KAZAKHSTAN Law and Practice Contributed by: Arman Bigazin, Mikhail Abdulov, Olzhas Abubakirov and Lidiya Sayenko, Haller Lomax LLP
4.2 Environmental Permits/Approvals Legal entities will be required to obtain an environ- mental permit if their activities fall under Section 1 or 2 of Annex II to the Environmental Code (“Annex II”). Annex II contains the lists of activities and quantitative criteria, according to which a facility is allocated to Category I, II or III (ie, facilities that could have either a significant, or moderate, or insignificant negative impact on the environment, respectively). An environ- mental permit must be obtained for the construction and/or operation of Category I or II facilities. Catego- ry III facilities can be built and operated based on a notification sent to the relevant permitting authority (“Declaration”). There are two types of environmental permits: an integrated environmental permit and an environ- mental impact permit. The environmental permits for Category I facilities are issued by the CERC or its territorial departments (for Category II – by local executive authorities) in electronic form through the e-government web portal (the “Portal”). To obtain a permit, a person must apply to the permitting authority with supporting documents such as project documen- tation for the construction and/or operation of facili- ties, draft emission limits, a draft waste management programme, a draft programme of industrial environ- mental control and other documents. As part of issu- ing an environmental permit, the permitting authority conducts a state environmental expert review of the project documentation for the construction and/or operation of the facility concerned. The public can express their opinions and comment on the proposed application and the project documentation in the pro- cess of the state environmental expert review. Integrated Environmental Permit As a rule, an integrated environmental permit must be obtained for facilities that could have a signifi- cant negative impact on the environment, to ensure integrated pollution prevention using the best avail- able techniques (Category I). Operators of Category II facilities are also allowed to apply for an integrat- ed environmental permit if there are approved Best Available Techniques Conclusions applicable to the relevant facility.
system for monitoring emissions, documentation and reporting submitted to the CERC/the MENR. This type of supervision does not require registra- tion with the prosecutor’s office or the sending of a notice to the person concerned. No liability can be imposed on the person concerned even if the CERC reveals breaches. The CERC will issue an information notice specifying the revealed breach- es of law/environmental permits (if any) and the person concerned will propose their/its plan as to how and when such breaches will be eliminated. • Preventative Control With Site Access: This includes the right to visit the site and premises. This form of supervision is conducted according to the risk assessment system (target persons are divided into four levels of risk) and based on the schedule approved by the prosecutor’s office. The CERC will issue an administrative order prescrib- ing that the person concerned must eliminate the revealed breaches and giving the deadlines for doing so. As a general rule, the CERC would not be allowed to impose fines or other administrative sanctions in this case (the only exception are Cat- egory I objects – ie, the major polluting facilities; see 4.2 Environmental Permits/Approvals ). • Unscheduled Inspection: This is conducted in a limited number of cases, including based on com- plaints received from individuals or legal entities, or when instructed by the prosecutor’s office. As a general rule, unscheduled inspections must be preliminarily registered with the prosecutor’s office. There are special instances when the CERC would be allowed to conduct a “surprise” inspection or pre- ventative control with site access with post factum registration with the prosecutor’s office. Access powers include the right to: • interrogate experts and specialists; • demand the provision of documents relevant to the case;
• demand audits and checks; • collect material evidence; • use audio and video recordings; • make measurements; • take samples; and • other procedural actions.
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