Supported by the Ministry of Foreign Affairs of the Czech Republic
Eko forum's comments on the draft of new Environmental Protection Act of FBiH presented by Dr.sc. Samir Lemeš president of NGO "Eko forum" Zenica Round table: Results of public debate on the new Law on Environmental Protection of FBiH Sarajevo, 16.9.2015
Eko forum's comments on the draft of new Environmental Protection Act of FBiH
Eko forum submitted its remarks on 3.10.2015 On 12.5.2015 we received the information from the Ministry that out of 17 remarks, 8 was accepted, and 9 was rejected, with explanations for rejection. Only rejected comments were justified in this information.
General remarks
The new Environmental Protection Act is generally more complex and complicated, making it difficult to be applied. It does not comply with the new Law on Minor Offences. The term "integrated environmental permit" is badly treated, and requires compliance with the results of the IPPC project EC/BiH/08/013/EuropeAid/126648/C/SER/BA, especially articles 85‐88 of the proposal of the Law on Environmental Protection, which was developed under that project. Otherwise, the results of this project in which the EU has invested a lot of money, have not been used in drafting this law. It is clear that there is no political atmosphere for the adoption of such a law at the state level, but we should insist on harmonization of legislation with similar laws in the RS and Brčko District.
Article 28(2) ‐ accepted
Paragraph 3 should define the "relevant information concerning hazardous materials". The actual data entered should be compared with the legal standards or the Rules on permissible limit values for all pollutants. Justification: The Act must define what "relevant information" is, because this gives room for free interpretation. At least, Act should refer to another regulation that defines these information or to define responsibilities for the separation of "essential" and "non‐essential" data ‐ who is the one who decides what is more or less essential. There is no purpose to publish any data if there is no comparison with permitted limits or benchmarks.
Article 28(2) ‐ accepted
Paragraph 5 should define the details of supervision by priorities such as: pollutant emissions at the time of inspection, the minimum, medium and maximum emissions during certain time periods for which there are defined limit values (day, month, year,...). The remaining data should be sorted by other priorities and related to the implementation of measures from environmental permits. Justification: There is no point to publish any data if there is no comparison with permitted limits or benchmarks.
Article 28(6) ‐ accepted
It is unclear how this attitude will be realized. The same provision existed in the previous law, but was not applied. Justification: Although there is a software for this register, the data is so far available only by request. There are no obstacles to allow public access to data from that database, by publishing it on the website. This will relieve the ministry staff, that extracts data from the database by queries and provides it to interested parties.
Article 35 ‐ rejected
The cost of electronic delivery of information is zero, so this method of delivery should be free of charge. Proposal to amend the text of this article: At the end of Article 35 add a new paragraph 3, which reads: "The fee for the provision of information in electronic form will not be charged to registered non‐ governmental organizations dealing with the protection of the environment."
Article 36(2) ‐ rejected
In the process of renewing the environmental permit the public participation is not provided. Justification: It may happen be that the plant/installation to which an environmental permit has been issued, has not fulfilled all obligations under the permit. Only situation of "shutdown and closure of the plant" is planned, without an alternative solution. We already have the case of such facilities (ArcelorMittal Zenica), where obligations from prior consent were not fulfilled, and new ones will be issued. Who bears the responsibility for non‐compliance or for aventual closure? These are too serious situations, both ecologically, economically and socially to be left incomplete and without the participation of the public. Proposal to amend the text of this Article: Paragraph 2 should be supplemented with paragraph: "‐ The renewal of the environmental permit."
Article 36(8) ‐ accepted
Situations in which the results of public participation are not taken into account is not defined. Justification: The current practice of issuing environmental permits, there were comments from the public debates, but no one advertised neither positive nor negative attitude about those remarks. Proposal to amend the text of this Article: Paragraph 8 should be amended with the sentence: "If the results of public participation are not accepted, it is necessary to explain the reason for rejection and inform the interested public.
Article 63(1) ‐ rejected
The term "integrated" from this article is completely misinterpreted. Instead of integrity in terms of the various permits, it introduced the concept of "collective permit" for composite operators, without a clearly defined way of determining how the "collective" is determined. Collective permit can be issued only for technological units, regardless of location or operator. Justification: The term "integral permits" is explained in detail the EU IPA project IPPC 2011, and in that sense, this article should be reformulated in accordance with the results of the project. The by‐ law must be adopted that will define the way of issuing integrated permit, because there are overlapping responsibilities, especially with water agencies which exceed the Entities. Proposal to amend the text: In paragraph 1 amend the first sentence with the text: ", which constitute a technological unit. Subtitle of article 63 should be redefined, replacing "The integrity of the environmental permit" by "Environmental permits for complex operators"
Article 65(1) – partially accepted
Paragraph 1 is ambiguous and should be reformulated. Justification: The operator can not contribute to raising environmental quality standards on the basis of threshold values, but it will adapt its activities in a way that emissions are brought into an acceptable condition. Proposal to amend the text: Paragraph 1 of this Article should be deleted and rewritten: The emission limit values are contained in the conditions of the environmental permit and are based on the Regulations on Limit Values of the Federation of BiH, which should be harmonized with the standards of the European Union (EU), as well as with the best available techniques (BAT) for the emissions whose limit values are not determined by mentioned Regulations.
Article 86(1) ‐ rejected
Public participation is limited here, because it may happen that the operator does not submit information or submits false information, and that the authorities do not react. Justification: The purpose of public participation is monitoring of both the operator and the institutions. Past practice has shown that it may happen that institutions are not doing their job and that is why public participation is essential. If the data is submitted to the ministry, there is no reason to hide it from the public. The public can not react if there is no publicly available information. Proposal to amend the text: Paragraph 1 of this Article should be expanded with: "Operator of plants and facilities is obliged to continuously inform the public about the results of the monitoring of emissions that are measured with devices for continuous measurement or measured periodically in accordance with the requirements of the environmental permit and inspection.
Article 111(1) ‐ accepted
It is not clear who determines whether the complaint is "serious" or not. Proposal to amend the text: In this article add a new paragraph 2: "Non‐routine inspections are carried out continuously to check the exceeding of allowable limit values for emissions of all pollutants, especially organic for which the inspector may order (request) the Operator for the particular measurement and assessment of the state of pollution of these pollutants.
Article 141 ‐ accepted
Fines are not harmonized with the new Law on minor offenses of the FBiH (Official Gazette of the Federation of BiH, 63/14) Justification: All provisions should be harmonized with the new Law on minor offenses, which has considerably tightened penal policy. The current law on minor offenses was encouraging for the polluters. The provisions of Article 22 of the Law on minor offenses of the FBiH (Official Gazette of FBiH, 63/14) define a maximum fine of 200,000 KM.
Conclusion
Our major remark was about public participation: 84(1) This is Ministry's justification for rejection: Information on the Request for environmental permit renewal are accessible on FMOIT web page, enabling commenting, submitting opinions and suggestions. In addition, further checks are performed with the relevant inspection authority. Also, annual reports for pollution register are checked, along with in‐site control of the facility. We think that this is not in accordance with Aarhus convention, and we will insist on this remark to be included in the new Law, at least for large plants.