Insufficient supervision exercised by the General Directorate for Environmental Protection over subordinate entities and the lack of efforts to remove system barriers to smooth and effective settlement of affairs and monitoring of environmental damage remediation cases – these are only some irregularities identified by NIK. Besides, NIK auditors pointed to extraordinary indolence in reviewing threat and damage reports as well as appeal proceedings, and improperly managed register of environmental damage threats and damages.
The system of environmental damage prevention and remediation, adopted by the EU, is based on the polluter pays principle. On 30 April 2007, Poland implemented the Environmental Damage Act, setting out the principles of liability for environmental damage prevention and remediation. The Act also specifies the obligations of entities using the environment whose operations may pose a risk of environmental damages and obligations of the state authorities relevant for the environmental damages (the regional environmental protection director and the minister of environment).
An environmental damage (potential or existing) has been defined as a negative, measurable change in the state or function of environmental components, evaluated against the original state, and caused directly or indirectly by an entity using the environment. If the damage poses a threat or was inflicted against protected species or habitats, the statutory provisions apply to any entity using the environment, not only the one that conducts activity specified as risky to the environment. Those entities are obliged to immediately implement preventive or remedial measures, also to eliminate future risks of damages – to restore the environment state from before the damage – with all its components and natural assets.
Efforts of the audited directorates for environmental protection were mostly inadequate and ineffective.
- proceedings on damages to the natural environment were conducted sluggishly, contributing to further degradation of the environment;
- proper measures were not taken to give powers to the regional directorates for environmental protection to ensure smooth conduct of proceedings;
- the system of supervision of superior bodies over subordinate bodies was faulty;
- the register of environmental threats and damages was not managed properly.
The General Director for Environmental Protection properly conducted and updated the damage register using the IT system. Though, he did not supervise the regional environmental protection directorates systemically and on an on-going basis. That was a violation of the Government Administration Audit Act and of the management control standards. The General Director for Environmental Protection did not help remove system barriers to effective settlement of affairs related to the liability for the environmental damage prevention and remediation. Besides, in nearly 88% of appeal proceedings the one-month review deadline imposed by the Code of Administrative Proceedings was exceeded. The proceedings median length was 327.5 days.
Also in the regional directorates for environmental protection activities following reports of environmental threats and damages were conducted sluggishly and ineffectively. In some cases the directorates remained inactive for several years and the environmental degradation was observed during that time.
Lengthiness of proceedings is one of main drawbacks of the audited system.
The regional directorates for environmental protection improperly managed the register of environmental damage threats and damages. In some cases the data, introduced with significant delays, were incomplete or erroneous. As a result, incorrect information was provided to relevant ministers and distorted reports were submitted to the European Commission.
For many years the regional directorates for environmental protection have complained about system barriers, limiting their audit mandate in terms of compliance with the environmental protection laws. The regional directorates took up cooperation with the inspectorates for environmental protection, which - in some cases - refused to start an audit or make laboratory tests. Even when the tests were carried out, their results did not qualify as potential evidence in the regional directorates’ proceedings due to the lack of required accreditation to collect samples or identify markers. The regional directorates were forced to acquire funds to re-order tests and analyses and the procedure was prolonged even to one year and a half. Since 2018, all the interested parties have been aware of the barriers which were not removed, though.
Also for many years now the regional directorates have struggled with staff shortages due to employee absences and turnover, mainly in the pandemic, uneasy recruitment of new, qualified employees which also contributes to lengthiness of activities taken by the regional directorates and thus to deepening of the existing environmental damages.
Supervision over preventive and remedial measures of the entities obliged to implement them was ineffective. It boiled down to verifying the document correctness. The regional directorates for environmental protection did not conduct any field inspections because they were not entitled to.
The regional directorates had too little money to make financial provisions for unexpected, sudden events in case of a threat to human health or potential irreversible damages to the environment. An additional obstacle in gaining money for those purposes were painstaking procedures for acquiring financial resources from the National Fund for Environmental Protection and Water Management and the provincial funds for environmental protection and water management.
According to the Environmental Damage Act, in case of identifying an illegal landfill, the proceedings should be suspended by the time of waste disposal. The time-consuming process of waste disposal - which the regional directorates had no influence on - determined for how long the proceedings should be suspended. In the long run, in the course of lengthy waste disposal proceedings (up to 5 years) the environment condition deteriorated. According to NIK the waste disposal process could be speeded up if the decisions were made immediately enforceable.
In the audited period the regional directorates failed to immediately implement preventive or remedial measures due to a threat to human life or a possibility of irreversible environmental damages, as is laid out in the Environmental Damage Act. However, without relevant ordinance of the minister of climate in consultation with the minister of health, the said law is a dead letter.
From 1 September 2022, in line with the ordinance of the Minister of Climate and Environment, inspectorates for environmental protection may impose fines for abandoning preventive or remedial measures and for violating information duties. Only one provincial inspectorate used that right. NIK stands in a position that giving similar rights to regional directorates would speed up the procedures, relieve the provincial inspectorates and make the law enforcement more effective.
NIK stands in a position that proper coordination and cooperation between the inspectorates for environmental protection and other environmental protection bodies operating in the province with the regional directorates for environmental protection is missing in some provinces. According to NIK the governors could help by ensuring cooperation of all the general government bodies in the province and managing their activity e.g. by preventing any threats to human life, health or property as well as to the environment.
To establish if there was an environmental threat or damage, the regional directorates for environmental protection – in line with the public procurement procedures – ordered relevant analyses, field expertise and monitoring – for over PLN 1.6 million. Irregularities were identified in two regional directorates in the course of this procedure – financial consequences reached PLN 146.4 thousand.
If the entity using the environment and liable for the damage was known and it failed to implement required remedial measures in due time, the procedure assumed sending a reminder by the regional directorates for environmental protection and then an appeal to the governor to start the enforcement proceedings. In case it could not be established which entity was liable for the environmental damage, the regional directorates implemented the remedial measures on their own. In the audited period four regional directorates took such remedial measures, spending the total of over PLN 73.2 million. One regional director did not take any efforts, although specific conditions set out in the Environmental Damage Act occurred, and the analysis confirmed an environmental damage.
On the other hand, NIK has positively evaluated activities of the regional directorates for environmental protection in terms of establishing sanctions for omissions and violations of statutory obligations by entities using the environment. NIK’s positive evaluation also concerned efforts of the regional directorates for environmental protection to specify the level of claims security due to negative consequences and damages to the environment, as well as the anti-corruption policy in the General Directorate and the regional directorates for environmental protection.
Recommendations
to the Minister of Climate and Environment:
to take efforts to develop a simplified, fast and effective path in the environmental protection and water management funds to acquire financial resources for tasks related to liability for environmental damage prevention and remediation, the so-called intervention tasks in particular, i.e. the ones that need to be taken in case of a threat to human health or potential irreversible environmental damages;
to the General Directorate for Environmental Protection, the Chief Inspectorate for Environmental Protection:
to formalise the principles of cooperation between the regional directorates for environmental protection and the provincial inspectorates for environmental protection, entitled to audit entities using the environment and to conduct the laboratory activity;
to the Minister of Climate and Environment, the Minister of Health:
to define – in an ordinance – the way of assessing significant threat to human life or the environment condition and reference methodologies of modelling the transmission of substances in the soil and groundwaters, pursuant to the Environmental Protection Law Act;
to the Minister of Investment and Development:
to take efforts to entitle the regional directorates for environmental protection in the Geodetic and Cartographic Law Act of 1989 to direct access to the land and property register kept by district governors;
to the Governors:
to make sure the provincial inspectorates for environmental protection and other environmental protection bodies operating in the province cooperate with the regional directorates for environmental protection, enabling them to operate smoothly and effectively in the area of environmental damage prevention and remediation.
