New Waste Act
The new Waste Act of 14 December 2012 went into force on 23 January 2013. It introduces major changes in the waste management system in Poland. The prior Waste Act of 27 April 2001 will continue to apply in certain areas, however.
The new Waste Act was enacted primarily in order to implement the Waste Framework Directive (2008/98/EC) into Polish law. The deadline for transposing the directive was 12 December 2010. Because of the delay in bringing Polish law into compliance with the directive, the European Commission filed an action against Poland on 26 June 2012 seeking a fine of EUR 67,314.24 for each day of delay in transposing the directive, and other relief. Entry into force of the new Waste Act means that Poland is no longer threatened with fines for failure to implement the directive.
Previously the regulations concerning waste management were set forth in the Act on Environmental Protection and Development of 31 January 1980, which was the first main act governing waste management in Poland. The Waste Act of 27 June 1997 was in force for a short period beginning 1 January 1998, before the Waste Act of 27 April 2001 entered into force. The Waste Act adopted in December 2012 is thus the third in a series of laws wholly devoted to the issue of waste management in Poland.
The 2001 act originally contained 80 articles, but ran to 102 articles following various amendments. The 2012 act contains 253 articles. Some of these repeat the regulations included in the 2001 act, but there are many new rules as well. It would take an extensive monograph to provide a thorough description of all the changes and their consequences. Below we present just a few selected issues where there are major changes. Specific legal concepts in the new Waste Act will be analysed in future editions of the Litigation Portal and the bulletins published by the Environmental Law Practice at Wardyński & Partners.
Changes in fundamental concepts
Major changes in the fundamental terminology of waste management law were introduced not long ago in the Act of 1 July 2011 Amending the Act on Maintenance of Cleanliness and Order in Communes and Certain Other Acts, which otherwise made revolutionary changes in the system for management of communal waste, changing the model for communal waste management and establishing new rules for financing, collection and administration of communal waste from property owners. Definitions were introduced at that time for such concepts as “bio-waste,” “re-use,” and “treatment.” The new Waste Act adds or modifies such key definitions as “waste,” “waste management,” “waste administration,” “waste storage,” “waste broker,” “waste dealer,” and “waste collection.”
By-products and end-of-waste status
Regulations have been introduced addressing by-products as well as substances and objects that have ceased to be regarded as waste.
Thus a substance or object resulting from a production process the primary aim of which is not the production of that item, may be regarded as a by-product rather than waste when certain conditions set forth in the act are met. This determination is made through a notification. The rules for end-of-waste status are set forth in the act.
There are fairly general provisions in the new act that may prove quite significant in practice. The act provides that waste management shall be carried out without endangering human health, without harming the environment and, in particular without risk to water, air, soil, plants or animals, without causing a nuisance through noise or odours, and without adversely affecting the countryside or places of special interest. The odour criterion may prove important for business operations, particularly given the difficulty in obtaining an objective assessment of odours that cause a nuisance. This issue is also being wrestled with in work on a separate act devoted to this problem.
Changes affecting permits and other administrative decisions involving waste management
Under the new act, transport of waste will no longer require a permit. Instead, the Minister of the Environment will issue executive regulations specifying the requirements for transport of waste, including the requirements for vehicles and the manner in which the waste is transported. So instead of obtaining an administrative decision, waste transporters will have to comply with the rules set forth in the regulations.
Conditions for production and management of waste will be set forth in certain administrative decisions, including a waste production permit, an integrated permit, a waste processing permit and a waste collection permit. The rules for waste production permits are set forth in their entirety, along with emissions permits, in the Environmental Protection Law.
The new act eliminates such regulatory instruments as a decision approving a hazardous waste management programme, a decision approving a waste management programme, and the duty to file information on wastes produced and how they are managed.
What about existing permits and decisions?
The implementing regulations for the new act address issues concerning expiration of administrative decisions issued under the 2001 Waste Act.
Because of elimination of the regulatory instruments of a decision approving a hazardous waste management programme and a decision approving a waste management programme, existing decisions ceased to be in force as of the effective date of the new act. Notices on wastes produced and the method of managing them which were submitted under the 2001 act also ceased to be in force as of the effective date of the new act.
A waste production permit issued under the 2001 act will continue to be valid until the end of the period for which it was issued. In certain situations, however, where hazardous waste has been reclassified as non-hazardous, it will be necessary to modify an existing waste production permit; the law allows two years for this process.
Waste collection permits and waste recovery and neutralisation permits issued under the 2001 act will remain valid for the period for which they were issued, but no longer than two years after the effective date of the new act.
The new regulations deserve a thorough analysis in order to adapt current operations to the new requirements and avoid the risk of lapse of current permits or other administrative decisions when their period of validity is limited by the new act. Violations of waste regulations will also be punished more severely, due to implementation of a new method of calculating administrative fines. The range of penalties now runs from PLN 5,000 to as much as PLN 1,000,000 for certain violations.
Bartosz Kuraś, Environmental Law Practice, Wardyński & Partners