Environmental regulations and cross-border trade & business report

Published: September 2011

Executive Summary

The objective of this study is to identify the barriers to cross-border trade and business for small to medium sized enterprises (SMEs) caused by the different interpretation and application of environmental regulations in Ireland and Northern Ireland and to propose some actions to simplify cross-border compliance with relevant environmental regulations.

A number of studies in relation to barriers to trade and better regulation have been conducted in the past. However, none of these studies were specific to environmental regulations in Ireland and Northern Ireland. This report breaks new ground by examining a small number of environmental regulations, how these are enforced in Ireland and Northern Ireland and whether they impact upon cross-border trade and business. It also outlines current methods to measure administrative burdens, EU action programmes for reducing administrative burdens and ‘better regulation’ activities in the two jurisdictions.

This research was undertaken under the premise that it is widely accepted and understood in both the business community and by the regulatory authorities that regulations are principally designed to protect businesses, consumers, employees and the environment, and that legislation and subsidiary regulations have a critical role to play in key areas of economic, environment and social life.

Therefore, this research does not address or question the benefits of each piece of legislation. Instead the study looks at the administrative activities which are undertaken to maintain ongoing compliance with the identified regulations. Only enacted legislation in Ireland and Northern Ireland was included in the research.

Furthermore, the study concentrated on businesses within the agri-food, construction and waste sectors, with specific emphasis on small to medium sized industries on the cusp of the Integrated Pollution Prevention and Control (IPPC) [1]

After reviewing previous EU research and consulting with the steering group, the research focused on the following list of regulations:

The report identifies and reviews the pertinent regulations implemented in Ireland and Northern Ireland to meet the requirements of the EU Directives listed above. It presents those elements which were considered to be burdensome to businesses and potentially a barrier to cross-border trade. However, there is no evidence that either jurisdiction has ‘gold plated’ or imposed additional burdens on the EU directives.

The report includes findings from consultations with businesses and business representative bodies, including individual interviews and a seminar hosted by InterTradeIreland. One important finding is that the business representative and agency consultees have no evidence to suggest that any environmental regulations, with one exception, influence companies undertaking cross-border trade. However, in the consultations it became clear that the Trans-Frontier Shipment of Waste (TFS) regulations affecting the waste management sector were highlighted as having a significant impact on cross-border trade and business.

The TFS regulations require EU member states to implement measures for the supervision and control of shipments of waste in order to ensure that the movement, recovery, or disposal of waste, is managed in an environmentally sound manner, for the protection of the environment and human health. Prior notification and authorisation is required before waste can be moved across borders. Some of the main concerns raised by businesses directly affected by the TFS
regulations included:

• That the financial and administrative burdens associated with the shipments of waste between Ireland and Northern Ireland do not seem to be commensurate with the potential risks to the environment from the movement of specific waste materials.
• Companies believe there are significant disparities in the costs levied by the Competent Authorities.
• That there have been occasions where the Competent Authorities have interpreted the application of notification controls for the movement of waste differently.

To provide further evidence of the impact of TFS regulations three company cases studies were
developed to provide examples of specific experiences and the challenges in complying with the regulations. Each case study outlines in detail how the business manages its operations to ensure that it complies with all the requirements of the regulations dealing with the shipment of waste. The case studies also offer some recommendations on how the implementation of these
particular environmental regulations can be aligned with the need for the development of the important waste management sector.

In order to offer a balanced report the results from the consultations with businesses and the regulations review were discussed with the relevant competent authorities and key stakeholders. The main points that emerged from these discussions centred on:

• The need for environmental regulation to ensure economic activity is carried out in a way which does not damage our natural resources or pose a risk to human health;
• The importance of Transfrontier Shipment of Waste (TFS) regulations (covering cross-border waste movements) to prevent inappropriate exports of waste, prevent environmental damage associated with poor waste management and avoid encourage regions to become self-sufficient in dealing with their wastes;
• The requirements for importing or exporting wastes being set and agreed by the EU and all the member states to prevent environmental damage within and outside Europe; and
• The ongoing cooperation between regulators and policy makers Ireland and Northern Ireland and across the EU in areas such as waste policy and ‘Better Regulation’ activities.

Finally, the report concludes with two sets of recommendations: those dealing with  environmental regulations in general, which support the ongoing ‘Better Regulation’ agenda, and those dealing with the TFS regulations in particular.

The general recommendations on environmental regulations and cross-border business include:

• Examine the requirements for and the frequency of reporting under the regulations and reduce if deemed possible;
• Look into the requirements and responsibilities for information requests and recommend procedures to eliminate overlaps;
• Consider replacing paper-based information gathering with electronic and web-based reporting;
• Consider introducing thresholds for information requirements, limiting them for small and medium sized businesses or relying on sampling.
• Look into substituting information requirements on all businesses in a sector by a risk based approach – targeting information requirements on those operators that perform the highest risk activities.
• Continue to conduct Regulatory Impact Assessments (RIA) on all future legislations and changes to any existing regulations. Where the regulations will have an impact on cross-border trade the RIA should be include discussion with the relevant regulators and policy makers on the other side of the border to minimise any additional burdens on the industry concerned.

The specific recommendations for TFS regulations and the waste sector, which are based on the mutual understanding that waste management companies operate with requirements for flexibility and that regulators operate within a prescribed regulatory framework, include:

• Establish TFS Clinics, as outlined in the National Audit Office report in 2008, to simplify the transport of waste between Ireland and Northern Ireland and streamline the associated costs.
• The regulators, such as Dublin City Council National TFS Office (NTO), NIEA and EPA, to meet to explore opportunities for streamlining the process for cross-border businesses to reduce the administrative burden whilst maintaining compliance with the regulations. [2]
• Transparency in enforcement at a small operator level.

Notes

[1] It was not possible to provide detail costs relating to administrative compliance regarding IPPC as these costs vary greatly depending on the activity and requirements included as part of
the permit.

[2] ‘Border Area Agreements’ can be signed under Article 30 of the TFS regulations allowing for longer periods of notifications (up to seven years in some case), waiving of some fees and less  regular reporting on the outcome of shipments. One such agreement was signed between Austria and Germany in 2008 after a lengthy period of cooperation on these issues, covering border region municipalities. The potential for such an agreement has been raised and discussed for the border between Ireland and Northern Ireland also, although the recent Progress Report on the implementation of the recommendations of the Report of the High Level Group on Green Enterprise (March 2011) from Forfás noted that ‘the matter is unlikely to progress in the short to medium term’.

Find out more on What is the circular economy? on the InterTradeIreland Cross-Border Trade Hub.