Environmental Assessment in Countries in Transintion 9789633865651

Table of contents :
PARTICIPANTS AND ADDITIONAL CONTRIBUTORS
CONTENTS
1. Introduction
Part I INTRODUCTION TO ENVIRONMENTAL ASSESSMENT IN COUNTRIES IN TRANSITION
1. Environmental Assessment: Nature, Scope and Historical Development
2. Environmental Impact Assessment in the Former Soviet Union in Its Historical Context
Part II COUNTRY STUDIES OF ENVIRONMENTAL ASSESSMENT LEGISLATION AND PRACTICE
1. Establishing Integrated Pollution Prevention and Control Through the Environmental Assessment Act in Armenia
2. Environmental Impact Assessment in the Republic of Belarus
3. Environmental Impact Assessment in Bulgaria
4. Environmental Impact Assessment in Croatia
5. Environmental Impact Assessment Legislation in the Czech Republic
6. Upgrading Environmental Impact Assessment Procedures in Estonia
7. Environmental Impact Assessment Implementation in Hungary
8. Environmental Impact Assessment in the Republic of Kazakhstan
9. Environmental Impact Assessment in Latvia
10. Environmental Impact Assessment in Lithuania
11. Environmental Impact Assessment in Moldova
12. Environmental Impact Assessment Implementation in Montenegro
13. Environmental Impact Assessment in Poland
14. Environmental Impact Assessment in Romania
15. Environmental Impact Assessment in the Russian Federation
16. Environmental Impact Assessment in Serbia
17. Environmental Impact Assessment in the Slovak Republic
18. Environmental Impact Assessment in Slovenia
19. Environmental Impact Assessment in Ukraine: History and Recent Developments
20. Comparison and Evaluation of EIA Systems in Countries in Transition
Part III SOME LEADING ISSUES: WORKSHOP GROUP FINDINGS
Workshop Group Findings
Workshop 1: Responsibility / Authority For Carrying Out EIAs
Workshop 2: Enforcement of EIA Legislation and Regulations
Workshop 3: Quality Control of the EIA Process
Workshop 4: Effectiveness of EIA As a Tool of Environmental Planning and Environmental Management
Workshop 5: Integrating EIA into Planning and Decision Making
Workshop 6: Integration of Cost Benefit Analysis and EIA
Workshop 7: How to Integrate Social, Health and Risk Assessment into EIA
Workshop 8: Linkages between EIA and Other Environmental Legislation
Workshop 9: Consultation and Public Participation
Workshop 10: Determining The Significance of Impacts
Workshop 11: Strategic Environmental Assessment
Workshop 12: Training for EIA and SEA
Part IV CONCLUSIONS AND RECOMMENDATIONS
Conclusions and Recommendations
Appendix. Use of Models in EIA

Citation preview

Environmental Assessment in Countries in Transition

Environmental Assessment in Countries in Transition Edited by Ed Bellinger Norman Lee Clive George Anca Paduret

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CEUPRESS

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Papers and Proceedings of the Central European University Summer University Workshop, Budapest July 1996, updated Autumn 1997, finalised for publication December 1999

EIA Centre, Department of Planning and Landscape, University of Manchester, Manchester, United Kingdom Department of Environmental Sciences and Policy, Central European University, Budapest, Hungary

Not to be quoted without prior permission

Published in 2000 by Central European University Press Nader utca 15 H-1051 Budapest Hungary 400 West 59th Street New York, NY 10019 USA

© 2000 by Central European University Press

Distributed in the United Kingdom and Western Europe by Plymbridge Distributors Ltd., Estover Road, Plymouth, PL6 7PZ United Kingdom

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the permission of the Publisher.

ISBN 963 9116 92 0 ISBN 978-963-386-565-1PDF

Library of Congress Cataloging in Publication Data A CIP catalog record for this book is available upon request

PARTICIPANTS

Name

Country

Institution

Svetla Anachkova Mihran Barsegian Ed Bellinger Anastasija Brusnikina

Bulgaria Armenia United Kingdom Russia

Irena Buciunaite

Lithuania

Alenka Burja OlegCherp Gabor Deak Marjana Dermelj Gheorghe Duca Clive George Mirela Gruin Goulnazia Issabaeva Oksana Kiseleva Dariusz Kobus Norman Lee Reigo Lehtla Ruben Mnatsakanian Zsuzsa Mondok Krzsysztof Pachocky Anca Paduret Irina Patoka

Slovenia Belarus Hungary Slovenia Moldova United Kingdom Romania Kazakhstan Moldova Poland United Kingdom Estonia Russia Hungary Poland Romania Ukraine

Kaja Peterson Aniko Radnai

Estonia Hungary

IlmarsSecacis MarijaStankiniene

Latvia Lithuania

NenadStarc HanaSvejdarova Andrus Tasa Viktoria Ter-Nikoghosyan

Croatia Czech Republic Estonia Armenia

Mihkel Vaarik

Estonia

Vesela Veleva

Bulgaria

Lada Vojtechovska Matthew Wilkinson Witold Woloszyn

Czech Republic United Kingdom Poland

Central European University Armforest Association Central European University Saint-Petersburg Regional Environmental Forecast Department EIA Division of the Environmental Protection Ministry Central European University ECOLOGIA NGO Academy of Economics, Wroclaw, Poland Central European University University of Moldova University of Manchester EIA Centre SC GNOMO Consulting SRL Central European University Central European University WS Atkins Polska University of Manchester EIA Centre GEOREMEST Central European University Oko Inc. Budapest Ekolog Systems Central European University Ekoprognoz Center for Environmental Studies Stockholm Environment Institute, Tallinn Ministry for Environment and Regional Policy, Budapest Ventspils Regional Environmental Board Kaunas Environmental Protection Department Institute of Economics Czech Ecological Institute University of Tartu Ministry of Environmental Protection and Mineral Resources EIA and Standards Department, Ministry of the Environment Varna Regional Environmental Inspectorate University of Amsterdam, Netherlands Central European University University of Marie Curie Sklodowska, Lublin

V

ADDITIONAL CONTRIBUTORS Maria Kosova

Slovakia

Zvonimir Markovac Mindaugas Raulinaitis Vladan Raznatovic and Marina Markovic

Croatia Lithuania Yugoslavia (Montenegro)

SandraRuza

Latvia

Dusan Sevic

Yugoslavia (Serbia)

vi

Department of Landscape Ecology, Comenius University State Directorate for the Environment Finnish-Lithuanian project on EIA Ministry of Environmental Protection of Montenegro Ministry of Environmental Protection and Regional Development Institute for Occupational Health and Safety, Novi Sad

CONTENTS

PARTICIPANTS AND ADDITIONAL CONTRIBUTORS................................................

v

1. Introduction..................................................................................................................................

1

Part I INTRODUCTION TO ENVIRONMENTAL ASSESSMENT IN COUNTRIES IN TRANSITION 1. Environmental Assessment: Nature, Scope and Historical Development................................ 2. Environmental Impact Assessment in the Former Soviet Union in Its Historical Context.....

5 12

Part II COUNTRY STUDIES OF ENVIRONMENTAL ASSESSMENT LEGISLATION AND PRACTICE 1. Establishing Integrated Pollution Prevention and Control Through the Environmental Assessment Act in Armenia ............................................................................................... 2. Environmental Impact Assessment in the Republic of Belarus.............................................. 3. Environmental Impact Assessment in Bulgaria...................................................................... 4. Environmental Impact Assessment in Croatia ........................................................................ 5. Environmental Impact Assessment Legislation in the Czech Republic ................................. 6. Upgrading Environmental Impact Assessment Procedures in Estonia.................................. 7. Environmental Impact Assessment Implementation in Hungary .......................................... 8. Environmental Impact Assessment in the Republic of Kazakhstan....................................... 9. Environmental Impact Assessment in Latvia.......................................................................... 10. Environmental Impact Assessment in Lithuania .................................................................... 11. Environmental Impact Assessment in Moldova....................................................................... 12. Environmental Impact Assessment Implementation in Montenegro..................................... 13. Environmental Impact Assessment in Poland ......................................................................... 14. Environmental Impact Assessment in Romania...................................................................... 15. Environmental Impact Assessment in the Russian Federation.............................................. 16. Environmental Impact Assessment in Serbia .......................................................................... 17. Environmental Impact Assessment in the Slovak Republic .................................................... 18. Environmental Impact Assessment in Slovenia....................................................................... 19. Environmental Impact Assessment in Ukraine: History and Recent Developments ............ 20. Comparison and Evaluation of EIA Systems in Countries in Transition...............................

17 26 31 38 45 51 57 63 70 78 88 92 95 105 114 126 132 143 147 157

Part Ill SOME LEADING ISSUES: WORKSHOP GROUP FINDINGS Workshop Group Findings............................................................................................................... Workshop 1 : Responsibility / Authority For Carrying Out EIAs................................................... Workshop 2: Enforcement of EIA Legislation and Regulations....................................................

167 169 172 vii

Workshop 3: Quality Control of the EIA Process......................................................................... Workshop 4: Effectiveness of EIA As a Tool of Environmental Planning and Environmental Management ....................................................... :............................................................... Workshop 5: Integrating EIA into Planning and Decision Making............................................ Workshop 6: Integration of Cost Benefit Analysis and EIA ........................................................ Workshop 7: How to Integrate Social, Health and Risk Assessment into EIA........................... Workshop 8: Linkages between EIA and Other Environmental Legislation.............................. Workshop 9: Consultation and Public Participation.................................................................... Workshop 10: Determining The Significance of Impacts............................................................... Workshop 11: Strategic Environmental Assessment ..................................................................... Workshop 12: Training for EIA and SEA .......................................................................................

175 178 181 183 186 190 192 195 197 199

Part IV CONCLUSIONS AND RECOMMENDATIONS Conclusions and Recommendations................................................................................................ Appendix. Use of Models in EIA .....................................................................................................

Vlll

203 207

1. INTRODUCTION

This report is based on the edited papers and proceedings of a workshop on Environmental Assessment in Countries in Transition which was held at the Central European University (CEU) in Budapest, 15-27 July 1996. It has been updated (and extended to include four additional countries) to take account of a number of developments up to autumn 1997. The workshop was organised by the Department of Environmental Sciences and Policy and was under the joint direction of Ed Bellinger and Norman Lee, with the assistance of Clive George, Ruben Mnatsakanian, Anca Paduret and Mat­ thew Wilkinson. It formed part of the CEU's Summer University programme and was attended by thirty-six participants drawn from the following countries: Armenia, Belarus, Bulgaria, China, Croa­ tia, Czech Republic, Estonia, Hungary, Kazakhstan, Latvia, Lithuania, Moldova, Poland, Romania, Russia, Slovenia, Ukraine, and the United Kingdom (see list of participants). The countries covered in the report are shown in fig. 0.1. The workshop was designed to widen and deepen the understanding among participants of environmental assessment (EA) regulation and practice in countries in transition (CITs), and also to document the principal findings for use by a wider readership. With this in mind, participants were encouraged to prepare papers for the workshop which briefly reviewed EA regulation and practice in their own country. The workshop commenced with papers on the nature and scope of environmental assessment, its historical evolution and the characteristics of countries in transition of relevance to EA develop­ ment and implementation, and the use of models in environmental impact assessment (EIA) (see part 1 of the report and the appendix). Then a series of country studies were presented relating to the EA situation in fifteen CITs and a comparative analysis of their findings on EA regulations and practice was undertaken (see part 2 of the report, which also includes later studies relating to Kazakhstan, Montenegro, Serbia and Slovakia and some updating of the original papers). Each of these country studies has been prepared by its respective author /s, working in a personal capacity. The studies do not necessarily reflect the views of organisations with which the authors are associated or of the edi­ tors of this publication. Next, some twelve topics were identified for further examination in working groups. The issues discussed and the principal findings reached on each topic are summarised in part 3 of the report. The conclusions and recommendations arising from the workshop as a whole are presented in the final chapter (Part IV). This record of the workshop's papers and proceedings should be of interest to EA practitio­ ners in public administration, development and consultancy organisations, training and research in­ stitutes and international and bilateral aid agencies. Project-level EIA and, to a lesser degree, SEA (strategic environmental assessment) for plans and other strategic-level actions have been, or are in the process of being, introduced in the great majority of CITs. However, most of these countries have only limited experience in formulating "state of the art" EIA regulations and applying them satisfac­ torily. Further, such experiences in CITs that do exist are not yet sufficiently well-documented and widely disseminated. It is hoped that this report will assist in overcoming these deficiencies. Some of the findings that are reported are provisional. In several cases, fuller information is needed relating to EA regulations, but especially concerning EA practice. Also, further progress is needed in developing the means to evaluate existing regulations and practice to provide a sounder basis for preparing proposals to secure improvements through regulatory and institution­ strengthening improvements, further guidance and training, etc. The process of improving the quality of EA information and its evaluation is continuing. In this connection, two further EA workshops, organised by the CEU, took place in Madralin, near War1

saw, and Budapest, respectively in June and July 1997, and two further workshops are due to take place in Madralin and Budapest in June and July 1998. It is hoped that these will build upon the foundations established in 1996 and further contribute to improved EA understanding and dissemi­ nation of EA regulations and practice in the region.

ml

Countries in the study

■ Other countries in transition

Fig. 0.1 Countries in transition

2

PART I INTRODUCTION TO ENVIRONMENTAL ASSESSMENT IN COUNTRIES IN TRANSITION

1. ENVIRONMENTAL ASSESSMENT: NATURE, SCOPE AND HISTORICAL DEVELOPMENT Norman Lee

1.1. INTRODUCTION The purpose of this opening paper is to explain the key concepts of environmental assessment (EA), the main stages in the EA process and its historical development, and to comment upon current international practice. The main focus is on Western-style EA, but some reference is also made to its counterpart in former Soviet Union countries (SER and OVOS) which is briefly explained later. Environmental assessment exists in two main forms: • environmental impact assessment (EIA) of individual projects (e.g. a road scheme, a power station, etc.); • strategic environmental assessment (SEA) of policies, plans and programmes (e.g. an en­ ergy policy, a water resource development plan, a road construction programme). Of these two main forms, EIA was developed considerably earlier than SEA and is the more widely applied form at present.

1.2. STAGES IN THE EIA AND SEA PROCESS EIA is a process for assessing the likely significant environmental impacts of a project and taking these into account in its planning, design, authorisation and implementation. SEA is broadly similar but is carried out at an earlier phase of the planning cycle and is related to the formulation, approval and implementation of policies, plans or programmes. The EIA process, like the SEA process, contains a number of stages (see fig. 1.1). These include: • Screening: deciding whether the project under consideration requires an EIA or not. • Scoping: deciding the terms of reference of the assessment (i.e. which environmental im­ pacts associated with the project and its alternatives should be assessed). • Prediction: predicting the magnitude and significance of the impacts. • Mitigation: helping the developer to determine how the project may be modified, in a cost effective way, in order to reduce any significant negative impact it may cause. • Preparation of the Environmental Impact Statement (EIS): this is the key document which describes the key findings of the EIA and how they were derived. • Consultation and public participation: consulting environmental authorities and the public about the environmental impacts of the project. This is most commonly done after the EIS has been completed but it may be undertaken at other stages as well (e.g. scoping). • Decision making: the competent authority decides whether to approve the project or not and, if so, on what conditions. The decision will be based on the findings in the EIS, from consultation and public participation and from other relevant sources of information (e.g. relating to socio-economic impacts as well as environmental impacts). • Monitoring: checking whether the project was correctly implemented and did not have any unpredicted impacts which may require further mitigation. As instruments of environmental policy, EIA and SEA are: • anticipatory: their purpose is to anticipate adverse environmental impacts at the plan­ ning stage and to correct them, in a cost effective way, before the project or plan is im­ plemented;

5

EIA I. Screening to determine whether the policy, plan or programme requires a formal SEA at this stage of the planning process

r _ _.., _

I. Screening to determine whether the project requires formal EIA.

2. Scoping to determine the coverage and level of detail of the SEA.

2. Scoping to determine the coverage and level of detail of the EIA.

3. Proponent carries out an assessment of the proposed action, modifying the proposal where considered desirable, in the light of the SEA findings.

3. Developer carries out an assessment of the proposed project, modifying the proposal where considered desirable, in the light of the EIA findings.

4. Proponent prepares the SEA report on the finalised draft of the proposed action and submits it in support of the application for approval of the action by the appropriate competent authority.

4. Developer prepares the EIS on the finalised draft of the proposed project and submits it in support of the application for authorisation to the competent authority.

5. The SEA report is made available to other environmental authorities and the public for information and to obtain their comments.

5. The EIS is made available to other environmental authorities and the public for information and to obtain their comments.

6. The competent authority takes all relevant information, including the SEA report and the consultation findings, into account in reaching a final decision on the proposed action.

6. The competent authority takes all relevant information, including the EIS and the consultation findings, into account in reaching a decision on the proposed project.

7. Arrangements are made, as required, for monitoring the implementation of the action and of its environmental impacts and to undertake any further environmental assessments (SEA and/or EIA) considered necessary at later stages in the planning process.

7. Arrangements are made, as required, for monitoring the implementation of the project and of its environmental impacts. 1- - _.., -

Fig. 1.1.1. SEA and EIA-a comparison of the principal stages in the process

6

• •

integrative: they consider all types of environmental impacts, not only those occurring in one environmental medium (e.g. air, water, land) and are effective only when they are satisfactorily integrated into decision-making procedures; technical and participative: they use both scientific and technical analysis and consulta­ tion and public participation methods when undertaking environmental assessments.

1.3. HISTORICAL DEVELOPMENT OF EIA AND SEA Formalised, mandatory systems of environmental assessment originate from the enactment of the National Environmental Policy Act (NEPA) (1969), in the United States, which came into op­ eration on 1 January 1970. However, until the mid-1980s, the establishment of other mandatory sys­ tems was confined to a relatively small number of countries (e.g. Canada, Australia, New Zealand and France), although less formalised and more limited EA provisions were introduced in a some­ what greater number of countries. Subsequently, between 1985 and the mid-1990s, there was a major expansion of formalised EA systems in the western, developed world. By 1995, all twenty-four member countries of the OECD (Organisation for Economic Co-operation and Development) had acquired their own EA legislation. A major catalyst in this development was the adoption of Directive 85/337/EEC in the (now) European Union and its implementation from mid-1988 onwards, which has led to a great upsurge in member­ state EA legislation (Lee, 1995). Over a similar period, most of the international and regional development banks and the bi­ lateral aid agencies have established their own EA procedures, either as part of their internal corpo­ rate procedures or in compliance with national legislation (OECD, 1996). Similarly, a large and in­ creasing number of developing countries have also acquired their own formal EIA procedures over recent years (EIA Centre, 1995). There have also been parallel but, until recently, separate developments in environmental as­ sessment in the former Soviet Union countries and certain adjacent countries (see, for example, Cherp and Lee, 1997 ; Therivel 1997 ). In 1985, the USSR Supreme Soviet instructed its executive authorities to develop a mandatory State Environmental Review (SER) system (gosundarstvennaya ekologisheskaya ekspertiza - literally "state ecological expertise" in Russian*). As is apparent from the country studies in part 2 of the report, the SER approach to environmental assessment continues to have an important influence in many of the former Soviet republics. Additionally, there has also developed within many of these countries a less formalised, often non-mandatory, form of environ­ mental assessment operating earlier in the project cycle. This is known as OVOS (Assessment of En­ vironmental Impacts) which, some would argue, shows a greater affinity with Western-style EA but often lacks the mandatory status of SER (EIA Centre, 1996). However, certain CITs (mainly countries outside the former USSR in Central and Eastern Europe, together with the Baltic states) are now seeking to harmonise their environmental legisla­ tion with that of the European Union. Consequently, these CITs are moving towards the EIA model based on Directive 85/337/EEC whilst, in certain cases, still retaining a number of features that re­ flect the SER approach. Most of the EA developments which have been described relate mainly to project-level EIA rather than SEA applications to policies, plans and programmes. Although the NEPA covered all types of actions, it has mainly been applied to projects. The same is broadly the situation in most other OECD countries, aid agencies and development banks, and in developing countries. It is also the case in countries in transition, although as part 2 makes clear, a significant proportion of CITs already possess the legal powers to apply EA to certain types of plans, even though actual practice is not yet well developed.

* Different translations into English are in use - environmental (or ecological) review (or expertise) - and, therefore, the terminology has not been standardised in subsequent chapters, although the meaning is essentially the same in each case. In some cases, authors of country studies use the terms ecological expertise and environmental assessment interchangeably whilst in other cases they are distinguished.

7

Overall, in all major categories of countries, SEA developments are running about fifteen years behind EIA developments. Nevertheless, there is clear evidence that the pace of change in SEA application is accelerating and this is likely to continue in the future. So far as future EA developments in CITs are concerned, there are two interacting influences at work: • External/International Developments. These include EIA and SEA developments taking place within the European Union, for example: the amendments to Directive 85/337/EEC on which the Council of Ministers reached a common position in 1996 and which was formally adopted as Council Directive 97/11/EC in March 1997; the submission to the Council of Ministers, by the European Commission, of a proposal for a new Directive on Strategic Environmental Assessment; and the provision for the preparation of environ­ mental statements in the 1996 Directive on Integrated Pollution Prevention and Control. Additionally, there is increasing interest in linking developments in environmental as­ sessment at the project planning stage to developments in environmental auditing and environmental management systems at the project operating stage, which, for example, have been encouraged by Regulation 1836/1993 concerning the EU's eco-management and audit scheme (EMAS). At the international level, particular account should be taken of the EIA and SEA related initiatives being supported through the implementation of Agenda 21 measures; the coming into force of the Convention on Environmental Impact Assessment in a Transboundary Context (UNECE, 1991); the further strengthening of the EA procedures of aid agencies and development banks; and the development of an in­ ternational standard for environmental management systems (ISO 14001). The last of these is also likely to strengthen links between environmental assessment and environ­ mental management/auditing systems. • Developments within individual CITs. These will be a response partly to external devel­ opments and partly to the "transitional" (i.e. changing) circumstances prevailing in the individual countries concerned (political, institutional and economic as well as environ­ mental). Data relating to a number of economic indicators for countries in transition are presented in the annex to this chapter. These are likely to be very diverse between coun­ tries, both in terms of the pace of change and the direction of change. For example, some countries may continue to move closer to the adoption of the EU model of environmental impact assessment, whilst others may remain closer to the existing SER model, possibly modified and extended to include more features of the OVOS approach.

1.4. EVALUATION OF INTERNATIONAL EA EXPERIENCE EA developments in different parts of the world have been very extensive over the last ten years and this situation is likely to continue in the future. The general consensus is that, whilst the benefits of these developments have been greater than the costs of their implementation, there is still considerable scope for further improvement. The main types of suggested improvements are listed below. A number of existing deficiencies and possible remedies, in the CIT context, were examined in greater detail in working groups during the workshop and their findings are summarised in part 3 of this report.

1.4.1. Regulatory improvements The purpose of these improvements is to complete the coverage of the environmental assessment regulations in the countries concerned, or to refine them so that their requirements are clearer and can be more effectively enforced. Depending on individual circumstances, these may include: • extending regulatory requirements to cover certain policies, plans and programmes as well as projects; • revising lists of projects to be subject to EA and strengthening the screening procedures to be applied;

8

• • • •

strengthening procedures for scoping, i.e. for determining the terms of reference of EA studies; introducing more specific requirements to secure the public availability of EISs and to strengthen provisions relating to consultation and public participation; making more effective provision for reviewing the quality of EISs and for integrating the EA findings into the project authorisation process; strengthening provisions relating to post-project monitoring and securing better compli­ ance with environmental conditions in permit approvals.

1.4.2. Improvements in practice Even where a sound EA regulatory system has been established, satisfactory implementation often cannot be achieved without additional initiatives being taken. For example, environmental as­ sessments may be commenced too late in the project cycle to have a significant influence; the quality and objectivity of the EISs may be highly variable; provisions relating to the public availability of EISs may not be satisfactorily implemented; practical arrangements for consultation and public par­ ticipation may be deficient; environmental assessment findings may be ignored in decision making; and monitoring of compliance may not take place satisfactorily. The remedies for these deficiencies vary from one situation to another but are likely to require some or all of the following measures: • raising awareness of the purpose and value of EA as an instrument of environmental policy among the principal actors and institutions involved in the EA process; • preparation of EA guidelines to assist practitioners; • provision of practice-oriented short training courses; • some institution strengthening, including the designation of a small number of existing institutes as EA research and training centres in each country; • an overall strengthening of quality control procedures and practices throughout the EA process.

REFERENCES Cherp, 0. and N. Lee ( 1997), "Evolution of SER and OVOS in the Soviet Union and Russia, 1985-1996", Environmental Impact Assessment Review , 17, 177-204. EIA Centre ( 1995), EIA in Developing Countries, Leaflet 15, EIA Centre, University of Manchester, Manchester, England. EIA Centre (1996), EIA in Transitional Economies, Leaflet 16, EIA Centre, University of Manchester, Manchester, England. Lee, N. ( 1995), "Environmental assessment in the European Union: a tenth anniversary", Project Appraisal 10(2), 77-90. OECD (1996), Coherence in Environmental Assessment: Practical Guidance on Development Co-operation Projects, OECD, Paris.

Official Journal of the European Community ( 1985) No. L175, 5.7.1985. Official Journal ofthe European Community ( 1996) No. L248/75, 26.8.1996. Official Journal ofthe European Community ( 1997) No. L73, 5-15, 14.3.1997. Official Journal of the European Community ( 1997) No. C 129, 14-14, 25.4.1997. Therivel, R. ( 1997), "Strategic environmental assessment in Central Europe", Project Appraisal, 12, (3), 151-160. UNECE ( 1991), Convention on Environmental Impact Assessment in a Transboundary Context, UN, Geneva. UNECE ( 1996), Current Policies, Strategies and Aspects of Environmental Impact Assessment in a Transboundary Context,

Environment Series 6, UN, Geneva.

ANNEX. ECONOMIC INDICATORS FOR COUNTRIES IN TRANSITION Environmental problems, and the policy responses to them, are likely to be influenced by a variety of factors which include the economic conditions and trends in individual CITs during the process of transition. This annex presents data for certain economic indicators in twenty-four CITs which illustrate a number of important similarities and differences between them.

9

Table 1.1.1 Population, GNP per capita and Industry Share in GDP in CITs Population (millions)

1995 Albania Armenia Azerbaijan Belarus Bulgaria Croatia Czech Republic Estonia Georgia Hungary Kazakhstan Kyrgyzstan Latvia Lithuania Moldova Poland Romania Russian Federation Slovakia Slovenia Tajikistan Turkmenistan Ukraine Uzbekistan

3.2 3.7 7.5 10.3 8.4 4.8* 10.3 1.5 5.4 10.2 16.5 4.5 2.5 3.7 4.3 38.6 22.6 148.1 5.3 2.0 5.8 3.9** 51.3 22.7

GNP per capita (US dollars) A B

1995

670 730 480 2070 1330 3250 3870 2860 440 4120 1330 700 2270 1900 920 2790 1480 2240 2950 8200 340 920 1630 970

n/a

2260 1460 4220 4480 n/a

Share of industry in GDP (%)

1990

1995

37 45 22 39 43 31

13 32* 22 26 31 24 40 17

9770 4220 1470 6410 3010 1800 3370 420

n/a n/a n/a

5400 4360 4480 3610

44 41

n/a

n/a n/a n/a

2400 2370

29 21 26 33 33

n/a n/a

62 38 38 16 43 24

n/a

28** 40 16 17 24 22 32 32

n/a

35 35 35

n/a

44 16

A = GNP per capita at official exchange rates (Atlas method) B = PPP estimates of GNP per capita * 1993 data ** 1994 data n/a = not available Sources: EBRD( 1996), Transition Report 1996, EBRD, London and World Bank (1997), World Development Report 1997, World Bank, Washington D.C.

Table 1.1.1 provides statistical data relating to population size, per capita real income and share of industrial output in GDP for most of the CITs. Table II.1.2 contains data on trends in total GDP at constant prices over the period 1990-96. The data have been assembled by the European Bank for Reconstruction and Development (EBRO) from publications by the national authorities, the IMF, the World Bank and OECD. Since the data for individual countries are not necessarily on a strictly comparable basis and since the Statistical Services in certain countries were being reconstructed during this period, the statistics are subject to revision and should be interpreted with care. Nevertheless, despite their limi­ tations, they illustrate a number of important features of the countries under consideration, for ex­ ample: • CITs differ considerably in population size, between Estonia with a population of 1.5 million and the Russian Federation with nearly 150 million (table 1.1.1). • Annual GNP per capita differs considerably between CITs. Comparisons can be made be­ tween countries in US dollars, using both official exchange rates (the Atlas method) and purchasing power parities (the PPP method). Both are reported in table 1.1.1 and give considerably different rankings for certain countries. Using the first method, annual GNP per capita in 1995 ranged between: - less than $ 1,000 in Albania, Armenia, Azerbaijan, Georgia, Kyrgyzstan, Moldova, Ta­ jikistan, Turkmenistan and Uzbekistan; - $ 1,000 and $2,000 in Bulgaria, Kazakhstan, Lithuania, Romania and Ukraine;

10

Table 1.1.2. % change in GDP at constant prices in CITs

Albania Armenia Azerbaijan Belarus Bulgaria Croatia Czech Republic Estonia Georgia Hungary Kazakhstan Kyrgyzstan Latvia Lithuania Moldova Poland Romania Russian Federation Slovakia Slovenia Tajikistan Turkmenistan Ukraine Uzbekistan

1990

1991

1992

1993

1994

1995

1996*

-10.0 -7.4 -11.7 -3.0 -9.1 -8.6 -0.4 -8.1 -12.4 -3.5 -0.4 3 2.9 -5.0 -2.4 -11.6 -5.6 n/a -2.5 -4.7 -1.6 2.0 -3.4 1.6

-27.7 -10.8 -0.7 -1.2 -11.7 -20 - 14.2 -11.0 -13.8 - 11.9 -13 -5 -8.3 -13.4 - 17.5 -7.0 -12.9 -13.0 - 14.6 -8.1 -7.1 -4. 7 -9.0 -0.5

-9.7 -52.4 -22.6 -9.6 -7.3 -10 -6.4 - 14.2 -40.3 -3.1 -13 -19 -35.0 -37.7 -29 2.6 -8.5 - 14.5 -6.5 -5.4 -29.0 -5.3 -10.0 -11.1

11.0 - 14.8 -23.1 -10.6 -2.4 -3.7 -0.9 -8.5 -39.0 -0.6 -12 -16 - 16.0 -24.2 -1 3.8 1.3 -8.7 -4.1 1.3 -11.1 -10 -14.0 -2.3

9.4 5.4 -21.2 -12.2 1.8 0.8 2.6 -2. 7 -35.0 2.9 -25 -26.5 0.6 1.0 -31 5.2 3.9 -12.6 4.8 5.3 -21.5 -20 -23.0 -4.2

8.6 6.9 -8.3 -10.2 2.6 2 4.8 3.2 2.4 1.5 -8.9 1.3 -1.6 3.1 -3.0 7.0 6.9 -4.0 7.4 3.5 -12.5 -10 -11.8 -1.2

5 6.5 -3.5 n/a -4 5 5.1 3 8 1.5 0.5 2 1 1.5 4 5.0 4.5 -3 5.5 3 -7 0 -7 -1

* forecasts by EBRO n/a = not available Source: EBR0( 1996), Transition Report 1996, EBRO, London.

- $2,000 and $3,000 in Belarus, Estonia, Latvia, Poland, the Russian Federation and Slovakia; - $3,000 and $5,000 in Croatia, the Czech Republic and Hungary; and - c. $8,000 in Slovenia. • Annual GNP per capita in the whole CIT region is substantially lower than the average for the twenty-six highest income countries in the rest of the world. In 1995, the corre­ sponding average, based on official exchange rates, was nearly $25,000. • The composition of GDP in a number of these countries changed quite dramatically dur­ ing the first half of the 1990s; for example, in certain countries, due to a sharp decline in industrial, mining and construction activity (e.g. in Albania, Armenia, Belarus, Slovakia and Poland - see table 1.1.2). Only in one case, Kazakhstan, is a sharp relative increase recorded for this particular sector. The importance of large-scale agriculture, previously undertaken in collective farms, also declined in a number of countries. In contrast, a range of service activities increased in relative importance. • Most CITs recorded a substantial decline in GDP in the early years of the 1990s and, in some of these cases, the decline was on a catastrophic scale (e.g. Albania, Armenia, Georgia, Latvia and Lithuania). Subsequently some countries have stabilised their GDP levels or have begun to make some economic recovery (e.g. Hungary, the Czech Republic, Poland, Croatia, Slovenia, the Baltic states and Romania). However, many of the former republics of the USSR have apparently continued to experience some contraction in their national output (see table 1.1.2 ). These changes in the level and composition of economic activity have had repercussions, both positive and negative, on the level and composition of resource use and environmental pollution. They have also had an effect on the political priorities given to environmental protection and the volume of financial resources available for environmental remediation and improvement. 11

2. ENVI RONM ENTAL I M PACT ASSESS M E NT I N TH E FOR MER SOVI ET U N ION I N ITS H I STOR ICAL CONTEXT Ruben Mnatsakanian

The . materials of the 1996 CEU Summer University on Environmental Impact Assessment deal mainly with the problems of today - with current legislation, procedures, techniques, public participation, etc. At the same time it is necessary to have at least a short overview of the history of EIA (or its surrogates) in the region in order to understand current problems, as well as ideas and practice which are rooted in the past and still influential in many countries.

2.1. EN VIRONMEN TAL PROTECTION UN DER SOCIALISM During the socialist period the idea of economic development at any cost was a prevailing doc­ trine. For several decades there was very little concern about the environmental consequences of in­ dustrial and agricultural development. For example, no checks were imposed on the development of military industry which was particularly important for the communist regimes, despite its highly damaging ecological consequences. Another characteristic feature of the old system was secrecy of information and lack of public participation in decision making. Development plans were never subject to public discussion. Typi­ cally, important economic decisions were presented at communist party congresses as sacred plans not requiring any further discussion. The situation started to change after the Stockholm conference in 1972. However, even at that time, the decision to organise a separate ministry responsible for nature protection (like the EPA in the United States) was rejected by powerful industrial lobbies. Instead, in the former Soviet Union, each ministry was requested to open a nature protection department. Such departments were sub­ ordinated to their respective ministries and had virtually no control over final decisions. Functions of control and monitoring of pollution were given to the State Committee on Hydrometeorology, which had a country-wide network of meteorological stations and hydrological posts. A number of other agencies, such as the State Sanitary-Epidemiological Committee of the Ministry of Health and the State Committee for Water Resources, also exercised certain environmental control functions. In particular, they were entitled to issue permits related to certain aspects of environmental protection. The other socialist countries of Eastern Europe followed the Soviet example. None of them had a specialised environmental ministry until the end of the 1980s. Although pollution in many Eastern European countries was very bad (especially in Poland, Czechoslovakia and East Germany, where low quality coal was used for power generation), major projects passed without proper envi­ ronmental evaluation.

2.2. ECOLOGICAL EXPERTISE AN D TERRITORIAL SCHEMES FOR N ATURE PROTECTION AS PROTOTYPES OF EIA AN D SEA IN THE FORMER USSR In the Soviet Union some projects, with expected major environmental impacts, had to pass the so-called ecological expertise*. Usually there were recommendations from a commission (group of experts), composed of environmental professionals and specialists knowledgeable about the technol­ ogy involved in each particular case. * The Russian term "ekologicheskaya ekspertiza", which literally means "ecological expertise", is translated as "environmental review" in some other papers included in this report.

12

A peculiar deficiency of this approach was that the work of expert commissions resulted in recommendations ("conclusions") which were not legally binding. Additionally, the meetings of expert commissions always took place behind closed doors. All information about the project under discussion, as well as about its expected ecological consequences, was considered highly confidential. Members of expert commissions had to sign a paper obliging them to keep silent about their work. If any of the experts disagreed with the final "conclusion", he or she could write a special note or remark, but such a note was also considered as confidential. The ex­ pert who disagreed was not given the opportunity to explain his or her position to the public. Moreover, even the expertise, however limited its power, was only carried out for a limited number of civil projects. The prevailing concept of nature protection at that time was based upon the idea of the so­ called maximum permissible concentration (MPC) of individual pollutants in the different environ­ mental media. Such concentration limits were established for hundreds of different pollutants. The task of an expertise was often limited to ensuring that the respective MPCs would not be exceeded. This raises the further issue of enforcement and post-auditing since, in reality, only a few substances were monitored on a regular basis. In some other cases, such as the construction of a dam or a channel, it was very difficult to incorporate environmental considerations into decision making, since land, water and other natural assets were considered as having no economic value. Under the peculiar economic laws of socialism, all attempts to argue against ecologically dangerous projects, using economic arguments, failed. In­ adequate economic incentives resulted in a situation where it was always profitable to intensify the usage of natural resources rather than to implement resource-saving technologies. It was always more profitable to pollute and face limited responsibility and negligible penalties than to install pol­ lution control equipment. During the 1970s and 1980s many environmentally damaging projects passed the "ecological expertise" test and were approved. Even if some members of the commissions refused to sign the conclusion and issued their own statements, their voices were never heard either by the public or by the decision makers. In some cases, when the issue was extremely important (for example, in the case of industrial development near Lake Baikal in the 1960s), the discussion reached the press. However, even in these cases, decisions were usually made in favour of economic development rather than envi­ ronmental protection (for example, the decision to build the pulp and paper plant on the shore of Lake Baikal). At the beginning of the 1980s another type of impact assessment was introduced in the USSR. This was in relation to Complex Territorial Schemes for Nature Protection (TERKSOP in the Russian abbreviation). Usually it was carried out by regional and urban planning institutes. TERK­ SOPs were linked not to individual projects, but rather to certain territorial areas, such as cities, na­ tional parks, administrative units or even entire geographical provinces such as the Lake Baikal ba­ sin. Usually TERKSOPs focused on examining the environmental consequences of different develop­ ment options. The schemes were very comprehensive and expensive to create. (For example, the complex territorial scheme for nature protection in the Lake Baikal basin took three years to develop and comprised some eighty volumes.) However, these schemes were merely recommendations and were not legally binding. Their findings could not be straightforwardly incorporated into the decision-making process. The informa­ tion with which they were dealing was often classified and thus not available to the public. Neverthe­ less, during the 1980s several dozen such schemes were developed by planning institutions at differ­ ent levels. Sometimes their findings were taken into account in the development of regional and local plans.

2.3. PUBLIC AND STATE ECOLOGICAL EXPERTISE IN THE PERESTROIKA PERIOD The number of projects with major environmental impacts was growing steadily during the last two decades of the socialist era, and their negative consequences were becoming more apparent. Therefore, when Mikhail Gorbachev initiated his policy of openness of information, or glasnost, eco­ logical issues were at the top of the agenda. Many issues which had formerly been discussed behind

13

closed doors suddenly emerged in the centre of public attention. These included such controversial projects as the diversion of rivers from the north of the Russian plain to the south, the construction of large phosphate mines in a relatively clean region of Estonia, the construction of a new dam on the Daugava river in Latvia, the operation of a chemical plant in the city of Yerevan in Armenia, and many others. The existing decision-making procedures and legislation were unable to address this public outcry in a satisfactory way. Moreover, traditional mechanisms of project appraisal portrayed many of these controversial projects as very attractive to the governing bodies. This was the reason why con­ cerned scientists and intellectuals organised a so-called public expertise for each of the controversial developments. These usually took the form of public hearings or round-table debates, at which all aspects of the proposed projects were discussed. Very often such expert discussions revealed the in­ competence and ignorance of the project proponents on sensitive issues of ecology and public health. Such findings by public expertises added more fuel to the fire of public fury. As was mentioned at the time, it was impossible to judge satisfactorily the acceptability of proposed projects from a purely economic standpoint because of the inadequate pricing system and the doubtful nature of official statistics. Therefore, public expertises often used non-economic criteria for appraising proposed projects, such as fairness, morality, national interest, and the health of the local population. For a short period of time (mainly from 1988 to 1990), public ecological expertises were con­ sidered a major national forum for discussion on a wide range of issues (often going far beyond eco­ logical issues per se) in countries such as Russia, Estonia, Latvia, Hungary, Armenia, Belarus, Ukraine, Bulgaria, Lithuania, and Slovakia. Every country had its own projects which were rejected due to a strong public outcry and which, in fact, marked the end of the ancien regime, i. e. the old way of decision making and prioritis­ ing economic needs. Such projects included the diversion of the northern rivers, the Gabchikovo Dam in Hungary, the Daugavpils Dam in Latvia, and the Nairit chemical works in Armenia. However, subsequent political changes and social turmoil soon pushed environmental protec­ tion to the periphery of public concern. At the same time it became possible to divert the whole proc­ ess of ecological expertise to a more normal course, by adopting new laws on environmental impact assessment (ecological expertise). Thus, the process of evaluating the environmental impact of devel­ opment projects became a routine procedure. Between 1988 and 1989, practically all countries of the region established environmental ministries or nature protection committees. Some countries adopted laws requiring every industrial enterprise to elaborate a so-called ecological passport. This was a review of all sources of pollution within a given facility. It also contained recommendations for pollution abatement and other envi­ ronmental improvements. Usually the enforcement of these recommendations was very weak, al­ though the cataloguing of existing problems was made obligatory. While ecological passports were introduced for existing facilities, proposed new developments had to undergo a procedure to assess their environmental impact (OVOS). During the last years of the existence of the USSR, the process of the state ecological expertise of new projects was defined by law. The Ministry for Nature Protection established special depart­ ments responsible for state ecological expertise and all new projects had to undergo review by these departments. The practice of carrying out OVOSs and TERKSOPs was also introduced, albeit unsys­ tematically. However, the problems surrounding public access to information and public participation in decision making remained unsolved. It was against this background that the newly independent states of the former USSR and some of the Central and Eastern European countries started to develop their EIA legislation and practice in post-communist times.

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PART I I COU NTRY STU D I ES OF ENVI RON M ENTAL ASSESSM ENT LEG ISLATION AN D PRACTI CE

1 . ESTABLISHING INTEGRATED POLLUTION PREVENTION AND CONTROL THROUGH THE ENVIRONMENTAL ASSESSMENT ACT IN ARMENIA Victoria Ter-Nikoghosyan 1 . 1 . I NTRODUCTION 1 . 1 .1 . Shifting the focus of decision

Prior to about 1970 , most countries relied on local or state authorities to deal with the prob­ lems of environmental pollution. Since then, most have recognised that protection of the environment is also an important national government responsibility. The combined challenges of global environ­ mental effects such as climate change, and the need to link economic and environmental policies have placed the need to improve environmental institutions at centre stage at every level of govern­ ment (Haigh and Irwin 1990). Integrated pollution control seeks to improve environmental protection by focusing on the pollution control management function, on the substance, on the source, or on the geographical re­ gion. No single shift in focus can achieve everything, but a combination provides the range of per­ spectives needed. Environmental assessment encourages integration primarily by focusing on the source, but it can also focus on policies and plans for a region. It is also closely related to the pollution control management function and must be co-ordinated with substance-based measures. 1 . 1 .2. Which i ntegration approach to choose

In selecting options for integration, two other questions in addition to the choice of focus are particularly significant. First, at what level of government will integration take place? And second, what measures will be taken to achieve it? Distribution of power among central, regional and local government is one of the most impor­ tant factors determining what kind of integrated pollution control is achievable. Integration at one level can be helped by integration at another. Measures available for achieving integration include co-ordination, reorganisation, and legis­ lation. In many countries some change in legislation is likely to be a prerequisite for effective inte­ gration. In the case of Armenia, new legislation is a central component of the strategy that has been adopted.

1 .2. BACKGROUND TO ARMEN IA'S N EW ENVI RON M ENTAL PROTECTION LEG ISLATION After regaining independence in September 1991 , Armenia stepped into triple transition: the building of a democratic state, the formation of a market economy, and the formation of a new society. The development of new environmental protection legislation was one of the important goals of the newly independent state. It is worth mentioning that the democratic process in Armenia began with environmentalist pressure to stop the operation of dangerous plants in February 1988. After a few days the movement turned into a political one that ultimately resulted in the declaration of inde­ pendence and election of a new parliament. The resulting transformation of the whole state structure has created an opportunity for Armenia to establish more effective environmental compliance and enforcement structures. However, at the very beginning of its legislative activity (newly independent from Moscow) the Armenian parliament imitated the world's current environmental protection practices and devel­ oped media-specific and field-specific laws. 17

On 9 July 1991, (shortly before full independence) the parliament passed "The Principles of Environmental Protection Legislation of the Republic of Armenia" as a constitutional act in the envi­ ronmental protection field. The act states the overall environmental protection policy and establishes a framework within which the parliament will develop specific separate acts to protect the atmos­ phere (air), water, soil, mineral (mining) resources, forest, flora, fauna, specially protected territories, endangered species, and to manage waste, etc. (Armenian Legislation 1991). The act also stipulates economic measures to secure nature protection. The concept of environmental impact assessment finds some expression in the above act in an article on the "State Ecological Expertise", which provides that all economic and social development programmes, economic projects and plans, business operating measures, etc. are to be subjected to environmental assessment. It provides, inter alia, that a list of binding environmental impact miti­ gation measures should be submitted by a promoter of any economic activity in order to meet rele­ vant standards. For large-scale economic programmes permissions may be given by the parliament or through a referendum. This act was prepared and passed when Armenia was still formally a part of the USSR; a few months later Armenia became independent and the parliament started to function freely. Subsequently, the parliament developed several media- and field-specific laws, and adopted the following • "Law on Water", 2 February 1991 (adopted a few months earlier); • "Law on Specially Protected Territories", 17 December 1991; • "Law on Natural (Mineral) Resources", 25 February 1992; • "Law on Land", 25 February 1992; • "Law on Atmosphere (Air)", 1 November 1994 ; • "Law on Forests", 1 November 1994. However, these laws are mostly declarative, without detailed enforceable provisions. Accord­ ing to the structure of Armenian legislation, enforceable provisions have to be developed in the acts, regulations and instructions that follow the laws. The responsibility for developing and adopting regulations belongs to the government - a fact which appears to be an old practice and which leaves scope for pressure from different interested parties. Nevertheless, all these laws contain one positive feature, that is, they leave the door open for the regulatory implementation of EIA.

1 .3. ARMEN IAN ENVI RON M E NTAL I M PACT ASSESSM ENT ACT 1 .3.1. DEVELOPMENT OF THE AMENIAN ENVI RONMENTAL IMPACT ASESSMENT ACT Fortunately, through gaining more relevant experience the need was recognised to shift to a law system with detailed, enforceable procedural requirements. Research into the optimum practices used in other countries in the development of more ef­ fective and enforceable environmental programmes has assisted in the identification of a strategic path for the further development of Armenia's environmental legislation. As part of this, an envi­ ronmental impact assessment (EIA) approach has been chosen to serve as a basic mechanism in streamlining Armenian environmental programmes. An EIA process, which is linked to the permit process, is a mechanism that could serve as a basis for integrated pollution prevention and control and one that could be used in designing envi­ ronmental programmes to promote sustainable development. The Armenian Environmental Impact Assessment Act (EIAA), which has been developed with the assistance of the Environmental Law Institute (USA) (Environmental Law Institute 199195), the Center for International Environmental Law (USA) (Hunter and Bowman 1992, Goldberg 1994) and USEPA, is a curative tool for a number of the media-specific deficiencies in existing regu­ lations. In effect, Armenia has taken a step towards, the integration of different pieces of its envi­ ronmental legislation by passing the EIAA. Ironically, the very broad declarative nature of these ear­ lier acts has meant that it is easier to make the EIAA complementary to them. The Armenian EIAA was adopted by the National Assembly (parliament) on 20 November 1995 and was ratified by the President on 12 December 1995. 18

The EIAA is designed to play two major roles in Armenian environmental and health protec­ tion programmes: • it strengthens the existing requirements for environmental assessment regulations by creating a "vehicle" for integrating environmental concerns into Armenia's other laws and policies. Because it addresses environmental, economic and social issues in a comprehen­ sive way, EIA could serve as one of the best tools for attaining the goal of sustainable de­ velopment through integrated pollution prevention and control; • EIA could also serve as a mechanism to alleviate the fragmentation of the Armenian statutory base and to unify existing environmental legislation. In the future, Armenian environmental legislation could perhaps be streamlined into a single environmental pro­ tection statute based on EIA unified procedures.

1.3.2. Advantages and Opportunities in Armenian EIA The EIAA also provides a framework for compliance with the EIA requirements of interna­ tional conventions and the EIA standards of development assistance agencies (the World Bank, EBRD, etc.). It includes: • a procedure for the EIA of proposed activities; • an EIA procedure where an activity may have a transboundary impact; • a brief procedure for the EIA of concept proposals; • provisions for implementation and enforcement; • provisions on ensuring public participation and involvement in decision making; • a list of activities to be covered by the EIAA; • binding provisions with time frames to be met both by the promoter and the authorities; • certain provisions on the scope of EIA; • provisions to ensure comprehensibility and intelligibility both for the promoter of an ac­ tivity and the public; • provisions incorporating mechanisms enabling bottom-up initiatives (by regional and lo­ cal authorities, the public and NGOs) to conduct EIAs for activities which are below threshold values; • requirements to submit information related to at least two variants of the proposal; • requirements for post-project monitoring and analysis, which must be stated in the final operating permit; • provisions which give rights to interested parties to appeal against procedural violations in the court (Ter-Nikoghosyan 1996). The act contains all of the standard stages in the EIA process and determines the duration of each step (Armenian Legislation 1995): • notification and screening; • preparation of EIA documentation; • scoping; • consideration of different impacts; • public hearings - three mandatory hearings; • expert opinion on EIA documentation; • final decision (approval or disapproval); • post-project procedures; • responsibilities; • court appeal. There are two basic reasons for notifications to be required for all activities: • to make a decision on whether there is a need to conduct an EIA; and • to establish and maintain a database of all such activities. EIAs are required for all activities listed in provision 1 of article 4 of Armenia's EIAA (Armenian Legislation 1995). EIAs shall also be prepared for activities not listed here in cases where the authorised body determines that there is an adequate reason, e.g. the area is specially protected by the "Law on Specially Protected Territories", or will be subject to a significant environmental bur­ den. Proposed activities listed in provision 1 of this article which are below the threshold values are

19

also subject to environmental impact assessment if so decided by the authorised body on its own ini­ tiative or the initiative of: • the regions where the planned activity is to be implemented; • ministries and other state authorities; • communities living in the area or the vicinity where the planned activity is to be imple­ mented; • non-governmental organisations or citizens' groups. The process is summarised in fig. II.1.1. It involves a promoter, experts, regional and com­ munity leaders, the public, NGOs and the competent state authority.

NOTIFICATION AND SCREENING First Public Hearings (on notification and screening) EIA DOCUMENTATION PREPARATION SCOPING Second Public Hearings (on EIA documentation and scoping) EXPERT OPINION ON EIA DOCUMENTATION Third Public Hearings (on expert opinion) DECISION MAKING (concluding assessment and detailed terms of decision) DISSEMINATION OF CONCLUSION AND DECISION TO ALL INVOLVED PARTIES COURT APPEAL (on procedures)

Fig. 1 1.1.1. The Armenian EIA process

The EIA is initiated as soon as a notification of intention is submitted to the authorised body. The promoter has to submit the notification, accompanied by certain information. The notification must refer to at least two alternatives for the activity, along with the "zero action" alternative. The promoter is responsible for the development of both the project proposal and the prepa­ ration and submission of the EIA documentation to the authorised body. She or he shall conduct an evaluation of the activity from both the environmental impact and socio-economic point of view. The promoter may hire experts to perform this task. There is no obligatory list of experts designated by the authorised body from which to choose. The EIA must identify, describe and assess the direct, indirect, cumulative and synergetic impact of the planned activity, including utilisation of natural resources, and compare these with the consequences of taking no action (the "zero action" alternative). The EIA must also include an expla­ nation and comparison of the advantages and disadvantages of the planned activity and its alterna­ tives, including the no action alternative. In the case of the zero action alternative there is a need for careful and comprehensive consideration of the possible consequences of this action. The choice of the zero action alternative should not result in a significant adverse impact on socio-economic develop­ ment and the environment. This requirement is very important for balanced socio-economic develop­ ment and environmental protection in the transition period. The EIA must also identify measures which prevent, eliminate, minimise or mitigate any adverse environmental impact.

20

The act requires the promoter to pay for the EIA preparation, including the cost of review by the authorised body and the cost of public discussion of the EIA. The scope of EIA is determined in article 5, which defines the minimum requirements. A more detailed description of the scope of EIA will be developed in regulations. While the public does not participate directly in the scoping process, the comments of the public in response to the an­ nouncement of the planning activity must be considered. The authorised body has to obtain an expert opinion on the EIA documentation before mak­ ing its decision. Although the promoter may hire any expert to prepare the EIA documentation, it must be assessed by licensed authorised persons designated by the authorised body. These author­ ised persons have to meet specific requirements in order to assess EIA documentation (a university degree, successful completion of the authorised body's examination, and five years experience in the field). The final decision (approval or disapproval) is the responsibility of the authorised body, which has to take account of the expert opinion. With this provision the Armenian EIAA took an important step in linking the EIA process to a final decision: a planned activity cannot go forward until it has been demonstrated that it will not have an unfavourable impact on the environment. Lack of such a link in general leaves EIA requirements largely procedural and unrelated to actual decisions; as a result the effectiveness of EIA could be weakened and an opportunity to integrate environmental is­ sues into a single permit could be missed. Without approval, no activity can start. These are very im­ portant requirements in the act and they provide a single final operating permit for any activity by a single national body. The act introduces a precise timetable for the EIA process and strict deadlines for each step of the process, but does not make reference to any strict time frames in which the promoter must conduct the EIA. However the act states that once the EIA documentation is completed and submit­ ted to the authorised body, the authorised body must submit the EIA documentation to the parties concerned and to authorised experts for comments and to receive recommendation on approval or disapproval according to a strict timetable. The authorised body, after receiving the prepared EIA documentation, should give a final decision to the promoter within a specified time. If the authorised body does not meet the deadline for providing the promoter with an answer, the promoter can start the activity. These provisions present both advantages and disadvantages. On the one hand, the promoter is free in her or his choices in the profitable economic activity, and the authorised body cannot delay the issuing of approval or disapproval so as to inhibit economic development. However, if the planned activity is complex and environmentally harmful it may need more time and resources for completing the expert assessment of the EIA documentation. This provision would seem to undermine the act's goal of protecting the environment. On the other hand, it enables a promoter to protect his or her activity and rights against bureaucrats and corruption. The act contains three articles with detailed guidelines for public participation. This is the first occasion in the whole of Armenian legislation in which the provisions for public participation and hearings have been spelled out so precisely. Public involvement begins in the EIA process imme­ diately after notification of the authorised body by the promoter. The second phase of participation is at the stage of discussing the prepared documentation on EIA. The third phase is at the stage of ex­ pert opinion discussions with the authorised body. At all stages the authorised body is responsible for, and has an obligation to organise public participation together with the promoter and regional and community leaders. All public comments have to be taken into account during both the expert opinion preparation and decision making processes. However, the act does not contain any precise criteria on how to do this. This part of the act needs improvement and, following this, regulations and guidelines need to be developed based on experience, especially that of countries in transition. Any kind of violation of the procedures of the act can be appealed against by involved parties in the court. The Parliamentary Committees are currently developing detailed provisions to be in­ cluded in the civil and criminal codes. Inadequacies in EIA documentation may be appealed against by any involved party to the authorised body. As mentioned above, Armenian legislation continues to be rather general and declarative, and detailed procedures on enforcement and implementation have then to be developed by various ministries through administrative rules and regulations. Some of these shortcomings were overcome with this particular act because the National Assembly was persuaded to include some detailed

21

enforceable procedures and requirements within it. However, only the first steps have been taken on the long road to establish a workable EIA system. Many gaps have to be filled to complete the work already started.

1.3.3. Deficiencies in the EIAA Although the EIAA correctly adopted the approach, prevalent in Western European law, of specifying a list of the activities that are subject to EIA, such an approach is problematic in Arme­ nian legislation. The legislative structure in Armenia does not allow appendices to an act which specify selection criteria. Nor is it customary to include numerical values as thresholds in Armenian legislation. As a result, the act contains a list of activities without threshold values, as a transitional provision. The parliament now agrees that once these are developed they will be incorporated into the act. The act is still enforceable, but for the time being only for those listed activities which need a full EIA without any threshold values being applicable. Current Armenian legislation does not enable the detailed content of an EIA to be stated in the act, something which, in other countries' legislation, could be done in annexes. Again, the absence of annexes proves problematic. To solve this, as an interim measure, a minimal scope of requirements have been incorporated into the act. A more detailed scope will be elaborated in regulations which are currently being prepared to meet the specific conditions of Armenia. There is no precise provision for post-monitoring/auditing requirements in the act, but ob­ taining permission to start an activity implies the introduction of these requirements and the moni­ toring of their implementation. The authorised body is responsible for carrying them out. It is also responsible for designating consultants for post-monitoring. Although detailed articles for public participation were eventually incorporated at a legisla­ tive level for the first time in Armenia, and the act far surpasses the Soviet system in this regard, it still does not fully acknowledge the pivotal role of the public at each step of the process in enhancing and balancing any decision. Moreover, although there is an initial period for public notice and a hearing, there is no clear mechanism for ensuring that concerns raised at the hearings will be taken into account in determining the scope of the EIA documents prepared by the project promoter. Dis­ cussions of several alternative methods with the Ministry of Environment for addressing this concern have not yet clarified which approach to choose, even in developing new regulations. Lack of previous experience in undertaking public hearings and the current inactivity of NGOs and interest groups prevent identification of the most appropriate and tailored approach for the Armenian context. The appeal procedures are the most vulnerable ones in the act. Although a commendable step has been taken - the act provides for bringing a suit to court - it still does not specify court proce­ dures in detail. During the evaluation of the draft of Armenia's EIAA by experts from different for­ eign organisations, it was advised "to spell out the appeal process in much greater detail, including a discussion of which questions can be appealed, who has the right to bring an appeal, and the proce­ dures for initiating the appeal process". Because the authorised body appears to be a potential sub­ ject for lawsuits, the drafting of follow-up regulations on court procedures should not be left to the government. The existing structure of Armenian legislation ensures that such regulations could not be incorporated in the act itself; therefore it was decided that the issue of court appeals should be addressed in the civil and criminal codes. In order to develop the relevant amendments, different models operating in Western countries need to be considered.

1.3.4. EIA of concepts (of policies, plans and programmes) The final report of the International Summit on Environmental Assessment (International Summit on Environmental Assessment 1994) observes that one of the goals of strategic environ­ mental assessment (SEA) is to ensure that the environmental consideration of policies is taken into account in an integrated way. Chapter 3 of the Armenian EIAA addresses EIA of concepts, which could be considered as SEA. The following concepts are subject to environmental impact assessment: socio-economic, energy, urban construction, transport, communication, agriculture, fishery, mining and industry sectors,

22

health care and the social sector, environmental protection, recreation and tourism zones and other service sectors. The documentation on regional planning and the design of the complex use of re­ sources are also considered as concepts. In other words, all programmes, plans and projects that can affect the environment are subject to EIA. These provisions require the government to consider envi­ ronmental factors when it formulates its policies, not just when it conducts specific economic activi­ ties or evaluates the activities of others. An elaborator of a concept is defined as a "submitter" who shall carry out an adequate study on its environmental impact assessment as stipulated by the legis­ lation of the Republic of Armenia. The submitter shall, according to the procedure elaborated jointly with the authorised body, ensure publicity of concepts and their environmental impact assessment at least thirty days before public hearings. The submitter shall arrange public hearings on concepts and take public opinion into consideration. The submitter shall present the concept to the authorised body, which shall arrange for EIA, and make the corresponding decision within ninety days of receiv­ ing the concept. In the case of EIA of concepts, an approving authority could be either the parlia­ ment, the government, or any ministry empowered to make the final decision on approval or disap­ proval of the concept. However, there is no clear definition and specification in the act of what state body shall be competent to approve which kind of concept. The approving authority has no right to accept a concept without a positive assessment conclusion by the authorising body. This part of the act is less developed and does not contain sufficient detail for its implemen­ tation. For example, there is no clear distinction between the EIA documentation and the procedure that will be appropriate for the assessment of a planned activity and those that will be appropriate for the assessment of a concept. The general declarative nature of this part of the act stems from the lack of adequate experi­ ence not only at the national, but also at the international level. Inclusion of some procedures and requirements for the EIA of concepts in the act is an attempt to start building and developing better and more enforceable requirements on the basis of available international experience. This part of the law needs to be amended to include more detailed procedures, which would provide the basis for follow-up regulations.

1 .4. PROBLEMS TO BE ADDRESSED The adoption of the EIAA is proving to be a real advance in environmental protection reform in Armenia. However, there is still a long way to go in establishing an effective EIA system, in creat­ ing appropriate institutions and in capacity building. The development of the regulations, rules, instructions and guidelines deriving from the act must be continued. The training of officials for the implementation and enforcement of the act is also an emerging issue. Another important issue is education of the academic community and NGOs in the preparation of EIA documentation. Ensuring higher public awareness in this field and earning public credibility are to be viewed as indispensable parts of the whole EIA system. New institutions which should be responsible for co-ordinating and supervising the EIA proc­ ess have not yet been established. The act does not define which state body will supervise and co­ ordinate the EIAA process. It only mentions that these functions are the responsibility of an "authorised body". The government may either leave this to the EIA Division of the Ministry on Envi­ ronmental Protection and Mineral Resources (MEPMR), or create a new independent state body. The main issue in discussions concerning the establishment of such an independent state body is to en­ sure environmentally sound decisions. Before this decision is made, the function continues to be per­ formed by the EIA Division of the MEPMR, which was created in 1989 under the old regulations. Currently, there are no annually published statistics on EIA performance in Armenia. All documentation on previously processed OVOSs have been assembled in the Division of EIA of the MEPMR. Also there are as yet no guidelines for EIA charges. Information on the quality of already completed EIAs is not yet publicly available. All of these problems should be addressed through the development of appropriate regulations.

23

1.5. IMPORTANCE OF THE ADOPTION OF EIAA FOR FURTHER REFORMS AND DEVELOPMENT The adoption of the EIAA is revolutionary, and not only for Armenian environmental protec­ tion legislation which empowers EIA requirements and elevates the EIA process to the national legis­ lative level. This act introduces a new approach into Armenian legislation as a whole. The detailed, enforceable provisions of the act are precedents which could stimulate further enforceable amend­ ments, not only in environmental legislation, but also in other codes of Armenian legislation. They are as follows: • the act introduces a level of detail into provisions such that they can become immediately enforceable without referring to regulations, which is the first experience of this kind in Armenian legislation; • the act now introduces precise numbers in legislation. This is unusual compared with the mostly declarative content of Armenian laws and may become a starting point for further modification. The importance of having precise numerical values in the law prevents ex­ ecutive bodies from manipulating threshold values for their own purposes. Only the Na­ tional Assembly has the power to make amendments; • the act introduces three detailed articles on public participation, obliging the authorised body to involve the public in the process and empowering it to express its opinion. Before that, Armenian legislation contained some general provisions on taking public opinion into account, but no procedures and obligations were articulated to require authorised bodies to arrange public hearings and give genuine consideration to public opinion; • the act introduces provisions for linking the EIA process to a single final operational permit process. Such a permit has to be issued by a single authorised body which is re­ sponsible simultaneously for co-ordinating and supervising the EIA process. At the same time, this final operational permit is a legally binding document; • the act gives any involved party the right to appeal against EIA procedures directly to the court, not only to superior offices as was the previous practice. Along with this important reform in the environmental field, EIAA is intended to play a sec­ ond, no less important role in the field. This act has unified Armenian environmental protection leg­ islation into a single logical framework. This creates a basis for a more modern conceptual approach to solving environmental problems. The act provides a unique opportunity to move towards inte­ grated pollution prevention and control, based on the environmental impact assessment approach. This opportunity is provided by the transition period, and has to be taken. The major step has been taken - the legal framework has been established. The integrated final operating permit provisions in the EIAA have also been introduced. Finally, the small size of Armenia is also an advantage in terms of the success any kind of reforms. All the factors mentioned above prove that many problems can be overcome more easily than in countries with already established and rigid systems. Armenia, hopefully, will seize this opportunity.

REFERENCES Armenian Legislation (9 July 1991) The Principles of Environmental Protection Legislation of the Republic ofArmenia. Armenian Legislation ( 12 December 1995) Environmental Impact Assessment Act. Environmental Law Institute ( 1991, 1992, 1993, 1994, 1995), Working Papers prepared under the auspices of the Environ­ mental Law Institute's Environmental Programme for Central and Eastern Europe Washington D. C. Goldberg, D. M. ( 1994), A Comparison of Eight Environmental Impact Assessment Regimes: the United States, Bulgaria, the Czech Republic, Slovakia, the European Community, the World Bank, the European Bank for Reconstruction and Development, CIEL, Washington D. C . Haigh, N . and F. Irwin (eds.) ( 1990), Integrated Pollution Control i n Europe and North America, The Conservation Foundation, Washington D. C. and the Institute for European Environmental Policy, Bonn, Brussels, London and Paris. Hunter, D. and M. Bowman ( 1992), Journal of International Law, 13, p. 921. International Summit on Environmental Assessment ( 1994), Final report of the International Summit on Environmental As­ sessment, Quebec City, 12-14 June, 1994.

24

Ter-Nikoghosyan, V., ( 1996), Development and Enforcement of New Armenian Environmental Protection Legislation: Prob­ lems and Solutions, Fourth International Conference on Environmental Compliance and Enforcement, 22-26 April, Chiang Mai, Thailand, pp. 719-732. United Nations ( 1996), Armenia 1996, UNDP, Armenia Country Office.

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2. ENVIRONMENTAL IM PACT ASSESSMENT IN THE REPUBLIC OF BELARUS Oleg Cherp*

2.1. BACKGROUND Belarus is an Eastern European country bordered by Poland, Russia, Ukraine, Latvia and Lithuania. It has an area of 207,600 km2 and a population of 10.5 million people. The main environ­ mental problems of the country include contamination from the Chernobyl fallout (70% of which fell on Belarus affecting about a quarter of its territory), water pollution from potassium salt mining and large pig breeding farms, and the environmental impact from the massive drainage of the country's vast marshlands (Cherp and Kovaleva, 1995).

2.2. ENVIRONMENTAL IMPACT ASSESSMENT LEGISLATION The Soviet system of State Environmental Review introduced in 1988-89 (see "EIA in the Russian Federation") was in force in Belarus until superseded by national legislation adopted soon after the disintegration of the USSR in 1991. The first piece of such legislation was the framework Law on the Protection of the Environment, passed on 26 November 1992. Following the Soviet tradi­ tion it introduces the mandatory procedure of state environmental review (SER, dzyarzhaunaya ekalagichnaya ekspertyza) as the main instrument in influencing environmental aspects of decision making. It also introduces the non-mandatory public environmental review (PER, gramadskaya ekalagichnaya ekspertyza), an independent review procedure of proposed activities which can be ini­ tiated by environmental NGOs and local authorities (Supreme Soviet, 1992). The Belarusian Law on the State Environmental Review was passed on 18 June 1993. Ac­ cording to this law, SER procedures are carried out by the special State Environmental Review De­ partments (SERDs) of the Ministry of Natural Resources and Environmental Protection or its pro­ vincial (voblasc) or district (rayon) branches. The ministry is also entitled to appoint committees of experts and public representatives to conduct SERs. The law envisions the SER procedure for "economic and other" activities at project, plan or programme (for sectoral and territorial development plans and programmes) level as well as for exist­ ing facilities "of all forms of ownership" and the state of the environment of particular territories (Supreme Soviet, 1993). The latter two provisions were introduced in order to evaluate, on environ­ mental grounds, such decisions as declaring an area to be an environmental disaster zone, or the pri­ vatisation of a facility. However, only the procedure for reviewing environmental aspects of proposed plans and projects is elaborated in detail in the "Instruction on Conducting the State Environmental Review of Project Documentation" passed by the Ministry of Natural Resources and Environmental Protection on 18 January 1995. The SER procedure in Belarus is applied to all projects (there are no screening provisions). However, according to the 1995 Instruction, the assessment of environmental impacts (or OVOS, see "EIA in the Russian Federation" for details) should be organised by the developer and documented in the materials submitted to the SERD only for certain types of "environmentally dangerous activi­ ties". The list of such activities, attached to the 1995 Instruction, includes all projects from annex I of the European Community's EIA Directive 85/33 7 (no threshold is specified for oil refineries, power stations and asbestos production), except for trading ports (Belarus is landlocked) and inland water­ ways. In addition, the list includes the following annex II projects: * The author is grateful to E. Krasney of ECO LINE, Belarus, who helped to gather the necessary materials for this article and to the MacArthur foundation who supported this work.

26

• •

installations for hydroelectric energy production; extractive industry, if the total area affected is more than 50 ha or the volume of minerals or other products extracted is more than 500 m3 ; • natural gas extraction and processing; • surface storage of oil and oil products (with a capacity exceeding 50,000 m3 ) ; • pulp, paper and cardboard production; • biotechnology, production of pesticides, fertilisers and pharmaceutical products; • textile and leather processing and production; • manufacture of glass; • manufacture of cement; • manufacture of gunpowder and explosives; • oil and gas pipelines with pressure of more than 4 bar; • municipal waste management (storage, treatment, disposal etc.) facilities; • pig and poultry rearing installations (with more than 12,000 pigs or more than 400,000 chickens). In addition, the following types of projects are included in the list: • cattle farms with more than 2000 cattle; • manufacture of batteries and electronics; • manufacture, storage, transportation and disposal of munitions and missile fuel; • ground water extraction with a capacity exceeding 30,000 m3/day (this type of project is mentioned in the Espoo 1991 "Convention on EIA in a Transboundary Context"). The OVOS requirements for environmentally significant projects are based on the ''Temporary Instruction on Conducting Assessments of Environmental Impacts (OVOS)" (USSR State Committee on Nature Protection, 1990) which was adopted as a guiding document by the Belarusian Ministry of the Environment in 1994. The Instruction outlines general goals and princi­ ples and certain specific requirements for the OVOS procedure. The "OVOS volume" (an analogue of EIS) is required to contain the description of the development and its alternatives, documentation of the OVOS process and a summary of its main findings. The stages of the OVOS process include scoping, prediction of the magnitude of the direct, indirect and cumulative impact including its "intensity, duration, and probability", consultation and public participation (without, however, speci­ fying its exact mechanisms) (Cherp and Lee, 1997 ; USSR State Committee on Nature Protection, 1990). For projects with a less significant environmental impact a simpler procedure is required based on the 1985, "Instruction on Developing Project Documentation for Constructing Industrial Establishments, Residential Buildings and Facilities" of the USSR State Construction Committee, which requires "the complex assessment of the adequacy ofplanned measures to use natural resources rationally and prevent negative impacts on the environment ... " and does not provide for consultation and public participation. In addition to OVOS documentation, the developer has to submit to the SERD a general description of the project and the proposed technologies, information on planned water consump­ tion and discharges, and the so-called "environmental passport" of the project, the format of which is given in an annex to the Instruction. After the necessary documents have been submitted, the SERD, or a committee of appointed experts, reviews the appropriateness of the assessment of environmental impacts and the environmental risk of implementing the proposed activity. Based on the results of the review the SERD issues a so-called "SER Resolution" which can be positive or negative. The latter, generally, means that the project cannot go ahead, although the 1993 Law provides a reservation stating that: "If a negative conclusion is issued, [the Ministry]... can specify conditions under which the planned economic or other activity is possible" (Supreme Soviet, 1993). An SER Resolution can be challenged in court by the developer, the public or other affected party. Unlike the Russian Environmental Review Act (1995), Belarusian legislation requires that SER is financed by the state rather than by the developer. The public can participate in environmental decision making through the following mecha­ msms: • participation in the OVOS procedure for "environmentally dangerous projects"; 27

• •

participation, through its representatives, in SER expert committees; conducting a public environmental review (PER), the results of which can be taken into account by the SER.

2.3. ANALYSIS AN D RECOMMEN DATION S The Belarusian EIA system incorporates elements of both SER and OVOS. Their origin, spe­ cific features, advantages and disadvantages are examined in the paper "EIA in the Russian Federa­ tion". The analysis which was undertaken for Russia is generally applicable to Belarus, although the EIA system in this country is at a somewhat "earlier" stage of development. Also, in the case of Be­ larus, the absence of a strong "pro-OVOS" party has made this procedure little more than a process for preparing documentation for the SER. 2.3.1. State Environmental Review Although the procedure for SER falls short of the criteria requried for a systematic EIA proc­ ess, SER remains one of the main tools of preventive environmental regulation in countries in tran­ sition, especially in those with a Soviet history. Clear and specific SER regulation and practice help to achieve many of EIA's objectives, such as predicting the environmental impact of proposed devel­ opments, considering alternatives, informing affected parties and incorporating environmental con­ siderations in decision making. Belarusian SER legislation is clear and concise. It provides sufficiently comprehensive re­ quirements regarding the documentation that developers should submit for SER, as well as regard­ ing some basic EIA elements such as consideration of alternatives and prediction of impact magni­ tude. However, a number of deficiencies can be identified: • there is no legal definition of SER or environmental review in general. Such a definition helped, in the case of Russia, to distinguish SER from other environmental regulatory in­ struments such as environmental audit or environmental site assessment. The Belaru­ sian SER Law requires SER of existing facilities and territories, thus blurring the role of SER as a tool of preventive environmental regulation; • although SER is, by law, mandatory for programmes as well as for plans and projects, no specific provisions have been made for conducting SER for sectoral development schemes, regional development plans and other higher level decision making; • Russian SER incorporates a principle of "the presumption of environmental danger" (Fed. Env. Rev. Act 1995) of any proposed development. Thus, it is the responsibility of the de­ veloper to prove that the proposed activity is environmentally safe. This important prin­ ciple is absent in Belarusian legislation. Since SER in Belarus is financed not by develop­ ers, as in Russia, but by the state, the system seems to be shifting the burden of conduct­ ing environmental assessment from developers to the state, which is an approach incom­ patible with the "polluter pays" principle; • the Russian SER system requires an evaluation of proposed activities on the basis of "comprehensiveness of assessment of expected environmental impacts" while the Belaru­ sian system focuses more on checking compliance with legal norms and standards, ade­ quacy of mitigation measures and the level of environmental risk. Thus, Russian SER has more potential to become a tool for reviewing the quality of the EIA process which is a desirable direction of development (Cherp and Lee, 1997 ); • the role of SER expert committees, comprising independent experts appointed by SERDs, is diminished in Belarus in comparison with Russia. In Belarus such committees are ap­ pointed only in "selected cases" while in Russia they are mandatory. The Russian system seems to be more progressive since it reduces the SERDs' burden of conducting technical work, provides for taking wider perspectives into account in arriving at an SER resolution and reduces the risk of corruption; • there is a significant ambiguity regarding the status of a "negative resolution" of SER in Belarus, related to the provision that projects can go ahead even after a negative resolu28

tion of SER has been issued, if the ministry specifies certain "conditions" for their imple­ mentation. This stipulation seriously undermines the usefulness of SER. Russian law specifically excludes such a loophole by saying that "An SER resolution which requires any modifications to the project documentation is a NEGATIVE (capitalisation mine) resolution. A new SER should be conducted after the deficiencies [in the project] have been corrected " (Fed. Env. Rev. Act 1995). 2.3.2. Adequacy of the OVOS procedure Belarus does not have a specific legal document on OVOS such as the Russian 1994 "OVOS Regulations". Consequently, OVOS in Belarus is defined not as a "procedure for taking into account the environmental requirements of the legislation . . . in preparing and making decisions on social and economic development" (Minister of the Environment, 1994), but as a subordinate activity for prepar­ ing documents for SER. Similar to the Russian situation, OVOS in Belarus lacks specific consultation and public participation provisions. Belarus has made an important attempt to provide for screening and to specify different ap­ proaches towards different types of projects. However, the screening provisions in Belarus can be im­ proved in the following ways: • programmes and plans, none of which is currently on the list of "environmentally danger­ ous activities" or at least certain types of them, should be made subject to the OVOS pro­ cedure; • since most of the major environmental problems of Belarus are related to agriculture, more agricultural projects from annex II should be made subject to OVOS, for example, projects to use uncultivated land for agricultural purposes. Especially significant are wa­ ter projects for agriculture such as irrigation and drainage schemes, which contribute to widespread soil erosion, destruction of wetlands and deterioration of wildlife habitats on a national scale; • urban infrastructure projects such as sewage treatment plants are also a significant source of environmental problems in Belarus and should be made subject to OVOS. It is also recommended to build some flexibility into the existing screening requirements. For example, the Russian 1994 "OVOS Regulations" provide a list of projects that are subject to OVOS but, at the same time, entitle provincial authorities and provincial branches of the Ministry of the Environment to decide, at their discretion, which other projects should be made subject to OVOS. 2.3.3. The role of local authorities and the public A serious disadvantage of the Belarusian system is that local, and even regional authorities are not given any role in the SER process. SER has become the exclusive prerogative of the Ministry of the Environment. This, naturally, reduces the potential for consultation and public participation and does not allow social and economic consideration to be integrated in decision making. The follow­ ing rights of the local and regional authorities should be guaranteed at least (Fed. Env. Rev. Act 1995): • the right of access to information on SERs that are being conducted and to documenta­ tion submitted to the SER; • the right to delegate representatives to SER expert committees; • the right to initiate local referenda and public hearings regarding planned activities and the requirement to take into account the outcome of these hearings in SER resolutions; • the right to monitor and enforce compliance with SER resolutions. Although the role of the public in formulating environmentally significant decisions is men­ tioned in the Law on Environmental Protection and the Law on State Environmental Review, there is an obvious lack of specific provisions for public participation. One of the most significant drawbacks of the current system is the lack of provisions for pub­ lic access to information about SERs that are being conducted. The SERDs, local authorities and de­ velopers should be made responsible for informing the public about planned activities, at least to the 29

extent that this is done in Russia, otherwise all other public participation provisions will be no more than a declaration. Belarus can be praised for retaining a very positive provision to include representatives of the public in SER expert committees. Such a stipulation was recently excluded from Russian legislation. Unfortunately, in Belarus the decision to include a public representative in a SER committee is left entirely to the discretion of SERD officials and there has been no precedent for this. The mechanism of the public environmental review (PER) is one of the most powerful tools of public participation in environmental decision making in post-communist countries (Khotuleva et al 1996). Moreover, in a number of cases it provided a unique opportunity for independent review of the quality of the EIA (OVOS) process in Russia. Although PER is mentioned in all of the Belarusian SER regulations, its role remains marginal. This can be demonstrated, for example, by the fact that the Belarusian law is called "On State Environmental Review" while its analogue in Russia is called "On Environmental (meaning both state and public) Review". The following measures should be taken to improve the efficiency of PER in Belarus: • an official procedure for registering PERs with local authorities should be adopted to formalise this mechanism of public participation; • registered PERs should have a right to delegate a representative to SER expert commit­ tees; • registered PERs should have the right to access the same information about planned de­ velopments as SERs, excluding information which is a state secret.

2.4. CONCLUSION The EIA system in Belarus has developed along a path, traditional for post-Soviet countries, incorporating two elements: SER and OVOS. A clear and sufficiently consistent SER system was cre­ ated between 1992 and early 1995 which incorporated basic EIA (OVOS) requirements for environ­ mentally significant projects and some provisions for public participation. However, little develop­ ment has occurred since then. The current system can be considerably improved by learning from other countries in transi­ tion, especially by increasing the role of local authorities; codifying the process of OVOS and public participation mechanisms, particularly concerning the PER procedure; and shifting the burden of environmental impact assessment to developers.

REFERENCES Cherp, 0. and N. Kovaleva ( 1995), "Belarus", in P. Pryde (ed.) Environmental Resources and Problems of the former Soviet Union, West View Press, USA. Cherp, 0. and N. Lee ( 1997), Evolution of SER and OVOS in the Soviet Union and Russia (1985-1996), EIA Review, 17(3). Federal Environmental Review Act of the Russian Federation (1995), Federal Law No. 174-F3 of 30 November 1995. Khotuleva, M., 0. Cherp and V. Vinichenko ( 1996), How to Organise a Public Environmental Review: a Guide for NGOs, Ecologia-Ecoline, Moscow, Russia. Minister of Environmental Protection and Natural Resources of the Russian Federation (1994), Order No. 222 of 18 July 1994, On Introducing the Regulations on the Assessment of Environmental Impacts, Moscow, Russia. Ministry of Natural Resources and Environmental Protection of the Republic of Belarus ( 1995), Instructions on Conducting State Environmental Review of Projects in the Republic of Belarus, adopted 18 January 1995. State Committee on Nature Protection of the USSR (1990), Temporary Instruction on the Order of Conducting Assessment of Environmental Impacts during Elaboration of Feasibility Studies (Calculations) and Projects of Construction of Economic Fa­ cilities and Schemes of 18. 05.1990, (in Russian), Moscow. Supreme Soviet of the Republic of Belarus ( 1992), Law on the Protection of the Environment, passed on 26 November 1992. Supreme Soviet of the Republic of Belarus ( 1993), Law on State Environmental Review, passed on 18 June 1993. UNECE ( 1991), Convention on EIA in a Transboundary Context, United Nations, Geneva.

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3. ENVIRONMENTAL IMPACT ASSESSMENT IN BULGARIA Vesela Veleva and Svetla Anachkova

3.1. INTRODUCTION The introduction of environmental impact assessment (EIA) in Bulgaria dates from 1991 with the adoption of the Environmental Protection (EP) Act. This was a major step in the development of environmental legislation. Before its adoption there were over 200 laws, decrees and regulations re• lated to the environment. However, the necessary prerequisites for reliable protection of the environ­ ment did not exist. The reason lay mainly in the control system: lack of control and very low, some­ times merely symbolic, sanctions in the form of fees and fines. Now, including the Constitution and the EPA, there are over 140 legislative acts relating to the environment.

3.2. ENVIRONMENTAL PROTECTION ACT The EP Act has six chapters. Chapter IV is devoted to EIA and defines the types of projects subject to EIA; the initiator of EIA; the content of the environmental impact statement (EIS); public participation; and the decision-making procedures. Originally, two appendices to the EP Act provided the list of projects subject to EIA. Appendix 1 related to projects of international importance subject to EIA, while appendix 2 related to projects of national and regional importance subject to EIA. The two lists of projects were very similar to the lists of projects given in Directive 85/337/EEC for carrying out an EIA. The EP Act was amended in 1997 (State Gazette No. 85/26.09.97 ) to replace these two appen­ dices by a single appendix. For some types of project the list includes threshold screening criteria such as size, production output, emission level, etc. The list also specifies the competent authority for the particular project. Depending on the threshold criteria, the competent authority is either the Ministry of the Environment and Waters, or the Regional Inspectorate for the Environment and Waters. The 1997 amendment to the act (article 20 , par. 2) also gave municipalities the right to pro­ pose an EIA for projects which do not require a mandatory EIA according to the list in the EP Act. In order to do so, they assess the environmental impact of those projects through a brief preliminary assessment. This is paid for by the collection of taxes/fees (determined by an Order of the Council of Ministers), which then go to the respective municipal fund for environmental protection. Before the introduction of formal EIA procedures in 1991, the environmental consequences of selected major activities were appraised by various sectoral expert committees. This kind of appraisal was called an environmental expertise. Article 19 of the EP Act states that all activities may be subject to an EIA. EIAs are obliga­ tory for (1) all projects and facilities enumerated and registered pursuant to the appendix of this law; (2) national and regional development programmes, land-use and urban development plans and their amendments; and (3) projects for reconstruction and enlargement of existing enterprises in­ cluded therein. Furthermore, in certain instances local government bodies have discretion to order an EIA. Article 20 was amended in late 1992. The changes included granting a right to interested physical or legal entities to propose to the competent authorities that an EIA be ordered. Also, certain facilities with a major environmental impact are subject to an EIA every five years. Article 23 a requires the competent authority (i.e. the Environmental Expert Council) to or­ ganise a public discussion of the results of the EIA. The discussion should include: the local admini­ stration, representatives of NGOs, the public, and interested physical and legal entities. These per31

sons must be informed by the competent authority or initiator of the activity by means of the mass media or other suitable channel not later than one month before the discussion. Under Article 23b the competent authority must make its decision within three months of the hearing. The competent body shall make conclusions based on the EIA, taking into account the views of the persons participating in the procedure. Within fourteen days of the adoption of its decision, the decision must be published in the same manner as above. Interested parties may appeal against the decision to a court under the law of administrative procedure, within fourteen days of the publication of the decision in matters of local importance, or within thirty days of publication in matters of na­ tional importance. In 1995, in relation to the water crisis in Sofia, the capital of Bulgaria, an addi­ tional article was added by parliament to the EPA, which made provision for the Council of Ministers to approve projects of special importance without an EIS, which would be prepared within one year of commissioning. This amendment of the EP Act caused much debate amongst environmental groups and spe­ cialists and was subsequently cancelled in the 1997 amendment.

3.3. REGULATION No. 1 ON EIA OF 28 DECEMBER 1992, AMENDMENT OF 7 AUGUST 1995 The first regulation on EIA - Regulation No. 1 on EIA of28 December 1992 - was issued by the Ministry of the Environment, the Ministry of Territorial Construction and Development, the Ministry of Health and the Ministry of Agricultural Development, Land Use and Restoration of Landed Property. Practical experience with Regulation No. 1 of 28 December 1992 during the next three years showed its various weak points and omissions. One reason was that the regulation was copied from Western legislation (mainly from Directive 85/337/EEC) without considering national specifics. At the beginning of 1995 a new draft regulation on EIA was distributed and an inquiry was held amongst the representatives of the competent bodies (the Regional EECs and the Supreme EEC) for any suggestions for improvement of the EIA regulation. In August 1995 a new regulation on EIA was issued to replace the former one: Regulation No. l on EIA of 7 August 1995. The regulation refers to a certain extent to strategic environmental assessment (SEA), covers both EIA and environmental audits, and specifies different requirements for the three. The regula­ tion also contains: • Annex No. 1 : the Scope and Contents of the EIA Report for Land Use and Development Plans (SEA); • Annex No. 2: the Scope and Contents of the EIA Report for Projects; • Annex No. 3 : the Scope and Contents of the EIA Report for Operating Facilities (environmental audits). The annexes contain a very detailed description of the information which must be included in the reports, including documentation, public participation, decision making and control of decisions, and EIA procedures to be followed. Regulation No. 1 is not signed by the chairmen of the committees of Woods, Geology and Mineral Resources. This means that these bodies are not represented in the committees that review the EIS and make decisions.

3.4. REGULATION No. 2 OF 7 AUGUST 1995 FOR CERTIFYING THE PROFESSIONAL COMPETENCE OF EXPERTS CARRYING OUT EIAs This regulation determines the licensing conditions and the system for authorisation of ex­ perts who carry out EIAs. Persons appling for a licence must meet at least one of the following conditions: • have completed a specialised EIA course certified by the Ministry of the Environment educational centre; • have at least five years professional experience in the field of environmental protec­ tion. 32

Each expert is licensed for a particular field in EIA (for example, impact on air, water, flora, fauna, soils and geology, protected areas, public health, or to be manager of an EIA team, etc.). The licence is valid for five years. After this period a new application must be made. Licensing is carried out by a joint committee, appointed by the Minister of the Environment and Waters, involving repre­ sentatives of the Ministry of Public Health, the Ministry of Territorial Construction and Develop­ ment, the Ministry of the Environment and Waters, and the Ministry of Agriculture and the Food Industry. Each expert in EIA has a file in the Ministry of the Environment and Waters. The Minister can withdraw an issued licence in the following cases: • if EIA reports prepared by the licensed expert have not been approved or have been re­ turned for revision more than three times; • if discrepancies are found between the forecasts in the EIA report and the actual envi­ ronmental impact after starting operation on the site. Specialised courses in EIA are carried out by educational centres accredited by the Ministry of the Environment and Waters. Each EIA course should include at least forty study hours and re­ quire completion of an examination or preparation of written course work. Since October 1996 only those EIA reports are accepted for review which have been prepared by licensed experts. There are currently about 500 licensed experts in Bulgaria.

3.5. MAIN SPECIFIC FEATURES OF EIA IN BULGARIA The competent authority (i.e. the decision-making body) is either the Ministry of the Envi­ ronment and Waters (MoEW), previously the Ministry of the Environment (MoE), or the respective Regional Inspectorate for the Environment and Waters (RIEW), as defined in the appendix to the EP Act. The decision is signed by the Minister of the Environment and Waters or the Director of the RIEW respectively. EISs are reviewed by the so-called "Environmental Expert Councils" (or the Su­ preme Environmental Expert Council), where representatives of the following organisations are in­ cluded as members: MoEW; municipalities; the Ministry of Health; the Ministry of Territorial Devel­ opment and Construction; the Ministry of Agriculture and Food, and their local divisions. Measurements and laboratory tests necessary for the EIA must be carried out by accredited laboratories which are included in a list approved by the Minister of the Environment and Waters. Chapter IV of Regulation No.1 on EIA is devoted to the public discussion of the EIA results. The public discussion must be organised jointly by the competent body and the local municipality. In the public discussion the following organisations and people can take part: representatives of the lo­ cal administration; state and public organisations; NGOs; the general public; and interested physical and legal entities. The organiser defines the place and the date of discussion as well as the access to the docu­ mentation, through the local mass media or some other appropriate channel not later than one month prior to the discussion. The public discussion is led by a representative of the competent body and a protocol of the discussion is prepared. This protocol is used later to complement the EIS. How­ ever, in many cases the public participation process may be cut off by a decision of the ministry or regional inspectorate if it is clear that there is no significant environmental impact. The decision on the EIA is valid for one year. After this time the permission lapses, although the investor /initiator of the activity may apply for an extension. A comparison between the Bulgarian and EU legal requirements for EIA is given in table II.3.1.

3.6. GUIDELINES Having good legislation is one thing but its enforcement and practice is quite another. In addition to the regulations, various guidelines exist which pave the way to good EIA practice in Bulgaria. Practical guidelines for the preparation of EIA reports were published by the Ministry of the Environment in 1995. This publication was financed by the EC PHARE programme and translated with the written permission of the EPA of lreland. 33

Table 1 1.3.1. Comparison between Bulgarian and EU legal requirements for EIA Activity

European Union

Activities subject to EIA Private, public and state projects only

B ulgaria Private, public and state development plans, projects, existing facilities

Screening

List of categories subject to EIA

Scoping

Minimum required The scope of the EIA is determined information is identified. in the annex to Regulation No. 1 Additional information can be claimed by the member states.

List of categories subject to EIA

Who is responsible for The investor carrying out the EIA?

The investor. The experts are licensed. The expert is liable for false conclusions. The competent authority, together with the local municipality, organises public participation.

Who pays?

The investor

At the discretion of the member state

Impacts to be considered Direct, indirect, cumulative

Direct, indirect, cumulative

Alternatives

At the discretion of the member state

To be considered

Mitigation

Yes

Yes

Decision making

Competent authority

MoEW/RIEWs

The best alternative

Not obligatory

Not obligatory

Monitoring

Not required

Required

Public participation

Determined by the member states,subject to broad EU requirements

Not in scoping. Only the information from the EIS is available. 30 days' access to EIS. Written opinions accepted. No answer to written opinions is required. These opinions may be taken into account by the experts and decision makers. Public hearings. The competent authority has to specify its motives. Interested parties may sue the competent authority.

Guidelines on world practice were published by the Ministry of the Environment under the PHARE programme in 1996. A review package on EIS evaluation for decision makers was published by the Ministry of the Environment in 1995 with the financial support of the EC PHARE programme. It was made possible through the kind permission of the Institute of Public Administration in Ireland. In 1997 the Ministry of the Environment, again under the PHARE programme, published guidelines for EIAs of land-use plans and urban development plans. The World Bank and the European Bank for Reconstruction and Development have their own requirements for the EIA of projects they finance (although, as far as we are aware, they have not been translated into Bulgarian). The European Investment Bank (APEX loan), which is a source of credit for small and medium-sized enterprises that has been operating for more than a year in Bul­ garia, applies no special requirements other than that EIA should be carried out in compliance with Bulgarian legislation.

34

We found two additional publications in Bulgarian related to EIA which were, at the time, distributed free of charge among interested parties. They are both based on materials from seminars that took place in 1993: • EIA: A Project for Training in Environmental Management in Central and Eastern Europe, sponsored by the American Agency for International Development through the University of Minnesota. • Materials for Municipal EIA: Recommendations on Environmental Issues for Municipali­ ties, sponsored by the German Institute for Urban Development.

3.7. TRAIN ING A number of seminars have been held, sponsored by foreign institutions, aimed at the dis­ semination of knowledge on EIA regulations and practices. In 1993 the Ministry of the Environment, with the support of the EC PHARE programme, organised a seminar on EIA relating to both the preparation of an EIS and its evaluation. Training on EIA is also included in the one year programme for the training of local experts in integrated coastal management, EIA and environmental audit, financed by the PHARE and TACIS programmes of the EC and conducted, in 1995, in Varna. All universities and higher educational institutions that have programmes related to the en­ vironment have introduced one semester obligatory courses on EIA. Now that the regulation on the licensing of EIA experts has been enacted, educational cen­ tres accredited by the Ministry of the Environment and Waters have begun to organise intensive courses for the training of such experts. The courses end with an examination or the preparation of written course work. The successful completion of such a course allows experts who have no less than five years experience in environmental protection to apply for a licence from the Ministry of the Envi­ ronment and Waters.

3.8. ACCESS TO EISs A list of all the EISs that have been reviewed by the Supreme Environmental Expert Council at the Ministry of the Environment and Waters is published regularly in the newsletter "ECOINFO" issued by the Centre for Environment and Sustainable Development at the MoEW. The EISs themselves are intended to be accessible to students, researchers and the public at the library of the above-mentioned centre. However, this has not always been happening in practice, since the number of copies of the EIS required by law is insufficient. Often EISs are accessible only through the Ministry of the Environment and Waters.

3.9. SOME WEAK POI NTS AND DEFICI ENCI ES I N CURREN T EI A PRACTICE IN B ULGARIA •

•

Poor screening requirements. This results in the evaluation of a large number of EISs, some of which are insignificant from the environmental point of view (e.g. small hotels, restaurants). This takes too much time and too many resources and makes the process of evaluation and decisionmaking inefficient. Since December 1995 there has been a ten­ dency to reduce the number of EISs for review. For example, before that time around twenty to twenty-five EISs were reviewed every month in the Varna region; now this number has been reduced to only five or six per month. Evaluation and decisionmaking in many EIA cases is limited to checking project compli­ ance with environmental norms and standards rather than the complex evaluation of cumulative and additive environmental impact. For example, there are fifty-one fuel sta­ tions in the town of Varna but no real analysis has been carried out on the cumulative

35

•

•

•

•

•

•

•

•

and additive impact when a new fuel station is proposed, even if there are two others less than 150 metres away. Poor evaluation of impact significance. Very often the impact magnitude is presented in detail but there is inadequate evaluation of its significance. Often health risk is omitted. Poor public participation. Public discussions in many cases are terminated because the project under question is considered clear of significant environmental impact and be­ cause the procedure complicates and prolongs the overall EIA process. Even when public discussions are held they are carried out formally - the public either does not come to the meeting or does not know what to ask. The reason for this is the absence of a tradition of involving the general public in the decision-making process and of suitable methods for reaching consensus between the proponent of the activity, the competent authority and the public. Another weakness is that public discussion is carried out too late - some­ times when the project has already been completed. No evaluation of alternatives. Although there is a legal requirement to present and evaluate alternatives to the proposed project in the preliminary EIS, this is often omitted. This means there is no guarantee that the proposed site/technology is the best environ­ mental option. Poor evaluation of cumulative and additive impact. Usually, data on the background pol­ lution and calculation of the pollutant dispersion in the environment are presented in the EIS. However, there is no evaluation of the resulting impact, i.e. the additive and cumu­ lative impact. Poor monitoring and post-auditing. When a decision is made the competent body is obliged to give its reasons and its conditions in writing. However, there is still no estab­ lished system for controlling compliance with the decision. For major facilities there is a requirement of a five year environmental review, although no real monitoring and post­ auditing has been carried out until now - the EIA procedures were introduced just four years ago. Lack of proper announcement of EIA decisions. Until a few months ago there were no an­ nouncements at all. With the new Regulation No. 1 on EIA this requirement was made compulsory. At present an announcement is made in the local media about the date of the Environmental Expert Council meeting and about the projects under review as well as about adopted decisions. The tendency is, however, to publish detailed information for every project reviewed, including the reasons and conditions, which are an inseparable part of the decision. Lack of co-ordination between the various control authorities involved. EIA is a part of the Environmental Permitting System (the final stage). Often it is used by a ministry as a tool to ''wash its hands" when there are difficulties in issuing the permit for a particular project. Corruption. Because of the transitional period and discrepancies in the legislative, social and economic systems, many countries in transition are characterised by corruption at official levels, especially in the control sector. This affects the environmental control sys­ tem.

3.1 O. SOME STATISTICAL INFORMATION ABOUT THE EISs REVIEWED IN 1995 Statistical information for EISs reviewed by both the Ministry of the Environment and in the Region of Varna are presented in tables 11.3.2 and 11.3.3.

36

Table 1 1.3.2. EISs reviewed by the Ministry of the Environment 1) 2)

Total number of EISs reviewed in 1995: Classification according to the decision taken: a) approved b) required preparation of final EIS c) returned to be reworked d) others

62 40 11 3 8

Table 1 1.3.3. EISs reviewed by the Regional Environmental Inspectorate of Varna 1) 2)

3)

Total number of EISs reviewed in 1995: Classification according to the decision taken: a) approved b) required preparation of final EIS c) returned to be reworked Classification according to the type of development: a) Hotels, restaurants and suburban houses b) Fuel stations c) Foundries d) Storehouses e) Water supply projects f) Slaughterhouses g) Gas stations and gasification h) Territorial construction and development plans i) Others - "ROVER" mounting plant - Boiler stations - Dairy farms - Dye-houses - Solid waste furnace - Factory - Floating dock - Waste disposal site - Carpenters shop - Vegetable oil factory

134 113 18 3 33 22 8 8 7 5 4 3 44

3.1 1 . CONCLUSIONS There is no doubt that Bulgaria is making progress in the development and implementation of its EIA system. However, there are various weak points and deficiencies which will soon have to be overcome. Some possible ways of achieving this are: • the strengthening of legislative requirements; • the introduction of SEA requirements separately and for a larger number of actions; • the preparation of guidelines; • the education of decision makers and the general public; • the strengthening of public participation and its introduction at an earlier stage in the EIA process.

37

4. ENVI RON M ENTAL I M PACT ASSESSM ENT I N CROATIA Nenad Stare, Zvonimir Markovac and Cl ive George*

4.1. INTRODUCTION Environmental degradation began to attract attention in Croatia in the late 1960s. In the early 1970s environmental issues were first put forward by socialist institutions such as the Socialist Alliance of Working People, the unions and similarly formed bodies and sections. Their aim was to take care of environmental protection. In 1974 a new Constitution was passed (there were five or six Constitutions in Yugoslavia in the course of the forty-six years of the socialist regime). This was the first to take the environment into account. It explicitly stated both the right to live in a naturally clean environment and the obli­ gation of each citizen to care for the environment. This was reflected in the Law on Physical Planning and Spatial Arrangement, passed in 1980 (there were five or six planning laws passed in the same period). Its often quoted article 55 required that an additional planning document, that would fully account for the impact that proposed investments might have on the environment should be intro­ duced. In August 1984, the Regulations on environmental impact statements (EIS) were passed. They contained the list of investment projects subject to environmental impact assessment, pre­ scribed the assessment procedure, and specified the form and the content of the EIS (in Croatian: "Studija utjecaja na okolinu", i.e. a "study of environmental impacts"). At that time there were only a small number of federal (Yugoslav) and state (Croatian) environmental laws and regulations in force, the Croatian regulations on EIS being the only ones of that kind in the federation. In 1994 the Law on Environmental Protection was passed, which partly governs the EIA pro­ cedure (articles 25 to 32). The law lays down the basic principles for the improvement of the former EIA procedures, and introduces provisions arising from Croatia's ratification of the "Espoo Conven­ tion on EIA in a Transboundary Context". In the same year a restructuring of the government ad­ ministration created the independent State Directorate for the Environment, which took over the ac­ tivities of the former Environmental Protection Department of the Ministry of Civil Engineering and Environmental Protection. The new directorate became the competent authority for environmental impact assessment, including the obligations under the Espoo Convention. In April 1997 the new law was incorporated into regulations, through a new bylaw on Envi­ ronmental Impact Assessment (Official Gazette 34/97 and 37/97). The bylaw aims to improve the former EIA procedure, particularly in relation to public participation, to improve the quality of EIA studies, to establish a commission to evaluate EIA studies, and to create conditions for the carry ing out of assessment at the earliest possible stage of physical planning.

4.2. LEGISLATION are:

The principal legal instruments which now govern the EIA process in the Republic of Croatia • • • •

the Constitution of the Republic of Croatia (Official Gazette 56/90); the Declaration of Environmental Protection in the Republic of Croatia (Official Gazette 34/92); the Law on Environmental Protection (Official Gazette 82/94); the Law on the Organisation and Competences of Ministries and State Administration (Official Gazette 72/94);

* Edited by Clive George, on the basis of papers prepared by Nenad Stare and Zvonimir Markovac.

38

• • •

the Law on Physical Planning (Official Gazette 30/94); the Law on Building (Official Gazette 77/92); the Convention on Environmental Impact Assessment in a Transboundary Context - the Law on Accession (Official Gazette 1/6/96) - Croatia ratified the Espoo Convention on 8 July 1996; • the Bylaw on Environmental Impact Assessment (Official Gazette 34/97 and 37/97). In the absence of specific Croatian environmental standards for environmental protection, those used in other European and Western countries are applied. The statutory authorities for EIA are: • the State Directorate for the Environment (state competence); • County Administrations (county offices with environmental competencies). The State Directorate for the Environment has a broad range of environmental responsibilities which include: • strategy development; • public information and public relations, including environmental awards and prizes; • environmental impact assessment; • environmental protection and inspection; • specific responsibilities for the protection of the Adriatic Sea. The State Directorate has also been delegated as the responsible national institution for im­ plementing the Sofia Initiative on the Application of EIA. The Republic of Croatia has been nomi­ nated as the Lead Country for the initiative, which was agreed at the Ministerial Conference "Environment for Europe" held in Sofia on 23-25 October 1995.

4.3. EIA PROCEDURE The regulations of 1984 established the following procedure (summarised in table 1): • An investor arrives at a decision that an investment project can be made, formulated, ap­ praised and implemented. He or she applies to several organs of communal administra­ tion for a variety of permits. • Having proved that the new object/operation will not overload the existing water supply and electricity network, that the proposed production fits into existing economic plans (after the Republic of Croatia was constituted this requirement was dropped), and after having obtained the corresponding permits, the investor, now referred to as the "appli­ cant", applies to the commune administration division responsible for physical planning implementation. If the project fits into the existing physical plan the commune will issue "general since use conditions" which are binding on the applicant. In most cases this will be a routine matter, since investors are familiar with the plan and adjust to it at an early stage of the project. • If the project appears on the screening list given in the regulations, the general land-use conditions will have to be coupled with "special land-use conditions" specifying measures that the applicant has to take so that the quality of the environment remains within the planned limits. While the "general conditions" are based on existing plans, so that the Commune will not require additional documentation, the "special conditions" are based on the EIS carried out for the project. • The EIS has to be provided and fully financed by the applicant. The applicants can pro­ duce the EIS themselves or find some institution, consultancy firm, or a group of indi­ viduals to produce it. The applicant has to submit a preliminary EIS that is based on ex­ isting technological and ecological references and that does not usually require field re­ search, and also the final EIS which may include monitoring and field work. The com­ mune has to evaluate both studies, and an ad hoc committee is formed for the purpose (now replaced by an EIA Commission - see below). • The preliminary EIS may be returned to the applicant as many times as the committee finds necessary. Once accepted it is, however, passed for a public hearing. • Public hearing consists of public meetings and must not take longer than a month. While the ad hoc committee examines the formal structure of the EIS and its professional 39

•

•

quality, the public hearing starts from the assumption that the study has been properly carried out. Therefore, at the public hearing the environmental impact of the project is discussed. At this point the procedure may end because it may be concluded that, in spite of possible mitigation procedures, the environmental impact is such that the project must not be implemented. If it is concluded that a preliminary EIS has been carried out well and that its findings call for more thorough research, the applicant is asked to provide a final EIS. The final EIS undergoes the same procedure so that the final decision made by the com­ mune is based on two EISs, two ad hoc committee reports and material from the public hearing. In extreme cases the commune may refuse to issue the special conditions (this means that the project is finally rejected) or may confirm that the already issued general conditions are sufficient (this means that the project is deemed environmentally sound). If issued, the special conditions prescribe pollution limits and are binding on the appli­ cant. The commune then dismisses the ad hoc committee and appoints an inspector in or­ der to control whether the prescribed conditions are observed during construction work and later operation.

Table 11.4.1. 1984 EIA Procedure Investor Applies for permits

Required documents - the project - master plan

Provides EIS - preliminary EIS Joins the ad hoc committee - committee report - public hearing materials

Provides EIS

Builds

- final EIS - committee report - public hearing materials

Commune (Division of Physical Planning and Environmental Protection) Issues "general land-use conditions" (set of directives) Possible directive: - compile preliminary EIS Forms ad hoc committee Organises public hearings Possible directives: - stop - compile final EIS Organises public hearings Issues "special land-use conditions" Possible directives: - stop - �dapt, change, adjust, decrease, relocate Issues start-up permit

The procedure is performed at either a national or communal level, the steps being the same in each instance. If done properly it ensures that the environment is managed according to existing plans and within the legal environmental standards. The 1997 bylaw made the following changes to this process: • introduction of an EIA Commission to evaluate EISs; • early informing of the public on all relevant aspects of planned development activities; • defining the rights and duties of all those participating in the process; • linking the EIA process with the physical planning process, and in particular before the project location is defined; • speeding up the procedure, which now lasts for up to six months; • allowing a public hearing to start at an earlier date; • extending the list of projects requiring EIA; • providing for the State Directorate for the Environment to receive information on EIAs carried out at local level.

40

The EIA study should evaluate impact according to geographical range, intensity and dura­ tion, and include analysis of meteorology, climatology, hydrology, hydrogeology, geology, geotechnol­ ogy, seismology, soil science, bioecology, landscaping, sociology, as well as rural, urban, traffic and other types of impact. A preliminary EIA is required if the location of the project has not been identified, or not de­ fined in sufficient detail. The preliminary study evaluates the acceptability of the proposed site. The final study provides all the necessary information for evaluation by the EIA Commission. The membership of the Commission is established for each project according to the character­ istics of the project and the environment in question. It consists of at least five members proposed by government bodies, local government representatives, and relevant technical experts. The authors of the EIA study and the project proponent participate in the work of the commission, but have no right to participate in decision making. When the Commission is satisfied that the EIS includes all the necessary elements, it may decide to submit it to a public hearing. The conclusion of the Commission is presented to the State Directorate for the Environment, which grants or withholds approval for the project. The new bylaw applies to the EIA of projects under the physical plans of the counties or the city of Zagreb, as well as to decisions of the government of the Republic of Croatia. However, a number of discrepancies between the bylaw and the Law on Environmental Pro­ tection, together with local disagreements, have yet to be resolved. The procedure as defined by the 1997 bylaw is summarised in figure II.4.1.

4.4. PRACTICE The regulations of 1984 failed to prescribe that copies of the EIS be sent to some authority or service at a national level. Until the 1997 bylaw came into force they remained in communal archives with the applications, etc., and the same happened with the ad hoc committee reports and material from public hearings. During the war years a number of communal premises across the country were either shelled and bombed or occupied and destroyed, which meant that a good part of the evidence on EIA practice has been lost for good. Before the war it was, however, fully accessible to researchers and an analysis was carried out in 1987. Although the analysis was constrained by the lack of data it was efficient in certain aspects since extensive data on investment had been gathered and published by a specialised organ of public management - the Social Accounting Service (SAS), as it was called at the time. This meant that a list of investment projects that were started after the regulations were passed could easily be com­ piled and compared with the list of potentially unsound projects as stated in the regulations. The re­ sults showed that from August 1984 until spring 1987 there were 63 investment projects in Croatia that should have undergone an environmental impact assessment. However, the EIA documentation gathered from 84 out of 115 communes (31 communes did not respond to the request) showed that the procedure was carried out only 7 times. Therefore, up to 56 potentially environmentally unsound projects were implemented without an adequate assessment. This situation reflects the fact that nei­ ther the Physical Planning Act nor the regulations included penalties for non-compliance. However, during 1986 alone, 21 preliminary and 45 final EISs were submitted to organs of public manage­ ment. It appeared that environmental impact assessment was "breaking in" in the larger cities such as Zagreb and Rijeka, where most of the analysed projects were proposed. Most of the non-urban communes still had to work towards effective implementation of environmental legislation. Communities in rural areas deserved most attention. The results showed a serious lack of qualified staff and indicated that the attachment of environmental responsibilities to already exist­ ing communal divisions for physical planning implementation had been undertaken only formally. Although there were communes which had appointed a particular planning officer there were no staff. Besides, three communes claimed that no EIA procedure had ever been started in their terri­ tory. However, two projects in these territories, which at that time received national attention for their environmental unsoundness, were proposed and undertaken. Hence the figures obtained during the research clearly showed that the newly introduced administrative practice lacked some necessary rigour.

41

INVESTOR APPLICATION FOR EIA PROCEDURE ,-,,,00; ,,00; � 1?00" ~= ��w,,y4?7--@f�XzWZ0.% . ,,7 ·

L

SDE - STATE DIRECTORATE FOR THE ENVIRONMENT DEPARTMENT OF EIA COMMITTEE PROPOSAL

COMMITTEE APPOINTED BY THE GOVERNMENT

NOTIFICATION OF THE COMMITTEE APPOINTMENT

15 days

CONVENING THE FIRST SESSION

52-97 days

COMMITTEE SESSIONS UNTIL TAKING THE DECISION ON PUBLIC DEBATE (OTHER SESSIONS) ADMINISTRATIVE BODY OF THE COUNTY RECEIVING THE COMMI1TEE'S DECISION ON PUBLIC DEBATE

30 days 180 days (6 months) max. 83-128 days

15-60 days

8

days

I

NOTIFICATION IN NEWSPAPERS

PUBLIC DEBATE COMMENCEMENT

PUBLIC DEBATE DURATION (15-60 days)

8 days

SUBMISSION OF PUBLIC DEBATE DOCUMENTS TO THE COMMITTEE

30 days

THE COMMITTEE DRAWS A CONCLUSION

30 days

immediately

. . ............. ........ ············· .. ............... ..

SDE RECEIVING THE CONCLUSION AND COMPLETE DOCUMENTS 1

FINAL DECISION

Fig. 1 1.4.1. The 1997 EIA procedure in the Republic of Croatia

42

h

wdW&11//mW/40½0W#'&W#&-0W%0W/2½0%0'/�/4'MW/4Wft'j

There were some difficulties that would have appeared even if there had existed a well de­ fined network of organs of public management and enough qualified staff. They arose due to incon­ sistencies in the regulations and the planning system itself. The list of environmentally unsound projects had been made without full reference to the list of economic sectors and industries that had been in use for decades in national statistics and in the Social Accounting Service. The two did not correspond, and since investors normally relied on the NAS list when applying for permits, both in­ advertent and deliberate omissions occurred. There were several cases where the obligation to submit an EIS was avoided by simply renaming the project so that it appeared on the NAS list but not on the list given in the regulations. Besides, the list was by no means exhaustive. It did not cover projects for mining works, hospitals and artificial lakes. Although it belongs to the Croatian socialist past there is one more area of procedural diffi­ culties and pitfalls that should be mentioned. Besides applying for permits concerning physical planning, investors had to apply for a number of permits concerning existing economic plans and their investment suitability. It was a common complaint that these parts of the planning system were inconsistent. An investment endorsed by the economic plan and necessary for its implementation might be rejected on the basis of its environmental hazards. On the other hand, sewage collection appeared as a new kind of investment not yet recognised by economic planners. Attaching new re­ sponsibilities to existing communal authorities had, in this way, both expected and unexpected ef­ fects, one of them being a direct transfer of existing inconsistencies to new procedures. This phe­ nomenon also occurred after the federal institutions in Croatia were replaced with new national ones. A particularly interesting example was that of investments in water supply systems, which were a usual item in economic plans and were also listed in the regulations. If a well was to be drilled an EIS had to be compiled since underground waterflows might be endangered. The EIS, however, has to be based on field research so that some experimental drillings have to be carried out. Due to seasonal variations, experimenting could take at least one year - which makes it long and costly enough to be registered as an investment in water supplies itself, and such investments cannot com­ mence if an EIS has not been compiled. No evidence was found that water supply projects ever had their potential environmental impact assessed. Many of these weaknesses have been rectified by the 1997 bylaw. Additionally, a start has been made in collecting information on EIA studies undertaken between 1980 and 1996, through an official enquiry carried out in twenty-one Croatian counties.

4.5. POST-WAR PERSPECTIVES The separation of Croatia and Slovenia in 1990 put an end to the Yugoslav federation, while the war that started in the autumn of 1991 and lasted until summer 1995 postponed or slowed down institutional developments in the newly formed Republic of Croatia. Environmental protection dropped from the agenda first and was not addressed again until recently. Croatia inherited some pieces of federal legislation, and postponed passing basic legislation for a couple of years. However, in 1994 the Law on Environmental Protection was passed and the State Directorate for the Environ­ ment was formed. Much of the effort of the directorate has been put into assessing the environmental conse­ quences of the war. Nevertheless, it started launching new laws and regulations, and introduced the 1997 bylaw. No explicit provisions for strategic environmental assessment have yet been made, but strategic environmental considerations are, to a limited extent, included in the National Physical Planning Strategy. Typical important EIA studies carried out in the past few years include: • Novo Virje hydroelectric power plant; • Krk liquified natural gas terminal; • Zagreb-Sisak product pipeline; • INAGIP oil-field exploitation in the northern Adriatic; • PUTO hazardous waste incineration plant, Jakusevac, Zagreb; • Sv. Rok-Maslenica motorway tunnel; • Zagreb-Rijeka motorway; • Zagreb-Gorican motorway; 43

• Lake Visovac/River Krka system of water interventions; • Dunav- Sava multi-purpose channel. Problems which have yet to be fully overcome include: • the insufficient number of competent expert institutions and an unbalanced distribution between state territories; • delays introduced by the EIA Commission. The effectiveness of commissions for EIA quality review has been questioned; • lack of EIA knowledge and experience in county authorities. EIAs have been requested for projects with insignificant impact; • insufficient data on the state of the environment. This puts an extra burden on project proponents; • inadequate protection mechanisms for appeal against wrong decisions by either propo­ nents or local communities. Lack of environmental data is being addressed by the development of an information infra­ structure. At present the State Directorate of the Environment has only two computerised environ­ mental databases, one containing data on bathing water quality and the other an inventory of im­ ported waste (as a secondary raw material) and imported packaging made of biodegradable material. Development of the information infrastructure will facilitate access to data for EIA and enable par­ ticipation in the international exchange of data. This will include meeting obligations under the Espoo Convention. Since the 1997 regulation prescribes a stricter list of activities requiring EIA than were given under the convention, two EIA databases will need to be maintained. Although a number of other shortcomings still remain, considerable progress has been made in re-establishing and improving the Croatian EIA system.

44

5. ENVIRONMENTAL IMPACT ASSESSMENT LEGISLATION IN THE CZECH REPU BLIC Clive George, Hana Svejdarova and Lada Vojtechovska*

5.1 . LEGAL REQUI REM ENTS FOR EIA I N THE CZECH REPU BLIC 5.1.1. Overview of legislation The principles of environmental impact assessment (EIA), translated from the Czech as "assessment of consequences for the environment", are incorporated into Czech legislation in three legal instruments: • Federal Act on the Environment, No. 17/1992, 5 December 1991 ; • Czech Act on Environmental Impact Assessment, No. 244/1992, 1 5 April 1992; • Decree of the Ministry of the Environment of the Czech Republic, On Professional Com­ petence to Evaluate Environmental Impact and on the Means and Procedure for Public Discussion of Expert Opinion, No. 499/1992, 1 October 1992. All of this legislation was enacted before the dissolution of the Federation of Czech and Slo­ vak Republics in 1993, but it was subsequently adopted by the independent Czech Republic. The leg­ islation is given in full in European Bank for Reconstruction and Development (1994). It is based in part on the European Community's Directive 85/337/EEC. The Federal Act No. 17/1992 is semi-constitutional in nature, and in respect of EIA is imple­ mented through the more detailed provisions of the Czech Act No. 244/1992. However, the Czech act identifies numerous points where the specific provisions of the federal act apply directly. These in­ clude the federal act's definition of the content of EIA documentation in a transboundary context, and its corresponding list of projects that are subject to international discussion. 5.1.2. Federal Act on the Environment 17/1992 Act No. 17/1992 contains several articles on environmental impact assessment (article 17 and articles 20-26): • Article 17 defines general environmental obligations, including those for EIA; • Article 20.1 states that development activities are subject to EIA prior to their approval under planning regulations; • Article 20.2 requires that the principles of environmental assessment be applied in the preparation of development concepts, programmes, and draft legal standards; • Article 21 describes the different participants in the entire procedure, i.e. the state ad­ ministrative bodies, the municipalities affected by the plans and the general public. It re­ fers to appendix 1 of the act, which defines operations subject to obligatory assessment, and appendix 2 of the act, which gives a general outline of the contents of the required documents. The requirements of both appendices may be specified in more detail, or more stringently, in separate national legislation (as has been done through the Czech Act 244/1992); • Article 22 describes general environmental criteria against which the assessing authori­ ties shall scrutinise development proposals; • Articles 23-26 deal with transboundary impacts. Those specifically between the Czech and Slovak Republics are covered by article 23, and others by articles 24-26, which are entitled "Assessment of the Environmental Impact of Activities and their Consequences * Edited by Clive George, on the basis of papers prepared by Hana Svejdarova and Lada Vojtechovska. Comments from Vladimir Himmel on an earlier draft are gratefully acknowledged.

45

Extending Beyond National Borders". These provisions are partially outdated, in that they define the responsibilities of the Federal Committee for the Environment, which no longer exists. Reference is made to appendix 3, which lists activities subject to interna­ tional discussion, and appendix 4, which defines the content of required EIA documenta­ tion. 5.1 .3. Czech Act on Environmental Impact Assessment 244/1 992 The act specifies in more detail the implementation of many aspects of the Federal Act. It defines environmental impact assessment and the activities for which it is required. These activities include projected construction work, construction changes, and changes in utilisation, op­ erations, technologies, developmental concepts and programmes. It also establishes the state bodies responsible for administration of the environmental impact assessment process. The act establishes that the environmental impact assessment must investigate the impact of an activity on the air, water, soil, rocks, means of utilisation of the landscape, population, and other factors. The impact is assessed for the periods of construction, operation and decommissioning. The act further describes the procedure to be followed in submitting documents for assessment, setting up public meetings, drawing up expert reports ("expert opinions") and issuing the statement of ap­ proval/disapproval. The bodies responsible for the EIA process are the Ministry of the Environment and the district environmental offices. Additionally, the Czech Environment Inspection monitors ad­ herence to some of the provisions of the act. Partl makes introductory provisions and states that the following development activities are to be assessed in the Czech Republic: • planned construction works, their changes and changes in their use; • activities of resource use, and the design, building or removal of structures; • technologies; • development concepts and programmes; and • products. Reference is made to the Federal Act for explanation of some of these terms, and also to land­ use planning legislation. Part 2 is entitled "Assessment of Constructions, Activities and Technologies", and gives a full definition of the EIA procedure. The screening list of the Federal Act is expanded and clarified in two appendices, appendix 1 lists activities for which the Ministry of the Environment is the competent authority, and appendix 2 those under the jurisdiction of district offices. Thresholds are defined for many of the activities in both lists. The Federal Act's requirements on documentation are also expanded, in appendix 3, while appendix 4 defines the statement on approval/disapproval which must be issued by the competent authority. Article 13 expands on the Federal Act's requirements on transboundary impacts. Part 3 expands the Federal Act's requirements on the assessment of concepts (SEA). Part 4 covers the assessment of products, and falls outside the boundaries of EIA as it is gen­ erally defined. It adds certain environmental requirements to those laid down in separate legislation for state testing and certification of domestic and imported products. Parts 5 and 6 define the competent authorities and lay down general provisions. 5.1 .4. Czech Decree on Professional Competence and Public Discussion 499/1 992 This decree specifies two completely separate sets of provisions: • the qualification requirements and certification procedure for people either carrying out an EIA, or conducting expert review of an EIA. These are issued pursuant to Article 6.4 of Act 244/1992; • the means and form of public discussion of the expert review of an EIA, expanding on ar­ ticle 10 of Act 244/1992.

46

5.2. THE EIA PROCESS follows:

The whole procedure for project EIA, as defined by part 2 of the Czech Act 244/1992, is as •

The person or entity that is proposing the construction, activity or technology is called the notifier. The first step is for this person to notify the appropriate authority of his or her plans in a notification, which is to be drawn up according to article 5. This is submit­ ted to the appropriate competent authority, which is the Ministry of the Environment or the district office, according to whether the activity is in appendix 1 or appendix 2. • The notifier is also required to obtain and submit documents on the assessment of the impact of the construction, activity or technology. These can only be prepared by an authorised individual who holds a professional certificate (requirements for certification are specified in Decree 499/1992). The content of the impact assessment documentation is specified in appendix 3 of the act. All the costs associated with drawing up the documents are paid by the notifier. • The documents are then sent by the competent authority to the appropriate state admin­ istrative authorities and appropriate municipalities for evaluation. The municipality of­ fices make the documents available to the general public which consists of both individual persons and civic groups or organisations. The general public is encouraged to comment on the documents. • After collection of all the comments, the competent authority arranges an expert review of the documentation (expert opinion), which must be by an authorised person holding a certificate of professional competence under Decree 499/1992 (but who was not involved in the EIA preparation). The expert opinion is elaborated in a report which evaluates the prepared documents and the comments, and which includes a proposed statement on ap­ proval/rejection of the activity. • The report is presented to the general public at a public meeting, chaired by a person authorised by the appropriate competent authority. The meeting must be • announced using procedures set out in article 10 of the act and in Decree 499/1992, to en­ sure that persons who may be affected by the proposal are notified. • The competent authority produces a statement based on the expert opinion report and the minutes of the public discussion, the content of which is given in appendix 4 of the act. This includes a statement of approval/disapproval, together with any recommended alternatives or approval conditions, which is then used by the relevant administrative body responsible for issuing a permitting decision (under separate regulations). Many of the steps in this procedure must be completed according to a timetable given in the act (e.g. the documents must be available to the general public for a period of thirty days). The whole procedure requires between three and six months, or longer for complex cases. Since Act 244/1992 came into effect on 1 July 1992, several documents have gone through the whole procedure. The benefit of this procedure is that it ensures that environmental impacts are dis­ cussed early in the decision-making process. This ensures that changes that are necessary from an environmental standpoint are made before construction plans are approved. On the other hand, noti­ fiers are often dissatisfied with the financial and time requirements of this legal EIA procedure. There also needs to be better communication between the notifiers and the general public, so that an adversarial relationship does not develop.

5.3. EIAs CARRIED OUT TO J UNE 1995 According to data from the Ministry of the Environment, EIA reports up to 30 June 1995 are dominated by road construction projects (30.7% of EIAs) and facilities for waste treatment (27.3%). These are followed by electric power (13.8%), chemical industry ( 11.3%), heavy industry (5.2%), with a balance of other activities (11.7%). In the north Moravia district in Ostrava City (where nineteen projects were undertaken), more than one-third of EIAs were for services, supplies and infrastructure (commercial and admin­ istrative services, sports centres, storehouses, sewerage, etc.). The second biggest category of EIA 47

activity was in waste management (dumping sites, collection centres and storage for hazardous waste). It should be noted that north Moravia and Silesia is an area with heavy industry. In this area 123 EIAs were recorded from a total of 521 in the Czech Republic.

5.4. CASE STUDY OF RAJCHEROV One of the most unspoiled parts of the Czech landscape is a band along the south Czech bor­ der. There has never been a large industrial or cultural centre there, and there was a wide border zone for forty years to which very few people had access. During this period the meadows were only cut occasionally, and the original climax communities returned. In order to preserve this environ­ ment all construction plans were frozen by a declaration in 1990 until an up-to-date territorial plan could be prepared. The Javoricka highlands area was designated a protected landscape area. The territorial plan from 1992 assumed an expansion of tourist activity tied to the existing buildings and linked to development of the infrastructure and farms with the possibility of operating agrotourism. In September 1994 plans for a recreational park for 2700 people were initiated. One of the aims of the project is the renewal of the town of Rajcherov through the economic revival of the region, which has minimal opportunities for employment. According to the original EIA documentation the project will create a park with hotels, shops, recreational, banking, cultural and sporting facilities, including the building of 80 chalets in the tra­ ditional village style. In addition, there will be a further 480 bungalows on the shore of the fishing lake, which will accommodate visitors who do not require hotel standards. The construction also in­ cludes a park for around 300 cars, and a camping area by a second lake with about 700 places, includ­ ing buildings for water sports. A counter-proposal was put forward by conservationists, to move the construction away from the centre of the Rajcherov area. Almost two kilometres away is an abandoned site that does not fit with the area's aesthetics and which could be used as the location of the park. From the landscape perspective it would be beneficial if the builders demolished the existing buildings in this area and substituted them with the proposed recreational ones. It would be necessary to construct an artificial water surface. The surrounding landscape could be visited by non-motorised traffic, and at the same time there could be a revival of the private farms. The EIA documentation considered that the original proposal would have a positive effect on the environment and recommended locating the recreational area in Rajcherov. The evaluation has been criticised for not taking proper account of endangered species which are found in the area, for assertions that are unsubstantiated, and for presenting incorrect data. Also, accusations have been made of professional mistakes in recommending the siting of dumps near a spring and in a hygienic protection area, which would pollute water sources. The local inhabitants welcome the construction of the recreation park in their area due to the lack of employment opportunities. The mayor of the town council supports the construction of the recreation park in Rajcherov, and his wife took part in the preparation of the project. Nature conservation experts are against the construction, arguing that there are many en­ dangered plant and animal species there, that the nature of the landscape will be altered, and that the plans do not respect a protected landscape area. The expert opinion presented in the public discussions recommended the original alternative in the Rajcherov area. Only the camp was omitted from the project, reducing the number of visitors to 2100 from the original 2700 . One of the conclusions which can be drawn from this case study is that, irrespective of any limitations in the quality of the EIA that was carried out, the responsible authority (the local council in Jindrichov Hradec) was made aware of the potential adverse impacts of the project by the conservation groups involved. The public nature of the process also ensured that the public were aware of these potential adverse impacts. The decision that was made had to balance the local inhabitants' desire for employment opportunities against these environmental consequences, and to the extent that this balance was argued out publicly, the EIA process can be said to be achieving its purpose. 48

5.5. PROBLEMS AN D GAPS IN IMPLEMENTATION OF EIA IN THE CZECH REPUBLIC The second national conference on EIA took place in Ostrava in December 1995, to review progress in the three years since the act was passed. The following is a summary of some of the ob­ servations made, and can be divided into three parts: 1) The quality of EIA documents 2) Public participation in EIA 3 ) Shortcomings in the Act on EIA, 244/1992

5.5.1. The quality of EIA documents Although EIA legislation has improved since 1992, there are still some formal and material drawbacks in the EIA documentation being produced. The people involved are often narrowly special­ ised, limiting their ability to assess the complexity of a problem or even predict a key impact. In many cases the inadequacy of documents and reports is caused by time pressure from the investors, who rarely see the complexity of assessing all of the varions impacts on the environment, or the necessity for evaluating alternatives before deciding which is the most appropriate. This proc­ ess needs more time than the investors would wish. If the document considers only one variant the public loses the incentive to participate in de­ cision making. It is important to distinguish a strategic or conceptual variant (that provides for goals in quite a different way) from a variation of technology or locality. Other shortcomings in documentation may be due to underestimation of secondary impacts; failure to assess the significance of impacts; underestimation or overestimation of certain phases (construction, monitoring, post auditing); absence of risk assessment; etc. From the point of view of the health office, shortcomings in documentation need to be ad­ dressed in the matter of impacts on the health of inhabitants. In many EIAs it is stated that "the project will not have a negative impact on the inhabitants" without any particular professional as­ sessment. By contrast, the impact on flora and fauna is discussed in greater depth. Appropriate methods for assessment of health risks exist: they require specific knowledge and experience, but can provide much information for the assessment of similar technologies.

5.5.2. Public participation in EIA The process of EIA involves the public, on the one hand by collecting information and finding out about civic interests and values, and on the other hand by informing the public, gaining public confidence and offering both sides an acceptable solution. A present, there is insufficient public par­ ticipation in EIA. In many cases the public do not recognise the possibility of joining the process of EIA at all. One reasons for this is inadequate information campaigns, mostly without the support of experts. Another reason is that the public does not usually believe that they are really able to affect the process. However, there are some good examples, such as the Rajcherov project discussed above, and the incineration plant project of Galena Ltd., Opava, where the public was involved in the EIA process.

5.5.3. Shortcomings in the Act on EIA, 244/1992 Comments have been made about the lack of flexibility of the appendices in the act (with the exception of appendix 4 ), e.g. activities subject to EIA are strictly stated, descriptions are over­ detailed, and contents of the documents are exactly stated, regardless of specific circumstances. An evident weakness of the act is the lateness in providing information for the participation of interested parties. In cases where suggestions are proposed at a late stage of the EIA, time and financial problems inevitably arise. Therefore, it is highly recommended that a participative screen­ ing and scoping process be implemented, which could prevent these problems. 49

Another objection to the act relates to the duration of the validity of the statement issued by the competent authority. There are some cases in practice when investors start the project long after the date of issue. In the meantime, the usage of the territory could change, and the statement may no longer correspond to the existing situation. A solution to this problem could be a definition of the time for which the EJA is valid. Although EIA legislation in the Czech Republic still has some shortcomings, the Ministry of the Environment constantly monitors the effectiveness of Act 244/1992, and reviews all comments with a view to future amendments. As well as the implementation of a screening and scoping process and amendment of the specification of activities for assessment, it is considered necessary to improve public participation in the early stages of the EIA process, and to re-evaluate the question of profes­ sional qualifications for undertaking and reviewing environmental assessments. It is also necessary to monitor international developments in environmental assessment, particularly for the assessment of concepts (i.e. to strengthen the role of strategic environmental assessment), and the assessment of products.

REFERENCES European Bank for Reconstruction and Development ( 1994), Environmental Impact Assessment Legislation, Graham and Trotman Limited, London, UK. Regional EIA Centre, Ostrava ( 1996), EIA Newsletter 11, EIA Centre, University of Manchester.

50

6. UPGRADING ENVIRONMENTAL IMPACT ASSESSMENT PROCEDURES IN ESTONIA Kaja Peterson*

6. 1. INTRODUCTION OF EIA IN ESTONIA system:

There are two principal legal documents in force in Estonia that form the basis of the EIA •

procedures for carrying out environmental impact assessment were established by Regu­ lation No. 314 of the Government of the Republic of Estonia, 13 November 1992 ; • methodological guidelines for undertaking EIA were established by Regulation No. 8 from the Minister of the Environment of 14 March 1994, as an application annex. Two further orders exist which determine competence to grant permission for the use of the environment and natural resources. An EIA is the basis for applying for these construction and envi­ ronmental permits, under: • the Temporary Distribution Order for Permission to Utilise the Environment and Natural Resources, No. 13/1991; • the Temporary Order of Possession and Allotment of the Environment, Natural Resources and Objects submitted to the Competence of the Executive Body of the Primary Adminis­ trative Unit of Local Government, No. 12/1991. The Ministry of the Environment started to draft the EIA regulation in spring 1992 . The process of approval by other concerned ministries took six months and on 13 November 1992 the Es­ tonian government approved the Regulation on Conducting EIA in Estonia. This was the first step in introducing the principles and methodology of EIA in Estonia. However, the principles of EIA were not created in a vacuum. Environmental considerations were already a part of the planning process, but in a rather eclectic and subjective way. The regulation gave a firmer basis for systematic assess­ ment of the environmental impact of projects. The term "EIA'' has the same meaning as in English, although the corresponding term in Estonia is "environmental expertise". The roots may lie in the partial similarity of the process to the "facility expertise", which is conducted on the completion of construction activities and which aims at controlling whether the facility complies with the require­ ments set initially. The EIA Regulation provided the basis for procedure, set the principles, and gave the list of projects subject to mandatory EIA. The Ministerial Regulation issued on 14 March 1994 elaborated further on the list of projects and provided guidelines for experts on compiling the environmental im­ pact statement (EIS).

6.2. SPECIFICS OF THE ESTONIAN EIA PROCESS • Two lists of projects (including policies, plans and programmes) • Two-level competence and decision making • Competent authority has the leading role • Licensed experts On the basis of the results of the EIA, the enterprise may be requested to carry out an environmental quality monitoring programme which needs to be approved by the county govern­ ment.

* With contributions from Mihkel Vaarik, Dariusz Kobus, Andrus Tasa and Reigo Lehtla.

51

6.3. PRESENT EIA PROCEDURE 6.3.1. Actors in the EIA process There are six main actors involved in the EIA process: 1 ) competent authority 2) decision maker 3) developer 4 ) EIA expert 5) bank 6) public PUBLIC

BANK

DEVELOPER

PUBLIC

COMPETENT AUTHORITY

PUBLIC

DECISION MAKER

EXPERT

PUBLIC

PUBLIC

PUBLIC

6.3. 1 . 1 . COMPETENT AUTHORITY

The competent authority in the EIA context is either the Ministry of the Environment or the environmental authorities of county governments, including the cities of Tallinn and Narva within the range of their competence, depending on the category of the EIA (state or regional, respectively). The competent authority identifies the status of the proposed project, i.e. whether it requires an EIA or an environmental survey, or whether it is harmless to the environment. If an EIA is required, the competent authority specifies the task of the EIA, i.e. determines the scope of the assessment and the primary objectives to be met. The competent authority intermediates between the developer and the experts. The competent authority also signs contract(s) with the expert(s). In brief, the competent authority is responsible for the following areas of EIA management: • screening; • setting the task of the EIA; • selecting appropriate experts (putting up an offer, if needed) and signing contracts with them; • initiates public participation in the EIA, assesses the results and makes final decision. 6.3. 1 .2. DECISION MAKER

The decision maker is either the Estonian government or local government (municipality), depending on whether a project is of state or regional importance. It should be stressed that the con­ clusions drawn by experts are not binding on the decision maker. The EIS provides the decision maker with objective data facilitating decision making. It is up to the decision maker whether to use this information. If the decision maker decides to ignore the conclusion reached by expert(s), such a decision should be justified well enough to convince the public.

52

6.3.1 .3. DEVELOPER

The developer is regarded as the subject of EIA: it may be a legal or physical body, whose ac­ tivity, territory, facility or production is likely to have significant impact on the area and the envi­ ronment thus making environmental impact assessment necessary. The subject of EIA may be a pri­ vate company, governmental authority or NGO. It is important to note that the expenses of the EIA are covered by the developer. The developer is obliged to: • submit sufficient and accurate data; • provide the experts with additional data if requested; • follow the decisions made on the basis of the EIA; • ensure the consistent fulfilment of environmental protection measures, including closing down the development if necessary; • ensure the operation of an environmental auditing system at its own expense according to the prescriptions of the competent authority. 6.3.1 .4. EIA EXPERT

There is a system of licensed environmental assessment experts. An expert is a physical or legal person who holds a valid EIA expert licence. Between the late autumn of 1992 and spring 1996 over 170 experts were registered. Licences are issued by a licensing commission at the Ministry of the Environment for three years initially. A database enables an environmental authority to find an ap­ propriate expert(s) for the job. The competent authority has the right to organise tenders among ex­ perts. Contracts with experts are signed by the competent authority. 6.3.1 .5. BANKS

There are no legal responsibilities for Estonian banks to screen projects from the point of view of their environmental impact. However, a positive move can be observed. For example, the Es­ tonian Investment Bank and Estonian Forexbank have already introduced an environmental memo­ randum which is filled in by loan applicants and added to the rest of the project documentation. The memorandum form varies from a single page to a three page document. 6.3.1 .6. THE PUBLIC

The legislative documents on EIA represent the first attempts in the environmental legisla­ tion of Estonia to involve the public in the decision-making process. Public participation is an important part of EIA and is exercised in several phases of the process. It is stated that "Public participation is the participation of people and organisations in the process of EIA and herewith having the possibility to influence the decision maker". The public may become involved at varions stages of EIA. There are a number of possibilities which can assist in this process (e.g. media, press conferences, etc.). It is the responsibility of the competent authority to publicise (utilising the media or regional channels of information delivery) the initiation of the EIA process, the proposed location and general technical characteristics of the development, also enclosing the name and address of the contact per­ son to whom comments and opinions should be forwarded. Making the results of EIA public is the responsibility of the competent authoritywhich must ensure public access to the EIS and provide possibilities for comment. This responsibility may also be delegated to the expert group. Comments and opinions received and their evaluation are attached to the EIS. The decision maker brings a decision and its justification to the public through the media channels, paying special attention to the comments made by the public and the extent to which they were considered. 53

Complaints and claims raised during the process of EIA are to be submitted to the competent authority who is responsible for reporting back to the applicant about the measures taken to solve the problems raised. Any conflicts arising at the local level may be solved at the state level (Ministry of the Environment). If the decision maker ignores the results presented in the EIS, the competent authority has the right to bring the case to court, following legal procedures.

6.3.2. Screening: when is EIA required? Depending on the risk level to human health and the surrounding environment, projects may be subject to environmental investigation. If the likely effects on human health and the surrounding environment are not significant and do not exceed the level set by legislative documents, stan­ dards and norms, then envi­ ronmental permits are required and an EIA is not required.

If the likely effects on human health and the surrounding environment are significant and exceed those set by legis­ lative documents, standards and norms, then environ­ mental permits and a partial or full EIA are required

WHERE ENVIRONMENTAL IMPACT ASSESSMENT IS REQUIRED

Effects of the development on the human health and surrounding environment exceed the set standards and norms, but do not go beyond the territory of local government

Effects of the development on the human health and surrounding environment depend on the location, nature and size/scope of the development

The development is of national importance and the effects on the environment exceed the territory of local government

' \

/

'-

I

SECOND ORDER REGIONAL PROJECT

Partial BIA needed

EIA is conducted by the local environmental authority

54

'

/

'---

I

I

r

FIRST ORDER REGIONAL PROJECT

Full BIA needed

BIA is conducted by the local environmental authority

'\

STATE ORDER

I

I

Full BIA needed

EIA is conducted by the Ministry of the Environment

I

It should be noted that some of the listed possibilities of action may be required simultane­ ously. For example, environmental permits and environmental audit, or environmental permits and environmental impact assessment may all be required. The EIA is an evaluation of: • the proposed location of the project; • the application for permission to utilise natural resources and the environment; • the initial planning, technical conditions and technical-economic justification of the project; • significant effects on the environment. It is carried out prior to the authorisation of planning documentation or granting construc­ tion consents. The EIA is normally carried out within a minimum of one month, but the time frame could be extended at the justified request of an expert. The conclusions of the EIA are valid for two years.

6.3.3. The object of EIA (the project) According to the Orders on EIA in Estonia, the object is defined as follows: "The object of EWproject is a system, which consists of the following parts: activities, site/area, facilities, production. The project may also concern alterations of production, raw material and technology. Projects of state and regional importance are distinguished/ classified depending on the nature, scope and location of the proposed development. Projects of state importance and first order regional importance require mandatory, full-scale EIA, whereas projects listed as of second or­ der regional importance are subject to partial EIA''.

6.3.4. Environmental statement The main findings of the EIA will be concluded in an environmental statement. The environmental impact statement is a document with baseline data on the development and the envi­ ronment, results of the impact assessment of the development on the environment and mitigation measures, and a summary of the public participation in the EIA process, compiled by an expert or expert group. The competent authority submits the environmental impact statement to the decision maker.

6.3.5. Cost of EIA The developer/subject of EIA must cover the cost of EIA, i.e. assessment and public partici­ pation expenses. However, limited funds have been allocated from the national budget for undertak­ ing EIAs where the developer cannot be specified. This may concern, for example, national and/or social projects of great importance. For a loan application, banks usually consider that one-third of the total loan is to be self­ financed by the borrower, and the remaining two-thirds is lent by the bank. The bank considers that expenses such as environmental ones (EIA, environmental survey) are covered by the one-third pro­ portion allocated by the borrower. Estonian commercial banks have, to some extent, set in-bank pro­ cedures for the environmental screening of loan applications.

6.4. EIA STUDIES UN DERTAKEN By the end of 1995, 170 environmental statements had been prepared in Estonia. Details of EIAs carried out to the end of the first quarter of 1995 are given in Peterson (1996). Approximately 35% of the assessments were at state level, and the remainder at regional level.

55

6.5. DRAFTING OF THE N EW EIA LAW The Ministry of the Environment initiated the drafting of the EIA Law in June 1995. The main reasons behind this were: • to bring the EIA procedure onto the highest legal level, replacing the present governmen­ tal regulation with a law. This is required by the Act on Sustainable Development (Parliament of the Republic of Estonia, 22 February 1995); • although the present procedure of EIA is working, the four year experience has revealed several shortcomings. The draft law is based in part on the Espoo Convention and the European Community Direc­ tive 85/337/EEC. It is also influenced by Nordic examples, particularly Swedish and Danish legisla­ tion, due to the fact that many environmental projects in Estonia are carried out using financial and intellectual know-how assistance from Nordic Countries. The following key changes are addressed in the draft law: • the term "environmental expertise" is changed, thus altering the title of the law; • the law comprises two parts: EIA and environmental auditing; • environmental auditing concerns cases of mandatory auditing of organisations (where state property is involved). Consideration must also be given to the question of whether, and to what extent, the impact predicted during EIA occur in reality, and whether the environmental protection measures taken ensure environmental safety and compliance with standards; • the developer has the leading role and primary responsibility in the EIA process. This addresses a drawback in the current system, where EIA may not be an integrated part of the developer's planning, but considered as something forced on him or her from the outside; • public participation is the responsibility of the decision maker; • screening is based on the significance of the impact; • a special paragraph is included on EIA of planning, development plans, policies and pro­ grammes; • a special paragraph is included on transboundary EIA (in line with the Espoo Conven­ tion); • EIA is a two-stage process, comprising preliminary assessment and full assessment; • several new terms are introduced (such as environmental memorandum, assessment pro­ gramme, etc. ). The present draft may go through substantial changes during the approval procedure within ministries and authorities. An important factor in the drafting process will be to ensure that envi­ ronmental controls are fully integrated into the planning process, rather than relating to EIA in iso­ lation. The working group realises that there may be resistance from a number of interest groups and authorities affected by the law. Targets of dispute may include: • EIA of planning (because the Law on Planning and Construction needs to be altered); • EIA of plans, policies and programmes (including strategies) (because of only episodic and non-systematic experience); • deadlines for submission and review of documents (developers want to proceed more quickly, the competent authority wants to have longer deadlines). To date (early 1998) this draft EIA law has not been finalised and approved.

REFERENCES Peterson, K. (1995), Environmental Impact Assessment: Manual for Estonian Banks, Estonian Ministry of the Environment and The World Bank, Tallinn. Peterson, K. ( 1996), "Estonia", in H. Kristoffersen, and A. Tesli, (eds.), Environmental Impact Assessment in the Baltic Coun­ tries and Poland, Nordic Council of Ministers, Copenhagen.

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7. ENVIRONMENTAL IMPACT ASSESSEMENT IMPLEMENTATION IN HUNGARY Anna Radnai and Zsuzsa Mondok

7.1 . PROCEDU RE 7.1.1. E IA Legislation In June 1993, Government Decree No. 86/1993 (VI.4) was published on the Provisional Regulation of the Assessment of the Environmental Impact of Certain Activities. The reason for a lower level regulation was that the Environmental Protection Act, which includes EIA, had not been issued at that time and it was obvious that the drafting and legislative process would be lengthy. Prior to this decree, Hungary had had EIA provisions since the early 1980s concerning large scale state developments, but the findings of EIAs had not necessarily been taken into consideration during decision making. In 1991 Hungary signed the Convention on Environmental Impact Assess­ ment in a Transboundary Context. In 1992, a governmental decree was issued on the socio-economic and environmental impact assessment of major power plants. The draft of the Environmental Protection Act was submitted to the Hungarian Parliament at the end of 1993. The debate on the act was suspended in March 1994 due to the forthcoming gen­ eral election. The new government submitted the same version of the draft to Parliament. The new Environmental Act (Act LIII of 1995) was passed in May 1995, and came into force in December. The act has a separate EIA chapter based on the previous EIA decree, but including the necessary im­ provements. The act authorised the government to determine the list of EIA-obligatory activities, the detailed rules of procedure, and criteria for determining the environmental sensitivity of the affected area. This decree (No. 152/1995) has since been issued and approved by the government. The EIA decree of 1993 regulated the extent of EIA-obligatory activities, the EIA process, its general requirements and its links with the licensing procedure. Two annexes attached to the decree contained the lists of EIA-obligatory activities. The lists presented a combination of different approaches, such as: • positive lists with threshold values (emission, production); • list of areas that are of special importance due to nature conservation. This pre-selective approach is very close to the European Community regulation, with two major differences: • activities in annex II require EIA only if the proposed site is within a nature conservation area; • it is discretionary whether or not a full EIA is necessary, except in the case of activities listed in annex I to Directive 85/337/EEC. The latter reduces the inflexibility of the pre-selective approach, screening out activities which have non-significant impact in the particular case. The modification of existing activities included in the lists required EIA only in such cases when conditions stated in the regulation were met (e.g. relating to the release of new pollutants, ex­ tension of capacity, increase of existing pollution, waste or utilisation of water supply, due to the modification). The recent regulation (152/1995) applies the same approach. There are minor changes in the list of EIA-obligatory activities taking account of the experiences of the last two years and comments received during the drafting process. The determination of EIA obligation for modifications to existing activities also follows the previous approach, connecting the obligation either to an increase of pollution or exploitation of natu­ ral resources, or to the occurrence of new pollution or land use. However, it limits the scope by the introduction of quantitative thresholds. "Voluntary EIA" is not mentioned in any EIA regulation, but the law does not, of course, 57

preclude the possibility that either a decision maker or a proponent has a study on expected envi­ ronmental impacts prepared. It is not the consideration of environmental consequences, but only the environmental licensing procedure itself that is limited to EIA-obligatory activities. 7.1.2. Starting point for EIA: participants The decree established a new licensing procedure for EIA-obligatory activities. In this proce­ dure the competent authority is the regional environmental authority. The environmental authority should always request the opinion of nature conservation and public health authorities as statutory consultees, and also of other authorities if they are concerned in the particular case. The procedure, like the impact assessment process, consists of two phases. The first, prelimi­ nary phase, starts when the proponent of the activity submits the preliminary EIS to the competent authority (see figure 1). The competent authority conducts scoping of the full EIA after considering the comments of the authorities concerned. The outcome (decision) may either be the determination of the scope of further investigations or, where the available information is sufficient, the granting or refusal of the environmental permit.

PROJECT INITIATION IDENTIFICATION OF EIA OBLIGATION PRELIMINARY ASSESSMENT • submission of preliminary EIS • review • public inspection • decision making DETAILED ASSESSMENT • submission of detailed EIS • review • public hearing • decision making POST-PROJECT EVALUATION ENVIRONMENTAL SUPERVISION

Fig. 1 1.7.1. The Environmental Licensing Procedure in Hungary The second, detailed, phase starts when the proponent submits the detailed EIS to the com­ petent authority. In addition to consultations with the concerned authorities a public hearing should be held. The final decision can either be the refusal or the granting of the environmental permit. 7.1.3. The legal framework The Environmental Protection Act and 1995 Decree on EIA clarify the application of the um­ brella law on general regulation of administrative procedures. The regulation of permit-granting procedures can be divided into two categories: • in the general procedure, the local municipality issues land-use, building (construction) and operation (occupation) permits; • in the sectoral procedure, the competent sectoral authority issues preliminary, building and operation permits. 58

The granting of permits for most infrastructural projects (activities/facilities) falls under the sectoral procedure including water management and linear developments (roads, railways, pipelines, transmission lines), generation of electricity, etc. Mining also has its own specific procedure. There is an obligation on the majority of these activities to carry out an EIA and obtain an environmental permit. The 1993 decree on EIA did not schedule in which phase of the sectoral planning and per­ mitting process the EIA should be carried out and the environmental permit obtained, which caused difficulties. After analysing the problem, the following conclusion has been reached. Obviously, the proponent must not start an EIA-obligatory activity and preceding construction work without an environmental permit. In this context, the crucial point in the sequence of permitting procedures is the granting of the building permit. This means that the permitting process should follow the se­ quence: land-use (and preliminary) permit

.j,

environmental permit

.j,

building permit

.j,

operation permit

It had not been identified in the previous regulation at what stage of the planning process it is obligatory to start the EIA and to submit the intention or the documents to the authority. The schedule for the licence application was also up to the project proponent. There was only one sentence in the decree stating that siting, construction, or operation of the activity must not start without the environmental licence. Once the EIA decree had come into force, other licensing regulations were revised to inte­ grate environmental licensing into the latter procedures. The most significant change was that the environmental licence became a precondition for granting the building permit. The recent regulation comprises more provisions concerning the majority of sectoral licensing procedures. In these proce­ dures the precondition for obtaining the so-called "Permit for establishment" is the holding of an en­ vironmental licence.

7.2. PUBLIC PARTICIPATION Although public participation was included in the EIA process, it had a limited role. No pub­ lic opinion was considered during scoping, or at least it was not obligatory under the regulation. A public hearing, the only obligatory form of public participation, was held when the EIA procedure had a detailed phase (i. e. if the environmental permit was granted at the end of the preliminary as­ sessment phase there was no public involvement at all). The regulators were aware of the fact that sometimes it is too late for major changes in the EIS or for new investigations after the preparation and submission of the detailed EIS. However, because of practical considerations - mainly the very broad list of EIA-obligatory activities and very limited capacity of the competent authorities - the restricted solution was approved. Another difficulty was that the administrative regulation, according to which the public hearing must be conducted, had been created decades earlier for different purposes - mainly to clarify a legal situation by a formal hearing of the parties concerned - thus it did not fit properly into the concept of public participation in EIA. The new Environmental Protection Act includes a separate chapter dealing with the public hearing, which still remains the primary forum for public participation with similar - although more detailed - provisions as in the previous decree. The public hearing shall be held after submis­ sion of the detailed EIS. The local governments affected shall inform the inhabitants of the venue

59

and date of the public hearing thirty days in advance. The local government shall provide a venue for the hearing and a proper place to display the EIS for public inspection. The public hearing is conducted by the representative of the competent regional environ­ mental authority. The authority shall invite to the hearing the other concerned authorities, the peo­ ple, organisations and local governments affected, the applicant (proponent) and the environmental NGOs affected if the latter have previously announced their intention to participate. The new decree provides an opportunity for public participation in the preliminary phase of the procedure as well. The competent regional environmental authority informs the competent envi­ ronmental authority and the neighbouring local governments of the planned location of the proposed activity and sends them the preliminary environmental study. The local governments inform the public as to the place where the study is available for public inspection for thirty days. Comments can be sent either to the local government or to the authority.

7.3. EIS PREPARATION The EIA process consists of preliminary and detailed phases. Each phase includes the prepa­ ration of the relevant document. The preliminary environmental impact study (EIS) should describe the proposed activity, its emissions and direct consumption of natural resources, identify the possible environmental impact and determine the potential environmental issues demanding further investi­ gation. The detailed EIA should contain a description of the proposed activity with exact data on emissions and the use of natural resources; a description and comparison of the state of the environ­ ment in the potentially affected areas with and without the proposed activity; an estimate of envi­ ronmental health and socio-economic consequences due to changes in the environmental state of af­ fected areas; a description of mitigation measures; a description of monitoring and post-project con­ trol measures; a discussion of uncertainties and lack of knowledge in the assessment of impacts; and a non-technical summary. The impact forecast should cover the impacts from land-use, construction, operation, decom­ missioning, possible accidents, and closely connected activities such as waste disposal and transport. The content requirements for both studies are described in the environmental act and in the decree. Scoping takes place in the preparatory phase of the environmental licensing procedure. It is based on the preliminary environmental study which must contain all important information neces­ sary for determination of the key issues to be addressed in the detailed assessment. There is no obli­ gation to hold a scoping meeting. The competent environmental authority asks for an official standpoint from the statutory consultant (specialised) authorities. Their views must be included in the decision. Written comments from the public (see previous section on public participation) must be considered by the environ­ mental authority, but the authority has a discretionary right to decide what is included in the decision. There is no specific requirement concerning the composition of the EIA team. It is indirectly influenced by the content requirements for environmental studies and the control over their com­ pleteness during decision making.

7.4. Q UALITY CON TROL Quality control is an integral part of the environmental licensing procedure and it takes place both in the preparatory and the detailed phases. The authority compares the submitted documenta­ tion with the legal requirements. It can ask for supplements if the documentation is not complete and revision of content if the information provided is not satisfactory. There is no obligatory method for the control of quality. The Ministry for the Environment and Regional Policy has issued a guideline to help regional authorities. It contains general impact matrices and checklists to support the quality review. Recently a computerised decision aid system has been developed. It will contain impact matrices for each activity listed in the EIA regulation.

60

7.5. POST-MONITORING Both the previous and the recent regulation require, in the detailed environmental impact study, a description of methods for measuring and analysing environmental impacts in the course of the activity and after decommissioning. The competent authority in the decision determines the ac­ tual monitoring scheme as a condition for granting an environmental licence. It is always the propo­ nent who is responsible for the installation and operation of the required monitoring system and also for providing data to the authority. There is no regulation in EIA legislation defining which expert or organisation can carry out the measuring, collecting, analysis or dissemination of data. However, other regulations can require accreditation for certain measurements.

7.6. STATISTICS During the last two years, since the complete EIA regulation has been adopted in Hungary, approximately 250 environmental licensing procedures have started and a quarter of them have con­ tinued to the detailed phase. There is no central deposit for EISs, but there is an ongoing PHARE project to establish an EIA library and documentation centre at all regional environmental authorities, in the National En­ vironmental Library and in the Environmental Ministry. All of the detailed EISs will be copied on microfiche and will be available to the public. The quality of EIAs performed is very variable. The general problem is that it is very difficult to give up the traditional (environmental medium- and emission-focused) approach, and to switch over to an environmental system-focused approach. This is proving difficult both for planners and authorities. The time frame for the EIA procedure has been changed significantly in the recent regula­ tion. The previous decree allowed thirty days in both phases for the environmental authority to make a decision and fifteen days for statutory consultative authorities to formulate their standpoint. It was possible to extend the length of the decision-making period by thirty days in both phases if the authority requested additional information. The recent regulation allows ninety days in both phases for the environmental authority to make the decision and thirty days for statutory consultant authorities to formulate their standpoint. The preliminary environmental study and the detailed en­ vironmental impact study should be displayed for public inspection for thirty days, but the decision­ making period may not be extended. There is no time frame for preparation of the EIA.

7.7. EFFICIENCY OF EIA Efficiency can only be evaluated comprehensively by multifactoral analysis, since it is influ­ enced by several interrelated factors such as the whole legal background, the quality and quantity of environmental services, the availability and accessibility of environmental information, public awareness, the level of EIA knowledge and skill of authorities and environmental planners, flexibility and capacity of administration, etc. One of the key elements of effective enforcement is the adequate extension and quality of the institutional and infrastructural basis, considering that both the human and the material aspects are equally important. A contradiction between the quite demanding EIA regulation and the available (relatively poor) institutional and infrastructural background also exists in Hungary, although recently the situation has improved significantly. The implementation of an advanced EIA regulation requires extensive human and financial resources, and established and operating education, training and information systems. The most im­ portant elements are: • a large number of adequately trained environmental experts in both consultant firms and authorities; • professional interest groups of EIA practitioners (to ensure non-official quality control); 61

• •

institutes conducting research in methodology; an education system at graduate and post-graduate level with an elaborated EIA syllabus; • regular training possibilities abroad; • a network of concerned people/organisations (this may demand computer access, publishing newsletters, etc.); • support for NGOs (for training and promoting participation in the procedure); • EIA libraries/centres providing access to the literature; • EIA documentation centres providing easy access to impact studies; • a monitoring network providing reliable and comparable information; • an easily accessible database on the state of the environment. In Hungary the complex EIA regulation has a two and a half year history, and it was revised twice during that time. Although a comprehensive review would require a longer time of application, it is possible to draw certain conclusions and to describe the direct and indirect consequences of envi­ ronmental impact assessment. The establishment of the necessary legal, administrative and educational arrangements took place more or less simultaneously with the adoption of the regulation. At the beginning of application particularly it was confusing and slowed down the procedure. Another efficiency decreasing factor was very tight administrative deadlines for the authori­ ties. This meant a lack of in-depth analysis of issues and it often resulted in too general or superficial terms of reference for the detailed assessment. It has also occurred that either the authorities have demanded unnecessary data or meas­ ures, or the submitted EIS contained a vast amount of unimportant information. As well as the pre­ viously mentioned reason, this is partly due to the intention of both authorities and proponents to "simplify" the procedure, which actually means ignoring scoping. On the other hand, in several cases the EIA procedure has promoted better co-operation among the concerned authorities and the proponent. Where regular contacts took place among the concerned parties the EIA was properly focused and it was easier to identify a mutually acceptable solution. The introduction of the new EIA regulation has produced beneficial impacts in several sec­ toral planning systems, enforcing broader consideration of environmental factors and also giving im­ petus to elaborate sectoral environmental guidelines.

REFERENCES Mondok, Z. { 1994), "The efficiency o f EIA i n the decision-making process i n Hungary", Seventh Workshop of NATO ! CCMS Pilot Study on Methodology, Focalization, Evaluation and Scope of Environmental Impact Assessment, Valnerina Norcia, Italy. Mondok, Z. ( 1995), "The new Environmental Protection Act and EIA in Hungary", EIA Newsletter 11, EIA Centre, University of Manchester, UK. Radnai, A. ( 1993), "EIA in Hungary", EIA Newsletter 8, EIA Centre, University of Manchester, UK. Radnai, A. ( 1994), "Efficiency of EIA in the decision-making process", Eighth Workshop of NATO I CCMS Pilot Study on Meth­ odology, Focalization, Evaluation and Scope of Environmental Impact Assessment, Kusadasi, Turkey.

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8. ENVIRONMENTAL IMPACT ASSESSMENT IN THE REPU BLIC OF KAZAKHSTAN Oleg Cherp*

8.1. BACKGROUND Kazakhstan is a former republic of the Soviet Union, located to the north of central Asia. It has a population of 16.8 m people (mid-1994 data of the World Bank (1996)), an area of 2,717 ,300 km• and borders Russia, Turkmenistan, Uzbekistan, Kyrgyzstan and China. The environmental "hot spots" of Kazakhstan include the area surrounding the drying Aral Sea and the Semipalatinsk site of past nuclear weapons tests. Additionally, a number of environmental problems related to agriculture are present, such as desertification and salinisation.

8.2. CURRENT AND PROPOSED EIA LEGISLATION The Soviet system of the state environmental review introduced in 1988-89 (see "EIA in the Russian Federation") was in force in Kazakhstan until 1991. The history of Kazakhstan's own EIA legislation starts with the Law on the Protection of the Natural Environment adopted by the Kazakh Soviet Socialist Republic in August 1991, four months before its formal independence from the Soviet Union. This law defines the procedure of environmental review ("ekologicheskaya ekspertiza") as an instrument for incorporating environmental considerations into economic and other decisions. For a discussion of "ekologicheskaya ekspertiza", which continues to be an environmental regulatory tool in many post-Soviet countries, see "EIA in the Russian Federation". The procedure of state environ­ mental review (SER) is mandatory for: • national, regional and sectoral development plans and programmes; • individual projects; • norms and standards; • new technologies; • the environmental situation in a region; • existing facilities "which have a negative impact on the environment". Either public organisations or developers may initiate non-mandatory public environmental review (PER). The "resolution" (i.e. findings) of both types of PER becomes legally enforceable if con­ firmed by the Ministry of the Environment. Another specific feature of the current Kazakhstan legislation is a provision for the so-called "state sanitary-ecological review" (''gosudarstvennaya sanitarno- ekologicheskaya ekspertiza") which is designed to evaluate the health effects of economic activities. The Ministry of Health was given the responsibility for elaborating and conducting this procedure. To the best of the author's knowledge, no such procedure has been elaborated and applied in practice and this concept has been abandoned in subsequent legislation (Law of Kaz.S.S.R on the Protection of the Natural Environment, 1991). There are no provisions for an environmental impact assessment procedure in the Environ­ mental Protection Law. However, in its Temporary Instruction on the Assessment of Environmental Impacts (OVOS), issued in 1993, the Ministry of Ecology and Bioresources (1993) required from de­ velopers applying for SER documentation of the environmental impact of their proposed activities. The Instruction took into account the provisions of the Espoo Convention on EIA in a Transboundary

* The author is grateful to the Green Salvation NGO, Almaty, Kazakhstan and Dina Berkalieva, CEU (currently, UNDP, Kazakhstan) for their assistance in gathering materials for this paper.

63

Context, the EIA recommendations for transitional economies of the World Bank and the Russian OVOS Instruction of 1992. The 1993 Instruction provides for OVOS for all activities. However, different forms of OVOS are required for regional development plans (so-called "regional OVOS") and for individual projects. Activities with insignificant environmental impact are only required to undergo a "preliminary OVOS" after which a decision that further environmental assessment is not needed may be taken by the Ministry of Ecology and Bioresources. The Instruction requires that the findings of the OVOS are to be documented in a separate document called ''the statement on environmental consequences" and specifies the content of this document. Public hearings are referred to as a mandatory part of the OVOS procedure, but no further details of public participation were mentioned at that time. The Ministry of Ecology and Bioresources Guidelines (1996) provide further guidance for de­ velopers is the study of the environmental impact on some components of the natural environment. The World Bank's classification of projects according to their environmental significance is recom­ mended for determining the level of depth of a particular EIA study. Another set of ministerial guidelines gives recommendations on organising public participation in the process of OVOS (Ministry of Ecology and Bioresources, 1997 ). One more regulatory document (Ministry of Ecology and Bioresources, 1995) links the OVOS and SER procedures by requiring developers to submit statements of environmental consequences to the State Environmental Review Department for review. Recently, new environmental legislation has been proposed in Kazakhstan - the Law on Environmental Protection (a framework law). [Editorial note: the law was passed on 15 July 1997.] Article 41 of this draft law makes provisions for an EIA) procedure which would be a mandatory ele­ ment in developing a project. EIA would also be required for modification, decommissioning, or changing ownership of facilities "which have environmental impacts". The aim of EIA is defined as "determination of the environmental and other consequences of different alternatives of economic and other decisions, developing recommendations on measures to improve the environment, to pre­ vent loss and degradation of, or damage to natural ecosystems and resources" (draft Law on Envi­ ronmental Protection, 1996). The draft law states that the findings of the EIA, presented in a separate volume, should be­ come a part of the project documentation. Chapter 9 of the draft law is called "Environmental Re­ view". Similarly to the 1991 legislation, it defines the procedure of environmental review and distin­ guishes between SER and PER. The draft law provides for mandatory SER of all projects (article 43 requires a "positive SER resolution" as a pre-condition for implementation of any project). At the same time, it leaves the scope of SER to be defined by subsequent legislation. According to the draft law, PER can now be of one kind only: that initiated by public organisations. Another major environmental law, the Law on Environmental Review (ER Law) has been proposed. [Editorial note: the law entered force on 2 1 March 1997.] In articles 3 and 4, the draft ER Law formulates the goals and objectives of environmental review, among which it mentions: "1 ) the determination of the comprehensiveness and adequacy of the assessment of the im­ pacts of a proposed activity on the environment, health and natural resources, which has been un­ dertaken in preparing the project; 2) organising a comprehensive, scientifically based analysis and assessment of impacts of a planned economic or other activity; 3) checking the compliance of reviewed documentation with the environmental requirements of Kazakhstan legislation, environmental norms and standards; 4 ) ... supplying the public and interested parties with the necessary information". State environmental review is made mandatory for: • new legislation and regulations; • national, territorial and sectoral plans and programmes; • projects and activities associated with the use of ''biological resources"; • contracts and privatisation schemes and agreements; • new technologies and materials, including those imported from abroad; • environmental site assessments and environmental audit materials; • other activities at the discretion of the Ministry of Ecology and Bioresources. SERs are to be organised and conducted by the State Environmental Review Departments (SERDs) of the Ministry of Ecology and Bioresources. SERDs appoint expert committees (the licens-

64

ing of experts by the ministry is required) to conduct individual reviews. SERDs should also form permanent "SER Expert Councils" to oversee the process of SER, intervene in particularly significant cases and develop recommendations on improving the system of SER. The developer is required to submit to a SERD the statement on environmental consequences of the proposed activity and the documentation on required authorisations from state agencies as well as "results of the analysis of public opinion". SERDs can ask for more documents to be submit­ ted. The developer is also responsible for announcing in the media his or her submission of materials for state environmental review. The SERD and its expert committees review the submitted documents and then issue a Reso­ lution which is mandatory for developers and investors. A "negative" resolution means that the proj­ ect cannot be implemented. Article 16 of the draft law describes assessment of environmental impacts. Section 1 refers to EIA as a procedure, section 2 says that EIA is an "obligatory part of the project documentation", sec­ tion 3 again views it as a procedure. Despite this slightly confusing definition, the article clearly specifies that the developer should carry out EIA taking account of the following: • baseline environmental conditions; • alternatives to the proposed development; • existing regional plans; • existing relevant legislation; and including assessment of the following: • the nature and scale of expected impacts; • expected changes in the environment and their social and economic implications; • proposed mitigation measures. The statement on environmental consequences (SEC) should be prepared by the developer as a result of the EIA process. It needs to be submitted to the SERD along with "a comprehensive eco­ logical-social and economic assessment of the planned activity on the environment and health". The procedure of PER can be conducted by public organisations in relation to the same ac­ tivities as SER. The PER should be registered with the local authorities, and its initiation and re­ sults should be announced through the media. A PER resolution has a "consultative and informative" character.

8.3. ANALYSIS AND RECOMMENDATIONS The environmental legislation of Kazakhstan provides for both EIA - an instrument for the identification and evaluation of expected environmental impacts by the developer earlier in the proj­ ect development cycle - and SER - an instrument of governmental decision making. The differences between SER and EIA are discussed in the paper "EIA in the Russian Federation". The two proce­ dures are linked: the outcomes of EIAs are documented in a statement on environmental conse­ quences and submitted for SER review. The Kazakhstan regulatory system of anticipative environmental protection appears to be quite advanced in its thinking. It contains a number of valuable features, such as a notable screening procedure through the system of preliminary OVOS/EIA introduced by a ministerial instruction in 1993. Another interesting feature is the formation of SER "Expert Councils" which can, potentially, be a safeguard against corruption and promote improvements in SER and EIA systems. The principal elements of Kazakhstan's EIA system as introduced by the new legislation are discussed below. 8.3.1. State Environmental Review Procedure The intention of the Law on Environmental Review is to cover the widest possible range of activities: from minor construction projects to national law making. This intention is good, in princi­ ple - but in practice it can result in the inefficient allocation of resources and a widespread failure to comply with the legislation. This, in turn, would lead to growing disregard for the SER procedure, and, as a consequence, create more opportunities for corruption. 65

It seems that the SER procedure is unlikely to be applied to all activities - the resources of both government and developers will simply not be sufficient and in certain cases of strategic devel­ opments significant technical and methodological difficulties may arise. This may lead to a full-scale SER only being applied in certain cases which are likely to be selected by the ministry. This possibil­ ity is further enhanced by the provision that the ministry has discretion to conduct SER "of other [not listed in the Law - OC] activities". Thus, implicitly and explicitly, too much power is likely to be con­ centrated in the hands of the ministry. This main deficiency of the proposed system of SER can be removed if some sort of screening provisions and differentiated approaches to different types of activities are introduced as was done in the 1995 SER Instruction (Ministry of Ecology and Bioresources, 1995) but, perhaps, more formally. The SER procedure has been designed primarily for medium-scale industrial development projects. It has its limitations at both size extremes: (a) it is likely to be technically non-feasible in the case of large strategic decisions such as, for example, the development of a national energy policy; and (b) it is inefficient and exceedingly bureaucratic in the case of small-scale decisions, such as, for example, the privatisation of a village grocery shop. In the case of strategic policy decisions, such as draft regulations or national policies, it is not usually possible to make a precise prediction of environmental impacts. It is also not clear to what extent the Ministry of Ecology and Bioresources is entitled to issue a SER Resolution which would be binding on higher levels of government hierarchy, such as the Cabinet or the Parliament, which make strategic decisions. Therefore, for such decisions both the procedure of SER (possibly utilising ele­ ments of strategic environmental assessment (SEA) methodology) and its outcome (possibly issuing the ministry's official view on the environmental acceptability of the proposal rather than a binding SER resolution) should be different from those described in the legislation. In the case of decisions related to some programmes, plans and larger individual projects, is­ suing a SER resolution will be more appropriate. It is reasonable to expect that in such cases a full­ scale EIA is needed and can be afforded by developers and investors. In such cases, SER should focus on the adequacy of the EIA procedure, as provided in objective (1), article 4 of the draft law (see above). For smaller individual projects, where the developers are not likely to have the necessary funds and expertise to conduct a full scale EIA (and where, in any case, a full EIA may not be justi­ fied), a simpler form of EIA may be adopted. The process of "pre-OVOS" or preliminary EIA as speci­ fied in the 1993 OVOS Instruction (Ministry of Ecology and Bioresources, 1993) may be a prototype for such a simpler form of EIA. The focus of SER in such instances might shift to checking the com­ pliance of the project with appropriate environmental norms and standards as provided in objective (3) of article 4. Some very small developments, such as the construction of individual residential buildings, can be excluded from the scope of SER - a simpler procedure of authorisation by local authorities can be adopted. Alternatively, in the case of smaller projects a "class" type EIA may be justified as in the USA. The distinction between ''large" and "small" projects can be based on preliminary assessment to determine whether a full EIA is needed, as is done at the federal level in the USA under their Na­ tional Environmental Policy Act (NEPA), and as required by the 1993 OVOS Instruction (ibid.) in Kazakhstan. An alternative form, limiting the discretion of the ministry, would be to set up a list of types of activities with significant environmental impact that would require full EIA. Finally, specific SER provisions are clearly required for "objects" not involving planned physi­ cal developments but mentioned in the ER Law, such as privatisation contracts, existing enterprises, new technologies, etc. In this case, specifications for documents that need to be submitted to SER as well as EIA provisions could be different from those described in the legislation. 8.3.2. Adequacy of EIA procedure The newly introduced procedure of EIA in Kazakhstan resembles the Soviet OVOS procedure (see "EIA in the Russian Federation" for details), but the abbreviation OVOS is not used anywhere in the new legislation, although it is mentioned in the 1993 OVOS Instruction. The legal requirements for the EIA procedure are more advanced in Kazakhstan than in

66

Russia or Belarus (where EIA is barely mentioned in principal environmental legislation). Particu­ larly welcome are the clear links between EIA and SER procedures and the equal legal status of EIA and SER. Unfortunately, the new legislation does not contain a definition of EIA, though a good work­ ing definition could be borrowed from the 1993 OVOS Instruction. For example, article 16 of the draft Environmental Review Law states that the statement on environmental consequences (SEC) is an outcome of the EIA procedure while article 15 requires the submission to SER of the SEC alongside a "complex ecological, social and economic assessment". A clear legal definition, which distinguishes process from document, would help to resolve the confusion. EIA also suffers from the same lack of differentiation, as for SER, between the types of ac­ tivities that are to be subject to it. The existing requirements are appropriate for large scale individ­ ual development projects. However, they cannot be reasonably implemented for strategic develop­ ments (due to technical and methodological limitations) and for minor projects (due to lack of re­ sources). For the former, an SEA methodology could be used, adopting, for example, the one outlined by Therivel (1993). For minor projects a simpler EIA procedure would be useful as, for example, the "pre-OVOS" required by the 1993 Instruction. While EIA of both planned and existing activities is provided for, specific requirements are outlined only for planned activities. There is a clear need for detailed guidance on the EIA of existing facilities. Additionally, environmental audit requirements (mandatory or voluntary) may be intro­ duced. Such an approach would also harmonise the Law on Environmental Review with the Law on Environmental Protection, which provides only for the EIA of proposed decisions (including decisions on modification, change of ownership, etc.) and deals with environmental audit in a separate chapter. Finally, if the international practice of viewing EIA as a process, and not just a document, is accepted in Kazakhstan, the following provisions could be considered: • consultation and public participation should become part of the EIA process; this would also facilitate the requirement to submit the results of the analysis of the public opinion for SER; • the requirement that EIA is conducted at all stages of project design should be made more specific: different elements of the EIA process (screening, scoping, consultation, etc.) should correlate with stages of project development (i. e. feasibility study, site selection, etc. ). A guideline recently published in Russia (ICES, 1996) could be of some use for this purpose. 8.3.3. Public Participation

Kazakhstan is introducing relatively advanced provisions for public participation in the SER process. Representatives of the public may sit on SER councils or become experts on SER committees. Both the developer and the SERD should inform the public ''through the media and other means" about the SERs being conducted. Additional responsibility for informing the public is given to local authorities. The developer is also formally required to submit the results of public opinion to SERDs. However, the right of the public to participate in SER committees is limited by a requirement for all SER experts to obtain licences which are unlikely to be affordable to ordinary citizens. As was mentioned earlier, no public participation provisions are incorporated into the legal EIA requirements. As a minimum, it may be considered desirable for the SEC to be made a public document, and for the developer to be required to conduct public hearings, as in Russia. Naturally, the latter would be feasible only for large scale environmentally significant developments, and this is one more reason to introduce screening as part of a differentiated approach to different project types. It might also be possible to make the implementation of some recommendations on public participa­ tion elaborated by the Ministry of Ecology and Bioresources (1997) mandatory for developers and authorities. The Kazakhstan system of PER is different from that of the Russian Federation in that it does not limit the types of documents which can be subject to PER to those not containing state or commercial secrets. This may reflect a commitment to unlimited public participation, or it may be a legal provision which is only expected to be enforced at the discretion of the Ministry of Ecology and Bioresources (or developers). 67

There are three significant deficiencies in the proposed system of PER: • First, the procedure for registering PERs with the local authorities is not formalised: the terms and conditions of registering a PER or refusing the registration are not officially listed. This can lead to voluntarism on the part of authorities and increase tension be­ tween them and NGOs. Despite its numerous deficiencies, the more formal Russian procedure for registering PERs seems to give more opportunities to the public. It describes precise reasons for refusing PER regis­ tration. These are: (a) two PERs of the same object have already been conducted; (b) the SER has al­ ready been completed; (c) the applying NGO is not eligible to conduct PERs; or (d) the documents re­ quired by the PER contain a secret protected by law. If none of these reasons has been identified or if the authorities have not responded to the PER application within one week, the PER is considered legally registered (Russian Federal Environmental Review Act, 1995). • The second deficiency relates to the right of the PER to information. Unless developers and/or SERDs are required to provide relevant documents for the PER (as is done, for ex­ ample, in Russia), this procedure is likely to remain essentially useless. • Finally, an important and easy-to-implement provision would be to allow a registered PER to appoint representatives to SER expert committees to provide for more co­ ordination and information exchange between the two processes. Most of the suggestions presented above could be incorporated into Ministry of Ecology and Bioresources or other governmental regulations which need to be issued to provide more details on legal requirements after the ER Law has been adopted. Many of the provisions of early guidelines and regulations (Ministry of Ecology and Bioresources, 1993, 1995, 1996, 1997 ) may be reintroduced under the new legal framework.

8.4. CON CLUSION Until recently, the EIA system in Kazakhstan was regulated by a single legal act passed be­ fore the disintegration of the USSR. It provided for the traditional Soviet procedure of preventive en­ vironmental regulation (SER) and the process of OVOS or assessment of environmental impacts car­ ried out by developers. Detailed ministerial regulations and some guidelines on OVOS and SER were elaborated between 1993 and 1997. In March 1997 , the Law on Environmental Review was adopted. It is now the major piece of EIA legislation. Additionally, EIA provisions are discussed in the frame­ work Law on Environmental Protection. Kazakhstan legislation provides an integrated system of preventive environmental regulation which is more advanced, in certain aspects, than in other CIS countries. The system can, however, be significantly improved if: • screening requirements are more consistently introduced and different approaches are adopted for activities of different scale and significance; • a more consistent view of EIA as a process is developed, with consultation and public participation forming an integral part of the procedure; • public participation requirements, and especially the procedure for PER, are more formal­ ised. Whether Kazakhstan's new environmental legislation will result in better environmental as­ sessment practice will probably depend upon the content and quality of new governmental regula­ tions and guidelines as well as of subsequent provisions for training, and the evaluation of the per­ formance of the new instruments and their adjustments where this is shown to be necessary.

REFEREN CES Draft Law of the Republic of Kazakhstan on Environmental Protection ( 1996), Law no. 137-1, approved in the first hearing by the Majilis on 25 June 1996 (in Russian, not published).

Federal Environmental Review Act of the Russian Federation ( 1995), Federal Law No. 174-F3 of 30.11.1995. International Centre for Educational Systems (ICES), EIA Department ( 1996), Guidelines on Conducting Assessment of Im­ pacts on the Environment in Developing Substantiations for Investments in Construction, Feasibility Studies and Projects of

68

Construction, Re-Construction, Expansion, Modification, Conservation or Decommissioning of Economic and other Facilities and Complexes, Moscow. Law of the Kazakh Soviet Socialist Republic on the Protection of the Natural Environment ( 1991) (in Russian), Almaty. Law of the Republic ofKazakhstan on Environmental Review ( 1997) (in Russian) in: Kazakhstanskaya Pravda. 21 March 1997. Ministry of Ecology and Bioresources of Kazakhstan ( 1993), Temporary Instruction on the Order of Conducting Assessment of Impacts of Planned Economic Activities on the Environment (OVOS) (in Russian), Almaty. Ministry of Ecology and Bioresources of Kazakhstan ( 1995), Temporary Instruction on Conducting State Environmental Re­ view of Project and Pre-Project Materials in the Republic of Kazakhstan (in Russian), Almaty. Ministry of Ecology and Bioresources of Kazakhstan ( 1996), Guidelines on Conducting Assessment of Planned Economic Activ­ ity on Biological Resources (Soil, Vegetation, Fauna), RND 211.3.2.05-96 (in Russian), Almaty. Ministry of Ecology and Bioresources of Kazakhstan ( 1997), Guidelines for Developers and Designers on Analysing and Ac­ counting for Public Opinion in Conducting Assessment of Impacts of Planned Economic Activities on the Environment (in Rus­ sian), Almaty. Therivel, R. ( 1993), Strategic Environmental Assessment, Earthscan, London. World Bank ( 1996), From Plan to Market. World Development Report 1996, Oxford University Press, New York.

69

9. ENVIRONMENTAL IMPACT ASSESSMENT IN LATVIA llmars Sekacis and Sandra Rusza*

9.1 . OVERVIEW OF THE ORGANISATION OF EIA IN LATVIA The Ministry of Environmental Protection and Regional Development (MEPRD) is the central authority for organising environmental protection in Latvia. According to the Regulation on the Ministry of Environmental Protection and Regional Development (accepted by the Cabinet of Minis­ ters in 1995) the ministry has also the task of undertaking state EIA. Latvia is divided into 26 districts and 593 municipalities. The MEPRD has eight sub­ ordinate regional environmental boards (REB; until 1995 they were called environmental protection committees). They are each responsible for environmental protection for three to four districts. The duties, rights, responsibilities and tasks of REBs are defined in the Regulation on Regional Envi­ ronmental Boards accepted by the Minister of Environmental Protection and Regional Development in 1995. In Latvia, EIA as a unified system started only in 1988 after the foundation of the Nature Protection Committee (NPC), and the Board of State Ecological Expertise as a division of the NPC. The NPC was directly subordinate to the Council of Ministers. Before 1988, different divisions of various ministries and institutions covered environmental impacts. Responsibilities were divided as follows: • the Ministry of Amelioration - surface waters; • the Board of Geology - groundwater and quarries; • the Society of Nature and Monument Protection - land ecosystems; • the Board of Forests - reserves, National Parks, hunting limits; • the Inspectorate of Fisheries - fish resources and their protection; • the Medical Epidemiological Inspectorate - hygiene and waste disposal. In this period (before 1988) projects were submitted to the above-mentioned institutions, and after their acceptance project realisation could start. However, environmental protection was not considered essential for the realisation of all projects, either of local (Latvia) or USSR importance. At that time, environmental protection was subordinate to the interests of industry, agriculture, transport and the centralised socialist economic planning system in general. Beginning in the 1980s, however, environmental evaluation became an obligatory requirement for the realisation of all projects. In 1990, the Environmental Protection Committee (EPC) was established on the basis of the NPC. The Ministry of the Environment (now MEPRD) was founded after the reorganisation of the EPC in 1993. The Board of State Ecological Expertise was re-formed as the Board of State Environ­ mental Impact Assessment (BSEIA,) (7 September 1993). The BSEIA is an independent and discretionary subordinate of the Ministry of Environ­ mental Protection and Rural Development. Each REB has a Division of Expertise (DE). It is therefore the BSEIA and the DE of the REBs which are responsible for state environmental impact assessment in Latvia.

* Edited by Clive George, on the basis of papers prepared by Ilmars Sekacis and Sandra Rusza. The paper has in part been updated and adapted from a report by Jurid Benders, Magnus Vircavs and Valdis Seglins, first published by the Nordic Council of Ministers ( 1), as part of a co-operative programme between the Baltic and Nordic countries.

70

9.2. LEGISLATIVE SOURCES OF EIA IN LATVIA In Latvia, the legal foundations for environmental protection are based on the following basic laws and regulations: • the Law on Environmental Protection, 1991 ; • the Law on the State Ecological Expertise, 1990; • the Law on Particularly Protected Nature Territories, 1993; • the Law on Natural Resource Tax, 1995; • the Law on Hazardous Waste, 1993; • the Law on Radiation and Nuclear Safety, 1994 ; • Regulations on Environmental Protection State Inspection, 1990; • National Environmental Policy Plan for Latvia, 1995; • Regulations on the Board of State Environmental Expertise, 1995; • Regulations on General Building, 1997. Environmental protection as well as state EIA are also based on other laws and regulations accepted in Latvia. The legal basis for conducting EIAs in Latvia is the Law on State Ecological Expertise of 9 October 1990 . This law states that the goals of the state ecological expertise (SEE) procedure are to "evaluate the level of environmental hazard posed by economic activity and the environmental conditions at particular sites, and to develop proposals for the improvement of environmental quality". The SEE procedures are based on fundamental principles of legality, comprehensiveness, sci­ entific validity and openness to public participation. The procedure should integrate the concerns of different affected parties and target groups and national goals, and should result in a generalised evaluation of the aggregate effects on the surrounding environment and fulfil the international obli­ gations of the Republic of Latvia. The main SEE requirements are defined, and SEE goals are given, in the Law on SEE : • to determine whether the level of potential environmental hazard has been correctly evaluated for a particular economic or other activity which has a direct or indirect impact, or in the future will or may have an impact on the surrounding environment or public health and living conditions; • to provide an evaluative analysis of the environmental impact of the planned human­ generated activity; • to evaluate the permissibility of economic activity, taking into account all environmental restrictions; • to establish, prognosticate and evaluate the effects of the impact of economic facilities on the surrounding environment. On this basis, the SEE procedure approximates to the EIA systems in the West. However, there are several fundamental ways in which the present SEE in Latvia still differs from EIA. There are several reasons for this, but the main one is the fact that the law was established among the first Latvian laws, just after the announcement of Latvian state independence (4 May 1990). There was no experience in law and institution building and very limited experience in these particular issues. It was a time when public support and willingness to participate were much more common than knowl­ edge and experience and the possibilities of absorbing new approaches. The SEE Law prototype was the former USSR draft Law on State Ecological Expertise of 1988/89. During 1989/1990 this draft was adapted to the needs and new legislative possibilities in Latvia. The main goals of this law were to: • indirectly fix independence (only Latvian State EE is valid in Latvia); • legalise the right to manage the controlling functions of the Latvian state over all kinds of properties and activities in Latvia; • realise public participation in relation to the former Soviet military bases and activities, and support public involvement in the process of establishing real independence; • realise self-declaration and public control, etc. An additional goal was to have information on Soviet plans for economic activities before they were implemented, and to control them. One of the most important characteristics of EIA legislation both in Latvia and in other 71

countries is its necessary and obligatory nature. The EIA can be carried out by any physical or juridi­ cal person, association, etc., but only state EIA findings have legal status and are binding: "A positive state environmental impact assessment report is an obligatory prerequisite for the realisation (financing) of any industrial project. If the state environmental impact assessment of a facility results in a negative report, state institutions of authority and administration will consider the question of whether to continue or halt the activity of this facility"; and in article 16: "State environmental impact assessment reports are final; the Supreme Council of the Re­ public of Latvia (Saeima from 1993) can demand a second assessment". All other EIAs and related findings, proposals, etc. may serve only as background informa­ tion for better understanding of project environmental problems, i.e. they are non-binding. According to the Law on State EE the information requirements for state EIA are the follow­ ing: • pre-planning documentation (including state programmes) for all types of state and pri­ vate economic development and territorial development; • planning and research materials which are related to environmental evaluation; • new technological developments, materials, occupational regulations, technological equipment; • draft regulations and methodical instructions for economic activity and natural resource use; • the environmental status of facilities, places and regions; • the economic substantiation (calculations) for projects, plans for site selection, construc­ tion (reconstruction, expansion, etc.) and liquidation of economic facilities. Additionally, the BSEIA is now also responsible for the expertise of construction plans which are evaluated for building problems only at the state level. This is connected with the lack of con­ struction plan experts at the regional level. Unfortunately the existing legislation does not provide either strict orders concerning the as­ sessment of construction plans, or the competence of the BSEIA and the Division of Expertise (DE) of the REB in this respect. According to article 4 of the Law on State EE a positive state EIA report is an obligatory pre­ requisite for the realisation (financing) of any industrial project as well as of the objects mentioned in article 7. This means that all other laws and regulations accepted in Latvia must not be contrary to the Law on State EE. For example, in the Law on Environmental Protection or Law on Hazardous Waste, etc. the requirements and several articles from the local EIA law were included. In spite of the mentioned necessity there is no close correspondence between the Law on State EE and other laws and regulations. This situation causes disagreement on how to realise EIA in accordance with the Law on State EE. There are no indications about binding legislative EIA standards in the Law on Banks, the Law on Business Activities, the Law on Harbours, the Law on Aviation, or the Law on Roads. In addition, item 7 of the Regional Planning Regulations prescribes that all physical planning and branch development programmes must be subject to an expertise according to the Law on State EE. However, item 44 of the regulations sets out another order on how to harmonise any physical plan. An important obstacle for the functioning of regional planning regulations, with regard to EIA, is its disagreement with the Law on Municipalities, as well as its being contrary to the Law on the Budget of Municipalities, Regulations on Municipality Activities Inspection, and the Regulations on the order of Municipality Taxes. Article 7 of the Law on Building defines local municipalities' powers, and provides for the elaboration and confirmation of physical planning projects (general plans) and detailed plans for their administrative territory, but only after a positive state EIA report. The same applies to building regulations for all kind of buildings which are built in the territory of the local municipality. The mentioned local regulations are binding only after a positive state EIA report. The control execution is organised by the local municipality as well as by the inspection of buildings and other executive institutions. In order to improve the existing situation it is necessary to form a united legal environmental protection system in which the Law on State EE and all regulations connected with it have the main role. Because of the disagreements between the Law of State EE and other accepted laws and regu72

lations in Latvia, it is widely considered that ecological expertise (EIA) hinders the development of the economy. Therefore the laws and regulations accepted in Latvia do not take into account the Law on State EE or the Law on Environmental Protection. Besides, it is possible to find some contradic­ tions within the Law on State EE. For example, article 13.7 states that the Ministry of the Environ­ ment takes responsibility for losses caused by mistakes in an ecological expertise. This is contrary to article 11 which states that experts are responsible for the objectivity of the assessment and the quality of statements. These shortcomings in EIA legislation and the lack of sufficient co-ordination, limit the adoption of EIA procedure for routine work. Part of the legal basis of the system is subordinate to the corresponding law, subordinated acts, regulations, decisions, standards, norms, etc. The EIA process in Latvia is governed by two regulative acts presented for internal use by MEPRD employees (Instruction on the Organisation and Implementation of State Ecological Exper­ tise VAK-3-93, August 1991, and April 1993). These instructions - referred to in the present report as the Instruction on OISEE - manage the principles of EIA process management and the particu­ lars of application. Much more information for practical implementation is available through the MEPRD or from the EIA Board's informational letters to the MEPRD regional departments. How­ ever, according to the above-mentioned Civil Code, these regulations are valid in the system of MEPRD and have the status of recommendations for the public and for companies.

9.3. THE NEW EIA LAW IN PREPARATION The Ministry of Environmental Protection and Rural Development, in co-operation with the Finnish Environmental Institute and Finnish Ministry of the Environment, is now working on a new EIA Law. The project began in January 1997 , with the aim of setting up the new EIA system in a pe­ riod of nineteen months. Funding is being provided within the framework of bilateral co-operation between Latvia and Finland. The project aims to facilitate preparation of new legal instruments on EIA in Latvia which will be compatible with current European Union legislation, and in particular with Directive 85/337/EEC and the UNECE convention on transboundary impacts. Following a review of background material, a series of workshops was held for environmental experts and those responsible for developing environmental policy instruments in Latvia, to discuss the outline of the new law. After drafting the new law, participation and comments on the proposals will be obtained from the relevant administrative bodies, other ministries, municipalities and NGOs. Finally a plan will be prepared for enforcing the new law in practice. This will consist of a training programme, a plan for training materials, and guidelines for implementation. The anticipated output from the project will consist of the new Law on EIA, subordinate leg­ islation, guidelines on EIA, and the availability of trained staff in Latvia. A draft version of the new EIA Law is summarised in figure 11.9.1. This was discussed in June 1997 with municipalities, the Road Administration, the Garden and Park Authority, the Cul­ tural Heritage Inspectorate, the Traffic Safety Department, the Land Survey Department, the Insti­ tute of Forestry and the Welfare Ministry. Subordinate regulations are in preparation which will regulate: • the requirements and contents of project applications; • the requirements through which the need for EIA is determined, a list of projects for which EIA is mandatory, and criteria by which decisions are taken about whether EIA is necessary for other projects; • the requirements for public hearing, requirements for publishing documents, regulations on organising public hearings, and requirements under which the public can gain access to EIA documents. These regulations will be binding for all actors in the EIA process. In preparing the new law several important problems have been identified which will need to be resolved, such as: • compatibility with the Law on Building and the Regulation on General Building, where the stages of public participation differ in timing from that necessary for public partici­ pation in EIA. Also, building legislation does not require assessment of alternatives;

73

Notification Competent Authority Decision on EIA Necessity Publication Application by Public on Public Hearing

Public Hearing

EIA Programme Draft EIA Report

Publication

Public Hearing Final EIA Report Statement by Competent Authority Fig. 1 1.9.1. Draft EIA procedure for Latvia • • •

uncertainties connected with the time schedule for preparing new legislation on territo­ rial planning; the development of the Environmental Protection Agency (EPA), which will probably be responsible for conducting EIAs of state importance, for methodological issues, training, and an EIA database; the involvement of municipalities in the decision-making process.

9.4. EIA IN THE PROJECT CYCLE The Board of State Environmental Impact Assessment (BSEIA) performs EIA or examines and approves the pre-implementation documentation for projects of national interest. The BSEIA also performs the necessary technical assessments for projects. EIAs for projects at regional level are performed by the regional environmental boards (REBs). There are no special criteria for selection, nor for clear-cut triggering of EIA at present in Latvia, because an ecological expertise is obligatory for any project. Criteria for selection (including clear-cut triggering of EIA) are now in the stage of elaboration for the new Law on EIA. There is the possibility to divide all projects into conditionally selected categories of risk. Such an evaluation ap­ proach was given as a recommendation in "Investors guidelines for performing environmental due diligence in Latvia" and includes five categories of risk. 74

There is a real need to establish a new, much more certain, system of project lists according to the principles of the EU Directive; it is necessary to establish more precise procedures and more detailed requirements instead of general approaches. Project designers are responsible for the comprehensiveness and professional scientific qual­ ity of the submitted documents. The experts performing the EIA are responsible for the objectivity, quality and timing of the assessment, and must observe applicable environmental protection legisla­ tion. State EIA is organised by the BSEIA. The BSEIA examines the general issues involved and the completeness of the submitted documentation. The appropriate EIA form and methodology are determined in this phase, having evaluated the submitted documentation and the completeness of submitted information. The BSEIA establishes an expert commission. Upon examination of the submitted documentation each expert prepares an individual assessment and submits it to the commission. The decision on a project EIA is prepared by the expert commission and contains: • individual experts' evaluations of specific questions; • the report of the BSEIA on the conclusions submitted by the experts; • recommendations to the developer and to interested organisations relating to require­ ments for economic activity; • protocol from the expert commission meeting. Projects of state importance are mainly building, construction and reconstruction projects, such as, for example, the building of harbours, terminals, bridges and thermal power stations, instal­ lation of generators and biofilters, and construction of reservoirs. A majority of activities at REB level concern modifications of existing projects, adjustments of limits (emissions) and site adjustments. In some cases (for more important or complex environmental impacts) REBs undertake an EIA (ecological expertise). Very large numbers of modification projects reflect intensive economic activity, although most do not give rise to significant environmental impacts.

9.5. EVALUATION OF EIA PROCEDURE AND PROBLEMS Although there is a lack of co-ordination in EIA legislation and shortcomings in EIA proce­ dure, it is important to stress that the EIA procedure in Latvia exists and is functioning. The reasons for certain shortcomings lie in the conditions of economies in transition. The National Environmental Policy Plan for Latvia, the qualification of specialists, and ef­ forts which have been initiated to elaborate improved EIA legislation in Latvia, mean that EIA may be expected to procedure be more efficient in the future. According to experience, the implementation of checklists should improve EIA procedure in Latvia. The Law on State EE does not include any of the following items for EIA procedure: mitiga­ tion plan, post-implementation analysis or monitoring, evaluation of alternatives, waste manage­ ment. It is expected that the new legislation will contain these aspects. The guidelines for environmental impact statements are given by Latvian legislation, but they have a general character and do not sufficiently cover the content of EISs. There is limited practice in the elaboration of EISs in Latvia and it is obvious that a lot of improvements in the prepa­ ration of EISs must be made. Guidelines must be prepared and stricter requirements established if EIS content is to be consistent with EU legislation. Of EISs that have been performed for projects of state importance, only some contain an ac­ count of impacts, their analysis, evaluation, recommendations, assessments of the project, monitor­ ing, analysis of alternatives and discussions in meetings. Due to the economic situation in Latvia today, a recommendation could be made to require that alternatives be considered where appropriate. This requirement should be implemented if best available technology is not used as the main alternative. An EIA database or library should be used to accumulate experience. Therefore it is recommended to establish national or regional archives of EIS and EIA databases. According to present legislation the developer is responsible for public information during the first stage of the EIA procedure. Public involvement, at least at that stage, has been realised in 75

Latvia at a more or less successful level in certain cases. It was achieved by announcing the informa­ tion in newspapers, and by organising public meetings. The second stage of public information is connected with the "publication in the mass media of materials regarding the conduct and results of state EIA" performed by the BSEIA. Although public participation is a key question, in practice there is not enough public partici­ pation in EIA. The newly elaborated directives must contain a more precise description of the public participation procedure. Besides, much more effective tools for public involvement must be used. One of the key items is to raise public awareness and activity. It is necessary to investigate public activities and behaviour in Latvia to obtain recommendations for further development of pub­ lic participation. During ecological expertise at the regional level, practically only staff experts and experts from the BSEIA and from the Ministry of the Environment are involved. A limited number of experts are carrying out a large number of assessments of projects, emissions, site selections and other tasks. This testifies to the impressive working capacity of the staff and experts working in the REBs. In the meantime, during the EIA procedure for projects at state level approximately half of all experts are invited non-staff experts. There is no system of licensed experts in Latvia. It could be reasonable to introduce licences for more objective accreditation. That problem is under consid­ eration. In spite of difficulties the Board of State EIA is, as far as possible, working with a long term perspective. The improvement of the EIA procedure is developing and it is reasonable to expect that it will be developed further. The competence of the staff, and the exchange of experience and capacity of experts, are preconditions for successful improvement. Education is a key issue in improving, the implementation of the EIA procedure. It concerns all kinds of educational activities, with regard to the public as well as specialists and experts. No es­ sential improvement in EIA can be expected if educational activities do not cover different public groups. Therefore, a large variety of educational tools and mass media activities must be improved and realised for raising public awareness and public participation. Regular surveys performed on the EIA procedure in Latvia, and analyses of conditions and perspectives of EIA, will have an effect on the quality control of EIA. First of all, such surveys will give valuable information and conclusions, necessary for the further development of EIA. The identi­ fication of all benefits and shortcomings will define preconditions and background information for other activities and international or regional projects, which are necessary for improving the EIA procedure. Secondly, surveys and corresponding reports (or seminars) are effective tools for further development of the competence of experts working in EIA, as well as specialists within the system of Environmental Protection. Misunderstandings and errors in the interpretation of domestic or foreign environmental regulations and standards often occur when evaluating the potential environmental impact of a given activity. There are three standards systems on which the standards used in Latvia today are based: • standards accepted in the Soviet Union, for example those accepted by the Hydrometeorological Board; • new national standards, which are elaborated only in some cases; • standards from foreign countries, including the EU, in other cases. Selected standards accepted in the Soviet Union were confirmed as applicable for Latvia by Decision No 337 of the Council of Ministers of Latvia dated 14 August 1992. In other cases it is rea­ sonable to follow the HELCOM recommendations also. In addition, there are different kinds of stan­ dards application methodology: national, EU and former Soviet Union. Such uncertainties could have a negative effect on the quality of EIA if standards are not accepted in certain cases. Also, some standards exist which are not possible to apply in Latvia. All standards accepted in Latvia must be confirmed by the Latvian National Standardisation and Metrological Centre. The same applies to methods used for the determination of different polluting substances which must be certified by the same Centre. The experts have problems if there are no accepted standards in Latvia, for instance stan­ dards of noise, risk assessment and others. In this case the BSEIA defines requirements for the de­ veloper to follow. These are based on EU standards or HELCOM recommendations. Unfortunately, this approach is not legally binding. 76

By 2005, the EU system of standards and norms should be completely introduced in Latvia. Thus, the necessary new standards and norms need to be developed and existing ones improved. Where Latvian standards and norms are stricter than those applicable in the EU, it will be necessary to determine whether they should remain as they are or be modified in line with EU standards.

REFERENCES Benders, J., M. Vircavs and V. Seglins ( 1996), "Latvia" in H. Kristoffersen and A. Tesli (eds.), Environmental Impact Assess­ ment in the Baltic Countries and Poland: Screening and Quality Control, Nordic Council of Ministers, Copenhagen, Denmark.

77

10. ENVIRONMENTAL IMPACT ASSESSMENT IN LITHUANIA Irena Buciunaite and Mindaugas Raulinaitis*

10.1. INTRODUCTION For each new planned activity, or for a change of an existing activity, the project proponent is obliged to obtain the following documents: • Permission for the design. • Permit for construction. 10.1.1. Permission for the design

The selection of the construction site should be approved by the municipal authority for the site. For this purpose the proponent applies to the municipal administration with a request for: • the site planned activities (in the case of a new construction); • permission for the design of a new building within the boundary of the site (in the case of a private site or territory owned by the company). The name of any new construction, its main characteristics and its possible environmental impact must be described in the request. The municipal administration analyses the request and de­ cides on the possible use of the site, and gives an outline of the site or, if possible, outlines of several alternative sites. Once the proponent has obtained the permit to start the preparation of the project, the stage of gathering data for the project begins. The planning organiser (the relevant government body re­ sponsible for preparing physical planning documentation) prepares a preliminary EIA. This is evalu­ ated by the Ministry of Environmental Protection (regional departments, inspectorates), which signs the agreement for determination of the construction site. In the case of projects of national impor­ tance, the determination of the construction site should be approved by the government. For certain categories of project, or if the preliminary EIA shows that the activity will have a significant effect on the environment, a full EIA is required. 10.1.2. Permit for construction

If the project documentation is approved by all boards, the municipal administration gives a permit for the project to be carried out. Project organisations undertake the project, according to agreement with the proponent. Project organisations and the proponent are responsible for the envi­ ronmental impact assessment (EIA). Under the Law on Environmental Impact Assessment of 1996, the following governmental bodies are involved in the EIA process: • Ministry of Environmental Protection (MoEP); • Ministry of Health Protection; • Fire Protection Department of the Ministry of Domestic Affairs; • regional administration; • municipal administration.

* Edited by Clive George on the basis of papers prepared by Irena Buciunaite and Mindaugas Raulinaitis. The paper has in part been updated and amended from a report first published by the Nordic Council of Ministers ( 1), as part of a co-operative programme between the Baltic and Nordic countries. 78

10.2. EIA LEGISLATION • •

Law on Environmental Protection, Vilnius, 21 January 1992. Temporary regulations for the control of constructional design. Approved by the Ministry of Construction and Urban Development by Order No. 171 of 11 August 1995. • Regulations of the Determination of a Construction Site and Approval of Project Docu­ mentation in the Ministry of Environmental Protection. Approved by Order No. 73 of 1 June 1995. • Law on Protected Areas. Approved by the Parliament of Lithuania by Order No. 1 -301 of 9 November 1993. • The Preparation Rules for the project: "Environmental Protection". RSN 153-93. Approved by the Ministry of Construction and Urban Development and the Department of Envi­ ronmental Protection by Order No. 154 -60 of 6 September 1993. • Law on EIA. Adopted by the Parliament of Lithuania on 15 August 1996. • Regulations Concerning Public Awareness of Proposed Activities and Implementation of Public Proposals. 11 November 1996. • Regulations on Public Hearings Regarding Physical Planning Documentation Projects. 18 September 1996. The new EIA law adopted in 1996 leaves the previous legislation largely in place, and: • empowers the Ministry of Environmental Protection to prepare a list of activities and territories for which a full EIA must be undertaken; • empowers the Ministry of Environmental Protection to prepare a list of activities for which a state expert review of the EIA must be undertaken (paid for by the proponent); • requires the proponent to identify mitigation measures; • specifies the public's entitlement to participate in the EIA process. The state expertise list was ratified by the government of the Republic of Lithuania in March 1997. It consists of eighteen types of proposed activities/objects (e.g. nuclear power plants, airports, highways, etc.) and includes some thresholds, mainly based on project size.

10.3. THE EIA PROCESS The process is summarised in figs 11.10.1 to 11.10.3. 1 0.3.1 . Project documentation

The project proposal must contain the following data: • a site plan of scale 1 :10,000 indicating the borders of the selected land area and the bor­ ders of any protected territories in the region (reserves, state parks, protected objects, protected landscapes), and boundaries of all kinds of protected zones; • a general map of the area of the project, with data on the sources of environmental pollu­ tion and green plantation; • an outline of communication networks; • project description which includes - technical and economic data - demand for natural and energy resources, their sources, capacity and qualitative characteristics - utilisation of waste from production - waste, waste water and air treatment methods and facilities, and their effectiveness - initial EIA of the project - risk assessment. - an account of the qualitative and quantitative characteristics of emissions to air.

79

The planning organiser presents to the MoEP an application for provisions

The MoEP supplies the planning organiser with relevant information concerning the territory in question (within 1 month)

The planning organiser prepares the preliminary decision on the physical planning documentation and submits it to the MoEP for comments and conclusions

The planning organiser takes into account comments from the MoEP and prepares the decision on the physical planning documentation

The planning organiser performs an initial EIA regarding the impact on the general environment, landscape, and biodiversity

The planning organiser submits to the MoEP: - the decision - the report on the consequences of the decision - the conclusions of the relevant parties of the initial EIA - the report on the outcome of the public hearings

The MoEP analyses all information submitted and makes the final decision (within 1 month) Fig. 1 1 .10.1. Preliminary EIA

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The proponent presents to the municipal administration an application for planning activity

The municipal administration performs screening according to the full EIA screening list

The proponent prepares the programme for full EIA and submits it to the relevant parties of the full EIA, including the public

The MoEP ratifies the programme, taking into account comments from the relevant EIA parties and the public

The proponent prepares the EIA report (according to the programme)

The relevant parties of the full EIA evaluate the EIA report

The proponent arranges public hearings

The proponent submits to the MoEP: - the EIA report - the conclusions of the relevant EIA parties - the report on the outcome of the public hearings

The MoEP analyses all information submitted and makes the final decision Fig. 1 1.10.2. Full EIA

81

If required, the MoEP organises a state expertise of the EIA

The MoEP, the relevant parties of the EIA, and licensed experts prepare an agreement on the performance of the SE, the SE programme, the schedule of the SE, and an estimation of costs

The experts submit their conclusions to the MoEP

The MoEP summarises the experts' findings and forwards comments to the proponent, who is obliged to take them into account

The MoEP makes the final decision concerning the proposed activity Fig. 1 1.10.3. State Expertise

10.3.2. Preliminary EIA EIA is the part of the project assessment which determines the impact of the planned activity on the environment. An assessment of the current environmental situation and evaluation of the fu­ ture situation are made. The process should meet the state norms and standards. The preliminary EIA is carried out for the purpose of evaluating the planning possibilities of the activity on the cho­ sen construction site. At the stage of selection of the construction site, the regional departments of the Environ­ mental Protection Ministry take part. They evaluate the preliminary EIA and approve the location of the proposed activity (sign the approval of the construction site selection). At this stage the regional departments evaluate the project proposal, which is presented by the proponent according to the requirements. These requirements are obligatory for all new projects and for reconstruction projects the size of which depends on the complexity of the planned activities. 10.3.3. Full EIA A full EIA is required for projects defined in a screening list prepared by the Ministry of En­ vironmental Protection, or if the preliminary EIA shows that the activity will have a significant im­ pact on the environment, particularly relating to emissions to the environment and use of natural resources.

82

The full EIA provides for a fuller evaluation of the planned activity and identifies potential approval conditions and impact mitigation measures that may be necessary in order to comply with the norms and standards. In the planning stage it is necessary to prepare a more detailed analysis of the ecological situation, prognoses for the planned activity, and an evaluation of the current situa­ tion. Scoping, although not mentioned by name, is required for each full EIA. The first step in the full EIA process is the preparation of the programme of environmental impact assessment, which is essentially a document determining the scope and contents of the environmental impact assessment process. The programme is to be prepared by the proponent and submitted to the participants in the EIA, including the public. After the programme has been approved by the participants in the EIA and public comments have been taken into account, it must be ratified by the Ministry of Environ­ mental Protection. Under the 1996 EIA Law, the EIA report must be prepared by the proponent. The relevant government parties must check whether the report meets the requirements of the adopted pro­ gramme, whether the impact on the environment meets existing environmental standards, limits and other requirements, and whether the proposed mitigation measures are adequate. The conclusions must be forwarded to the proponent within one month. The conclusions on the proposed activity are valid for three years after they are issued. 1 0.3.4. Recommended contents of the documentation (environmental protection section) The project proposal must include the EIA study in the chapter of the documentation named "Environmental Protection". This must be fulfilled according to the rules and norms which are stipulated in the document on State Construction RSN 153-93 prepared by the Ministry of Construc­ tion and Urban development and by the Ministry of Environmental Protection. 1) General Data on the Project • Project description: name of the project, location of construction site, purpose, production, construction time schedule, and the order of priorities; geographical situation of the construction area, evaluation of the territory from the historical/cultural and recreational point of view, its location in respect to other terri­ tories (state reserves, national and regional parks, strict nature reserves, protected zones and belts, territories of local and specific purpose) as well as sanitary protection zones of neighbouring enterprises; construction site description from the engineering and geological point of view. Fil­ tration and barrier properties of the soil and subsoil; horizontal and vertical fluid fil­ tration possibilities. Geochemistry, geophysical state of the soil and subsoil and con­ tamination; brief description of the technological process. Technological processes with negative impact upon the environment. New technologies and non-waste production pro­ cesses; - demand for natural resources (oil, gas, etc.) and raw materials, production of techno­ logical waste; - demand for and sources of electricity and thermal energy; - potential threats of the project, in relation to other projects and the natural environment. Potential accidents and aberrations in the technological process. Potential emissions to the environment in the case of accidents. Prevention of accidents and po­ tential measures to counteract after-effects; - data on physical and biological pollutants emitted from the project which may affect the environment; - components (water, atmosphere, soil, vegetation, animal life) which will not receive any impact from the project, or for which the impact will be so insignificant that the study section "Environmental Protection" will not include a relevant chapter (e.g. a chapter on "Water Protection"). 83

•

Design documents (copies of which should be enclosed in the binder of the "Environmental Protection" section): approval of construction site selection; data on valuable trees and other valuable plants on the site; data on the entomological, parasitological, soil microbiological conditions, chemical pollution and radiological contamination of the territory (if indicated in obligatory design conditions of the Hygiene Service); conditions of connection to the existing sewerage and rainwater drainage systems; data on background contamination of the surface water body, if it is a recipient of ef­ fluent; data on the atmospheric air background, or on the atmospheric emissions of neigh­ bouring enterprises; inventory data on air pollutant emissions from the existing projects in operation (for expansion or reconstruction projects); data on the emission of pollutants into the atmosphere, their treatment and utilisa­ tion; reference from the client on waste utilisation method approval; hygiene service conclusions on the project.

2) Water protection water demand water sources waste water treatment and sewerage systems measures for protection from water pollution drawings of equipment for water treatment 3) Air protection air pollution from the project the largest possible concentrations of emissions use of air treatment, amount of emissions prognoses of air pollution defending of sanitary zones possible emissions to the air and means of control air treatment in case of bad meteorological air conditions drawings of equipment for air treatment 4) Earth properties Soil protection - Vegetation protection Biota protection Bio-technics Penalties and Compensations for adverse environmental impacts Drawing of management of the territory 5) Bio-technics 6) Raw materials, waste, waste management 7 ) Physical and biological pollution from the project, including the impact on the environment The section on "Environmental Protection" depends on the complexity of the project and is different for each project. In the planning stage it is obligatory to provide a provisional account of the natural raw materials for which it is necessary to get a permit. It is necessary to obtain this permit before starting the activity. There are no specific requirements for post-implementation monitoring.

84

10.3.5. Projects approved at municipal or regional level Documentation for the following areas should be analysed and approved by the Municipal (Regional) Agency or by the Regional Environmental Protection Inspectorate: • engineering and infrastructure projects for city and residential estates (urban watersupply, sewerage, heating, gas, communication, electricity supply); • public roads for farmers, bridge construction and reconstruction projects; • separate buildings and farmstead reconstruction; • cemeteries; • forest transformation into building sites; • use of minerals (sand, gravel, building soil, peat, silt, limestone, dolomite, chalk) in less than 300,000 m• production and reconstruction projects; • land distribution. The regional department of the MoEP analyses and approves the project documentation for other projects not included in this list, and for projects in protected areas.

10.3.6. Projects approved at national level The documentation for the following projects should be analysed and approved by the Minis­ try of Environmental Protection: • projects of state importance: - general projects of state land use - state administrative division projects - trends, concepts, and development schemes of the natural economy sector - city water supply, sewerage and waste water treatment plants in Vilnius, Kaunas, Klaipeda, Siauliai, Panevezys, Alytis, Marijampole, Neringa, Palanga, Druskininkai and Birstonas; • establishment of documentation and design of industrial projects which are joint ventures with foreign firms; • lgnalina Npp, Kruonio Hydro-accumulation Station, Mazeikiai Oil Refinery Plant "Nafta" oil terminal in Butinge, PIA Plant of Kedainiai and other plants of such kind; • feasibility studies of projects planned in territories under particular protection conditions (nature reserves, national and regional nature parks, strict nature reserves and territo­ ries reserved to them); • projects of the Nemunas river bed, the Kursiu Lagoon, deepening works in the Baltic Sea coastal areas, and projects for off-shore construction in the Kursiu Lagoon and the Baltic Sea; • projects affecting ponds, clean-up of lakes, regulation of rivers; • the use of minerals (sand, gravel, construction soil, peat, silt, limestone, dolomite, chalk) in more than 300,000m3 production and reconstruction projects; • hazardous waste utilisation projects; • projects of special proposals and linear inter-regional projects such as highways, gas or oil pipelines; • airport construction and reconstruction projects; • repeatedly submitted projects.

1 0.4. QUALITY CONTROL OF EIA The requirements relating to the review of environmental impact statements are set out in the 1996 Law on EIA. Firstly, the proponent is obliged to submit the EIA report to the relevant governmental bodies for approval. The relevant bodies check "whether the full environmental impact assessment report meets the requirements of the adopted programme and if the effects on the environment caused by a proposed activity meet existing environmental standards, limits and other requirements". 85

The proponent must present the EIA report to the public and afterwards must submit it to the Ministry of Environmental Protection, together with conclusions issued by other relevant partici­ pants of the environmental impact assessment, including an analysis of public comments. Additionally, the quality of the EIA process itself is to be reviewed. The Law on EIA defines a procedure called "state expertise of the environmental impact assessment" which is obligatory for the proposed activities and objects included in a list prepared by the Ministry of Environmental Protec­ tion, and adopted by the government of the Republic of Lithuania in March 1997. State expertise of the environmental impact assessment may be performed only by licensed EIA experts. The licensing of experts is governed by regulations to be prepared by the ministry. The Law on EIA empowers the Ministry of Environmental Protection to organise the state expertise (the proponent is obliged to cover all costs) and defines the procedure of state expertise in some detail. First, the state expertise programme is prepared in consultation with the bodies involved in the EIA, and the experts are selected on a competitive basis. Second, the Ministry of Environ­ mental Protection, together with experts and the proponent, prepare an agreement "on the perform­ ance of the state expertise of the environmental impact assessment" estimate all expenditures, and prepare the timetable. Experts are required to make their conclusions and submit them to the Ministry of Environ­ mental Protection. The ministry summarises the findings of the experts and forwards them to the proponent, who is obliged to take them into account. As stated by the law, "fulfilment of the conclu­ sions of state expertise of environmental impact assessment is controlled by the Ministry of Envi­ ronmental Protection, which makes the final decision concerning the proposed activity".

10.5. PUBLIC INVOLVEMENT IN EIA The general rights of the public in the EIA study and the carrying out of the activity are set out in the 1992 Law on Environmental Protection. Under this law the public has the following rights: • to have access to the correct and full ecological information; • to take part in project studies and implementation; • to demand the cessation of any dangerous environmental impact of the project; • to request the state expertise for environmental impact; • to process the public expertise for environmental impact. On 4 May 1994 , the Ministry of Construction and Urban Development approved the Tempo­ rary Rules of the Public Study of Project Documentation. The procedure for public discussion of documents for proposed new or reconstruction municipal projects is foreseen by the municipal board in its decree, which should contain the following: • the procedure by which the proponent should announce the new project proposal to the public (media, in writing, or in other form); • the place and means by which the public can be informed of the aims of the project; • the stage of the process at which the proponent is obliged to give the conclusions from the public comments. Under these rules the project proponent is obliged to do the following: • according to the order of the municipal board decision, within ten days of the establish­ ment of the order, to make a public announcement about the project, and the timing, du­ ration and arrangements for the presentation of the project to public; • to introduce the public to the requirements for carrying out the institutional conditions, with materials for illustration (related to the location, boundaries, site, engineering supplies, urban conception, nature and cultural values, with possible limits for the planned site, for construction of buildings, etc. ); • to register the public's comments. The 1996 Law on EIA contains several provisions relating to public participation. First of all, in the chapter on general provisions the public is defined as one of the participants of the EIA proc­ ess. Concerning the procedure of an EIA, the law defines several stages at which the proponent or the planning organiser must organise public hearings, taking public comments into account. The first step of public consultation is during the initial EIA: the planning organiser must present the results of the initial EIA to the public. Also, when the Ministry of Environmental Protection is making the

86

final decision, it should take into account the outcome of public hearings. In the process of the initial EIA, public hearings are organised according to the 1996 Regulations on Public Hearings Regarding Physical Planning Documentation. The regulations consist of 36 articles and 52 paragraphs, which serve to define the process of the public hearings in some detail. The regulations also identify the appropriate methods of public participation, set the time limits, and assign the duties and rights of the participants in the public hearings. During the process of the full EIA, the first step which includes public participation is the public presentation of the EIA programme. The organisation of the presentation is the responsibility of the proponent, who is also obliged to take public comments into account. The EIA report is subject to public evaluation as well. When the proponent submits the report to the Ministry of Environ­ mental Protection, he or she must include the analysis of public comments together with the conclu­ sions issued by the other relevant parties of the environmental impact assessment. The Law on EIA contains a separate article devoted to the publicity of the EIA process. It briefly defines the rights of the public and the duties of the relevant parties of the EIA, stating that "the regulations for public participation in the process of the EIA are to be adopted by the govern­ ment of the Republic of Lithuania" (article 12 , paragraph 4 ). These Regulations Concerning Public Awareness of Proposed Activities and Implementation of Public Proposals, were adopted in November 1996 . They are less detailed than the Regulations on the Public Hearings Regarding Physical Plan­ ning Documentation. This legal document briefly defines the procedure for public participation in 14 articles and 6 paragraphs, sets the time limits, and identifies the appropriate methods for public con­ sultation.

REFERENCES Buciunaite, I. and U. Kjellerup ( 1996), "Lithuania", in H. Kristoffersen and A. Tesli, (eds.), Environmental Impact Assessment in the Baltic Countries and Poland: Screening and Quality Control, Nordic Council of Ministers, Copenhagen, Denmark.

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1 1 . ENVI RONM ENTAL I M PACT ASSESSM ENT I N MOLDOVA Oksana Kiseleva*

1 1.1. BACKGROUND The procedure for environmental impact assessment, in the Western sense, has no tradition in Moldova. In the Soviet system, the policies for nature protection and use of natural resources were ini­ tiated by the central authority and then introduced into the Republic's legislation. Thus Moldova in­ herited the regulatory concepts of the state environmental review (environmental expertise) and the environmental impact assessment (OVOS). Comparing the history of natural environmental damage in Moldova with the history of EIA it can be said that since the 1970s there were some requirements in economic legislation for the envi­ ronmental review of projects, plans and programmes by special expert committees. However, in ac­ tual practice a tradition of neglect of the environmental consequences of economic activities had de­ veloped. This resulted in long-term negative environmental and economic impacts in the Republic. Among the main industrial and agricultural projects and policies in the Soviet time in Moldova were: • the transfer of water from Lake Yalpug into the water reservoir in Taracliea for the irri­ gation of 170,000 hectares of land; • the placing of a cattle-breeding complex on a landslide area in Orhei, without protective measures; • the development of landslide areas for arable land and gardens; • the introduction of the system of washing away the manure in cattle-breeding complexes without regard to water quality and water-sludge treatment; • the siting of metallurgical works without due regard to meteorological conditions, causing air pollution in Ribnita; • the deepening of the Nistru river for improving navigation. The idea of this project was to ship road construction material by river transport. As a result of the implementation of this project the level of groundwater fell, and it also had a very adverse impact on fish re­ sources. Species of the most valued fish, such as sturgeon, completely disappeared; • the general plan for Chisinau was elaborated without due regard to the environmental situation in the town; • the Duna-Nisporeni canal project (which was not implemented).

1 1.2. INTRODUCTION OF STATE ENVIRONMENTAL REVIEW In the 1980s a number of regulations required SERs, and some basic principles of EIA at the planning stage of economic activities were enacted. On 3 July 1985 the Supreme Soviet of the USSR directed the Council of Ministers to develop the provisions of SER for new equipment, technologies, materials and economic projects. In August 1985, a State Expert Committee within the State Planning Department of Moldova was created to review the most important problems of economic and social development. Along with this committee, experts from different departments conducted reviews of projects to check their

* With a contribution from Gheorghe Duca. 88

compliance with existing environmental standards and legal provisions in the field of nature protec­ tion. Real positive changes took place in the late 1980s. A regulation of the Council of Ministers, of 10 October 1986, entrusted the Institute of Geography of the Academy of Sciences with the task of conducting the environmental assessment of industrial projects in the territory of Moldova. To meet the environmental requirements of economic activities a three-stage mechanism was developed: 1) environmental assessment of projects (carried out by a group of scientists); 2) project environmental review (conducted by state experts); 3) environmental control during the period of construction and operation. In 1986 the State Planning Department directed the Academy of Sciences to carry out the environmental assessment of the second stage of the following projects developed earlier: • arable land irrigation from Lake Yalpug; • thermal power station on the Duna- Nisporeni canal; • general plan of Chisinau development; • deepening works on the Nistru river. On 10 March 1988, by the edict of the Supreme Committee of the Soviet Republic of Moldova, the Ministry of the Environment was created. This step was taken to introduce a more complex ap­ proach to environmental protection, breaking down the tradition of a media-oriented approach to natural resources control. On 7 January 1988 the Central Committee of the Communist Party and the Council of Minis­ ters issued the Decree on the Radical Perestroika of Nature Protection. As a consequence, on 12 April 1988 analogous decree was issued in Moldova. This decree empowered the Ministry of the Environ­ ment to conduct the state environmental review of plans, programmes, new materials and technolo­ gies, as well as of individual projects. To accomplish this task a special department - the State Envi­ ronmental Review Department - was formed within the Ministry of the Environment. It should be mentioned that the late 1980s were a time of radical reforms (perestroika). Pub­ lic concerns were raised, scientists tried to stop environmental vandalism, and finally all projects conducted in the territory of the Republic were suspended and then terminated, due to economic destabilisation in the country.

11.3. LEGISLATION SIN CE IN DEPEN DEN CE After the breakup of the Soviet Union and the declaration of independence, Moldova started to enact its own environmental legislation. In the field of environmental protection Moldova now has a mixture of recently enacted laws and legal provisions alongside those inherited from the Soviet era. The Constitution of the Republic of Moldova, adopted on 29 June 1994 , provides for the right to a healthy environment and free access to information concerning the quality of food and products for domestic use and imposes obligations on every citizen to protect the natural and cultural envi­ ronment. By constitutional provision, the state has to assure the rational exploitation of land and natural resources. On 16 June 1993 the Parliament of the Sovereign Republic of Moldova passed the framework Law on Natural Environmental Protection. Article 11 of the law empowers the Department of Envi­ ronmental Protection (the former Ministry of the Environment) with priorities for environmental pro­ tection and rational use of natural resources. It stipulates that the Department of the Environment is responsible directly to the Parliament (it was previously under the jurisdiction of the Council of Ministers). Article 16a stipulates that, for the accomplishment of its task, the department is empowered to conduct state environmental reviews which are under its exclusive competence. Article 21 defines the state environmental review as: • an activity of environmental protection aimed at the prevention or the reduction of pos­ sible direct, indirect and cumulative effects of new economic activities on the environment and human health; and • the assessment of the environmental impact of economic activities which can have a negative effect on the environment, human health and welfare at the present time and in the future. 89

Article 23 provides a list of programmes which require mandatory environmental review. At nearly the same time a number of other laws which contain provisions for EIA were adopted. Article 11 of the Water Code adopted on 22 June 1993 requires state environmental review for activities which could have an adverse effect on the condition of water resources. The Soil Code, adopted on 15 June 1993 , in article 36.2, requires SER for waste and the dumping of harmful sub­ stances. Article 48 stipulates that SER is to be conducted to guarantee the study and rational use of soil resources. In 1994 the State Inspectorate within the Environment Department developed the procedure for environmental audit and specified the issues to which it should apply. At the same time all indus­ trial and agricultural activities operated in the territory of the Republic were registered, and for more than 60% of them environmental audit was conducted. On 7 March 1996, the Department of Environmental Protection issued an Instruction on the authorisation and realisation of state environmental review.

11.4. THE 1996 LAW ON ENVIRONMENTAL REVIEW AND ENVIRONMENTAL IMPACT ASSESSMENT In 1995, Moldova signed the Espoo Convention on Environmental Impact Assessment in a Transboundary Context. Partly to accomplish the obligations imposed by the Convention, on 29 May 1996 the Parliament passed the new Law on Environmental Review and Environmental Impact Assessment. Very strong pressure on the government to enact this law came from the NGOs. In May 1996, an independent public expertise was created by the environmental NGOs' Co-ordination Committee. This law establishes an EIA procedure and requires the preparation of EIA documentation and explicit consideration of environmental factors at an early stage in the decision-making process. The appendix to the law covers a list of the activities which are likely to cause significant adverse impact on the environment and which require mandatory EIA. The law requires the consideration of possible alternatives and provides an opportunity for public participation in relevant EIA proce­ dures. Article 6 stipulates that state environmental expertise is compulsory for plan and proj ect documentation for activities which are likely to cause an adverse impact on the environment. Among the projects, plans and programmes which are subject to environmental expertise are listed drafts of new laws and legislative provisions, as well as international conventions and treaties related to the use of environmental resources. Chapter II of the law defines the system of SER. Article 7 requires high qualifications and ten years practical experience for state experts. The representatives of different departments may participate in the process of environmental review when special expertise is needed. Chapter III of the law contains the provisions for public environmental expertise. Article 9 stipulates that public environmental expertise can be conducted only simultaneously with, or before, the state environmental expertise and is not applicable to projects involving state secrets and state security. The public has the right to send proposals and comments to the State Environmental Ex­ pertise Department and to receive plan and project EIA (OVOS) documentation from the project de­ veloper. Article 14 stipulates that the conclusion of the public environmental expertise serves as a recommendation for the State Environmental Expertise Department and can be published in the mass media. It should be mentioned that this new EIA Law was drafted and passed by the government in a very short period of time. There had been no public discussion on its provisions. Thus, in the near future, the monitoring of this law by the environmental NGOs can be expected, especially of that part of it related to public participation. Chapter V contains requirements relating to the procedures for state environmental exper­ tise. The conclusion of the SEE is produced after studying the EIA documentation. Chapter IV de­ fines the requirements relating to EIA (OVOS) and its procedure. A separate appendix to the law covers these matters in greater detail. A significant part in the field of EIA development is now played by foreign agencies . Since

90

1995 the American agency USAID has carried out a research project on risk assessment and man­ agement for three different areas of the Republic. The study of EIA was recently introduced into the educational process. In high schools and universities a special course on EIA has been included in the programme. Due to the decrease of economic activity in Moldova today, there are few projects which are likely to cause significant environmental impact, although one which should be mentioned is the con­ struction of a terminal on the Duna river for the receiving of fuel.

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1 2. ENVI RON M ENTAL I M PACT ASSESSM E NT I M PLEM ENTATION I N MONTEN EG RO Vladan Raznatovic, Marina Markovic 1 2. 1 . PROCEDURE 12.1.1. E I A Legislation Government Decree No. 145 (Official Gazette RM No. 14/1997 ) on the Assessment of the Envi­ ronmental Impact of Projects was published on 16 May 1997 , in accordance with the Law on Envi­ ronmental Protection (Official Gazette RM No. 12/1996). This was the first EIA regulations had been introduced in Montenegro. The process of drafting and adopting this law was very long due to the lack of previous experience in this field, and has resulted in a piece of legislation which, in fact, was a compromise between existing legislation based on the planning system, and experiences in Western Europe. During the drafting process there were conflicts of competence between the different minis­ tries, particularly the Ministry of Environmental Protection and the Ministry of Urban Planning, which weakened the original text further. Prior to this, it was prescribed by the Law on Investments that the environmental impact of certain large projects should be evaluated and environmental studies produced, but neither proce­ dures nor guidelines were given for the process. This deficiency of the law resulted in the fact that these studies were frequently not produced, or that their contents were irrelevant. The EIA Decree regulates the process itself, prescribes the contents of the environmental statement, and lists the projects for which EIA is mandatory in its annex. Compared to EU legisla­ tion, both annex I and annex II projects of EEC Directive 85/337 are included in the list of projects for which EIA is mandatory in Montenegro. The decree, however, does not distinguish among the proj­ ects on the basis of their size and productive capacities, i.e. does not prescribe threshold values. The determination of EIA obligations for modifications to existing activities also follows the same approach. 12.1.2. Starting point for EIA: participants The decree entitled the Ministry of Environmental Protection to act as the competent authority. There are no obligatory provisions for the environmental authority to request addi­ tional opinions, such as, for example, those of the public health authority or nature protection insti­ tutions. The EIA procedure is not well developed, and some important steps are missing. In practice the procedure starts when the proponent submits a full environmental impact Statement (EIS). There are no developed screening procedures, but all projects listed in the decree are obliged to sub­ mit a full EIS. The proponent is obliged to submit an independent expert report in addition to an EIS. On the basis of these, the ministry makes a decision which can either be the refusal or the granting of the environmental permit. The Ministry of Environmental Protection may also conduct a public hearing in the case of projects having a significant impact on the environment. 12.1.3. Legal Framework The general framework for environmental protection in Montenegro is defined by the Law on the Environment which was adopted in April 1996. On the basis of this law numerous other acts need to be adopted to define legally more specific requirements. The first of these to be adopted was the EIA Decree. Other provisions which are still passing through the governmental procedure are the Regulation of the Control of the Utilisation and Trade in Wild Plants and Animal Species, the Crite92

ria for the Categorisation of Protected Objects of Nature, the Regulation on Economic Instruments in Environmental Protection, Waste Management Regulation, etc. A significant proportion of all the issues connected with land use, urban planning, construc­ tion and development in general in Montenegro, are regulated by the Law on Physical Planning and Arrangement and the Law on Building and Financing of Investments (SRCG 29/90). This fact creates a significant problem for the full implementation of the EIA process, since both of the laws are based on the principles of a planned economy and are therefore out of date. The Law on Physical Planning and Arrangement (1995) prescribes models of master plans, physical plans and realisation of urban plans. It also prescribes procedures for their co-ordination and relevant authorities in terms of the enactment of plans and their realisation. A master plan is a physical plan which covers the territory of the whole Republic. It should direct development according to natural and social needs and poten­ tial, as well as according to the long-term objectives of economic policy. The current Master Plan was adopted by the Montenegrin Parliament in 1984 and has the power of law. Based on this plan, sub­ ordinate plans (physical plans, urban plans, etc.) have been developed. Physical plans prescribe the basis for spatial organisation of the territory for which they are intended. Both types of plan give a detailed picture of land use. Either the Ministry of Urban Planning or local authorities issue construction permits for all the projects which comply with the relevant physical or urban plans. The majority of projects which are listed in the EIA Decree annex are under the competence of the Ministry of Urban Planning. The EIA regulation does not clearly identify the stage of the planning process at which EIA procedures should be initiated. A potential investor is obliged to apply to the Ministry of Urban Planning and Development first, which ensures that the proposed project is in accordance with the physical plan. If this condition is met, the investor has to provide several permits (for example envi­ ronmental, water-use, public health, hazard protection, etc., depending on the type of project) prior to obtaining building permission. The Ministry of Environmental Protection deals with environmental permits, i.e. requests the submission of environmental statements for all the projects listed in the annex of the EIA Decree.

12.2. PUBLIC PARTICIPATION The EIA Decree does not create conditions for public participation in the EIA process. The Ministry of Environmental Protection is the only authority in the decision-making process, i.e. the existing regulation requires neither public involvement nor the involvement of other institutions. The ministry may choose whether or not to organise a public hearing on the environmental statement, at the very end of the EIA process. A public hearing does not therefore allow the public or other con­ cerned institutions any significant influence. In this way, the EIA Decree fails to ensure that the public is fully informed about a project proposal and its environmental implications, and makes the public hearing a somewhat cosmetic procedure.

12.3. EIS PREPARATION The EIA Decree lists the following required elements of the environmental statement: • description of the location; • analysis of alternatives considered; • description of the project and its technology; • analysis of the quality of different elements of the environment before the project has been started; • illustration of the possible changes caused by the project and its environmental impact; • mitigation measures in normal circumstances and in case of accidents; • detailed discussion of the accuracy of data and applied methodologies and gaps in infor­ mation and knowledge; • proposed monitoring system; • non-technical summary. 93

The ministry has published guidelines with detailed information about each of the elements which must be included in the environmental statement. An EIS can be prepared only by registered agencies that are responsible for the content of the submitted EIS and for the assessment methods employed. The EIS must be reviewed by an expert committee (engaged by the developer) and the review report must be submitted together with the statement. The decree does not clearly identify review procedures. As previously underlined, there is no requirement for an official opinion from specialised authorities.

12.4. Q UALITY CONTROL Quality control of the submitted environmental statements has not been regulated by the EIA Decree. The only available way of controlling the quality of prepared statements is through the expert committee review. However, since the procedures for the review are not clearly identified it is questionable whether it will help in improving quality control. Another important issue is whether an expert committee engaged by the developer will give an objective review of the statement.

12.5. POST-MONITORING The EIA Decree requires the developer to suggest all the parameters which need to be moni­ tored, as well as the monitoring system, in the environmental statement. After the project has been developed, monitoring procedures must comply with legal requirements.

12.6. STATISTICS Since the EIA Decree was adopted only recently, the Ministry of Environmental Protection has not received any statements at the time of writing.

12.7. EFFICIENCY OF EIA Despite all the weaknesses discussed in this paper and the fact that the introduction of EIA legislation in Montenegro has been delayed compared to other Central European countries, the EIA Decree can still be regarded as an important piece of legislation. This is particularly true since the EIA Decree is the first law recognising the need for the assessment of the environmental impact of projects and including EIA in the formal decision-making procedures. There are, however, several limiting factors which will significantly influence the efficiency of the EIA system developed under this law: • insufficient environmental legislation and institutional infrastructure; • inadequate planning system; • conflicting laws and overlapping of competence among governmental departments; • poor enforcement of the existing laws; • exclusion of the public from the EIA process; • lack of experience, knowledge and experts; • lack of funds for environmental protection. It is hoped that further practical experience in developing the EIA system in Montenegro will bring about improvements in the current laws in the near future.

REFERENCES Raznatovic, V. and V. Buskovic ( 1997), Environmental Management in Montenegro, Podgorica, Montenegro. Wood, C. ( 1995), Environmental Impact Assessment, a Comparative Review, Longman Scientific and Technology, Harlow, UK.

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13. ENVIRONMENTAL IMPACT ASSESSMENT IN POLAND Witold Woloszyn*

13.1. IN TRODUCTION Some elements of EIA were introduced in Poland at the beginning of the 1980s. In reality, however, more emphasis has been given to the use of this tool since the early 1990s when a number of substantial political and economic changes took place in Central and Eastern European countries. From a regulatory and administrative perspective these changes have been accommodated within procedures and legal systems adopted under the previous regime. Consequently, to understand the current situation with respect to EIA in Poland it is necessary to review both past and present expe­ rience and to see how terminology, concepts, legislation and procedure have evolved.

13.2. EIA TERMIN OLOGY The term environmental impact assessment (EIA) does not have a broadly accepted definition and its exact meaning and interpretation differs throughout the world. However, there is a wide­ spread consensus within the scientific community that the notion of EIA refers to a process which involves the production of a report - an environmental impact statement (EIS) (Wathern, 1988). There are various problems concerning EIA terminology in Poland. So far, no official EIA terminology has been adopted in the country and even the existing regulations do not contain any explanations. The scientific community uses the following words in discussions of EIA: report, elabo­ ration, method, procedure, analysis and technique. However, since 1990 more and more authors have started to include the notion of "process" in their publications. Rzeszot and Wood (1992) emphasise that in Poland EIA means both the process and the document (EIS). However, they state that, in practice, EIA refers to a document. A similar point of view is manifested by Jendroska and Sommer (1994) who stress that the Polish legislation regards EIA as a document not as a process. In fact, the regulations do not differentiate between the process and its outcome (EIS). Thus, only one term is used (Ocena Oddzialywania na Srodowisko). It is worth highlighting that, officially and legally, EIA in the Polish context means documentation. Such a situation seems to have its roots in the development of the EIA concept in Poland which is discussed below.

1 3.3. DEVELOPMEN T OF THE EIA CON CEPT The idea of introducing an EIA system in Poland has its origin in the late 1970s. At the end of the decade considerable work was carried out in co-operation with the World Health Organisation and UNEP on the possibilities of applying EIA in the country (Kassenberg, 1990). In 1980 , the Envi­ ronmental Protection Act created a legal framework for environmental protection in Poland. Accord­ ing to article 70 of the act, provincial authorities were entitled to require from a developer or the owner of an existing works an "opinion" on the environmental impact of their activities. This opinion had to be prepared by an appropriate expert selected from a special list of authorised practitioners established and kept by the Minister of Environmental Protection (EP). It was the developer who had to pay for the preparation of such an opinion. No additional guidelines were provided by the law, * With contributions from Gabor Deak and Krzysztof Pachocki.

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either as to the determination of developments for which that expertise would be required, or as to the format and content of an opinion. The requirement concerning preparation of an environmental impact opinion was not obligatory which, consequently, led to its use being limited. Moreover, the lack of relevant experience and training on the part of civil servants and practitioners was another shortcoming in that respect. As a result, during the period between 1980 and 1984 , these regulations were applied extremely rarely. On 12 July 1984 the new Spatial Planning Act was established. In accordance with this law, the Minister of EP and the Chief Sanitary Inspector were formally entitled to approve directions for the location of developments exceptionally harmful to the environment and to human health. Such developments were to be specified by the minister in agreement with the Minister of Health and So­ cial Welfare. On 27 March 1985, the Chief Minister of the Environmental Protection and Water Manage­ ment Office published an Order specifying the categories of developments particularly harmful to the environment and human health. On 27 June 1985, the Council of Ministers issued regulations to the Spatial Planning Act 1984 , describing the classification of developments and the scope, principles and procedures for planning their location. Under these provisions, the provincial governor (voivode) was entitled to select an expert from the minister's list to prepare such an opinion. However, the regulation did not play any significant role in the environmental management and decision-making processes of the time. In the second half of the 1980s, environmental issues attracted more public and, conse­ quently politicians', attention. On the other hand, it was a time of fundamental political changes in Eastern European countries. In 1989, during the "Round Table" Conferences, several agreements concerning environmental policy were reached. The final protocol, issued in March 1989 at the Ecol­ ogy Group Round Table, stressed the necessity of using EIA as a formal tool to assist implementation of environmental policy. It was suggested that EIA should be applied to proposed and existing devel­ opments and that an independent commission should be established as an EIA review body (Kozlowski, 1990). Thus, EIA in Poland was thought to be both a tool to help in the authorisation of new projects - as adopted, for example, in EC countries and broadly known as environmental impact assessment, and also a kind of environmental audit - as introduced by the EC as an environmental management tool applied to existing developments. In 1989, some amendments were made to the Environmental Protection Act of 1980 in order to realise the Protocol's agreed tasks. With respect to EIA provisions, the term "environmental impact opinion" was replaced by the term "environmental impact assessment" and the Minister of Environ­ mental Protection, Natural Resources and Forestry (EPNRF) was authorised to establish criteria for the preparation of such documents. In December 1989, the Minister of EPNRF issued the Order es­ tablishing the EIA Commission which effectively came into existence in early 1990. An important piece of EIA legislation was created on 23 April 1990. The Minister of EPNRF published an Executive Order on developments exceptionally harmful to the environment and to hu­ man health, and on the requirements to be fulfilled by environmental impact assessments for proj­ ects and existing developments, performed by experts. The scope of projects subjected to EIA was widened to include projects which may lead to a deterioration in the state of the environment. In fact, the regulation replaced a similar one issued on 27 March 1985, but added a specification as to the scope of the EIS to be produced. In 1991 at Espoo, Finland, Poland signed the Convention on Environmental Impact Assess­ ment in a Transboundary Context, which obliged the country to develop national procedures for evaluating the likely impact of a proposed activity on the environment. Poland ratified this Conven­ tion in 1997. This international agreement has had an important influence on accelerating efforts towards the development of the EIA concept. Since then, numerous EIA options have been discussed and some practical steps have been taken. In 1994 and 1995 a number of new pieces of environmental law were adopted and, as a conse­ quence, the existing EIA provisions had to be changed to some extent. It is worth noting that a form of strategic environmental assessment (SEA) - the environmental appraisal of local land-use plans - was introduced into the Polish EIA system. In reality, this document does not constitute an inte­ gral part of the plans but is thought of as a set of advisory materials useful in the decision-making process. The most important acts which were enacted at that time are: • the Geological and Mining Act of 4 February 1994 ;

96

• the Building Law of 7 July 1994; • the Land-Use Planning Act of 7 July 1994; and • the Highways Construction Act of 27 September 1994. The above legislation is accompanied by many specific regulations (executive orders). In re­ spect of EIA these are: • the Order by the Minister of EPNRF of 9 March 1995 on the requirements which are to be met by the prognosis concerning environmental impacts resulting from the implemen­ tation of a local land-use plan; • the Order by the Minister of EPNRF of 13 May 1995 on the qualities of developments harmful to the environment and human health and on environmental impact assess­ ments; • the Order by the Minister of EPNRF of 5 June 1995 on the EIA requirements concerning the construction of highways. It seems that the development of EIA in Poland started in 1980. However, there is no general consensus on its introduction in practice. Jendroska and Sommer (1994) state that "It is the common opinion in Poland that EIA was introduced into the legal system in 1980 through the EPA 1980". On the other hand, Rzeszot and Wood (1992) argue that EIA was implemented in 1990 through the Min­ ister of EPNRF's Executive Order. Starzewska (1988) does not mention specifically that the EIA sys­ tem was adopted in Poland in the first half of the 1980s, but she does refer to the requirement to pre­ pare an "opinion" and an "assessment" of environmental impacts, quoting the EPA 1980 and the Spatial Planning Act 1984 respectively. In accordance with the new environmental legislation, EIA is still seen as a document and it is strongly connected with the planning procedure. The most impor­ tant features of the Polish EIA system are analysed in the next parts of this paper.

13.4. EIA, SEA AND THE PLANNING SYSTEM 13.4.1. The main features of the planning system in Poland The planning legislation is now consolidated in the Spatial Planning Act of 1994. It was ef­ fectively fully implemented by the beginning of 1995. The purpose of the planning provisions is to promote long-term sound management, from the social, economic and environmental points of view, of land and the physical environment in general. Planning is conducted at each level, and there is a progression from more generalised policy making at the national and regional levels to specific ac­ tions taken at the local level. At present, the central government is responsible for formulating spatial development policy at the national level as well as for co-ordinating the implementation of projects and programmes aiming at the realisation of publicly desired goals in the country. National spatial policy is to be in­ cluded in the document called "Conception of National Spatial Policy". This document has not yet been adopted At the regional level, each voivode prepares a document called "the Voivodeship's Spatial De­ velopment Study". The study describes the directions and goals of regional planning policies, as well as indicating the means of their implementation, taking into consideration the national planning framework. It can be regarded as a database of useful information for the preparation of local plans and should be considered by local authorities (Wysocka, 1996). A similar document is prepared at the local level (commune) and is called "Conditions and Directions of Local Spatial Development". It creates the basis for the production of local plans. The mentioned planning documents are not legally enforceable. It is a local plan which plays a key role in the planning system and constitutes the legal basis for a number of decisions to be taken. Figure 1 presents the position of a local plan in the planning system in Poland and its relationships with other planning documents. The planning system is of central importance in many areas of environmental law, especially when used in conjunction with other regulatory controls. Local authorities have been placed in a key role in the control and management of land use. Self-governmental bodies are responsible, at the lo­ cal level, for decisions concerning the location of all developments.

97

National Environmental Policy

National Nature Conservation Strategy

National Policy for Spatial Development

Voivodeship's Development Programmes Negotiations . . . . . . . . . . . . . . . . . . . . . . Various pieces of environmental law

l

•

1

l+-t

14----t

Other Framework Documents

Central Government Programmes and Project

1. . . .

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. . . . . . . . . . . . . . Negotiations

Voivodeship's Spatial Development Study

Environmental Protection Plans of National Parks, Landscape Parks and Nature Reserves

•

!

I,

I,

Conditions and Directions of Local Spatial Development

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Local Plan for Spatial Development

: :

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Decision on Construction and Land Management Conditions (Location Decision)

Construction Permit

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Fig. 1 1 . 1 3.1 . The anticipated structure of the Polish planning system

Each permanent change in the use of land requires the determination of so-called "Construction and Land Management Conditions" (CLMC). The findings of an administrative deci­ sion must be based entirely on, and be compatible with, local plans or with other appropriate legisla­ tion where such plans do not exist. CLMC should take into account the requirements of a local plan and existing special regulations as well as any third parties' interests. The decision whether or not to grant CLMC (location decision) is based on an EIA report. The second step in the location procedure is the process of obtaining a construction permit. At this stage the developer is obliged to specify the design of his or her project in detail and incorporate into it all appropriate environmental mitigation measures taking into account the requirements of CLMC. He or she must also obtain all the specific environmental permits (pollution permits) before the construction permit is granted. In order to obtain the required permits the developer must pre­ pare the appropriate documents, one of them being an EIA for the project design. At this stage an EIA report deals mainly with technology assessment and the environmental mitigation measures proposed by the developer.

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13.4.2. Local plans Local planning authorities are responsible for producing spatial development plans, which then guide or influence development in the areas covered. There is no national plan and no regional plans. In the light of the existing legislation local plans are the most important planning documents in the country. Local plans consist of written policies and specific land-use allocations. They determine, amongst other things, the following issues: different land functions and boundaries between them; public areas and the distribution of public services, as well as boundary lines between designated public areas; technical infrastructure; and boundaries and land management principles for protected objects and areas. Additionally, local plans are able to determine special conditions for land manage­ ment from the viewpoint of environmental protection, agriculture, forestry and natural resource management. Besides, they can also incorporate local construction standards and principles. There is a duty to include environmental measures in a local plan. The appropriate regula­ tions related to this issue are dispersed amongst a number of acts currently in force, for example: the Nature Conservation Act of 1991, the Environmental Protection Act of 1980, the Geological and Mining Law of 1994 , the Water Law of 1974 , the Forest Law of 1991, the Act on the Protection of Ag­ ricultural and Forested Lands of 1995. It is said, however, that the most effective tools for ensuring real environmental protection in land-use plans are the provisions for environmental management plans prepared for nature reserves as well as landscape and national parks (Gorzym-Wilkowski, 1996). Their findings must be incorporated into local plans (see fig. II.13.1). The local planning authority must approach a wide range of appropriate bodies with a draft plan, and make it available for public comment before the final approval. It is obligatory to assess the potential environmental impact resulting from the implementa­ tion of the local plan. In the case of changes to the existing plan the same procedure is applicable and obligatory, without any exceptions or discretion. The document which contains information on envi­ ronmental impact is called "Prognosis of Environmental Consequences of the Local Plan Implemen­ tation". The Prognosis is regarded as a form of SEA in the country. Its main features are discussed in the following section of this paper. 13.4.3. Strategic Environmental Assessment provisions Strategic environmental assessment was introduced in Poland on 9 March 1995. The appro­ priate Order by the Minister of Environmental Protection, Natural Resources and Forestry issued at that time contains provisions as to the environmental appraisal of local land-use plans. It specifies the general scope of issues which should be considered in the SEA documentation and indicates vari­ ous sources of information to be used in the process of its preparation. In the light of the regulations, SEA is seen as a document and, consequently, there are no specific SEA procedures. It is not left to the discretion of local authorities to decide whether or not SEA is needed. As a result, even minor changes to a plan are subjected to SEA. The current legisla­ tion does not specify the form of SEA reports or the methods to be used in their production. It is left to the discretion of the experts as to how detailed these documents should be and in what way they are to be presented. There is no list or register of experts who are the only bodies authorised to pre­ pare SEA documentation, as is the case with EIA. The SEA exercise should be carried out simultaneously with the plan-making process. There is a firm requirement to consult the public on the plan before its final adoption. In reality, this document does not constitute an integral part of the plans but is thought of as a set of advisory materials useful in the decision-making process (Hauser et al., 1995). It is not clear, however, to what extent it should be used by the appropriate authorities and whether or not its find­ ings must be taken into account at the planning approval stage. Presumably, in practice, a plan can be adopted without taking into account the SEA conclusions (Babuchowski, 1996 ; Gorzym-Wilkowski, 1996).

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1 3.5. EIA LEGISLATION IN POLAND The legal requirements concerning environmental protection in Poland are dispersed amongst a number of acts currently in force. This characteristic feature of the Polish legislation system is also applicable to EIA provisions. EIA law is closely connected with the planning procedure and is included in some statutes and associated regulations. The framework EIA law is created by the Environmental Protection Act of 31 January 1980 (the uniform text, with amendments, was published on 15 February 1994) and the Spatial Planning Act of 7 July 1994 . The Geological and Mining Act of 4 February 1994, the Building Law of 7 July 1994, and the Highways Construction Act of 27 September 1994 are also important in this context. The specific EIA requirements are incorpo­ rated into three executive orders issued by the Minister of EPNRF in 1995 which have been men­ tioned in the previous section. These provide the basic formal provision, but a number of other acts should also be taken into account when considering EIA and development location procedures in Po­ land. Polish law interprets EIA as a document. This document (report) is called an "Environmental Impact Assessment" (Deena Oddzialywania na Srodowisko). However, the regulations do not define it unequivocally. The 1995 executive orders specify a broad scope for the content of different EIA re­ ports. It is the Land-Use Planning Act of 7 July 1994 which describes in detail the location proce­ dure, as well as the procedure for the making of local land-use plans, and indicates the stages at which EIA reports are required. It should be added that there is separate EIA legislation concerning highway construction, and some provisions as to the EIA preparation for projects requiring a mining licence which are listed in the 1994 Geological and Mining Act. In the following discussion, the types of project requiring EIA, the content of EISs, and the EIA Commission are analysed in greater detail. 13.5.1. Types of project requiring EIA EIA in Poland can be applied to both new and existing developments. The projects which should be subject to environmental assessment are listed in a variety of regulations, the main ones being the Order by the Minister of EPNRF of 13 May 1995 . This order contains two lists of projects for which EIA is mandatory. The first list consists of developments which are exceptionally harmful to the environment and human health, while the second lists developments that may cause a deterio­ ration in the state of the environment. Both lists reflect similar checklists included in the 1985 EIA Directive as well as in the 1991 Espoo Convention. There is no provision for a discretionary environ­ mental assessment, in contrast to the EU's EIA legislation. Secondly, in the light of the 1994 Geological and Mining Act, EIA is required when applying for a licence in order to carry out the following activities: • searching for mineral resources; • extraction of mineral resources; • underground storage of substances without any special container; • storage of waste in underground mining excavations; • searching for and extraction of mineral resources which can be found in mining waste. Thirdly, under the rules of the Order of the Minister of EPNRF, of 9 March 1995, local landuse plans are subject to EIA. This is regarded as a form of strategic environmental assessment in Poland. Finally, EIA is compulsory for highway projects and the appropriate regulations concerning this issue can be found in the 1994 Highway Act and the associated Order of 5 June 1995 . 13.5.2. EIA reports and their content The Minister of EPNRF has created a list of experts who are the only bodies authorised to prepare EIA documentation. The current legislation does not specify the form of these reports or the methods to be used in their production. The only compulsory element is that the EIA scope should meet an agreed specification. 100

Article 4 of the Decree defines the following ten components which the EIA report should include: 1) a description of the planned or existing facility; 2) the character of technical processes; 3) a description of the environment and the planned land use in the area of potential impact, with special attention to the places classified under the national system of protected areas; 4) a description of environmental effects during the stages of construction, exploitation and decommissioning, including the use of water, minerals, materials and energy, the quantity and qual­ ity of waste (solid or liquid), emissions of pollutants, noise, radiation and other adverse effects on the environment or the public; 5) a description and analysis of the effectiveness of proposed methods to minimise adverse ef­ fects on the environment, and of protective equipment necessary; 6) a description of the assessment methods and concepts used, data about the environment, and also information on missing or incomplete data; 7) a description of the impact of planned or existing facilities on the public and elements of the environment, including the natural beauty of the area, and existing facilities and land use; 8) an indication of the thresholds of permissible impacts; 9) conclusions, including those concerning the need to carry out an EIA of the completed facil­ ity after a certain period of exploitation; 10) a non-technical summary. Generally speaking, the Polish requirements as to the EIA content seem to be very similar to the existing EIA legislation in the European Union. However, the law differentiates between EIA documents related to various categories of projects and stages in the location procedure, namely: • exceptionally harmful developments; EIA at the stage of decision on location (LMCD) - EIA at the stage of Construction Permission (EIA of engineering design) • developments that may cause a deterioration in the state of the environment; - EIA at the stage of decision on location (LMCD) - EIA at the stage of Construction Permission (EIA of engineering design) • existing developments; • highways; • mining and geological projects; • local land-use plans. Polish law does not require an interdisciplinary approach to EIA preparation. It is left to the discretion of the experts as to how detailed an EIA report should be and in what way it is to be pre­ sented. Furthermore, there is no mention of the social aspects of an assessment. EIA reports are treated by developers simply as a formal requirement and they do not expect to derive benefits from their preparation. This significantly influences the quality of these docu­ ments. Moreover, the developer cannot imagine that an EIA prepared by an expert who is paid by him or her can be rejected. It was never the case in the past that one would be expected to pay con­ sciously for gathering information that led to one's own "defeat". It is striking that in the case of EIA for highway projects, three separate documents must be prepared. Firstly, there should be an expertise concerning "real" environmental impacts, secondly, a document dealing with potential impacts on agricultural and forested lands, and finally, a report on the impact on the cultural heritage. The regulations do not specify any requirements for compiling a special register of EIA docu­ mentation. However, a special record relating to location decisions must be kept by the authorities. The lack of EIA databases limits an effective approach towards improving EIA knowledge through learning from experience. The availability of SEA reports is advertised, and copies have to be placed on public display together with the draft land-use plans. By contrast, EIA reports for specific projects are not easily accessible to the public.

101

1 3.5.3. The Minister's Commission for EIA The EIA Commission was created by the Minister of EPNRF on 29 December 1989 as his advisory body. It consists of the chairman, the secretary and seventy-five members appointed by the minister for a four-year period. The candidates for membership of the commission are recommended by the chairman and then designated by the minister. They should be chosen from among the repre­ sentatives of scientific and social circles connected with environmental protection and EIA. The exact criteria the candidates should meet are not listed in the regulations. The commission is responsible for drawing up an "opinion" on applications for location deci­ sions for exceptionally harmful projects and for those likely to have a significant impact on natural resources, on the environment of protected areas, or on water management. Secondly, it should pre­ pare an opinion on EIAs for existing developments having a significant environmental impact sent by the Minister of EPNRF to the commission. Thirdly, its duties include the evaluation of studies re­ lated to EIAs not only for existing developments, but also for applications for location decisions for new projects. In addition, this advisory body should publish information and materials publicising EIA methodologies. Finally, the commission is responsible for promoting training for EIA experts (Order No. 22 of the Minister of EPNRF of 29 December 1989). With respect to EIA review, in practice only projects classified as "exceptionally harmful" are in the area of interest of the commission. Moreover, the commission reviews those EIAs which are formally adopted by the appropriate minister's departments. The commission works in teams created by its presidium in accordance with the types of project to be considered. There are usually between two and four separate reports presented for each EIA. Additionally, the secretariat prepares a project information record based on the submitted EIA documentation and other available materials, and a documentation record. The former are given to the members of a team before they start work as a briefing document. The latter details the commission's standpoint on issues created by the proposal and is completed after the team's final session. Both documents are published in the Bulletin of the Commission for EIA in Poland - the only publication in the country dealing with EIA issues comprehensively on a regular basis (Kram, 1993). It should be emphasised that this advisory body does not have any statutory powers since it was not established by statute (Jendroska and Sommer, 1994). Therefore, opinions and recommenda­ tions issued by the commission do not have any legal force. However, they become binding when in­ cluded in decisions. In practice this means that decisions usually incorporate all of the commission's standpoints. The Minister of EPNRF recommended that the provincial governors (voivodes) should create local EIA commissions, but there is no legal requirement for their existence. Thus, the establishment of such bodies is left completely to the voivode's discretion. To date, very few provincial E IA commit­ tees have been established.

1 3.6. THE MAI N SOURCES OF WEAKN ESS WITH I N TH E SYSTEM The current design o f EIA i n Poland has been influenced by many factors, but i t i s difficult to construct a hierarchy reflecting the relative importance of these factors. The EIA regulations have their origin in the early 1980s when the centrally planned economy was still in place. At that time the legislative framework for environmental protection was unable to cope in an effective manner with environmental problems and was incapable of incorporating satisfactory provisions. This was evident, even after the substantial changes in the political system in the 1990s, since the old law was still in force. In addition, the fact that EIA was thought of as a document required in the final stages of the planning process resulted in a number of inadequacies within the system. Thus, EIA in Poland is fo­ cused on its role in environmental analysis and it has little opportunity to influence planning or proj­ ect design and management. It is treated as an adjunct to the location procedure and, consequently, cannot serve as an effective tool for environmental management. Moreover, in accordance with Polish law, EIA can be applied to existing as well as to new developments. In the former case it attempts to fulfil the role of environmental auditing - a 102

management tool very different in many aspects from EIA. An amalgamation of both in one mecha­ nism, for covering an extremely broad range of environmental issues, may be another source of the ineffectiveness of EIA in Poland. EIA law provides very limited legal requirements as to public involvement in the EIA prepa­ ration and review processes, but it is a good practice of the EIA Commission to invite different public and mass media representatives into its sessions. These representatives do not have rights to vote on the decision concerning the adequacy of an EIA. On the other hand, in general, there is no tradition of the use of participation rights by citizens in Poland. As a result, most people are unfamiliar with the regulations and do not know the litigation rules.

1 3.7. PLANNED AND PROPOSED CHANGES TO EIA PROVISIONS The need for a redesigning of the EIA system in Poland is broadly acknowledged, as past ex­ perience has shown a number of weaknesses reducing EIA effectiveness. In order to improve the sys­ tem, a lot of changes have been announced and there seems to be a policy commitment to their im­ plementation. In 1991, Parliament passed a document entitled "The National Environmental Policy". This document is strongly related to the findings of the Round Table talks of 1989 and it indicates that the main determinant of future economic and social development of the country will be the concept of sustainability. In 1992, the Minister of Environmental Protection, Natural Resources and Forestry made the following statement in his letter included in the first English edition of the EIA Bulletin: "EIA procedure has been recognised as an essential element in the implementation of the National Environmental Policy accepted by the Polish Parliament" (Hortmanowicz, 1992). Since the early 1990s considerable work has been done concerning EIA law in Poland. As a result, at the end of 1995 a proposal for an Environmental Impact Assessment Act was published. In 1996 there were other proposals for changes in EIA legislation mainly incorporated in the Environ­ mental Protection Act of 1980 as amendments. The main aims of these new proposals are as follows (Jendroska and Tyszecki, 1995): • to unify and clarify the existing EIA regulations and terminology; • to harmonise Polish law with European Union law; • to create clear provisions for public involvement, especially at the project level; • to reduce excessive costs of the application of EIA. In accordance with these proposals, EIA will probably be perceived as a procedure consisting of the stages listed below: • screening • scoping • EIS production • EIS review • decision, into which provisions for EIA monitoring and auditing can be incorporated. On 30 July 1997 the amended Environmental Protection Act of 1980 was adopted by the Par­ liament. It came into force on 1 January 1998. In accordance with this new law a special commission for licensing EIA experts will be created and clear criteria for certification of EIA experts will be for­ mulated. In addition, provisions for greater public participation in the EIA process are to be an­ nounced. The exact shape of the EIA system should be known in 1998 after new executive orders by the Ministry of Environmental Protection related to EIA have been issued. The above intentions reflect a direction towards which the country is going to move. Every­ thing depends on a practical way of transforming not only EIA itself, but also the broadly understood institutional context in which the system will operate. The need for new institutions is amplified by the sudden flow of investment, accompanied by new technologies previously unknown in Poland and other transition countries (e.g. waste incineration). The transition period can be regarded as an op­ portunity for developing Poland's own model of credible and efficient institutional solutions for EIA procedures. Independent centres, for example, might play a significant role in evaluating potential impacts. Such centres, possibly interdisciplinary in character and operating as non-profit organisa­ tions, could serve as credible information sources. EIA centres could also educate, certify and monitor the performance of independent experts. 103

Agyeman and Evans (1994 ) have identified four areas of concern which are particularly im­ portant for the development of environmental policy in the world, in order to approach the goal of sustainability. Firstly, there is the need for community environmental education. Secondly, democra­ tisation and public involvement in policy making is essential. Thirdly, co-operation and collaboration between all private and public sectors and agencies are required. Finally, a holistic and integrated policy-making approach must be promoted. Moreover, there is general agreement that the most prac­ tical actions should be taken at the local level, as the most appropriate to address real environmental problems and resolve conflicts. However, guidance and a "good" pattern from the top level seems to be crucial. Presumably, a practical realisation of the above key issues will also be critical to the devel­ opment of environmental policy in Poland and, in consequence, it will affect the concept and design of EIA as a tool for its implementation.

REFERENCES Agyeman, J. and B. Evans ( 1994), "Making Local Agenda 21 Work", Town and Country Planning, 7/8, pp. 197-198. Babuchowski, J. ( 1996), Regional Spatial Planning Office, Lublin, Personal Communication, October, Lublin. Gorzym-Wilkowski, W. A. ( 1996), "Polityka przestrzenna a ochrona srodowiska rzyrodniczego Lubelszczyny - systemowe uwarunkowania, szanse i zagrozenia (Spatial Policy and Environmental Protection of the Lublin Region - Conditions, Oppor­ tunities and Threats), in G. Rakowski (ed.), Srodowisko przyrodnicze jako plaszczyzna wsp6lpracy transgranicznej, Euroregion Bug, t. 3; Norbertinum, Lublin. Hauser R., E. Mzyk, Z. Niewiadomski and M. Rzazewska ( 1995), Ustawa o zagospodarowaniu przestrzennym z komentarzem i przepisami wykonawczymi, (Land-use Planning Act of 1994 with Comments and Executive Orders), Wydawnictwo Prawnicze, Warszawa. Hortmanowicz, Z. ( 1992), Letter from the Minister of Environmental Protection, Natural Resources and Forestry, Bulletin of the Commission for EIA in Poland, 1. (In English.) Jendroska, J. and J. Sommer ( 1994), "Environmental Impact Assessment in Polish Law: the Concept, Development and Per­ spectives". Environmental Impact Assessment Review, 14, pp. 169-194. Jendroska, J. and A. Tyszecki ( 1995), "Proposal for an E IA Act", Bulletin of the Commission for EIA in Poland, 19, pp. 13-18. Kassenberg, A. ( 1990), "EIA as a Preventive Tool of Environmental Policy", Bulletin of the Commission for EIA in Poland, 1, pp. 3-5. (In Polish.) Kozlowski, S. ( 1990), "EIA in the Light of the Findings of the Round Table Conferences", Bulletin of the Commission for EIA in Poland, 1. (In Polish.) Kram, B. ( 1993), "The Activities of the Commission for EIA for the Period 1991-92", Bulletin of the Commission for EIA in Poland, 2, pp. 12-13. (In English.) Rzeszot, U. and C. Wood ( 1992), "Environmental Impact Assessment in Poland: an Emergent Process", Project Appraisal, 2, pp. 83-92.

Starzewska, A. ( 1988), "The Legislative Framework for EIA in Centrally Planned Economies", in P. Wathern (ed.), Environ­

mental Impact Assessment: Theory and Practice, Unwin Hyman, London, pp. 210-224.

Wathern, P. ( 1988), "An Introductory Guide to Environmental Impact Assessment", in P. Wathern (ed.), Environmental Impact Assessment: Theory and Practice, Unwin Hyman, London, pp. 3-30. Wysocka, E. (ed.) ( 1996), Strategia i polityka rozwoju gmin i wojew6dztw. Podstawy metodyczne (Strategy and Policy of Devel­ opment of Voivodeships and Communes. Methodological Bases), Zachodnie Centrum Organizacji, Zielona Gora.

104

1 4. ENVIRONMENTAL IMPACT ASSESSMENT IN ROMANIA Mirela Gruin 14.1. HISTORICAL DEVELOPMENT OF PROJECT-LEVEL EIA IN ROMANIA 1 4. 1 . 1 . Before 1 989

Romania is situated in the south-east of Central Europe, on the Danube lower course. It is the fourth largest Eastern European country, with almost 23 million inhabitants. It is divided into forty counties, with Bucharest as the capital. During the communist years, emphasis was placed on heavy industry, and economic success was measured in terms of volume of output. This left little place for investment in clean technologies, with most of the equipment being obsolete, giving rise to many environmental problems. The first environmental law was enacted in Romania in 1973, as a response to the growing international rec­ ognition of environmental issues. Environmental impact assessment was not completely unknown in Romania before 1989. Even though they did not have the same name and were maybe differently structured, procedures to evaluate the impact of various projects were certainly carried out. The requirements for environmental impact assessment were not explicitly included in envi­ ronmental law during the communist regime. However, in all the articles of the law concerning the protection of the environment, there was mention that the development of any project should take into account the preservation of a good quality environment. No methodologies were designed and it was not clear if and how environmental concerns could affect the decision-making process. Although rather too vaguely, it was stipulated that the environmental authorities were responsible for monitor­ ing the state of the environment. They were also authorised to stop the activity of any industrial project with a negative impact on the environment. Such cases never existed. Different research in­ stitutes carried out many studies concerning the environmental impact of projects. Very often the topics studied by one institute overlapped those studied by another. These studies were mainly theo­ retical, and their results seldom had any influence on development or on investment activity. The results of the research were considered secret, and they remained unknown to everybody except a limited number of scientists. Some of the types of studies carried out in Romania before December 1989 were: • studies of project location; • studies of the dispersion of pollutants in the atmosphere; • hydrochemistry studies (including the dispersion of pollutants in surface and ground water); • studies monitoring environmental quality factors (air, soil, water); • the impact of pesticide use; • studies of radioactivity levels; • the impact of pollution on human health. These were used to further develop feasibility studies and in designing projects.

1 4. 1 .2. Between 1 990 and 1 995

The main driving forces for the development of new environmental policy and legislation in Romania have been the Association Agreement which was signed with the EU in June 1995, setting the provisions for eventual membership of the EU, and the international conventions to which Ro­ mania is signatory. EC Directive 85/337/EEC has been the main model for developing EIA legislation. 105

Between 1990 and 1995, Romania did not have any EIA-specific legislation. The requirements for EIA were included, instead, in three ministerial orders: • Ministerial Order 170/1990 on Issuing of Permits established the procedures for issuing environmental permits, for which an EIA could be carried out according to its require­ ments; • Ministerial Order 113/1990 on Documentation Required for Permit Applications set out the documentation required for environmental permit applications; this included much information which is normally required for an EIA. Annex 2 contained a list of those ac­ tivities which require an EIA; • Ministerial Order 6 19/1992 on the Procedure for Elaboration and Minimum Content for the Environmental Impact Study contained the procedures for carrying out an impact study, as well as the content required. At that stage, EIA was considered as a one-step procedure (consisting of making an impact study which is used as an element in decision making), whereas the EU concept considers EIA as an iterative process which provides feedback to try to eliminate or mitigate impacts on the environ­ ment. The people involved in the EIA process during this period considered that in the three minis­ terial orders there were ambiguities concerning the activities for which an impact study was neces­ sary.

14.2. CURRENT EIA REGULATIONS IN ROMANIA The provisions for EIA in Romania are now contained in the Law on Environmental Protec­ tion, No. 137/1995, and the Permitting Procedure for Economic and Social Activities Having an Envi­ ronmental Impact - Ministerial Order No. 125/1996. Both of these draw upon the approach in EIA Directive 85/337/EEC. Licensing of experts is contained in Ministerial Order No. 278/1996. The new law on environmental protection is based on the principles and strategic elements which lead to sustainable development. Article 4 states that the EIA procedure is compulsory in the initial stages of projects, programmes, and other activities. This is detailed in chapter two, "Regulation of economic and social activities having an environmental impact". The procedure for issuing the environmental agreement and environmental permit is de­ scribed in schemes 1- 5 in the annex to this paper. 14.2.1. Terminology •

Environmental agreement - approval needed for new investments, for the modification of existing ones, and for projects listed in appendix II of the law. This appendix includes all the activities listed in annex I of the EU EIA Directive and most of the activities listed in annex II, and includes some limits or thresholds for the scate of the projects; • Environmental permits - compulsory for: - putting into operation any new activity which has an environmental agreement - from 1996, for existing activities With some exceptions, activities which do not involve construction and building works require only an environmental permit; • Environmental audit - required by the environmental authority when an existing activ­ ity does not meet the conditions for a permit. Also required on a change of ownership of an investment, as well as on the cessation of activities generating an impact on the envi­ ronment; • Stages of the EIA procedure: - preliminary stage - main stage - analysis and validation stage A comparison is made in table 11. 14. 1 between the requirements of EU EIA Directive 85/337 and the Romanian regulation requirements concerning the stages of the EIA process. 106

Table 1 1.14.1. The stages of the EIA process in Romania Phases of EIA process (EU EIA Directive)

Romania Application and project description are submitted to the environmental authority

1. Screening to determine whether the project requires formal EIA

Yes • preliminary study can be required • analysis done by environmental protection authority, developer, experts, representatives of local public administration

2. Scoping to determine the coverage and level of detail of the EIA

Yes • guidelines drawn up by the environmental protection authority for the developer (list of other endorsements to be obtained)

3. EIA study

Yes • alternatives have to be considered, including the zero option

4. EIS preparation

Contents • general information • description of the proposed activity • incorporation in the environment • sources of pollution and environmental protection • the impact on the environment (to be presented separately for the construction and operation stages) • possibilities of diminishing or eliminating the environmental impact • impact assessment and conclusions

5. Consultation and participation

Yes (pre-and post-EIS) • public notification and hearing of the report • registration of the resulting comments and conclusions

6. Decision making

•

7. Monitoring

Not clearly connected to the EIA process

decision made publicly and based on the findings

1 4.3. ACCREDITATION OF PRACTITION ERS The persons and organisations who may undertake an EIA are mentioned in article 12 of the Environmental Protection Law 137/1995: "specialised units, certified natural or legal persons" i. e. certified by the Central Environmental Protection Authority (CEPA). The methodology of accreditation is defined in Ministerial Order No. 278/1996. Only EIA studies and environmental audits carried out by accredited individuals or companies will be consid­ ered by the environmental authorities. The individuals or companies who carry out the EIA must be legally independent of the developer. Foreign consultancies can carry out EIA in Romania only if they have been accredited through the same procedure, or hold a certificate that is recognised by the Ac­ creditation Commission. The licensed expert is responsible for the accuracy of the EIA, while the developer is responsible for the accuracy of the information given to the expert. The licensing process takes into account: • the consultants' technical and professional qualifications; • the membership of consultants in technical and/or professional bodies connected to EIA; 107

• the EIA related courses attended by consultants; • the consultants' professional experience in EIA. The procedure is different for companies (legal persons) and individuals (natural persons). In the case of natural persons, the applicant is given a score for each of the criteria, and also sits a mandatory examination. Qualification is determined by adding 75% of the score and 25% of the ex­ amination result. The accreditation certificate is valid for two years, after which the licence has to be renewed. Every sixth year an examination has to be passed. For legal persons, the same elements are taken into account and scored for all the consult­ ants in the company. An interview is conducted with representatives of the applicant, which may modify the results of the scoring. The certificate has to be renewed after two years. The accreditation certificate can be cancelled when: • more than two EISs have been rejected by the reviewing board and/or "an important number" of EIA studies carried out by the consultant did not obtain an environmental agreement; • an EIA has been carried out in a different area of expertise from the one for which the consultant is licensed; • there has been a failure to respect confidentiality, or incorrect use of EIA data; • there has been a failure to comply with the relevant legislation.

14.4. PROVISIONS FOR SEA IN ROMANIA Law 137/1995 , article 4 , states that the EIA procedure is compulsory in the initial stages of projects, programmes, or "activities". It also mentions the correlation of environmental planning with territorial and urban planning, as one of the ways of implementing the principles and strategic ele­ ments which lead to sustainable development.

14.5. HOW EIA AND SEA ARE WORKING IN PRACTICE EIA is beginning to become well established in Romania. Many consultants have benefited from courses at home and abroad, and have gained experience in the last few years. Training sessions on EIA are carried out by the Institute of Environmental Engineering, and most faculties concerned with environmental issues provide courses on EIA procedure and regulations. Many of the consulting companies which have carried out EIA are state-owned environmental institutes, or new private companies which saw the emerging process as an opportunity. Also, some consultancies have estab­ lished joint ventures with similar Western companies. Developers have started to show an interest in obtaining more information about the whole process. Many companies have established special departments for environmental protection and have appointed people to deal with the authorities, consultants and the public. The Ministry of Waters, Forests and Environmental Protection, which is the central environ­ mental protection agency (CEPA), has translated some European EIA guidelines, although it has not yet issued any new specific ones. However, a number of weaknesses still remain: • in the EIA process, the environmental protection authority is represented by CEPA for projects of national importance, and by forty-one LEPAs (one in each county and one in Bucharest) for regional level projects. The low salaries available in these organisations limit their ability to hire or keep highly qualified personnel. Also, financial constraints make it almost impossible to train the employees of the LEPAs, or to consult different ex­ perts in reviewing EISs; • there is some confusion between the terms "EIA" and "environmental audit", probably be­ cause EIA has to be carried out for most of the important existing activities. Another problem is created by the use of the term "EIA report" for the non-technical summary, and "EIA study" for the full EIS. There is no clear specification that the EIA report is intended for use in decision making, or that it should be written in non-technical language; 108

•

all existing activities were supposed to be subject to an application for an environmental permit by the end of 1996. According to the statistics of the local environmental protec­ tion agencies, less than 10% of them had produced the documents for the application at that time; • the data needed for EIA studies is sometimes collected in an inadequate manner, or its accuracy can be questioned. Other important shortcomings of the process are difficulty of access to environmental data and information and, in some cases, lack of transparency during the various stages of the process, and difficult access to EIA reports; • the monitoring stage is not clearly connected to the EIA process in the Law of Environ­ mental Protection. In addition to these weaknesses in the EIA process there is still a general lack of environ­ mental awareness and a lack of tradition in public participation. Public awareness regarding envi­ ronmental issues has increased rapidly, but has not yet reached the stage of real involvement in EIA cases, except where property of land is involved. Overcoming these limitations will play an im­ portant part in the further development of EIA in Romania. Some of the bigger NGOs in different parts of the country have started to work on projects concerning public participation within the EIA process. Although the economic situation is far from promising at the moment, and the privatisation process is going only slowly, there is an increase in the number of foreign investors coming into Ro­ mania. This may provide both a reason and an incentive for improving EIA practice.

109

ANNEX DEVELOPER submits to LEPA: advertises the application · application · project description · proof of fee payment justified rejection

DEVELOPER preliminary study

additional info 1----.....J

DEVELOPER abandons the project justified rejection

CEPA decides upon LEPA proposes guidelines; list of permits or authorisations DEVELOPER · makes EIA study · presents report on EIA study completion LEPA submits the EIA rep. for public consultation · report, public debate · register the observations

DEVELOPER completion

additional info '-----'

motivated rejection DEVELOPER abandons the project

DEVELOPER remaking of EIS

DEVELOPER oresens

completion

DEVELOPER remaking

LEPA submits to CEPA · comments, technical memo, permits and authorisations, EIS completion or expertise

motivated rejection CEPA issues the environmental agreement LEPA - Local Environmental Protection Authority CEPA - Central Environmental Protection Authority

Scheme 1 1 . 1 4.1 . The procedure for the issuing of environmental agreements

110

DEVELOPER submits to LEPA: · application advertises the application · project description · proof of fee payment

DEVELOPER preliminary study

additional info t----�

justified rejection DEVELOPER abandons the project justified rejection

LEPA draws up: guidelines; list of permits or authorisations DEVELOPER · makes EIA study · presents report on EIA study

DEVELOPER remaking of EIS completion

LEPA submits the EIA rep. for public consultation · reports, public debate · registers the observations

DEVELOPER completion

additional info

motivated rejection

DEVELOPER abandons the project

DEVELOPER presents · technical memo · permits and authorisations · EIS

motivated rejection

· analysis of documents · public notification of the final decision

1----�

DEVELOPER remaking

completion

CEPA issues the environmental agreement

Scheme 1 1.14.2. The procedure for the issuing of environmental agreements LEPA - with EIA

111

DEVELOPER submits to LEPA: · application advertises the application · project description · proof of fee payment justified rejection t+-----