After an investigation lasting more than three years, prosecutors said they were dropping the case because inspections carried out in 2006 weren't detailed enough.
For Atlantic Paper and Community Waste – who have similar shareholders – counsel Richard Matthews noted that the Agency had been invited to attend when the containers were returned to the company's premises but had chosen not to.
The prosecution told the court that charges had been brought that the companies had “shipped waste in circumstances deemed to be illegal” in conflict to waste shipment and transfrontier shipment regulations, on or before 5 December 2006. Prosecuting for the Agency, Barrister Mehta said that the companies had pleaded not guilty.
The case had been expected to start in Maidstone Crown Court on 1 March 2010 and last about a week.
Mr Mehta told the judge, Recorder Nelson, that he wanted to explain the rationale behind the case so it is “not misconstrued elsewhere and to explain why it is that we take the stance that we do”.
He described how the international shipment of waste involved in the case concerned waste paper and that there was “growing concern about shipments of waste that could be harmful”.
Mr Mehta said that the volumes of exports of waste to developing countries “has mushroomed” and he suggested that exporters “benefit at the local authority end, through reprocessing and through exports”.
“The Agency,” he said, “has worked with all the major players in the industry. This particular issue relates to the amount of contrary levels. The waste industry has persistently pushed the Agency to accept specific levels which can be in the waste of 2% and the Agency has steadfastly refused to do so.”
The barrister went on to say that at a trial the Agency would have said that the paper was not mixed paper “but contained so many contraries, such as food waste, plastic, nappies and condoms, that it was badly sorted waste. The defence would say no to this.”
Giving a perspective on the regulatory approach, Mr Mehta explained that “the Agency has made it clear that each case “would turn on its own bat, based on breaches of the regulations themselves and not turn on percentages themselves”.
The decision to drop the case appears to have hinged, on the Agency's side, on the level of inspection it carried out when the containers were first stopped at Thamesport, on the Medway estuary.
Mr Mehta recalled how the containers were stopped in the UK “but the Agency was able to hold them for only three days”. He recalled that there was an absence of time for the prosecution to examine the material at the time and “the Agency has far more extensive powers now”.
And, he claimed that the decision to drop the case “had to be taken on whether there would have been unfairness to the defence that the Agency might have had a chance to undertake a more expert examination”.
It was on that issue alone and no other, said Mr Mehta, that it was proposed to offer no evidence.
Responding for Atlantic Paper and Community Waste, Richard Matthews, said he would be brief. He said: “The company director who sits behind me did write to the Environment Agency inviting them to attend when the containers were returned to his premises where he instructed independent inspectors to examine his load.”
Recorder Nelson swiftly agreed that the case could be dropped and without discussion ordered that costs be awarded in favour of Atlantic Paper and Community Waste out of central funds.
Peter Binning, of London law firm Corker Binning, which represented the defendants, told letsrecycle.com that it was not a simple process in exporting material. “The process involves inspections by the buyer before the containers leave the country and SGS was involved in this case. The companies were not exporting willy-nilly. The buyer had appointed his own agent.”
He added that the Environment Agency needed to act to bring clarity to the export regulations, stating that “there is no clear guidance for the UK.”
Philip Serfaty, a director of Atlantic Paper and Community Waste, welcomed the Environment Agency's decision to drop the case. “We have had to face the prospect of a court case for nearly four years and there is no clear guidance. We gave the Agency our full co-operation and every opportunity to look into this properly and our 130 employees have had this hanging over their heads for four years.”
And, he criticised the comments made by the prosecuting counsel over the fact that material was being sent to the “third world”. “The Agency needs to be aware that the paper mills that the material goes to have as good facilities as the UK.”
He continued: “The problem for the UK is that at present it means officials can have a subjective opinion. We would welcome good and clear guidance so we can continue to ensure we work within the rules.”
Mr Binning added that the proper solution, in his views, “is that the Agency work with the materials recycling facilities to ensure that the MRF material is acceptable”.
Howard McCann, solicitor on behalf of the Environment Agency, told letsrecycle.com that recent legislative and regulatory changes meant that the body now had greater powers of inspection and stressed that it would not define an acceptable level of contamination in export loads.
He said: “We are not agreeing and will not agree a percentage of contamination because the law makes it clear that the material has to be in keeping and compliance with the regulations.”