Leaky control of waste coming from Ukraine

Only 8% of wastes transported through the border with Ukraine from January 2015 to June 2019 were subject to detailed control. The customs clearance of other wastes was usually limited to verifying transportation documents. Some wastes from the so-called “green” list, that is other than hazardous, crossed the borders of Poland only in transit. But still, the wastes could stay in Poland and go to illegal landfills or some new ones. It means that Poland did not ensure effective control of wastes transported through the border with Ukraine, which was not consistent with the Basel Convention. According to NIK, that was not the result of negligence but rather a consequence of imprecise law and the shortage of proper equipment on the borders.

The first time NIK verified effectiveness of control of transboundary movements of wastes among Poland, Ukraine and Slovakia was in 2007. Already then NIK said that Poland did not comply with the Basel Convention. It also stressed that irregularities in the supervision and control of such transit need to be eliminated. Also the Border Guard has to be provided with new equipment facilitating waste identification. Since the end of the audit, new Polish and EU provisions have come into force. That is why, NIK started an audit which was also part of international audit conducted both in Ukraine and Slovakia. The comments and findings of Ukrainian and Slovakian SAIs are consistent with the findings and recommendations of NIK. It turns out that not much has changed within 13 years.

Imprecise law and shortage of equipment

Wastes are treated as goods on the border. In the audited period, on the borders with Ukraine, that is on the EU border, the maximum of 14% of goods going out of Poland (including wastes) and the maximum of 25% of goods coming into Poland (including wastes) were subject to examination or search. Not more than 8% of transported wastes were controlled in detail.

Why was it the case? In the provisions of the Act on Transboundary Movements of Wastes of 2007 neither the Tax and Customs Service nor the Border Guard were obliged to physically control each transport of wastes crossing the border. In line with those provisions, the Border Guard is to prevent illegal transport of wastes and the Tax and Customs Service is to control transported goods (including wastes). In compliance with the effective law, in the audited period, customs clearance amounted to the verification of documents for each transport. In reality it was a double check – both services carried out the same controls: of documents concerning the transported wastes, the carrier and the vehicle as well as its marking. Neither the Tax and Customs Service nor the Border Guard were obliged to check if a given transport contained the quantity and the type of wastes declared in transportation documents.

Also the EU provisions do not enforce detailed controls if the entrepreneurs dealing with the transport of wastes are represented on the border by trade institutions operating as customs agencies. Those institutions have the “eligible entrepreneur” status. NIK has found that thanks to this status they are treated as “credible entrepreneurs”, having e.g. easier access to simplified customs procedures, e.g. only the verification of documents.

Formal controls are conducted both with regard to the transport of wastes from the “amber” list, that is hazardous and potentially hazardous, and from the “green” list. In case of the former, procedures enable supervision of wastes coming into Poland. The reason is the Chief Environmental Inspector in each case has to consent to wastes coming into, going out of or being transited via Poland. At the same time, this decision (consent) should be communicated to other bodies. On the other hand, after the transports reach their destination, their recipients have to submit to the Chief Environmental Inspector copies of relevant documents, confirmed by relevant services at the borders.

In case of wastes from the "green” list such procedures do not apply. According to NIK, this poses a real threat. These wastes, especially the ones carried in transit from Ukraine via Poland to other EU countries (on the borders with countries where customs control is not carried out), may be illegally stored in Poland. In line with the effective law no entity is obliged to monitor the transport of these wastes or register if they have left Poland. The data of the Border Guard units show that in the audited period nearly 50 thousand tonnes of wastes from the “green” list crossed the borders of Poland in transit (in Korczowa and Dorohusk). They were mainly: metal wastes and wastes consisting of alloys in non-dispersed form, wastes of paper, paperboard and paper products as well as ceramic wastes.

The biggest amounts of wastes from the “amber” list were transported via the border crossing in Korczowa. In 61 transports the total of nearly 950 tonnes of wastes were transported into or out of Poland. Each transport was controlled (most often only formally).

About 191 tonnes of wastes from the “amber” list came into Poland via the border crossing in Hrebenne. The local Customs Department controlled all nine transports, not only in terms of documents and customs closures imposed on Ukraine but it also weighed vehicles with goods on dynamic scales. Based on that the weight of vehicles was compared to the weight of goods in the customs declaration and the weight of an empty vehicle defined e.g. in the registration card. Any discrepancy exceeding 10% was an indication that the vehicle should be weighed on more precise static scales and that the goods should undergo the customs search. Such objections and suspicions of smuggling occurred in one case but were not confirmed.

The audit showed clearly that not all border crossings through which wastes could be transported had equipment enabling detailed control of wastes.

The biggest number of attempts of illegal waste transport were identified on the border crossing in Korczowa (58), Dorohusk (24, of which in 7 cases – after completing documents – further journey was allowed) and Hrebenne (22 cases).

Cooperation between the services and environmental protection bodies

To ensure effective controls and smooth border movements, the Tax and Customs Service and the Border Guard signed agreements among others with the environmental protection inspectorates on cooperation in terms of coordinating activities, procedures and collaboration in specific situations and information exchange.

The cooperation with the Provincial Inspectors of Environmental Protection was related e.g. to unquestionable statement if the transported goods should be qualified as wastes. NIK has stressed that some Provincial Inspectors provided services in this area 24/7, while others were open only from Monday to Friday from 7:00 to 15:00. It means that if some questionable transport reached the border on Friday at 15:01, it would have to wait to be controlled for the whole weekend.

NIK has also pointed to improper actions of the Podkarpacki Provincial Inspector of Environmental Protection in terms of qualifying waste – legally purchased elements of car body and spare parts detained by the services on border crossings. Car roofs, arch wheels or wings were treated by the Podkarpacki Provincial Inspector as “end-of-life or unserviceable vehicles not containing liquids or other hazardous elements” although in reality they were not vehicles. In similar cases the Podkarpacki Provincial Inspector issued inconsistent opinions despite the fact that carriers submitted documents describing technical condition of the vehicle that were similar in legal terms. Although the documents showed some cars could be driveable after repair, they were treated as waste. And on the contrary, if the documents indicated a car could only be disassembled or designed for spare parts, the Podkarpacki Provincial Inspector did not qualify it as waste. According to the NIK findings, decisions in that field were taken without essential technical knowledge or expert opinion.

In terms of waste controls, the services cooperated also with the Chief Inspector of Environmental Protection who is obliged to take proper actions in case an attempt of illegal waste transport is reported. From among 200 reports submitted to the Chief Inspector in the audited period, 73 ones were related to damaged cars or car elements. The NIK auditors conducted a random control of proceedings related to 20 reports. As much as ¼ of them was started 15 days or even over 3 months after the Chief Inspector received the report. NIK has underlined than in line with the provisions of the Act on Transboundary Movements of Wastes, proceedings in such cases should be started ex officio with no delay. Moreover, the parties were informed neither of the delays, nor of their causes.

NIK also verified 18 permits issued by the Chief Inspector of Environmental Protection for transboundary movements of goods from the “amber” list, among others for the transport of wastes into Poland from Moldova via Ukraine and from Slovakia, for the transit from Slovakia, Ukraine and Moldova, and in one case for the transport of wastes from Poland to Slovakia. The NIK auditors had no objections to the decisions allowing transport of wastes into and out of Poland. Though, the transit permits were issued based on incomplete requests, e.g. the documents attached to them were not translated into Polish which is, among other things, inconsistent with the Act on Transboundary Movements of Wastes.

NIK’s formula for effective control

According to NIK, the control system on border crossings could be tighter and more effective thanks to cooperation of three ministers: the Minister of Climate, the Minister of Finance and the Minister of Internal Affairs and Administration. The point is to further specify the provisions of the Act on Transboundary Movements of Wastes and to provide border crossings with essential equipment.   

In order to eliminate the risk that wastes of other types or in other quantities than declared in transportation documents will come into Poland, go out of Poland or be transited via Poland, NIK recommends the following:

• there should be an obligatory physical control of each transport of wastes (requiring documents defined e.g. in the provisions of the Basel Convention and the EU Regulation of 2016); the method and scope of such control should be defined at the same time,  
• either the Tax and Customs Service or the Border Guard should be designated to conduct the obligatory physical control,
• 24/7 cooperation should be implemented on border crossings between the designated service and the environmental protection inspectorates. This solution, though, should not eliminate or limit the control obligation performed by the other service,
• waste recipients in Poland should be obliged to notify the Provincial Inspectors of Environmental Protection of all transports of wastes from the “amber” or “green” lists coming into Poland,
• electronic registration of weight measurements should be obligatory or the method and frequency of controlling waste transports in Poland should be defined. That would ensure the monitoring of wastes from the moment they cross the borders of Poland until the time they are unloaded. That approach will also make it possible to check if the weight of unloaded wastes is consistent with the weight declared on transportation documents.
• In order to limit the uncontrolled storage of waste that should have reached another country NIK recommends that a system should be developed to monitor the “green” list wastes going out of Ukraine and transited via Poland to other countries. That system will show if the transport has really left our country. According to NIK, the existing viaTOLL system (on charging fees for driving on Polish roads) could be used for that purpose. The tracks which transport wastes into Poland are equipped with a viaBOX device which is recorded. Any information from that device is read by the so-called “gantries”, installed over highways, expressways and national roads which lead, among others, to border crossings. Any information from the system would enable the environmental protection inspectorate and/ or road transport inspectorate to verify the route of the track carrying wastes and to check if the recipient specified in transportation documents received them.

NIK stands in a position that irrespective of the law changes, the Ministry of Internal Affairs and Administration should provide the border crossings with Ukraine (designated to transport wastes) with static scales (which are more accurate than dynamic ones). The devices should be handled by the services responsible for controls.