THE POLISH PROHIBITION OF WASTE IMPORT
WOJCIECH RADECKI
Polish Academy of Sciences, Institute of Law
1 INTRODUCTORY REMARKS
When in the second half of the 1970s a draft of the Polish Environmental Act was prepared, the significance of waste problem was not fully recognized. That was probably a cause that the legislative norms dealing with waste included into the Environmental Protection and Management Act passed on 31 January 1980 were rather curt. They indicated only some protective directions, signaled main obligations being a burden on producers of waste, obligated local bodies to create conditions being friendly to protection against waste, introduced fees for gathering waste according to the law and fines for gathering waste contrary to the law as well as determined the responsibility for petty offences consisting in violation of obligations connected with ensuring requirements of environmental protection against waste or economically useless raw materials, products or used package.
The provisions of the Environmental Protection Act have been extended in the executive order passed by the Council of Ministers on 30 September 1980 on environmental protection against waste and other pollution as well as on maintaining cleanness and order in towns and villages. Furthermore they have been extended too in the executive orders on fees and fines in the environmental protection.
In the end of the 1980s Poland grew an object of interest of many firms from West Europe and the United States as a place where waste might be put down. After disclosure of some transactions which had as a result many barrels of old paints, varnish and other chemicals, leather waste, etc. brought into the Polish territory, the legislative counteraction was initiated in order to stop such activities. On 27 April 1989 the amendment to the Environmental Protection Law was passed (it came into force on 1 July 1989). As regards waste import two new norms have been introduced:
into section 8 of chapter II "Environmental protection against waste and other pollution" new Article 53a has been added: Article 53a. Import of waste from abroad is prohibited
into chapter III "Penal provisions and fines for violation of protective requirements" new Article 108a has been added: Article 108a. 1. Who imports waste from abroad to Poland, he is a subject to penalty of imprisonment up to 3 years and fine. 2. In a case of minor weight the perpetrator is a subject to penalty of imprisonment up to one year, restriction of liberty or fine.
In such a way the Polish legislator has adopted the most restrictive position, compatible besides with the Basel Convention signed on 22 March 1989 on the Control of Transboundary Movement of Hazardous Wastes and their Disposal, having introduced an absolute prohibition of importing any waste. This prohibition cannot be repealed and its violation has beeb always recognizing as a crime.
There are some doubts and difficulties as well as some unfavorable effects from the point of view of environmental protection, which have been caused by the introducing such an absolute prohibition.
2 DOCTRINAL AND PRACTICAL INTERPRETATION OF, ARTICLES 53A AND 108A OF THE ENVIRONMENTAL PROTECTION ACT
The absolute prohibition of waste import treats all matters which according to the Polish law are recognized as wastes. The legal definition of waste is written in Article 3 point of the Environmental Protection Act which as "waste" requires to understand used objects and solid substances as well as liquid substances not recognized as sewage, originating in connection with human existence or economic activities, useless in place or time in which they had originated and arduous to the environment.
Regarding to this definition it ought to be underlined that the Environmental Protection Act does not use a term "hazardous wastes". The Polish law knows classification of wastes distinguishing three categories of special wastes:
waste menacing contamination (it means waste containing radioactive substances),
waste menacing infection (it means waste containing pathogenic microorganisms),
waste specially harmful to the environment (it means waste containing substances recognized by the Minister for Health and Social Care as poisons or harmful means).
Attachment of waste to any above mentioned category of special waste results essential consequences according to the internal law. For example the way of disposal and neutralization of special waste have to be agreed with the regional governor. Nevertheless this question has no significance for Articles 53a and 108a of the Environmental Protection Law. The prohibition of waste import encompasses all waste and not only special ones belonging to categories involved.
Therefore the only condition required by prohibition of waste import is that an object or a substance is waste in general according to Article 3 point 5 of the Environmental Protection Act., The last provisions gives a substantial definition of waste based on two criteria: uselessness and arduousness to the environment. The term "uselessness" has been related to the time or place when or where waste had been originated. The Polish legislator has used an alternative. It means that used object or substance cannot be recognized as waste only in such a case if it is useful simultaneously in place and time where and when waste had been produced. As a consequence an object or a substance being useless in a country where it had been produced but useful in Poland ought to be recognized as waste in the meaning of the Polish law.
The second criterion is of normative character. Article 3 point 6 of the Environmental Protection Act determines that "arduousness to the environment" is to be understood as physical phenomena or states impending life or making nuisance, especially noise, vibration, air pollution or pollution by waste. Such a definition requires to suppose every useless substance imported to Poland in order to store it - as waste because the necessity of storage decides about its arduousness. As regards objects or substances imported in order to economic use or liquidation it must be said that their arduousness to the environment results of air pollution (for example after combustion) or producing derivative wastes.
The State Inspectorate for Environmental Protection accepts the following interpretation: As waste is to be recognized every object (substance) useless abroad that should be in Poland landfilled or liquidated (in the last case because of air pollution). On the other hand some kinds of objects (substances) useless abroad may be imported to be used in Poland if their using does not result air pollution, sewage or derivative wastes. When it will be stated that such an object (a substance) useful to economic use requires for example previous cleaning away of tramp elements (a for example metallic scrap polluted by oil), it means it must be treated as waste. The State Inspectorate for Environmental Protection (subordinated to the Minister for Environmental Protection, Natural Resources and Forestry) coordinates using of these principles. On 29 August 1990 an agreement between the Chief Inspector For Environmental Protection, the Chief Sanitary Inspector, the Chief of Custom Office and the Chief of Boundary Guard was signed. The agreement deals with protection of state territory against waste import. Its essence consists in such a procedure that if some doubts regarding to the character of goods disclosed on border have been occurred, the Customs Service or the Boundary Guard are obliged to inform the State Inspectorate for Environmental Protection. If necessary, the State Inspectorate for Environmental Protection together with the State Sanitary Inspectorate make suitable activities in order to clear the case. However it was not possible to organize on borders special laboratories because of high costs.
In October 1990 all boundary passages were provided with portable dosimeters serving to the control of goods in direction of their possible contents of radioactive substances.
The other fields of activity of the State Inspectorate for Environmental Protection are controls over economies subjects and giving opinions about likely import of goods which might be admitted as waste. The State Inspectorate for Environmental Protection cooperates also with environmental services from other countries.
Above mentioned solutions, being worked out in practice, have been confirmed in legislation. Thus the Act passed on 12 October 1990 on the Boundary Guard included into tasks of this guard prevention of transportation across the border wastes and harmful chemicals as well as radioactive substances. This Act empowers officers of the Boundary Guard to stop and to move back to the sender harmful radioactive substances, chemicals and biological means from the state border.
The Act passed on 20 July 1991 on the State Inspectorate for Environmental Protection included into its tasks changing information
with the Customs Offices and the Boundary Guard about import of goods prohibited or restricted in consideration of environmental protection as well as cooperation with the Boundary Guard in border zones.
The outlined here activities give some effects. According to information presented in the report by the Chief Inspector for Environmental Protection in the period from July 1989 to January 1991 Poland was offered for gathering or liquidating at least 17,622,000 tons of useless wastes. In the most cases it was be possible to prevent these transactions.
It looks differently with a question as regards import of useful wastes. In the same period from July 1989 to January 1991 projects for processing wastes provided together 767,000 tons of waste. From this amount 61,000 tons of wastes were imported and processed, among them 24,000 tons of zinciferous wastes and 22,000 tons of waste paper.
Very rigorous approach of the Polish legislator causes some difficulties in practice. An example may be import of waste paper which according to the opinion of the State Inspectorate for Environmental Protection in some cases may be advisable from the point of view of environmental protection in Poland.
It is so because some kinds of waste paper are not generated in Poland, therefore the only one alternative would be extension of cutting trees in forests. The State Inspectorate for Environmental Protection gives sometimes permissions on import of waste paper. It is however not to deny that conformity of such permissions with the law is very doubtful because waste paper is legally recognized as waste. More over, opponents to such solution pointed out that import of waste paper in some manner relieved Polish administrative bodies from a duty to organize in a proper way buying waste paper in our country. Actually it is so because the question of buying waste paper has not found a proper solution and looks very week.
There was another example famous in 1991 import of waste sulfite liquor from Norway. In the Polish provisions dealing with fees for waste there is a position "waste sulfite liquor". Fees for such wastes are ones of the biggest therefore waste sulfite liquor was recognized in an implied way as a harmful waste. Meanwhile the Minister for Environmental Protection, Natural Resources and Forestry has written to the Chief of Customs Office that waste sulfite liquor was not waste because it had been produced in the Polish works but in insufficient amount, therefore for many years it had been supplemented by import from Czechoslovakia. Thus. according to the minister's opinion, when waste sulfite liquor is used completely, in 100 percent, it cannot be treated as waste but rather as raw material indispensable for production. Concomitantly the minister points out that waste sulfite liquor is an toxic substance and if it cannot be used as a whole, it will acquire characteristics of waste.
On the other hand some experts say that the copper works Glogow and Legnica using waste sulfite liquor employ out-dated technology. As a result all waste sulfite liquor (and also sulphur and other harmful substances) gives into air. If these works had been modernized, the import of waste sulfite liquor would be unnecessary.
The discussion seems to be rather hopeless. Waste used in economy does not stop to be a waste. On the other hand if using waste sulfite liquor is necessary in Polish conditions of technology, it must be imported, but legal provisions ought to be formulated in a different way. The Polish public opinion is very sensitive to waste import from abroad. According to the famous report of the Greenpeace (by Andreas Bernstorff and Jim Puckett) from October 1990, at least 46,000 tons of wastes were imported into Poland. I would like to remember that every case of waste import has to be treated as a crime. There are no information about criminal proceedings which would be ended with indictment. In newspaper we can find some figures about several proceeding on Article 108a of the Environmental Protection Act in course, but there are no data available about courts decisions in such cases.
Sensitivity of the public opinion to waste import gets sometimes grotesque forms. Two years ago there was a famous case of 500 barrels of toxic wastes brought from abroad. In summer they had to be destroyed on a military testing ground. One night a group about 200 persons, inhabitants from neighboring villages, animated by the chief official of a group of villages, made an irruption into that testing ground and destroyed facilities serving to neutralization of dangerous wastes. As a result neutralization was impossible. The Minister for Environmental Protection, Natural Resources and Forestry in published in newspaper opinion has said it had been a result of obscurantism and ignorance. Probably it was a right opinion but an action of people did not arise in emptiness. The people in Poland have no indispensable knowledge about wastes. Besides warming up atmosphere on the waste import has brought to such flagrancy.
3 LEGISLATIVE PROJECTS
Poland wants to ratify the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal; this question is decided and the ratification should be done in the nearest time. New provisions about waste import must be conformed to the convention.
In March 1992 a new version of the Waste Act Draft was prepared by the Ministry for Environmental Protection, Natural Resources and Forestry. The designers give up a substantial definition of waste and define it as all matters or movable goods originated as a result of human existence or economic activity which are disposed or whose disposal is intended or should be made.
An essential supplement to this definition will be separation of dangerous waste, it means such wastes which because of their source, chemical or biological composition may be imminent over human life or health or natural environment. A register of dangerous wastes should be defined by an executive order passed by the Minister for Environmental Protection, Natural Resources and Forestry in agreement with the Ministers for Health and Social Care, for Industry and Trade, for Agriculture and Food Economy.
Chapter 4 of the draft is entitled "International Circulation of Waste". It is consisted with six articles, which should be named in full contents:
Article 22. An international circulation of waste is to be understood as waste import from abroad into the Polish territory, transport of wastes originated from abroad through the Polish territory as well as waste export abroad from the Polish territory.
Article 23. International circulation of dangerous waste is prohibited in relation with states which are not parties of Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal signed in Basel on 22 March 1989.
Article 24.
Import of dangerous wastes from abroad in prohibited.
Import of other wastes is admissible only with consent passed by the Chief Inspector for Environmental Protection.
The consent defined in part 2 may be passed if:
a) waste is destined for economic use,
b) there are not in the country available wastes suitable for equivalent economic use or there are ones in insufficient amount,
c) economic use of imported waste will not provoke menace for natural environment and especially will not contribute to enlargement waste gathered on earth surface.
The Chief Inspector for Environmental Protection may condition giving consent to:
a) presentation by the importer of waste an opinion of appointed expert about compliance with conditions defined in part 3,
b) securing in time defined in consent return to the exporter such a part of imported waste which in economic use has not been completely processed.
Article 25.
Export of dangerous waste is admissible exclusively with consent passed by the Chief Inspector for Environmental Protection.
The consent defined in part 1 may be given under condition that it would be obtained consents of proper agencies from importing state and transiting states.
The provisions of parts 1 and 2 are respectively used in a case of transit dangerous waste through the Polish territory.
Article 26. The Minister for Environmental Protection, Natural Resources and Forestry may by an executive order define that provisions of Article 23 should be respectively used to circulation with other waste.
Article 27. The Minister for Environmental Protection, Natural Resources and Forestry will define pattern of consents used in internal and international circulation of waste.
In connection with such provisions there are projected - different than to day penal provisions. They will be defined as follows:
Article 29. Who imports dangerous wastes from abroad, he is a subject to penalty of imprisonment up to 5 years.
Article 30.
Who without a demanded permission imports from abroad wastes other than dangerous or exports them abroad, he is a subject to penalty of imprisonment up to 3 years.
In the case of minor weight the perpetrator is a subject to penalty of imprisonment up to one year, restriction of liberty or a fine.