Reading time: 6 minutes

Ownership of waste - very often I see that a legal entity - a waste generator enters into an agreement with another legal entity for the transfer of ownership of waste. As a result, the waste generator believes that if the ownership rights to waste are transferred to another person, then the obligations to comply with environmental legislation are transferred to another person.

Waste ownership(waste ownership)

In accordance with Article 4 of the Federal Law of June 24, 1998 N 89-FZ "On Production and Consumption Wastes", the ownership of waste is determined in accordance with civil legislation.

What the Civil Code (Civil Code) says:

The right of ownership to a new thing made or created by a person for himself in compliance with the law and other legal acts is acquired by this person.
The right of ownership to fruits, products, income received as a result of the use of property is acquired on the grounds provided for in Article 136 of this Code.

Clause 1 of Article 218 of the Civil Code of the Russian Federation

Fruits, products, income received as a result of the use of a thing, regardless of who uses such a thing, belong to the owner of the thing, unless otherwise provided by law, other legal acts, contract or follows from the essence of the relationship.

Article 136 of the Civil Code of the Russian Federation

Thus, as follows from Article 136 of the Civil Code of the Russian Federation, the owner of the waste from the operation (use) of equipment, machinery, buildings, structures and other is the owner of the said property.

Clause 7.8 "GOST 30772-2001. Interstate standard. Resource saving. Waste management. Terms and definitions" established that the owner of the waste is a legal entity, an individual entrepreneur, producing waste, in whose ownership they are, who intend to procure, process waste and other work on waste management, including their disposal.

Based on the foregoing, from the moment of waste generation, the right of ownership arises for a legal entity or individual entrepreneur, in the process of economic or other activities of which waste is generated.

Transfer of ownership of waste

From that moment on, all obligations to comply with environmental legislation fall on the shoulders of the new owner.

The right of ownership to the property that the owner has can be acquired by another person on the basis of a sale and purchase agreement, exchange, donation or other transaction on the alienation of this property.

Clause 2 of Article 218 of the Civil Code of the Russian Federation

Obligations of the waste owner

Obligations of the waste owner, whose waste was generated:

  • lead (columns accumulated at the beginning, formed, transferred, accumulated at the end);
  • develop (if it refers to waste of 1-4 hazard class);
  • to do (for EIA of 1, 2 categories);
  • report on;
  • do not forget about the new reporting on waste for objects of the III category III (but so far there is no information on it).

Nuance: waste can only be transferred to the ownership of a legal entity or individual entrepreneur who has a license to collect waste!

Obligations of the waste owner to whom the waste was transferred:

  • lead (graphs accumulated at the beginning, formed, accepted, transferred, accumulation at the end);
  • waste must be accepted with a waste passport (if it belongs to waste of 1-4 hazard class);
  • everything else is the same.

Hopefully, the topic of waste ownership has become clearer for you.

This article critically analyzes the legitimacy of the use of such a conceptual apparatus as "ownership of waste", and also proposes an alternative approach to regulating significant for society relations associated with determining the person responsible for paying for negative environmental impact.

At the legislative level, in law enforcement practice, as well as in the legal literature, there is such a concept as "ownership of waste". In particular, such instructions are contained in Art. 4 of the Federal Law "On Production and Consumption Waste" (hereinafter - FZ No. 89-FZ) 1, letters of authorized bodies 2, judicial practice, as well as in the writings and comments of domestic researchers, including M.V. Ponomareva, N.S. Zinovkina, M.A. Ermolina, E.V. Luneva E.V., A.G. Dudnikova and others.

So, as an argument for the existence of such a legal category as "property rights to waste" M.V. Ponomarev points out that production and consumption waste is a special object of civil circulation, movable things, the legal status and negotiability of which is determined based on the general provisions of civil legislation, taking into account the special requirements provided for by the legislation on production and consumption waste and on environmental protection. Special rules for the alienation and transfer of ownership of waste are closely related to the issue of ensuring that the owner fulfills the obligations to maintain his property, in particular, in compliance with environmental requirements 3.

In turn, M.A. Yermolina also notes that the ownership of waste belongs to the owner of raw materials, materials, semi-finished products, other products or products, as well as goods (products), as a result of the use of which this waste was formed 4. A.G. Dudnikova points out that the owner of the waste is a person who has the right to dispose of this property freely, if this does not harm the interests protected by law. In terms of waste, it is impossible to dispose of waste by simply leaving it in an inappropriate place, since this will violate the legally protected interests of the owner of the land plot, the environment, etc. But to transfer the waste to the ownership of a person who lawfully disposes of it, the owner of the waste has the right 5

With regard to the distribution of contractual obligations to pay for negative impact on the environment, E.V. Lunena recommends including a condition in the content of the contractual structure, where the obligation to make payments for the negative impact on the environment is assigned to a specialized organization, on the transfer of ownership of the exported production and consumption waste. The fact is that in the civil legal meaning, waste is a thing, therefore their legal regime is determined by the norms of both environmental and civil law 6.

However, the use of the conceptual apparatus - "ownership of waste", regardless of the answer to the question of who should fulfill the public obligation to pay for negative impact, raises certain doubts about the validity and legality, both from the point of view of the public, and even more so - private law. In this regard, it seems relevant, within the framework of this article, to make attempts to study the question of the existence of such a legal category as "ownership of waste", as well as to develop an alternative apparatus for regulating relations that are significant for society.

It seems that in order to analyze in detail and form a position on the issue under study, it is necessary to focus on two aspects:

1) determining the list of objects to which the right of ownership may arise;

2) the concept of waste.

When considering the issue in the indicated plane, the reasoning of G.S. Vasiliev, who subjected to a critical analysis the Determination of the RF Armed Forces dated 04.02.2015 in case No. 301-KG14-1670 in case No. A79-4567 / 2013 7, where the Judicial Collegium of the RF Armed Forces canceled judicial acts of lower instances and recognized the bank's claim for the return of funds, paid as payment for a negative impact, unreasonable and not subject to satisfaction, since the ownership of waste, unless otherwise expressly provided for in waste disposal agreements concluded with specialized organizations, remains with the user of natural resources (bank). In particular, the scientist puts forward the following theses related to this work:

1. preservation of ownership of waste when handing it over to a specialized organization is not justified in any way in the decision. Modern garbage trucks not only mix waste from different senders, but also compress it. The contents of the trash can, which could previously be considered an object of property rights of the user of natural resources, disappears;

2. the retention of ownership rights for the user of natural resources means that both the specialized organization that carries out the waste disposal and the owner of the landfill where they will be buried perform operations with other people's property. The authority to do so cannot be derived from regulations;

3. Transfer of ownership under a service agreement (waste disposal service agreement) is possible. The service in the discussed case consists in the fact that the alienated objects have a negative market value, and therefore their owner not only cannot count on a reward for his property, but he himself must pay for someone to acquire the object 8.

Despite the fact that the scientist still does not deny the existence of such a legal category as "ownership of waste", he makes a very fair remark that deserves attention - "the ownership disappears from the owner of the property when the latter named it as waste."

In this regard, it should be noted that, traditionally, right property is understood as the most complete absolute right that belongs to such a category of rights as property rights. As rightly noted by E.A. Sukhanov a typical property right is the right of ownership, the essence of which is revealed in "domination over property that has the value of a thing." At the same time, as the scientist rightly notes, only things, material objects (a physically tangible object) that have spatial characteristics, have the economic form of a commodity and, therefore, are classified as objects of civil rights are recognized as objects of property rights. In other words, only a thing can have a value - a thing value of 10, i.e. possess consumer properties that make it possible to satisfy certain needs of a person from the corresponding property, at the same time, if a thing has no economic value and cannot be considered as a commodity, such property is not by its legal nature a thing and cannot be recognized as an object of real rights - object of ownership.

The foregoing gives fundamental grounds for putting forward the thesis: if a person indicates that a thing has been transformed into waste for him, at once the thing has disappeared as an object of civil circulation and such a person has lost the right of ownership to the said property, since the object of the right of ownership can only be property, which possesses real value, i.e. consumer properties.

However, it may seem to some that this kind of interpretation is incorrect, since the presence or absence of consumer properties in a particular object is an evaluation criterion and depends on who the subject is, in particular: for some, a lamp computer, an old car, the waste product of cloven-hoofed cattle is a waste , and for others, these are things that have consumer properties that can be used, for example, as a typewriter, vehicle or fertilizer. The tool for countering this kind of reasoning is the answer to the question: what relationship is described (regulated) by the right of property, and also in what meaning should the term “withdrawal” be considered: subjective or objective. It seems that the property right regulates exclusively the subject - the object connection, i.e. prescribes for a specific individualized subject of social relations the rights and obligations in relation to a specific thing. At the same time, the term "withdrawal", which is used both in the current edition of Federal Law No. 89-ФЗ, and in the previously existing ones (for example, the edition of 01.01.2014), is also defined in terms of the subjective perception of a particular person with a pre-existing a thing that possessed properties useful for the subject (his relations within the framework of the previous subject-object connection). Therefore, in the context under consideration, it is necessary to conclude that if a person uses the property, the right of ownership exists precisely to the thing, since there is a real (consumer) value, and, therefore, the subject - object connection 11 exists. In the event that the specified subject commits implicated actions, for example, throws the thing into a container, it becomes waste and at the same time as the specified actions are performed, the right of ownership of the thing disappears from the specified person, while no transformation (derivative method of origin) of the right of ownership occurs and does not can happen. In some cases, a third party, in no way unrelated to the previous owner of the thing, can acquire a "thrown away" thing according to the rules on mismanaged things (Article 225 Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation 12)), treasure (Article 233 of the Civil Code of the Russian Federation) or processing (Article 220 of the Civil Code of the Russian Federation), however, all the indicated models of turning objects into ownership are the primary methods of acquiring the specified absolute right, which also impose on such an owner the corresponding rights and obligations, while these methods do not have any connection with the previously existing law property. A similar approach, it seems, must be applied in relation to the processes of sorting and disposal of waste, when in the process of technological processing (Article 220 of the Civil Code of the Russian Federation) new objects of civil circulation (things) with useful properties appear.

It seems that this approach is very reasonable, including from the point of view of the norms enshrined in the Civil Code of the Russian Federation, in particular Art. 236 of the Civil Code of the Russian Federation, which indicates that any person has the right to declare the termination of property rights by performing the relevant implicit actions. At the same time, the termination of ownership of a specific object of civil turnover does not mean that the specified person has also ceased all obligations, including those provided for by the norms of both public and private law. A similar situation occurs in contractual relations, where the moment of execution (termination) of the contract may not coincide with the moment of termination of all obligations arising from its subjects from (the parties to the contract) the moment of its conclusion 13.

Thus, it is permissible to formulate the following conclusions:

1.the use of the concept of "ownership of waste" is incorrect and unjustified both from the point of view of public and private law, since the property right as a category of real right can arise exclusively on a thing that has a real (consumer) value that the waste has is obviously missing;

2.the existence of the obligation to pay for the negative impact on the environment arises not due to the fact that the person has a right of ownership of the waste, but insofar as the said person, in addition to the rights to a specific thing that he owns, exists also responsibilities for its maintenance, including those related to the implementation of public events for the disposal of waste at special sites - landfills, in order to protect the public interest in a healthy environment.

Text footnotes for indexes in an article

1 Federal Law of 24.06.1998 No. 89-FZ (as amended on 31.12.2017) "On production and consumption waste" (as amended and supplemented, entered into force on 01.01.2018) // Collected Legislation of the Russian Federation. 1998. No. 26. Art. 3009.

2 Letter of Rosprirodnadzor dated 25.05.2016 No. RN-03-03-31 / 9771 "On consideration of the appeal", Letter of the Ministry of Natural Resources of Russia dated 16.11.2017 No. 12-47 / 30950 "On handling waste pipes of oil and gas pipelines", Letter of Rosprirodnadzor dated July 13, 2015 No. OD-03-04-32 / 11939 "On consideration of the appeal", etc. // Reference and legal system "Consultant Plus": [Electronic resource] / Company "ConsultantPlus".

3 Ponomarev M.V. Waste ownership: legal problems of implementation and transition // Journal of Russian law. 2017.No. 8.P. 53 - 64.

Also, see: Zinovkin N.S. Review of judicial practice on the issue of payment for the disposal of production and consumption waste // Actual problems of Russian law. 2014. No. 2.P. 204 - 211.

4 See: M.A. Ermolina The principle of payment for nature management and the problems of law enforcement // Legal issues of construction. 2012. No. 1. S. 12 - 15.

5 Dudnikova A.G. Waste ownership transfer: who will pay for the IEE? // Ecologist's Handbook. 2018.No. 5.P. 40 - 45.

6 Luneva E.V. Contractual regulation of payment for waste disposal: interaction of environmental and civil law // Environmental law. 2016.No. 1.P. 12 - 16.

7 Determination of the Supreme Court of the Russian Federation dated 04.02.2015 No. 301-KG14-1670 in case No. A79-4567 / 2013 // Reference and legal system "Consultant Plus": [Electronic resource] / Company "ConsultantPlus".

A similar position is found in other judicial acts. See: Resolution of the Thirteenth Arbitration Court of Appeal dated 09.04.2015 No. 13AP-343/2015 in case No. A56-64185 / 2014, Resolution of the Twenty-first Arbitration Court of Appeal dated 27.01.2016 in case No. A83-2004 / 2015, Resolution of the First Arbitration Appeal court from 04.10.2017 in case No. А43-20389 / 2016 // Reference and legal system "Consultant Plus": [Electronic resource] / Company "ConsultantPlus".

8 Vasiliev G.S. On the owner of the waste - a turn of judicial practice // Zakon. 2015. No. 12.P. 106 - 112.

9 Sukhanov E.A. Real law: a scientific and educational essay. M .: Statut, 2017.S. 14 - 17, 30 - 32, 70.

10 See: V.A. Belov. Lease as a returnable obligation. Diss. ... Cand. jurid. Sciences: 12.00.03 / Belov Valeriy Aleksandrovich. Moscow, 2016.S. 73, 94, 123, 125, 180.

11 See: V.A. Belov. Person status: legal aspect // Actual problems of Russian law. 2017. No. 10. S. 72-79.

12 Civil Code of the Russian Federation (part one) dated 30.11.1994 No. 51-FZ (as amended on 29.12.2017) // Collected Legislation of the Russian Federation. 1994. No 32., Art. 3301.

13 See: clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06.06.2014 No. 35 "On the consequences of termination of the contract" // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2014. No. 8.

V.A. Belov,

Candidate of Law, Responsible

editor of "News Digest" trading

and consumer law "legal

Institute "M-Logos", Moscow.

The development of industry is causing the negative impact of harmful substances on the planet. Therefore, the owner of production and consumption waste bears full responsibility for the consequences that arise from improper handling of production products.

According to Federal Law No. 89-FZ, the owner of the products of production is the owner of the materials, raw materials, the result of processing of which was the appearance of garbage.

Waste ownership regulates the occurrence of no-man's landfills, which appear due to the unfair use of resources by the owner.

The owner is an individual entrepreneur or legal entity that:

  1. Generates trash and carries out recycling or disposal.
  2. Carries out other work with waste (disposal).

An individual has the right to own the garbage:

  • Private house owner.
  • The owner of an apartment and / or other premises in a residential building.

Ownership of the waste belongs to the person (or company) who owns the resource that caused the pollution.

Waste stored in municipal landfills is the property of the municipal executive, usually the public utility.

Civil Code

According to the Civil Code of the Russian Federation, the owner of the products is recognized as the owner of the raw material, the processing of which has caused the waste.

If a manufacturer produces products from raw materials belonging to a third party, then the right to the resulting pollution belongs to the owner of the material.

The volume of waste according to the Civil Code is prescribed in Art. 24.7 No. 89-FZ. The legislation allows the owner to use his property in several ways:

  • Sell.
  • Give.
  • Transfer the right to use with and without alienation.

Broadcast

In civil law, Art. 4 indicates the possibility of transferring the owner's garbage into the possession of a third party.

Waste transfer can be:

  • With the transfer of ownership.
  • With preservation of ownership rights.

Important! Ownership can be transferred even if the recipient does not have documents confirming permission for the transportation, disposal and storage of hazard class I-IV waste.

Waste sales

A person who buys garbage must have a license to independently conduct:

  • Collection.
  • Transportation.
  • Recycling.
  • Placements, etc.

The seller is not obliged to check the buyer's license (according to the amendment to the Federal Law No. 89 dated December 29, 2014).


Waste can only be sold by the owner of the raw material from which it is formed.

The transfer of waste to other organizations is carried out according to the contract:

  • exchange;
  • purchase and sale;
  • donation;
  • or other agreement.

Ownership transfer is subject to taxation. Alienation of returnable raw materials (can be reused) is subject to value added tax (VAT), since garbage acts as a product intended for sale.

Gratuitous transfer of production waste is also recognized as an object of VAT taxation.

Article 4 of the Law "On Waste" interprets the ownership of waste as belonging to the owner of raw materials, materials, semi-finished products, and other products and products, as well as goods (products) as a result of the use of which waste was generated.

Another person may acquire this title to waste on the basis of civil contracts (sale and purchase, exchange, barter, donation or other transaction on disposal of waste).

The owner of hazardous waste has the right to alienate it to another person or transfer it for processing while remaining the owner (raw materials supplied by the customer), only if that other person has a license to carry out activities in the field of hazardous waste management.

If the waste is thrown by the owner, then the person who owns the land plot or other object where the thrown waste is located can turn it into his own property (Article 226 of the Civil Code of the Russian Federation).

Having started to use waste or having performed other actions that indicate that it has become property, a person has a preferential right, in any case, to their processing and consumption.

The owner has the right to use the waste without a license, if it does not contradict the terms of the license, as well as the provision of clause 4 of part 1 of article 22 of the Subsoil Law.

If the ownership is transferred to another person, then he will need a license. Also, article 18 contains a prohibition to provide subsoil for the subsequent production of building materials, if there is a possibility of using waste.

Ownership of the waste can be terminated in the event of a waiver of ownership, but the waiver terminates the ownership if the waiver is accepted by the competent authority.

The law does not distinguish landfilling as a waiver or termination of the right to waste, and does not establish legal consequences.

The state is obliged to ensure the maintenance of a waste cadastre, including registration of waste disposal sites and subjects of rights. In this case, part of the waste falls into the category of hazardous, including radioactive. Restricted use. See Federal Law “On Industrial Safety of Hazardous Industrial Facilities”, Federal Law “On the Use of Atomic Energy”.

Ownership entitlement.

    The right to use - the right to extract individually - certain things, to extract useful properties, income and fruits.

    Possession of a thing is the actual possession of it, the ability to introduce certain improvements (cosmetic repairs, major repairs, up to reconstruction).

    Disposal of a thing is the right to determine its fate up to alienation (to lease, lease, or otherwise change the owner or user of the thing).

Legal regime of geological information

Article 27 of the Subsoil Law:

Geological information can be in public or private property, depending on whose funds were used to obtain it.

Thus, legal regime information can be determined by the right of ownership or the right to use of others, and the forms of ownership can be different.

Ownership of information is not a property right, it is usually denoted by the term intellectual property, as well as in relation to works of science, literature, art and objects of industrial property (inventions, industrial designs) or means of individualization.

Individualization means- trademarks, service marks, corporate identity and mark.

Key questions:

Ownership relations for waste in accordance with Federal Law No. 89-FZ dated 24.06.1998 "On Production and Consumption Waste"

Waste ownership in accordance with the Civil Code of the Russian Federation

Contractual relationships with suppliers and contractors in the field of waste management

Waste, like any other objects and other things that have relative independence and stability of existence, are (unlike pollutants emitted with waste gases or discharged with wastewater) an object of property rights, which is mainly regulated by the norms of civil legislation. These norms determine, on the one hand, the owner's rights to own, use and dispose of his property (including the right, at his discretion, to perform any actions with respect to his property that do not contradict the law and other legal acts), and on the other hand, the obligation the owner to bear the burden of maintaining his property, unless otherwise provided by law or contract.

RELATIONSHIP OF PROPERTY TO WASTE UNDER THE FEDERAL LAW OF 24.06.1998 No. 89-FZ "ON PRODUCTION AND CONSUMPTION WASTE"

The rules governing the ownership of waste are contained in Art. 4 of the Federal Law of 24.06.1998 No. 89-FZ "On production and consumption waste" (hereinafter - Federal Law No. 89-FZ).

As you know, prior to the entry into force of 01/01/2015 changes introduced by the Federal Law of December 29, 2014 No. 458-FZ, art. 4 of Federal Law No. 89-FZ, the following was established:

Retrieving

(as amended on November 25, 2013, invalidated)

1. The right of ownership to waste belongs to the owner of raw materials, materials, semi-finished products, other products or products, as well as goods (products), as a result of the use of which this waste was formed.
2. The right of ownership to waste can be acquired by another person on the basis of a purchase and sale agreement, exchange, donation or other transaction on disposal of waste.
3. The owner of waste of I-IV hazard class has the right to alienate this waste into the ownership of another person, transfer to him, while remaining the owner, the right to possess, use or dispose of this waste, if such a person has a license to carry out activities for the use, disposal, transportation, placement waste of no less hazard class.
4. In the event that the waste is thrown by the owner or is otherwise left by the owner in order to relinquish ownership of it, a person who owns, possesses or uses a land plot, water body or other object where the thrown waste is located may convert them into their own property, starting to use them or performing other actions that indicate their conversion into property in accordance with civil law.

As you can see, this article contained a special requirement for the owner of the waste, which limited him in the right to dispose of his waste as an object of ownership. So, the owner had the right to alienate the waste, transfer, while remaining the owner, the right to own, use or dispose of this waste only to a person with a license to carry out activities for the use, disposal, transportation, disposal of waste of no less hazardous class.

From 01.01.2015 Art. 4 of Federal Law No. 89-FZ has been reduced to a minimum:

Retrieving
from Federal Law No. 89-FZ

Article 4. Waste as an object of ownership
(as amended by Federal Law No. 458-FZ)

Waste ownership is determined in accordance with civil law.

Thus, the previously valid mandatory license requirement on the relevant activities in the field of waste management of I-IV hazard classes among the persons to whom this waste is transferred (i.e. limiting the turnover of waste of I-IV hazard classes), was canceled.

Currently, the norm of the Federal Law No. 89-FZ continues to operate, prohibiting the disposal of waste at facilities not included in the state register of waste disposal facilities (hereinafter referred to as the State Register of Waste Disposal Facilities), which is maintained by Rosprirodnadzor (paragraphs 6 and 7 of Article 12 of Federal Law No. 89 -FZ), but this prohibition is not directly related to property relations.

BY THE WAY

A bill No. 826840-6 "On the suspension of paragraph 7 of Article 12 of the Federal Law" On Production and Consumption Wastes "was introduced to the State Duma, according to which it is proposed suspend until January 1, 2019 action of clause 7 of Art. 12 of Federal Law No. 89-FZ.

In general, according to the provisions of Federal Law No. 89-FZ, most of the obligations of legal entities and individual entrepreneurs related to the implementation of instruments of state regulation in the field of waste management (licensing, certification, rationing, accounting, etc.) are also not directly related to the ownership of waste and are assigned not to the owners of the waste, but to the persons whose activities generate waste, which is important if the owner of the waste and the person whose activities generate waste do not coincide.

In the future, in legislative norms (including in new articles of Federal Law No. 89-FZ and Federal Law No. 7-FZ dated 10.01.2002 "On Environmental Protection" (hereinafter - Federal Law No. 7-FZ), introduced by the Federal Law No. 219-FZ of July 21, 2014 and Federal Law 458-FZ) also retains the imposition of basic responsibilities in waste management on legal entities and individual entrepreneurs, as a result of whose activities waste is generated, regardless of the ownership of this waste.

In particular, in accordance with paragraph 1 of Art. 16.1 (will enter into force on 01.01.2016 in accordance with Federal Law No. 219-FZ) Federal Law No. 7-FZ, payers of fees for negative impact on the environment during waste disposal, with the exception of solid municipal waste, will be legal entities and individual entrepreneurs, in the course of which economic and (or) other activities generated waste.

Property relations are of great importance in relation to waste (scrap) of ferrous and non-ferrous metals.

So, according to paragraph 2 of Art. 13.1 of the Federal Law No. 89-FZ, legal entities and individual entrepreneurs can handle scrap and waste of non-ferrous metals and their alienation only if there are documents confirming them ownership for the specified scrap and waste, which primarily determines the need to establish the conditions for the primary emergence of the ownership of waste, as well as the conditions for its acquisition.

LEGAL REGULATION

The rules for handling scrap and waste of ferrous metals and their alienation were approved by the Decree of the Government of the Russian Federation of 05/11/2001 No. 369 (as amended on 12/12/2012). These Rules determine the procedure for handling (acceptance, accounting, storage, transportation) and disposal of scrap and waste of ferrous metals on the territory of the Russian Federation.

The rules for handling scrap and waste of non-ferrous metals and their alienation were approved by the Decree of the Government of the Russian Federation of 05/11/2001 No. 370 (as amended on 12/12/2012). These Rules determine the procedure for handling (acceptance, accounting, storage, transportation) and disposal of scrap and non-ferrous metal waste on the territory of the Russian Federation.

It should be borne in mind that in accordance with paragraph 34 of Part 1 of Art. 12 of the Federal Law of 04.05.2011 No. 99-FZ "On licensing of certain types of activities" (hereinafter - Federal Law No. 99-FZ) blank , storage, processing and sale of ferrous and non-ferrous scrap refer to licensed activities.

Property relations are of fundamental importance in establishing civil liability for harm to the environment associated with the handling of waste of all types and classes (including in violation of legislation in the field of environmental protection).

According to Art. 210 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), the owner bears the burden of maintaining his property, unless otherwise provided by law or contract.

In accordance with Part 1 of Art. 1079 of the Civil Code of the Russian Federation, the obligation to compensate for harm caused by activities that create an increased danger to others (including when handling waste) is assigned to the person who owns a source of increased danger on the basis of ownership, the right of economic management or the right of operational management, or otherwise legal basis.

Based on paragraph 3 of Art. 78 of Federal Law No. 7-FZ, claims for compensation for damage to the environment caused by violation of legislation in the field of environmental protection may be brought against for 20 years... That is why the establishment of the conditions for the initial emergence of the ownership of waste, as well as the conditions for its acquisition, is essential for all waste.

RELATIONSHIP OF PROPERTY TO WASTE UNDER THE CIVIL CODE OF THE RUSSIAN FEDERATION

With regard to activities in the field of waste management, the norms of civil legislation governing:

  • ownership relations for waste and the emergence of civil rights and obligations during their alienation;
  • certain types of obligations in relation to waste management under civil contracts (primarily contracts for work and services).

It should be noted that not all relations in the field of waste management are directly regulated by civil legislation - in these cases, civil legislation regulating similar relations is applied (Article 6 of the Civil Code of the Russian Federation).

In particular, the grounds for the emergence of the right of ownership to waste (as to substances or objects that are formed in the process of production, performance of work, provision of services or in the process of consumption, which are removed, intended for disposal or are subject to disposal) are not directly regulated by civil legislation at the time of their education. Therefore, in this case, the norms of civil law governing similar relations are applied.

The primary ownership of waste (which was previously established in Art. 4 of Federal Law No. 89-FZ) is generally determined based on the norms of Art. 220 of the Civil Code of the Russian Federation and essentially implies the transfer of ownership from materials to waste generated as a result of the processing of materials, and not the emergence of ownership of waste by the processor, as a result of whose activity this waste was formed, i.e. the owner of the waste is initially the owner of the materials from which the waste was formed :

Retrieving
from the Civil Code of the Russian Federation

Article 220. Processing

1. Unless otherwise provided by the contract, the right of ownership to a new movable thing manufactured by a person by processing materials not belonging to him is acquired by the owner of the materials.
[…]

Moreover, according to Part 2 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right, at his discretion, to perform any actions with respect to his property (including waste) that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, incl. alienate their property into the ownership of other persons, transfer to them, while remaining the owner, the rights of ownership, use and disposal of property.

Civil law also establishes general rules governing the alienation of property on the basis of relevant agreements (Article 218 of the Civil Code of the Russian Federation):

Retrieving
from the Civil Code of the Russian Federation

Article 218. Grounds for the acquisition of property rights

[…]
2. The right of ownership to the property, which the owner has, may be acquired by another person on the basis of a sale and purchase agreement, exchange, donation or other transaction on the alienation of this property.
[…]

Based on the norms of the Civil Code, the property right to property that the owner has can be acquired by another person on the basis of contracts, the subject of which directly under the Civil Code is the transfer of ownership, i.e. contracts of purchase and sale, exchange or donation (of which the most practical value are contracts of purchase and sale admissible under all conditions). But other transactions on the alienation of this property are also possible (primarily in cases of its illiquidity, i.e. when the property has no real market value) with the inclusion of provisions on the transfer of ownership in various civil contracts of other types. These norms (which until 01.01.2015 were present in Art. 4 of Federal Law No. 89-FZ) should also be applied in relation to waste (as an object of property).

Article 226 of the Civil Code of the Russian Federation establishes the rules governing the ownership of abandoned movable things, incl. various types of waste thrown on the land plot, in respect of which the owner of the land plot (landowner, land user) has the right (and in fact must- in the context of the provisions of Art. 13 of the Land Code of the Russian Federation for the Protection of Lands from Pollution and Littering) take actions that indicate that they have become their property:

Retrieving
from the Civil Code of the Russian Federation

Article 226. Movable things from which the owner refused

1. Movable things abandoned by the owner or otherwise left by him for the purpose of relinquishing the right of ownership to them (abandoned things) may be turned by other persons into their ownership in the manner provided for in paragraph 2 of this article.
2. A person who owns, possesses or uses a land plot, water body or other object where an abandoned thing is located, the value of which is clearly lower than the amount corresponding to five times the minimum wage, or abandoned scrap metal, defective products, driftwood from alloy , dumps and discharges formed during the extraction of minerals, production wastes and other wastes, has the right to turn these things into its ownership by starting to use them or by performing other actions that indicate the conversion of the thing into ownership.
Other abandoned things shall become the property of the person who took possession of them, if, at the request of this person, they are recognized by the court as ownerless.

There are no restrictions on the turnover of waste as property objects in the Civil Code. As noted earlier, from 01/01/2015 there is no such restriction in the Federal Law No. 89-FZ.

At the same time, the absence of restrictions on the turnover of waste arising from the Civil Code and Federal Law No. 89-FZ (as amended by Federal Law No. 458-FZ) is somewhat complicated by the fact that in the orders of the Ministry of Natural Resources of Russia adopted or developed before the entry into force of Federal Law No. 458 -FZ, the requirement remains to include in the environmental documentation information on the availability of licenses for waste management by persons to whom the waste is transferred.

For example, in the footnotes to Appendices 11 and 18 to the Methodological Guidelines for the Development of Draft Standards for Waste Generation and Limits on Their Disposal, approved by Order of the Ministry of Natural Resources of Russia dated 05.08.2014 No. 349, business entities in order to neutralize them and (or) place them in tables "Proposed annual transfer of waste to other business entities" draft standards for waste generation and limits on their disposal (hereinafter - PNOOLR) and "Actual use, neutralization, disposal of waste, as well as their transfer to other business entities for the period from ____ to ____" technical report on waste management indicates the number and date of issue licenses for neutralization and (or) disposal of I-IV hazard class waste .

According to clause 18 of the Accounting Procedure in the field of waste management, approved by Order of the Ministry of Natural Resources of Russia dated 01.09.2011 No. 721 (as amended on 25.06.2014), in the table "Waste accounting data transferred from an individual entrepreneur (legal entity)"(Appendix No. 3) indicate the date of issue and the number licenses for neutralization and disposal of wastes of I-IV hazard class and the name of the authority that issued the license.

Based on pp. 11 and 12 of the Procedure for submitting and monitoring reports on the generation, use, disposal and disposal of waste (except for statistical reporting), approved by Order of the Ministry of Natural Resources of Russia dated February 16, 2010 No. 30 (as amended on December 9, 2010), legal entities and individual entrepreneurs, related to small and medium-sized businesses are obliged to:

Indicate in the reporting on the generation, use, disposal, disposal of waste (hereinafter - reporting) the date of issue and the number of the document confirming that the legal entity and individual entrepreneur, to whom the waste was transferred in the reporting period, licenses for collection, use, disposal , transportation, disposal of waste of I-IV hazard class (hereinafter - license) (when transferring waste of I-IV hazard class);
.include copies of documents confirming the availability of licenses and issued to legal entities and individual entrepreneurs, to which the reporting entity of small and medium-sized businesses transferred I-IV hazard class waste in the reporting period.

Taking into account the supremacy of federal laws (Article 4 of the Constitution of the Russian Federation), the above normative legal acts should be applied only to the extent that they do not contradict federal laws, or may be appealed to the Supreme Court of the Russian Federation.

CONTRACTUAL RELATIONSHIP WITH SUPPLIERS AND CONTRACTORS IN THE FIELD OF WASTE MANAGEMENT

Since the enterprise, while remaining the owner of the waste, is responsible for compliance with waste management requirements both on its own or leased land plots and outside them (for example, when transporting waste), it is obliged to monitor the compliance of suppliers (contractors) with environmental requirements when they carry out activities in the field of waste management of the owner, which may have a negative impact on the environment.

The management of the supplier's (contractor's) activities related to the impact on the environment (including when handling waste) by the customer enterprise can only be carried out on the basis of contracts concluded in accordance with general provisions, as well as rules on certain types contracts (contract, paid provision of services, delivery), which are contained in the Civil Code. It is also necessary to establish technical requirements for works (services) (terms of reference) and be sure to include in the contractual obligations of the counterparty ensuring the fulfillment of requirements in the field of waste management.

The general requirements in the field of environmental protection that construction contractors must comply with are formulated directly in the Civil Code:

Retrieving
from the Civil Code of the Russian Federation

Article 751. Obligations of the contractor to protect the environment and ensure the safety of construction works

1. The contractor is obliged to comply with the requirements of the law and other legal acts on the protection of the environment and on the safety of construction work when carrying out construction and related work.
The contractor is liable for violation of these requirements.
2. The contractor is not entitled to use materials and equipment provided by the customer in the course of the work, or to follow his instructions, if this may lead to a violation of the requirements for environmental protection and safety of construction work, binding on the parties.

General environmental requirements for construction contractors, other contractors and service providers, as well as their liability for violations of environmental legislation (including in the field of waste management) can (and probably should) be reflected in contracts for the contract or the supply of services.

For example, when drawing up construction contracts, contracts for reconstruction, technical re-equipment, repairs and maintenance of equipment, buildings and structures, including the supply and installation of equipment, cleaning and landscaping, etc., the following obligations may be imposed on the contractor (supplier):
. in the event that the regulatory authorities apply penalties to the customer on the facts of violations of requirements in the field of waste management, their placement in places not intended for these purposes, which occurred through the fault of the contractor, reimburse the customer for the costs of paying such fines within 10 banking days (or another period ) from the date of receipt of the corresponding written request;
.with their own efforts to ensure the storage of waste generated in the course of work in the places specified by the customer;
. at its own expense, organize the loading and unloading, transportation and transfer of waste generated in the course of work to their burial sites or specialized organizations for their disposal, processing, neutralization, placement.

In case of violation by the contractor and his employees of the requirements in the field of waste management (if the contract provides for their fixation in the act, which is signed by the responsible employees of the enterprise), the contract may establish liability in relation to the contractor in the form of payment of a fine in the amount of, for example, 100,000 rubles. for each case of violation with an increase in the specified amount, for example, by 100% in relation to the previous case for each subsequent violation (including for violation of the specified requirements by subcontractors and their employees).

Additional specification of general environmental requirements for waste management is possible in the terms of reference (technical conditions) for contracts for work or the supply of services (performance of work).

For example, the obligations of the contractor (service provider) when performing work on the territory of the enterprise or in the area of ​​his responsibility may include the following obligations:
.strictly observe the established procedure for waste management, the Instruction on the organization of collection, accumulation, use, disposal, transportation and disposal of used mercury-containing lamps;
.to carry out cleaning of the territory at the place of performance of work or provision of services, daily remove waste from the places of their generation to the places of accumulation established on the Map-scheme of places of accumulation of waste on the territory of the enterprise and provided by the enterprise to the contractor for use in accordance with SanPiN 2.1.7.1322-03 " Hygienic Requirements for the Placement and Disposal of Production and Consumption Waste ";
. to ensure the handling of combustible waste in accordance with the Fire Safety Regulations in the Russian Federation, approved by the Decree of the Government of the Russian Federation of 25.04.2012 No. 390 (as amended on 06.03.2015);
.to carry out loading and unloading, transportation and transfer of waste for disposal, processing, decontamination or, within the limits established for the enterprise, disposal of waste at waste disposal facilities included in the GROWO;
. to carry out loading and unloading, removal and transfer of own waste generated in the process of performing work on the territory of the enterprise from materials and equipment belonging to the supplier (contractor);
.immediately inform the responsible executor of the agreement about the change in the conditions of waste generation, an increase in their amount or the formation of waste types not provided for in the PNOOLR of the enterprise division.

Of particular importance are contracts for the provision of paid services in relation to the collection, transportation, utilization, processing, disposal and disposal of waste with actual or potentially possible contamination of land (including forest fund) or water bodies. With regard to such contracts, the most promising is the transfer to the contractor (service provider) of ownership rights (if possible) to the waste, since after the waste is removed from its territory, the enterprise practically loses control over compliance with the requirements in the field of handling this waste, but does not lose, remaining the owner waste, responsibility for causing harm to the environment as a result of violation of requirements in the field of their handling.

If it is impossible to transfer ownership of the waste to a contractor (for example, due to his possible refusal to accept ownership in the absence of alternatives to purchase similar services from other contractors or the complete absence of such contractors in a particular region), it is extremely important to establish the responsibility of the contractor (service provider) for claims for compensation for harm caused to the environment by violation of the requirements in the field of waste management through the fault of the contractor, presented by the supervisory authorities (including the prosecutor's office) to the enterprise ordering the services, which is the owner of the waste. Formally, such claims can be appealed in court even in the absence of relevant provisions in the agreement, but disputable issues are resolved more successfully if initially the rights and obligations of the parties (including with respect to the terms of compensation for harm caused to the environment as a result of violation of waste management) are established in the contract.

- Zhelyabovskaya D.S. Implementation of the provisions of the Federal Law of December 29, 2014 No. 458-FZ: draft regulatory legal acts // Ecologist's Handbook. 2015. No. 4. P. 14-28 (Including transportation of scrap and waste of non-ferrous metals formed by legal entities and individual entrepreneurs in the process of production and consumption.

Note: Clause 23 of these Rules, according to which the conclusion of a contract for the transportation of scrap and waste of non-ferrous metals is carried out by a transport organization only with the owner of scrap and waste of non-ferrous metals, recognized invalid and not giving rise to legal consequences by the decision of the Supreme Court of the Russian Federation of October 18, 2001 No. GKPI 2001-1207, 1238, 1262.

According to the Regulation on licensing activities for the procurement, storage, processing and sale of ferrous and non-ferrous scrap, approved by Decree of the Government of the Russian Federation of 12.12.2012 No. 1287, the concept "Blank" only applies to acquired on a reimbursable or gratuitous basis to scrap metal. Please note that scrap purchased at no cost may also include scrap left over from the contractor when replacing the pipes, the ownership of which belongs to the owner of the pipes, and not to the contractor who replaced them. In this regard, it is necessary to carefully monitor that the enterprise (organization) does not have purchased ("someone else's") scrap metal in the absence of an appropriate license.

With regard to scrap and waste of ferrous and non-ferrous metals, which at most enterprises (with the exception of metallurgical and foundry industries) are formed from used and decommissioned equipment (products, structures), the main documents confirming the ownership of the specified scrap and waste at the time of their formation, are the accounting documents for the write-off of such equipment.

Art. 536 of the Civil Code of the Russian Federation, according to part 3 of which the contracting agreement may stipulate the obligation of the supplier who processes agricultural products to return to the manufacturer, at his request, waste from the processing of agricultural products with payment at the price determined by the agreement, but this article has no significant relation to environmental protection. Wednesday.