When is an environmental permit for an establishment required under the Environmental Permitting Act (hereinafter: EPA)? This question can be answered by following the next three steps.
- Constructing, operating or altering.
The first step is to determine whether an establishment is being constructed, operated or altered (article 2.1 subsection 1, under e of the EPA). If this is the case, then the establishment will need an environmental permit subject to the conditions explained below.
NB: the definition of ‘constructing’ in the EPA is not limited to the actual construction of an establishment. For instance, the first environmental permit for an activity has to be the construction permit if there is not one in place, even if the activity has been in operation for many years without a permit. We will elaborate on the various legal regimes for altering establishments of the EPA in a different blog entry in this series.
- The activity must qualify as an establishment.
This is the case if:
- The activity qualifies as an establishment under article 1.1, subsection 1 of the Environmental Management Act (hereinafter: EMA). In short, this applies if the activity is performed i) for a certain period of time, usually six months or more, or on a regular basis, ii) in the same location, iii) as a business or has a business scope.
- The activity falls under the scope of one of the categories of division C of annex I of the Environmental Permitting Decree (hereinafter: EPD). This division contains 29 categories.
NB: at first glance, it may seem like the categories of division C do not apply. However, it is important to be aware of the ‘catch all’ nature of the first category. For example, if an establishment contains certain appliances with an electric motor or combustion engine, such as a washing machine or an elevator, it will almost immediately fall under the scope of the first category.
- The establishment has to be designated as one that is obligated to have a permit.
The third step involves ascertaining whether the establishment is designated as one that is obligated to have a permit in accordance with article 2.1. subsection 2 EPD. This obligation arises if:
- Division B of annex I of the EPD designates that the establishment is obligated to have a permit. This is the case if, for example, an Environmental Impact Assessment (hereinafter: EIA) has to be made or if it has to be determined whether an EIA is required for the establishment, the Public Safety Establishments Decree applies to the establishment, or if the Major Accidents Risks Decree (this Decree implements the Seveso directive) applies to the establishment.
- The establishment is designated as obligated to have a permit by division C of annex I of the EPD.
NB: division C of annex I of the EPD designates that the establishment is obligated to have a permit. However, it is not enough for the permit to simply fall under the scope of division C, it must fall under the category which explicitly states that the establishment requires a permit
- The establishment contains an IPPC installation. This is an installation for industrial activities as is referred to in annex I of the Directive on industrial emissions (2010/74/EU) (article 1.1. subsection 1, under a EPD).
NB: the Environment and Planning Act, which is currently before the First Chamber, no longer references the establishment as the starting point for regulation, but instead refers to activities. On one hand, according to the government, this will make it easier to establish whether an activity requires a permit. On the other hand, the new starting point leads to a lot of uncertainty, especially if various activities are being performed by different legal entities.