Subsoil use

19/ 10/ 2023

The EBA Subsoil Use Committee has sent an official request to the Ministry of Environmental Protection and Natural Resources of Ukraine to provide clarification on the absence of the need for subsoil users to undergo an environmental impact assessment (EIA) procedure when conducting exploratory and industrial development (EID) of mineral deposits. This need arose because, according to the EBA member companies, there are frequent cases of issuing orders by inspectors of the State Ecological Inspectorate of Ukraine in the absence of an EIA conclusion in the course of geological exploration, including pilot development of mineral deposits, and/or opening criminal proceedings under Articles 240 and 2401 of the Criminal Code of Ukraine, which are subsequently closed due to the absence of a criminal offense. According to business representatives, such actions of the regulatory authorities are due to an ambiguous understanding of Article 3 of Law No. 2059-VIII On Environmental Impact Assessment. This situation creates additional difficulties for companies operating under martial law, in particular in terms of proving the legitimacy of the planned activities. The EBA has received an official letter from the Ministry of Environment stating that the planned economic activities that involve the implementation of direct DPD are not defined in parts two and three of Article 3 of the Law, and therefore do not require an EIA conclusion. Additionally, the clarification states that in accordance with part one of Article 3 of the Law, EIA is mandatory in the process of making decisions on the implementation of planned activities defined in parts two and three of Article 3 of the Law. Such planned activities are subject to an environmental impact assessment prior to making a decision to carry out the planned activity. Activities not expressly provided for in parts two and three of Article 3 of the Law, as well as planned activities aimed solely at ensuring the defense of the state, elimination of the consequences of emergencies, consequences of the anti-terrorist operation on the territory of the anti-terrorist operation for the period of its conduct, in accordance with the criteria approved by the Cabinet of Ministers of Ukraine, restoration work to eliminate the consequences of armed aggression and hostilities during martial law and during the reconstruction period, are not subject to environmental impact assessment. The European Business Association is grateful for the clarifications provided and looks forward to further constructive cooperation!

This need arose because, according to the EBA member companies, there are frequent cases of issuing orders by inspectors of the State Ecological Inspectorate of Ukraine in the absence of an EIA conclusion in the course of geological exploration, including pilot development of mineral deposits, and/or opening criminal proceedings under Articles 240 and 2401 of the Criminal Code of Ukraine, which are subsequently closed due to the absence of a criminal offense. According to business representatives, such actions of the regulatory authorities are due to an ambiguous understanding of Article 3 of Law No. 2059-VIII “On Environmental Impact Assessment”. This situation creates additional difficulties for companies operating under martial law, in particular in terms of proving the legitimacy of the planned activities.

The EBA has received an official letter from the Ministry of Environment stating that the planned economic activities that involve the implementation of direct DPD are not defined in parts two and three of Article 3 of the Law, and therefore do not require an EIA conclusion. Additionally, the clarification states that in accordance with part one of Article 3 of the Law, EIA is mandatory in the process of making decisions on the implementation of planned activities defined in parts two and three of Article 3 of the Law. Such planned activities are subject to an environmental impact assessment prior to making a decision to carry out the planned activity.

Activities not expressly provided for in parts two and three of Article 3 of the Law, as well as planned activities aimed solely at ensuring the defense of the state, elimination of the consequences of emergencies, consequences of the anti-terrorist operation on the territory of the anti-terrorist operation for the period of its conduct, in accordance with the criteria approved by the Cabinet of Ministers of Ukraine, restoration work to eliminate the consequences of armed aggression and hostilities during martial law and during the reconstruction period, are not subject to environmental impact assessment.

The European Business Association is grateful for the clarifications provided and looks forward to further constructive cooperation!

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