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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 most potentially polluting activities), registration or declaration (for less potentially polluting ones). Those activities are designated as ‘ICPEs’ (facilities classified for environmental protection purposes). They are listed in a nomenclature that contains approximately 275 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 shall 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 2014, approximately 450,000 facilities were subject to a declaration, 12,000 to a registration and 32,000 to an authorisation.
A second water nomenclature (also known as the ‘IOTA nomenclature’) is applicable to non-ICPE activities and equipment that require extraction of groundwater or superficial water, modification of the level or drainage of such water, or generate water discharges (even non-polluting ones). This nomenclature also provides for two permitting regimes depending on predefined thresholds – namely, declaration and authorisation.
For simplification purposes, a single procedure and permit called the ‘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 authority issuing 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, of the contemplated activities and corresponding nomenclature rubrics; and maps of buildings and on-site networks.
Since January 2016, declarations can be made online. 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 (arrêté préfectoral), theoretically issued within five months of submission.
Operators of ICPEs that are subject to the authorisation regime, as reformed on March 1 2017, first need to apply for a preliminary project certificate so that governmental services can clarify their expectations or inform the operator of any major obstacle. The new environmental authorisation aims at simplifying, under a single permit, various authorisations provided for under the Environmental Code (for ICPEs or IOTAs, natural reserves, protected species and habitats, genetically modified organisms…), as well as under the Forestry Code (for clearing), the Energy Code (for electricity production), the Code of Cultural Heritage, among others. Accordingly, the application file needs to be very detailed and will be subject to both a review by various prefectural services and a public hearing (enquête publique). The permit consists of a prefectural order with ad hoc technical requirements, expected to be issued within nine months of submission.
Do any permit fees apply?
There are no permit fees per se. However, a general tax on polluting activities is levied upon delivery of an environmental authorisation (under €3,000 for 2017, the fee may be cancelled in 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 March 1 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 March 1 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, 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/operators within two months of receipt of the signed permit; or
- by any interested third party within four months of publication or public posting of the permit.
An informal appeal to a higher administrative authority (recours gracieux or recours hiérarchique) 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 (mise en demeure) 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; and
- impose an administrative fine of €15,000 and a daily penalty of €1,500.
Environmental impact assessments
Projects subject to assessment
What projects require a preliminary environmental impact assessment?
Important amendments to what used to be called ‘impact studies’ (now referred to as ‘environmental assessments’) entered into force in early 2017. Under Article R.122-2 of the Environmental Code, some facilities classified for environmental protection purposes (ICPEs) are systematically subject to such environmental assessments; others are subject to these assessments on a case-by-case basis (depending on the categories of project and/or of ICPE, their nature, size or location). This will apply mostly to ICPEs that are subject to authorisation (they never apply to those that are subject to declaration and rarely to those that are subject to registration).
Scope of assessment
What environmental factors and risks fall within the scope of the impact assessment report?
The environmental assessment shall present all items listed under Article R.122-55, II of the Environmental Code (derived from Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment) including, among other things, descriptions of:
- the project;
- the ‘reference scenario’ (the initial environmental situation);
- the elements that may be affected by the project;
- the main environmental impacts of the project, both direct and indirect, including in case of major accidents or disasters;
- the main alternatives and an indication of the main reasons for the choice of the project, taking into account its effects on the environment and human health;
- the avoidance, reduction and, if possible, compensation measures, and – ideally – the contemplated monitoring of such measures; and
- forecasting methods or other reliable data used in order to identify and assess the main environmental effects, among other things.
The environmental assessment does not include other studies that may also be potentially required, depending on the project, such as hazard studies, Natura 2000 impact studies, water studies or renewable energy feasibility study.
Who conducts assessments?
The environmental assessment is prepared by the applicant and specifically forwarded by the prefect to the relevant environmental authority, which is selected according to criteria set out in Article R.122-6 of the Environmental Code. The relevant authority will be:
- the ministry in charge of the environment;
- a specific section of a specific environmental council;
- the regional environmental authority; or
- the regional prefect.
The environmental authority’s opinion should be issued within a month, but is neither conclusive (it is not a go/no-go opinion) nor binding.
Are the results of impact assessments publicly available?
The whole application for an environmental authorisation, including the environmental assessment, goes through a public hearing. From January 1 2018, applicants will need to provide a digital version of the environmental assessment, as well as all of the files containing the raw data used. This should facilitate inclusion in the national database of environmental assessments that has existed since 2007.
Can the results of an impact assessment be contested? If so, what procedure applies?
An administrative court will suspend an environmental authorisation upon request by a third party when such request is based on the absence of an environmental assessment. Case law on impact studies (the predecessors to environmental assessments) used to consider that significant deficiencies in such studies amounted to an absence of such studies.
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