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Last month, we published an article covering two aspects of the new single environmental authorization : the first section addressed the projects involved, while the second section covered the included procedures.
The single environmental authorization: procedural steps
1. A new feature: the project certificate
Before submitting an environmental authorization application, the petitioner may request information from the relevant state authorities to help prepare their project and application file. If the project is subject to a case-by-case review, the petitioner must contact the environmental authority (generally the regional prefect) to determine whether an environmental assessment is required.
Reminder: certain projects must undergo a case-by-case review by the environmental authority to determine if they are subject to an environmental assessment. The table in Article R. 122-2 of the Environmental Code lists the projects concerned (such as non-IED or non-SEVESO ICPEs).
The petitioner may also request the issuance of a project certificate. This request may be accompanied by:
- a request for a case-by-case review
- a request for an opinion on the scope and level of detail required for the impact study
- a request for a planning certificate
The project certificate is issued within two months of the prefect receiving the complete file. The project certificate serves several purposes, including:
- identifying the regulations, procedures, and decisions applicable to the project
- outlining the main stages of the review process
- providing a list of the documents required for each stage
- incorporating preventive archaeology and responses to ancillary requests: the case-by-case review, the request for an opinion on the impact study, and the planning certificate
A review schedule may be set as a mutual commitment. In this case, the applicant has one month to signify their agreement.
2. The single environmental authorization application
The application file must be sent to the departmental prefect in four paper copies and in electronic format. It must include the following elements:
- plans,
- a description of the planned activities,
- a non-technical summary,
- an environmental impact assessment if the project is subject to environmental evaluation, or an environmental impact study otherwise
The application file is supplemented by the documents, information, and materials specific to the activities, facilities, structures, and works planned by the project, as well as to the areas and species subject to protection measures that may be affected.
For projects involving ICPEs subject to authorization, the file must be supplemented with the documents previously required for an ICPE operating authorization application, including:
- a hazard assessment,
- a soil pollution report in the event of a request for substantial modifications for facilities subject to the provision of financial guarantees,
- details of the operator's technical and financial capabilities, etc.
The technical and financial capabilities considered are those that the applicant intends to implement, rather than those currently available at the time of the application.
A decree (not yet published) will establish a national template for the authorization application form.
3. Review of the single environmental authorization application
The review of the environmental authorization application takes place in three phases and lasts approximately 9 months:
The prefect delegates the management of these phases to coordinating review services: the classified installations inspection service (DREAL [1] and DDPP [2]) for ICPE projects and water police (DDT [3]) for IOTA projects.
[1] Regional Directorate for Environment, Planning and Housing
[2] Departmental Directorate for the Protection of Populations
[3] Departmental Directorate of Territories
The review phase (4-5 months)
During this review phase, the departmental prefect verifies that the application is complete and consults the relevant state services (such as the regional health agency or the environmental authority, if necessary). These opinions must be provided within 45 days; if no response is received by the end of this period, they are deemed favorable.
The duration of the environmental authorization application review phase is:
- either as specified in the project certificate if an instruction schedule has been issued and accepted by the applicant,
- or 4 months from the date of the acknowledgment of receipt for the complete application.
The timeline is suspended if additional information or regularization of the application is requested. The prefect may also extend the review phase by up to four additional months.
The public inquiry phase (3-4 months)
Once the review phase is complete, the prefect has 15 days to request that the administrative court appoint an inquiry commissioner. Once the appointment is made, the prefect has another 15 days to decide on the opening of the public inquiry.
The inquiry is then conducted in accordance with the procedures set out in the Environmental Code. Its purpose is to inform the public and gather their observations, proposals, and counter-proposals. The inquiry commissioner leads the process and produces a report that:
- reports on the investigation process
- examines the observations collected
- provides an opinion on the project in the form of reasoned conclusions
During this phase, the prefect also collects opinions from local authorities and groups affected by the project.
The decision phase (2-3 months)
Within 15 days of receiving the public inquiry report, the prefect forwards the non-technical summary of the environmental authorization application and the inquiry commissioner's reasoned conclusions for information to:
- the Departmental Commission for Nature, Landscapes and Sites (CDNPS), when the environmental authorization application concerns a quarry or a wind turbine
- the Departmental Council for Environment and Health and Technological Risks (CODERST) in all other cases.
The prefect issues a decision on the environmental authorization application within two months of the end of the inquiry, or within the timeframe specified by the project certificate schedule (if applicable). This period may be extended by one month if the opinion of the CDNPS or CODERST is requested. Failure by the prefect to reach a decision within this period constitutes an implicit rejection.
The single environmental authorization decree includes, in particular, avoidance, reduction, and compensation measures, as well as their monitoring procedures, established by taking into account any special requirements (if applicable) attached to the building, development, or demolition permit. It also includes:
- where applicable, requirements to reduce or prevent transboundary pollution
- operating conditions for the facility during start-up, malfunction, or temporary shutdown periods
- the analysis and measurement methods required to control the project and monitor its environmental impact, as well as the conditions under which the results of these analyses and measurements are reported to the environmental inspection authorities
- conditions for site restoration after the cessation of activities
- archaeological requirements to be observed during construction
To inform third parties, the administration posts an excerpt of the authorization decree at the town hall of the municipality where the project is located for at least one month and publishes the decree on the prefecture's website.
Implementation of the single environmental authorization
Any substantial modification to the activities, facilities, structures, or works covered by the single environmental authorization requires a new authorization.
Any other significant changes must be reported to the prefect by the authorization holder before they are implemented, along with all supporting information for assessment.
In the event of substantial or significant changes, the prefect may impose additional requirements via a formal order. These additional requirements may mandate further measures or remove initial requirements that are no longer justified.
The authorization holder may also request an adjustment to their requirements. If no response is received regarding this request within 2 months of the acknowledgment of receipt issued by the prefect, it is considered an implicit rejection. This period is extended to 3 months if an opinion from the CDNPS or CODERST is required.
The authorization may set a time limit for facilities that could pose certain risks (e.g., quarries). Requests for the extension or renewal of a single environmental authorization must be submitted to the prefect at least two years before the authorization expires. This request is subject to the same formalities as the initial authorization application if it involves a substantial change to the authorized activities, facilities, structures, or works.
In the general case of a transfer, the new authorization holder must submit a declaration to the prefect within 3 months of the transfer.
The prefect may at any time, during the application review or after the authorization has been granted, request a third-party expert assessment at the applicant's expense. This allows for the analysis of elements in the file that require specific verification.
Appeals and complaints
Appeals are filed with the administrative court. The deadlines in the diagram above are extended by 2 months in the event of:
- an administrative appeal (recours gracieux): an appeal addressed to the author of the contested decision
- or a hierarchical appeal: an appeal addressed to the superior of the author of the decision
The administrative judge may decide to annul only part of the single environmental authorization procedure or only part of the authorization itself. They may also postpone their decision until the matter is regularized.
Third parties may file a complaint with the prefect once the facility is in operation. The objective is to challenge the insufficiency or inadequacy of the requirements. If deemed necessary, the prefect may then set new requirements via a supplementary order.
Coordination with urban planning procedures
Permits (construction, demolition, development) and prior declarations under the Urban Planning Code may be issued before the environmental authorization. However, a building permit cannot be implemented until this authorization has been granted. Furthermore, there is only one joint public inquiry for both the environmental authorization and the building permit.
Note that for onshore wind turbines, the single environmental authorization building permit exemption.
Conclusion
As of July 1st 2017, applications for new ICPE and IOTA facility projects subject to authorization must follow this new single environmental authorization procedure. For existing facilities, certain modification projects will also be affected: those considered substantial modifications.