23-04-2013

Environment And Industry

Authors

  • Entela Memishaj Shehaj, Attorney at Law
    Partner at Zaka & Kosta Attorneys at Law
    Enis Boriçi, Attorney at Law
    Associate at Zaka & Kosta Attorneys at Law

I. The environment protection according the Albanian legal framework and governmental strategies and policies

Environmental protection constitutes a national priority for the country and is obligatory for all physical or legal entities, national or foreign one, that perform their activity in the Albanian territory. The environment protection as an important state topic has been provided by the Albanian legal framework and is incorporated in the governmental strategies and policies of development. The need to protect the environment is primary provided by the Albanian Constitution, which clearly specify the importance of the environmental issues, in particular articles 56 and 59. These articles emphasize the right of citizens to be informed on the status and the protection of the environment, the obligation of the state to provide a healthy environment for its citizens and the future generations as also the rational exploitation of the natural components and resources by means of a sustainable development. Meanwhile, Albania has ratified the Agreement for Stabilization and Association, an according to this agreement has the obligation to approximate the national legal framework with that of the European Union. As a result, our legal framework concerning the environmental and industry issues has been lately drafted in compliance with the European policies regarding these issues. On the other hand, Albania has also ratified, by being a member of, international conventions and treaties in relation with such issue.

A. Legal framework

Albanian legal framework is been harmonized with the European Directives, and actually the most important legal acts regarding the environment are as follows:

(i) Law No. 10431, dated 09.06.2011 “On the Environmental Protection”, harmonized with the EU Directive 2004/35/CE;

(ii) Law No. 10440, dated 07.07.2011 “On the Assessment of the Environment Impact” harmonized with the EU Directive 85/33/CEE;

(iii) Law No. 10448, dated 09.07.2011 “On the Environmental Permit”harmonized with the EU Directive 2008/1/CE;

(iv) Law No. 10463, dated 22.09.2011 “On the integrated management of the wastes”

harmonized with the EU Directive 2008/98/KE. The Law No. 10431, dated 09.06.2011 “On the Environmental Protection”is a comprehensive framework law with the following main objectives: (a) rational use of the environment and reduction of discharges into and pollution of the environment, prevention of its damages, rehabilitation and restoration of the damages environment; (b) improvement of environmental conditions, related to the quality of life and protection of public health; and (c) prevention and maintenance of natural resources, renewable and non-renewable, rational and efficient management by ensuring their regeneration. These laws foresee, develop and implement basic principles such as: Best Available Techniques, Monitoring and Auditing Procedures and scheme Voluntary Agreement for realizing a higher level of protection of the environment than what is stated in the legislation, Cooperation among Ministries for the education, training and protection of environment.

B. Governmental Strategies and Policies

The Ministry of Environment, Forest and Administration of Waters has the obligation to draft, in a periodic time, national environmental plans and strategies, as appropriate for each of the environmental components. These strategies and plans should be reviewed and updated on a regular basis, by means of the environmental needs, and also should be approved by the Council of Ministers, as it is provided by the article 21 of the Law No. 10431, dated 09.06.2011 “ On the Environmental Protection”. Based on these national environmental plans and strategies the local government authorities have the obligation to draft their acting and local plans regarding the environment. These local plans should be also reviewed and updated in accordance with the national one. The Environmental Strategy, an integral part of the National Strategy for Development and Integration, is the main document that provides the national policy regarding the environment protection, and is drafted in full compliance with the standards of the European countries. The latter is approved by the Council of Ministers by means of the DCM No. 847, dated 29.11.2007. This strategy provides the impact of the urban development, industry, energy etc. The Environmental Strategy includes development of policies about integrated environment, enforcement of the national administration system of natural components, integrated administration of the protected areas, policies to increase the green surfaces and increasing the rate of usage of renewable sources compared with the non-renewable one. It provides all the necessary steps which should be fulfilled to approximate the legal framework with the European Union and its implementation, and the disposition to engage the community by being part of the administration process of natural resources. One of the main issues emphasized in this strategy is the need of performing the assessment of the environmental impact for different kinds of activities and the strategic environmental assessment for plans, programs and policies in order to achieve the abovementioned purpose. In the light of the above mentioned, environmental protection in Albania is duly provided by means of legal and sub-legal acts as also by the governmental strategies and policies, in accordance with the legislation of the European Union.

II. Main industries in the country and the environmental protection

Environment and industry are two main issues of the Albanian development economy. Both, economic development and environmental protection being important for the development of the country are in need of protection and promotion, as it is provided by the legal Albanian framework. These two important issues should stand in together permitting the development, by not damaging each other. As a result any kind of activity that is considered to have an environmental impact has the legal obligation to perform an assessment of the environmental impact of the industry and further to obtain an environmental permit, provided by the Law No. 10431, dated 09.06.2011 “On the Environmental Protection”, and Law No. 10448, dated 09.07.2011 “On the Environmental Permit”. In order to achieve the main objectives of the Albanian government: to develop the industry and to protect the environment the later has done the best of its efforts to approximate the legislation with the EU Directives and to make it applicable as much as possible to the Albanian standards. With the scope to develop the industry the Albanian government has approved by means of Decision No. 703, dated 23.04.2008 the study of the master plan on the integrated development in synergy of the industrial and energetic zone of Porto-Romano, Durres. Under the study are approved the energetic parks that will rise up in the future. This industrial and energetic zone is the biggest in the country. There is also an industrial zone in Vlora which is devoted to the deposit and transportation of oil.

Some of the main industries developed in the country, that have an important role in the national economy are as follows:

(i) Oil and Gas;

(ii) Construction;

(iii) Mining;

(iv) Electricity;

(v) Waste Management. We would like to emphasize that these industries are not the only one, having the obligation to protect the environment. There are too many others such as the entertainment industry, transport, production and manufacturing industries etc.

C. Environmental Impact Assessment and Environmental Permit

Environmental Impact Assessment

In order to perform the activities in the abovementioned industries, it is required an assessment of the impact that these industries might have on the environment. Αssessments are crucial documents to obtain the environmental permit, in order to develop further the activity. The assessments reports are based on the prevention principle, as they take in consideration all the natural components of the area, by exploring all potential environmental impact of the industrial activity and therefore propose measures to avoid the damage.

These derive from Law No. 10440, dated 07.07.2011 “On the Assessment of the Environment Impact”, Law No. 10448, dated 09.07.2011 “On the Environmental Permit” and Law No. 9663, dated 18.12.2006 “On Concessions”. The national methodology for the assessment of the environmental impact is approved by the Ministry, defining the necessary requirements in order to draft the reports, which should be deposited to the NCL together with the required documents mentioned in the Law No. 10081, dated 23.02.2009 “ On the licenses, authorizations and permits in the Republic of Albania”.

Environmental Permit

At a later stage, the industries licensed to perform one of the above activities, have the obligation to obtain an Environmental Permit, that according to Law No. 10431, dated 09.06.2011 “On the Environmental Protection” and Law No. 10448, dated 09.07.2011 “On the Environmental Permit”, are categorized in 3 (three) levels, reflecting the approximation with the EU Directives, which are as follows:

(a) Environmental Permit Type A;

(b) Environmental Permit Type B;

(c) Environmental Permit Type C. Each Type A, B and C is obligatory to perform the activities listed in each category, in accordance with the terms and conditions determined in the respective annexes of Law No. 10448, dated 09.07.2011 “On the Environmental Permit”. Procedures to obtain an environmental permit of Type A, B, or C are rendered through the National Center of Licensing, a state entity which functions in accordance Law No. 10081, dated 23.02.2009 “On the licenses, authorizations and permits in the Republic of Albania”. It is important to emphasize that the Environmental Permits are nominative and attributed to the licensed entity. These permits may be transferred to other physical or legal entities subject to the prior written approval of the authority that has issued it.

D. Legal provisions related the main industries

The main industries abovementioned, have their respective regulatory legal framework which makes cross reference to the laws on the environment protection.

Gas and Oil: Industry of research, exploitation and production in the sector of Oil and Gas is regulated by Law No. 7746, dated 28.07.1993 “On hydrocarbons” and Law No.9946, dated 30.06.2008 “On the natural gas sector”. These laws provide that these industries and the activities preformed under their scope should be in compliance with the Law No. 10431, dated 09.06.2011 “On the Environmental Protection”. The environmental permit is a mandatory requirement for the ongoing implementation of the projects of these industries.

Electricity: The required criteria to perform the activity and to continue the implementation of a project in the production and selling of the electricity are provided by the Law No.9072, dated 22.05.2003 “On the electricity sector”. One of the main criteria that should be respected is the environmental protection issue.

Mining: Entities that wish to perform activity in the mining sector should obtain a mining permit. In order to obtain such permit the entity should deposit, among other necessary documents, an environmental rehabilitation plan relating the exploitation zone, in accordance with the main principles of the environmental protection. Due to the environment impact of this sector, entities have the obligation to rehabilitate the mining zone.

Construction: The construction sector is regulated by the Law No.10119, dated 23.04.2009 “On urban planning”. Depending on the kind of the project, the construction companies should obtain one of these permits: (a) development permit; (b) building permit; (c) infrastructure permit; (d) usage permit. All the permits mentioned above are included in the category V.2 of the annex of Law No. 10081, dated 23.02.2009 “On the licenses, authorizations and permits in the Republic of Albania”.

Waste Management: The industry produces environmental outputs, so the legal framework has foreseen the sector of the waste management, by means of Law No.10463, dated 22.09.2011 “On the integrated management of the wastes”. This Law sets the regulatory frames and reaffirms the principle according to which the waste management should be: “carried out without jeopardizing the human health, without harming the environment and, in particular: (a) without risk to water, air, soil, plants or animals; (b) without causing a nuisance through noise or odor; (c) without adversely affecting the countryside or places of special interest”. The law provides different waste categories and confers to the Council of Ministers the approval of the implementation acts on the waste management criteria. The waste management aims to prevent, reduce or limit the harmful impacts of waste on human health and the environment.

III. Liabilities due to the breach of environmental laws and/or permits

The environmental regulatory authorities may impose fines, confiscate the equipment or the materials causing pollution or damaging the environment or even suspend or revoke, temporarily or permanently, the environmental permit and close the activity for which this permit has been issued. On the other hand, in case of administrative contraventions and/or criminal violations, there shall also be evaluated the damages caused to the environment by the infringing person who shall be liable for the payment of the same. Some of the environmental violations represent criminal acts under the Albanian Criminal Code, which are related to the Polluting the Air, -Transporting Toxic Waste, Polluting the Water ect. Referring to the Law No. 10431, dated 09.06.2011 “On the Environmental Protection”, any operator is liable for the damages caused to the environment or the human health in case of infringements of the law constituting administrative contraventions and/or criminal offences independently from the status of compliance with the conditions of a specific environmental permit. The liability’s purpose, based on the principle “The polluter pays” is as follows: -prevention and remedy of the environmental damage; -rehabilitation of the environment; -presentation of measures & practices to minimize the risk of environmental damage.

IV. Conclusions

On the light of the above, we can note that the latest legal framework related to environment have been updated in 2011, by enhancing the possibility of a sustainable development of the industry taking in consideration the environmental impact.

GREEK LAW DIGEST REPUBLIC OF ALBANIA MINISTRY OF INTEGRATION Union of Chambers of Commerce and Industry of Albania
Nomiki Bibliothiki ALBANIA INVESTMENT DEVELOPMENT AGENCY Foreign Investors Association of Albania
     

 

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