Criminal organizations and environmental crimes: the new frontiers of waste trafficking.

di Renato Nitti

in lingua inglese

20-21 May 2021 WEBINAR – ONLINE CR/2021/06

Criminal Law Seminar JUDICIAL COOPERATION IN CRIMINAL MATTERS: CROSS-BORDER ENVIRONMENTAL CRIMES

Criminal organizations and environmental crimes: the new frontiers of waste trafficking.

Renato Nitti

Magistrate

Chief Prosecutor Trani, Italy

Abstract

Illicit cross-border trafficking of waste is currently in a high degree of fibrillation. In a complex framework of different waste streams, the Author takes as an example the illicit trafficking of plastic waste, which was strongly affected by the Chinese Import Ban of 2017. Today, the trafficking of plastic waste has shapes and directions in continuous evolution. The states of the European Union often lack a strategic vision and common tools for investigating and combating illicit waste trafficking. In this regard, the author traces the evolution of investigative techniques in Italy over the years up to the present day.

1Introduction

Illicit trafficking of waste is today one of the areas in which the effects of globalization are most immediate and in which the reaction of States in countering the new phenomena is slower.

We are seriously late.

I have to make a premise: I don't want to talk about these issues in generic terms.

I will not talk to you about environmental rights ¹ or about the general regulation of cross-border shipments of waste or the directive on criminal protection of the environment or the general instruments of cooperation. ²

I will mention them only and when nécessary.

I would like to start from the investigations carried out as a prosecutor on this issue to create a common theme of understanding with those who have the same experience as me.

We are all aware that:

1. illicit transboundary waste trafficking is in many cases trafficking of business groups between different states;

2. it is very frequently a traffic that starts from states of the European Union and goes to states of Africa and Asia;

3. waste trafficking could become one of the most important proving grounds for international cooperation;

4. for various reasons, States have not always been able to detect illicit trafficking. Moreover, when they have identified them they have not always been able to stop them. In a few states and in a few cases the issue of illicit trafficking has come to the attention of judges ³. The efficiency of Eurojust meant that it was useful in several cases. However, it is clear that there are few (albeit increasing) cases in which states have asked Eurojust for assistance ⁴. The number of these cases shows that there is not a very high propensity to develop investigations from a cross-border perspective and then to seek international cooperation with non-EU states in this matter ⁵.

I will address these issues:

a) what are the new frontiers of waste traffic;

b) how we ascertain these new illicit waste trafficking.

2Waste crime trends

2.1Chasing waste streams

From an investigative point of view it’s better to address the issue of the new frontiers of waste trafficking considering single waste stream.

When I use the words “waste stream”, I mean the stream (and the related life cycle) of specific types of waste.

Anyone who deals with waste investigations knows that - once the theoretical part on the discipline of waste has been overcome - it is necessary to think about waste streams and not about generic waste .

Each type of waste has its own specificity and requires a different approach and tactic. However, the strategy remains the same.

Each waste stream requires a specific approach: but from the analysis of only one it is possible to draw many points of insight to develop a common strategy.

In 2016, the "IMPEL Project" Waste Shipment Inspection Planning "(WSIP)" ⁶ proposed the

following twenty waste streams:

1. Waste oil 2. Chemical waste 3. Waste used as or in animal food 4. Sludge 5. Waste used as or in fer-tilizers 6. Wood waste

7. WEEE 8. Metal waste 9. Residues from ferrous and non-ferrous metal-lurgy 10. Construction and demolition waste 11. Residues from (waste) incineration 12. Mixed waste

13. Paper and cardboard waste 14. Plastic waste 15. ELV and waste tyres 16. Textile waste 17. Glass waste 18. Medical waste 19. Ship waste 20. Mining waste

Important waste flows from the EU to Africa and Asia have concerned and concern ELVs, WEEE, plastic waste, textile waste.

Complex investigations made it possible to ascertain the evolution of each of these illicit markets.

2.2Plastics waste

I would like to focus my attention on the trafficking of plastic waste, as it is probably the flow that has affected (in dispatch ° and sometimes also in transit or even in destination) the largest ° number of states of the European Union.

There are many reasons why the traffic of plastic waste is of extraordinary interest. One of them relates precisely to the evolution that this traffic is experiencing and to the various investigative strategies that must be put in place.

But one of the most astonishing reasons lies in the underlying hypocrisy ° that is worth mentioning here in the words of National Geographic report “ A whopping 91% of plastic isn't recycled”:

“ Mass production of plastics, which began just six decades ago, has accelerated so rapidly that it has created 8.3 billion metric tons—most of it in disposable products that end up as trash. If that seems like an incomprehensible quantity, it is. Even the scientists who set out to conduct the world’s first tally of how much plastic has been produced, discarded, burned or put in landfills, were horrified by the sheer ° size of the numbers. ”⁷

So: “ While it’s a common belief that most plastics end up in the recycling factory close to your locality, the reality is far from the truth.

There are so many facets behind what truly happens to the plastics we leave behind. ”⁸

Let's examine the different phases of that evolution.

2.2.1First Stage

2.2.1.1In the past

Before 2018, 95 percent of plastics collected in the European Union and 70 percent of plastics collected in the U.S. were sent to China.

Most of these plastics were low quality, because of single stream collection and increased complexity of separating different colours and types of plastic. ⁹

China imported the vast majority of recyclables from North America and Europe for almost twenty years.

• These recyclables became raw materials for the growing industrial capacity of China. But they caused other environmental concerns such as air and water pollution.

• At the same time there was a lot of contaminated recyclables which ended up accruing in China.

2.2.1.2The operation Green Fence

In February 2013, the Chinese Government implemented the Operation Green Fence.

It was a temporary, first effort aimed at reducing the amount of contaminated recyclables among the waste that was being sent to the country.

At the same time, the fact that (from the point of view of import by China) China allowed these shipment of plastic waste is not enough to say that those shipments were lawful from the point of view of export from an EU member state.

As all those present know, art. 2 of regulation 1013 of 2006 of the European Parliament and of the Council provides that there is an illegal shipment when the shipment of waste is effected in a way which results in recovery or disposal in contravention of Community or international rules; and in particular when the competent authority of dispatch has reason to believe (that the waste) will not be managed in an environmentally sound manner.

Do we know how the waste that was not usefully recoverable in Europe was recovered IN cHINA?

Obviously no. Magically?

Those were years in which there was no fruitful collaboration relationship with China.

Personally, I received a positive outcome from a rogatory to China regarding the cross-border shipment of waste in 2019 with the collaboration of Eurojust and after having ascertained the new environmental policy directly in China in the DOT COM WASTE program.

It was therefore not easy to know whether the destination plants actually existed and not only on paper.

Even less possible to know if those plants were able to recover the waste in an environmentally correct way.

What actually happened to our waste?

We got rid of it, but where did it go?

And are we really sure that the backyard it ended up in wasn't our backyard anyway?

In Italy this result was achieved thanks to a mandatory consortium called Polieco¹⁰ that decided to send its director to China to carry out PRIVATE investigations.

The result of these investigations confirmed the suspicions: in some addresses reported in the documents there was no waste treatment factory.

Where the director found waste management facilities they were unable° to treat it effèctively.

Conclusively, some investigations carried out in China by Polieco established that many destination plants in China did not exist or were not at all able to treat waste in a ‘environmentally sound management’

2.2.2Second stage

2.2.2.1 The Chinese Operation National Sword

In April 2017, Chinese Communist Party general secretary Xi Jinping in a speech during the 34th meeting of the Reform Enforcement Task Force emphasized the country's focus on environmental issues related to foreign "waste".

China then notified the World Trade Organization (WTO) on 18 July 2017 ° its intention to ban additional imports of "solid waste" (and in particular some kinds of plastic materials)

by year-end. ¹¹

The aim was to decrease the importation of low quality plastics that are hard to sort and recycle and were accumulating in trash dumps and at recyclers. ¹²

2.2.2.2Effects of the Chinese Import Ban

The name of this policy initiative was Operation National Sword.

It caused a ripple effect in the global recyclables market.

We said that China had been the world's largest importer of waste plastics.

And processed hard-to-recycle plastics for other countries, especially in the West.

The ban has greatly affected recycling industries worldwide.

We suddenly realized that decades of reliance on China had stifled development of domestic markets and infrastructure, had undermined the development of domestic markets . ¹³

2.2.3What happened? What is happening?

2.2.3.1Search for answers

We still do not have a comprehensive study that has ascertained all the effects of this Chinese Ban.

Impel in 2019 started this project: “Effects of the Chinese import ban on the ESM of plastic waste.” (environmentally sound management) ¹⁴

And today the report has not yet been published on the impel website.

It may be important to have a clear picture of what has happened and is happening.

But many elements can be exposed because they are known.

You can read an overall journalistic analysis on some websites ¹⁵.

Since this information is also reflected in the investigations we are carrying out, I can draw on this information to offer an overall picture.

2.2.3.2“Shipped out of sight, out of mind “ ¹⁶

On one hand, some of those recyclable were sent to other countries, mostly in South East Asia.

The plastic is now getting diverted° to countries with a high risk of improper management and high leakage rates ¹⁷

2.2.3.2.1Asia

2.2.3.2.1.1East Asian countries

According to Interpol analysis, “Some of the top destination countries for plastic waste report high waste mismanagement rates, such as India (87%), Indonesia (83%), Vietnam (88%) and Malaysia (57%). Those numbers indicate that exporting nations may report artificially high recycling rate for their plastic waste” ¹⁸

It may be useful to take a look at this graph which clearly shows the trend of exports of plastic residues° to foreign countries from Italy.

It was published by Greenpeace ^{19 (}Non-EU exports of plastic waste 2016-2018 from Italy - SOURCE: report 'The global and Italian routes of plastic waste').

Until two years ago, this waste was mainly shipped to China, which absorbed up to 42 per cent of Italian plastic waste exported outside the EU.

After the Chinese import ban in 2018, Malaysia ranked as the first importer of Italian plastic waste according to Eurostat data and from January to September 2019 was the second importer among non-EU countries ²⁰

Greenpeace Italy confronted the list of Malaysian companies which – between January and September 2019 – were authorised to import and process foreign plastic waste, with confidential documents regarding Italian shipments.

The comparison showed how almost half of Italian plastic waste sent directly to Malaysia was destined for non-authorised plants. ²¹

2.2.3.2.1.2BBC

Already on February 3, 2019, BBC ²² produced a very famous press report entitled " Plastic pollution: a city smothered by 17,000 tons of garbage"

Speaking about this city suffocated, BBC used the following words in the report:

“ Malaysia has become one of the world's biggest plastic importers, taking in rubbish the rest of the world doesn't want. But one small town is paying the price for this - and it is now smothered in 17,000 tonnes of waste.

It began last summer. Every night, after the clock struck midnight, Daniel Tay knew exactly what was coming.

He would shut his doors, seal his windows and wait for the inevitable. Soon his room would be filled with an acrid smell, like rubber being burned. Coughing, his lungs would tighten. ”

2.2.3.2.1.3The Great Pacific Garbage Patch

But there is also another possibility, only a mere possibility.

Many waste recipient states border the Pacific Ocean. We could admit that some of the plastic waste (not recoverable in the EU) is instead recovered in East Asia.

But certainly there is a part of the waste that cannot be recovered even in East Asia and that is not recovered.

What happens to it? And how is it managed?

“The Great Pacific Garbage Patch, also known as the Pacific trash vortex spans waters from the West Coast of North America to Japan .” ²³

According to National Geographic²⁴ “a vortex of plastic waste and debris broken down into small particles in the ocean “:

“ The amount of debris in the Great Pacific Garbage Patch accumulates because much of it is not biodegradable ° .

Many plastics, for instance, do not wear down; they simply break into tinier and tinier pieces. ” °

“ 80 percent of plastic in the ocean is estimated to come from land-based sources, with the remaining 20 percent coming from boats and other marine sources .”

More exactly according to the opinion of Will Dunham “ China was responsible for the most ocean plastic pollution per year with an estimated 2.4 million tons, about 30 percent of the global total, followed by Indonesia, the Philippìnes° , Vietnam, Sri Lanka, Thailand, Egypt, Malaysia, Nigeria and Bangladesh .”²⁵

2.2.3.2.1.4In Turkey

According to the European Data ° News Hub (EDNH) ²⁶

“ Turkey became Europe's go-to destination for plastic waste after China began to close its doors to foreign waste from January 2018.

Monthly imports of plastic waste from Europe leapt by more than ten-fold from 2016 to 2019, according to Eurostat data, with Turkey taking in nearly a quarter of what the EU exported last year.

Britain led the way by far, accounting for over a quarter by itself. ”.

Even without considering the European Data News Hub, it appears that shipments of large quantities of very difficult to recover plastic waste have been made from Italy to Turkey in recent years and that this has given rise to criminal proceedings in Italy.

According to The Guardian “ Turkey has become the latest destination for British plastic waste, which ends up dumped, burned or left to pollute the ocean, a Greenpeace investigation has found.” ²⁷

China was a key destination, but since it banned the import of many types of plastic in 2017, Turkey has emerged as the main receiver of British plastic waste. (…)

Instead of being recycled, however, Greenpeace investigators in Turkey found plastic waste from leading supermarkets dumped, burned, piled into mountains and left to spill into rivers and the sea. ”

In recent days, also Turkey has imposed an import ban. In an amendment published in Turkey’s Official Gazette on May 18, 2021, the Trade Ministry added ethylene polymer plastics to its list of waste materials that are illegal to import. ²⁸

2.2.3.2.2Africa

2.2.3.2.2.1In Tunisia

On 24 Dec 2020, The Guardian published the following news:

“ Tunisia’s environment minister has been arrested following the attempted importation of household and hospital waste from Italy.

The minister was dismissed from his post and subsequently arrested on Sunday, along with several other people, including senior customs officials, members of its waste management agency , (…) and a Tunisian diplomat based in Naples.

In total, 23 people were taken in for questioning over assisting in the importation of household and medical waste from southern Italy in contravention of Tunisia’s environment laws. (…)

In July, more than 200 containers listed as storing plastic scraps for recycling were impounded at the port city of Sousse.

Customs officers discovered the cargo was made up of decaying household and medical waste shipped from Italy for disposal in Tunisia °, a country already struggling with the mounting challenges of its own waste management. ”²⁹

The interest in this story and its developments is very much alive in Italy even in these days. ³⁰

2.2.3.2.3In Europe

“ Shipments of plastic waste within the intra-European market have also increased, especially towards Central and Eastern Europe. ” ³¹

2.2.3.2.3.1In Bulgaria

News has also spread ³² that on January 2020 a regional prosecutor of Bulgaria reported 127 waste containers from Italy found in the port of West Varna ³³ .

The containers had arrived on October 9, 2019. ³⁴ According to the data reported in the documentation, the containers should have carried only plastic and rubber for recycling, but then it was found that they also contained other types of waste

The media reported that suspected waste deliveries from Italy to different parts of Bulgaria have intensified in recent weeks.

The lack of information in some cases, according to Bulgarian media, combined with endemic air pollution in some areas of Bulgaria, including Sofia, has aroused widespread suspicions that the waste, that might even be dangerous coming from Italy and other countries, are illegally incinerated in Bulgaria. (ANSA)³⁵

2.2.3.2.3.2In Albania

In some conferences, elements of particular interest were reported regarding the waste flows from Italy to Albania or Macedonia. ³⁶

2.2.3.3Within the same countries that collect them

Therefore, some European Union countries have continued to ship some of the plastic waste collected to other East Asian countries (where they could be illicitly treated or accumulated in landfills or managed to end up in the ocean) or to countries of Africa or finally to other states of the same Europe.

But some of that waste has remained within the same countries where it was produced and collected.

According to Interpol “ (…) the volume of plastic waste traded to those emerging destinations do not compensate for the volume that used to be sent to China prior January 2018.

The reduced volume of waste legally ³⁷ channelled to international trade has resulted in a surplus of waste accumulating within national territories of export countries. ”³⁸

As a result, former exporters now also struggle with a surplus of waste, unprocessed or processed inadequately. ³⁹

2.2.3.3.1Pile ups

The Chinese Ban also caused major “pile ups” in Western countries who had been collecting lower quality recyclables in single-stream recycling

The Yale school of environment wrote ⁴⁰:

Piling Up: How China’s Ban on Importing Waste Has Stalled Global Recycling

China’s decision to no longer be the dumping ground for the world’s recycled waste has left municipalities and waste companies from Australia to the U.S. scrambling for alternatives. But experts say it offers an opportunity to develop better solutions for a growing throwaway culture.

2.2.3.3.2Fires

In the months and years following the Chinese ban, the fires of warehouses in which enormous quantities of plastic waste are deposited have multiplied in Italy.

Coincidence?

Fires in waste facilities are common, can be very difficult to extinguish and can have severe ° environmental effects.

Thus convenience intermediaries rent out the empty warehouses.

They rent them out with fake contracts.

They fill them up as quickly as possible with waste that cannot find the recycling market.

And then they flee, abandoning the waste to the unwitting owners ° of the warehouses.

A DIA report ⁴¹ explains:

“ The analysis of the events, combined with the results of numerous investigations ... leads us to believe that the phenomenon is due to the need to dispose of large quantities of waste by unscrupulous companies, operating, in whole or in part, illegally.

Sometimes, (…) companies (…), after having acquired the waste from the collection companies "below cost", dispose of it without the prior treatment required by the authorizations, in abandoned warehouses, then set on fire.

All this, as mentioned, to maximize revenues or hide undeclared productions through the destruction of processing waste.

The whirlwind repetition of similar behaviours, closely connected to fires, requires - as also emerges from the analyzes ° of the Carabinieri Command for Environmental Protection - a continuous search for disused industrial warehouses, inside which to "cram" thousands of tons of waste to dispose of, by any means. ”

The Italian parliamentary commission of inquiry on waste

• on the one hand, stresses " the impossibility of providing an overall explanation of the phenomenon "

• on the other hand recalls " the possibility, detèrmined by national and international circumstances, of overloading with unrecoverable materials, which therefore gives rise to "liberating" arson ". ⁴²

Liberating arson!

2.2.3.4Problem solvers, facilitators, intermediaries

If this is the frontier of plastic waste trafficking, it is evident that it opens up many scenarios ° and different investigative strategies. ⁴³

Some particular characters are emerging in Italy.

The telephone and telematic wiretapping are showing that the illicit waste market has gone completely crazy.

It is clear that by now the phase of urban ° and special waste collection is generally well underway.

We have high amounts of separate collection.

But it is the quality of the separate collection (or, in any case, of what is collected) that is not always suitable for the recovery chain that exists in Italy and, in general, in Europe.

Compared to some European Union countries, Italy also has greater distrust of waste-to-energy plants.

Which severely limits an important way out.

The collection produces impressive quantities of apparently differentiated waste⁴⁴ and the supply chains are not well defined.

As I’ve already mentioned, in these situations some particular characters are emerging in Italy: the problem solvers, the facilitators.

Untitled people (or sometimes only with the title of intermediary) who frantically seek solutions in the country and outside the country, especially outside the European Union, sometimes in Europe (Albania, Bulgaria), sometimes in Near Asia (Turkey), in Southeast Asia, in East Asia, or in Africa.

At worst they go to R13 ⁴⁵ and ..... liberatory arson!

All roads can be opened.

2.2.3.5Conclusions

Indeed, the vast majority of plastics are not recycled at the end of their useful life, ensuring that this multiplication in production results in multiplication of harmful waste.

It is the harmful result of a linear system, mainly based on fossil fuels.

The prosecutor is not responsible for governing these fundamental issues.

But some of them have developed illicitly under the eyes of the prosecutor without enough being done.

3Different approach and different strategy in the different Member States

We don't use the same tools. We don’t use the same strategies.

Can we move in the same direction with our investigations?

We share the same international undertakings in the fight against environmental crimes

But it doesn’t mean that there is the same application and implementation at national level of international undertakings.

The Joint Action 97/827/JHA of 5 December 1997 established a mechanism for evaluating the efforts the States have made to apply the international rulings in the fight against organised crime.

Environmental crime was chosen as the subject for the Genval Mutual Evaluation ⁴⁶ nr.8, with specific regard also to the illegal trafficking in waste. ⁴⁷

In the official results of the comparison in the Genval context ⁴⁸, you can read:

“ At the time of the evaluation, in the majority of the Member States a strategic approach to tackle environmental crime was missing…. ” “ In general, the absence of a strategic approach can give rise to the risk of a lack of uniformity in tackling this form of crime. ”.

Although unscientific, you will allow me to report my point of view to you, based on my personal experience as a member of one of the Genval teams of so called national experts named to assess the compliance of some Member States.

The national experts were also able to question Police Officers, Customs Officers, Officials of environmental agencies, Prosecutors and Judges of the evaluated State.

So they can therefore go deeper, beyond the appearance of the documents.

In general, the Member States have introduced adequate crime provisions against the illicit trafficking of waste.

This means that the directive on criminal protection of the environment has therefore in principle translated into criminal national laws.

But this doesn’t mean that illicit waste trafficking is investigated and therefore fought in the same way.

There are States affected by important waste streams that have very few criminal proceedings opened for illegal shipments of waste and - what is more surprising - when they ascertained single episodes of illegal shipment of waste shipped from a factory abroad, they did not extend the investigations to other shipments from the same factory.

They let each episode remain an episode.

4Invèstigative strategies

Those who illegally manage plastic waste today commit environmental crimes in many different ways. We’ve seen the description of the illicit trafficking of plastic waste that I reported in the first part.

So we can start complex investigations into the illegal trafficking of plastic waste starting from a small case of abandoned waste, from a roadside inspection of a truck, from an inspection in the customs area or from a fire in a warehouse.

Different starting points of investigations which may involve different investigative settings.

4.1In general

Investigations on waste trafficking contain in themselves all the difficulties of the investigations on waste crimes and other and different difficulties, specific to trafficking and its developments.

Here, having to deal specifically with the new frontiers of waste trafficking, I will therefore not deal with the general difficulties of investigations on waste crimes ⁴⁹ but will consider two hypotheses of outlets for international waste trafficking: warehouse fires and cross-border shipments.

4.2Arson

The inquiry sometimes starts with a plant arson that appears to be completely accidéntal.

In these cases the risk is that the fire is not analyzed by investigators aware of the possibility that it hides an environmental crime.

So, it is essential that the judicial polìce have already been formed and prepared: it is up to them to first evaluate the possibility that the arson is at least a culpable fire.

The risk is that the prosecutor is not promptly informed, even if in general the fires of these plants last many hours if not a few days (because they are difficult to put out), and create great discomfort in the population so that the local media highlights them.

Legislation and lower-level regulations in Italy have established a series of rules which must be followed by those who store plastic waste in a warehouse, in a shed, on a surface.

Then it is a question of whether it is even an intentional fire.

But on this, the investigative techniques are now tested ° for everyone and therefore this is not the place to talk about it.

The fire investigation must extend to:

a) detect the origin of the waste;

b) ascertain whether the life cycle of the waste that originates from that source is complete or has already manifested in the past the need for illicit solutions. It means

detecting all the previous steps and (for the past) the following ones.

It would be necessary to understand if the initial report of suspected negligent fire can be transmitted to the public prosecutor by the firefighters who intervened ° to put it out.

It would also be necessary to understand whether for all member states negligent arson is a crime.

If our systems did not monitor in a similar way the negligent fire of large quantities of waste accumulated in warehouses, it would be difficult to compare our statistics and it will be difficult to detèrmine if we are suffering the same phenomena. ⁵⁰

4.3Crossing of customs areas

The investigation of waste traffic can sometimes start from the crossing of customs areas. Despite popular belief, this may be a more difficult investigation to start.

So it could be more difficult to deal with illicit cross-border shipping.

Almost always, it is a cross-border shipment of a material that is not declared as waste, but which transits as a by-product or end of waste.

Here it is necessary to open a parenthesis to underline an aspect that is not always clear to everyone.

Many expect us or custom officials to be able to target shipments of certain types of waste.

But this is difficult for non-EU shipments and very difficult for intra-EU shipments.

4.3.1Customs clearance of goods

Let's see how it works for a moment.

I apologize to the many of you who already know this aspect by heart, but I believe that in this context it is also essential to highlight obvious truths.

Public opinion imagines that the customs areas are an unavòidable bottleneck, a passing under a magnifying glass, within which everything is checked, a bit like personal checks after the landing of an intercontinental flight.

It is a wrong and above all misleading image.

The customs area rather resembles the ring road of a large city where a constant, intense, uninterrupted flow of vehicles prevents you from carrying out sweeping and massive checks and forces you to carry out targeted checks. More and more: it is even more difficult, because there are no apparently suspicious vehicles and drivers. There are only documents (now often only electronic) and containers.

How to choose what to check and how to check?

Whenever there is a request for customs clearance of goods, the customs authority assigns an entry circuit. This assignment will depend on several factors such as:

a) the origin and destination of the goods;

b) the history of the exporter or importer,

c) the qualification of the operator (if AEO certified: Authorized Economic Operator)

d) random factors

So when our truck carrying the container arrives at the port, it is almost automatically routed to some kind of control.

1) Green Channel: immediate authorization is issued. The goods can leave or enter the country without any problems.

2) Yellow channel: it means greater documentary control °(e.g. because documentation needs to be integrated).

3) Orange channel: medium-high risk shipments are subject to this control. There is a concrete possibility that they will be subject to documentation review (with request for extra documents) and that there is a non-intrusive examination (with x-rays) ° . This is scanner control°.

4) Red Channel. The red channel provides for a physical review of the load. The customs authority will take our container to a border inspection point.

So the Community customs system entrusts everything to an electronic system that establishes what to control and how to control it.

This is the customs clearance system.

It is an efficient system in itself but which is not effective in combating environmental crimes. ⁵¹

However, it is possible that it has been improved and adapted in part to this further aim of environmental protection.

4.3.2Less than 2%

Let's see why the goods clearance system cannot by itself perform the function of contrasting the illicit traffic of waste.

The reality is the following.

For the customs authorities, any goods (waste, by-product, end of waste) are still goods. It must not - for customs purposes - be classified in one of the three categories. It is the regulation of the cross-border shipment of waste that requires that classification be taken into account.

The entrepreneur° decides to ship the plastic materials.

When the truck carrying the container arrives at the port ⁵², it is almost automatically routed to some kind of control.

The spaces that remain free for the choice of the individual, of the customs officer, are difficult to use pròfitably.

So, if the entrepeneur

-sends out plastic materials as "not waste",

- correctly fills out the customs declaration ,

-pays customs fees,

- doesn’t have a dirty "history", tainted by previous unfavorable controls

it is very difficult for the goods to be inspected,

it is difficult for the container to be scanned.

Probably (but not sure) will be subject to careful document verification.

It has rarely happened to me that an exporter (who wanted to make an illicit shipment) was so clumsy in compiling the documentation as to leave traces, clues in the documentation itself that the shipment was waste. ⁵³

But let's say that the exporter is a bit unlucky and that due to an unfavourable match the system has assigned the container to the orange check.

The cargo will be scanned.

Some emphasize the role of scanning as a prodigious solution to the problem.

There are actually many cases where scanning is not at all conclusive. ⁵⁴

But with the scanner you can't tell if the plastic material is waste or by-product or end of waste.

In this matter the orange channel is rarely useful.

In any case, it will be very difficult for someone to realize that those materials are waste and that the shipment is in violation of Regulation 1013.

The inspection of the load is in fact a completely residual hypothesis.
Less than 2% of the container are physically inspected.

We can consider the case when the system (or the customs officers when possible) decides to inspect the cargo.

We have to hope that the customs official is very experienced, that the customs official is very practical.

But it is a question of knowing what the elements are that allow him to tell that a load of plastic material is waste and is not a by-product or an end of waste.

In short, he must have specific training.

Some States have created and formed small pocket guides that briefly indicate for each of the dozens of possible hypotheses (paper, electronic waste, sludge, vehicles, tires, etc.) the clues to look for.

Even if we are lucky enough to run into such an officer, it is not sure that the first part (the visible one) of the load offers him sufficient elements.

And if they are lacking, will the officer have the option of emptying the container and looking further?

And if he gets the chance, will he empty it?

But even if it were an experienced operator and if the container was emptied, it is by no means certain that the goods inspection is sufficient to establish the nature of the goods. Imagine that the material is declared end of waste but has never passed through a recovery plant before: you know well that some qualities of non-waste are only legal and cannot be found with a visual examination.

Perhaps, we need to start from a different point of view.

Among all the investigations that can be made, are we sure that a container visit is the most decisive? °

Or is Inspection Something More?

Can it mean upstream facility inspection? Can customs officials control the upstream system?

Can they rebuild the whole cycle?

Are we going to check the downstream facility ?

Are we interested in knowing whether that destination facility can recover?

As you all know, for some years now our regulation has extended the notion of inspection to include the checks I have just mentioned.

Now according to the art. 50, checks on shipments can take place also at the point of origin or

at the destination. ⁵⁵

Today inspection includes physical checks, checks of establishments, undertakings, brokers and dealers, related to shipments of waste. ⁵⁶

However, you can not think of increasing the number of inspections.

The problem might be knowing how to do them and when they have to be done.

4.3.3Inspection plan

In general, member states do not have a strategy to combat waste trafficking. But in the intentions of the European Union system, at least in customs controls, a different approach should take over.

This is the logic of the national inspection plan.

Article 50 of Regulation No. 1013/2006 ⁵⁷ outlines the requirement for Member States to ensure that the Regulation is enforced.

In 2014 the Article 50 was amended.

A deadline of the 1 January 2017 for each Member State to implement a waste shipment inspection plan (WSIP) was introduced.

“ Inspection plans shall be based on a risk assessment covering specific waste streams and sources of illegal shipments and considering, if available and where appropriate, intelligence-based data such as data on investigations by police and customs authorities and analyses of criminal activities.

That risk assessment shall aim, inter alia, to identify the minimum number of inspections required, including physical checks on establishments, undertakings, brokers, dealers and shipments of waste or on the related recovery or disposal.

An inspection plan shall include but not be limited to, the following elements:

(a) the objectives and priorities of the inspections, including a description of how those priorities have been identified;

(b) the geographical area covered by that inspection plan;

(c) information on planned inspections, including on physical checks;

(d) the tasks assigned to each authority involved in inspections;

(e) arrangements for cooperation between authorities involved in inspections

(f) information on the training of inspectors on matters relating to inspections; and

(g) information on the human financial and other resources for the implementation of that inspection plan

Whatever the content of the plan, it is clear that a control of the upstream and downstream plants requires a joint action to be implemented.

It is necessary to be actively involved in promoting a multi-agency approach to enforcement involving continuous liaison with:

the environmental agencies,

the police who carry out checks on the street and

those who control the plants.

But above all it requires an international collaboration network.

5The evolution of investigative techniques in Italy

To clearly illustrate how differently the jurisdictional law enforcement strategies can be implemented by the Member States, it may be useful to consider the evolution within Italy.

To simplify the topic and propose a specific perspective of comparison, let us consider a specific imaginary investigation in Italy against waste crimes starting from 1997, the year of an important Italian law about waste management, to see how much it has changed over the years and with the changing of the laws: from actually very useless to potentially very effective.

We can consider the simplest example.

We all know that we can discuss for a long time what is waste and what is not waste. But we are sure that what is abandoned is waste.

So if a truck unloads and leaves waste in the countryside, the investigation has an easy and safe start.

Let's start considering the simplest case. ⁵⁸

5.1From 1997 to 2001

A truck illegally dumps waste onto land in the countryside, leaving it behind.

The judicial police arrive on the scene and seize the truck, the waste and the whole area where the waste was spilled.

However large the quantity of waste seized may be, the driver of the truck cannot be arrested nor can he be subjected to a pretrial detention or other preventive precautionary measure.

In 1997 the profit deriving from the commission of the crime cannot be seized.°

Interceptions cannot be activated.

The investigations can last for six months, extendable twice.

However, all the suspects at least with the first extension should come to know that there is the investigation against them.

Only a natural person can be charged

The trial cannot be against the entities, the companies, because in 1997 the liability of entities for the crime is not provided.

However, in 1997 , in many courts the duration of the trial is so long that the offense is extinguished before the final decision is reached with the three levels of judgment.

The risk is that the trial ends with the extinction of the crime and that eventually the truck and the land will be returned to the owner.

Public prosecutor and judge cannot do anything to force the responsible to remove the waste and restore the state of the places.

Generally, it’s not useful to extend the investigation to other episodes of the same chain.

5.2From 2001 to 2010

In 2001, a law was approved that introduced the crime of organized activities for the illicit trafficking of large quantities of waste.

It is the first environmental crime.

All the other environmental offenses are minor.°

Let's go back to the truck and see what happens.

The judicial police seized the truck.

It is possible to apply pretrial detention against the person responsible.

There is the competence of the ordinary public prosecutor, and so there are rare and generally horizontal forms of coordination.

For crimes, the time of extinction of the offense is longer: there is the possibility of judgment of condemnation before the extinction .

Finally, the Public Prosecutor can extend its focus from the single episode to the overall illicit management ⁵⁹.

In fact, the law allows the prosecutor frame the non-isolated fact in a more serious crime. And then it makes sense to set up a more complex investigation.

The Public Prosecutor believes that there are serious indications of the crime of organized activities for the trafficking of large quantities of waste.

He asks the judge to be authorized to carry out the interceptions and the Judge authorizes first for 15 days and subsequently other 15 and other 15.

Judicial Proceedings related to important waste trafficking begin to be celebrated. From episodes of abandoned waste we move on to exports of waste.

Detention becomes a feared option for environmental criminals.

But the competence belongs to all the ordinary prosecutor offices and few magistrates are able to carry out this type of investigation.

5.3From 2010 to 2015

In 2010 the law changes.

The crime of trafficking of large quantities of waste is included in the competence of the anti-mafia prosecutor.

In Italy there is the so-called double track: one destined for ordinary crime and one

destined for mafia crime .

For Mafia crimes there is the competence of the antimafia public prosecutor ⁶⁰.

But it is not just a matter of competence.

That is, not only the prosecutor changes.

The procedural, penitentiary and substantive discipline changes in part.

The offices of the Anti-Mafia Public Prosecutors of different districts are coordinated by the National Anti-Mafia Prosecutor who has its own delegate for each office.

Not only is it possible to apply pretrial detention against the person responsible of illicit waste trafficking.

But also the law also assumed that the appropriate measure is jail detention.

The time for extinction of offenses is automatically doubled ° . The process can then end in all its degrees before the crime is extinguished by prescription.

If the Public Prosecutor believes that there are enough clues of the crime of organized activities for the trafficking of large quantities of waste, he asks the judge to be authorized to carry out the interceptions and the Judge authorizes first for 40 days and then for other 20 and other 20.

Since 2011 the companies can be charged in criminal trial.

5.4From 2015 until today

In 2015, an important law introduces the so-called eco-crimes.

The same law also provides that, in the event of a conviction, the profit of the crime (or assets corresponding to the value of the profit) must be confiscated.

The public prosecutor can also request the seizure and confiscation of assets that the offender has of disproportionate value to the declared income.

In short, the patrimonial contrast becomes very strong.

Anti-Mafia prosecutors often field:

1) an investigative strategy based also on wiretapping, often telematic;

2) a precautionary strategy articulated both in preventive detention and in asset seizure.

Meetings before the National Anti-Mafia Prosecutor make it possible to coordinate the action of the district anti-Mafia prosecutors.

6Conclusions

I said earlier that the illicit market is in very strong fibrillation.

The role of problem solvers and facilitators in committing environmental crimes is to always find new outlets to the mountain of waste that we produce and collect every day, when we do not know how to recover them correctly.

All destinations are possible.

Within the states of the European Union and above all outside the European Union.

For many years some member states have allowed plastic waste to flow to China or any other state other than their own backyard.

Now China has closed the borders to our waste, at least in part.

Other states have replaced China.

And this will continue, until they too close their borders.

Our states may decide to close the plastic waste cycle effectively and may decide not to produce and not to import mixed material waste and materials that are difficult to recycle in general.

But this does not depend on judges and prosecutors.

What can depend on us is, in part, to combat the illicit traffic of waste wherever it is destined, with the same tools, the same strategies, the same strength.

That is, we can choose to consider the whole world as if it were our backyard.

And then we can always say: no, not in my backyard.