Who is the owner of the waste in the markets. Regulation of ownership of waste. Waste ownership relations under the civil code of the Russian Federation

This article critically analyzes the legitimacy of using such a conceptual apparatus as “waste ownership”, and also proposes an alternative approach to regulating socially significant relations related to determining the person responsible for paying for the negative impact on the environment.

At the legislative level, in law enforcement practice, as well as in the legal literature, there is such a thing as “ownership of waste”. In particular, such instructions are contained in Art. 4 of the Federal Law “On Production and Consumption Wastes” (hereinafter – Federal Law No. 89-FZ) 1 , letters from authorized bodies 2 , judicial practice, as well as in the works 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 “ownership 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 turnover of which is determined on the basis of the general provisions of civil law, taking into account the special requirements provided for by the legislation on production and consumption waste and environmental protection. Special rules for the alienation and transfer of ownership of waste are closely related to the issue of ensuring that their owner fulfills the obligations to maintain his property, in particular, with compliance with environmental requirements 3 .

In turn, M.A. Ermolina 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 which this waste was generated 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 legally protected interests. As regards waste, it is impossible to dispose of waste by simply leaving it in the wrong place, since in this way the legally protected interests of the owner of the land plot, the environment, etc., protected by law, will be violated. But the owner of the waste has the right to transfer the waste to the property of the person who will legally dispose of it 5

With regard to the distribution of contractual obligations to pay for the 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 law sense, wastes are things, therefore their legal regime is determined by the norms of both environmental and civil law 6 .

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

2) the concept of waste.

When considering the issue in this plane, the arguments of G.S. Vasiliev, who subjected to critical analysis the Ruling of the Supreme Court of the Russian Federation dated February 4, 2015 in case No. 301-KG14-1670 in case No. A79-4567/2013 7, where the Judicial Collegium of the Supreme Court of the Russian Federation canceled the judicial acts of lower instances and recognized the bank’s demand for a refund, paid as payment for the negative impact, unreasonable and not subject to satisfaction, since the ownership of the waste, unless otherwise expressly provided in the waste disposal agreements concluded with specialized organizations, remains with the nature user (bank). In particular, the scientist puts forward the following theses relevant to this work:

1. The 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 garbage from different senders, but also press it. The contents of the trash can, which could previously be considered an object of the nature user's property right, disappears;

2. Preservation of the right of ownership for the nature user means that both the specialized organization that carries out the removal of waste and the owner of the landfill where they will be buried, make transactions with someone else's property. The authority to do so cannot be derived from normative acts;

3. transfer of ownership under a service agreement (a contract for the provision of waste disposal services) is possible. The service in the case under discussion 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 must himself 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 “the right of ownership of waste”, he makes a very fair remark that deserves attention - “the right of ownership disappears from the owner of the property when the latter named it as waste”.

In this regard, it should be noted that, traditionally, the right of ownership is understood as the most complete absolute right related to such a category of rights as real 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) with spatial characteristics, having the economic form of a commodity and, therefore, relating to objects of civil rights, are recognized as objects of real rights 9 . In other words, only a thing can have a value - a real value 10, i.e. have consumer properties that allow satisfying certain needs of a person from the relevant property, at the same time, if a thing has no economic value and cannot be considered as a commodity, such property is not a thing by its legal nature and cannot be recognized as an object of real rights - object of ownership.

The foregoing gives fundamental grounds for advancing the thesis: if a person indicates that a thing has been transformed into waste for him, the thing disappeared at once as an object of civil circulation and such a person lost the right of ownership to the said property, since the object of ownership can only be property that has 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 of a particular object is an evaluation criterion and depends on who the subject is, in particular: for some, a lamp computer, an old car, a waste product of artiodactyl cattle , 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 parrying this kind of reasoning is the answer to the question: what relationship describes (regulates) the right of ownership, and also in what meaning it is necessary to consider the term "waste": subjective or objective. It seems that the right of ownership 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 "waste", which is used both in the current version of the Federal Law No. 89-FZ, and in the earlier ones (for example, the version of 01/01/2014), is also defined from the point of view 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 former subject-object connection). Therefore, in the context under consideration, it is necessary to conclude that if a person uses property, the right of ownership exists precisely for the thing, since there is a real (consumer) value, and, therefore, the subject - object connection 11 exists. In the event that the specified subject performs conclusive actions, for example, throws a thing into a container, it becomes waste and simultaneously with the performance of the specified actions, the ownership of the thing disappears from the specified person, while no transformation (derivative method of occurrence) of ownership rights occurs and does not may happen. In some cases, a third party, in no way connected with the previous owner of the thing, may acquire a “thrown away” thing according to the rules on an ownerless thing (Article 225 of the Civil Code of the Russian Federation (hereinafter referred to as 12 of the Civil Code of the Russian Federation)), 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 these models of turning objects into property are the primary methods for 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 right property. A similar approach, it seems, should 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 the right of ownership by performing appropriate conclusive actions. At the same time, the termination of the right of ownership to a specific object of civil circulation does not mean that the said 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 incurred by its subjects from (the parties to the contract) at 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 unreasonable both from the point of view of public and private law, since the right of ownership as a category of property law can arise only on a thing that has a real (consumer) value, which is near waste , obviously missing;

2. the existence of the obligation to pay for the negative impact on the environment does not arise due to the fact that the person has the right to own the waste, but insofar as the said person, in addition to the rights to a specific thing that he owns, has as well as obligations 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 the article

1 Federal Law No. 89-FZ of June 24, 1998 (as amended on December 31, 2017) “On Production and Consumption Waste” (as amended and supplemented, effective from January 1, 2018) // Collected Legislation of the Russian Federation. 1998. No. 26. Art. 3009.

2 Letter of Rosprirodnadzor dated May 25, 2016 No. RN-03-03-31/9771 “On consideration of the appeal”, Letter of the Ministry of Natural Resources of Russia dated November 16, 2017 No. 12-47/30950 “On handling of 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 "Consultant Plus".

3 Ponomarev M.V. Ownership of Waste: Legal Problems of Implementation and Transition // Journal of Russian Law. 2017. No. 8. S. 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. S. 204 - 211.

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

5 Dudnikova A.G. Transfer of ownership of the waste: who will pay for the NWOS? // Handbook of ecologist. 2018. No. 5. P. 40 – 45.

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

7 Determination of the Supreme Court of the Russian Federation of February 4, 2015 No. 301-KG14-1670 in case No. A79-4567 / 2013 // Consultant Plus Legal Reference System: [Electronic resource] / Consultant Plus Company.

A similar position is found in other judicial acts. See: Ruling of the Thirteenth Arbitration Court of Appeal dated April 9, 2015 No. 13AP-343/2015 in case No. А56-64185/2014, Ruling of the Twenty-First Arbitration Court of Appeal dated January 27, 2016 in case No. А83-2004/2015, Ruling of the First Arbitration Court of Appeal court dated 04.10.2017 in case No. А43-20389/2016 // Consultant Plus Legal Reference System: [Electronic resource] / ConsultantPlus Company.

8 Vasiliev G.S. On the Owner of Waste - a U-turn of Judicial Practice // Law. 2015. No. 12. P. 106 - 112.

9 Sukhanov E.A. Property law: scientific and educational essay. M.: Statut, 2017. C. 14 – 17, 30 – 32, 70.

10 See: Belov V.A. Rent as a returnable obligation. Diss. … cand. legal Sciences: 12.00.03 / Belov Valery Aleksandrovich. Moscow, 2016. P.73, 94, 123, 125, 180.

11 See: Belov V.A. Status of a person: legal aspect // Actual problems of Russian law. 2017. No. 10. pp. 72-79.

12 Civil Code of the Russian Federation (part one) dated November 30, 1994 No. 51-FZ (as amended on December 29, 2017) // Collection of Legislation of the Russian Federation. 1994. No. 32., Art. 3301.

13 See: p. 3 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06.06.2014 No. 35 “On the Consequences of Terminating the Agreement” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2014. No. 8.

V.A. Belov,

PhD in Law, Responsible

editor of "News Digest" trade

and consumer law "legal

Institute "M-Logos", Moscow.

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The right of ownership of waste, which secures the ability to own, manage and dispose of them as property, is determined by their norms. The owner can perform any actions with waste that do not contradict the law. Utilities, in contrast to harmful substances - gases and effluents emitted by enterprises into the environment, are recognized by law as material things. Their disposal, as well as other objects and values, is determined by the provisions of civil law and federal laws. In addition, he has a number of maintenance responsibilities.

Federal Waste Ownership Law

The law on the norms for the treatment of industrial and household waste, which has federal status of 1998, regulates the rights and obligations of a person recognized as an owner.

Utilities as a material object can:

• Belong to the owner of raw materials, materials, finished products, which became the source of their formation.
• A transfer can be made to the second party on the basis of any alienation transaction: purchase and sale, donation, exchange.
• A transfer to the ownership of a person who has a license allowing operations with waste materials of 1-4 hazard classes can be made.
• Be transferred to another person who owns or leases the land on which they are located, if it is recognized that the owner left them for the purpose of relinquishing possession or for any other reason.

The old version of the law introduced a direct ban on the sale and transfer of hazardous waste to persons who do not have a license that gives them the right to collect, transport and dispose of them. In 2015, the Federal Law was edited and the ban lifted. The law retained the norm regulating the location. They can be stockpiled and stored only at objects that have been included in the state cadastre.

Definition of law

Most of the rules for handling waste materials - issuing a license, passports, compiling accounting and turnover standards - do not have a direct connection with the right of ownership. They are issued by enterprises with legal responsibility or individuals who carry out activities related to sources of waste. In the near future, the norms for waste as an object of property rights will oblige the manufacturer, in accordance with the law, to be responsible for the generated waste materials, without taking into account the property rights, they do not plan to change. In addition, manufacturers - legal entities and individual entrepreneurs from this year began to pay a tax for the negative impact on the environment if they placed garbage in landfills and solid waste landfills.

The current version of the law includes a great responsibility on the part of the owners of ferrous and non-ferrous scrap. Now they can sell scrap or alienate it only in possession of the established forms of documents confirming the right of ownership. According to the Decrees of the State Duma of the Russian Federation, enterprises or persons involved in the preparation, storage and processing of ferrous, non-ferrous and precious metals scrap are required, first of all, to formalize the right of ownership.

The law determines the responsibility of owners who own waste that is recognized as hazardous to the environment. At the moment, persons in possession of hazardous waste compensate for the damage caused to the environment at the place of storage or storage of garbage containing hazardous substances. In this case, a court decision, if the fact of violation of environmental laws is established, may be issued within a period of more than 10 years.

Thus, securing the ownership of garbage is of particular importance when performing any operations with them.

Ownership under civil law

The norms of the Civil Code are of decisive importance for the possession and operations with waste of all types and hazard classes.

They govern:

• Relations between the parties when registering the ownership of garbage, the rights and obligations of the owner and buyer in the event of its alienation.
• Operations on a contractual basis - contract and paid provision of servants.

The Civil Code does not directly regulate all relations in the sphere of circulation. For example, the emergence of property rights is not regulated directly. In this case, similar rules apply to determine the actions of the parties.

According to the articles of the code, the main owner is the owner of the materials or raw materials whose processing led to their formation. If the manufacturer is engaged in the processing and release of products from materials of a third party, then the ownership of the waste belongs to this person. The law gives the owner the right to dispose of his property in any way that is recognized as legal:

• Sell, donate, transfer property to other persons.
• Transfer raw materials for placement or processing, while remaining their legal owner.
• Transfer the rights to dispose of waste as property.

The code defines the legal norms for the actions of the parties in the event of alienation.

Grounds for registration of property rights

Ownership rights for waste, as for property, are formalized on the basis of contracts:

• Purchases - sales.
• Barter.
• Donations.

The main type is recognized as a contract of sale. Other types of transactions take place if raw materials, like property, are recognized as illiquid, that is, without a market value.

The rules of law regulate the ownership of orphan raw materials. In this case, the owner of the land on which they are located bears full responsibility for the harm caused by them. Thus, the law secures the right to dispose of raw materials to the owner of the land. He is obliged to draw up documents in the manner prescribed by law.

All types of waste are recognized as abandoned, for which no one claims and whose market value does not exceed five minimum wages.

These include:

• Metal scrap.
• Defective and substandard products.
• The forest is a driftwood from the alloy.
• Dumps of land formed during the development of ore deposits.
• Remains from industrial enterprises.

The owner of the land becomes the owner of the waste on the basis of the decision of the economic court, recognizing them as ownerless.

Owner relationship with suppliers and contractors

The law imposes on the owners the obligation to monitor organizations providing all types of services in the field of circulation - how they comply with the requirements for the protection of the natural environment. When concluding contracts with service providers, the owner puts forward requirements for the technical execution of operations.

These requirements are set out in the Civil Code:

1. The contractor is obliged to adhere to the rules and regulations of the law on environmental protection during the work.
2. When rendering services, the contractor may refuse the materials and equipment of the customer or refuse to fulfill his requirements if they are contrary to environmental legislation.
3. If the regulatory authorities decide to impose penalties on the owner, and the contractor is the culprit of the situation, then he is obliged to reimburse the costs within 2 weeks from the date of receipt of the order.
4. The contractor is obliged at his own expense to collect and remove all waste that has accumulated during the performance of work under the contract.

The agreement of the parties prescribes penalties in case of violation by the owner and contractor of their obligations, as well as the percentage increase in the size of the fine for each subsequent violation.

Environmental requirements for the work are specified in the technical conditions that are attached to the contract.

The main responsibilities of the contractor are:

• Compliance with the instructions for the collection, placement, transportation, disposal or disposal of waste in accordance with the hazard class.
• Ensure proper handling of combustible and explosive waste.
• Neutralization of hazardous waste containing mercury, heavy metals, radioactive substances, contaminated materials, based on instructions.
• Ensuring safe loading and unloading, compliance with the limits on their placement.
• Informing the customer about changes in the conditions for performing work: if the volume is exceeded, if the composition does not correspond to the declared one.

Special conditions are stipulated for contracts for paid operations with waste that will lead to soil or water pollution. In this case, it is advisable to transfer ownership rights to the service provider, because when the waste is removed from the owner's territory, he does not cease to be responsible for compliance with laws in the field of waste management. If the supplier refuses to accept ownership, then the contract specifies all cases that may lead to a violation of environmental laws.

Ownership rights for secondary raw materials

For several years there have been disputes about the legal status of waste and secondary resources. The dilemma is that, according to the law, the enterprise has the right of ownership to all types of waste that arose during the production process, while secondary resources can be included in the register of raw material deposits and become the property of the Ministry of Natural Resources.

The law defines:

1. If the waste of the main production is used for the production of other products, then they belong to the category of technological raw materials. In this case, it can be transferred to other manufacturers without registration of ownership.
2. If by-products, residues of raw materials and materials are sent for storage in sludge tanks and documents are not issued for them, as for raw materials, then they are recognized as waste. In this case, all operations in the field of industrial and man-made waste management are applicable to them. They are subject to appropriate registration and accounting.

When determining the legal status of the owner, one should refer to the Federal Law, which determines the procedure for handling waste and the Civil Code, which regulates the relationship of the owner with other persons and organizations.

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Waste as an object of ownership. Waste management in rental relationships

Often there are cases when enterprises enter into a contract for the removal of waste with specialized organizations involved in the collection and disposal of waste. At the same time, business entities have questions about how to properly draw up a contract for waste removal, should the receiving organization have a license for waste management, who should pay for waste disposal?

In a lease relationship, further actions with waste also depend on the conditions specified in the lease agreement. At the same time, the parties to the agreement ask themselves what conditions should be provided for in the lease agreement, who should develop the PNOLR and pay the fee for the NVOS - the tenant or the landlord.

Waste ownership

Waste is an object of property rights. 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 ( Article 4 of the Federal Law of June 24, 1998 No. 89-FZ "On production and consumption waste").

The owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or the relevant agreement (Article 210 of the Civil Code of the Russian Federation).

Ownership of waste can be transferred to another person on the basis of a contract of sale, exchange, donation or other transaction on the alienation of waste (Article 4 of the Federal Law of 24.06.1998 No. 89-FZ). Also, in accordance with part I of the Civil Code of the Russian Federation, the owner can transfer his property to other persons, while remaining the owner.

As a rule, legal entities and individual entrepreneurs enter into contracts for the export and subsequent disposal of waste with specialized organizations. It is important to know that the existence of such an agreement does not exempt from paying a fee for negative environmental impact, the amount of which depends on the amount and danger of waste. Exceptions are cases:

• when the contract provides for the transfer of ownership of waste to a specialized organization;
• when waste is placed on behalf of another person on the basis of an intermediary agreement (commission agreement) concluded.

It is important to distinguish the transfer of waste with the transfer of ownership from the transfer of waste to an organization providing waste collection services.

If the owner of the waste has transferred ownership of the waste, then he is not responsible for it. If such waste was disposed of after the transfer of ownership, then the payment for the negative impact on the environment should be paid to the new owner.

Another type of agreement is an agreement on the final disposal of waste. With such an agreement, the organization that receives the waste assumes all obligations for the placement of these wastes, the calculation of fees for environmental pollution and its payment, regardless of whether the agreement provides for the transfer of ownership of the waste.

In order to correctly determine the payer of the NVOS fee and prevent repeated payments, it is recommended that when drawing up an agreement with specialized organizations providing services for the collection and disposal of waste, it is recommended to clearly define the type of agreement and the conditions for the transfer of ownership.

Thus, on the issue of payment for NVOS in terms of waste disposal, we can conclude that until the necessary changes are made to the legal regulation:

• the fee is paid by the owner of the waste, that is, the waste generator, if the contract does not provide for the transfer of ownership;
• A fivefold multiplying factor when calculating the fee for NVOS should not be applied to a specialized organization carrying out activities for the disposal of waste generated as a result of the economic and other activities of other organizations, if it has not committed violations related to the determination of limits for waste disposal.

Article 4 of the Law “On Waste” interprets the right of 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.

By another person, this ownership right to waste can be acquired on the basis of civil contracts (purchase and sale, exchange, barter, donation or other waste disposal transaction).

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

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

Having begun to use waste or having performed other actions indicating that they have been turned into property, a person has a pre-emptive right, in any case, for their processing and consumption.

The owner has the right to use waste without a license, if this does not contradict the terms of the license, as well as the provision of paragraph 4 of part 1 of Article 22 of the Law "On Subsoil".

If the ownership has been transferred to another person, then he will need a license. Also, Article 18 contains a ban on providing 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 a waiver terminates ownership if the waiver is accepted by the competent authority.

The law does not distinguish waste disposal as a denial 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 accounting for waste disposal sites and subjects of rights. At the same time, part of the waste falls into the category of hazardous, including radioactive. The use of which is subject to certain restrictions. See the Federal Law "On the industrial safety of hazardous industrial facilities", the Federal Law "On the use of atomic energy".

Ownership rights.

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 bring certain improvements (redecoration, overhaul, up to reconstruction).

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

Legal regime of geological information

Article 27 of the Law "On Subsoil":

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

In this way, legal regime information may be determined by the right of ownership or the right of use of other persons, and the forms of ownership may be different.

Ownership of information is not a real 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.

Means of individualization– trademarks, service marks, trade dress and mark.

Hello. LLC is engaged in activities related to waste management (collection, transportation, burial). The land on which the landfill is located is owned by LLC on a leasehold basis. The owner and lessor of this land plot is a utility company, the tenant is an LLC (lease agreement for 50 years).

In accordance with paragraphs 1.8 and 1.10 of the Rules for the operation of landfills for domestic waste, the landfill accepted for operation must have an appropriate passport for the waste disposal site (hereinafter referred to as the MDO) in accordance with the Procedure for maintaining the register of waste disposal sites and DBN V.2.4-2-2005 "Landfills municipal solid waste. Fundamentals of design.

According to clause 5 of the Procedure for maintaining a register of waste disposal sites, a special passport is drawn up for each MDO, which indicates the name and code of the waste, their quantitative and qualitative composition, origin, as well as technical characteristics and information on methods of control and safe operation. A special passport is drawn up by the owner of the MDO in accordance with the Instructions on the maintenance and preparation of a passport for waste disposal sites reg3353.

Clause 3 of the Procedure for maintaining a register of waste disposal sites stipulates that the owner of waste disposal sites (or facilities) is any individual or legal entity that legally disposes of waste, including a waste producer.

In a telephone conversation, an employee of the Ministry of Ecology, dealing with the issuance of passports, assured that the MUA passport should be drawn up by the owner of the landfill, that is, the person who owns it on the right of ownership, and not lease. In our case, the utility company.

But based on the above legislative norms, LLC, as a legal entity that legally disposes of waste, is the owner of the MUO.

In connection with the above, the following questions arise:

1. Who in our case should draw up a landfill passport? Utility company or LLC? Does the landfill passport need to be produced annually (is there any mandatory procedure for submitting certain documents for passport revision or reissuance)?

2. LLC owns the land plot on which the landfill is located on the right of lease. Are a land plot and a landfill different objects or does the lease of a land plot mean the lease of a landfill? If these objects are different, how is the right to use the landfill (and not the land plot under it) formalized?

Good afternoon! First of all, it is necessary to pay attention to clause 1.3 of the Rules for the operation of landfills for domestic waste, in which a landfill is defined as an engineering structure intended for the disposal of domestic waste. Thus, the landfill and the land plot on which this landfill is located are different objects based on the definition of an engineering structure given in the State Classifier of Buildings and Structures DK 018-2000.

This is also confirmed by the fact that leasing a land plot in itself does not mean obtaining the right to operate a landfill. This follows from the norms of clause 1.2 of the Rules for the operation of municipal waste landfills (the need to accept new landfills for operation in accordance with the rules established for construction), as well as DBN V.2.4-2-2005 “Solid waste landfills. Fundamentals of Design”, which sets out requirements for the technical and engineering support of landfills, that is, a land plot without the appropriate equipment is not a landfill.

Consequently, in this situation, an LLC may well both combine the status of a land plot tenant and a landfill owner, or be a tenant of both a land plot and a landfill at the same time.

In turn, the landfill as an engineering structure fully falls under the definition given by Art. 181 of the Civil Code to real estate. That is, real rights to the landfill (including the right of ownership and the right to lease) are subject to state registration in accordance with the Law “On State Registration of Real Rights to Real Estate and Their Encumbrances”.

It is the data of the Unified State Register of Property Rights to Real Estate and its Encumbrances that will be decisive in answering the question of who is the owner of the MDO in the form of a landfill for the purpose of obtaining an MDO passport in accordance with the Procedure for maintaining the register of waste disposal sites. If data on the owner (and tenant, if any) of the landfill are not included in the register of real estate rights, for example, due to the fact that the relevant relations arose even before the start of the register (that is, before January 1, 2013), then the required information should have fixed the local BTI.

As for the procedure for revising the MDO passport, it is regulated by clause 19 of the Procedure for maintaining the register of waste disposal sites. In particular, it consists in carrying out observations, control measurements, additional work, and so on, based on the results of which entries are made in section XII of the MUA passport specially designed for this purpose and, if necessary, changes in other sections of the MUA passport.