Construction of incineration plants in the light of the liberalisation of waste legislation

The basic legal framework of the fallout economy system in Poland sets out first and foremost Act dated 14 December 2012 waste (i.e. Journal of Laws of 2020, item 2361, „Waste Act). one waste management plans are the legal tools to achieve the environmental policy objectives.

The legislation on waste and environmental protection requires compliance with waste management plans, in particular "non-compliance with waste management plans" is defined as a mandatory condition for the administrative authorities to refuse to take a decision.

Waste management plans

Currently (from 1 January 2012) The lowest level of waste management planning is the level of the voivodship. According to Article 36(2) The law on wastes of the Seymik voivodship passes the Provincial Waste Management Plan (WPGO), developed by the management of the voivodship.

On the other hand, at national level, the Council of Ministers shall adopt the National Waste Management Plan (KPGO). The hierarchical relationship between these plans defines Article 35(7) Waste Act, indicating the need to comply with KPGO.

Legal nature of the Provincial Waste Management Plan

The legal nature of the WPGO that is different in doctrine. The dispute concerns whether the WPGO can be regarded as an act of local law and thus as a source of law which is generally applicable (according to Article 87 Constitution of the Republic of Poland). As a matter of fact, they're crystallized. three the main positions.

first The dominant view clearly indicates that WPGO is not an act of local law. The plan does not contain common standards.

It is considered so-called internal management act, which constitutes a framework programme for action in the area concerned in the field of waste management, is addressed to public administrations rather than to external bodies towards administrations[1].

Basically, it's different. second The view that the WPGOs are universally valid concerns entities independent of the administration and therefore meet the requirement to be regarded as acts of local law. Preview third „ indirect" says that since the Waste Act introduces a general obligation to deal with waste in accordance with the law, environmental protection and waste management plans, these plans (except for the national plan) could at least partially be acts of local law[2].

Following an amendment from 2019 3 There are voices from representatives of the doctrine that even if the provincial waste management plan has not been defined as an act of local law, but its content excludes the obtaining of a permit or excludes the granting of a permit, it cannot be denied the rank of an act which is common to it, and since such a rank can only be obtained as an act of local law, it should be considered as an act of local law.[4].

Non-compliance with waste management plans as a condition for refusal of administrative decisions

The legislation on waste and environmental protection states that "non-compliance with waste management plans" is a mandatory condition for the administrative authorities to refuse to take a decision.

The legislator clearly indicates the above-mentioned obligation under Article 186(1)(1) Act dated 27 April 2001 environmental law (i.e.

Journal of Laws of 2020, item 2338, „In the case of an integrated permit and a waste generation authorisation, the authority responsible for issuing the permit will refuse to issue it ‘if the intended waste management is incompatible with the waste management plans in question’. In the Act dated 14 December 2012 waste’.

The refusal shall not be of a discretionary nature in those cases, it shall be a related decision which the authority has the right and obligation to issue in the event that the above circumstances are confirmed." 5 . Similar provisions were formulated by the legislator under the Waste Act, i.e. Article 46(1) point i Article 127(5).

According to Article 46(1) The waste legislation shall refuse to authorise the collection of waste or the authorisation to process waste where the intended waste management is incompatible with waste management plans. On the other hand, Article 127(5) The abovementioned Act provides that where the construction of a landfill is not specified in the provincial waste management plan, the authority responsible for issuing the permit to build a landfill refuses to issue that permit.

Note that Article 46(1) Waste and Article 186(1) Laws of the EIA require compliance of waste management with waste management plans rather than “determining” the installation in the WPGO as the legislator does under Article 127(5) Waste legislation in case of construction of a landfill.

Amendment of the Waste Act from 2019 and repeal Article 38a

Act dated 19 July 2019 amending the Cleanliness and Order Act in municipalities and some others Act dated (Journal of Laws of 2019, item 1579, „amending act), which entered into force on 6 September 2019, the Article of the Waste Act has been amended and repealed Article 38a that bill.

Repealed provision Article 38a The Waste Act made it necessary to obtain the necessary decisions to build and launch installations intended for the treatment of mixed municipal waste, green waste and intended for the storage of municipal waste sorting residues and residues from the mechanical and biological process of processing mixed municipal waste subject to prior inclusion of these installations in the WPGO. Namely, that provision stated that ‘If an installation, intended for the treatment of mixed municipal waste, green waste and intended for the storage of municipal waste sorting residues and residues from the mechanical and biological process of processing mixed municipal waste, is not included in the provincial waste management plan, decisions on environmental conditions, building permits, integrated permits or permission to process waste in that installation shall be refused’.

This means that, under the old Waste Act (before the abovementioned amendment), the legislator explicitly indicated that the lack of a definition of the installation in the WPGO makes it impossible to obtain:

• 1) environmental decisions,
• 2) construction permits,
• 3) an integrated permit or permit to process waste in that installation.

In practice Article 38a The above-mentioned law was interpreted differently and there have been cases where in some municipalities administrative authorities issued decisions for the installation for thermal conversion of waste despite the lack of their ‘photo’ in the WPGO. In these situations, the often used procedure was also to change naming by defining the construction or expansion of the waste incineration plant Article as ‘cogeneration plant for the production of energy from heat-treated municipal waste’ or ‘transformation of the plant towards circular economy’.

As a result of an amendment from 2019 There has been liberalisation of the rules on municipal waste treatment facilities, as confirmed by the repeal of the ‘problematic’ Article Article 38a Waste Act or the abolition of the obligation to regionalise.

As this amendment was introduced relatively recently, this literature and case law has not yet developed an interpretation line under the revised provisions of the Waste Act. From Reason to Draft Amending Act (Druk 3495) dated 5 June 2019 it follows that:

„Repeal Article 38a making it necessary to obtain the decisions set out in that provision for the construction and commissioning of the installation subject to prior inclusion of this installation in the provincial waste management plan. This will facilitate the establishment of installations, while the possibility of public funding will depend on the inclusion in the provincial waste management plan. Following the repeal Article 38a introduced Article 38b, regulating the process of running in the Public Information Bulletin the list of municipal installations and their completion by marshals of voivodships (functioning in a given voivodship of installations meeting requirements for municipal installations). In addition, the provision details the content of applications for inclusion in the abovementioned list.’

From the above, it can be concluded that the aim of the legislature was to allow the construction of installations other than those specified in the WPGO. However, the inclusion of installations in the WPGO determines the possibility of using EU funds or environmental and water management funds.

The above-mentioned proposal also confirms the position of the Minister of the Environment adopted in the legislative process – public consultation and opinion 6 , i.e.

„The definition of municipal waste management installations is based on the WPGO and the investment plan. Other non-listed installations are possible under Article 38a Act dated 14 December 2012 about waste, but due to Article 35(9) the above-mentioned investment laws not covered by the investment plan will not be financed by the EU or by environmental and water management funds."

Amendment of the Waste Act from 2020 and repeal Article 35b(35c) Waste Act

A further manifestation of the liberalisation of the Waste Act is the latest amendment of the Waste Act, which entered into force on 31 December 2020, i.e. Act amending the law on the maintenance of cleanliness and order in municipalities and some others Act dated 17 December 2020 (Journal of Laws of 2020, item 2361).

This law follows the trend started In 2019 and responds to the increasing demand of local governments, providing wider access to waste incineration installations.

From the impact assessment of the regulations contained in the government draft law amending the law on the maintenance of cleanliness and order in municipalities and certain other laws (prints no.

723 and 728) It follows that the objective of these changes is to facilitate access to municipal waste incineration installations and to reduce the costs of municipal waste management systems, and that wider access to waste incineration installations is expected by local governments, which today often have problems with the management of surplus municipal waste fraction.[7].

In the Waste Act, the amendments consisted in repealing Article 35b and Article 35c. first it defined the conditions for the thermal conversion of municipal waste and waste from the treatment of municipal waste.

It provided that the proportion of the mass of thermally converted waste in relation to the mass of generated municipal waste could not exceed 30%, and that the thermal transformation could only be carried out in the installations included in the list announced by the Minister for Climate Affairs in the Regulation.

Provision under Article 35c was connected to this first and specified the reporting obligations imposed on operators operating installations included in that list of installations published by the Minister.

Without doubt, the abolition of the requirement to transfer waste for thermal conversion only in the installations listed in the Minister's Regulation will make it easier for waste treatment operators, in particular through the possibility of launching new installations, greater competition on the market and the availability of thermal treatment facilities. Increased availability of thermal waste treatment facilities as well as beneficial changes for municipalities in how waste management levels are calculated per year 2020 (and the resulting possibility of avoiding penalties) will have an impact on the overall cost of the system and thus on the level of the fees borne by the inhabitants of the municipality[8].

The implementing regulation of this law provides for a solution allowing for a gradual investigation into the required levels of recycling, in the hope that the growing commitments will be easier for municipalities to meet.

The solution that will be most important for the municipal waste management system is to abandon the restriction (max. 30%) concerning the quantity of waste destined for thermal conversion (burning) and the waiver of the requirement to incinerate waste only in installations included in the list announced in the Minister's Regulation.

The postulate to expand access to thermal processing installations has been reported by local governments for several years. The current capacity of existing thermal conversion installations is considered to be far from sufficient.

In this context, as the project promoters point out in the explanatory memorandum to the bill, "many local governments demand that solutions be put in place to enable small local waste incineration plants to be built, which at the same time will serve as local heating plants, which, in connection with the decommissioning of old coal units, will also respond to the local demand for systemic heat".

The possibility of launching new installations for thermal treatment of waste is also advocated by waste companies[9]. Media information 10 , that Article Budimex Group plans to implement incineration projects, Remondis plans to build plants in the Silesian, Łódź or Kujawsko-Pomorskie voivodship.

On the other hand, It should be noted that increasing the number of incinerators and increasing the amount of waste incinerators is a manifestation of an increasingly less desirable action in the light of the EU's waste management policy (and circular economy objectives), promoting re-use and recycling.

It's mostly about Regulation (EU) 2020/852 on establishing a framework to facilitate sustainable investment which under Article 13(1) point (j) directly mentions the need to minimise waste incineration. Such actions also conflict with the objectives of the EU climate policy geared towards CO reduction[2].

Therefore, it will probably not be possible to count on financial support for such projects from European funds[11].

Possible construction of waste incineration plants in the absence of WPGO inclusion

In the process of investing in the construction of a waste incineration plant, the key issue is to obtain the legal decisions and permits that are issued by the competent public administrations.

The most important decisions which will determine the possibility of building and starting the operation of waste incineration plants should be included, in particular: environmental decision, construction permit, integrated permit.

Is the failure to take into account the planned investment in WPGO a statutory condition to refuse to issue the decisions required by law? Are the provisions governing the adoption of the above-mentioned decision on the inclusion of investment in WPGO?

In the light of the provisions of the Council of Ministers Regulation dated 9 November 2010 on projects likely to have a significant impact on the environment, is eligible for projects with a significant impact on the environment.

According to Article 71(2)(1) Act dated 3 October 2008 making environmental information available and its protection, public participation in environmental protection and environmental impact assessments (i.e.

Journal of Laws of 2021, item 247) The waste incineration plant is eligible for projects that can always have significant environmental impacts.

The consequence of this is the obligation to obtain decisions on environmental conditions and the prior preparation of a report on the environmental impact of the project (Article 71(2)(1) EIA Act). At the same time, the provisions of the EIA Act do not refer to the inclusion of investments in the WPGO, nor do they determine the decision on its compatibility with waste management plans (KPGO and WPGO).

In the case of a decision to permit construction, the building law also does not apply to waste management plans (KPGO and WPGO).

According to the practice, the "problematic" provision, which has so far made it difficult to obtain decisions on environmental conditions and decisions on building permits for installations not included in the WPGO, was no longer mandatory Article 38a The Waste Act. From 6 September 2019 This provision was eliminated from the legal order, which was dictated by the legislator's intention to facilitate the construction of waste treatment facilities.

The legislator has repealed the provision Article 38a, which made the decision on environmental conditions, construction permits, integrated permits or waste treatment permits in that installation conditional on the ‘photo’ of the WPGO installation. This provision raised a number of interpretational doubts, making it difficult to start the investment process of the waste treatment plant 12 , which have not previously been identified in the WPGO due to the lack of consistency of the positions of the administrative authorities.

Start of operation of the incineration plant

In order to start the operation of a built waste incineration plant, it is necessary to obtain the so-called Integrated licences. According to Article 201(1) The IPA Act requires an installation whose operation, due to the nature and scale of its activities, may cause significant pollution of individual natural elements or the environment as a whole, excluding installations or parts thereof used solely for the research, development or testing of new technological products or processes.

Installations which may cause significant pollution of individual natural elements or the environment as a whole are listed in the Regulation dated 27 August 2014 Incineration plants (plants for thermal conversion of waste) have been listed under Article 5(2) point (a)-b. the abovementioned Regulations, which means that in order to carry out their business they must obtain such a permit.

In the event of an integrated permit being obtained, the legislator has foreseen an obligation for the administrative authorities to examine ‘compliance’ with waste management plans (i.e. KPGO and WPGO).

Under Article 186(1)(1) Laws of the EIA legislator indicated that the authority competent to issue the permit would refuse to issue it if ‘the requirements in question are not met under Article 141(2), Article 143 and Article 204(1), and in the case of a permit to manufacture the waste in question under Article 181(1)(4), and integrated permit – also if the intended waste management is not compatible with the waste management plans in question In the Act dated 14 December 2012 waste’.

This means that at the stage of issuing the integrated permit, the competent authority shall examine whether the waste management of the installation for which the permit is to be issued complies with the provisions of the WPGO and the PSC and, in case of non-compliance, is obliged to refuse a decision.

Limiting the use of EU funds

The amendment of the Waste Act has led to the removal of legal barriers to administrative decisions in the course of the investment process for the construction of waste treatment facilities, and now the installation of waste treatment in the WPGO is only a condition for obtaining EU funding or environmental and water management funds.

The basic legal framework of the waste management system in Poland is defined primarily by the Waste Act dated 14 December 2012 (i.e. Journal of Laws of 2020, item 2361 „Waste Act). Waste management plans are one from legal tools for achieving the objectives set out in environmental policy.

In 2019 legislator repealed Article 38a Waste Act, which made it necessary to obtain the necessary decisions for the construction and commissioning of waste treatment facilities subject to the prior inclusion of these facilities in the provincial waste management plan.

The amendment of the Waste Act has led to the removal of legal barriers to administrative decisions during the investment process concerning the construction of waste treatment facilities, and now the inclusion of waste treatment facilities in waste management plans is only a condition for EU funding of environmental and water protection funds.

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