Abstract
The article discusses the legal protection of the environment from pollution by industrial and consumer waste, focusing on typical problems experienced by the Russian Federation and other post-Soviet States. It builds on the studies of the legal basis for management of industrial and consumer waste, and the economic opportunities of recycling. The authors analyse the effectiveness of administrative mechanisms for preventing pollution; the differences in the relevant powers of federal, regional and local authorities; and the need for authorities to better coordinate their work in this area.
With regard to the Russian Federation, it assesses the municipal solid waste management reform that commenced on 1 January 2019, encompassing the principles and mechanisms for waste collection, sorting, processing and disposal, as well as its efforts to create a new household culture and to improve environmental wellbeing. It notes that the high cost of the reform has thus far mainly been borne by the population, giving rise to serious discontent, and proposes to reduce these negative financial consequences through better organisation of the country’s system of environmental payments as applied to industrial and consumer waste, i.e., by employing the “polluter pays” principle. It also recognises and discusses the need to develop fiscal mechanisms aimed at encouraging the use of waste and secondary resources.
Keywords
Around the globe, the goal of effective production and consumption waste management is beset by problems that require urgent action. While some countries introduce state-of-the-art and innovative waste management technologies and adopt appropriate legislation to address these problems, others continue to solve their “garbage problem” in the old-fashioned way – by dumping waste in ravines, “forgetting” it in forests, and burying or dumping it in partially inaccessible terrains. Marine and oceanic pollution due to the discharge of industrial and consumption waste has become a critical global environmental problem.
In the Russian Federation, a legal framework has been formed to protect the environment from pollution by production and consumption waste. However, the effectiveness of this regulatory framework is hampered by inadequate practical implementation of legal provisions.
Currently, large cities are introducing separate collection and disposal of household waste. Despite the fact that all main activities in the “waste reform” framework are well funded, the disposal of solid waste still poses a significant problem for large urban agglomerations (primarily Moscow and St Petersburg), and drives the public use of unauthorised dumps.
The Russian government understands that, to combat pollution, a whole complex of serious problems must be urgently solved. The executive authority takes measures to ensure safe handling of extremely hazardous and highly hazardous waste (1st and 2nd classes of hazard, see below), initiating changes to the national legislation that encourage the processing of industrial and consumption waste. The Federal Government coordinates this approach and oversees the implementation of environmental protection measures.
According to official statistics, in 2017, 6,220.6 million tons of waste were generated in the Russian Federation. From 2010 to 2017, the amount of waste generated annually increased by 66.5 percent – from 3,735 million tons to 6,221 million tons. The largest portion of the production and consumption waste generated in 2017 was attributed to economic activities such as mining, which created 5,786.2 million tons of waste (or 93 percent of the total amount of waste generated). 1 Today, industrial and consumption wastes represent a serious and unresolved environmental problem in the Russian Federation. According to various estimates, the rate of waste production is significantly higher than the rate of GDP growth. Over the past 15 years, from 2002 to 2017, the waste capacity of the Russian industry has more than doubled.
Production and Consumption Waste in Russian Law
The Federal Law “On Production and Consumption Waste” 2 defines the legal framework for the management of production and consumption waste in order to prevent harmful effects on human health and the environment, as well as to involve such waste in recycling. It defines production and consumption waste to include substances or objects that are formed in the process of production, performance of works, provision of services or in the process of consumption, and which are disposed of, intended for disposal or subject to disposal. It also regulates in detail the issues related to settling, storing, disposing, management and utilisation of waste, as well as waste neutralisation and other kinds of measures, including safe transportation.
Relevant environmental protection takes the huge diversity of waste and the specificities of their disposal or utilisation into account. It is regulated in additional federal laws, including the laws “On Sanitary and Epidemiological Well-being of the Population”, 3 “On Safe Handling of Pesticides and Agrochemicals”, 4 and “On the Destruction of Chemical Weapons”. 5
The establishment of a regulatory framework for preventing pollution by production and consumption waste depends on a number of factors, which include the form of the State (Federal State) involved; and the international obligations as formulated in relevant international treaties to which the Russian Federation has acceded.
The State form question turns on which legislative level applies: The federal level is in force in the entire Russian Federation or the separate laws formed by “subjects of the Russian Federation” (regional governmental units similar to provinces in scope, which regulate within their geographic boundaries), which are the second level. There is also a third level – municipal legislation – comprised of regulatory legal acts of representative bodies and municipal legal acts of executive-administrative bodies. For example, Moscow adopted a law dated 30 November 2005 “On Production and Consumption Waste in the City of Moscow”, which takes into account the peculiarities of waste management in a large city and includes medical waste, biological waste, construction and demolition waste, separate collection of different types of waste, and waste sorting.
Administrative Mechanisms
In the Russian Federation, administrative mechanisms traditionally play a significant role in the implementation of environmental measures, including the use of economic mechanisms for preventing pollution by production and consumption waste. Both public and municipal authorities organise administrative and supervisory work.
Important powers are granted to federal executive bodies, subjects of the Russian Federation, and local executive and administrative self-governing bodies. The federal laws invest waste management authorities, as do the laws of the subjects of the Russian Federation and regulatory legal acts of local governments.
At the federal level, the authority to implement integrated measures to protect the environment from industrial and consumption waste is vested in specially authorised bodies, the federal executive authorities (the Ministry of Natural Resources and the Environment of the Russian Federation (Ministry of Natural Resources) and the Federal Service for Supervision of Natural Resources Usage (Rosprirodnadzor)). The Ministry of Natural Resources develops and implements State policy and legal regulations in the field of environmental protection, including issues related to industrial and consumer waste management, issues of municipal solid waste management (other than tariff regulation), air protection, state environmental supervision, specially protected natural areas and state environmental impact assessments. Rosprirodnadzor is a federal executive body responsible for the control and supervision of environmental management, environmental protection within its competence, including reducing negative anthropogenic impacts, as well as waste management (other than radioactive waste) and state environmental impact assessments.
The national government is also vested with broad powers regarding environmental protection. It has adopted a unified State policy in the field of waste management and defines the competences of authorised federal executive bodies. It provides economic, social and legal conditions to encourage a maximum reuse of waste and the reduction of waste generation; determines the functions and powers of federal waste management executive authorities; carries out international cooperation in the field of waste management; and exercises other powers as provided for in national legislation.
It is also engaged in active law-making in this area, adopting decrees, within the assigned competences, including the following: municipal solid waste management; management of production and consumption waste related to lighting devices and electric lamps (whose inadequate collection, accumulation, use, neutralisation, transportation and placement may cause harm to the life and health of citizens, animals, plants and the environment); pricing in solid waste management at the municipal level; and competitive selection of regional operators for solid municipal waste management. 6
Similar powers are vested in the governments of subjects of the Russian Federation. At the regional level, their activities include the following: development, approval and implementation of a range of programmes for the management of municipal solid waste; participation in the development and implementation of federal programmes concerning waste management; and supervision of waste management at economic and/or other facilities subject to regional state environmental supervision. They are also authorised to establish restrictions in waste management through imposing different limits and standards for municipal solid waste collection.
At the local level, governments arrange and maintain the sites for accumulation of municipal solid waste; establish schemes for the placement of sites for the accumulation of municipal solid waste and maintain a register of these sites; organise environmental education modules; and develop a culture of environmental protection.
Waste Management Reform
Annually, the population generates about 70 million tons of new waste, of which only four to five percent is being recycled or incinerated; the area dedicated to landfills increases by 500,000 hectares per year. On 1 January 2019, a reform of municipal solid waste management was launched in the Russian Federation. Within this reform, most of the regions switched to the new system of municipal solid waste management. Exceptions were made for Moscow, St Petersburg and Sevastopol, where the introduction of the new waste collection system has been postponed until 1 January 2022.
A new complex system of municipal solid waste management is being created in the Russian Federation, aimed at fundamental change in the principles and mechanisms for collecting, sorting, processing and disposing of waste, creating a new household culture in the society, and improving the environment. A public law company called the “Russian Environmental Operator” is being created, which will become the country’s sole waste operator.
Regional municipal solid waste management operators started work on or before 1 January 2019 in all regions of the Russian Federation. They are prohibited from burying waste within the boundaries of inhabited regions. A new sector of the economy and a modern infrastructure has been created at the national level, including new modern waste-processing facilities and landfills that meet all international environmental standards.
The system is designed to ensure a complete waste management cycle, starting from waste transfer from the generating sources to recycling, burial or disposal. In addition, as a part of the National Project “Ecology” (launched in 2018), 7 the construction of more than 130 large waste treatment facilities and the elimination of all unauthorised landfills is planned. The Russian Federation also intends to launch about 40 waste sorting plants by 2024, for which 50–60 billion rubles will be allocated from the federal budget. 8
Within the framework of this national project are many actions aimed at introducing effective management of production and consumption waste: removing all unauthorised landfills in cities by 1 January 2024; reducing air pollution in large industrial centres, including a decrease in the total emissions of pollutants into the air in the most polluted cities by at least 20 percent; improving the quality of drinking water, including for residents of settlements not equipped with modern centralised water supply systems; ecologically rehabilitating water bodies, involving the Volga River, and preserving unique water systems, including Lakes Baikal and Teletskoye; and preserving biological diversity through creating at least 24 new specially protected natural areas.
Financial support for the project’s implementation will be provided through the federal budget. 9
Economic Regulatory Aspects
Currently, according to national legislation, all waste is divided into five groups, depending on the degree of environmental impact: Class I – extremely hazardous waste; Class II – highly hazardous waste; Class III – moderately hazardous waste; Class IV – low-hazard waste; and Class V – practically non-hazardous waste. A complex system of environmental payments is in place, including financial sanctions for pollution with production and consumption waste. The most important aspect of these payments is the element of paying for a negative impact on the environment, which depends on the hazard class of production and consumption waste.
Legislative and other regulatory legal acts relevant to the field of environmental protection and waste management, allow the inclusion of the following payments in the composition of the final payment for a negative environmental impact: payments for the emissions of pollutants into the air from stationary sources, discharges of pollutants as part of wastewater into water bodies, for storage, disposal of production and consumption waste (waste disposal) (Federal Law “On Environmental Protection”); a recycling fee and an environmental fee (Federal Law “On Production and Consumption Waste”).
The Law “On Production and Consumption Waste” divides the payment into a fee for a negative impact on the environment caused by waste disposal and another for such a negative impact caused by municipal solid waste. In the latter case, the payment is charged according to the tariff-setting rules applicable to an operator of a solid municipal waste management facility.
Economic regulation in the field of waste management aims to support waste reduction and promote waste return to economic circulation (recycling), by imposing a payment structure on direct waste disposal and creating economic incentives for other waste management activities.
With regards to compensation for damage caused to public health and property as a result of violation of environmental legislation, as provided in the Environmental Protection Law, the legislation notes as follows: first, damage to public health and property as a result of economic and other activities of legal entities and individuals, is to be compensated in full. Second, the extent and amount of such compensation will be assessed in accordance with the norms of the current Russian legislation.
In our view, there are three aspects of this compensation: the form or type of payment; a measure of civil liability; and the civil compensation payment itself.
Recycling and environmental fees were introduced in Russia relatively recently, in 2012 and 2014, respectively. These fees are similar to compensation, having a comparable objective, although they are not indications of legal violation and are imposed before the action of environmental concern. For example, a recycling fee is paid for each vehicle produced in, manufactured in or imported into the Russian Federation, by the producers or importers, as well as by those who acquire them from individuals who had not paid either of the relevant fees. This fee system is intended to ensure environmental safety, including to protect human health and the environment, taking into account the vehicle’s technical characteristics and deterioration level. The size of the recycling fee is based on the year of manufacturing of the vehicle, its mass and other physical characteristics affecting the costs associated with waste management when it should become waste.
By contrast, the environmental fee is designed as a non-tax revenue within the federal budget, without denoting its status as a fee in the system of mandatory public payments. Environmental fees are earmarked for special purposes. Control over the calculation, completeness and timeliness of payment are exercised by Rosprirodnadzor. The same federal executive authority enforces potential penalties in the event of non-payment of the fee.
Formally, however, these fees appear to operate as a pre-payment for a negative impact on the environment, and may perform an incentive function, encouraging producers to reduce their negative environmental impacts. To that end, this fee is paid by producers and importers of goods that will be disposed of after their use by consumers. It is annually assessed in advance, according to the category of goods involved. The environmental fee for packaged goods that are not ready-to-use items is based solely on the packaging. Utilisation standards are set for each group of goods as a percentage of the total number of the goods produced or imported for domestic consumption during the past calendar year, depending on the mass or number of units of finished goods or the mass of packaging used to manufacture such goods.
Another fee – the utilisation fee – is also a mandatory payment intended to promote environmental safety. It is charged by the customs and tax authorities.
Funds received by the federal budget are spent through the implementation of state programmes at the national level, providing subsidies to the subjects of the Russian Federation to co-finance activities of regional waste management programmes.
Government Application of Fee-based Revenue
Federal budget subsidies are granted following approval by the Government of the Russian Federation, on a priority basis. They are granted for programmes and measures that ensure that the standards are met: for disposal of waste from the use of goods (to bring about the recycling for which producers or importers of goods have paid a fee); and for carrying out engineering surveys, preparing project documentation, construction, reconstruction and technical re-equipment of facilities for waste processing. However, such targeted subsidies can be provided to the subjects of the Russian Federation only where they have already adopted an approved regional programme in the field of waste management and a territorial waste management scheme.
The main function of the various fee payments, however, is to be the stimulus for environmental protection activities. As incentives, they should aim to increase the economic interest of taxpayers in reducing the levels of negative environmental impact and unsustainable use of natural resources. In our opinion, the current trends that are shaped globally, including in the Russian Federation, assume “ecologisation” of legislation not only through introducing payments for a negative impact on the environment, but also through reorienting the entire tax legislation towards environmental protection. The economic regulation of environmental protection provided in the current legislation should not be limited to compensation legislation, fines and penalties, nor to the imposition of fees for negative environmental impacts nor environmental taxes. It is also necessary to widely apply other legal instruments within the framework of a sound tax policy, in a manner that promotes environmental objectives, sustainable use of natural resources and the reduction of air and water pollution.
In general, the Russian system of environmental payments, despite its regular improvement, is still operating at a low level of efficiency. In the pursuit of the goal of waste reduction, it is necessary to develop fiscal mechanisms aimed at encouraging waste reuse.
Economic Incentives in Waste Management
Currently, the Russian Federation is in the process of adopting and implementing laws to introduce economic incentives in waste management via economic mechanisms that are being actively implemented in everyday practice. These incentives for effective waste management are provided in different forms: firstly, they reduce the levies based on negative impact on the environment, where the individual entrepreneurs and legal entities introduce waste-reduction technologies. Secondly, they apply accelerated depreciation to productive capacities associated with certain activities in the field of waste management, which ultimately leads to a reduction in certain taxes to be paid by an entrepreneur.
As an example, consider the economic incentives that apply to producers of biodegradable materials, including bed linen and other products from cotton and linen fabric, paper products, and 108 other items approved by the Government of the Russian Federation. Such producers, if their processes comply with relevant legislative requirements, are given: Tax breaks according to the legislation of the Russian Federation on taxes and fees; Beneficial treatment with regards to the payment for a negative impact on the environment when disposing of waste and in relation to the environmental fee; and Access to funds from the federal budget and the budgets of the constituent entities of the Russian Federation in accordance with the national budget legislation.
Conclusions
The complex nature of the responsibility of the State in preventing pollution by industrial and consumer waste is evident in the State regulatory framework, its organisation of effective control over law enforcement, and its administrative and financial monitoring.
Currently, the Russian government, aware of its responsibility for the critical situation related to the problem of waste disposal, is attempting to organise and carry out a set of environmental, legal and economic measures, known as “waste reform”. It has, however, been slow in solving the waste problem and has even ignored the acute problem of waste disposal, sometimes giving rise to popular demonstrations against landfills and unauthorised dumps, suggesting that the programme known as Waste Reform may not be supported by all sectors of society. Since the beginning of 2019 and before, rallies against this reform have been held throughout the country. Assuming that the population’s discontent was caused by the fact that the authorities were simply ignoring the “waste problem”, which in some cases created a real threat to the lives and health of citizens, it seems clear that the criticism was focused on the economic aspects of “waste reform” and, above all, the high cost of removing municipal solid waste. 10 Given that social activity prompted the State to embark on the implementation of the waste reform, the forced nature of these long-delayed reforms has led to ambiguity and contradictory decisions.
It may be both useful and important, when implementing “waste reform”, to draw on the experience of Western countries, which began long ago to pursue their own efforts to solve this acute social and environmental problem. In some instances, that experience has included the use of economic tools. Some Western economists believe that the reuse of certain types of waste can hinder the production of certain goods. According to their calculations, urban recycling programmes cost about twice as much as disposing of waste in landfills while the cost of waste recycling increases along with the increase in levels of recycling. Thus, some specialists who deal with this problem in the West have been inclined to believe that it is more profitable to take the waste out to landfills. Thus, in the 1990s, recycling plants in the US were in a state of crisis due to lack of garbage. When US companies realised that large modern landfills can become truly profitable, they began to create them, equipped with the latest technology.
With proper organisation and management of landfills, the disposal of household waste may be neither harmful to the environment nor unreasonably expensive. Proper systems of waste management and utilisation may enable producers, consumers and governments to avoid environmental degradation and the creation of hellish stinking mountains. In the US and other Western countries, after some landfills were closed, their territories were turned into recreation areas and the methane emitted when the wastes were incinerated was used to generate electricity. 11
As noted above, the Russian Federation currently plans to build more than 130 large waste treatment facilities and to eliminate unauthorised landfills. It plans to build about 40 waste sorting plants every year, until 2024, allocating 50–60 billion rubles from the federal budget to this task. Drawing from the US experience, described above, it also seems obvious that the Russian Federation will need to actively introduce economic incentives into daily waste management practice, hoping that the time will come when unrecycled garbage will become a rare commodity.
Footnotes
Blokov, I.P. 2008. “The Environment and its Protection in Russia. Changes for 25 years”, at 163. In: Omno, M. Soviet Greenpeace.
Federal Law No. 89-FZ dated 24 June 1998 (amended in 2015).
It establishes sanitary and epidemiological requirements for the collection, accumulation, transportation, processing, neutralisation, disposal and utilisation of industrial and consumption waste, as well as the procedure for carrying out radiation monitoring at centralised treatment facilities.
Regulates the procedure for neutralisation, utilisation, destruction and burial of damaged pesticides and (or) prohibited for use pesticides and agrochemicals, and their containers.
Wastes generated in the process of destruction of chemical weapons are limited in circulation and can be transferred by the Government of the Russian Federation to the government of the subjects of the Russian Federation, which has a preferential right to use waste.
The total number of Decrees of the Government of the Russian Federation in this area, including various environmental programmes approved by the Government, reaches several hundred.
The Project is supervised by the Government of the Russian Federation.
Ibid.
According to analysts of Finexpertiza, an international audit and consulting network, the most expensive waste collection will be in the Moscow region with a cost of 3,062 rubles per resident per year. The Leningrad region comes second, at a cost of 2,845 rubles, and in third place is Kamchatka Krai, at 2,645 rubles. The cheapest services are estimated in the Amur region – 45.12 rubles per person per year. Residents of Primorsky Krai will have to pay 227.35 rubles, and Dagestan – 390 rubles.
See, for more details, Simon, J.L. 1981. The Ultimate Resource [translated from English in 2012 by B.S. Pinsker, Chelyabinsk.Socium].