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The environmental permit issued for installations classified for environmental protection (ICPE) or for installations, structures, works, and activities (IOTA) is a living, dynamic, and evolving document: it can be adapted alongside the project. Here is a summary of what you need to know regarding modifications to projects that have already received an environmental permit.
The competent authority: the departmental prefect
It is not uncommon for a project subject to an environmental permit to be modified after its implementation. Modifications can take various forms: intensification of activity at an industrial site, construction of infrastructure for storing goods, or the relocation of facilities, equipment, or storage areas within the same site, among others.
Since an environmental permit is granted for a specific project defined prior to its implementation, regulations require that any modifications or extensions to a project that has already been authorized and implemented must be reported to the administration.
Indeed, under Article L. 181-14 of the Environmental Code, any substantial modification to a project is subject to the prior issuance of a new environmental permit, which therefore requires initiating a new authorization procedure.
According to the same article, any notable modification must be brought to the attention of the departmental prefect.
Finally, since the publication of the Law for a State at the Service of a Trusting Society (known as the "Essoc" law), enacted in August 2018, Article L. 122-1 IV of the Environmental Code states that any modification or extension of activities, installations, structures, or works included within the scope of an authorization issued for the operation of a site involving ICPEs or IOTAs, and which as such requires a case-by-case examination under the impact study nomenclature (table annexed to Article R. 122-2 of the Environmental Code), must be brought to the attention of the departmental prefect (replacing the regional prefect).
Substantial modifications in the environmental permit
The substantial nature of a modification must be assessed based on three alternative criteria established by Article R. 181-46 of the Environmental Code:
- Criterion 1: The modification or extension causes the activities, facilities, structures, or works in question to reach the thresholds set in the environmental impact assessment nomenclature, or reaches those same thresholds on its own.
- Criterion 2: The modification causes the activities, facilities, structures, or works in question to cross the thresholds, quantities, or meet the criteria currently set by the decree of December 15, 2009 (activities using organic solvents, modification or extension of production or consumption capacity for activities falling under certain ICPE categories).
- Criterion 3: The modification results in significant dangers or nuisances under the criteria derived from circular NOR: DEVPI208015C of May 14, 2012, regarding the assessment of substantial modifications under Article R. 512-33 of the Environmental Code.
Notable modifications
Notable modifications are not defined by regulation. Article R. 181-46 simply states that "any other notable modification made to the authorized activities, facilities, structures, and works, to their operating or implementation methods, as well as to other equipment, facilities, and activities mentioned in the final paragraph of Article L. 181-1 included in the authorization, must be brought to the attention of the prefect, before its implementation, by the authorization holder, along with all relevant assessment information."
Key takeaways
What should you keep in mind regarding modifications to projects that have received environmental authorization?
In case of doubt regarding the nature of a planned project modification, the safest option remains to consult the departmental prefect, whose decision will be authoritative.
The prefect will be able to assess the nature of the modification(s) based on the following criteria: Why is this modification being considered? Is it related to the initial project? What is its purpose? Is it significant with regard to the thresholds set by the environmental impact assessment nomenclature?
The departmental prefect may take one of four actions:
1. If the modification is substantial, they may:
- Require the submission of a new authorization application file, including an environmental impact assessment.
- Require the submission of a new authorization application file, including an impact study.
2. If they determine that the modification is not substantial, they may:
- Issue a new supplementary prefectural decree;
- Simply issue an acknowledgment of receipt.