The emergence of various environmental issues and their negative impacts on the quality of life, including the reduction in biodiversity, soil, air and water pollution, has urged the International Community to adopt multilateral environmental agreements engaging countries to develop ancillary national laws, policies, plans and programs to regulate and supervise human activities and to mitigate their impact on the environment, constitutes the common heritage for all human beings.
In accordance with these agreements and the DRC Constitution (”DRC” of February 18, 2013 as amended to date, particularly article 123-15, Law No. 11/009 dated July 9, 2011 creating the basic principles on environmental protection, ("Environmental Protection Law") was passed. Based upon the environmental basic principles universally recognized1, the Environmental Protection Law has enacted basic principles, which should serve as the basis for special laws in order to regulate different environmental sectors.
This Environmental Protection Law has introduced some innovations, among others: the obligation to conduct an environmental and social impact assessment, environmental audit, to establish an institutional framework, and to reinforce a repressive regime.
In articles 21, paragraphs 1 and 22, the Environmental Protection Law stipulates that "Any development, infrastructure and operation project of any industrial, commercial, farming, forest, mining, communication activity or other that may have an impact on the environment shall be subjected to a prior environmental and social impact assessment, accompanied with its duly approved management plan". "Any industrial, commercial or farming facility where operations may be hazardous for health, safety, sanitation, environment or preservation of sites and monuments, or may be unhealthy for the neighborhood shall be classified according to the severity of hazards, as inappropriate or full of nuisances thereof ".
"Classified facilities shall be first subjected to a declaration, or an authorization duly certified by a national or provincial exploitation license, as appropriate ".
Mining sectors are the most concerned: the mining sector is governed by Law No 007/2002 of July 11, 2002 relating to the Mining Code ("Mining Code") and Decree No. 038/2003 of March 26, 2003 relating to ("Mining Regulations"), which establish a Mining and Quarry Regime accompanied with the following mining rights: (i) Mining Permit ("PE"), (ii) Small-scale Mining Permit ("PEPM"), (iii) Mining Permit for Tailings ("PER") and (iv) Authorization for Permanent Quarry Exploitation ("AECP"), which are granted subject to previously established terms and conditions, among others, the submission of the Environmental Impact Assessment (EIA) and Environmental Management Plan of the Project (EMPP) and the approval thereof. These plans enable mining and quarry titleholders to take into account environmental aspects of their projects, not only when constructing or developing the mine, including the setting-up of plants and other facilities, but also at the moment of the actual operations of the mine.
These mining activities carried out under mining rights and authorization for Permanent Quarry Exploitation shall now be subjected also to an Environmental Exploitation License established by the Environmental Protection Law, subsequent to the Mining Code and Decree on Classified Facilities, subsequent to Mining Code and Regulations.
In addition to their other rights, mining titleholders have to acquire the Environmental Exploitation License, required for the construction and development of mines, plants and operations thereof.
Let’s now examine the legal basis of this new License (I), before reviewing the regimes of classified facilities established by Decree on Classified Facilities (II), indicate the jurisdiction regarding the issuance of this Environmental Exploitation License (III), explain the legal procedure for obtaining the said License (IV), and finally, note penalties in the event of operating classified facilities without an Exploitation License (environmental) (V).
I. Legal Basis of the Exploitation License (environmental)
The Environmental Exploitation License is based on article 37 of the Environmental Protection Law, which stipulates that "Any industrial, commercial or farming facility where operations may be hazardous for health, safety, sanitation, environment or preservation of sites and monuments, or may be unhealthy for the neighborhood shall be classified, according to the severity of hazards, inappropriate or full of nuisances thereof ".
In article 3, Decree No 13/015 of May 29, 2013 on the control of classified facilities ("Decree on Regulated Facilities") made pursuant to provisions of the Environmental Protection Law, defines the classified facility as a “fixed or mobile source, whatever its owner or use, likely to cause nuisances and affect the environment, including soil, sub-soil, water, air and forest resources.”
Pursuant to article 5 of the same Decree, “classified facilities shall be first subjected to a declaration (declaratory scheme or prior declaration), or an authorization duly certified by a national or provincial exploitation license (authorization scheme).
As far as mining titleholders and authorization for permanent quarry exploitation have to construct industrial facilities for their operations, they shall, besides meeting the obligations set forth in the provisions of the Mining Code and Regulations, now request and obtain the Exploitation License established by relevant provisions of the Environmental Protection Law and Decree on Classified Facilities prior to setting up, converting, extending, moving or operating their mining facilities.
II. Scheme of classified facilities
Regarded as "fixed or mobile source, whatever its owner or use, likely to cause nuisances and to affect the environment, including soil, sub-soil, water, air and forest resources", classified facilities shall be first subjected to the declaration (declaratory scheme or prior declaration) (II.1), or to the authorization duly certified by a national or provincial exploitation license (Authorization scheme) (II.2).
II.1. Declaratory scheme or prior declaration
The declaratory scheme means any person desiring to operate a classified facility subjected to this scheme, shall file, against a notice of delivery, a prior declaration with the local Environmental Authority, who shall then send a delivery receipt within fifteen days after receiving it.
The declaratory scheme shall be actually applied to any activity, which, though classified, is safe, does not present any serious inconveniences or nuisances to health, safety, hygiene, in the neighborhood or the preservation of sites and monuments2.
It is assigned to Category II of classified facilities mentioned in Schedule 2 of the Decree on Classified Facilities.
II. 2 Authorization scheme
The authorization scheme concerns any facility of which existence or exploitation is unsafe, causes inconveniences, or nuisances for health, safety, hygiene, in the neighborhood, the environment or the preservation of sites and monuments3,
With regard to the category of the said facilities, article 8 of the Decree on Classified Facilities points out that these facilities subjected to an authorization fall within Category I, of which the category I a for activities; the existence and operation of which are certified by a national exploitation license, and the category I b for activities certified by a provincial exploitation license.
According to Schedule 1 of the Decree on Classified Facilities, mining facilities are part of classified facilities in the category I subjected to a prior authorization certified by the national or provincial exploitation license.
Moreover, the mining operator holding a valid Exploitation License should request a new Exploitation License if: (a) the classified facility is transferred to a place other than the place determined by the license or in the declaration, (b) the facility has not been operated within a two-year period, whatever the category, (c) the facility is shut down for two years running, (d) the facility has been destroyed or decommissioned for more than two years due to an accident resulting from the operations, (e) or the facility adds to the initial operation a new activity subjected to either scheme.
III. Jurisdiction over Licensing the Environmental Exploitation
The Minister of Environment is empowered to issue the national exploitation license, and the Governor of Province of the area is empowered to issue a provincial exploitation license.
Therefore, the Minister of Environment has the power to issue the Exploitation License of any classified facility the existence of which may have an impact in the territory of many provinces whatever its category4.
IV. Procedure for obtaining the Environmental Exploitation License
The holder of mining rights and/or authorization for permanent quarry exploitation willing to build a facility for its mining activities, or to transform, change, move or operate the said facility, or to change manufacturing methods likely to adversely affect the environment, shall apply for the Exploitation License to the provincial Environmental Authority of the area, who will conduct public and technical investigations within a 15-day period.
Based on this viewpoint, it is noteworthy that the issuance of any Exploitation License for a classified facility is subjected to a prior public investigation, of which the purpose is to (i) inform the general public and local population about the project or activity, (ii) to collect information on the nature and scope of rights, which third parties may have on the area affected by the project or activity, (iii) to get comments, suggestions and alternative proposals in order to enable the relevant authority to gather all information required for his decision5. But, an environmental and social impact assessment shall be first carried out when the application for the license concerns the facility of which activities may have an impact on the environment.
At the end of these investigations, the provincial authority shall send the application file to the National Authority to check compliance, prior to issuing the national Exploitation License by the Minister, or to the Governor of Province for issuing applied Exploitation Licenses. Applicants shall pay a settlement tax in accordance with the legislation in force in DRC. The License shall be issued within a month from the date the file has been accepted.
V. Penalty due to the absence of the Environmental Exploitation License
In article 81, the Environmental Protection Law requires any person operating, converting or modifying a classified facility or changing manufacturing methods that may cause dangers or nuisances in violation of the provisions and enforcement measures of the law to pay a fine of one hundred million Congolese Francs.
Furthermore, article 85 of the Environmental Protection Law grants existing facilities a period of 24 months from its enactment and the publication of its implementing measures, to start compliance, especially the requirement to have a a national or provincial Exploitation License, whichever the case.
The establishment of this new requirement regarding industrial facilities for mining, commercial or farming activities showcases the clear commitment of the DRC Government to exploit its natural resources while seeking an effective way to mitigate social environmental impacts particularly those caused by mining industries and human activities.