Broader powers of the Environmental Protection Inspectorate
On 7 June 2018 the Government Legislation Centre published a proposal for amendment of the Environmental Protection Inspectorate Act and certain other acts on its website. Under the proposal, the Environmental Protection Inspectorate’s powers would be substantially broadened and administrative fines provided for in environmental laws increased.
Suggestions have been made for a long time concerning the need to broaden the powers of inspection of Environmental Protection Inspectorate inspectors, both at province environmental protection inspectorates and the Central Environmental Protection Inspectorate. The planned changes will mean that when conducting inspections, inspectors will be available to determine more effectively whether businesses make use of the environment legally and as required under administrative decisions. Legislators also wish to eliminate the environmental black market, in particular in relation to waste management. A bill containing fundamental changes to waste rules, also published on 7 June 2018 on the Government Legislation Centre website, is described here.
The new provisions on the Environmental Protection Inspectorate are to come into force on 1 January 2019.
New powers of inspectors
One of the major changes being proposed is certainly the power of inspectors to conduct inspections at night and on days which not working days. At the moment, inspectors can only perform activities of this kind during business hours or at times at which a business is in fact open.
Inspectors’ powers to use drones will have a major effect on testing of gas and dust emissions into the air. It will be possible to use these devices in addition to taking samples of substances emitted by installations.
To date, during inspections, inspectors have been able to order operation of installations or devices stopped to the extent necessary to conduct inspections. In some cases, businesses being inspected shut down some installations or devices so that inspectors were not able to detect use of environment breaches. To solve this problem, inspectors will also be able to order that an installation, devices, or means of transport be started up if necessary for the purposes of the inspection. The proposal also provides that where operation cannot be stopped or an installation or a device cannot be started up, the manager of the unit being inspected or individual running a business being inspected will have to prove that they are not technically possible to perform those actions or that there is a significant danger of damage being caused. The proposed amendment does not specify the consequences of failure to prove that these grounds apply.
Another important factor for businesses and their employees when being inspected is that prior to being interviewed by inspectors they will be cautioned regarding criminal liability for giving false testimony. According to the law at the moment, persons who make false statements to inspectors during an inspection do not face criminal liability.
One of the causes for inspectors to issue decisions stopping activity which breaches environmental protection requirements will also change. At the moment, a decision of that kind can be issued if there is an immediate danger to human life or health or immediate danger of substantial harm to the environment. Under the bill, to apply a penalty of this kind it will only have to be shown that the business of the party being inspected poses a threat to human health of life or harm to the environment. Proving that such circumstances exist will thus be considerably simpler. In addition, a decision of this kind issued by inspectors will be enforceable with immediate effect ex officio.
Operational and observation activities
If inspectors have reason to believe that environmental use requirements have been breached they will be able to take observation or operational measures to determine whether those suspicions are justified. The operational and observation activities will include:
- Observation and video and audio recording, using technical means (including satellite technology and drones),
- Searches of premises and other locations,
- Detaining and searching motor vehicles transporting goods if they are suspected to be carrying waste.
Inspectors will not have to perform those actions in person. The bill provides for the possibility of contracting operational and observation activities to specialist organisational units.
Information collected during operational and observation activities can be used as evidence in administrative proceedings conducted by inspectors. This means that on the basis of this evidence authorities will be able to impose administrative penalties on businesses, and these include severe fines.
The bill also gives inspectors the power to conduct investigations and submit and support indictments.
Exclusion of guarantees concerning inspections
Legislators intend to make a clear distinction between scheduled and non-scheduled inspections. The latter include above all “response” inspections, which are conducted following complaints and in the case of response regarding environmental contamination or suspected environmental contamination, or serious breakdowns, or are conducted to prevent a crime or misdemeanour.
Under the bill, certain inspection rules stipulated in the Business Act of 6 March 2018 (replacing the Business Freedom Act of 2 July 2004 as discussed in an article on our website here) will not apply to non-scheduled inspections. These rules are:
- The inspected business is given seven days’ notice of an inspection,
- The inspection is conducted in the presence of a businessperson or someone authorised by that person,
- The inspection is conducted during business hours or at times at which a business is in fact open,
- Only one inspection can be conducted at any given time,
- The maximum duration of an inspection,
- A business cannot be inspected twice by the same authority regarding the same subject matter.
Currently, the Business Act also provides for certain exceptions to the rules referred to above, but these apply to situations described much more specifically, such as an inspection conducted when there is an immediate danger to life, health, or the environment, or when it is necessary to prevent a crime or misdemeanour. The proposed change will mean that the guarantees referred to will not apply in cases of any non-scheduled inspections conducted by inspectors.
Higher administrative fines
Apart from the amendments to the Environmental Inspectorate Act of 20 July 1990, the proposal provides for higher lower or upper limits on administrative fines. According to the current wording, these changes will affect the following acts:
- The Forest Act of 28 September 1991,
- The Environmental Protection Law of 27 April 2001,
- The Decommissioned Motor Vehicle Recycling Act of 20 January 2005,
- The International Waste Movement Act of 29 June 2007,
- The Environmental Impact Assessment Act of 3 October 2008,
- The Battery Act of 24 April 2009,
- The Waste Act of 14 December 2012,
- The Waste Packing Management Act of 13 June 2013,
- The Greenhouse Gases Act of 15 May 2015,
- The Spent Electronic and Electric Devices Act of 11 September 2015,
- The Act of 19 July 2016 on Access to and Distribution of Profits from Use of Genetic Resources,
- The Water Law of 20 July 2017 (this act does not provide for administrative fines, but increases fees, and thus the proposed changes concern the level of increased fees).
Summary
The planned amendments substantially broaden the inspection powers of Environmental Protection Inspectorate inspectors. Whether inspections will become more effective will undoubtedly be determined by the practice adopted with regard to application of the new provisions. Even now it is doubtful whether exclusion of the inspection rules laid down in the Business Law with respect to all non-scheduled inspections conducted by inspectors is reasonable and necessary.
Martyna Robakowska, Environmental Law practice, Wardyński & Partners
