Activities subject to permit
Which activities require an environmental permit and how are they classified for such purposes?
Three main types of permit or permitting regime for industrial activities exist in France:
- authorisation (for the most polluting activities);
- registration; and
- declaration (for the less polluting activities).
These activities are designated as facilities classified for environmental protection purposes (ICPEs). They are listed in a nomenclature that contains over 250 entries or rubrics. Each rubric sets out capacity or volume thresholds and defines the corresponding permitting regime. When an industrial project includes several ICPE activities that are individually subject to different regimes, the application must be filed for the most stringent type of permit. ICPE permits are integrated permits as they cover all potential sources of nuisance or impact on all environmental media at a given facility. As of 2015 approximately:
- 450,000 facilities were subject to a declaration;
- 12,000 facilities were subject to a registration; and
- 32,000 facilities were subject to an authorisation.
Continuous efforts have been made by the environmental regulator to modify the thresholds, facilitate declarations and registrations and reduce the number of sites subject to authorisation that are the priority of environmental inspectors.
A second water nomenclature (also known as the IOTA nomenclature) is applicable to non-ICPE activities and equipment that:
- require the extraction of groundwater or superficial water;
- modify the level or drainage of such water; or
- generate water discharges (even if they are non-polluting).
This nomenclature also provides for two permitting regimes depending on predefined thresholds:
- the declaration regime; and
- the authorisation regime.
For simplification purposes, a single procedure and permit called ‘environmental authorisation’ was introduced in March 2017 to apply to all new ICPEs or IOTAs above authorisation thresholds.
Which authority issues permits?
The local prefect is the main authority which issues permits, with the support of environmental services – that is, mainly the Regional Directorates for the Environment, Planning and Housing for ICPE applications and water services for IOTA applications.
What are the procedural and documentary requirements to obtain a permit?
Operators of ICPEs that are subject to the declaration regime should submit a description of the operating entity or person and of the contemplated activities and corresponding nomenclature rubrics and maps of buildings and on-site networks. Since January 2016, declarations can be made online. In response, the prefect sends a receipt, along with the generic requirements set at national level for the relevant rubrics.
Operators of ICPEs that are subject to the registration regime should add detailed descriptions of the contemplated effects on – among other things:
- the environment;
- the neighbourhood; and
- the operator’s technical and financial capabilities.
The application is made available to the public and is examined by the prefect’s services. The permit consists of a registration order with ad hoc technical requirements, theoretically issued within five months of submission.
Operators of ICPEs that are subject to the authorisation regime, as reformed on 1 March 2017, are encouraged to test the feasibility of their contemplated project via informal presentations to the environmental authorities or by applying for a preliminary project certificate. The new environmental authorisation aims at simplifying, under a single permit, various authorisations provided for under:
- the Environmental Code (ie, for ICPEs or IOTAs, natural reserves, protected species and habitats, genetically modified organisms);
- the Forestry Code (for clearing);
- the Energy Code (for electricity production);
- the Code of Cultural Heritage; and
- other codes.
Accordingly, the application file must be extremely detailed and will be subject to both a review by various prefectural services and a public hearing. The permit consists of a prefectural order with ad hoc technical requirements, expected to be issued within approximately nine months of submission.
Do any permit fees apply?
There are no permit fees per se. The general tax on polluting activities that was previously levied upon delivery of an environmental authorisation has been cancelled as of 1 January 2018.
Validity period and renewal
What is the validity period for permits and how can they be renewed?
The principle is that permits have an unlimited validity. Exceptions include:
- facilities that are expected to operate for less than a year (eg, pilot schemes) – the permits are issued for six months, renewable once;
- projects involving an innovative process, or affecting neighbouring uses – duration is proposed by the operator, renewal should follow the same procedure as the initial application;
- quarries, waste landfills and carbon dioxide geological storage – duration and renewal are subject to specific regulations applicable to those activities; and
- facilities that are subject to an environmental authorisation since 1 March 2017 and imply an increasing use of soil surface of subsurface – prolongation or renewal must be applied for at least two months before expiry of the initial authorisation.
Can permits be transferred? If so, what procedure applies?
For ICPEs that are subject to declaration or registration, the new operator must notify the prefect within one month of effective transfer.
For ICPEs that are subject to the new environmental authorisation since 1 March 2017, the new operator must notify the prefect within three months of effective transfer. However, a number of facilities are required to secure financial guarantees to cover any possible major accidents or emergency clean-ups (eg, waste landfills, quarries, ‘Seveso High’ chemical plants and listed activities subject to authorisation or registration). For those facilities, a transfer of permit is subject to prior approval from the prefect, based on evidence that the new operator has secured its own financial guarantees.
Are permit decisions subject to appeal? If so, what procedure applies?
ICPE permits can be challenged before the administrative courts:
- by applicants or operators themselves within two months of receipt of the signed permit; or
- by any third party that may be affected by the site within four months of publication or public posting of the permit.
An informal appeal to a higher governmental service can also be made within two months, in which case the above periods for action before the administrative courts are extended by two further months.
What are the consequences of violating permit rules and decisions?
The violation of ICPE permit requirements (or the operation of an ICPE without the required type of permit) may trigger both criminal and/or administrative sanctions.
As an example, non-compliance with a permit requirement is punishable by a €1,500 fine and an administrative injunction to comply within a set timeframe. Persistent non-compliance is punishable by up to two years in prison and/or a €100,000 fine, and entitles the prefect to:
- order the payment of an amount corresponding to the cost of corrective measures;
- have those measures carried out at the operator’s cost;
- suspend operation until measures are carried out; or
- impose an administrative fine of €15,000 and a daily penalty of €1,500.
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