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Environmental Impact Assessment in The Investment Process
Environmental Impact Assessment in The Investment Process
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Environmental impact assessment in the investment process
LAWARDS Sulej & Wjcik
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
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LAWARDS Sulej & Wjcik
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 non-
ferrous 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).
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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.
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.
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) 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;
(8) analysis of possible social conflicts which are related to the planned project;
(9) presentation of a plan for monitoring the impact of the planned project at the stage of its
construction and operation or use;
(10) indication of the difficulties resulting from imperfections of technology or gaps in the modern
knowledge which have been encountered while drawing the report;
(11) 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.
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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.
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.
(iv) 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.
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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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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Environmental impact assessment in the investment process
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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.
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 cross-
border environmental impact.
Agnieszka K. Zajc
Legal Advisor
Partner
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