The administrative responsibility that might be derived from the waste management activity does not lie with the "person responsible for the waste", but the company which, as a waste producer or holder, is the physical person or legal entity that Decree 1/2009 of July 21st, which aproves the revised text of Law 6/93 regulating waste makes responsible for guaranteeing its correct management.
In this sense, articles 23 and 29.3 of Decree 1/2009 of July 21st, which aproves the revised text of Law 6/93 regulating waste establish that the waste producer and holder are obliged to guarantee that that wastes generated or held are managed correctly, that is, in accordance with the requisites of the law and by an authorised manager.
Failure to fulfil these obligations gives rise to administrative responsibilities which in any case lie with the people obliged, that is, the waste producer or holder, and not other subjects such as the waste controller.
A different matter entirely is the penal responsibility that they might incur concerning the waste when the infringement constitutes an offence according to the articles 325 and following of the Penal Code. In this area the responsibilities lie with the physical person or people who might be responsible for the offence. In this case it is possible to penally blame the waste controller insofar as they have participated in committing the offence.
A by-product is a form of waste, as defined in the revised text of the Law regulating waste approved by Legislative Decree 1/2009 of 21 July: "By-products are waste substances which can be used directly as raw materials in other products or as a substitute for commercial products and whose recovery requires no additional treatment.
Although they are waste, as they can be used directly, by-products are affected by a different legal system.
In this sense, Decree 93/1999 concerning waste management procedures establishes in article 29 that by-products are excluded from the waste control documentary obligations: Acceptance sheet and Consignment note. Furthermore, the mentioned article regulates the following by-product declaration procedure:
"The producer or holder and the receiver of a waste must give the Agència de Residus de Catalunya a copy of the contract signed between the parties for the corresponding by-product declaration, agreeing on the purchase and sale of the waste and an explanatory report giving its description and composition, the description of the receiver process and the raw material to be replaced".
"The Agència de Residus de Catalunya declares the waste a by-product, identifies it with the process in which it is to be used and states the producer or receiver company. This declaration has a maximum duration of five years, after which it lies without effect".
"The companies using the waste referred to in the previous aside do not have to register in the General Register of Waste Management of Catalonia. The companies producing and receiving this waste must state their transfer in their annual industrial waste declarations."
Article 19 of the aforementioned revised text establishes that the following parties are responsible for the costs of cleaning and recovering contaminated soil and degraded areas and, if necessary, for carrying out studies and risk analyses to determine what actions are required:
One: The parties causing the contamination, acting together where more than one party is involved.
Two: The owners of the land and the non-owning occupants, in that order, acting together where more than one party is involved.
The parties causing the contamination of a site are required to clean it to the standards of the land use applicable when the land was transferred. They are not required to carry out additional cleaning measures to bring the land up to standard for new uses, except where they have requested the reclassification themselves.
In accordance with article 20 of the revised text, if a site is declared to be contaminated, building and other exploitation rights may be suspended until the cleaning and recovery measures required have been carried out or the site has been declared to be uncontaminated.
Title V of Law 10/1998 of 21 April on waste sets out the main Spanish regulations governing contaminated soil. The obligations and responsibilities established in Law 10/1998 of 21 April on waste state that cleaning and recovery measures must be carried out when a site is declared to be contaminated, with the costs being assumed by the same parties as those established in Catalonia in the revised text of the Law regulating waste.
Royal Decree 9/2005, of 14 January, which sets out a list of potentially contaminating activities and the criteria and standards for declaring contaminated sites, regulates the obligations attached to potentially contaminating activities and establishes the criteria under which the competent bodies in the Autonomous Communities can declare a site to be contaminated.
Article 3 of the aforementioned Royal Decree defines potentially contaminating activities and the reports which those engaged in such activities must file with the relevant body (Agència de Residus de Catalunya - ARC).
There are two types of report: The preliminary status report (IPS) and the status report (IS).
The owners of land where a potentially contaminating activity took place in the past must also file a status report (IS) when applying for a licence or permit to carry out an activity other than a potentially contaminating activity on the site or one which represents a change of land use.
However, article 5.3 establishes that the Agència de Residus de Catalunya may approve other forms of management in the following circumstances:
a)There are verifiable differences in the composition or potential behaviour of the waste that warrant special treatment.
b)Given the nature of the waste, there is a verifiable alternative form of management that will be more environmentally friendly.
An application must be made for authorisation from the Agency to manage the waste in a way not established in the Catalogue. The application must be accompanied by an analysis of the waste conducted by an ARC-accredited laboratory.
Decree 93/1999 of 6 April on waste management procedures states that the acceptance sheet expires automatically after five years, and it must be kept while it remains in force.
.It also stablishes that the destination sheet is valid for two years, after which it may be destroyed.
Decree 136/2009 of 1 September, approving the programme of measures for areas vulnerable to contamination by nitrates from agricultural sources and the management of manure, establishes that manure management records must be kept for five years from the date of the last entry or the termination of the activity. Livestock managers and manure management centres must keep manure delivery records for at least five years, stored in their management records together with the original dockets signed by the transport operative and the final recipient, when relevant.
Decree 69/2009 of 28 April establishing criteria and procedures for the admission of waste to landfill, states that the landfill operator must keep records on the nature of the waste received. These records must be kept for at least five years.
It also establishes that the producer or owner of the waste must maintain records on the compliance tests performed and the operator must keep a register of the compliance tests on the waste received. These records must be kept for at least five years.
Spanish Law 10/1998 of 21 April establishes that waste management records must be kept for 5 years.
Royal Decree 833/1988, of 20th July, implementing Law 20/1986 on toxic and hazardous waste, obliges the producers and managers of hazardous waste to keep records, acceptance documentation, annual declarations, annual operating reports and waste control and consignment documentation for five years.:
As a general rule, it can be said that all waste management documentation must be kept for at least five years.