Who is a waste producer under the new law
While the law defines the terms "waste holder" and "waste producer," it is sometimes difficult for investors to determine which category they fall under. Consider the following: An investor that uses equipment or machinery, which require regular maintenance, can either perform the maintenance itself or have a third party do it. Substances and spare parts left over from the maintenance, constituting waste within the meaning of the law, are subsequently released to the environment. When the services are rendered by a third party, the question arises who is responsible for the waste, its management and any damages caused by this waste to the environment. This issue could affect the entire industrial sector.
One of the basic principles of environmental law is that the "polluter pays." The law defines a waste producer as any entity whose activity, or even existence, generates waste, or which performs any action that changes the nature of waste. Therefore, it appears that it is the waste producer that should be liable for any damage caused to the environment. The law, however, indicates that it is the "waste holder" that is obliged to manage the waste. The definition of "waste holder" provides that any entity that actually possesses waste is a "waste holder." As a result, any entity that has physical contact with a substance constituting waste under the law may be found to be a "waste holder." According to the Environment Ministry, it is irrelevant how a given entity comes into possession of waste. The law explicitly provides that a waste producer is also a waste holder but not vice versa. Therefore, it appears that by determining who the waste producer is, we can determine who is responsible for its management and liable for any damage caused to the environment.
The law allows the waste producer to contract with another entity for management of the waste. Such an entity becomes a waste holder and is therefore obliged to manage the waste, provided that the agreement complies with the law. Since under the law the liability related to waste management is transferred only to the extent the other entity is authorized to perform the waste management activity, it seems that the waste producer remains liable for any other damage to the environment caused by the waste. In the above example, difficulties arise when determining who produces the waste. The starting point is to establish the moment of waste generation. Under the law, waste is any substance that falls into one of the categories determined by the law - if the holder of such a substance disposes, intends to dispose or is required to dispose of it. Therefore, it seems that waste is produced by the use of equipment/machinery. An entity rendering maintenance services only separates used parts or substances to allow the investor to continue its production process. It is the investor that "disposes, intends to dispose or is required to dispose of" the substances or spare parts that constitute waste under the law. The entity rendering maintenance services undertakes only purely technical actions and cannot be treated as the waste producer. Its liability should be limited to the management of this waste within the scope of the permit issued to such entity.
Therefore, it appears that the investor is the waste producer whereas the third party, as an entity that comes into possession of the waste when performing the service work, should be considered a waste holder only (unless the third party generates "service" waste, that is, waste generated in the process of service from the materials/equipment belonging to third party; only with respect to this waste should it be considered the waste producer). This issue, however, has been approached differently by the Environment Ministry, whose interpretation will probably become the official interpretation of the other environmental authorities. The ministry started with the premise that waste is generated at the moment when it is physically separated from equipment/machinery (although the law does not expressly provide for such a test). Therefore the ministry is of the opinion that it is not the investor but rather the entity rendering services that is the waste producer and the waste holder.
This issue may become significant for any investor. In light of the ministry's interpretation it appears that, since the investor is recognized as neither a waste producer nor a waste holder, it can avoid the necessity of complying with the numerous administrative obligations listed in the law. It seems also that the investor may not be held liable for any damage caused by the waste to the environment not related to its management. In the above example, on the basis of the interpretation of the ministry, the investor might argue that by entering into an appropriate service agreement, it is released from any liability resulting not only from waste management but also waste generation. Since the interpretation of the ministry may be commonly applied by other environmental authorities, it seems that all service agreements, particularly the liability clauses, should be carefully drafted.
Magdalena Połujkis is responsible for Environmental Law and European Law Practice and Aneta Pacek is an attorney at the law firm White & Case W. Daniłowicz, W. Jurcewicz i Wspólnicy - Kancelaria Prawna Sp. k.
