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IMPLEMENTING PROJECTS HAVING AN ENVIRONMENTAL IMPACT |
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Introduction
Businesses contemplating projects of almost any kind must consider
whether the implementation of their plans will have a significant impact
on the environment. That impact will, of course, differ according to the
type of project and its complexity and magnitude. Construction and
development of factories for sewerage or waste treatment, fabrication or
operation of metals, management of animal or fish farms, and beverages
and other food products, are only a few examples of projects whose
development influences the environment. The noise generated, the gas
emitted, and the wastes produced during these processes, all may have a
negative impact on the environment. The developers of such projects have
the liability to minimize or eliminate harm that could be caused to the
environment. However, considering the diversity of projects, investors
must carefully analyze all of the regulations applicable to their
envisaged project. The development of these projects in breach of the
applicable legislation may trigger the suspension, interruption or even
the cancellation of the entire project. It may also trigger the
application of significant sanctions to the breaching investor, harming
his wallet as well as his reputation.
Following Romania’s accession into the European Union in 2007, the
Romanian state adopted all of the regulations applicable to
environmental protection required at the EU level. Therefore, investors
who are already accustomed to the regulations applicable in other EU
countries may find that Romania has a similar legislative framework of
which they are familiar. However, issues may arise in relation to the
actual implementation of the rules and with particular regulations
applicable only in specific types of projects.
The present article provides a basic understanding of the regulations
applicable to projects with an impact on the environment with a primary
focus upon the types of projects which have been developed in Romania
during the past several years and continue to be a main focal point of
interest today. |
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General Aspects |
Any entity interested in developing a project that may have an
environmental impact must evaluate the magnitude of its effect --
whether local, national or regional impacting other neighboring EU
countries. Evaluating the nature of the impact on the environment may
determine which authority is competent to issue approvals or
authorizations for the implementation of the plan, and also the required
documentation allowing for such implementation.
Competent Authorities
If the project is significant at the local level, then the main
authorities competent to implement the environmental rules are the local
environmental protection agencies established in each Romanian county
and the regional environmental protection agencies which coordinate the
activity of the local environmental protection agencies in their region.
If the environmental impact of the project is national or will impact
other member states of the European Union, then the competent
authorities to implement the environmental rules are the Ministry of the
Environment and the National Environmental Protection Agency which is a
specialty central administrative body subordinated to the Ministry of
the Environment.
Required Documents
There are two main documents which must be obtained by an entity
interested in developing a project that will have an environmental
impact prior to the initiation of the respective project: the
environmental agreement and the environmental authorization.
The environmental agreement is one of the documents that must be
submitted by the applicant to obtain a building authorization and is
issued by a competent authority as detailed above. Since the erection or
modification of any construction project cannot be performed in the
absence of the building authorization, the environmental agreement is a
key document that actually establishes the conditions which will have to
be fulfilled by the project so as to ensure compliance with the
regulations applicable in the environmental field.
 For
projects having a more significant impact on environment, the competent
authority may require the applicant to prepare and submit an
environmental impact assessment prior to issuing the environmental
agreement. The impact assessment report is submitted to the competent
authority for public debate. The public, which may potentially be
affected by the respective project, as well as NGOs active in the
environmental protection field, are active players in the course of this
procedure since they are called upon to submit their opinions in regard
to the project and participate at the public debate organized by the
environmental authority. Based on the conclusion of the impact
assessment report, the competent authority will issue the environmental
agreement which will be valid for the entire development period of the
project.
The environmental authorization, which differs from the environmental
agreement, is the document required to be obtained prior to the actual
commencement of the project. This document ensures that the actual
implementation of the project will be performed in strict compliance
with the provisions of the environmental authorization. This document
may establish certain measures which must be fulfilled by the investor
in order to eliminate or at least reduce the impact of the project on
the environment, as well as, fixing the deadlines which must be complied
with for the implementation of these measures. An infringement of its
provisions may lead to the suspension or, even more severely, to the
cancellation of the environmental authorization.
Sometimes, in more complex projects, a so-called integrated
environmental agreement and integrated environmental authorization are
required. The integrated environmental agreement is the document which
establishes the conditions to be fulfilled in order to ensure the
compliance of the implementation of the project with the regulations
applicable in the environmental field. In turn, the integrated
environmental authorization is the document which establishes the
specific conditions which must be complied with after the commencement
of the project and their corresponding deadlines. However, both the
integrated environmental agreement and the integrated environmental
authorization represent more complex documents for whose issuance the
applicant must submit to the competent authority more detailed
documentation. |
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The Principle “Polluter Pays” |
Any entity interested in developing projects having an environmental
impact must be well aware of the fact that any activity which harms the
environment or even raises the risk of such harm is governed by the
“polluter pays” principle. That means that the entity generating the
harm over the environment is the only one liable to repair the harm and
undertake all the applicable costs for such repair works.
Therefore, if damage has been caused to the environment, or in case
there is an imminent threat of such damage, the operator must
immediately inform the competent environmental protection agency of the
respective damage or threat of damage. The agency will then undertake
all the necessary measures which should reduce or, if possible, prevent
the damage in question. The operator is the one obliged to pay for the
entire cost related to these measures.
If the operator does not comply with these obligations, or in case the
operator cannot be identified, the competent environmental protection
authority will then undertake all the necessary measures to repair or,
if possible, prevent damage to environment and it shall recover the
costs incurred in the course of this procedure from the liable operator. |
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Specific Areas of Activity Having Impact on
Environment |
Emission of Greenhouse Gases
Concern over climate change created international common objectives to
reduce the emission of greenhouse gases and, consequently, to diminish
global warming. The Kyoto Protocol, as well as the Framework Convention
of the United Nations regarding climate change, both established certain
measures to be undertaken in order to fulfill the objectives on the
international level. Industry generally needs to be more efficient in
consuming energy; the energy industry, from production to consumption,
must become less polluting; the transport used to deliver energy
products must use much less polluting means and consume less energy;
construction efforts must be more energy efficient and try to use
renewable energy sources; and the equipment and installations used by
companies must have a reduced consumption of electricity. In order to be
able to achieve all this, the Romanian state has undertaken, as part of
a plan approved at the EU level, to reduce its greenhouse emission
gases.
 After
its accession to the EU, Romania transposed into the national
legislation the provisions of Directive 2003/87/EC establishing a method
for greenhouse gas emission allowance trading within the European
Community. According to the provisions of this Directive, the operators
listed in the annex to the Directive must hold a greenhouse gas emission
authorization and the adequate number of greenhouse gas emission
certificates allowing for a determined level of greenhouse gas
emissions. More specifically, the greenhouse gas emission certificate
represents the right held by an operator, which manages an installation
from the ones listed in the annex to the aforementioned Directive, to
issue a ton of carbon dioxide, within a determined period of time.
Therefore, all the respective companies active in areas in which the
provisions of this Directive are applicable must obtain a greenhouse gas
emission authorization. They will also be able to trade the greenhouse
gas emission certificates corresponding to the fulfillment level of the
pollution targets applicable to them. The activity of these operators,
in compliance with the greenhouse emission gas regulations and with the
greenhouse gas emission certificates trading scheme is monitored by the
National Agency for Environmental Protection.
Noise Pollution Requirements
According to the current legislation in force, noise pollution must not
exceed certain thresholds, as established by applicable laws. These
thresholds vary for day time and night time; they also vary in case of
specific closed areas in which it is very important for noise to be
maintained at a lower level, such as schools, hospitals or libraries.
Therefore, any project generating noise must be located in areas so as
not to exceed the thresholds set by law. Any entity interested in
developing a project generating noise pollution must look very closely
at the regulations applicable in this field. Furthermore, the public
authorities are also key participants in the process of prevention
and/or reduction of noise pollution since they have the obligation to
elaborate noise maps for the noisy areas identified by law, such as big
cities, harbors, railways and airports. They are also called upon to
propose action plans in order to prevent and reduce the impact of noise
pollution.
Water Management
Since waters are mainly included in the public domain of the state, the
Government is the authority competent to rule over the use of these
waters. Basically, the use of underground and surface waters is free
only for small activities typical for households, i.e. for human and
animal consumption. The right to use water for other activities can be
granted only based on certain specific documents issued by the competent
authorities such as a water management permit or a water management
authorization.
The water management permit is a document which must be obtained if the
projects entail the use of water or projects to be developed on or near
water sources; and it represents one of the documents which must be
submitted to obtain the building authorization. The water management
authorization is a document required to be obtained before the actual
commencement of the project itself. This document actually establishes
the terms and conditions in which the project is to be implemented and
how the water is to be used in the course of the respective project. |
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Conclusion |
 The
“polluter pays” principle is ample ground to warrant companies to become
more aware of the potentially harmful effects on their financial
resources and their reputation if projects they develop damage the
environment. Initiating projects which have an impact on environment
without adhering to applicable regulations may trigger the cancellation
of the project and significant sanctions for the developers. As outlined
above, there are generally applicable documents which any entity
intending to develop a project impacting the environment must obtain
prior to the actual commencement of the project. However, since projects
having an impact on the environment or which may potentially harm the
environment is quite diverse, it is advisable for a developer to look
for specific guidance in this area. In that way, the developer will be
able to ensure a smooth implementation of its project in compliance with
all the applicable laws and regulations, and it will also be able to
correctly evaluate the time limits and the costs to be incurred for the
actual implementation of its project. |
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Editors Note: It is our policy not to mention our clients by name in
The Romanian Digest™ or discuss their business unless it is a matter of
public record and our clients approve. The information herein is correct
to the best of our knowledge and belief at press time. Specific advice
should be sought from us, however, before investment or other decisions
are made.
Copyright 2011 Rubin Meyer Doru & Trandafir, societate civila de avocati.
All rights reserved. No part of The Romanian Digest™ may be reproduced,
reused or redistributed in any form without prior written permission
from the publisher.
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RUBIN MEYER DORU & TRANDAFIR
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Bucharest, Romania
Tel: (40) (21) 311 14 60
Fax: (40) (21) 311 14 65
E-Mail:
office@hr.ro
VISIT OUR WEB SITE:
http://www.hr.ro
The Romanian Digest Archive
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