How will the new waste management regulations affect business?

Beginning of summer season was pretty intensive for the Polish legislator. In July and August 2018 a package of legislative solutions was adopted, which is supposed to be the answer to the abuse within the waste industry in Poland, especially in relation to recent landfill site fires. The amended acts included: the Act on Waste dated 14 December 2012 and the Act on the Environmental Protection Inspectorate dated 20 July 1991. The new solutions are set to affect entities operating directly in the waste business as well as those operating in other industries, which were free from the abuse discovered by the legislator, particularly the energy sector. Basically, the new waste management regulations will come into force within 14 days from publication. Some transitional periods are foreseen, but overall the time to adapt to the new requirements will be limited. Below is a summary of the most important changes that can affect business.

The obligation to secure claims

Under the amended law obligation to secure claims will apply to the majority of waste holders, including those obliged to obtain an IPPC permit. An exception to this requirement applies only to the inert waste.

The purpose of the security is to provide funds for the disposal of waste and remediation of environmental damage in the event the related costs are not covered by the waste holder. It may take the form of a deposit, a bank or insurance guarantee or an insurance policy. As a rule, waste collection or waste treatment activities are possible only once claims are secured.

The amount of the security of claims will depend on the maximum mass of waste that can be stored in the installation and the rate of security of claims, which will be regulated in the ordinance of the Ministry of the Environment. The costs of establishing security of claims can be a serious financial burden for operators of installations that own large waste storage areas. In addition, new financial burdens will be imposed in a critical period when many operators are investing in adapting their installations to the BAT Conclusions.

The amended provisions provide for the obligation to adapt integrated permits to new waste regulations. During integrated permit adaptation procedure, operators of installations will be obliged to establish a security of claims.

Limitations on the waste management

According to the amended regulations, the maximum waste storage time will be reduced from the current 3 years to just 1 year. The new regulation means that operators of installations will be obliged to remove waste from their storage locations more often, leading to increased costs of on-going operations and necessity to reorganize the process of waste removal from the installation site.

In addition, under the new law, the maximum weight of all types of waste that can be stored at the same time may not exceed half of the maximum weight of the waste that may be stored within a year in accordance with the waste permit. As a result of the adopted regulation it will not be possible to use the full storage area. This condition will force the installation operators to reduce the mass of stored waste or to remove it more often from storage places. Both solutions will involve additional operating costs.

Next, waste collection or waste treatment permit has to be denied in case where there is no local zoning plan for a given area or no zoning permit, if such permit was required according to zoning law. In addition, decision allowing waste management will not be issued if the waste holder does not hold a title to the land in the form of an ownership right, perpetual usufruct right, use right or lease right.

Waste holder will be required to ensure video surveillance of the waste storage and landfilling area around the clock. The collected data need to be kept for one month and made available upon request of authorities.

The changes will also affect the procedure of obtaining permits for waste management. It will be necessary to draw up a fire protection documentation and obtain the decision on positive assessment of compliance with the fire protection requirements issued by the regional commandant of the State Fire Service. If such decision is negative, the authority will refuse to issue a waste permit. The amendment also introduces a general rule according to which items used to collect, store or treat waste should be designed, equipped, commissioned, operated and managed in a manner that meets the requirements of fire protection. Detailed requirements in this respect will be specified in the executive ordinance.

When will the new requirements cover existing installations?

Waste permits issued so far will have to be adopted to the new legal requirements. The same will apply to waste installations. The transitional provisions stipulate that waste holders who have obtained decisions concerning waste management before the entry into force of the new regulations will be required to apply for a change in the decisions within 12 months from the date of entry into force of the bill. This will apply to permits for collecting or processing waste as well as permits to generate waste with authorization for the collection or processing of waste. Changes in decisions are to adapt them to the new regulations. The sanction for not submitting the application on time will be the expiration of the decision. The same applies to entities operating installations under an integrated permit. These entities will be obliged to apply for a change in the integrated permit provisions within 1 year from the date of entry into force of the bill, otherwise the integrated permit will expire in the part covering waste management.

The obligation to ensure video surveillance of storage sites will become applicable after 6 months from the date of announcement of the new law. It seems that the video system should be installed independently of the submission of an application for a change in the decisions. Therefore, monitoring should start after 6 months from the announcement of the bill, even in no application has yet been submitted.

Restrictions on the import of waste

According to the amended regulations, it will not be possible to import to Poland mixed municipal waste and waste from municipal waste treatment. The new solution will not apply only to selectively collected waste for recycling. Restrictions mean significant problems for installations that have used this type of waste as fuel. In this situation, it will become crucial to look for new suppliers on the domestic market, and to carry out the processes of negotiating and concluding contracts for the supply of raw material.

Bureaucracy concerning by-products

Next change concerns increase of formalities in order for the substance to obtain “by-product” status instead of “waste” status. Until now it was sufficient to notify the voivodeship marshal who was entitled to oppose the notification. Now it will be necessary to obtain a decision approving the “by-product” status. It will be issued for 10 years. However, in case of change in the production process, new decision will have to be obtained. “By-product” status that was granted before the entry into force of new law will expire after 6 months. Hence, many businesses will have to act fast to retain the “by-product” status.

Stricter rules for environmental inspections

The rules of conducting inspections by the environmental inspectorate have also changed. Plant operators will not be notified about an inspection. There will be no obligation to ensure their presence or the presence of their representatives during the inspection as well as there will be no regulations restricting the duration of the inspection. In practice, inspectors of the Inspectorate of Environmental Protection will have extensive powers, including the possibility of conducting examinations outside the installation's working hours.

In the course of environmental inspections, it will be possible to issue a decision to suspend activity of the facility if the inspector considers the activity a threat. The decision of the office will be immediately enforceable. The inspected entity will not be able to demand a suspension of this decision even before an administrative court.

Finally, the new regulations authorize environmental inspectorate to undertake operational activities. This includes the ability to observe and record audio and video, including with the help of satellite equipment and unmanned aircraft, as well as collecting and securing evidence, identifying and interviewing people, carrying out inspections and stopping vehicles. It will be possible to use unmanned aircraft in the course of ordinary inspections, without the knowledge and consent of the operator of the installation.

What’s next?

The amended regulations provide for a number of new obligations of operators of industrial plants, as well as restrictions in their activities related to waste management. Adaptation to the new regulations will entail significant costs.

It is important to start preparations for the implementation of the provisions in advance, in particular with regard to the security of claims and shorter storage period. The amendment provides for adjustment periods for new solutions, however, for some entities compliance with them may prove problematic.