Environmental permits: problems and liability issues
It is common knowledge that it is impossible for any company to operate in the area of exploration, production and processing of natural resources without some degree of environmental contamination. Therefore legislation of Kazakhstan for such companies stipulates a duty to receive special permits to produce contaminated emissions in the environment. In the present Client Note we would like to describe the basic requirements in the field of observance of the conditions stipulated in the terms of the environmental permits. The basic requirements of the environmental legislation in the field of sanctions
1) According to p.1 item 69 of the Environmental code of the Republic of Kazakhstan (hereafter – “EC RK”), nature users, creating emissions in the environment, are obliged to receive a permit to produce emissions into the environment from the authorized body in charge of preservation of the environment.
2) The nature users are obliged to satisfy the conditions specified in the environmental permits, and bear responsibility for their non-compliance according to laws of the Republic of Kazakhstan (p.3 item 69 EC RK).
Legal practice in the area of application of legislation regarding environmental permits
Legal practice in the area of application of legislation regarding environmental permits
In practice often there is a non-observance of conditions provided by the environmental permits, connected with exceeding the established limits of emissions into the environment.
In all cases the question of whether the permitted levels of emissions are being exceeded is established during the environmental inspections which are carried out by the authorized body on environmental protection, and the exceeding amount is calculated on the basis of the Rules for an economic estimation of damage from environmental contamination.
During the determination of the payments amount for emissions into the environment, connected with pollution of the atmosphere air, water resources, disposal of radioactive waste, production and consumption waste which exceed the established limits, an increasing coefficient applies equal to ten, and also another coefficient of environmental hazard (up to an index of 3) and environmental risk (up to an index of 2), such payment can increase tenfold, in comparison with the payment which is carried out when emissions are within the limits of specified in the environmental permit.
Civil liability
Civil liability in most cases arises under judicial claims made by the authorized body for environmental protection in which they calculate the financial cost of the damages caused to the environment by the nature users. Frequently environmental inspectors make erroneous calculations of the damages caused to the environment by the nature managers.
Here are only some examples of such mistakes:
-when calculating the amount of damages analytical control (gauging of air, the ground and water) of the environment is not carried out;
-When calculating damage the inspector must determine the factual damage levels caused by the emissions into the environment but in many cases the emission levels which are recorded in the industrial documentation of the enterprise are accepted without any independent verification by the inspector leading to potentially huge discrepancies between the actual and recorded environmental damage;
-sometimes an area of the environment which is protected from pollution is incorrectly determined to be contaminated ( one such case concerns the unsubstantiated finding that a nature user had polluted underground waters though in fact it was only the ground resources that actually became contaminated) which again causes errors in the calculation of the amount of damages.
Administrative liability
Administrative liability
As well as the duty of the nature user to pay for the abovementioned exceeding emissions levels established by the environmental legislation, there is also an administrative responsibility for exceeding emissions limits stipulated by item 243 of the Code of Kazakhstan «Concerning administrative offences». The maximum penalty under this clause is established for the legal entities, subjects of large business, and is equal to 1000 % of the rate of payment for emissions within the established limits.
For your information: rates of payment are annually established by local representative committees (maslikhats) of oblasts, and Almaty and Astana (item 19 EC RK).
Criminal liability
Criminal liability
If the exceeded emissions in the environment have entailed:
-serious environmental contamination,
-caused harm to the health of a person,
-mass destruction of an animal or flora
-other major consequences,
In these cases there is criminal liability stipulated in item 277 of the Criminal code of RK, resulting in punishment with up to five years of imprisonment.
The conditions of criminal liability, listed above, are established by judicial-investigatory bodies.
GRATA recommends:
GRATA recommends:
1) Pay close attention to the requirements of the environmental legislation regarding environmental permits as non-observance of these requirements can entail serious consequences for your business and your personal freedom.
2) In case your business faces any legal questions concerned with the preservation of the environment from pollution, we recommend addressing them immediately and seek the consultation of experts.
GRATA offers:
1) Detailed legal analysis of documents of the business connected with observance of environmental requirements in the field of issues in the environment, with a view to prevention of serious legal sanctions from the state.
2) Highly skilled legal advice during environmental inspections of your company concerning environmental contamination and we can provide an economic estimation of the damage caused to the environment.
3) Analysis of the documents resulting from environmental inspections which concerns the payment of damages and also provide consultation aiming to minimize or contest the payments. .
4) Appeal the payments charged for exceeding emission levels in court.
5) Provide legal consultations on any questions connected with environmental permits.
We hope, that this information will prove useful to you.
We hope, that this information will prove useful to you.
In case of any questions or additional information is required, please, contact us immediately.
This information is made exclusively as general advice and cannot be used as a specialized legal opinion.
Saule Akhmetova
Partner, Head of Environmental Law
Tel.: +7 (727) 259-01-12
Fax: +7 (727) 259-01-98
Mob.: +7 (701) 722-32-80
sakhmetova@gratanet.com
Rashid Saniyazov
Partner
Tel.: +7 (727) 259-01-12
Fax: +7 (727) 259-01-98
ecology@gratanet.com
Leila Makhmetova
Lawyer, LLM, Environmental Law
Tel.: +7 727 259 01 12
Fax: +7 727 259 0198
Mob.: +7 (777) 429-24-95
lmakhmetova@gratanet.com
