First Ukrainian lawsuit on inappropriate waste management

In Poltava since July, 25 there is a lawsuit in progress against town council concerning waste management within the town. The suit is brought by NGO “Ekoltava” and ecoactivist Serhiy Antonenko. We believe that in Poltava there arranged no proper collection, sorting and utilization of wastes, and town leaders neglect obligations vested by the law “On wastes”.

The civil suit of the kind is sowewhat precedential in Ukraine. The financial support for advocational campaign is available online at “Zmist”. The collection of funds for the project “Invest in sorting in Poltava” will last for 1 month.

We publish the claim for general familiarization and provide resolutions on inspection of potable water for nitrates accomplished within 2014–2018 and issued by Poltava town&county independent subdepartment of laboratory examinations under state institution «Poltava regional laboratory center of Ukrainian Ministry of Health». They prove that samples of potable water taken on the verge of sanitary protective zone between village Makukhivka, Poltavs’ky district, and the landfill do not comply with the state sanitary regulations and norms 2.2.4-171-10 «Sanitary specifications for potability» because of nitrates concentration, and thus, it is strongly recommended that pregnant women and children under three years old do not to use this water for drinking.

ADMINISTRATIVE SUIT

on declaring the inactivity of local self-government bodies illegal

and binding to perform actions

Under paragraph 2, article 1, Law of Ukraine «On wastes» dated March 5, 1998, №187/98-ВР, wastes are substances, materials, and objects emerged during manufacturing or consumption, and also goods (ware) partly or completely devoid of consumer specifications and thus non-usable within the site of their emergence or revealing, and so subjected to regular, intentional, or forced removal by their owner via utilization or elimination.

Under paragraph 23, article 1, Law of Ukraine «On wastes», municipal wastes are those emerged as a result of human life and activity in residential and non-residential buildings (solid, large-sized, construction, liquid wastes, except wastes generated by enterprises) and not used within the spot where they are stockpiled;

Under paragraph 24, article 1, Law of Ukraine «On wastes», solid wastes are remnants of substances, materials, objects, items, goods, ware, which cannot be further used according to intended purpose;

The term «wastes» is used in other enactments as well.

For instance, the Decree of Ukrainian Cabinet of Ministers dated May 25, 2011, №541 «On introduction of changes to the Rules of providing services of municipal wastes removal» gives the following definition:

Construction wastes – remnants of substances, materials, objects, items emerged as a result of rebuilding, or corrective maintenance, or resiting, or re-equipment, or outbuilding, or else done in private house, or private apartment, or public building;

Order №145 by Ukrainian Ministry of Health, dated March 17, 2011, «On approvement of State sanitary norms and regulations of maintenance of inhabited areas», gives the following term:

Organic share of municipal wastes – remnants of municipal wastes (namely, food, paper, fabrics etc.) that fully consist of organic substances and thus endure biological dissociation (decay);

Article 1, Law of Ukraine «On wastes» defines the term «utilization of wastes» as «using wastes as secondary material or energy resource;

On October 2, 2012, there took effect the Law of Ukraine «On introduction of changes to some Ukrainian legislative acts concerning the improvement of legal regulation of waste management and more strict responsibility in the field of waste management». Due to this enactment the Law of Ukraine «On wastes» has acquired an article 32, “Means of abridgement and prevention of negative impact of wastes”, that prohibits to bury unrecycled (unprocessed) municipal wastes since January 1, 2018.

Under paragraph two and three, article 35-1, “Owners, or tenants, or users including leaseholders, of points of municipal wastes generation, and plots of land conclude contracts with the legal entity defined a service provider of municipal wastes removal, effect payments for these services and arrange separated collection of solid municipal wastes.

Collection and removal of municipal wastes within the definite territory is carried out by legal entity that is authorized by local self-government body on the competitive basis defined by Ukrainian Cabinet of Ministers and does the removal with specially equipped vehicles”.

Under the Law of Ukraine «On wastes», paragraph 6, article 33, bans mixing or burial of wastes that can be subjected to recycling within Ukraine according to respective technology. This very article obliges Poltava town council to arrange separate collection and utilization of recyclable wastes as far back as since 1998.

Under paragraph 3, «Regulations on providing services of municipal waste removal», approved by decree of Ukrainian Cabinet of Ministers dated December 10, 2008, №1070, owners or maintainers of residential buildings and ground sites conclude contracts with the person defined a service provider of municipal wastes removal and arrange separated collection of municipal wastes.

Under paragraph 1.5, state construction norms В.2.4-2-2005 Refuse dumps for solid municipal wastes. General considerations on planning, refuse dumps for solid municipal wastes take wastes eligible for recycling (on condition there is a technology for recycling).

Under paragraph 55, article 26, Law of Ukraine «On local self-government in Ukraine», only local councils are authorized to appoint on a competitive basis legal entities that provide services of waste collection and transportation by specially equipped vehicles.

Therefore, the obligation to arrange collection and transportation of municipal wastes is vested upon local self-government bodies.

At present, Poltava town council blatantly violates its obligations, since neglection of the law «On wastes» takes place, namely, article 32, paragraph two and three in article 35-1, paragraph six in article 33, concerning the norms of waste management like:

• Municipal wastes;
• Organic share of municipal wastes;
• Construction wastes;
• Solid wastes.

The legislation regulates the process of separated collection, sorting and utilization of recyclable wastes with the following enactments.

Under paragraph 3, «Regulations on providing services of municipal waste removal» approved by decree of Ukrainian Cabinet of Ministers dated December 10, 2008, №1070 (hereinafter Inactment), owners or maintainers of residential buildings and ground sites conclude contracts with the person defined a service provider of municipal wastes removal and arrange separated collection of municipal wastes. Contract on provision of services is concluded upon the pattern of contract (hereinafter Contract) given in Appendix 1.

Under paragraph 4 of Contract the removal of solid wastes in containers requires good containers, particularly for separate collection of municipal wastes like: plastic wastes, glass, paper. These wastes are removed by service provider in containers.

Under paragraph 10, Annex 1, Decree of Ukrainian Cabinet of Ministers dated November 16, 2011, №1173, the presence of specially equipped vehicles for collection and removal of wastes or using it as a recyclable stuff is among the demands that allow participation in a competition for providing services of municipal wastes removal.

Under paragraph 4, article 7, Annex №2, Enactment of Ukrainian Cabinet of Ministries dated November 16, 2011, №1173, to regular contract for providing services of municipal wastes removal within the definite area – the removal, separate collection, sorting and utilization or recycling belongs to obligations of service provider.

Under article 26, Law of Ukraine «On local self-government in Ukraine», the exclusive competence of local councils embraces:

• legal permission to place new refuse dumps within the territory of village, urban settlement, city, on condition that the sphere of their environmental impact embraces the respective area according to norms in effect;
• selection, on competitive basis, of legal entities that provide within the defined area collection and transportation of municipal wastes with specially equipped vehicles;
• solutions in the sphere of hazardous wastes management according to legislation.

Under articles 30 and 33, Law of Ukraine « On local self-government in Ukraine», the competence of executive bodies of village, urban settlement, and town councils embraces:

• collection, transportation, utilization and sterilization of municipal wastes, sterilization and burial of animal corpses;
• approval of sanitary cleaning schemes and implementation of separate collection of municipal wastes;
• approval of norms for services of municipal wastes removal;
• control of keeping to land and environmental legislation, land and natural resources use and protection, of state and local importance as well, renovation of forests;
• fixing the territory for wastes in compliance with the legislation;
• control of entrepreneurs that work in the field of waste management;
• control of keeping to demands in municipal and industrial waste management by legal and physical entities; disposition of cases on administrative transgressions of the law or transferring them to other state bodies in case the legislation on wastes is violated.

Article 21, Law of Ukraine «On wastes» defines the powers of local self-government bodies in the field of waste management. Among the rest, the mentioned article says that local self-government bodies must provide:

• keeping to the legislation on wastes;
• development and approval of schemes of sanitary cleaning of urban settlements;
• collection and elimination of municipal wastes;
• approval of local and regional programs of waste management and control under their fulfillment;
• measures to motivate entrepreneurs related to waste management;
• solutions concerning waste management facilities within the area;
• control of reasonable use and safe management of wastes within the area;
• elimination of unauthorized and uncontrolled waste dumps;
• clarification of legislation on wastes, providing conditions for involving more people in collecting certain kinds of wastes and taking it to recycling;
• agreement to locate objects for storaging and burial of wastes within the village, urban settlement, town;
• agreements to construct or reconstruct the waste management facility within the respective area of urban settlement or town;
• agreement to exploit hazardous waste management facility within the respective area of urban settlement or town;
• control over meeting the requirements in the field of industrial and municipal waste management by legal and physical entities in compliance with legislation.

Therefore, virtually all functions related to waste management, including hazardous and municipal wastes, belong to the competence of local self-government bodies.

The mentioned excerpts from legislation in force prove that the issue of separated collection, sorting and further utilization or recycling (procession) of wastes is adequately regulated by the law, but the defendant neglects obligations concerning separated collection, sorting and further utilization or recycling of wastes.

At present, solid wastes are taken from Poltava to the landfill in Makukhivka, which is no refuse dump as stated in the respond dated March 19, 2018 №0342 from communal vehicle enterprise 1628 to request №А01-06-02.2-04/21-1і dated March 3, 2018.

The evidence of considerable environmental harm, violation of article 50 Constitution of Ukraine, my rights and the rights of other citizens is resolutions on inspection of potable water for nitrates accomplished within 2014–2018 and issued by Poltava town&county independent subdepartment of laboratory examinations under state institution «Poltava regional laboratory center of Ukrainian Ministry of Health». They prove that samples of potable water taken on the verge of sanitary protective zone between village Makukhivka, Poltavs’ky district, and the landfill do not comply with the state sanitary regulations and norms 2.2.4-171-10 «Sanitary specifications for potability» because of nitrates concentration, and thus, it is strongly recommended that pregnant women and children under three years old do not to use this water for drinking.

The deputy of Poltava town council filed a request to the head of state ecological inspectorate in Poltavs’ka region, in order to obtain a copy of testing certificates and provisions issued against the responsible persons after scheduled and unscheduled check-outs of the landfill in Makukhivka carried out since 2014, and filed a request to the head of communal vehicle enterprise 1628 in order to obtain certified copy of the project and registration certificate of the site of waste elimination, that is, landfill in Makukhivka. No single document was received in response.

According to response dated March 19, 2018, №0342 by communal vehicle enterprise 1628 to request №А01-06-02.2-04/21-1і dated March 3, 2018, «Poltava communal vehicle enterprise 1628 does not carry out burial, but places solid municipal wastes within Poltava town dump and prospects their further recycling and sorting». Such procession of wastes is not stipulated by above mentioned enactments that regulate waste management.

The response dated June 6, 2018, №0695 from the head of Poltava communal vehicle enterprise 1628, Zabyshny V.V., to request from deputy of Poltava town council Butko Serhiy Serhiyovych №48 dated June 1, 2018, claims: «On consideration of deputy request we inform that Poltava communal vehicle enterprise does not own any property in village Makukhivka,..», that is, communal vehicle enterprise 1628 has no reasons to bury solid municipal wastes, organic share of domestic wastes and construction wastes. In turn, operation of landfill in Makukhivka without arranged process of separated collection, sorting and further utilization or recycling (procession) of wastes is crude violation of the Law of Ukraine «On wastes», namely article 32 and paragraph 6 of article 33.

Therefore, inactivity of Poltava town council in the issue of establishment of separated collection, sorting and further utilization or recycling (procession) of wastes in Poltava violates the right of local dwellers, citizens of Ukraine, for safe natural environment for their life and health, guaranteed by paragraph “а”, article 9, Law of Ukraine «On protection of natural environment».

Under article 16, Constitution of Ukraine, the state is obliged to provide environmental safety and support ecological balance within Ukraine, preserve gene pool of Ukrainian nation.

Under article 50, Constitution of Ukraine, every human has the right for safe environment for their life and health and for reimbursement of harm brought by violation of this right.

Under article 55, Constitution of Ukraine, every human has guaranteed right to litigate resolutions, actions or inactivity of governmental authorities, local self-government bodies, functionaries and officials.

Under article 66, Constitution of Ukraine, every human is obliged to keep from harming nature, and cultural legacy, and reimburse caused damage.

In consideration of all stated above, the illegal inactivity of Poltava town council brings considerable harm to environment, which in turn blatantly violates article 50 of Constitution of Ukraine, that guarantees safe environment for life and health and reimbursement of harm brought by violation of this right.

Taking into consideration the introduced legislative norms and proved illegality of defendant’s inactivity, the environment is severely harmed and thus, article 50 of Constitution of Ukraine is blatantly violated, as well as the rights of plaintiffs as representatives of local hromada.

The bodies of public administration fulfill their powers, defined by legislation, within the respective legal discretion, as appears from clauses of paragraph two, article 19, Constitution of Ukraine.

Discretionary powers are to be interpreted as powers to act deliberately within the legislation, confered to government body or official. In particular, discretionary powers allow the party in charge to stick to alternative legitimate decision.

Discretionary powers are rights and obligations of local and regional authorities as well, and those of persons from publicity empowered to act in the name of the state or local self-government body, who are able to partly or fully explain the meaning and describe the image of approved solutions. In certain situations these entities may also choose from solutions listed in enactments or similar documents.

Under Guidelines of EU Council Committee N 11(80)2 on fulfillment of discretionary powers by administrative authority bodies, approved by Council Committee on March 11, 1980, on counsel 316, discretionary powers are to be interpreted as powers fulfilled somewhat deliberately by administrative body that makes a decision, that is, the possibility to choose from among several legally acceptable solutions the one regarded as the best in given conditions.

It means that the body chooses the solution which is the best in given conditions and protects or restores the violated right.

Yet in given conditions Poltava town council does not «choose from among legally acceptable solutions», and so, does not act within discretionary powers, but commits illegal inactivity, though, as local self-government body, it is imperatively obliged by the law to collect and utilize wastes.

Under paragraph 3 clause 10.3, decree of Supreme administrative court plenum “On judicial decision in administrative suit” dated May 20, 2013, № 7, the court may resolute to oblige the defendant to definite solutions, unless the entity approves a solution on its own in compliance with the law.

For instance, under part one article 5, Ukrainian Code of administrative legal proceedings, a person has the right to appeal to court, once a person believes that entity of powers violates person’s rights, liberties or interests by approved solutions, activity or inactivity.

Under regulations of clause 4 part 2 article 245, Ukrainian Code of administrative legal proceedings, once the claim is satisfied the court may oblige the defendant to fulfill certain actions.

On analysis of mentioned excerpts from the Code, one may resume that legislation allows the court to oblige entity of powers to approve solutions or fulfill certain actions, in case it is shown that claimant’s rights have been violated.

Satisfaction of complaint concerning Poltava town council’s obligation to fulfill the duties vested upon it by the law, that is, launch separated collection, sorting and further utilization or recycling (procession) of wastes, is a legal guarantee that the dispute between the parties is ultimately settled.

Article 382, Ukrainian Code of administrative legal proceedings stipulates judicial review on actual satisfaction of legal resolution, in particular, the court that approved a resolution on administrative suit may place a commitment upon entity of powers, a defeated party, to report on satisfaction of legal resolution at a time stated by the court.

Under part two article 77 Ukrainian Code of administrative legal proceedings, within administrative suit on entity of powers’ illegal solutions, activity or inactivity it is defendant’s concern to prove legitimacy of defendant’s solutions, activity or inactivity, once defendant objects the administrative suit.

Under part 1 article 132 Ukrainian Code of administrative legal proceedings, court expenses consist of court fee and expenses for consideration of a case.

For instance, under part 1 article 139 Ukrainian Code of administrative legal proceedings, once court resolution is in favour of the party, which is not an entity of powers, the court imposes reimbursement of documented court expenses on budgetary appropriations of entity of powers, or on its functionary, or official which was a litigant.

We inform that claimants have not filed any other suits to Poltava county administrative court or other Ukrainian courts against Poltava town council concerning the same subject and on the same grounds, that is, declaring the inactivity of local self-government bodies illegal and binding to perform actions.

Securing of evidence and security for the claim were not provided before filing a point of claim.

We additionally inform that documents enclosed to the claim, namely passport and tax registration number, are in hold of Antonenko Serhiy Anatoliyovych in their original copies.

On the ground of all above-mentioned, and articles 2, 5, 6, 7, 19, Ukrainian Code of administrative legal proceedings, articles 16, 50, 55, 66, the Constitution of Ukraine, paragraph 2 article 1, paragraphsof article 32, paragraph 6 article 33, Law of Ukraine «On wastes», part 55 article 26, Law of Ukraine «On local self-government in Ukraine», paragraph 3, «Regulations on providing services of municipal waste removal», approved by decree of Ukrainian Cabinet of Ministers dated December 10, 2008, №1070, paragraph 1.5, state construction norms В.2.4-2-2005 Refuse dumps for solid municipal wastes. General considerations on planning, –

I request:

1. To declare illegal the inactivity of Poltava town council concerning the establishment of separated collection, sorting and further utilization or recycling (procession) of wastes, particularly municipal wastes; organic share of municipal wastes; construction wastes; solid wastes.
2. To oblige Poltava town council to establish separate collection, sorting and further utilization or recycling (procession) of wastes, particularly municipal wastes, organic share of municipal wastes, construction wastes, solid wastes, through approval of regional program on waste management, control over its implementation, conclusion of required contracts on a competitive basis in order to provide separate collection, sorting and further utilization or recycling (procession) of wastes, and control over their execution and/or control over execution of previously concluded contracts;
3. Appoint a judicial review on performance of resolution through obliging the defendant to report before the court on the performance of court resolution within six months after resolution takes legal effect.

Annexes:

1. Response from communal vehicle enterprise 1628 dated March 19, 2018, №0342 to №А01-06-02.2-04/21-1і dated March 3, 2018.
2. Copy of order №5 dated January 10, 2006 by Ukrainian Ministry of construction, architecture and housing and communal services
3. Copy of deputy request from deputy of Poltava town council, Butko Serhiy Serhiyovych №48 dated June 1, 2018, to the Head of State ecological inspectorate in Poltavs’ka region;
4. Copy of response dated June 14, 2018, №1945/01-14/05-17 from the Head of State ecological inspectorate in Poltavs’ka region, Osypenko Vadym Heorhiyovych to request from deputy of Poltava town council, Butko Serhiy Serhiyovych №48 dated June 1, 2018;
5. Copy of deputy request from deputy of Poltava town council, Butko Serhiy Serhiyovych №47 dated June 1, 2018, to the Head of Poltava communal vehicle enterprise KATP-1628 Zabyshny V.V.;
6. Copy of response dated June 6, 2018, №0695, from the Head of Poltava communal vehicle enterprise KATP-1628 Zabyshny V.V. to request from deputy of Poltava town council, Butko Serhiy Serhiyovych №48 dated June 1, 2018;
7. Copy of deputy request from deputy of Poltava town council, Butko Serhiy Serhiyovych, №51, dated July 4, 2018, to the Head of Department, housing and communal services, S.V. Sinel’nyk;
8. Copy of letter dated July 10, 2018, № 01-0601/122074 from the first deputy, Head of department, housing and communal services, K.Mal’ko.
9. Letter of response, dated July 19, 2018, №0845, to deputy of Poltava town council, Butko S.S., from the Head of Poltava communal vehicle enterprise KATP-1628 Zabyshny V.V. to deputy request dated July 4, 2018, №51;
10. Copies of resolutions on inspection of potable water for nitrates, issued by Poltava town&county independent subdepartment of laboratory examinations under state institution «Poltava regional laboratory center of Ukrainian Ministry of Health», registration numbers: №920 dated October 30, 2014; №108 dated February 19, 2015; №745 dated June 23, 2016; №1180 dated October 13, 2016; №1262 dated November 24, 2016; №69 dated February 9, 2017; №162 dated March 24, 2017; №507 dated May 18, 2017; №1329 dated December 1, 2017; №214 dated March 22, 2018; №395 dated May 24, 2018.
11. Copy of resolution on inspection of potable water for nitrates, issued by Poltava town&county independent subdepartment of laboratory examinations under state institution «Poltava regional laboratory center of Ukrainian Ministry of Health» №147 dated March 6, 2014.
12. Copy of resolution on inspection of potable water for nitrates, issued by Poltava town&county independent subdepartment of laboratory examinations under state institution «Poltava regional laboratory center of Ukrainian Ministry of Health» №148 dated March 6, 2014.
13. Copy of resolution on inspection of potable water for nitrates, issued by Poltava town&county independent subdepartment of laboratory examinations under state institution «Poltava regional laboratory center of Ukrainian Ministry of Health» №149 dated March 6, 2014.