New Regulation on Environmental Impact Assessments
On 26th September 2019, a Regulation of the Council of Ministers dated 10th September 2019, concerning projects likely to have significant effects on the environment, was published in the Journal of Laws of the Republic of Poland (Journal of Laws of 2019, item 1839; “Regulation on Environmental Impact Assessments”). The main purpose of this Regulation is to supplement and amend the currently applicable provisions so as to ensure their compatibility with the so-called EIA Directive (i.e. Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment. The newly adopted provisions should facilitate entrepreneurs’ investment activities and eliminate some current interpretative ambiguities.
The primary change modifies the thresholds and criteria that dictate whether or not a project requires an environmental impact assessment.
The major changes introduced by the Environmental Impact Assessment Regulation (EIA Regulation) are as follows:
Changes to the scope of so-called 1st category projects, i.e. projects which may always have a significant environmental impact:
- aside from non-hazardous waste landfills, the provisions now apply to other installations for collecting or disposing of hazardous waste if the installation may receive at least 10 tons of waste per day or if it has a total capacity of at least 25,000 tons;
- the provisions now apply to networks for transmitting carbon dioxide for underground storage;
- the provisions remove from this category any networks for the underground tankless storage of substances; such projects are recategorized as ones which may potentially have a significant impact on the environment;
Changes to the so-called 2nd category of projects, i.e. projects which may potentially have a significant environmental impact:
- the new provisions extend to sites for collecting/reloading hazardous waste and non-hazardous waste if the collection thereof requires a permit (the regulations specifically excludes sites for the selective collection of municipal waste);
- the new provisions apply to projects concerning the extraction of waste from dumping grounds, waste disposal facilities and landfill restoration;
- the new provisions apply to the extraction, for commercial purposes, of aggregate from Poland’s internal surface waters and maritime areas;
- a newly introduced provision categorises projects for exploiting and prospecting for natural shale gas deposits, conducted via drill holes having a depth exceeding 1000m, as projects which may potentially have a significant impact on the environment; this specific provision was introduced in order to comply with a judgement of the Court of Justice of the European Union dated 31st May 2018 (C-526/16, European Commission vs. Republic of Poland);
- the new provisions remove from this category projects for exploiting and prospecting for mineral deposits in connection with geological works performed with explosive materials, and sites for collecting waste other than scrap metal;
- the hitherto definition of development areas was clarified by indicating that, when calculating the space outside a transformed area, account should also be taken of any temporary transformation of the area done for the purposes of project execution; when determining the development area, account should be taken not of the area actually transformed due to a project’s execution but, rather, the area transformed with the aim of realizing the project’s execution;
- the hitherto definition of a usable area has been modified by removing the term “vertical projection” and introducing a term “horizontal projection” in order to eliminate existing interpretative ambiguities;
Furthermore, deforestation projects and projects to convert forests or wasteland into agricultural land have been conjoined into a single provision. Moreover, previous interpretative ambiguities have been clarified by defining a forest as being at least 0.10 hectares of land which is covered in forest plants (forest growth) – i.e. trees, shrubs and undergrowth – or being temporarily devoid of such growth.
Another new provision requires the approval of projects consisting in second (and later) modifications that fall below the relevant threshold and do not individually fall into the 1st category of projects but which, when considered cumulatively, reach the EIA Regulation’s thresholds. This amendment seeks to eliminate uncontrolled situations and frequent, multiple extensions being made in respect of a given project.
The full text of the EIA Regulation is available on the Journal of Laws website: http://dziennikustaw.gov.pl/du/2019/1839/1
The EIA Regulation enters into force on 11th October 2019.
The currently-applicable regulations shall continue to apply to any projects that were initiated but not completed prior to the date of the EIA Regulation’s entry into force.