Environmental Impact Assessment in The Investment Process

Environmental impact assessment in the investment process
Lukowicz Swierzewski & Partners I Dachengs Global Legal Service Network

by Lukowicz Swierzewski & Partners Attorneys at Law
Contents
What is the environmental impact assessment (EIA)? ________________________________________________ 3 How is the EIA conducted? ______________________________________________________________________ 3 What is the scope of the EIA? ___________________________________________________________________ 3 How to check whether a planned project requires conducting the EIA? _________________________________ 4 For what kinds of projects is it necessary to conduct the EIA? _________________________________________ 4 Which projects may always have a significant impact on the environment (i.e. group I) and which may only potentially have such an impact (i.e. group II)? _____________________________________________________ 4 What is reviewed by the authority which decides that the EIA is necessary for projects from group II? _______ 5 How to initiate the EIA procedure? _______________________________________________________________ 5 Where should the EIA application be submitted? ___________________________________________________ 5 Who issues decisions on environmental conditions? _________________________________________________ 5 What should the application for issuing a decision on environmental conditions include? __________________ 6
What enclosures need to be attached to the application for issuing a decision on environmental conditions? _ 6 What is the report on the environmental impact? ___________________________________________________ 7 What should the Investor do if he/she is planning to implement a project from group I but does not know the appropriate scope of the report?_________________________________________________________________ 8 What is the information sheet of the project? ______________________________________________________ 8 How long does the environmental impact assessment procedure take? _________________________________ 9 What is the society participation in the process of making decisions for projects for which EIA is conducted?__ 9 What is the decision on environmental conditions (environmental decision)? ___________________________ 10 What does the decision on environmental conditions include? _______________________________________ 10 How long is the decision on environmental conditions valid? ________________________________________ 11 Can the decision on environmental conditions be transferred to a different person? _____________________ 11 When is it necessary to conduct the environmental impact reassessment (the supplemental procedure)? ___ 11 When the decision on environmental conditions may require the reassessment? ________________________ 12 What are the documents which the Investor must enclose in the case of the requirement of conducting the reassessment which results from the decision on environmental conditions and to whom should these documents be submitted? _____________________________________________________________________ 12 When should the Investor submit the application for conducting the subsequent EIA? ___________________ 12 What documents should the Investor enclose while submitting the application for the subsequent EIA and to whom should the application be submitted? ______________________________________________________ 12 When does the authority decide about the necessity to conduct the subsequent EIA? ____________________ 12 What documents should the Investor enclose when the authority decided that the subsequent EIA is necessary and to whom should the documents be submitted? _______________________________________ 13 What is the cross-border procedure and when is it conducted? _______________________________________ 13 The Author __________________________________________________________________________________ 13
What is the environmental impact assessment (EIA)? (1) The environmental impact assessment (hereinafter referred to as the EIA) is one of the basic instruments of management and legal protection of the environment, which must be analyzed by every Investor planning to implement an investment project on the territory of the Republic of Poland in order to confirm or rule out the necessity of conducting the EIA for an implemented project. (2) The basic role of conducting the environmental impact assessment is to obtain information about a planned project: the extent to which it impacts the environment as well as the benefits of its implementing which should outweigh the losses resulting from its impact on the environment. (3) The aim of the EIA is to predict potential environmental risks and their scale at the stage of investment planning and, consequently, to eliminate those risks or to limit them and minimize the negative impact of the implementation of a planned investment. (4) The EIA involves in particular: verifying the report on the environmental impact, obtaining opinions and agreements which are required by law as well as ensuring that the community can participate in the administrative procedure. How is the EIA conducted? The environmental impact assessment is conducted as a part of: (1) the procedure for issuing a decision on environmental conditions, which is conducted by the authority which is competent for issuing decisions on environmental conditions (see the question: Who issues decisions on environmental conditions?); (2) the procedure for issuing investment decisions i.e.: (i) decision on a construction permit, decision on the approval of a building permit design, decision on the permission for construction works resumption and decision on the permission for a change in the designated use of a civil structure or of its part; (ii) decision on the permission for implementing a road investment; (iii) decision on the permission for implementing an investment related to a public-use airport; (iv) decision on the permission for implementing an investment related to flood protection constructions; if: the necessity to conduct the environmental impact assessment has been stated by the authority which is competent for issuing decisions on environmental conditions (this applies to projects from group II), and when reassessment is conducted: upon the Investor's request or in the situation in which the competent organ has stated that the application for issuing a decision was changed with regard to the requirements defined in the decision on environmental conditions. What is the scope of the EIA? The EIA involves the analysis and assessment of the following: (1) (direct and indirect) impact of the project on the environment including the impact on: (i) condition of air, water and soil (natural environment), (ii) condition of flora and fauna (nature), (iii) human health and living conditions, tangible goods and culture heritage objects (social environment) and (iv) interrelations of the above as well as (v) access to mineral resources; (2) options and methods of preventing and minimizing the negative impact on the environment; (3) necessary scope of monitoring, which, in the case of "more onerous" projects, will make it possible to determine the actual impact on the environment already at the stage of project implementation and, optionally, will enable to modify accepted means which are to reduce the negative impact on the environment.
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How to check whether a planned project requires conducting the EIA? (1) The basic act regulating the EIA in the Polish law is the Act of 3 October 2008 on the Provision of Information on the Environment and its Protection, Public Participation in the Environmental Protection and Environmental Impact Assessments (Journal of Laws No. 199, item 1227), the Act on the EIA. (2) The Regulation of the Council of Ministers of 9 November 2010 on types of projects likely to have a significant impact on the environment (Journal of Laws No. 213, item 1397) enumerates: (i) types of projects which may always have a significant impact on the environment (group I); (ii) types of projects which may potentially have a significant impact on the environment (group II); (iii) cases in which modifications of civil structures are classified as projects from group I or group II. For what kinds of projects is it necessary to conduct the EIA? (1) The environmental impact assessment may be necessary for an investment project which includes: (i) construction; (ii) conversion; (iii) extension; (2) The environmental impact assessment is conducted ALWAYS when a planned project, because of its character, is classified as a project which: (i) may always have a significant impact on the environment (group I); (ii) may potentially have a significant impact on the environment (group II) but only when the authority which is competent for issuing decisions on environmental conditions deems it necessary. (3) The decision regarding the category to which a particular project should be classified is governed by The Regulation of the Council of Ministers of 9 November 2010 on types of projects likely have a significant impact on the environment (Journal of Laws No. 213, item 1397). Which projects may always have a significant impact on the environment (i.e. group I) and which may only potentially have such an impact (i.e. group II)? Projects which may always have a significant impact on the environment (group I) are defined in 2 of The Regulation of the Council of Ministers of 9 November 2010 on types of projects likely to have a significant impact on the environment (Journal of Laws No. 213, item 1397) and they include e.g. (1) systems for producing chemical or pharmaceutical substances with the application of chemical and biological processes; (2) power units and combined power and heating units, including conventional power plants, nuclear power plants, combined power and heating plants, wind power plants, energy transport systems; (3) some radio communication, radio navigation and radio location systems; (4) systems for primary and secondary melting of pig iron and crude steel, casting steel, producing nonferrous metals, processing and casting ferrous metals; (5) systems for producing paper, cardboard or pulp from wood; (6) extracting oil, natural gas and other mineral resources; (7) any systems for transporting and processing oil and natural gas; (8) railway lines, airports, highways and expressways, water ports and inland waterways; (9) water dams, constructions for protecting waters, constructions for drawing and transporting water; (10) any systems for storing, neutralizing and recycling waste including vehicle disassembly facilities; Projects which may potentially have a significant impact on the environment (group II) are defined in 3 of The Regulation of the Council of Ministers of 9 November 2010 on types of projects likely to have a significant impact on the environment (Journal of Laws No. 213, item 1397).
What is reviewed by the authority which decides that the EIA is necessary for projects from group II? The authority which is competent for issuing decisions on environmental conditions decides about the necessity of evaluating the environmental impact in the case of projects which may potentially have a significant impact on the environment (the so-called group II) and, while making such a decision, the authority takes into consideration mainly: (1) type and character of the project (its scale, relation to other projects which are being implemented or planned in a particular area, use of natural resources, emission and presence of other nuisances and a risk of failure); (2) location of the project making allowance for a possible threat for the environment, in particular with regard to the existing use of the area, the capability of the environment to purify itself and replenish natural resources, natural and landscape values as well as the conditions of local land development plans; (3) type and scale of the possible impact considered in relation to the above-mentioned conditions, which result from the range of the impact, cross-border character of the impact which the project has on particular elements of nature, scope and complexity of the impact including burden for the existing technical infrastructure as well as likelihood, length, frequency and reversibility of the impact. How to initiate the EIA procedure? (1) In principle the EIA procedure is initiated by the application which is submitted by the Investor planning to implement a project which requires such assessment. The Investor prepares the application for issuing a decision on environmental conditions and, together with its enclosures, files it with the appropriate authority (see the question: Who issues decisions on environmental conditions?). (2) The EIA procedure may also be initiated as a result of submitting the application for issuing investment decisions (see question: How is the EIA conducted?) Where should the EIA application be submitted? (see the question: Who issues decisions on environmental conditions?) Who issues decisions on environmental conditions? The authority which is materially competent for issuing a decision on environmental conditions is: (1) commune head or mayor except for situations in which the competent authority is: (2) regional director for environmental protection in the case of: (i) the following projects which may always have a significant impact on the environment: roads, railway lines, overhead power lines, systems for transporting oil, oil products, chemical substances or gas, artificial water bodies, nuclear facilities, nuclear waste stockpiles; (ii) projects implemented in enclosed areas; (iii) projects implemented in sea areas; (iv) conversion of a forest which does not belong to the State Treasury into arable land; (v) projects which involve implementing investments related to a public-use airport; (vi) investments related to a terminal; (vii) investments related to regional broadband networks; (viii) projects involving modification or extension of the above-mentioned projects; (ix) projects which involve implementing investments related to flood protection constructions; (3) General Director for Environmental Protection in the case of investments related to constructing nuclear energy facilities; (4) starost in the case of consolidating, exchanging or dividing land; (5) director of the Regional Directorate of State Forests in the case of conversion of a forest which belongs to the State Treasury into arable land; Local competence (1) the authority which is locally competent is the authority having jurisdiction over the place where the investment is implemented;
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(2) in the case of investments implemented in sea areas or partially in such areas, the competent authority is the regional director for environmental protection who has jurisdiction over the sea area adjacent to the seashore on the territory of a particular province; (3) if the investment goes beyond one district or province, the competent authority is, respectively, the commune head, the mayor or the regional director for environmental protection who has jurisdiction over the biggest part of the area where the project is to be implemented. What should the application for issuing a decision on environmental conditions include? The application should be drafted according to the regulations of the Code of Administrative Procedure and define: (1) name and address of the Investor; (2) information about the planned project and the kind of decision which must be obtained in order to implement the project after obtaining the decision on environmental conditions; (3) Investor's signature; (4) enclosures defined in the EIA Act (see the question: What enclosures need to be attached to the application for issuing a decision on environmental conditions?) ATTENTION: you can download specimen applications from the Internet sites of most districts. What enclosures need to be attached to the application for issuing a decision on environmental conditions? (1) enclosures to the application for issuing a decision on environmental conditions for projects which may always have a significant impact on the environment (group I) are: documents: (i) report on the environmental impact of the project or (ii) project information sheet with the application for determining the scope of the report on the environmental impact of the project only in the case when the Investor submits the application for determining the scope of the report; The report and the information sheet are submitted in three copies together with a copy on an electronic data storage device; cartographic materials: (i) the copy of the cadastral map which is certified by the competent authority (the Poviat Office of Land Surveying and Cartography) and includes the estimated area on which the project will be implemented as well as the area on which the project will have impact (3 copies); (ii) land survey and height map drafted at a scale which enables to present detailed borders of the area which the application is related to and which covers the area on which the project will have impact instead of the cadastral map in the case when the project requires a decision on excavating mineral resources within the borders of the area which is not a part of lands (3 copies); (iii) extract from the local land development plan if such exists or information about its non-existence for projects for which the governing authority is, respectively, the regional director for environmental protection or the General Director for Environmental Protection (projects which are exceptions and do not require this enclosure are enumerated in the EIA Act); (iv) in the case in which the number of pages in the procedure of issuing a decision on environmental conditions exceeds 20: extract from the land register which includes the estimated area on which the project will be implemented as well as the area on which the project will have impact; the extract is submitted together with the report (projects which are exceptions and do not require this enclosure are enumerated in the EIA Act). ATTENTION: in the case when the project may have a cross-border impact on the environment, the Investor is required to submit the application for determining the scope of the report instead of the report on the environmental impact.
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formal enclosures a receipt of the payment of the stamp duty for issuing a decision on environmental conditions and, in the case of acting by proxy, also a receipt of the payment of the stamp duty for submitting a document which confirms the appointment of a proxy. (2) enclosures to the application for issuing a decision on environmental conditions for projects which may potentially have a significant impact on the environment (group II) are: documents: (i) project information sheet; (ii) report on the environmental impact of the project only in the case when the authority requires it to be drafted; The report and the information sheet are submitted in three copies together with a copy on an electronic data storage device; cartographic materials: (i) enclosure enumerated in (i) (iii) for projects which may always have a significant impact on the environment; (ii) extract from the land register which includes the estimated area on which the project will be implemented as well as the area on which the project will have impact in the case in which the number of pages in the procedure of issuing a decision on environmental conditions exceeds 20 and when it is a project in the case of which: the necessity to conduct the environmental impact assessment has been stated the extract is submitted together with the report; the necessity to conduct the environmental impact assessment has not been stated the extract is submitted within 14 days from the day when the decision becomes final (projects which are exceptions and do not require this enclosure are enumerated in the EIA Act). formal enclosures a receipt of the payment of the stamp duty for issuing a decision on environmental conditions and, in the case of acting by proxy, also a receipt of the payment of the stamp duty for submitting a document which confirms the appointment of a proxy.
What is the report on the environmental impact? The report on the environmental impact is one of the basic documents of the EIA. It includes all the information which has been gathered during the evaluation conducted by the Investor and which concerns the predicted impact which the construction, operation and liquidation related to the project may have. The elements of the report are defined in article 66 of the EIA Act and they are, in particular: (1) description of the planned project description of the whole project and conditions of using the area in the phase of construction and operation or use and main characteristics of the production processes as well as the estimated kinds and amounts of pollution which will be a result of the planned project functioning; (2) description of the natural elements of the environment which are within the range of the anticipated environmental impact of the planned project; (3) description of the protected historical monuments which exist in the vicinity or within the immediate range of the impact of the planned project; (4) description of the anticipated impact on the environment in the case when the project is not implemented; (5) description of the analyzed variants: the variant suggested by the applicant and the rational alternative variant, the variant which is most beneficial for the environment with the justification of their choice; (6) description of the anticipated impact of the analyzed variants on the environment, including their impact in the case of a serious industrial failure as well as the possible cross-border impact on the environment;
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(7)
(8) (9) (10) (11)
justification of the variant suggested by the applicant with the indication of its impact on the environment, in particular on: humans, plants, animals, fungi and natural habitats, water, air and land, including mass movements of land, climate and landscape, material goods, cultural monuments and landscape, which are present in the existing documentation, especially in the register or records of historic monuments, a mutual influence of these elements, a description of prediction methods and a description of anticipated significant impact of the planned project on the environment, including direct, indirect, secondary, cumulative, short, medium and long-term, permanent and temporary impact on the environment resulting from: (i) the project existence, (ii) exploitation of natural resources, (iii) emission; analysis of possible social conflicts which are related to the planned project; presentation of a plan for monitoring the impact of the planned project at the stage of its construction and operation or use; indication of the difficulties resulting from imperfections of technology or gaps in the modern knowledge which have been encountered while drawing the report; if the report concerns a project which may have a cross-border impact on the environment, it is necessary to define a negative impact detectable beyond the borders of the Republic of Poland.
The report should include the enumerated issues in a graphic and cartographic form at a scale which is suitable for the matter and the detailed character of the issues analyzed in the report and which enables a comprehensive presentation of the conducted analyzes of the environmental impact of the project. The report should also include a summary of all the information presented in the report written in a non-specialist language. In addition to that, it is necessary to mention the name of a person or persons who drafted the report and list sources of information which were the basis for its drafting. What should the Investor do if he/she is planning to implement a project from group I but does not know the appropriate scope of the report? In such a case the Investor, while submitting the application for issuing a decision on environmental conditions, should not include the report on the environmental impact of the project but, instead, should include (1) the project information sheet and (2) the application for determining the scope of the report (see the question: What is the project information sheet?). ATTENTION: determination of the scope of the report is obligatory in the case when the project may have a cross-border impact on the environment. What is the information sheet of the project? The project information sheet is a document which includes the basic information about the planned project and enables the competent authority to make a decision about (i) the necessity or (ii) the lack of necessity to conduct the environmental impact assessment for a particular project. The information sheet is an enclosure to the Investor's application for issuing a decision on environmental conditions for the planned investment which: (1) may always have a significant impact on the environment (group I) it is a basic enclosure; (2) may potentially have a significant impact on the environment (group II) in the case when the Investor submits the application for determining the scope of the report on the environmental impact of the project. Elements of the information sheet: (1) type, scale and localization of the project; (2) area of the occupied property and of the civil structure as well as their use and presence of vegetation on the property to date; (3) type of technology; (4) possible variants of the project; (5) estimated amount of the consumption of water, resources, materials, fuels and energy; (6) solutions protecting the environment;
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(7) types and estimated amounts of substances and energy entered into the atmosphere while applying environmentally-friendly solutions; (8) possible cross-border impact on the environment.
How long does the environmental impact assessment procedure take? The environmental impact assessment should be concluded within the time specified in article 35 of the Code of Administrative Procedure, i.e. within 1 month from the day of initiating the procedure and, in particularly complicated cases, within 2 months. These time limits are limits for the authority and they do not include: time limits provided by law for performing specific activities, periods of suspending the procedure and periods of delay caused by the party (the Investor) or periods of delay caused by reasons which are independent of the authority. Consequently, the whole length of the EIA depends on: (1) completeness of the application for issuing a decision on environmental conditions in the case of a potential necessity to supplement formal documents of the application the procedure will be extended by the time which the Investor needs to provide necessary supplements; (2) time of issuing the opinions or making arrangements with the Regional Director for Environmental Protection and issuing the opinion by the Body of the National Sanitary Inspection (the law prescribes a limit of 14 days in the case of assessing the need to conduct the EIA and determine the scope of the report and 30 days in the case of arranging and assessing the reports which have already been drafted); (3) time of the society participation in the process of making decisions for projects for which the EIA is conducted (the law prescribes a limit of 21 days for submitting comments and motions); Prolongation of the EIA procedure may be caused by: (1) necessity to supplement formal defects of the Investor's application; (2) necessity to make an inventory of species for projects which require that because it may be necessary to conduct a series of studies of which length and scope will depend on the scope and type of the project and which will be needed for preparing the report on the environmental impact; (3) implementation of the project which may have a cross-border impact. ATTENTION: a well-prepared project information sheet of the group II may cause that it will not be necessary to conduct the environmental impact assessment, which will shorten the length of the procedure for issuing the environmental decision. The length of the procedure may also be shortened by initiating social consultations already at the stage of planning the investment (it is especially advised in the case of projects which are so called difficult for the society to accept). What is the society participation in the process of making decisions for projects for which EIA is conducted? (1) The society participation in the procedure including the environmental impact assessment is ensured before issuing the environmental decision. (2) The society participation in the EIA procedure is one of the more important stages of this procedure and is required from the authority which is competent for issuing the environmental decision. (3) The society participation in the course of the procedure (social consultations) is ensured, in particular, by: (i) publishing information about: initiating the EIA, initiating the procedure, subject of the decision which is to be issued, authority which is competent for issuing the decision and the authorities which are competent for issuing opinions and making arrangements, opportunity to familiarize oneself with essential documentation of the case,
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opportunity to submit comments and motions, the way and place to submit them as well as the authority which is competent for investigating them, time and place of the administrative hearing (if such is to be conducted), procedure related to the cross-border environmental impact if such a procedure is conducted; (ii) ensuring the right to familiarize oneself with essential documentation of the case, which includes: the application for issuing a decision with necessary enclosures and opinions of other authorities if such opinions are available at the time for submitting comments and motions; (iii) ensuring the right to submit comments and motions within 21 days from publication (in a written form, orally for the record, by means of electronic communication without the need to provide a safe electronic signature); (iv) ensuring the right to participate in the administrative hearing if such is to be conducted. (4) Everyone has the right to submit motions and comments in the procedure which requires the society participation. (5) Special rights to participate in the procedure which requires the society participation are given to environmental organizations which: (i) will refer to their statutory purposes and express the willingness to join the procedure as a party but also when they (ii) do not participate in the administrative procedure but it is justified by their statutory purposes (then they have a right to appeal against the decision and file a complaint in the administrative court). ATTENTION: early initiation of social consultations of which goal is to clarify doubts accompanying the planned project should enable to conclude the consultations in the statutory term of 21 days and, consequently, should enable shortening the length of the procedure. What is the decision on environmental conditions (environmental decision)? (1) The decision on environmental conditions is an administrative decision which defines the environmental conditions which must be fulfilled for the planned project to be able to take place; (2) It is a rule that there is only one environmental decision issued for one project, also when it is necessary to obtain a larger number of investment (construction) decisions for a particular project or when there are separate decisions which are obtained on subsequent stages of project implementation. Exceptions to this rule are related to the Natura 2000 area; (3) Obtainment of such a decision is required for planned (i) projects which may always have a significant impact on the environment and (ii) projects which may potentially have a significant impact for the environment; (4) This decision is not always preceded by conducting the EIA. If the EIA has not been conducted (in cases of projects from group II), the authority must state in the decision that it is not necessary to conduct the EIA; (5) The decision on environmental conditions is binding for the authority which issues investment decisions of which issuing must be preceded by issuing the environmental decision (the catalog of such investment decisions is included in article 72 of the EIA Act); What does the decision on environmental conditions include? In the decision on environmental conditions which is issued after conducting the environmental impact assessment the competent body e.g. (1) defines: (i) type and place of implementing the project, (ii) conditions of using the area in the phase of implementing and operating or using the project with a focus on taking into consideration the necessity to protect valuable natural values, natural resources and historic monuments and the necessity to minimize arduousness for adjacent areas, (iii) requirements related to environmental protection which must be taken into consideration in the documentation required for issuing investment decisions,
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requirements related to preventing effects of industrial failures in the cases of projects classified as facilities with a risk of serious failures, (v) requirements related to minimizing the cross-border impact on the environment in the cases of projects for which the procedure related to the cross-border environmental impact is conducted; (2) in the case in which the environmental impact assessment leads to the need for: (i) providing environmental compensation it states the need for providing such compensation, (ii) preventing, limiting and monitoring the environmental impact of the project it requires conducting these actions; (3) may require to conduct the environmental impact reassessment of the project or to conduct the procedure related to the cross-border environmental impact within the procedure related to issuing investment decisions; (4) may require from the applicant to present the post-implementation analysis, defining its scope and date of submission. In the decision on environmental conditions which is issued without conducting the environmental impact assessment the competent body e.g. states that there is no need to conduct the EIA. How long is the decision on environmental conditions valid? (1) an issued decision on environmental conditions is valid for 4 years from the day when it becomes final; (2) validity of the decision may be prolonged to 6 years in the case when the implementation of the planned project takes place in stages and when the conditions defined in the environmental decision have not changed; (3) prolongation is made by the authority which has issued the decision on environmental conditions only when the decision is still valid (i.e. within the first 4 years). Prolongation is made through a decision which may be appealed against. (4) exception in which the validity of the decision is prolonged to 10 years concerns investments related to the construction of a nuclear energy facility and an accompanying investment. Can the decision on environmental conditions be transferred to a different person? (1) The decision on environmental conditions can be transferred to a different entity if: The Investor which received the decision agrees for it to be transferred; another entity to which the decision is supposed to be transferred accepts the conditions included in that decision. (2) Transfer is made by the authority which is competent for issuing the decision on environmental conditions and entities between which the transfer is supposed to take place are the parties to that procedure. When is it necessary to conduct the environmental impact reassessment (the supplemental procedure)? The environmental impact reassessment is generally conducted in the situation in which it is not possible to conduct the assessment at an earlier stage of the investment and it is conducted when: (1) it results from the previously issued decision on environmental conditions; (2) the application for conducting the procedure is submitted by the Investor who plans to start implementing the project; (3) the authority which is competent for issuing (i) the decision on a construction permit or (ii) the decision on the permission for implementing a road investment or (iii) the decision on the permission for implementing an investment related to a public-use airport or (iv) the decision on the permission for implementing an investment related to flood protection constructions decides that the application for issuing the investment decision was changed with regard to the requirements defined in the decision on environmental conditions. ATTENTION: At this stage it is possible to conduct the EIA for investments from group II for which it was not necessary earlier to conduct the assessment procedure. See also: How is the EIA conducted?
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(iv)
When the decision on environmental conditions may require the reassessment? There are several situations which may lead to conducting the reassessment as a result of stating such a requirement in the decision on environmental conditions. Such a situation takes place when: (1) the authority which is competent in the case is not capable, at the stage of issuing the first decision, to determine the environmental impact of the investment e.g. because of too limited knowledge about the planned investment, which means that the investment is only at the stage of planning and the investor does not have a full knowledge about the scale and range of the project yet; (2) the authority which is competent in the case knows about other investments in a particular area which are already planned and which in total may have a significant impact on the environment; (3) it is possible that the investment may impact legally protected areas, in particular NATURA 2000 areas. ATTENTION: the reassessment may be conducted only in the case of investments for which implementation it is necessary to obtain a construction permit, an approval of a building permit design and a permission for construction works resumption or a permit for implementing a road investment and a permit for implementing an investment related to a public-use airport or a permit for implementing an investment related to flood protection constructions. What are the documents which the Investor must enclose in the case of the requirement of conducting the reassessment which results from the decision on environmental conditions and to whom should these documents be submitted? In such a situation the Investor submits to the authority which is competent for issuing the investment decision, i.e., respectively, to the starost or the province governor: (1) application for issuing an investment decision e.g. the application for a construction permit; (2) report on the environmental impact of the project new report; (3) decision on environmental conditions. When should the Investor submit the application for conducting the subsequent EIA? This Investor's right is often used while applying for the European Union funds for co-financing the investment but it is worth remembering that the Investor has the right to demand conducting the environmental impact reassessment even when it was initially stated that the investment does not significantly affect the environment. What documents should the Investor enclose while submitting the application for the subsequent EIA and to whom should the application be submitted? In such a situation the Investor submits to the authority which is competent for issuing the investment decision, i.e., respectively, to the starost or the province governor: (1) application for conducting the subsequent environmental impact assessment; (2) report on the environmental impact of the project a new report; (3) decision on environmental conditions; or in the case of (i) lack of knowledge about the scope of the report on the impact or in the case of (ii) the cross-border impact of the investment: (1) application for determining the scope of the report (the new report) together with the project information sheet; (2) decision on environmental conditions (if such a decision was issued); ATTENTION: in the case of projects which may have a cross-border impact the application for determining the scope of the report is obligatory. When does the authority decide about the necessity to conduct the subsequent EIA? The reassessment of the environmental impact of the project may also be caused by the authority deciding that the application for issuing the investment decision deviates from the requirements defined in the decision on environmental conditions. This may take place e.g. when the Investor:
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(1) does not fulfill obligations defined in the decision on environmental conditions or (2) makes changes to the project. Such a deviation must be declared by the authority which is competent for issuing the investment decision together with indicating the scope of the environmental impact report. What documents should the Investor enclose when the authority decided that the subsequent EIA is necessary and to whom should the documents be submitted? In such a situation the Investor submits to the authority which is competent for issuing the investment decision, i.e., respectively, to the starost or the province governor the new report on the environmental impact of the project of which scope agrees with the decision. What is the cross-border procedure and when is it conducted? The cross-border procedure is conducted by the authority when the possibility of a significant cross-border environmental impact from the territory of the Republic of Poland is detected as a result of e.g.: (1) implementation of planned projects covered by: (i) decision on environmental conditions; (ii) investment decision if the environmental impact assessment was not conducted during the procedure related to the decision on environmental conditions; (2) application submitted by another country on the territory of which the project may have impact. The procedure related to the cross-border environmental impact is conducted also in the case when the possible impact from beyond the borders of the Republic of Poland may become detectable on its territory. Within this procedure the authority which is competent for issuing the environmental decision or the General Director for Environmental Protection conducts consultations with the Country on the territory of which the project may have impact. The consultations include designing means of eliminating or minimizing the crossborder environmental impact.
Agnieszka K. Zajc Attorney at Law Partner Lukowicz Swierzewski & Partners Member of Dachengs Global Legal Service Network 9 Wooska Street, Platinium I Building 02-583 Warsaw Poland Tel: +48 22 444 79 00 Fax: +48 22 444 79 01 azajac@lukowicz.pl www.lukowicz.pl
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Environmental Impact Assessment in The Investment Process

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