The International Comparative Legal Guide to: Environmental Law 2010.

ENVIRONMENTAL POLICY AND ITS ENFORCEMENT 

What is the basis of environmental policy in Poland and which agencies/bodies administer and enforce environmental law? 

Since May 2004 Poland has been a Member State of the European Union (EU). Since the early 1990s Poland undertook great efforts to harmonise its environmental law with the EU law. In most cases the transitory periods, established by the EU Accession Treaty of 2003 regarding the implementation of EU environmental law and policy are determined to the same extent by EU law as environmental law and policy in other EU Member States.

The Polish Constitution of 1997 dedicates a relatively broad space to environmental issues. The Constitution defines protection of the environment guided by the principle of sustainable development as a task of the Polish state, acknowledges environmental protection as a task of the Polish state, acknowledges environmental protection as a valid reason for warranted limitation of constitutional rights and freedoms, and obligates the public authorities to prevent negative effects of environmental degradation on human health. The Constitution also calls upon public authorities to support citizens’ activities dedicated to the protection and improvement of the environment, and obligates everyone to safeguard the environment.

The structure of Polish environmental law is traditionally based o a “moderate holistic” approach. In 1949 the Act on the protection of nature, which determined the basic principles of the environmental policy, identified the authorities responsible for its implementation and established corresponding mechanisms. In 1980 the Act on the protection and development of the environment followed, which was finally replaced by the Act of 27^th April 2001 on Environmental Protection Law (“EPL-Act”). In principle, the EPL-Act determines the general rules and establishes certain general institutions of environmental protection and, in addition, it contains the entire regulation of air pollution control including the protection against noise and electromagnetic fields. In addition, specific matters like waste management, water protection and water management, protection and management of natural resources, protection of nature and animals, ecological product safety, nuclear power, ecological farming, trade in emission rights and greenhouse gas emissions management are regulated in separate acts. Recently, a tendency, probably determined by certain pragmatic considerations, to deviate from this traditional structure can be observed. Matters of general character like e.g. access to environment-related information, public participation in environment matters, environmental impact assessment, eco-management and audit are regulated in separate acts.

Polish environmental law establishes a number of principles of environmental policy. These include the principle that the environment should be protected in a comprehensive manner, the precautionary principle, the principle of preventive action, the “polluter pays” principle, and the principle of integration of environmental policy into other policies. Polish law does not explicitly establish the principle of a high level of protection or the principle that environmental damage should be rectified at source.

Polish environmental law assigns the task of administration and enforcement of environmental law to general profile agencies and bodies at the local and regional levels such as mayors of towns and cities, heads of districts (starosta), the national government’s representatives to regions (wojewoda), to heads of regional self governments (marszałek), and to regional assemblies (sejmik województwa). Beneath these general agencies and bodies, environmental law establishes – as bodies with a specific profile – the Minister of Environmental Protection, the General Director for Environmental Protection, and the regional directors for environmental protection. The Act of 1980 on protection and development of the environment has already created the Environmental Protection Inspectorate, charged with the specific task of monitoring compliance with environmental protection laws. Institutions with a more advisory or supporting character include the National Environmental Protection Council, the commissions for environmental impact assessments, the environmental protection and water management funds, and the National Council for Eco-Management.

What approach do such agencies/bodies take to the enforcement of environmental law? 

Before 1990, a great gap between the ambitions of environmental policy expressed in the environmental laws and the practical ability to implement and enforce these goals persisted. Since 1990, this situation has significantly improved, and a lot has been done to not only adopt EU-compatible standards, but also to effectively implement them. Nevertheless, the agencies and bodies empowered to enforce environmental law do not always have sufficient capabilities; in particular, in the last years a considerable churn of staff has been observed, exerting an inevitable impact on ability to enforce the law.

To what extent are public authorities required to provide environmental-related information to interested persons (including members of the public)? 

Access to environment related information is regulated in a separate Act of 3^rd October 2008 on disclosing information about the environment and its protection, participation of society in environmental protection, and environmental impact assessments (“Environment Information Act”). The Environment Information Act implements, inter alia, Directive 2003/4/EC of the European Parliament and of the Council of 28^th January 2003 on public access to environmental information and the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters. The Environment Information Act supplants corresponding provisions of the Environmental Law which did not entirely comply with the requirements of Council Directive 2003/4/EC.

Art. 74.3 of the Polish Constitution stipulates a constitutional right of everyone to information on the state and protection of the environment; according to art. 81 of the Constitution, this right may be exercised only within the limits established by applicable laws. In addition, art. 61 of the Constitution institutes the citizens’ right to receive information on activities of public government bodies and of persons fulfilling public functions. This right is regulated in further detail by the Act of 8^th October 2001 on access to public information, which extends this right to everyone.

Both sets of regulations may overlap. In most cases, through the operation of the lex posterior rules, the provisions of the Environment Information Act will have priority.

According to the Environment Information Act, every citizen is entitled to information without demonstrating a legal or factual interest. The Act obligates any “administrative bodies” to grant access to environment-relevant information, thus defining the group of obligated entities in a slightly narrower scope than Council Directive 2003/4/EC (as it does not include the President of the Polish Republic, the courts, or advisory and auxiliary bodies).

Administrative bodies are obligated to provide access to such information as is in their possession or which is dedicated to them. The Act covers similar categories of information as Council Directive 2003/3/EC: environment-related information, i.e. information which relates to the state of the elements of the environment, emissions, measures, reports, cost-benefit and other economic analyses, state of human health and safety. The Act – as opposed to the Directive – does not expressively mention contamination of the food chain.

The request for information has to be made in writing; the information may be released in oral, written, visual acoustic, electronic or other form. The information has to be delivered without delay, but as a rule not later than within one month after receipt of the request. The authorities may refuse the request under certain conditions, e.g. if the information concerns statistical data protected by statistical secrecy, is relevant to a pending court case, or constitutes intellectual property or a business secret.

ENVIRONMENTAL PERMITS 

When is an environmental permit required, and may environmental permits be transferred from one person to another? 

Environmental permits in Polish law can be divided into two categories. The first are environmental permits in the strict sense of the term, including permits for release of gases or particles into the air, permits for generation of waste, permits for noise emission, and water law permits. These permits constitute a specific environmental protection mechanism necessary for legal use of the environment within the scope, and by the means, specified therein. These permits were introduced to the Polish legal system with a view to controlling the intensity of environmental impact by entities using the environment.

The second category consists in environmental permits in the broader sense, comprising of- among others – permits for pursuing business activity in the area of recycling or neutralization of waste and gathering and transport of waste or permits for removal, utilization, and neutralization of community waste. The essential purpose of such permits lies in controlling the operation of market mechanisms with respect to activities centring on recycling, neutralization, and utilization of wastes.

The next (statutory) subdivision applicable with respect to environmental permits is that of unitary permits, issued for specific areas of use (e.g. noise emission permits), and integrated permits, with a scope encompassing many different environmental uses. As a general rule, an integrated permit is required for operation of an installation which, given the type and scale of activities involved, may lead to contamination of individual natural elements or of the environment as a whole.

Whatever the category, each environmental permit is issued in the form of an administrative decision at the request of the party concerned. The legal basis for issuing environmental permits is comprised in the EPL-Act and in specific statutes.

Environmental permits are issued to specific entities and extend only to the addressee party named in the permit itself, although art, 190 of the EPL-Act envisages a special procedure for transferring permits onto another party. Under this procedure, the party interested in obtaining legal title in an entire installation the use of which may cause emissions (pollution of the environment) may transfer onto that party of the rights and obligations arising from permits issued for the installation in question. Such transfer is possible only if the acquiring party guarantees due performance of the appurtenant obligations. As with original issue of the permit, the decision to transfer it (or to refuse transfer) is issued as an administrative decision, the difference being that the procedure for transfer is less complex and more expedient.

What rights are there to appeal against the decision of an environmental regulator not to grant an environmental permit or in respect of the conditions contained in an environmental permit? 

The party interested in the issue of an environmental permit by a competent public administrative body, i.e. the applying party, has the right to appeal the decision of the body subject to the general decision concerning an environmental permit may be appealed to a higher body of the public administration (through the body issuing the decision thus challenged). As a general rule, appeals must be lodged within 14 days following service of the decision on the applying party. The body considering the appeal analyses the decision from the perspective of its legality as well as of its viability, i.e. the substantive grounds on which the first-instance body issued it.

Where the applying party is of the opinion that the body issuing the decision did so in contravention of applicable laws, and the appeals body does not rectify this state of affairs, the decision may be challenged before the regional administrative court and then, as a final avenue of recourse, before the Chief Administrative Court. It merits mentioning here that the administrative courts – as opposed to the public administration bodies – do not consider the decision on its merits but, rather, limit their analysis to the decision’s legality.

Is it necessary to conduct environmental audits or environmental impact assessments for particularly polluting industries or other installations/projects? 

The Polish legal system regulates the legal duty of carrying out the environmental impact assessment procedure first and foremost in the Environmental Information Act. The Environmental Information Act provides for two different types of environmental impact assessment procedures – a strategic environmental impact assessment required in the process of developing e.g. zoning and regional development plans, politics, strategies, plans or programmes in the fields of industries, energy, transport, telecommunication, water management, waste management, forestry, fishery, tourism, etc. and on the other hand an environmental impact assessment related to specific projects which always have or may have a significant impact on the environment. An Ordinance adopted by the Council of Ministers determines numerous categories of industrial and other installations and projects which are considered as potentially having a significant impact on the environment. In addition, art. 72 of the Environmental Information Act enumerates permits, licensing and similar decisions (e.g. construction permits, mining concessions, water use permits, decisions permitting execution of road works), which the competent authority may issue only after having obtained a decision on environmental conditions. Such decision on environmental conditions is issued after an environmental impact assessment has been performed.

The environmental impact assessment comprises, first and foremost, analysis and evaluation of the proposed project’s direct and indirect influence on the environment, on human health and living conditions, on physical assets, on the historical heritage, and on accessibility of fossil resources. Means of preventing or limiting negative impact of the project upon the environment are also considered. Analysis is conducted in reference to data presented by the applying party and to other information on the project and its parameters. The environmental impact assessment procedure furthermore requires involvement of the community; in practice, this means that all the documentation and descriptions of the legal status are disclosed to the general public, whose members than have 21 days to submit applications or comments to the planned project. Polish law does not mandate performance of environmental due diligence, yet the EPL-Act imposes numerous emission monitoring and control duties upon entities utilizing installations which are a source of emissions. So, while environmental due diligence is not compulsory, it is often resorted to by the business itself or by its prospective purchaser as a useful tool for assessing the operation’s compliance with environmental protections laws.

The Act of 12^th March 2004 on the national eco-management and audit system (EMAS) created a national EMAS. Participation in the EMAS is voluntary.

What enforcement power do environmental regulators have in connection with the violation of permits? 

The institution charged with verifying abidance by environmental protection laws and by the conditions of permits and decisions issued by appropriate bodies is the Environmental Protection Inspectorate, whose scope of authority, tasks, and character are regulated first and foremost by the Act of 20^th July 1991 on the Environmental Protection Inspectorate. Under this Act, the Environmental Protection Inspectorate operates through its officers, namely the Environmental Protection Inspectorate Director and the regional environmental protection inspectors. Within their ambit, the Environmental Protection Inspectorate bodies may perform controlling measures, issue post-audit injunctions, issue administrative decisions, and initiate enforcement (where a duty to that effect arises from applicable laws or from an administrative decision). In environmental offence cases, the Environmental Protection Inspectorate enjoys public prosecution powers; also, where it is found that the commissions or omissions of an organizational unit head, an employee, or of another natural person amount to an environmental offence, the Environmental Protection Inspectorate bodies must address a notice of commission of a crime to the public prosecution authorities, enclosing with it evidence substantiating their suspicions.

WASTE 

How is waste defined and do certain categories of waste involve additional duties or controls? 

According to the Polish Waste Law of 27^th April 2001 (“Waste Act”), waste is constituted in any substance or object falling under any category of waste referred to in Appendix 1 of which the holder disposes, intends to dispose, or shall dispose. In other words, the status of waste turns on ”disposal”, n matter whether factual, intended, or mandated.

The definition of waste in Polish law does not refer to characteristics of any substances or objects, but to a pattern described in Appendix 1, which contains a list of waste categories. This list of waste categories has an open character, its last item envisaging any and all substances and objects not accounted for in the previous categories (for example, from service activities or renovation). Some categories of waste entail additional duties, in particular hazardous or medical waste. Waste including dangerous substances such as asbestos, PCBs, oils or batteries also involves additional control.

To what extent is a producer of waste allowed to store and/or dispose of it on the site where it was produced? 

This question is regulated directly by art.9 of the Waste Act, which provides that waste shall be subject in the first order of sequence to recycling or neutralization at the place of generation. Waste which cannot be recycled or neutralized on site shall be transferred to the nearest place accommodating such a process.

Storage of waste is allowed as a rule only on a property to which its holder holds a legal title. Waste designated for recycling or neutralization may be stored where required by technical or organizational processes for not more than three years. Waste designated for disposal may be stored for not more than one year, only for the purpose of collecting an appropriate amount for transporting to a waste landfill site. The place and manner of waste storage are specified in diverse administrative acts, such as integrated permits, decisions approving dangerous waste management programmes, or register entries.

Do producers of waste retain any residual liability in respect of the waste where they have transferred it to another person for disposal/treatment off-site (e.g. if the transferee/ultimate disposer goes bankrupt/disappears)? 

Waste producers may commission waste management to other holders of waste provided that such an entity holds the requisite permit for waste management activities. Where waste is transferred to the next entity holding an appropriate permit (e.g. for collection, recycling, or neutralization of waste), responsibility for management of waste passes to this person.

To what extent do waste producers have obligations regarding the take-back and recovery of their waste? 

This question is regulated directly by art. 9 of the Waste Act, which provides that waste shall be subject in the first order of sequence to recycling or neutralization at the place of generation. Waste which can not be recycled or neutralized on site shall be transferred to the nearest place accommodating such a process.

Storage of waste is allowed as a rule only on a property to which its holder holds a legal title. Waste designated for recycling or neutralization may be stored where required by technical or organizational processes for not more than three years. Waste designated for disposal may be stored for not more than one year, only for the purpose of collecting an appropriate amount for transporting to a waste landfill site. The place and manner of waste storage are specified in diverse administrative acts, such as integrated permits, decisions approving dangerous waste management programmes. Or register entries.

Do producers of waste retain an residual liability in respect of the waste where they have transferred it to another person for disposal/treatment off-site (e.g. if the transferee/ultimate disposer goes bankrupt/disappears)? 

Waste producers may commission waste management to other holders of waste provided that such an entity holds the requisite permit for waste management activities. Where waste is transferred to the next entity holding an appropriate permit (e.g. for collection, recycling, or neutralization of waste), responsibility for management of waste passes to this person.

To what extent do waste producers have obligations regarding the take-back and recovery of their waste? 

Waste producers are obligated to apply means of production and service provision which prevent or minimize waste generation and, moreover, limit negative impact on the environment and danger to human life and limb. Manufacturers and importers of certain products (e.g. various packaging, batteries, oils or tyres) have the obligation to ensure a certain level of recycling for such products, as specified in Appendices to the Act of 11^thMay 2001 on certain waste management obligations of entrepreneurs and on payment of product fees. This obligation can be fulfilled individually by manufacturers or importers, or by special recycling operations.

Similar obligations are laid down in the Act of 20^th January 2005 on recycling of end-of-life vehicles, the Act of 29^th July 2005 on waste electrical and electronic equipment and the Act of 24^th April 2009 on batteries and accumulators. For example, importers of electrical and electronic equipment designed for households are obligated to arrange and to finance receipt from collection points of discarded equipment as well as conversion, recycling and neutralisation of discarded equipment from households. The Act on batteries and accumulators imposes similar obligations on those who place batteries or accumulators on the market for the first time.

LIABILITIES 

What types of liabilities can arise where there is a breach of environmental laws and/or permits, and what defences are typically available? 

Breach of the environmental protection laws or of the terms of permits/administrative decisions may give rise to three types of liability: civil; administrative; and criminal.

Civil liability for breach of environmental protection laws is regulated first and foremost by the Polish Civil Code and, on a more detailed level, by statutes such as the EPL-Act or the Act of 16^th April 2004 on protection of nature (“Nature Protection Act”).

The most important provision of the Civil Code from the perspective of environmental protection is art. 435, paragraph 1, which institutes liability of entities operating in their own name a business enterprise or facility powered by natural forces for damage caused by such enterprise. It merits pointing out that this provision institutes strict liability, with no need to prove culpability of the entity operating the business.

The scope of this general rule’s application has been expanded by more specific laws to where it applies also to enterprises which do not rely on natural power, but are classified as “increased risk” or “high risk” (art. 324 of the EPL-Act).

Administrative liability for breach of environmental protection laws is regulated by the EPL-Act, the Waste Act, the Water Law Act, and by a number of other statutes. In general, administrative liability does not depend upon deliberate fault of the party concerned – the fact that a situation described in the statue arose constitutes sufficient grounds for liability. Administrative proceedings may result in financial sanctions (e.g. fines, increased charges) for the party in breach of environmental protection laws, in a injunction ordering cessation of activities, or in revocation of the permit for the activity in question (or in delimiting its scope). The regional environmental protection inspector may also proscribe production, importation, or introduction to trade of products which do not comply with environmental protection rules (art. 370 of the EPL-Act).

Art. 262 of the EPL-Act provides for enjoining an entity using the natural environment to reduce its impact on the environment or to restore the environment to its appropriate conditions. An injunction to this effect may be issued for an entity which exerts a negative impact on the environment – there is no need to prove that such negative impact is culpable or illegal. The Act of 13^th April 2007 on prevention of environmental damage and its remediation provides for additional measures which may be imposed on entities actually or potentially damaging the environment.

Criminal liability for crimes against the environment is rooted first and foremost in Chapter XXII of the Polish Criminal Code, and also in a variety of statutes – the Nature Protection Act, the Water Law, the Act of 21^st August 1997 on protection of animals, and many others.

Can an operator be liable for environmental damage notwithstanding that the polluting activity is operated within permit limits? 

Under art. 325 of the EPL-Act, an entity pursuing operations on the basis of an administrative decision and within such decision’s bounds is still liable for damage occasioned through its impact on the environment. In other words, operation on the basis of an administrative decision does not exempt a party from liability for attendant damage.

Can directors and officers of corporations attract personal liabilities for environmental wrongdoing, and to what extent may they get insurance or rely on other indemnity protection in respect of such liabilities? 

The EPL-Act does not provide for direct, personal (civil) liability of directors or management board members for environmental damage occurring due to a business enterprise’s activities.

For members of a company’s management board working on the basis of employment contracts, personal liability is essentially ruled out in that, in accordance with the Polish Labour Code, liability for damages will attach to the employing enterprise, and any claim for indemnification extending to the enterprise (employer) vis-à-vis the employee will be limited, if that. The Commercial Companies Code, meanwhile, provides for liability of management board members for damage caused to the company. Apart from that, a business enterprise may take out third party liability insurance which also covers violation of environmental protection laws; insurance against criminal liability for environmental law offences, meanwhile, is impossible.

What are the different implications from an environmental liability perspective of a share sale on the one hand and an asset purchase on the other? 

In a share purchase agreement, the party selling shares in an enterprise is liable only for any legal defects of the shares; in other words, the seller’s warranty extends to the legal status of the shares (the shares should validly exist and be free of third party rights), not to the state of the enterprise as such. Of course, the parties to a contract may extend liability of the seller also to the legal state of the enterprise. The purchaser of shares becomes the owner of the enterprise / company, complete with all its liabilities. Neither Polish legal doctrine nor judicial practice provides for holding a shareholder in a company personally responsible for that company’s liabilities; Polish judicial practice does not provide for “piercing the corporate veil”, as practiced in certain other European jurisdictions.

Respective liability of the seller and the purchaser is apportioned differently in a contract for sale of a business enterprise. Art. 55⁴ of the Polish Civil Code provides that the purchaser of a business is jointly and severally liable with the seller for liabilities associated with management of the enterprise unless, at the time of purchase, the purchaser was not aware of such liabilities even though it exercised due care and skill. Liability of the purchaser is limited to the value of the enterprise as at the day of its purchase. This liability may not be contractually excluded or limited unless the creditors have consented to such exclusion/limitation.

To what extent may lenders be liable for environmental wrongdoing and/or remediation costs? 

Polish law does not apply any mechanism for holding a lender or financing entity liable for damage occasioned by the borrower. In like spirit, the entity financing any given project is under no obligation to ensure that the project does not cause environmental pollution.

CONTAMINATED LAND 

What is the approach to liability for contamination (including historic contamination) of soil or groundwater? 

At present, liability for contamination of soil or groundwater is regulated by the Act of 13^th April 2007 on prevention of environmental damage and its remediation, which implements Directive 2004/35/CE of the European Parliament and of the Council of 21^stApril 2004 on environmental liability with regard to the prevention and remedying of environmental damage.

The Act on prevention of environmental damage and its remediation defines as damage to waters changes which have a significant negative impact on the ecological or chemical state of water or its quantity, and as damage to soil – its pollution, in particular if it endangers human health. Contamination of soil or groundwater will constitute damage to the environment within the meaning of the Act, in particular, if the quality standard established by the Minister of Environmental Protection are not met.

The Act determines three different categories of potentially liable persons: (1) users of the environment conducting activity which creates a risk of damage to the environment (activities defined in the Act and requiring, in most cases, a specific permit); (2) users of the environment whose activity relates to protected species or protected habitats; and (3) land owners (or persons having a perpetual usufruct right in the land). The liability of the first category is strict, i.e. does not require an element of fault. Liability of the second category does require fault. Land owners are responsible under the condition that the damage occurred with their consent or with their knowledge, unless they have notified the risk or the damage to the environment immediately after becoming aware of it.

The Act does not apply to “historic contaminations”, i.e. contaminations of groundwater which existed before 30^th April 2007 or which result from activity terminated before 30^thApril 2007 or soil contamination caused before 30^th April 2007. In such cases, the previous rules established by the Environmental Protection Law Act will apply. According to these rules, the owner (or perpetual usufruct holder) of the contaminated land is generally obligated to carry out clean-up measures, regardless of whether the owner had caused the contamination or not. The landowner, however, is not liable if it can prove that the contamination was caused by an identified third party after the landowner had taken over the land. According to these rules, in certain cases the regional director for environmental protection conducts the clean-up measures while the landowner or the third party is obliged to cover the cost of these measures.

How is liability allocated where more than one person is responsible for the contamination? 

The Act on prevention of environmental damage and its remediation establishes the principle of joint and several liability in cases where more than one person is responsible for the contamination. If the contamination was caused with the landowner’s consent or knowledge, the landowner is jointly and severally liable together with the environment user causing the damage. In the case of “historic contaminations”, meanwhile, the landowner is jointly and severally liable with the polluter, provided the pollution happened with the landowner’s consent or knowledge.

If a programme of environmental remediation is ‘agreed’ with an environmental regulator can the regulator come back and require additional works or can a third party challenge the agreement? 

The Act on the prevention of damages to the environment provides for a specific procedure for the setting of an agreement regarding the remediation of an environmental damage, e.g. the clean-up of a soil contamination. Following an application of the person obliged to carry out remediation measures this person and the regulator agree on the terms of such measures (state, to which the damaged environmental shall be returned; scope and manner of the measures; time frame for the start and for the completion of the measures). The regulator shall fix the agreed programme in the form of an administrative decision. The regulator may require additional works and a third party may challenge such administrative decision according to the general rules of administrative law. Additional works may be demanded in case of extraordinary circumstances, e.g. if the decision was based on wrong information or the “programme” was not fulfilled, etc. Third parties may challenge such decision under the condition that their legal interests are affected.

Does a person have a private right of action to seek contribution from a previous owner or occupier of contaminated land when that owner caused, in whole or in part, contamination; and to what extent is it possible for a polluter to transfer the risk of contaminated land liability to a purchaser? 

Eventual regress or contribution claims against previous owners or occupiers who caused the pollution are subject to general civil law, in particular torts law. Direct contractual claims of the present owner against the seller, as a rule, are excluded, if the purchaser was aware of the condition of the land. In practice, quite often purchase contracts exclude or limit the seller’s liability for soil contaminations.

It is not possible to transfer the administrative liability for land contaminations by contract between polluter and purchaser to the purchaser. The polluter and the purchaser, however, can agree about a transfer of the economic risk, e.g. by establishing a contractual obligation of the purchaser to indemnify the seller for the cost of clean-up measures which the seller has to perform due to administrative law.

Does the government have authority to obtain from a polluter, monetary damages for aesthetic harms to public assets, e.g., rivers? 

The EPL-Act entitles the state treasury, entities of local self-administration and environmental organizations to claim compensation for damages to the environment as a public asset. In this context the law does not differentiate between aesthetic harms and other damages. Thus, these provisions theoretically apply also in situations where the harm is of purely aesthetic character. In principle, the polluter is obliged to return the damaged item to its previous condition. If a third part, e.g. a governmental agency, has remedied the damage to the environment, it can demand the return of the justified cost. Thus, the law does not entitle the government to obtain monetary damages, unless in the form of reimbursement of the appropriate cost of eventual restoration measures.

The possibility of monetary damages regardless of the cost of eventual restoration measures exists under the Nature Protection Act. In case of certain violations of protected objects the court can impose in addition to a penalty of fine an obligation on the ”polluter” to pay a compensation of up to 10,00 PLN to a nature protection organization or to the regional environment protection and water management fund, if the restitution of the damaged item is impossible.

POWERS OF REGULATORS 

What powers do environmental regulators have to require production of documents, take samples, conduct site inspections, interview employees, etc.? 

Issues relating to control and enforcement are regulated by the Act on the Environmental Protection Inspectorate and by the EPL-Act. The following authorities are charged with controlling compliance with the environmental protection laws: the head of the regional assembly, the starosta and the wójt (local self government officials), the mayor, the Chief Environmental Protection Inspector, and regional environmental protection inspectors. These authorities may authorize their employees to conduct control work. Control and verification powers may either extend to all the above authorities on a blanket basis, or only to some of them. The former category of powers includes the right of round-the-clock access to properties where business activity is conducted and access between 6:00 and 22:00 hours to other properties, requesting oral or written information, summoning and questioning individuals insofar as necessary to establish the factual circumstances, requesting documents and any data relevant to the issues controlled, conducting studies/research, and other necessary control and verification work. As for the latter category, the Chief Environmental Protection Inspector, the regional environmental protection inspectors, and their authorized employees may access vehicles on a round-the-clock basis, collect samples, assess the technologies and installation and equipment utilization methods employed by the audited entities, and request production of documents necessary for the levying of a fine.

REPORTING / DISCLOSURE OBLIAGATIONS 

If pollution is found on a site, or discovered to be migrating off-site, must it be disclosed to an environmental regulator or potentially affected third parties? 

Under the EPL-Act, any person noticing a malfunction or an event which may give rise to a threat to life and limb or to the environment, either forthwith or with delayed effect, must promptly alert any persons present within the threatened area as well as one of the following three bodies: the national fire brigade; the national police force; or the mayor. For these purposes, the threatened area will comprise the zone which may be affected by the adverse effects produced by a serious malfunction.

Upon receiving notice of such an event, the relevant authorities shall take measures geared at rectifying the malfunction and its effects.

In the event of an industrial malfunction, entities operating installations classified as ”increased risk” or “high risk” must furthermore promptly notify the appropriate unit of the national fire brigade and the regional environmental protection inspector as well as providing information about the event and the rescue/cleanup measures taken.

The Act on prevention of environmental damage and its remediation institutes another reporting duty: where there arises a direct threat of environmental damage, any person using the environment must promptly embark upon preventive measures and, if such measures produce no effect, notify an environmental protection body and the regional environmental protection inspector.

When and under what circumstances does a person have an affirmative obligation to investigate land for contamination? 

Polish law does not include any general rule imposing upon owners/users of real property an obligation to analyse the quality of topsoil or ground. That said, the law does lay down certain rules for specific parties. Under the EPL-Act, assessment of topsoil and land quality and observation of changes is conducted as part of the environmental monitoring activities pursued by the state, and the starosta (local self government official) is charged with periodic topsoil and land analysis

State environmental monitoring includes gathering of data from environmental measurements which certain entities must carry our pursuant to applicable laws or to decisions issued with respect to them. A party maintaining an installation as well as that using the installation must conduct periodic checks of emission levels; where these parties release into the environment large quantities of substances or energy from the installation, releases must be monitored on an ongoing basis. The entity managing a road, railway line, light railway line, airport, or port must conduct periodic measurements of the substance and/or energy levels released into the environment in association with use of such facilities; again, in the case of large releases, measurement must proceed on a constant basis.

In both cases, the environmental protection authorities may obligate specific entities (by way of a decision) to conduct measurements of a scope greater than that defined in the statute within a set deadline. Such a decision may be issued, in the first case, if the emission standards were exceeded and, in the second, if environmental quality standards were not complied with. As it issues permission for release of substances or energy into the environment, the environmental protection body may define the scope of emission measurements.

The Act on prevention of environmental damage and its remediation empowers the environmental protection authority to issue decisions obligating entities using the environment and conducting activity which threatens environmental damage which constitutes a direct cause of threatened risk to measure the concentration of specific substances in the topsoil or in the ground.

To what extent is it necessary to disclose environmental problems, e.g. by a seller to a prospective purchaser in the context of merger and/or takeover transactions? 

Polish environmental protection laws do not mandate disclosure of information on non-compliance with environmental protection laws in the context of merger or take-over transactions. The commercial and civil laws (which address specific aspects of such transactions) likewise d not institute a direct duty to this effect. Recourse may be had to provisions of the Polish Civil Code governing material defects; such a defect arises where the thing sold is tainted by a defect which reduces its value or utility (for the purpose specified in the contract or arising from the circumstances or the thing’s designated use), or where the thing does not have properties warranted by the seller. If non-compliance with the environmental protection rules affects due performance of obligations under the contract, the seller may be liable for withholding the relevant information (…)

The International Comparative Legal Guide to: Environmental Law 2010.