Categories: Pollution Article 2

Introduction

In Kazakhstan’s economy, “environmentally dirty” industries such as energy, ferrous and non-ferrous metallurgy, and the chemical industry occupy an important niche. Over many years, more than 15 billion tons of mining waste have been deposited in landfills. Each year, another 800 million tons are added to this figure. According to calculations, pollution of the environment with waste causes about seven billion Kazakhstan Tenge (KZT) of economic damage to the Republic. This amounts to about 20 percent of the country’s gross national product. There are diverse reasons for the deficiencies in processing of production and consumption wastes as secondary raw materials. Kazakhstan is unlike any other country, in terms of the scale of the composition and quantity of waste generated in its territory. As many as 60 different types of waste are generated in enterprises in the country. As a consequence, issues of disposal and recycling of waste have taken on a high level of economic importance. The Constitution of the Republic of Kazakhstan guarantees the right of every person to a favourable environment. This, in turn, necessitates an effective social and economic policy, the most important and mandatory elements of which are the development of environmental management strategies and mechanisms for managing environmental safety. According to clause 292 of Kazakhstan’s Ecological Code, local executive bodies are the authorised authorities in the field of environmental protection, including provision for separate collection, storage, regular export, processing, utilisation and neutralisation of hazardous components of municipal waste, as well as cleaning the territory of the settlement. Local executive bodies should provide for the creation and functioning of the necessary infrastructure for small and medium-sized businesses to collect, transport, sort and reuse municipal waste, and to deposit it at landfills.

Local executive bodies ensure compliance with environmental requirements when handling solid waste in several ways. For example, they organise the separate collection and recycling of reusable waste fractions, the regular transportation of waste to the places of temporary storage and processing, and the process for designating the location of landfills. In addition, they call for the separate collection of organic wastes; mandate the separation of construction waste from other types of waste, either directly on the construction site or in a designated location; and prohibit the unauthorised burning of municipal waste. They also prohibit the mixing of construction waste with other wastes in dumps and landfills and impose other prohibitions on the mixing of waste. They also specify the manner in which the owners of waste transfer their obligations for waste disposal to the owners of facilities that process these wastes. Local executive bodies are also responsible for the organisation of a system by which reliable information on the management of municipal waste is to be provided to the authorised body. They also address the disposal of municipal waste, by the creation and operation of waste landfills, which are carried out by municipal public enterprises and other organisations specialising in this field.

Up to now, no integrated study has been undertaken addressing the problems of legal regulation of environmental protection with regard to domestic solid waste in Kazakhstan. Although studies have addressed some of these issues in the context of narrow scientific frameworks, in the absence of integrated legal analysis, such studies often merely complicate the process of introducing scientific research into practice. Over the two decades following the country’s independence, it has gained a certain amount of experience in solving environmental problems, in part through international environmental cooperation, particularly necessary in light of the emergence of new technologies in the national energy market and the regulatory restriction of the use of out-of-date technology in the production cycle. Clearly, any study of these issues must both pay attention to the legal aspects and take scientific and technological achievements into account. There is a clear need for an in-depth study of the legal problems involved in protecting the environment from waste pollution – a theoretical and legal interpretation of the unique elements of Kazakhstan’s Environmental Code in the field of waste management, as well as of the manner in which its provisions are implemented.

This study focuses on the organisational and legal mechanisms developed to protect the environment from pollution by domestic solid waste, in modern conditions and a market economy. All this necessitated further research and analysis of existing theoretical and practical experience, and the development of new solutions that are adequate to modern conditions. Its purpose is to comprehensively study the country’s legal problems of protecting the environment from domestically generated solid waste pollution in market conditions and to consider its development of scientifically verified recommendations and proposals for improving existing environmental legislation and provisions of related legislation.

Legal Regulation of Waste Management

Wastes arise both as a result of production activity and when products are consumed. As such, they can be divided into two groups – production waste and postconsumption waste products. In essence, production wastes include leftover raw materials, interim byproducts formed during the manufacturing process, whether raw materials that have lost some or all of the properties that make them usable or substances produced during physical, chemical or mechanical processing that do not make it into the final product. This article considers and enumerates the features of the legal protection of the environment from waste contamination, offering a list of sectoral principles and some provisions of legal regulation of relations in the field of waste management.

While domestic records demonstrate a sharp decrease in the life expectancy of the population, this data contrasts sharply with the environmental, demographic, medical and social statistics of countries that have developed effective environmental legislation. Kazakhstan’s environmental regulation process has lagged, largely due to a combination of the imperfection of its environmental legislation and its practical instability in the application of those laws. Any comprehensive scientific study of these problems must begin by considering the economic structure in which such environmentally dirty sectors, such as energy, ferrous and non-ferrous metallurgy, the chemical industry and transport, occupy a considerable place. In terms of legal efforts to address them, waste products are defined as materials, substances or products formed either in the process of production of goods or as a result of the consumption of goods, especially in the performance of services. By definition, wastes are not the ultimate goal of the production process. Thus, the legal regulation of waste management focuses on two basic sub-classifications of waste: materials, substances and objects forming waste in the processes of production and consumption, which are subject to collection, transportation, storage, use and disposal; and the objects and substances used in the handling of waste.

Legal Norms Applicable to Waste Management

As a prerequisite to analysing the legal norms regulating waste management, this study needed to first determine whether those norms (however expressed), when considered in aggregate, constitute a single integrated legal framework or several separate, coordinating frameworks. For this purpose, the authors consider that a set of legal norms regulating waste management is, in effect, an independent legal institution of environmental law. Legal norms form the basis of legal regulation. Their impact on public relations is that they determine the range of subjects on which their action extends; form the circumstances under which these subjects are guided by their prescriptions; disclose the content of the rule of conduct; and establish measures of legal responsibility for violation of these rules. The level of legal relations and the published law enforcement acts depend on the degree of development of legal norms and the clarity and legibility of mandatory regulations on which they are based.

Offences, Penalties and Liability 

In Kazakhstan, officials and citizens are held responsible or liable in a range of ways, in cases of environmental violations: disciplinary, administrative, criminal and civil:

• Disciplinary responsibility is a sanction that is applied by the administration of an enterprise, institution, organisation to the employee in the form of a disciplinary penalty for a disciplinary offence. Disciplinary responsibility in the field of environmental management can only occur for environmental violations committed by an employee in the process of performing his duties, and provided that the employee has violated environmental rules, the performance of which were part of his functions and duties due to an employment contract or a temporary assignment of the administration. Administrative responsibility is a type of legal responsibility of citizens, officials and legal entities for committing an administrative violation.
• Criminal liability is a type of legal responsibility, consisting in restricting the rights and freedoms of persons guilty of committing a crime under the Criminal Code of the Republic of Kazakhstan. Criminal responsibility begins with the entry into force of the conviction and is fully realised in the serving of the punishment appointed by the court. The basis for the onset of criminal liability is the commission of an act containing all the elements of the offence set forth in the Criminal Code of the Republic of Kazakhstan.
• Civil liability is a system of measures compulsorily applied to violators of civil rights and obligations with the aim of restoring the situation that existed before the offence. The system of measures of civil liability includes two types – damages and sanctions. Liability in the sphere of environmental management is a system of legal measures aimed at the preservation of the natural environment and applied differentially to the types, methods and nature of the harm caused, as well as to those responsible for causing environmental damage to citizens and organisations. One type of civil liability is secondary responsibility, which implies the additional responsibility of persons who, along with the violator, are responsible for causing harm to the environment.

The relevant legislation provides for limited and full material responsibility. Responsibility, as a rule, is limited to the average monthly earnings of the guilty worker. The goals and essence of legal responsibility are complex and diverse. In the current context, they include the punishment for environmental offences, as well as a deterrent arising out of the threat of their application. The latter goal is served by the fact that these potential liabilities serve to warn users of natural resources of the personal risk of committing wrongful acts. Such warnings have great educational and prophylactic value. A defendant can only be held liable for an environmental violation, where that violation is indisputably proven in the manner prescribed by law. These aspects of legal protection of Kazakhstan’s environment from solid domestic waste have been canvassed by many experts. As Baideldinov and Bekisheva note, “an environmental offence is, as a rule, a guilty, unlawful act (or omission), encroaching on the environmental rights and legitimate interests of individuals and legal entities, the State and causing or carrying a real threat of causing harm to the natural environment”.

The Need for Measures

Although existing penalties established by the administrative law are aimed at protecting the environment, safeguarding the rights, freedoms and legitimate interests of persons and citizens and of the population, and preventing the commission of offences, they cannot (particularly at these fine/penalty levels) restore the disturbed ecological balance. Punishment for environmental infringements should be sufficient to address their threat, as well as the harm caused. Obviously, strict tightening of sanctions is not enough to significantly improve the environmental situation. An important role in this belongs to environmental information and education, since the activities that are used to improve the environmental situation will not be effective without the active support of the population. Following the lead of other European countries, some areas in which measures are needed include the following:

• Motor vehicles, containers and packaging (metal, polymer, glass, cardboard and paper), motor oils, consumer goods containing harmful substances (mercury-containing lamps, batteries, etc.).
• Economic incentives for the use of waste as secondary raw materials.
• Formation of demand for secondary resources and products made from secondary resources or with their use, including by establishing constraints and incentives that encourage the use of secondary resources in place of primary resources.
• Collateral mechanism to stimulate the collection, processing and disposal of certain products after use.
• Regional markets for secondary resources, taking into account the specifics of education and the management of consumption wastes (primarily with solid household waste).
• Information support for business entities (creation of databases on sources of secondary resources, on regulatory support for their collection, harvesting and processing, on advanced technologies and equipment for the processing of secondary resources, for enterprises that procure and process secondary raw materials, and related issues).

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