When and who needs to undergo EIA

Despite the entry into force in 2018 of the Law of Ukraine “On Environmental Impact Assessment,” situations and issues continue to arise that are subject to different interpretations and require careful consideration. In particular, this concerns determining the timing and grounds for conducting an environmental impact assessment procedure for an enterprise.

It should be noted right away that this law is a legislative act of direct action (unlike most other laws) – that is, it contains all the necessary and sufficient criteria for determining the time and types of objects to which it applies.

Therefore, if an enterprise does not meet the conditions set forth in this law, such a procedure is not only not mandatory, but should not be carried out at all. So let us pay attention to the conditions under which an EIA is necessary in general, and the first question: when is it necessary to conduct an EIA?

The answer is in the first part of paragraph 1 of Article 3, which says that an environmental impact assessment is a must when deciding on planned activities… So, the first thing you need to figure out if you need an environmental impact assessment is if there are any planned activities.

According to subparagraph 3, paragraph 1, Article 1 of the law: planned activity is planned economic activity that includes construction, reconstruction, technical re-equipment, expansion, re-profiling, liquidation (dismantling) of objects, and other interference with the natural environment.

In other words, planned activity is the prospect of changes at an enterprise, which, as a rule, should be formalized in the form of a construction, reconstruction, or other project (although this is not mandatory), resulting in a change in the impact on the environment, which may take the form of, in particular, an increase in emissions, discharges, waste generation, resource consumption, etc.

Now let’s figure out who needs to carry out the EIA procedure—the answer to this question is provided by the same provision of the law, namely, planned activities specified in parts two and three of Article 3. So, the second condition is that the characteristics of the type, kind, and capacity of the enterprise’s equipment must correspond to the list of equipment specified in the above paragraphs.

Here, it is both easier and more difficult to determine. It is easier because the aforementioned paragraphs contain an exhaustive list of objects, equipment, or machinery, and it is more difficult for those who have doubts about classification/non-classification, as there is no advisory body and no one will give you a legally legitimate explanation.

Therefore, it is necessary to carefully read the law, study existing practices based on the unified register of environmental impact assessments, and possibly consult with the environmental inspectorate, the State Architectural and Construction Inspection, and organizations that conduct expert reviews of construction projects, with the involvement of all interested parties (the enterprise, the construction designer, and the environmental consultant). However, it should be remembered that despite the involvement of any experts in this process, the responsibility for the decision remains with the company.

However, if we read the same article to the end, we will find another provision that needs to be taken into account, namely that the planned activities do not include reconstruction, technical re-equipment, major repairs, expansion, re-profiling of facilities, or other interventions in the natural environment that do not have a significant impact on the environment in accordance with the criteria approved by the Cabinet of Ministers of Ukraine.

Cabinet of Ministers Resolution No. 1010 of December 13, 2017, “On the Approval of Criteria for Determining Planned Activities that are not Subject to Environmental Impact Assessment, and criteria for determining expansions and changes in activities and facilities that are not subject to environmental impact assessment” contains the aforementioned criteria and clearly defines and describes cases in which changes at an enterprise do not relate to planned activities and therefore do not fall under the EIA procedure.

In other words, this Resolution describes exceptions that are not considered to have a significant impact on the environment and do not require an EIA procedure. The provisions of this Resolution must be taken into account when determining planned activities and, therefore, the need for an EIA.

Thus, summarizing all of the above regarding the timing and grounds for conducting an environmental impact assessment at an enterprise, we draw conclusions and formulate two clear conditions (and one exception):

1. When – before changes in activities that will lead to changes in environmental impact;
2. To whom – an object (equipment, facilities) that clearly corresponds to the list in the law;
3. Exception – activities that meet the criteria set forth in Cabinet of Ministers Resolution No. 1010.

Finally, if, based on the results of this analysis of legislative requirements, your changes still relate to planned activities, you must take into account one more condition from this article: planned activities are subject to an environmental impact assessment before a decision is made to carry out the planned activities.

That is, the EIA procedure must precede the moment of making a decision on the implementation of this activity, and even more so the changes themselves! In other words, there should be the following sequence: EIA procedure – decision on planned activity – implementation of new activity.

However, what should be done if the right moment has already been missed—the decision has been made, for example, the facility has been built and/or put into operation—so what is the point of doing the preliminary stage? The answer is not clear-cut. Due to the fact that the legislation provides for a link between the EIA procedure and permits, the permitting authorities have the right and may, and in some cases will, require an EIA conclusion when issuing permits (emissions, SVK, waste treatment). Therefore, for this reason, it will not be possible to avoid the EIA.