Two Years of Environmental Impact Assessment Implementation Experience in Ukraine

On 18 December 2017, the Law on Environmental Impact Assessments (EIA Law) took full effect, marking the end of the old model of environmental impact expertise and implementing the standards of the European environmental impact assessment model set out in Directive 2011/92/EU into national law.

Key Issues:

  • Introduction of the Environmental Impact Assessment
  • When are Environmental Impact Assessments carried out?
  • Who needs EIAs? (The conclusion on EIAs)
  • What will EIA examine?
  • Stages of the Environmental Impact Assessment procedure

INTRODUCTION OF THE ENVIRONMENTAL IMPACT ASSESSMENT

Obtaining a Conclusion on Environmental Impact Assessment is required in order to obtain permission to conduct business activities such as ferrous and non-ferrous metallurgy, changing the stated use of agricultural land, mining, power generation and transmission, oil and gas production, thermal power plants, chemical production, construction of airports and highways, infrastructure projects, tourism and recreation etc.

The EIA law has expanded public participation in the EIA process and tightened sanctions for failure to pass this procedure. Non-compliance with EIA regulations may result in suspension or even termination of business activities. In certain cases, the expansion or alteration of operational businesses may require going through the EIA procedure.

The new EIA procedure allows the public to participate in the discussion of planned activities at an early stage by creating a list of issues which will be researched during the EIA, having influence over the choice of alternative venues for planned activities, and introducing measures which will reduce the impact of such activities on the environment.

WHEN ARE ENVIRONMENTAL IMPACT ASSESSMENTS CARRIED OUT?

The Environmental Impact Assessment must be implemented before the relevant authorities’¹ decision on the provision of the planned activity, as defined by the EIA Law, as well as prior the construction of objects which can have a significant environmental impact. A planned activity refers to any economic activity, including construction, reconstruction, technical re-equipping, expansion, re-profiling, liquidation (dismantling) of objects, or other changes to the natural environment.

WHO NEEDS EIAs? (THE CONCLUSION ON EIAs)

Legal entities, public authorities, and local government bodies deciding to commence the planned activity are all subject to EIAs. Under the EIA Law, an applicant is required to file a notification for the commencement of the planned activity with the EIA Registry administered by the Ministry of Energy and Environmental Protection, which in turn is responsible for ensuring the due process of an EIA procedure and issuance of the EIA conclusion. Obtaining an EIA Conclusion is required before one can apply for permission to commence planned activities such as ferrous and non-ferrous metallurgy, changing the stated use of agricultural land, mining, power generation and transmission, oil and gas production, thermal power plants, chemical production, construction of airports and highways, infrastructure projects, tourism and recreation etc. An exhaustive list of planned activities for which an EIA Conclusion must be obtained is provided in parts 2 and 3 of Article 3 of the EIA Law.

The Controlling Authority for EIAs

The Ministry of Energy and Environmental Protection (also Minecoenergy) is responsible for ensuring due process for delivering EIA conclusions and EIA compliance.

The Register

The Unified Environmental Impact Assessment Register is administered by the Ministry of the Energy and Environmental Protection. The information stored in the Unified Register of Environmental Impact Assessment is publicly available free of charge on the electronic portal.

The new EIA procedure allows the public to participate in the discussion of planned activities at an early stage by creating a list of issues which will be researched during the EIA, having influence over the choice of alternative venues for planned activities, and introducing measures which will reduce the impact of such activities on the environment.

WHAT WILL AN EIA EXAMINE?

The following non-exhaustive list of environmental and social conditions are assessed by the EIA procedure:

  • ambient air quality;
  • ambient noise;
  • meteorology;
  • soil quality;
  • groundwater quality;
  • surface water quality;
  • landscape and visual aspects;
  • biodiversity (fauna, flora, biodiversity, protected species, critical habitats);
  • socioeconomic characteristics of the area;
  • cultural heritage, including architectural and archaeological heritage.
  • public and/or site transportation systems;
  • public health and safety.

STAGES OF THE ENVIRONMENTAL IMPACT ASSESSMENT PROCEDURE

Stage 1. Notification of planned activity and public discussion of the planned actitivy

(a) Uploading to the EIA Register

The Notification of Planned Activity must contain such information as: type of planned activity, area, technical terms etc.², and has to be submitted to the Unified EIA Register via website administered by the Ministry of Energy and Environmental Protection of Ukraine.

(b) Announcement

The Notification of Planned Activity shall be presented in printed media and posted on billboards near the local authority office or other relevant public posting areas within 3 business of its submission to the authorized bodies.

(c) Public discussion of the planned activity

If the public does not provide any comments and suggestions on the planned activities, the scope of research and the level of detail of the information included in the EIA report, the public discussion period will last 20 business days from the date of the publication of the Notification.

Please note that, due to COVID-19 imposed readjustments, the Ministry of Energy and Environmental Protection launched a working group consultation in May 2020 to assess the risks of EIA public gatherings and risk-management remedies. This working group presented proposals to minimize physical social interaction and provide sustainable remote solutions for the holding of public EIA-related discussions.

On 18 June 2020, the Ukrainian parliament passed amendments to the EIA law which allowed public discussions to be conducted remotely via correspondence, removing the need for physical public hearings until 30 days after the end of quarantine.

Stage 2. Preparation of the EIA report and ontaining the Conclusion

(a) Drafting and Submission of the EIA Report

The EIA Report must be submitted to the relevant authority together with the Announcement on the start of public discussion of the EIA Report and uploaded to the unified EIA Register.

(b) Publication of the public discussion announcement

The Announcement on the start of public discussion of the EIA Report shall be published in print media and distributed throughout the territory affected by the planned activity, as well as being posted on billboards near the local authority office or other relevant public notice posting areas.

(c) Public discussions and hearings

Public discussions of the EIA Report shall last no less than 25 but no more than 35 business days after the publication of the Announcement. The EIA Report and other documentation on the planned activity and public hearings must be accessible throughout.

(d) Obtaining a Conclusion on the EIA Report

The relevant authority shall submit a Conclusion on the EIA,  based on the EIA Report and the Public Discussion Report, within 25 business days of the public consultation being completed.

A non-exhaustive list of information covered by the EIA report:

  • Description of the planned activity; Description of the current state of the environment;
  • Description of environmental factors likely to be affected by the planned activity and its alternatives;
  • Description and assessment of the possible environmental impact of the planned activity;
  • Description of forecasting methods used to assess environmental impacts;
  • Description of the measures envisaged to prevent a significant negative impact on the environment;
  • Description of the expected significant negative environmental impact of the activity;
  • Identification of any difficulties identified in the preparation of the EIA report;
  • Comments and suggestions from the public about the planned activity;
  • Summary of the environmental monitoring and control program.

Stage 3. Decision on carrying out the planned activity

(a) Submission of EIA documents (package)

According to part 1 of Article 11 of the EIA Law, to obtain a Decision on Carrying out the Planned Activity, the entity/applicant must submit the EIA Report, Public Discussion Report and Conclusion on the EIA Report to authorized central or local authorities responsible for the planned activity in question.

(b) Announcement of the Decision on the Planned Activity

The relevant authorities (central or local) shall make the information on the Decision on Carrying out the Planned Activity accessible and available for public review and submit it to the Unified EIA Register within 3 business days of the day of adoption of the Decision.

There is no procedure envisaged by the EIA Law on cooperation between the relevant authorities and Minecoenergy with regard to the exchange of publicly accessible data, in particular the exchange of EIA conclusions and accompanying documents. Therefore, businesses should ensure that the two governing bodies receive the relevant data from each other. In 2019, this state of affairs raised a number of ministerial consultations aimed at improving current regulations for the sake of streamlined cooperation between regulatory stakeholders. At present, no such improvements have been implemented.

Stage 4. Post-project monitoring (subject to a requirement under the Conclusion on the EIA Report

If required by the Conclusion on the EIA, the entity shall provide post-project monitoring to identify any discrepancies and variations in the projected levels of impact and effectiveness of measures to prevent and reduce environmental pollution. The procedure, timing and requirements for post-project monitoring are determined in the Conclusion on the EIA.

It is important to note that the EIA Law does not establish an exhaustive list of grounds for the application of sanctions for breaches of post-monitoring requirements, nor does it set any criteria for defining systematic breaches (e.g., frequency or number) or differentiating between instances when the entire business activity or production unit activity should – or should not – be terminated. Absence of legislative guidance on the above issues leaves room for the use of discretion by the relevant authorities and may result in abuses and adverse effects on businesses.

The EIA law does not provide for cases where post-monitoring should be applied and does not specify any criteria which should guide the relevant authorities when an obligation to monitor is included in the Conclusion. It is not specified who is responsible for the conducting of this type of monitoring.

We advise businesses to seek the advice of professionals and of competent authorities early so that environmental studies can be carried out as an integral part of the entire project development process.

NB/Important to note

The authorized central body may adopt a decision on additional measures to prevent, avoid, reduce, eliminate or limit the environmental impact of an entity’s economic activity under Article 13 of the Law of Ukraine on EIA.

Proper compliance with the Law “On the Environmental Impact Assessment” is important in order to avoid obstacles to economic activities in Ukraine.

In cases where it is not mandatory to obtain a Decision on Carrying out the Planned Activity, the Conclusion on the EIA shall be deemed as the Decision on Carrying out the Planned Activity.³ The EIA law does not stipulate any occasions when it is not mandatory, yet such a provision is likely to safeguard any future planned activities which are not encompassed by those which are listed and can be reasonably assumed not to require extra decisions. In other cases, the issued Conclusion on the EIA shall expire in 5 years from the date of issue unless there is a Decision on Carrying out the Planned Activity in place.

Entities which underwent the mandatory environmental expertise procedure before the adoption of the Law of Ukraine “On the Environmental Impact Assessment” are not subject to the EIA procedure unless they decide to expand planned activities, rebuild, expand, re-profile, liquidate (dismantle) objects, make changes to the construction project or expand and/or prolong environmental and landscape interventions (for extraction of mineral deposits and use of man-made mineral deposits, as well as changes in these activities).

In light of the above, we advise businesses to seek the advice of professionals and of competent authorities early so that environmental studies can be carried out as an integral part of the entire project development process. In this way, environmental considerations can be tailored into the project design from the beginning, minimising both environmental impact and costs.

References:

¹ An indefinite concerned governing body may issue the respective decision on the planned activity which falls within its competence, i.e. State Geological and Subsoil Agency decides on Special Permits on the Subsoil Use

² Exhaustive list of information is in part 2 of Article 5 of the Law on Environmental Impact Assessment

³ Part 3 Article 11 of the Law on Environmental Impact Assessment