Chapter XIV
The Transition of Waste Management According to the EU and Ukrainian Legislation
p. 293-310
Résumé
The purpose of the chapter research is to establish the content of the adaptation of the legislation of Ukraine on waste to the legislation of the countries of the European Union on the basis of the analysis of the system of normative legal acts of Ukraine, acts of international legal regulation and acts of the EU. Achieving the goal and objectives of the chapter research occurs through the use of general scientific and special legal methods of cognition. A systematic comprehensive approach to the study of the object and subject of research requires the use of methods for determining the social normative content and legal form. It has been established that the current regulatory legislation of Ukraine determines the vector of its development for the implementation of EU legislative standards in general, and in particular for the regulation of waste management. However, it was determined that the practical implementation of the principles of a circular economy, where waste plays the role of property and requires responsible handling in Ukraine, is characterized extremely negatively, which is associated with both objective reasons (lack of investment in creating an infrastructure for proper waste management and recycling) and subjective reasons (low level of legal consciousness of the population, which requires a responsible attitude to solving the problem of separate collection and sorting of waste, rational consumption), etc. The article emphasizes the lack of unity of approaches to establishing the content of the category ‘waste’, which is enshrined both at the legislative level (in the Laws of Ukraine ‘On Waste’, ‘On Waste Management’, ‘On Alternative Types of Fuels’) and at the regulatory level (in the State Waste Classifier). The author also identifies the ambiguity of practical approaches to the practice of regulating waste circulation.
Texte intégral
I. Introduction
1Throughout Ukraine’s history of independence, processes of stagnation of institutional models in ensuring national environmental security have been observed. One of the problems in implementing national environmental security requirements in Ukraine is the declarative nature of management activities in developing and implementing national programmes for economic, scientific, technical, social, and cultural development, as well as environmental protection. These activities are limited only to the development and adoption of regulatory legal acts, without any strategic planning for their implementation and compliance.
2Strategic problems in ensuring national ecological security include the lack of continuity traditions in implementing state and regional policies in general, particularly in the field of national ecological security. Furthermore, the declarative nature of establishing the essence and structure of the mechanism of national environmental security and its functional content, which should be aimed at meeting the requirements of the European Green Deal, is another issue to consider.
3The European Green Deal is an obligatory part of Ukraine’s development strategy based on its recognition as a candidate for membership in the European Union. The path of developing Ukraine’s integration into the EU must be associated with the adoption of the Association Agreement between the European Union and its Member States, on the one part, and Ukraine, on the other.1 The following step was the recognition of Ukraine as a candidate for the EU in 2022 (on 23 June 2022 the European Council granted Ukraine the status of a candidate for accession to the European Union).2
4At the Ukrainian regulatory level, attempts to introduce the ‘national environmental security’ category into the national legal space were made in 1995–1998, when conceptual approaches to establishing the structure and content of the mechanism for ensuring national security requirements in general, and its structural elements, were reflected. However, despite the upgrading of the issue of ensuring environmental security requirements, beginning from the 1970s, the state of legal regulation of ensuring national environmental security in Ukraine remains quite ineffective, and fails to meet the requirements of the modern European society and the European Green Deal, the content of which includes the development of such a model of the functioning of the economy, which requires, by 2050, the minimisation or complete eradication of the problem of greenhouse gases, the introduction of the development of production based on the principles of resource efficiency and competitiveness, provided that there is no resource dependence or possibility of ‘manipulating’ energy resources.
5On 25 September 2015, Resolution 70/1 transformed our world: the 2030 Agenda for Sustainable Development was adopted by the United Nations General Assembly. This historic document includes the 17 Sustainable Development Goals, which aim to mobilise global efforts to end poverty, foster peace, safeguard the rights and dignity of all people, and protect the planet. The resolution begins with a declaration stating:
We resolve, between now and 2030, to end poverty and hunger everywhere; to build peaceful, just, and inclusive societies; to protect human rights and promote gender equality; and to ensure the lasting protection of the planet and its natural resources. We resolve also to create conditions for sustainable, inclusive economic growth, shared prosperity, and decent work for all, considering different levels of national development and capacities.3
6Following the official presentation of the European Green Deal by the President of the EC, Ursula von der Leyen, in the European Parliament on 11 December 2019, the key directions of the EGD were identified as clean energy, climate action, construction and renovation, sustainable industry, sustainable mobility, reducing environmental pollution, biodiversity, and sustainable agricultural policy (the ‘Farm to Fork’ Strategy).
7The attainment of climate neutrality by 2050 is the main goal of the European Green Deal. In order for the EU to achieve this goal, one of the targets is to decarbonise its energy system, aiming to achieve ’net zero greenhouse gas emissions by 2050’. Many other current and ongoing rules will also be reviewed. In 2023, Member States will update their climate and energy plans to comply with the EU climate target for 2030. Key principles include prioritising energy efficiency, developing an energy sector based mainly on renewable resources, ensuring affordable EU energy supply, and having a fully integrated, interconnected EU digital energy market.
8In 2020, the European Commission unveiled its Energy System Integration Strategy, which serves as the basis for an energy transition that includes measures to create a more closed direct electrification system, as well as the development of clean fuels (including hydrogen). The European Alliance for Clean Hydrogen has also emerged, as hydrogen plays a special role in this seismic shift.
9Environmental policy is one of the most important and far-reaching areas of European Union legislation. The EU is the leading authority in the field of environmental protection. The European Union is competent to act in all areas of environmental policy, such as air and water pollution, waste management, and climate change. Its scope is limited by the principles of subsidiarity, and the requirement of unanimity in the Council in the sphere of fiscal issues, urban and rural planning, land use, quantitative water management, choice of energy sources, and energy supply structure.
10The European Union and national governments of the EU Member States have set clear targets to guide European environmental policy up to 2020 and beyond, anticipating what needs to be achieved by 2050, supported by dedicated research programmes, legislation, and funding. The objectives of the EU environmental policy under Article 191 TFEU are to protect, preserve and enhance the EU’s natural capital; to transform the Union into a resource-efficient, ecological, and competitive, low-carbon economy; to protect EU citizens from environmental pressure and risks to health and well-being; and to build a circular economy in which waste is recycled as efficiently as possible.
11These are goals that are planned to be achieved by 2030, however, in my opinion, their achievement for several EU countries remains quite problematic and declarative.
II. The Low Efficiency of the Policy of the European Green Deal in the Sphere of Waste Management in Ukraine
12The open area of the city’s memorial sites in Ukraine outweighs the territory of the natural reserve fund (7 per cent of the territory of the State versus 6.7 per cent), with one million landfills not complying with environmental safety norms, as more than 250 of them are overloaded.4
13This year, Ukraine has accumulated nearly 36 billion tonnes of raw materials, which amounts to over 50 thousand tonnes per square kilometre. However, less than 30 per cent of industrial oil and only 4 per cent of raw material waste are being utilised.5
14During the first 10 months of 2022, the bodies of the State Environmental Inspection of Ukraine conducted almost 6,000 state controls as concerns compliance with the requirements of natural resource legislation, on the basis of which more than 8,900 protocols on administrative violations were drawn up, which relates to the need to compensate for environmental damage in the amount of 1.34 billion UAH.
15The State Environmental Inspection has recorded a payment of over 53.28 million UAH to the State Budget of Ukraine by violators of national environmental safety legislation. Fines at a level of 91 per cent, which amounts to 2.8 million UAH, were also collected. Additionally, the territorial departments of the State Inspectorate of Ukraine initiated 419 criminal cases, which are being pursued by the Prosecutor’s Office of Ukraine and the Ministry of Internal Affairs of Ukraine.
16The most extensive damage was caused to national and local land and natural resources, amounting to over 751 million UAH, due to unauthorised dumping and waste disposal. E. Fedorenko reports that over 15.2 billion tonnes of waste have disappeared through the Russian Federation from the de-occupied territories of Kyiv, Chernihiv, and Sumy. In Ukraine, there are over 200,000 passenger cars and vintage cars stored at special locations, and these violations remain among the most common types of administrative offenses in Ukraine today.
17The Government of Ukraine has proposed that the EU consider Ukraine together with the EU when implementing relevant legislation, because Ukraine has already undertaken to implement the same EU legislation.
18The implementation of the Green Deal in Ukraine should have a positive impact on energy balance and ensure the development of the industry, in particular, taking into consideration the need to:
- create a full-fledged competitive environment on Ukraine’s energy market,
- carry out changes in heat generation by renewable energy sources, and the full transformation of coal regions, which means the gradual closure of unprofitable enterprises with the parallel creation of alternative jobs in these regions;
- provide consumers with proportional tariffs;
- develop a proportional tariff policy in the field of use of renewable energy sources in order to ensure the growth of the share of renewable energy and maintain a favourable investment climate in this field;
- preserve of a high share of nuclear generation, considering the need to ensure compliance with operating limits, safety, and prevention of man-made risks.
III. The Content of the ‘Waste’ Concept in Accordance with the Legislation of Ukraine and the EU
19The implementation of activities related to the use of waste requires the elimination of regulatory uncertainty of the legal category ‘waste’, which, in its own way, will be acceptable for the formation of relevant legislation.
20All waste management operations in the EU are performed on the basis of a permit system and control over them. The uncontrolled dumping and disposal of waste is prohibited. Control over waste management is carried out by national authorities through waste management plans that are developed by competent authorities in each Member State. Such plans include, inter alia, characterisations of the waste (including types, quantity, and origin) to be recycled or disposed of; identification of appropriate waste disposal sites; establishment of common technical requirements and special provisions for specific types of waste; authorisation of organisations and enterprises (both public and private) to carry out waste management activities; estimation of the approximate cost of disposal operations; and implementation of appropriate measures to improve waste collection, sorting, and processing. Reports from the European Commission and judgments from the ECHR indicate that many EU Member States have not fully implemented their waste management plans as required by EU legislation. As an example of the fact that it is necessary to comply with waste management standards in the EU, several court cases of the ECtHR are being considered. The applicant lived in Breschi, Italy. In 1950, she settled in a private house in the vicinity of this city. Her apartment was located 30 metres from a plant processing ‘special waste’, some of which qualifies as hazardous. Relying on Article 8 of the Convention, the applicant argued that continuous noise from the plant and emissions of harmful substances would cause significant damage to the environment and constitute a source of constant danger to her and her family. The European Court noted that the granting of licenses to the ‘Ecoservice’ company to open the plant, as well as subsequently granting it a permit for the processing of industrial waste for detoxification purposes, was not accompanied by any practical or scientific study on the consequences of the impact of these activities on the environment. However, national law contains a clear requirement for the Ministry to conduct a preliminary environmental impact assessment of any of the installations, the operation of which may cause harmful effects. Such installations primarily include those designed for the processing of hazardous and toxic waste through the use of chemicals. The Ecoservice company was not obligated to carry out the mentioned studies in a timely manner. This was done only in 1996, i.e., seven years after the process of detoxifying toxic waste at the plant had begun. The ECHR noted that, during the investigation, which was carried out under the supervision of the Ministry of Environmental Protection, it was twice discovered that the company’s activities did not comply with legal requirements. In particular, the geographical location of the plant was unsuitable for such activities, as well as specific risks to public health due to its operation. The ECHR has also analysed the progress of the consideration of the applicant’s complaints by the relevant domestic authorities. The ECHR noted that the implementation of another judicial appeal was completed by the issuance of a court decision on the immediate termination of the plant’s activities on the grounds that they failed to comply with the requirements of the law. Italian national legislation required the plant to be shut down until the company could demonstrate compliance with environmental regulations, and receive approval from the Ministry. However, the responsible authorities did not enforce this requirement, and allowed the plant to continue operating in spite of this non-compliance. The ECHR agreed that, after the adoption by the Ministry of the decision on the results of the examination in 2004, the company took the necessary measures to ensure the rights of the applicants. However, the main point remained that, for many years, the applicant had suffered a violation of her right to housing due to a dangerous production process taking place at the factory next to her house. The ECHR ultimately concluded that the State had failed to strike a fair balance between the public interest by keeping the toxic waste treatment plant in operation, and the applicant’s interest in the effective exercise of her right to respect for housing, private and family life.6
21Thus, the EU legislation on waste also sets a specific goal for EU: achieving self-sufficiency in removing your own waste, i.e., the ability to dispose of own waste effectively and safely within the EU.
22The removal and disposal of waste is carried out by waste owners, or public or private organisations or enterprises, waste collection or disposal, and recycling.
23Unlike European waste management standards, in Ukraine it is only since 2022 that waste is recognised as the property of the person who produced it, which has made it possible to personalise responsibility in this area. The Ukrainian Law ‘On Waste Management’ of 5 March, 1998, established the understanding of the category of waste as any substances, materials and objects created in the process of production or consumption, as well as goods (products) that have completely or partially lost their consumer properties, and have no further use at the place of their formation or detection, and from which their owner disposes, intends to, or must dispose of them for further recycling.7 Also, in accordance with the norms of the Ukrainian Law On Waste Management, a certain categorical series has been introduced regarding the understanding of the types of economic activity in the relevant field. Thus, it has been established that waste management constitutes actions aimed at preventing the generation of waste, its collection, transportation, sorting, storage, processing, utilisation, removal, and burial, including control over these operations and the supervision of disposal sites.
24‘Waste’ is defined almost similarly in DSTU 4462.0.01:2005 (National Standard of Ukraine) and in ‘Waste Management: Terms and Definitions of Concepts’, namely: waste substances, materials, and objects generated in the process of human activity that have no further use at the place of formation or detection, and which their owner must dispose of by recycling or disposal. At the same time, in the singular form ‘waste’ is used to refer to a specific type of waste generated in a particular production process, during the provision of a particular service, or performance of work, and which is characterised by a set of specific properties.
25Another more detailed approach is introduced in the new Ukrainian Law ‘On Waste Management’. This law was adopted on 20 June 2022, but came into effect on 9 July 2023. Until that time, the imperfect waste law of Ukraine was in force, which does not reflect the problem of waste recycling.
26The purpose of the Waste Management Law is to significantly improve the waste management system in Ukraine, which was poorly regulated and fragmented across municipalities. The new waste management system, inter alia, tightens the licensing requirements for the collection and processing of hazardous waste. It is expected to considerably improve the state of the environment in Ukraine, as well as contribute to the achievement of sustainable development goals, including reducing the amount of waste already accumulated in Ukraine, and generally increasing the investment attractiveness of the waste management sector.
27The legal framework of the Waste Management Law introduces the regulation of relations in the field of waste management modelled on the requirements of European Union directives. The adoption of this law is an opportunity to initiate the changes that Ukraine needs, including in order to meet the European Union membership requirements.
28According to the Waste Management Law, a waste handler is a person or company that generates waste or that, in accordance with the law, owns, uses, and disposes of waste.
29Such a normative approach has fixed the understanding of the concept of ‘waste’ rather narrowly. It does not consider the fact that substances, materials, and objects can be formed not only as the result of human activity, but also owing to natural and man-made disasters. It is also not considered that the producer of waste can be not only a person, but also other biological beings. In addition, the legally defined term ‘waste’ clearly follows the need for substances, materials, and objects to belong to the appropriate owner. That is, outside the definition of the concept of ‘waste’, the legislator left unowned waste. For the most part, the regulatory aspect is taken into consideration, and the ecological aspect is not considered at all – a danger to the natural environment and human health.
30Also, a major shortcoming of the analysed definition of the ‘waste’ category, in our opinion, is the failure to establish in theses the main goal in the issue of waste management – preventing its formation or reducing this process to a minimum. Instead, the legislator has assigned to the waste owner solely the possibility of the disposal or removal of waste. It should be noted that the priority direction in the legislation and practice of leading European countries is precisely the prevention of waste generation, and not its disposal. These are preventive measures aimed at reducing the amount of waste, and its potential future harm to people and the environment. In particular, these are state incentives for non-waste technologies, setting fees for individual items and packaging materials, etc. Thus, the basis of the legislative regulation of waste management in European Union Member States is Directive 2008/98/EC on waste, which establishes a clear priority in this area, namely: prevention of the formation, preparation for reuse, recycling, or other type of waste disposal and, finally, its removal.8 It is this prioritisation of providing benefits in the field of waste management that should be implemented in legislation and practice in Ukraine.
31The ambiguity of normative approaches to establishing the category of ‘waste’ gives rise to a scientific debate on establishing the content of such a concept. Taking into account the interconnections of various concepts in national legislation and the experience of other countries, N. Kornyakova offers a conceptual definition of the concept of waste as any materials, objects, and substances, generated as a result of human activity, the functioning of other biological beings, natural and man-made situations, that are of or have no further use at their place of formation, have an owner who is obliged by all possible means to prevent their formation, or get rid of it in accordance with the procedure established by law through disposal, removal or processing, in order to ensure the protection of the natural environment and the protection of human life and health.9
32V. Pikiner explored approaches to the interpretation of the meaning of the concept of ‘waste’ from the legal, economic, and accounting points of view. Attention was drawn to the fact that, from an economic point of view, it is important to consider the directions of further use of waste, the possibility of obtaining future economic benefits from its use, or incurring costs of its removal, disposal, etc.
Future economic value can be obtained by enterprises that generate certain types of waste, as a result of the sale of waste to other economic entities, which will use it as secondary raw materials or an alternative type of fuel, the use of waste for their own needs (provided that appropriate technological conditions are ensured), as well as state promotion of the implementation of low-waste and zero-waste technologies.10
33Investigating the accounting approach to the interpretation of the concept of ‘waste’, V. Pikiner highlights the following features: waste generation as a result of various economic processes of the normal activities of enterprises, and as a result of emergency events; taking into account the suitability or unsuitability of its further use under certain conditions of organisational and technical support of the enterprise; an indication of the legal aspects of waste management (legislative requirements for the disposal of waste and its transfer, etc.); recognition of waste as a negative factor having a significant impact on the natural environment, as well as human health and life. The scientist believes that the waste of enterprises should be understood as any substances, materials, or items formed as a result of the normal activity of the enterprise or emergency, having completely or partially lost their consumer properties, unable to be used at this enterprise in the existing organisational and technical conditions, and subject to disposal or removal in order to prevent negative impact on the environment and human health. By adopting this approach, the concept of waste has gradually almost lost the essence of an unnecessary thing, an object. Under the modern conditions of natural resources depletion, the experience of the European Union Member States in intensifying the implementation of state programmes has aimed at the disposal of household and man-made waste, ensuring the formation of mineral and secondary raw materials deserves special attention.11
34According to I. Kolodiychuk, all production and consumption waste generated in the economy and households are potential secondary resources, both material and energy, that may or may not be utilised in future. The portion of secondary material resources having undergone certain utilisation operations is considered a secondary raw material, the quantity, and types of which depend not only on the availability of appropriate waste processing technologies, but also on the financial resources to support these processes, the presence of a market for these products, and adequate government policies.
35This definition aligns with the provisions of the Waste Directive 2008/98/EU of 19 November 2008, which defines waste as secondary raw materials that countries have the appropriate technologies and production and technological prerequisites to dispose of.
36Therefore, waste should be understood as materials, objects, and substances that should be avoided, but are inevitably produced as a result of human activities, the functioning of other living organisms, natural and man-made situations, and which have no further use at their point of origin, have lost their consumer properties, and are owned by someone who is obligated to prevent their formation through legal means, or dispose of them in accordance with the law, either via disposal, removal, or processing, in order to protect the environment, human life and health, and reap economic benefits.
IV. Waste Management as the Content of the Transformation of Environmental Policy in Ukraine
37According to definition of waste management notably enshrined in the EU Directive on waste (2008/98), it is the collection, transport, recovery and disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including actions taken as a dealer or broker.12
38For the first time, the relationship between the need to ensure the safety of waste management in Ukraine is associated with the adoption of a new Law in Ukraine ‘On Ensuring Sanitary and Epidemic Safety of the Population’. According to Ukrainian legislation, waste management refers to the components of ensuring the sanitary and epidemiological well-being of the population (Article 7 of the Law of Ukraine ‘On Ensuring Sanitary and Epidemic Safety of the Population’13). In addition, in accordance with Article 19 of the Ukrainian Law ‘On Ensuring Sanitary and Epidemic Safety of the Population’, hygienic requirements for air at enterprises and the environment are established, which relate, in particular, to the field of waste management. Thus, in settlements, on the premises of enterprises, institutions, organisations and other objects, the air in industrial and other premises of long-term or temporary stay of people must comply with sanitary standards. Enterprises, institutions, organisations, and citizens are obliged to take the necessary measures to prevent and eliminate the causes of atmospheric air pollution, physical impact on the atmosphere in settlements, recreational areas, as well as air in residential and industrial premises, in educational, medical – preventive and other institutions, and other places of long-term or temporary stay of people. Article 33 of the Ukrainian Law ‘On Ensuring Sanitary and Epidemic Safety of the Population’ defines the main activities of the state sanitary and epidemiological service, in particular, in the field of waste management, namely: issuing conclusions of the state sanitary and epidemiological examination of waste management facilities, establishing sanitary and hygienic requirements for products made from waste, and issuing hygiene certificates for them, as well as the methodical support and implementation of controls in determining the danger levels of waste.14
39Environmental protection against waste pollution is regulated by Article 55 of the Ukrainian Law ‘On Environmental Protection’.15 This law requires waste owners to take measures to reduce waste generation, disposal, and burial. Waste management operations are only allowed with a permit, in compliance with sanitary and environmental standards. Priority is given to the method that ensures the possibility of further use of waste as secondary raw materials.
40In accordance with Article 28 of the Ukrainian Law ‘On Waste’, with the aim of strengthening control over the ecological state of waste disposal sites, assessing their impact on the natural environment and human health, the Resolution of the Cabinet of Ministers of Ukraine, dated 3 August 1998, No 1216, approved the Procedure for Keeping a Register of Waste Removal Sites. This register is developed and maintained on the basis of waste disposal site passports, reporting data submitted by waste producers, and information from specially authorised executive bodies in the field of waste management. Based on these passports, state administrations prepare conclusions on the level of environmental safety of waste disposal sites, and determine the category of their level of environmental safety for the environment and human health. The register is maintained by local state administrations.16
41In accordance with the decision of the National Security and Defence Council of Ukraine ‘On Challenges and Threats to the National Security of Ukraine in the Environmental Sphere and Priority Measures for Their Neutralisation’, implemented by the Decree of the President of Ukraine dated 23 March 2021, No 111/2021, natural landfills are classified as areas with a high level of risk for natural ecosystems and public health.17 In order to solve the problem of overcoming the uncontrolled creation of landfills in Ukraine, in 2022, the online ‘Interactive Map of Spontaneous Landfills’ service began its work, where each citizen can indicate the location of a spontaneous landfill known to them. The Ministry of Ecology and Natural Resources of Ukraine ensures the prompt transfer of this information to local authorities responsible for the liquidation of these landfills.18
42One of the ways to ensure the efficiency of household waste processing is to overcome the common practice of using plastic for packaging consumer goods. Following European waste management standards, the Law of Ukraine ‘On Limiting the Circulation of Plastic Bags in the Territory of Ukraine’ was enacted on 1 June 2021. This law aims to reduce plastic bag usage, limiting their distribution for a better environment and landscaping. The Law prohibits the distribution of ultra-thin, thin, and oxo-degradable plastic bags by retail, public catering, and service enterprise facilities. Biodegradable and size-limited bags, valid until 1 January 2023, are the exception, and they are used as the primary packaging for meat, fish, and bulk products. Other plastic packaging failing to meet the requirements must be withdrawn from circulation, and sold at prices not lower than the minimum set by the Cabinet of Ministers of Ukraine. Each package must also be appropriately marked, and the labels ‘bio’, ‘bio-package’, and ‘biodegradable’ are not permitted if they do not meet these requirements. The Law imposes fines for violating legal requirements on the distribution of plastic bags and aims to stimulate the production of biodegradable plastic bags. The Ukrainian Law ‘On Waste Management’ provides for the creation of a National Waste List, serving as the basis for waste accounting, reporting, and permit procedures in the field of waste management. The information contained in the National Waste List is publicly available, which creates opportunities for increasing the effectiveness of public control over the use of orphan waste.
43The Ukrainian Law ‘On Waste Management’ establishes the procedure for the collection, removal, and processing of household wastes, ensures the implementation of their separate collection and recycling, provides requirements for the quality provision of waste management services, and the charging of fees for such services.
44Currently, Ukraine has an obligation to provide separate collection of household wastes, as stipulated in Article 32 of the Waste Law. However, this rule has not been effectively implemented, and almost all waste is sent to landfill.
45For the effectiveness of the mentioned legal norm, it is necessary to implement several educational and administrative-management measures, in particular: the performance of systematic information and explanatory work among the population everywhere to stimulate the organisation of separate collection of waste, the installation and start-up of waste sorting lines, as well as the establishment of waste processing, which is of resource importance. In view of the extremely difficult situation regarding waste management, and the need to resolve the crisis in this area, it is vital to set the right priorities, as is customary in European Union Member States.
46Additionally, the issue of priorities in waste management must be determined and fixed at the legislative level, after which effective state supervision should be established over compliance with legislation in the field of waste management by all local self-government bodies, enterprises, institutions, organisations, and ordinary citizens.
47The difference between the European waste management system and the existing Ukrainian approaches lies precisely in the presence of the economic essence of such a system, which is built on the principles of reducing environmental pollution, striving for waste-free production, responsible business conduct, etc. The Association Agreement between Ukraine and the EU should give Ukraine a significant impetus towards the implementation of a pro-European environmental policy, which will allow for moving away from the concept of ‘pumping’ funds from market operators, and on to the development of an effective waste management system, which will ultimately lead to the improvement of the environmental situation in our country.
48Considering the above, it can be noted that the presence of environmental problems in Ukraine requires an immediate response, and this, in turn, will create a security system for the whole of Europe. Methods for solving the problem of low efficiency of waste management encompass notably development and implementation of measures to prevent waste generation; setting of specific goals in the legislation regarding the amount of waste to be recycled and establishment of economic and tax legal framework for the implementation of waste reuse (the establishment of obligations to process waste and reuse it; increasing the amount of fees for waste disposal; implementation of the ‘polluter pays’ principle).
49The principles of waste management reform in Ukraine should rely on the compliance with the principles of the circular economy; hierarchy of waste management; integrated waste management information system; systematicity and planning and Extended Producer Responsibility (EPR).
50Ukraine has adopted the National Strategy for Waste Management in Ukraine until 2030. It provides for separate measures to prevent the formation of waste. For this purpose, it is planned to develop a network of centres for the introduction of environmentally-friendly industries (technologies) to minimise the volume of waste generation, the adoption of legal acts on the introduction of the eco-design of consumer goods that will function longer, and be more suitable for reuse or disposal, including through processing, and reduce the volume of primary use raw materials.
51The government can also implement economic measures to encourage the reduction of waste generation, such as imposing taxes or banning the production of plastic bags, disposable containers, and utensils, providing incentives for manufacturers of eco-friendly packaging for consumer goods, or offering financial support for innovative solutions in product design and packaging.
52It is recommended that the Waste Management Law in Ukraine contain the following key features:
- introduces a European waste management hierarchy (prevention, followed by reuse, recycling, recovery, and finally disposal);
- implements waste management system planning at the national, regional, and local levels,
- establishes the ‘polluter pays’ principle;
- introduces extended producer responsibility obligating the manufacturer to ensure the complete disposal of the packaging, which obliges the manufacturer to ensure the complete disposal of the packaging placed on the market along with the product;
- introduces a waste management information system designed to simplify accounting and reporting, the implementation of permit procedures in the field of waste management;
- introduces a subsystem of registers containing comprehensive information on the permits and licenses issued, the extended responsibility producers and products, entities engaged in waste processing activities, etc. Access to registers is available to creators and other waste owners, as well as the public;
- establishes a procedure for the collection, removal, and processing of household waste, including separate collection and recycling;
- provides the development of special rules regarding the disposal of waste resulting from the Russian aggression against Ukraine;
- allows the closure of old landfills and elevating the remaining ones to European standards;
- allows the development of conditions for the construction of modern waste recycling infrastructure in Ukraine according to European rules and open borders for investors.
V. Conclusions
53Ukraine’s new Waste Management Law only establishes a framework or guidelines for the new, up-to-date regulation of the waste management system in Ukraine, and is basically a starting point for reform in this field. The adoption of a number of other sectoral laws and bylaw regulations will be necessary in order to complete the waste management reform. The fact that the Waste Management Law becomes effective in the end of 2023, should give regulators and businesses operating in the waste management sector time to prepare to operate under it, and benefit from the advantages of the new legal framework.
54Thus the draft of the developed plan for the post-war recovery of Ukraine (‘Environmental safety’ section) should focus on such priority areas as: reforming state management in the field of environmental protection; climate policy – climate change prevention and adaptation; environmental safety and effective waste management; the balanced use of natural resources in conditions of increased demand and limited opportunities; preservation of natural ecosystems and biological diversity; restoration and development of nature conservation areas, and the post-war objects recovery plan. The Ukrainian Waste Management Law, adopted in 2022, constitutes the necessary regulatory and legal basis for the implementation of European waste management standards in Ukraine. However, in the conditions of Ukraine’s post-war recovery, many practical problems arise in its implementation. It is important for the successful implementation of European waste management standards to carry out large-scale work in order to raise an appropriate level of environmental legal awareness, which will strengthen the understanding of the need for waste sorting, reasonable consumption, etc., among the population of Ukraine.
Notes de bas de page
1 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part [2014] OJ L161/3.
2 Ibid.
3 Resolution adopted by the General Assembly on 25 September 2015. General Assembly of the United Nations: www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_RES_70_1_E.pdf.
4 Stan sfery povodzhennia z pobutovymy vidkhodamy v Ukraini za 2021 rik: www.minregion.gov.ua/napryamki-diyalnosti/zhkh/terretory/stan-sfery-povodzhennya-z-pobutovymy-vidhodamy-v-ukrayini-za-2021-rik/.
5 E. O. Kustovskyi, V. M. Lavrinenko, ‘Porivnialnyi analiz pidkhodiv do povodzhennia z vidkhodamy v Ukraini ta YeS. Innovatsii u sferi povodzhennia z vidkhodamy: dosvid ta praktyka’ in Materialy naukovo-praktychnoi konferentsii (Kyiv, Natsionalnyi Pedahohichnyi Universytet imeni M. P. Drahomanova, 2019): https://enpuir.npu.edu.ua/bitstream/handle/123456789/24454/Innovatsii%20U%20Sferi%20Povodzhennia%20Z%20Vidkhodamy%20Dosvid%20Ta%20Praktyka_2019.pdf;jsessionid=5623AF687DC04D222C37B68600478AA8?sequence=1.
6 Case Giacomelli v Italy (Application no. 59909/00), ECLI:CE:ECHR:2006:1102JUD005990900. See: www.informea.org/sites/default/files/court-decisions/COU-157044.pdf.
7 Pro vidkhody, Zakon Ukrainy vid 5 bereznia 1998 roku: https://zakon.rada.gov.ua/laws/show/187/98-вр#Text.
8 A. Voitsikhovska, O. Kravchenko, O. Melen-Zabramna and M. Pankevych, Krashchi yevropeiski praktyky upravlinnia vidkhodamy (posibnyk) (Lviv Vydavnytstvo Kompaniia «Manuskrypt», 2019) 344.
9 N. O. Korniakova ‘Poniattia vidkhodiv za zakonodavstvom Ukrainy ta Yevropeiskoho Soiuzu: porivnialno-pravovyi analiz’ (2004) 5 Pravo Ukrainy 149–153.
10 V. V. Pikiner ‘Poniattia «vidkhody»: pravovyi, ekonomichnyi ta oblikovyi pidkhody. Problemy teorii ta metodolohii bukhhalterskoho obliku, kontroliu i analizu’ (2012) 3(24) Problemy teoriyi ta metodolohiyi bukhhaltersʹkoho obliku, kontrolyu i analizu 418–23.
11 Y. O. Leheza, O. V. Pushkina, H. V. Iliushchenko and Y. I. Tiuria, ‘Legal regulation of the use of technogenic waste of mining enterprises in Ukraine’ (2021) 6 Naukovyi Visnyk Natsionalnoho Hirnychoho Universytetu 153–57.
12 Directive (EU) 2008/98 of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives [2008] OJ L312/3.
13 On Ensuring Sanitary and Epidemic Safety of the Population: Law of Ukraine by 24.02.1994: https://zakon.rada.gov.ua/laws/show/4004-12?lang=en#Text.
14 Pro zabezpechennia sanitarnoho ta epidemichnoho blahopoluchchia naselennia: Zakon Ukrainy vid 24 liutoho 1994 roku no 4004-XII: https://zakon.rada.gov.ua/laws/show/4004-12#Text.
15 Pro okhoronu navkolyshnoho pryrodnoho seredovyshcha: Zakon Ukrainy vid 25 chervnia 1991 roku no 1264-XII: https://zakon.rada.gov.ua/laws/show/1264-12#Text.
16 Pro zatverdzhennia Poriadku vedennia reiestru mists vydalennia vidkhodiv: Postanova Kabinetu Ministriv Ukrainy vid 3 serpnia 1998 r. no 1216: https://zakon.rada.gov.ua/laws/show/1216-98-п#Text.
17 Pro vyklyky i zahrozy natsionalnii bezpetsi Ukrainy v ekolohichnii sferi ta pershocherhovi zakhody shchodo yikh neitralizatsii: rishennia Rady natsionalnoi bezpeky i oborony Ukrainy […], yake vvedeno u diiu Ukazom Prezydenta Ukrainy vid 23.03.2021 roku no 111/2021: https://zakon.rada.gov.ua/laws/show/n0018525-21#Text.
18 Interaktyvna mapa stykhiinykh smittiezvalyshch. Yedynyi veb-portal orhaniv vykonavchoi vlady Ukrainy: www.kmu.gov.ua/service/zvernennya-pro-stikhiyne-smittezvalishche.
Auteur
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Yuliia Leheza
Professor, Doctor of Law, Dnipro University of Technology, Ukraine
Le texte seul est utilisable sous licence Creative Commons - Attribution - Pas d'Utilisation Commerciale - Pas de Modification 4.0 International - CC BY-NC-ND 4.0. Les autres éléments (illustrations, fichiers annexes importés) sont « Tous droits réservés », sauf mention contraire.
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