10-12-2012

Environment And Industry

Authors

  • Natalia Charalampidou, LL.M. (Heidelberg), Attorney at law, Adjunct lecturer, Faculty of Law, University of Nicosia
    Neophytou & Neophytou LLC - Advocates, Legal Consultants

Environmental legislation throughout the European Union is meant to protect the environment (Art. 191 (1) TFEU) based on the precautionary principle and the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay (Art. 191 (2) TFEU). However when one looks more closely, it will become obvious that environmental legislation is about licensing the degree of pollution allowed to cause. In other words, it focuses indirectly on the water we drink, the air we breath and the earth we walk on through the regulation of activities causing pollution. Under the later Industry does have dominant position. Hence, Industry and Environment, although being contradictory terms, interrelate heavily. In the present paper the main licences that need to be obtained for the operation of industrial undertakings in Cyprus will be examined following the protected goods that form the notion of environment, those being water, soil and air. For the purposes of answering the question “why should the industry bother?” the sanctions foreseen in law for the operation without license as well as for breaching same are set out.

I. Controlling the pollution of water and soil

The pollution of water and soil is regulated in the Law on Controlling of Waters and Soil No. 106(I)/2002 (Official Gazette No. 3621 Pt. I of 12.7.2002 – hereinafter “Law No. 106(I)/2002”). Law No. 106(I)/2002 was done for the purposes of implementing numerous environmental and chemical directives of the European Union, including Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (OJ L 129, 18.5.1976, p. 23), as amended, and Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ L 20, 26.1.1980, p. 43), as amended, just to name a couple (explanatory statement, Official Gazette No. 3586 Pt. VI of 15.3.2002, p. 235). The legislator starts from a general prohibition of operation of any installation that causes or may cause pollution in waters and soil. Only those that bear a solid waste disposal licence may operate (s. 8 Law No. 106(I)/2002). Pollution stands for the direct or indirect introduction in water or soil as a result of human activity, of substances, vibration, warmth or noise that may cause damage to human health or the environment, to degrade goods, to harm or to obstruct the legitimate use of the environment, to cause damage to the living organisms that live in the waters or in the soil, to harm the water or soil ecological system or to destroy the biological resources (s. 2 Law 106(I)/2002). It is therefore to understand that even activities bearing the possibility of causing harm to human health, environment or living organisms are prohibited.

The application for obtaining a solid waste disposal licence is to be filed with the Minister of Agriculture, Natural Resources and Environment. The content of the application, as foreseen in the law, requires a full and frank disclosure of the operation of the undertaking, including the nature of activities, substances, products and energy used or produced by the undertaking, the intended monitoring measures for disposals in waters and soil as well as the technology used. The essentialia of the application vary pursuant to the activities of the undertaking (s. 9 Law 106(I)/2002). The basic rule that needs to be fulfilled for the Minister to issue a solid waste disposal licence is his satisfaction that this shall not contribute to the distribution of pollution in the air (s. 9 (1A) (b) Law 106(I)/2002). The Minister may issue the licence as per the described intended operation or may impose any conditions such as waste disposal or place and way of such disposal, quantity of any substance, temperature and pH value of any pollutant, methods of controlling and particulars of submission of annual report (s. 10 (1) Law 106(I)/2002). Turning to the sanctions foreseen in Law 106(I)/2002, one should differentiate between installations operating without a licence and installations operating in breach of a granted licence. For installations operating without a licence two provisions foresee their criminal liability. On the one hand, any person violating the general prohibition of s. 8 is guilty of a crime and may be imprisoned for a period of no more than three years and/ or to penalty of Euro 34,200 (s. 29 (1) Law 106(I)/2002). On the other hand, any person operating without a licence and disposing or allowing the disposal of any object or substance that pollutes or may pollute surface or underground waters or soil or the see, is guilty of a crime and may be imprisoned for a period of no more than three years and/ or to penalty of Euro 85,500

(s. 6 (1), (2) Law 106(I)/2002). Breaching conditions of a licence may result to revocation (s. 12 (2) Law 106(I)/2002). The doer is guilty of a crime and may be imprisoned for a period of no more than three years and/ or a penalty of Euro 34,200 (s. 29 (2) Law 106(I)/2002). More interestingly, during the above mentioned criminal procedures, the Court may issue an order for activity termination of the concerned undertaking or for remediation measures to be undertaken by the accused or the Minister. In both cases, the costs will be born by the accused (s. 30 Law 106(I)/2002).

II. Controlling the pollution of air

The control mechanism for air pollution is foreseen in Law No. 187(I)/2002 (Official Gazette No. 3649 Pt. I of 1.11.2002 - hereinafter “Law No. 187(I)/2002”). Law 187(I)/2002 was done for purposes of harmonization with environmental and chemical directives of the European Union, such as Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants (OJ L 188, 16.7.1984, p. 20), as amended, Council Directive 87/217/EEC of 19 March 1987 on the prevention and reduction of environmental pollution by asbestos (OJ L 85, 28.3.1987, p. 40), as amended, and Council Directive 92/112/EEC of 15 December 1992 on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry (OJ L 409, 31.12.1992, p. 11), as amended. The object of Law No. 187(I)/2002 is the precaution, minimization and the control of air pollution from installations for the better protection of health and prosperity of the population and for the protection and improvement of the environment, flora and fauna in Cyprus (s. 3 Law No. 187(I)/2002).

Operating installations need to have an air waste licence by the Minister of Employment and Social Security (s. 8 (1) Law No. 187(I)/2002). Such licence needs to be obtained before any new installation starts to operate (s. 8 (4) Law No. 187(I)/2002) and the essentialia of the relevant application resemble the ones set out in Law No. 106(I)/2002 for solid waste disposal licence (s. 8 (5), (14) Law No. 187(I)/2002).

The licence will be granted for specific duration (s. 8 (1) Law No. 187(I)/2002) under the following conditions. The Minister has to be satisfied that the applicant has the machinery and equipment needed for complying with the provisions of the law (s. 8 (9) Law No. 187(I)/2002), that all adequate measures for prevention of air pollution have been carried out (s. 8 (11) (a) Law No. 187(I)/2002), that the operation of the installation shall not cause significant air pollution (s. 8 (11) (b) Law No. 187(I)/2002), that none of the emission limit values will be exceeded (s. 8 (11) (c) Law No. 187(I)/2002) and that all air quality limit values will be taken into consideration (s. 8 (11) (d) Law No. 187(I)/2002). As seen above in the solid waste disposal licence, the Minister may impose additional terms upon approval of application for an air waste licence (s. 8 (12) Law No. 187(I)/2002). The legislation gives further broad control power to the Minister, as he may revoke the licence or annul or amend any of its conditions or impose new conditions or limit the duration of its validity, should he consider that this is justified for the protection of human health, public safety or the environment (s. 16 (1) Law No. 187(I)/2002).

In addition to the above, in the event that any person operates an installation or allows an installation to operate although no air waste licence has been granted or in violation of the terms of the licence (ss. 15 (1), 22 (5) Law No. 187(I)/2002), this person is guilty of a crime and may be imprisoned for one year and/or fined for Euro 34,200 (s. 26 (2) Law 187(I)/2002). During such penal procedure, the local authorities and the Attorney-General of the Republic may apply to the District Court for a preliminary order prohibiting continuity of the alleged illegal act until a final judgment is issued (s. 27 Law No. 187(I)/2002). Officers of a company can under circumstances be held personally liable for environmental wrongdoings (s. 31 Law No. 187(I)/2002).

The air is further protected through regulating the greenhouses gases allowed to emit, pursuant to the provisions of Law on Establishing a Scheme for Greenhouse Gas Emission Allowance Trading No. 110(I)/2011 (Official Gazette No. 4290 Pt. I of 29.7.2011 – hereinafter “Law No. 110(I)/2011”). Law No. 110(I)/2011 was done for complying with the Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community (OJ L 275, 25.10.2003, p. 32) as amended. All installations need to be licensed for greenhouse gases by the Minister of Agriculture, Natural Resources and Environment (s. 13 (1) Law No. 110(I)/2011). The relevant application is to be submitted before initiating operation and its content is set out in the law (s. 14 (2), (3), (4) Law No. 110(I)/2011). The Minister may ask for additional information or study, should he deem it necessary for the full evaluation of the submitted application (s. 14 (5) Law No. 110(I)/2002). The greenhouse gases licence may be issued for one or more installations that are controlled by the same undertaking and operate in the same geographical area (s. 15 (2) Law No. 110(I)/2011). The issued licence sets out the name and address of the licensed undertaking, the activities and emissions of the installation, the control plan, the contents of the annual reports and the obligation of submitting allowances equal to the emissions of the undertaking every calendar year (s. 15 (4) Law No. 110(I)/2011). As per the solid waste disposal licence and the air waste licence, the Minister may impose conditions upon approval or renewal. These include suitable conditions for monitoring and documentation of greenhouse gasses, the procedure for validation of the submitted reports and the obligation for informing the competent authority for any unforeseen events as well as securing the submission of allowances (s. 16 (1), (2) Law No. 110(I)/2011).

Turning to the penalties, these resemble the ones foreseen in Law No. 106(I)/2002 and Law No. 157(I)/2002. Any person violating Law No. 110(I)/2011 or any condition of the issued licence is guilty of a crime and may be imprisoned for a period of no more than three years and/ or to monetary fine of Euro 35,000 (s. 46 (1) Law No. 110(I)/2011). Further, should any person not submit the required allowances is liable to a monetary fine of Euro 100 for each tone of CO? for which no allowances have been submitted (s. 46 (2) (a) Law No. 110(I)/2011). This fine however does not free such person from his liability to submit the requested allowances the following year (s. 46 (2) (b) Law No. 110(I)/2011). Hence, pollution cannot be bought out. In addition to these penalties the authorities shall publish the names of the undertakings that violated the law (s. 48 Law No. 110(I)/2011).

III. Conclusion

Depending on the operational activities of each establishment, a solid waste disposal licence, an air waste licence and a greenhouse gases licence are mainly needed for their lawful operation, in accordance with the complex of licences that the Cypriot legislator introduced for the purpose of limiting pollution (Official Gazette No. 3586 Pt. VI of 15.3.2002, p. 235). Violation of the law or violation of conditions of granted licenses may result to fines and imprisonment, as well as a bad reputation of the undertaking to the public, as the names of installments emitting more CO? than allowed, shall be published. An overview of all above stated follows below.

  Law No. 106(I)/2002 Law No. 187(I)/2002 Law No. 110(I)/2011
Licence Licence for solid waste disposal Licence for air waste Licence for greenhouse gases
Competent authority Minister of Agriculture, Natural Resources and Environment Minister of Employment and Social Security Minister of Agriculture, Natural Resources and Environment
Imposing conditions upon approval Yes Yes Yes
Revocation or amendment of licence Yes - upon breach of its conditions or for protection of public health, public security and the environment Yes - upon breach of its conditions or for protection of public health, public security and the environment or following prohibition order by the Court Yes – upon change of nature or operation of the installation or expansion of same
Operation without licence Imprisonment (3 years) and/ or fine (Euro 34,200 or Euro 85,500) Imprisonment (1 year) and/ or fine (Euro 34,200) Imprisonment (3 years) and/or fine (Euro 35,000)
Operation in breach of licence Imprisonment (3 years) and/ or fine (Euro 34,200) Imprisonment (1 year) and/ or fine (Euro 34,200) Imprisonment (3 years) and/or fine (Euro 35,000 and/or Euro 100/ton excessive CO?)
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