OPINION: ‘Biffa case raises serious questions for exporters’

Phil Conran, a consultant at 360 Environmental and former chair of the government’s Advisory Committee on Packaging, reacts after Biffa was found guilty last week of breaching regulations over the export of mixed paper to Asia in 2018 and 2019. He also worked for Biffa’s packaging arm for 17 years between 1991 and 2008

OPINION: The recent verdict in the trial of Biffa Waste Services and subsequent fine of £1.5m for the illegal export of waste should serve as a warning to the whole waste export industry.

The EA has heralded the result as ‘a significant and successful investigation into Biffa’s exports to Asia. The Environment Agency will continue to pursue operators who flout the law by sending household waste to developing countries.’

They have published photos of the contamination that was identified in their investigation of what they classed as ’Exports of unsorted household recycling waste’.  Indeed, this has been widely picked up by the media, stating that Biffa had sent ‘household waste to Asia, but labelled it as paper.’

But let’s examine some of the facts and consider the potential impact of this verdict.

Phil Conran OBE

The material was mixed paper that had been sorted from household waste. Mixed paper is an internationally recognised grade of paper that under the global EN643 standard, can contain 1.5% non-paper contamination. This is an extremely tight specification that for any Material Recycling Facility is extremely hard to achieve, but tests carried out showed the material to be 99.1% pure based on normal testing procedures.

If, indeed, the material was ‘unsorted household waste’, then it should have the EWC code 20 03 01 applied. Paper mills in the UK do not have this on their permit, so why is the EA allowing this material to be recycled in UK paper mills?

Green list

The waste was being exported under Article 18 ‘green list’ rules to India and Indonesia, two perfectly legitimate export destinations for green list although they had banned the import of unsorted paper. The Basel convention description of paper that can be exported under green list states ‘Paper, paperboard and paper product wastes provided they are not mixed with hazardous wastes …..’

In assessing whether waste exports meet Basel convention quality standards, the EA applies a de minimis rule. They have always resisted a quantified percentage contamination allowance and therefore assess the quality on the basis of a perception as to whether the level of contamination is excessive.

Initially, the decision to stop the export of material when opening a container for inspection at port will depend on an officer’s skills, experience and attitude, but based on that subjective position, an exporter can end up incurring extensive costs related to port charges, haulage as the containers are sent for more detailed inspection.

The purpose of that inspection is then to consider the full extent of the contamination for the EA to determine whether enforcement action is justified. To do this, they will break open a bale, extract all the visible contaminants and place them in a 4m x 2m rectangle laid out on the ground. This gives them a visual feel for the level of contamination.

“If sorted mixed paper to that quality level can lead to a prosecution, how do you determine the de-minimis level that is acceptable?”


The issue with this is that it gives no context to the contamination as a proportion of the waste it was removed from. The photographs provided by the EA in their press releases just show a small pile of non-paper contaminants, but the EA process does not weigh these contaminants and this therefore gives no indication of the proportion of contamination. They simply consider the visual appearance of what’s in the rectangle. However, when Biffa carried out a similar exercise on some of the same material for which they were being prosecuted, they found there to be 0.9% contamination. How can this possibly be classed as ‘unsorted waste’?

This raises a very serious question for all exporters. If sorted mixed paper to that quality level can lead to a prosecution, how do you determine the de-minimis level that is acceptable? The oft-used analogy is a stretch of road with no speed signs where you have to guess the speed limit.

The EA has a difficult job controlling poor quality exports. The banning of waste imports by so many countries gives an indication of the scale of the problem and there are many exporters that exploit the Agency’s lack of resources to deliberately export illegal material. The recent draconian controls applied by our biggest plastic export market, Turkey, illustrates the amount of unrecyclable waste that must be getting through.

But we rely on exports for nearly half of our packaging waste recycling and whilst Biffa has invested millions in the recycling of plastic waste, it is not in a position to build a £500 million paper mill. They have also invested millions in waste sorting technology but until the public learns to separate out recyclables as they should, the outputs from these MRFs can never be completely pure. Biffa is a highly reputable company which does its level best to raise industry standards and ensure compliance and their sorting technology is as good as it gets.


So what has been served by this prosecution? Further undermining of public trust in recycling? A notch on the bed post for the EA to claim they are tackling illegal exports? More recyclable waste having to go to landfill or incineration?

Many will say it was justified by the guilty verdict. But guilty of what? Guilty of creating environmental damage, of exporting unrecyclable waste for another country to deal with, of flouting regulatory controls? Or guilty of lacking a crystal ball to be able to guess how a particular Agency officer on a particular day was going to determine the speed limit.

Below is a video of a paper bale produced by Biffa at the NEC in Birmingham to illustrate the volume of material in a bale when spread out.


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