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Last month we published an article dealing with two aspects of the new single environmental authorization: the projects concerned were the subject of the first section, the procedures included were the subject of the second section.
Single environmental authorization: the stages of the procedure
1. A new feature: the project certificate
Before submitting an application for environmental authorization, the petitioner can request information from the relevant government departments, enabling him to prepare his project and file. If the project is subject to a case-by-case examination, it must be referred to the environmental authority (generally the regional prefect). The aim is to determine whether the project should be subject to an environmental assessment.
Reminder: certain projects are subject to a case-by-case examination by the environmental authority to determine whether or not the project is subject to an environmental assessment. The table in Article R. 122-2 of the French Environment Code lists the projects concerned (e.g. non-IED or non-SEVESO ICPEs).
The petitioner may also request a project certificate. The request for this certificate may be accompanied by a:
- request for case-by-case examination
- request for an opinion on the scope and level of detail of the information to be provided in the impact study
- an application for a planning certificate
The project certificate is issued within two months of receipt of the complete file by the prefect. The project certificate has several roles:
- identify the regimes, procedures and decisions governing the project
- specify the main stages of the appraisal
- list the documents required for each one
- integrate preventive archaeology and responses to related requests: case-by-case examination, request for opinion on impact study and town planning certificate
It may set an appraisal timetable as a mutual commitment. In this case, the petitioner has one month to signify his agreement.
2. Application for a single environmental permit
The application file is sent to the Prefect of the département in four hard copies and in electronic form. It must include the following information:
- plans,
- a description of planned activities,
- a non-technical presentation note,
- an impact study if the project is subject to environmental assessment, otherwise an environmental impact study
The application file is supplemented by documents and information specific to the activities, installations, structures and works planned by the project, as well as to the protected areas and species likely to be affected.
For projects involving ICPE subject to authorization, the file must be completed with the documents previously required for an ICPE operating authorization application, in particular:
- a hazard study,
- a soil pollution report in the event of a request for substantial modifications to facilities subject to financial guarantees,
- the operator's technical and financial capabilities, etc. ...
The technical and financial capacities considered are those that the applicant intends to implement, rather than those available at the time of application.
A decree (not yet published) will set out a national model for the authorization application form.
3. Examination of the application for a single environmental permit
The environmental permit application process is divided into three phases and lasts around 9 months:
The Prefect delegates the management of these phases to coordinating departments: the Classified Installations Inspectorate (DREAL [1] and DDPP [2]) for ICPE projects, and the Water Police (DDT [3]) for IOTA projects.
[1] Regional directorate for the environment, development and housing
[2] Departmental office for the protection of populations
[3] Direction départementale des territoires
Examination phase (4-5 months)
During this examination phase, the departmental prefect checks that the file is complete, and refers it to the government departments to be consulted (if necessary, the regional health agency, the environmental authority, etc.). These opinions are issued within 45 days, and are deemed favorable if no response is received after this deadline.
The examination phase of the environmental authorization application has a duration that is:
- or the one indicated in the project certificate, if an appraisal schedule has been issued and accepted by the petitioner,
- or 4 months from the date of acknowledgement of receipt of the complete file.
The deadline is suspended in the event of a request to supplement or regularize the file. The Prefect may also extend the examination phase by up to four additional months.
Public inquiry phase (3-4 months)
Once the examination phase has been completed, the prefect has 15 days to ask the administrative court to appoint an investigating commissioner. Then, once the appointment has been made, he has a further 15 days to decide whether or not to open a public inquiry.
This is then carried out in accordance with the procedures laid down in the Environmental Code. Its aim is to inform the public and gather their observations, proposals and counter-proposals. The investigating commissioner conducts the inquiry and draws up a report which :
- reports on the conduct of the survey
- examines the comments received
- gives its opinion on the project in the form of reasoned conclusions
During this phase, the prefect also obtains the opinions of local authorities and groups affected by the project.
Decision phase (2-3 months)
Within 15 days of receipt of the public inquiry report, the prefect forwards, for information, the non-technical presentation note for the environmental authorization application and the investigating commissioner's reasoned conclusions, either :
- the Commission départementale de la nature, des paysages et des sites (CDNPS), when the environmental permit application concerns a quarry or a wind turbine
- the departmental council for the environment and health and technological risks (CODERST) in other cases.
The Prefect issues his decision on the application for environmental authorization within two months of the end of the inquiry, or within the timeframe specified in the project certificate (if any). This deadline may be extended by one month if the opinion of the CDNPS or the CODERST is required. If no decision is taken by the Prefect within this timeframe, the application is deemed to have been rejected.
The single environmental authorization order includes avoidance, reduction and compensation measures, as well as monitoring procedures, which are established taking into account any special requirements attached to the building, development or demolition permit. It also includes:
- where applicable, requirements to reduce or prevent transboundary pollution
- plant operating conditions during start-up, malfunctions or temporary shutdowns
- the means of analysis and measurement required to control the project and monitor its effects on the environment, as well as the conditions under which the results of these analyses and measurements are communicated to the environmental inspectorate
- conditions for restoration after cessation of activity
- archaeological requirements to be met in the event of construction work
For the information of third parties, for at least one month, the administration posts an extract of the authorization order at the town hall in the commune where the facility is located, and publishes the order on the prefecture's website.
Implementation of the single environmental authorization
Any substantial change to the activities, installations, works or structures covered by the single environmental authorization requires a new authorization.
The beneficiary of the authorization must inform the prefect of any other significant modification before it is carried out, with all relevant information.
In the event of substantial or significant modifications, the Prefect may impose additional requirements by order. These supplementary requirements may impose additional measures or remove initial requirements that are no longer justified.
The beneficiary of the authorization may also request an adaptation of its requirements. Silence on this request for more than 2 months from the date of acknowledgement of receipt by the Prefect is deemed to constitute an implicit rejection decision. This period is extended to 3 months in the event of a request for an opinion from the CDNPS or CODERST.
The authorization may set a time limit for facilities that could give rise to certain hazards (e.g. quarries). Applications to extend or renew a single environmental authorization must be submitted to the Prefect at least two years before the authorization expires. This application is subject to the same formalities as the initial authorization application if it involves a substantial modification to the authorized activities, installations, works or structures.
In the general case of transfer, the new beneficiary of the authorization must make a declaration to the Prefect within 3 months of the transfer.
The Prefect may request a third-party expert appraisal at any time, during the appraisal of the application or after the authorization has been issued, at the petitioner's expense. This makes it possible to analyze elements of the application requiring special verification.
Claims and appeals
Appeals are made to the administrative judge. The above deadlines are extended by 2 months in the event of :
- appeals (recours gracieux): appeals addressed to the author of the contested decision
- or hierarchical appeal: appeal to the hierarchical superior of the person who made the decision.
The administrative judge may decide to annul only part of the single environmental authorization procedure, or only part of the authorization. It may also postpone its decision until the situation has been rectified.
Third parties can lodge a complaint with the Prefect as soon as the project has been commissioned. The aim is to contest the insufficiency or unsuitability of the requirements. If he deems it necessary, the Prefect can then set new requirements by means of a supplementary order.
Coordination with town planning procedures
Permits (for construction, demolition or redevelopment) and prior declarations can be issued prior to environmental approval. However, the building permit can only be implemented after this authorization has been issued. What's more, there is only one public inquiry for both the environmental authorization and the building permit.
Note that, for onshore wind turbines, the single environmental permit dispenses with the need for a building permit.
Conclusion
From July1, 2017, applications for new ICPE and IOTA facilities subject to authorization will have to follow this new single environmentalauthorization procedure. For existing facilities, certain modification projects will also be concerned: those considered as substantial modifications.