Upcoming changes in the legal regulation of an environmental expert review

Pepeliaev Group advises that a public consultation is currently being held with regard to the draft law prepared by the Russian Ministry for the Protection of the Environment and Natural Resources. The draft law provides for a fundamentally new definition of the item that is subject to a state environmental expert review as well as certain other changes in the legal regulation of a state environmental expert review [1].

The changes for which the draft law (the “Draft Law”) provides include the following changes which we would single out as the most important ones.

• The draft law specifies the group of persons which are obliged to carry out an environmental impact assessment (“EIA”): persons planning to perform business activity and any other type of activity 1) at sites of categories I-III, 2) at other sites if the planned type of activity is subject to a state environmental expert review (“SEER”).
• The list of measures to be carried out within the framework of an EIA has been amended to include the development of proposals to carry out an analysis of the consequences of the implementation of the planned business activity and any other activity. The proposals include measures to review the forecast of the impact that the implementation of the planned business activity and any other activity will have on the environment and the measures to control the efficacy of the measures to prevent and mitigate such negative impact.
• The draft law adds planned technical and technological solutions to the list of data to be included in the EIA materials.

• The draft law imposes a ban on the siting, construction and reconstruction, without a positive opinion of a SEER, of facilities producing a significant negative environmental impact (“NEI”) and relating to the areas of application of the best available techniques (“BAT”) within land plots that were provided earlier in accordance with their intended purpose and permitted use for other areas of application of BAT and/or for carrying out business and /or other activity which does not produce any significant NEI.
• The draft law introduces material changes to the list of items subject to a SEER:
• the SEER is put back to the pre-project stage by the item subject to a SEER determining the EIA materials when selecting the option for siting the facility;
• the materials relating to complex ecological permits (the “CEP”) have been excluded from the list of items subject to a SEER.
• The following items have been added to the list of the items subject to a SEER:
• a unified project providing for the consummation of a foreign trade transaction with respect to spent oxide fuel assemblies of nuclear reactors being imported into Russia from abroad and the implementation of a special environmental programme or programmes which are financed from money obtained from the specified foreign trade transaction;
• materials of an EIA of the planned siting of facilities producing a significant NEI and relating to the area of the application of BAT if such an item is planned to be sited within land plots or within capital construction facilities which are used in other areas of the application of BAT or for carrying out business and/or other activity which does not produce any significant NEI.
• The list of grounds for a follow-up SEER to be held no longer includes: 1) refining the item subject to the expert review in accordance with comments made during a previous expert review, and 2) the expiration of a positive SEER opinion[2].

• It is proposed to introduce an appraisal of the persons engaged as SEER experts by, respectively, a federal or regional authority that is authorised to perform the SEER.
• The daft law adds to the list of requirements for the contents of an opinion conclusions regarding: 1) whether the impact of planned business or other activity, including the siting of facilities, is permissible and 2) the conditions for such activity to be implemented.

Conclusions

In general, the changes in the legal regulation of the SEER proposed by the Draft Law are aimed at eliminating significant drawbacks of the current regulations. However, some of the new developments proposed are controversial.

An example is the idea to reschedule the SEER to the pre-project stage. The executive summary of the Draft Law specifies that the issue to be resolved by the adoption of the Draft Law is that the current legal regulation does not enable an assessment to be ensured of whether a capital construction facility may be sited on a specific territory taking into account various options for where such facility may be sited.

According to the Regulations on an EIA[5], an assessment of alternative options for siting the facility is possible, but not mandatory, and is to be carried out at the discretion of the applicant. In practice, alternative options for implementing the planned activity usually consist of considering the application of various technologies (for example, the dumping of drill waste in a waste pit/waste sterilisation with a thermal destruction device with the dumping of ash residue/using waste to prepare technological ground - all of the options are implemented within the same territory). This is due to the fact that when alternative options are considered for the siting of the facility that is subject to the expert review, an assessment of the impact must be carried out, which significantly increases the cost of the work.

Therefore, by way of options for implementing the planned activity, the Draft Law proposes cutting the project expenses of a SEER applicant and simultaneously increasing the expenses on carrying out an EIA across multiple territories.

What to think about and what to do

The provisions of the Draft Law need to be analysed together with tax and environmental (technological) departments of companies. Then suggestions for improvement need to be prepared and sent to the relevant business associations and state authorities.

The public consultation regarding the Draft Law will end on 13 December 2018. Subsequently an independent anti-corruption expert review and regulatory impact assessment procedures will be carried out, after which the Draft Law will be submitted to the Russian Government for consideration. If the Draft Law passes all the stages successfully, it will be put before the State Duma of the Russian Federal Assembly (the lower chamber of Russia's parliament).

Help from your advisers

Pepeliaev Group’s lawyers are ready to analyse risks arising in connection with the Draft Law as a whole, and with regard to specific companies, to draw up proposals for improvement and send them to the relevant business associations and state authorities.