A draft Act Amending the Waste Act and Certain Other Acts has been submitted to the Polish parliament. The proposal is designed to totally digitise the Database of Products, Packaging and Waste Management (known as the Waste Database or BDO). The proponents’ aim is also to expand the functionality of BDO so that it is also used by businesses to maintain their current waste records. This would allow the authorities to easily identify the generator and subsequent possessors of wastes.
Register entries and amendments only online
One of the modules included in BDO is the register of waste managers (the register of entities marketing products and products in packaging and managing waste). An entry in the register must be obtained before commencing activity in such areas as marketing of electronic and electrical equipment, batteries, and products in packaging, as well as export and intra-Community acquisition of packaging.
Currently an entity applying for entry in the register files documents with the province marshal in writing or via an electronic form. Following the changes, such an application could be filed only online. The same would apply to amendment or deletion of the entry. An application would be accepted in paper form only when entry in the register is sought by a foreign undertaking which is not establishing a branch in Poland. In that case, the paper application would be generated through the BDO website.
Entry in the register occurs upon approval of the application by the province marshal. When making the entry, the authority issues an individual register number. The undertaking is notified electronically of activation of the individual account. From the time the register number is issued, the undertaking is required to include its register number on documents prepared in connection with its business operations.
Changes in waste record documents
Waste record documents are to be prepared exclusively electronically, via the undertaking’s individual account in BDO. The bill provides for significant expansion of the scope of data that must be included in the records.
Each waste record document is to contain the following information:
- Name and address of waste possessor (including waste transport service provider)
- BDO number
- Tax number (NIP)
- Name and address of seller of the waste or intermediary in trading in waste, if the waste is transferred with the involvement of such entities
- Type of waste management business conducted, i.e. generation, collection, recovery or neutralisation of waste
- Address of origin of the waste, including foreign locations (does not apply to generators of waste)
- Mass or dry weight of waste, code and type of waste
- Method of waste management, in the case of a possessor of waste conducting waste processing
- Address of destination of the waste, and in the case of a foreign designation, also the date of commencement of the transport, means of transport, and anticipated method of waste processing.
Additionally, the waste transfer card will include:
- Name of person preparing the card
- Date and time of commencement of transport of waste and delivery to next possessor of the waste
- Registration numbers of means of waste transport constituting vehicles or groups of vehicles for purposes of the Road Traffic Law.
The waste record card will also contain information on:
- Percentage content of PCBs in the waste, if it contains PCBs
- Mass of wastes generated, collected, accepted, managed or transferred.
The latest Regulation of the Minister of the Environment of 25 April 2019 on Specimens of Documents for Waste Records, which entered into force on 1 May 2019, provides that waste transfer cards and waste records will no longer contain a field for the REGON statistical number, and the waste transfer card will no longer have to bear a seal.
Retention of documents
Currently a possessor of waste must retain only waste register documents. The lawmakers’ aim is to expand this obligation to cover documents and data constituting the basis for preparation of the waste record documents. A waste possessor will be required to retain such documents for 5 years from the end of the calendar year when they were prepared.
If there are doubts as to the correctness of preparation of documents for the waste record, the province marshal will be authorised to issue a decision ordering the possessor of waste to submit the documents and any data constituting the basis for preparation of the record documents. The province marshal would also have this power if obtaining such information is essential for conducting other environmental proceedings within the province marshal’s competence.
Failure to comply with the obligation to retain documents and data or make them available upon request of the province marshal would be punishable by a fine. However, particularly in light of the cross-reference to the Code of Petty Offences, such sanctions could be imposed only on natural persons.
Authorities’ access to waste records maintained by undertakings
Under the proposal, many authorities will be entitled to verify whether the records maintained by the possessor of waste reflect the true state of affairs, such as the Minister of the Environment, the General Director for Environmental Protection, the regional directors for environmental protection, province marshals, province governors, executives of counties, communes and municipalities, mayors of cities, environmental inspection authorities, the police, and road traffic inspectors. So far only the province marshal has had access to the records (if there were doubts as to the accuracy of the annual reports based on the records), and inspection authorities examining the records during the course of an inspection.
According to the bill, the act would enter into force 14 days after publication. Undertakings would need to comply with the provisions requiring waste records to be maintained using the Waste Database starting 1 January 2020. The provisions on new rules for entry, amendment or removal from the register of waste managers would also enter into force on that date.
The existing regulations would apply to waste record documents prepared for periods on or before 31 December 2019.
The proposed possibility of electronic communication with the province marshal with respect to entry, amendment or deletion from the register of waste managers will be more convenient for undertakings, but the expansion of the BDO functionality to include the record-keeping module will present a significant challenge for possessors of waste. The authorities will obtain quick access to the current status of the undertaking’s documents, and the scope of information included in the documents will be much broader.
The bill is currently at the initial stage of consideration by the Sejm, so the provisions may still be subject to substantial revision.
Nina Kuśnierkiewicz, Dominik Piechowiak, Environment practice, M&A and Corporate practice, Wardyński & Partners