Waste-to-energy: is a regulatory breakthrough underway? - International Law Office

On October 19 2010 the Council of Ministers adopted the conceptual framework for a bill amending the Law on Maintaining Cleanliness and Order in Municipalities and amending certain other laws. This allows the Ministry of Environment to make a fundamental amendment to the waste management system which, as a result, may significantly change plans for construction of waste-to-energy plants in Poland.

At present, municipalities have limited legal means for assuming direct responsibility for the collection and handover of municipal waste, as well as for the selection of a specific location/plant for the recovery and utilisation of waste.

Under Article 16a(1) of the Law on Waste, dated April 27 2001, municipalities are required, as part of their municipal waste management responsibilities, to ensure that all inhabitants are covered by an organised system for the collection of all types of municipal waste. However, under currently binding regulations, municipalities do not own the municipal waste produced on their territory. In addition, municipalities are not, as a rule, responsible for the collection of municipal waste produced on real properties located on their territory.

Under Articles 5 and 6 of the 1996 Law on Maintaining Cleanliness and Order in Municipalities, property owners are responsible for:

• gathering municipal waste produced on their real properties;
• removing such waste; and
• documenting fulfilment of such responsibilities through the conclusion of a service agreement with a municipal utility or a company holding a permit for municipal waste collection operations.

Pursuant to Article 6a of the law, a municipal council may, by way of a resolution and subject to the consent of the municipality's inhabitants (by way of a referendum), take over these responsibilities of property owners. However, the requirement to hold a referendum is a significant obstacle to the use of such a tool, due to the minimum voter turnout requirement. Pursuant to Article 55 of the Law on Local Referenda, dated September 15 2000, a referendum is valid only if voter turnout is equal to at least 30%.

Therefore, municipalities have limited legal means for assuming responsibility for the collection and handover of municipal waste, and for the selection of a specific location/plant for the recovery and utilisation of waste.

The proposed amendments envisage that municipalities will assume the municipal waste management responsibilities of property owners. Municipalities will become the owners of waste and will collect fees from property owners for the fulfilment of waste management responsibilities. These fees will cover the collection, transportation, recovery and recycling of waste. Companies that collect waste from property owners will be selected through public tenders. Municipalities will join together to form municipal waste management regions and will be required to build and maintain relevant facilities.

In the government's opinion, the new regulations will improve the functioning of the municipal waste management system and ensure the selective collection of municipal waste at source. The amount of municipal waste, including biodegradable waste, that is dumped at waste disposal grounds will decrease, whereas the number of state-of-the-art waste recovery plants, including waste recycling and/or waste incineration plants, will increase. The new regulations will also help to eliminate the illegal dumping of waste (eg, littering in forests and recreational areas).

The proposed amendments will also effectively contribute to the development of waste utilisation plants, especially waste-to-energy plants. At present, there is only one waste incineration plant in Poland, located in Warsaw.

The existing highly dispersed waste management system prevents municipalities and companies from investing in the waste-to-energy sector, mainly due to the lack of a permanent source of waste, without which such plants cannot operate. The government has also pointed out that there is a lack of interest among companies in the construction of plants for the biological and mechanical processing of municipal waste, and plants for the thermal processing of waste, despite the possibility of financing such projects with EU funds or funds from the National Environmental Protection and Water Management Fund.

By revising the existing system, the Ministry of Environment aims to ensure a mechanism whereby companies that invest in waste-to-energy, waste processing and utilisation will have uninterrupted access to a steady flow of municipal waste for such plants.

Work on the relevant legislation is being conducted with a view to providing operators with uninterrupted access to a steady flow of waste. Potential investors will have to wait for publication of the detailed text of the relevant bill, as the document adopted by the Council of Ministers on October 19 2010 lays down only the conceptual framework of the future law.

For further information on this topic please contact Adam Kozłowski or Kacper Skalski at Norton Rose Piotr Strawa and Partners LP by telephone (+48 22 581 4900), fax (+48 22 581 4950) or email (adam.kozlowski@nortonrose.com or kacper.skalski@nortonrose.com).