Important amendments to the Waste Act
Work has begun on the government’s side on a bill amending the Waste Act and certain other acts. The provisions are a reaction to disturbing reports of waste entering Poland illegally and landfill fires which are hazardous, reported by the media in recent weeks.
The proposed changes are intended to limit violations committed by businesses during waste management. Legislators wish among other things to tighten up formal requirements for waste permits, change waste storage rules, give the fire brigade extra powers, and increase criminal penalties for people who breach the law. The Environmental Protection Law will also be amended with respect to integrated permits and waste generation permits. It will harder to obtain permits, and the consequences for breaches will be more severe.
New permit requirements
A person applying for a permit to collect or process waste will have to submit to an authority, apart from the currently required documentation, a fire safety report and document confirming that security for claims has been established. Only people with the appropriate qualifications, i.e. fire safety experts, will be able to draw up that report. Security established for claims in case of costs of substitute performance of an order to remove waste can take the form of a deposit, bank guarantee, insurance guarantee, or insurance policy. The amount of the security is determined according to the total mass of waste that can be stored at the installation in question according to the permit. It will be obligatory to maintain the security for the entire validity period of the permit. This system is intended to reduce the costs of administrative enforcement incurred by the Treasury for dealing with the consequences of incorrect waste management.
Apart from a document confirming security of claims, an applicant will have to submit the relevant certificates confirming no previous environment-related convictions. In the case of legal persons and organisational units, the requirement for certificates of no prior convictions applies not only to management board members, but also shareholders. Persons who have previous environment-related convictions will not be able to conduct waste management activity or sit on managing bodies of entities conducting such activity.
An application for a permit to collect or process waste will not only have to state the storage location and procedure and type of waste stored, as has been the case up to now. It will also be required to state the maximum mass of particular types of waste and the maximum total mass of all waste that can be stored contemporaneously. The total volume of the installation or other location in which waste is stored will also have to be stated.
Inspection by the fire brigade
Before a permit to collect or process waste can be issued, the installation (structure) must be inspected by the local county (municipal) Fire Brigade Chief. Following the inspection, the person conducting the inspection issues a decision on compliance with fire safety provisions. If the inspection is not passed, the local county (municipal) Fire Brigade Chief will not allow the competent authority to issue a permit. This means that waste can only be stored or kept at landfill sites in locations in which the appropriate fire safety precautions are in place. An important new development with respect to permits to collect or process hazardous waste is a requirement to prove ownership title to the site on which waste is to be managed.
Change of waste storage rules
According to the legal definition, storage of waste is the temporary keeping of waste, comprising for instance initial storage of waste by the producer and temporary storage of waste by an entity that collects waste. Legislators intend to significantly amend provisions on this subject. The maximum permissible mass of waste that a business can store at a single installation (or other storage location) will be specified. It will not be possible for the total mass of all waste to exceed half of the total volume of the installation. Legislators are proposing reducing the permitted period of storage of waste from the current three years to one year. Moreover, a person storing waste will be required to install video surveillance of the location in which waste is stored and duly secure and retain recordings made using the system.
Changes to authorities’ jurisdiction
Changes will be made regarding jurisdiction of authorities that issue waste management permits. Legislators are proposing giving local mayors’ powers to issue permits to collect waste for installations or other waste storage locations of a volume exceeding 3 000 tonnes per year to province marshals.
More severe penalties
With respect to administrative penalties, legislators are proposing minimum fines for collecting or processing waste without a permit, and for waste management in a way contrary to a held permit. The Environmental Inspectorate Act will also be amended, and information about this can be found here. The minimum fine that can be imposed for operating without a permit will be PLN 10 000, and for operating contrary to a permit PLN 1 000. In either case, the maximum penalty is PLN 1 000 000. There will be a special procedure for repeated breach of provisions. Legislators intend fines for “repeat offenders” to be twice the amounts given above. When imposing penalties, authorities will take into consideration the amount of waste, the waste properties, and the circumstances in which the previous breach of the Waste Act occurred. A detailed procedure for calculating fines is laid down in an annex to the act.
Interim provisions – expiry of currently valid permits
Legislators are proposing that the new laws be applicable to proceedings concerning issue of permits for collecting and processing waste that commence and are not completed before the amendment comes into force. Entities holding permits for collection or processing of waste on the day on which the act comes into force will be required to establish security for claims and make the relevant payment to a bank account, or provide security in the form of a bank guarantee, insurance guarantee, or insurance policy within 12 months of the day on which the amendment takes effect. Failure to comply with this obligation will cause permits to expire. Permits for collecting and processing waste will remain valid for the period for which they are issued, but for no more than 24 months from the day on which the act comes into force. The act is due to take effect 14 days from publication, apart from provisions on the obligation to install video surveillance, which take effect 12 months from publication.
The proposed changes will affect businesses the most. The range of requirements with respect to waste permits is considerably broader, and the administrative penalties more severe. At the current legislative stage, it is not possible to evaluate whether the proposed changes will in fact result in a lower incidence of breach of the Waste Act.
Particular practical problems could be caused by the applicability of the new provisions to permit issue proceedings currently in progress, above all due to new formal requirements and a change to authorities’ jurisdiction.
Nina Kuśnierkiewicz, Environmental Law practice, M&A and Corporate practice, Wardyński & Partners