On 23 May 2017, the Parliament adopted the Law No 2059-VIII “On Environmental Impact Assessment” (the “EIA Law”). The Law came into effect on 18 June 2017. The procedures provided by the EIA Law will become mandatory and applicable starting from 18 December 2017. 

Adoption of the EIA Law is a breath of fresh air for Ukrainian environmental regulations, which in many aspects lack consistency and completeness. The EIA Law was adopted as part of Ukraine’s commitments on the transposition of the Directive 2011/92/EC “On the assessment of the effects of certain public and private projects on the environment” into the national legislation and is an important step towards a wider reform of environmental policy in Ukraine. The Law abolishes an obsolete and inefficient model inherited by Ukraine from the Soviet times that was confusingly comprised of elements from both EIA and a bureaucratic state expert review (the so-called “state ecological evaluation”). It now focuses solely on the quality of EIA.

EIA shall be mandatory for specific categories of projects posing a significant threat to the environment and listed in the EIA Law, including:

1. 13 types of projects falling under the 2^nd category (i.e. infrastructure projects, certain agricultural projects, mining, geothermal drilling, hydro power plants located on rivers regardless of their capacity, pumped hydroelectric energy storages, wind power plants with more than one turbine or if their height is equal or exceeds 50 m, etc.); and
2. 21 types of the most hazardous projects falling under the 1^st category (i.e. oil refinery, power generation by nuclear power stations, thermal power stations with a capacity equal to or exceeding 50 MW, chemical plants, ferrous and non-ferrous industry, treatment of hazardous waste, treatment of non-hazardous waste with capacity equal or exceeding 100t per day, etc.). For this category of projects the applicant shall be additionally required to determine if they are subject to transboundary EIA.

In particular, the EIA Law provides that a transboundary EIA may be required in the event that the planned activity is expected to have a significant adverse trans-border impact. The EIA shall be performed in line with the international treaties signed by Ukraine (in particular -  the Convention on Environmental Impact Assessment in a Transboundary Context, so-called “Espoo”, 1991) and with due notification of the authorised bodies of the countries which are likely to be affected by such trans-border impact.

Notably, any enlargement, extension, change, reconstruction, technical re-equipment, overhaul repair or conversion of the activity/facilities under the above mentioned projects shall be subject to a mandatory EIA (except for the ones that do not pose any significant threats to the environment according to criteria which are to be further developed and approved by the Government).

The Environmental Impact Assessment itself is a complex procedure that consists of the following stages:

1. preparation of the EIA report in line with detailed requirements of the Law (costs are born by the applicant);
2. consultations with the public, providing sufficient time and opportunities to review EIA materials and participate in the decision-making process according to the detailed procedures outlined in the Law (25-35 business days, costs are born by the applicant);
3. review of the EIA report by the “Authorised Body” (i.e., by the Ministry of Ecology or local environmental authorities), taking into account public opinion and an analysis of the information gathered by business entities during the public debate, and
4. issuance by the authorised body of the substantiated  conclusion on the environmental impact of the project (25 business days, no state duty); and
5. implementation of EIA results by the applicant.

Project monitoring (a post EIA approval phase) is an important novelty aimed at controlling and mitigating adverse effects during actual implementation of the project through the application of planned or prescribed measures and correcting them when and where necessary. Monitoring activities may be imposed by the Authorised Body upon reviewing the EIA Report.

The Ministry of Ecology shall also establish the Unified EIA Registry (to be available online, with a free access for public). The detailed procedure for maintenance of the Registry shall be further developed and approved by the Government. Apart from that, by the effective date of the EIA Law (i.e., by 18 December 2017) the Ministry of Ecology must also adopt secondary legislation setting specific rules and guidelines, in particular, with respect to each particular type of the projects.

The EIA Law provides for strict liability in cases of non-compliance with the established requirements, including suspension or termination of the applicant’s activity, imposition of fines and administrative liability of the responsible persons.   

Legislation: Law “On Environmental Impact Assessment” No. 2059-VIII dated 23 May 2017

Authors:

Vitaliy Radchenko, Partner, vitaliy.radchenko@cms-cmno.com

Inna Antipova, Associate, inna.antipova@cms-cmno.com

Tetiana Mylenka, Associate, tetiana.mylenka@cms-rrh.com

Anna Pogrebna, Partner, anna.pogrebna@cms-rrh.com