., 2012). One could state that out of court settlements are unsatisfactory too, because a
company can thus avoid a conviction and a criminal record. As a result, administrative
authorities may also not be able to impose measures such as refusing future licenses (Spapens
et al., 2013).
Cooperation within the EU
Waste shipments from the Netherlands to China often involve other EU Member States. In the
cases studied the waste originated from other Member States (5 cases), or shipments were sent
to China via the Belgian port of Antwerp (5 cases). In one case, the export license held by a
German company was fraudulently used for shipping waste from Dutch and Belgian ports. Thus
cooperation between the Member States is often crucial for tackling illegal waste trafficking.
The problems experienced at the national level are to some extent mirrored in challenges
to cooperation within the Union. Although the EU-WSR sets a common standard, differences
occur in its implementation in national legislation and enforcement guidelines (Favarin et al.,
2017). Differences also occur in the availability of (trained) personnel and the means to carry
out inspections and investigations. Maximum penalties vary substantially between countries,
and low penalties may preclude application of more intrusive investigative methods (Spapens,
2011). Finally, each Member State organises enforcement differently. In the Netherlands, for
example, administrative enforcement of the WSR is organised at the national level whereas in
for example Belgium, Italy and Sweden, inspections are carried out by regional or even local
authorities. All of this presents substantial barriers to cross-border cooperation. Next, we will
focus primarily on information exchange.
As mentioned above an important difference is between case-based exchange of
information and pro-active exchange aimed at detection. Similar problems occur as described
above. In case-based situations, ‘horizontal’ information exchange is usually possible from a
legal point of view. Of course, all sorts of practical hurdles may be encountered, such as finding
the right person or department, slow responses, legal obstacles, and so on. Law enforcement
agencies may exchange information via provisions such as Interpol, police liaison officers and
Eurojust and the Customs may communicate via their Enforcement Network Communication
Platform. Administrative enforcement agencies lack such provisions, but may find contact
details of counterparts in the EU on the website of the European Union Network for the
Implementation and Enforcement of Environmental Law (IMPEL).
‘Diagonal’ information exchange is problematic from criminal law enforcement to
administrative enforcement agencies. Here no explicit legal framework exists for the cross-
border exchange of requests for mutual assistance (Spapens et al., 2015; UNEP, 2015). The
competent judicial authorities must weigh requests against national data protection laws and
14
meta conventions such as the European Convention on Human Rights. Lacking specific
guidelines, individual magistrates come to different conclusions as to what is allowed and what
is not. The problem of making available police and judicial information for administrative
purposes in another Member State is on the agenda of the European Commission (Spapens et
al., 2015). Belgium, Luxembourg and the Netherlands are currently discussing adaptation of
the existing Benelux police cooperation treaty in this respect.
Information exchange is also required at a more general level, for instance to detect
shipments or new modi operandi (UNEP, 2015). Here, the main challenge is to better ensure
systemic exchange of intelligence. No obligations to exchange non-case based information
exist, and the main problem is that enforcers perceive feeding information to a foreign
counterpart ‘spontaneously’ as complicated ‘extra work’. Enforcement agencies are usually
understaffed and overburdened as it is; language barriers may occur; people may not know
whom to contact abroad and do not have time to find out, and so on.
Initiatives to improve the situation are mainly undertaken by international cooperation
networks. The World Customs Organisation (WCO) established Environet, a communication
platform, and IMPEL organised a network of national contact points in each of the Member
States. However, there exists no EU-database in which intercepted illegal waste shipments can
be registered, comparable to EU-Twix for seizures of protected wildlife.
Cooperation networks primarily aim at capacity building, through activities such as
exchanging best practices and setting up joint projects. The police set up Envicrimenet in 2011,
as a follow-up to the Augias project that targeted waste trafficking in the EU (Spapens, 2017).
In 2012, a network of public prosecutors working in the environmental field (ENPE) was
established and now comprises 12 Member States and 3 other European countries. Finally, the
Customs cooperate globally in the WCO and in the EU the Customs participate in IMPEL.
IMPEL is particularly active in the field of WSR and has organised numerous (joint) inspection
actions, training activities and seminars to exchange experiences and best-practices, and the
network also initiated recommendations to the EU in order to improve the legal framework.
Cooperation with China
Cooperation with third countries is more challenging than cooperating within the Union and
this is also visible in cases of illegal waste shipments from the Netherlands to China. In fact,
even attempts at cooperation are hardly mentioned in the case files. Chinese recipients of waste
and shipping agents are not included in Dutch investigations, even if there is evidence of active
involvement, for instance because they falsified documents. In only one case, Dutch detectives
went to China to interrogate a suspect who was a representative of a Chinese company that
claimed to be the recipient of waste, whereas in reality shipments ended up at entirely different
locations. However, the Chinese authorities only allowed to hear this person as a witness and
this turned out to be a frustrating affair because he claimed to have little time for the interview,
and refused to sign his statement and to appear before the court if necessary.
Difficulties also occur in information exchange and little is known about Chinese
recipients and how they process the waste, and about the harm inflicted on the environment
when they fail to correctly treat it. Suspects in our case examples usually claim that the waste
is sorted and recycled in a safe way, even if export was in violation of the WSR. An example
is a case in which unstripped waste cables were shipped to China. Stripping is required before
15
export because of the risk that cables will be burned to retrieve the metal, causing air and soil
pollution. The Chinese recipient claimed the cables would be treated in an environmentally
sound way, knowing that the Dutch authorities were unable to verify this. Communication with
Chinese authorities is often perceived as difficult: if Dutch authorities request further
information they almost never receive a reply. China and the Netherlands are different in almost
every aspect of enforcement of transfrontier shipments of waste, such as the number of
enforcement agencies involved and their competences; their ability to identify and analyse
hazardous waste; procedures regarding waste shipments; and the severity of sanctions available
(Wang, 2009; Isarin, 2014).
When it comes to improvement of cooperation, the Netherlands are attached to
initiatives taken by IMPEL and the WCO. The IMPEL working group on transfrontier
shipments of waste (IMPEL-TFS) has suggested to establish a simple but robust contact regime
with China through existing national contact points and to arrange exchange visits and
participation in training and inspection projects. National laws and requirements of respective
importing should be clarified and made available to all national contact points (IMPEL, 2013).
IMPEL also set up the Asian Network for Prevention of Illegal Transboundary Movement of
Hazardous Wastes. At the global level, UNEP established the Regional Enforcement Network
for Chemicals and Waste (REN) in 25 Asian countries. It focuses on the prevention and
enforcement of illegal transboundary movements of harmful chemicals and hazardous waste.
An example of a project aimed at improving cooperation is Operation Demeter, which
was initiated by the WCO in 2009. It focused specifically on waste shipments from Europe to
Asia (WCO, 2010). Demeter involved 65 countries including the Netherlands, China and Hong
Kong. The operation led to 56 reported seizures of metal scrap, household waste and end-of-
life vehicles, to non-functioning or ‘used’ electrical and electronic equipment, granite and
silicon barrels. The Netherlands reported 17 seizures and Hong Kong 8. Mainland China
reported over 8,927 tons of hazardous and other waste illegally imported from North America
and Europe in 30 seizures, ranging from waste batteries and photocopiers to waste engine oil
and waste tyres. In addition, they detained more than 20 suspects and fined 31 operators for
illegal shipments (WCO, 2010). Operation Demeter was repeated in 2012 and 2013.
A positive development is a growing awareness of the importance of compliance and
enforcement in countries at the receiving end of the waste streams (Ruessink and Wolters,
2011). The Chinese government for example launched ‘Operation Green Fence’ in 2013
(Rucevska et al., 2015). During the operation, China Customs supervised 45.5 million tonnes
of imported solid waste, investigated 1,176 cases in different categories of smuggled waste,
arrested 380 suspects and conducted an audit of over 2,608 enterprises (WCO, 2014).
Legislation in China is in transition and the authorities are becoming increasingly strict
in ‘keeping the garbage out’, according to a representative of the ILT we interviewed in the
context of the BlockWaste project (Mehlbaum and Spapens, 2017). In March 2017 customs
authorities launched ‘Operation National Sword’ (sometimes called Green Fence II). During an
11-month period the Customs, the police, the environmental protection agency and the AQSIQ
will join forces to seriously strengthen supervision of waste imports (Latchem, 2017; Recycling
International, 2017). Furthermore, in July 2017 China informed the World Trade Organization
(WTO) of its intentions to fully ban import of certain scrap materials by the end of 2017
(Carpenter, 2017). Experts in the trade industry foresee great economic impact on their
16
business, since the Chinese recycling industry is the worlds’ largest (Carpenter, 2017; Latchem,
2017; Recycling International, 2017). The Chinese authorities stated that measures were
necessary because of the large amounts of recyclable waste contaminated with other waste or
mixed with or hazardous waste, was seriously polluting China’s environment (Miles, 2017).
5 C
ONCLUSION
This chapter has highlighted the main methods of illicit waste trafficking from the Netherlands
to China. Perpetrators apply tricks to avoid detection before a shipment leaves the EU as well
as upon entry in China. Generally, enforcement agencies have limited resources to detect and
inspect illegal waste shipments, particularly if these are not notified. Improved cooperation
between the Netherlands and China as well as between the Member States of the EU is
necessary but challenging. Consequently, investigations in the Netherlands often stop at the
border: although the cases studied all involved China, the Dutch police attempted only once to
interrogate a Chinese recipient of the waste, with little result. For agencies in the EU it is almost
impossible to check information provided by Chinese companies on their capabilities to treat
or recycle waste, and attempts to communicate with the competent authorities to verify
information are usually left without reply. The reasons are difficult to assess and would require
further study.
Within the EU, structural information exchange outside the scope of investigation cases
is also underdeveloped. For instance, spontaneous notification of intercepted shipments
destined for or originating from another Member State, depends on motivated individual
enforcers but should be part of the organisational culture of the competent agencies (Gay, 2016).
Unfortunately, a registration system for intercepted shipments, comparable to the EU-TWIX
for wildlife, is not in place. According to a police officer we interviewed in the context of the
BlockWaste-project, feasibility of such a system was briefly studied in the context of the
Augias-project, but at the time judged too complicated because of data protection laws
(Mehlbaum and Spapens, 2017). Establishing such a system would however be advisable.
It is interesting to notice that China is recently increasing its efforts to prevent hazardous
waste from entering the country and China also played an important part in the Demeter-
operations initiated by the WCO. However, stopping waste at the Chinese borders does raise
the problem of what to do with these shipments, especially if the ‘owner’ cannot be identified
or turns out to be a P.O. Box and containers cannot be shipped back. It is therefore essential to
also prevent shipments from leaving port in the EU and the Netherlands in particular, but this
requires systematic feedback allowing EU enforcement authorities to tighten inspection on or
shutting down companies involved in the trafficking as well as to refuse to authorise shipments
destined for ‘treatment facilities’ in China that only exist on paper.
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ISRI Statement on China's Intent to Ban Certain Scrap Imports
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