Vol. XVI No.2
February 2011


Implementing Projects Having an Environmental Impact


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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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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