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Environmental authorizations issued for installations classified for environmental protection(ICPE) or for installations, works and activities (IOTA) are living, dynamic and evolving: they can be adapted as the project evolves. Here's a look at what you need to bear in mind when modifying projects that have been granted an environmental permit.
The competent authority: the departmental prefect
It is not uncommon for a project subject to environmental authorization to be modified following its implementation. The modifications can be of various kinds: intensification of an activity carried out on an industrial site, construction of infrastructures to store goods, relocation of installations, equipment or storage facilities within the same site, etc. The modifications can be of various kinds: intensification of an activity carried out on an industrial site, construction of infrastructures to store goods, relocation of installations, equipment or storage facilities within the same site, etc.
As an environmental authorization is granted for a specific project that is defined in advance of its implementation, regulations require that modifications or extensions to a project that has already been authorized and implemented be notified to the authorities.
In fact, under Article L. 181-14 of the French Environment Code, any substantial modification to a project is subject to the prior issue of a new environmental authorization, thus requiring the initiation of a new authorization procedure.
According to the same article, any significant modification must be notified to the prefect of the département.
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 the departmental prefect (instead of the regional prefect) must be notified of any modification or extension of activities, installations, structures or works, included within the perimeter of an authorization issued for the operation of a site involving ICPE or IOTA, and falling as such within the scope of a case-by-case examination under the impact study nomenclature (table appended to article R. 122-2 of the Environmental Code).
Substantial changes to the environmental permit
The substantial nature of a modification must be assessed according to three alternative criteria set out in article R. 181-46 of the French Environment Code:
- Criterion no. 1: the modification or extension brings the activities, installations, structures or works concerned up to the thresholds set out in the nomenclature for impact studies, or in itself reaches these same thresholds.
- Criterion no. 2: the modification results in the activities, facilities, structures or works concerned exceeding the thresholds, quantities or meeting the criteria currently set by the Order of December 15, 2009 (activities using organic solvents, modification or extension of production or consumption capacity for activities falling under certain ICPE headings).
- Criterion no. 3: the modification results in significant hazards and inconveniences under the criteria derived from circular NOR: DEVPI208015C of May 14, 2012 on the assessment of substantial modifications under Article R. 512-33 of the Environmental Code.
Notable changes
Significant modifications are not defined in regulations. Article R. 181-46 simply states that "any other significant modification made to the authorized activities, installations, works and structures, to their operating or implementation methods, as well as to the other equipment, installations and activities mentioned in the last paragraph of Article L. 181-1 included in the authorization, must be brought to the attention of the Prefect, before it is carried out, by the beneficiary of the authorization, with all the relevant information."
Things to remember
What should be borne in mind when it comes to modifications to projects that have received environmental authorisation?
If in doubt about the nature of a planned project modification, the safest option is to refer the matter to the departmental prefect, whose decision will be final.
The prefect may assess the nature of the modification(s) according to the following criteria: why is this modification envisaged? Is it related to the initial project? How useful is it? Is it significant in terms of the thresholds set by the impact study nomenclature?
The Prefect of the département may take four courses of action:
1. If the modification is substantial, it may :
- Impose the production of a new authorization application including an impact study.
- Impose the production of a new authorization application including an impact study.
2. If he considers that the modification is not substantial, he may :
- Issue a new supplementary prefectoral decree;
- Proceed with a simple acknowledgement.