Report of Akhtala meeting

24.08.2016

Report

On the joint discussions organized by the “Center for Economic and Legal Analysis” NGO and the “Center for Community Mobilization and Support” NGO, regarding the recorded violations made by “Akhtala Ore Processing Combine” CJSC and legal aspects of the environmental problems of the Community of Akhtala

 

On the 18th of August, 2016, the “Center for Economic and Legal Analysis” NGO and the “Center for Community Mobilization and Support” NGO initiated joint discussions, regarding the violations made by “Akhtala Ore Processing Combine” CJSC during its activities and legal aspects of the environmental problems of the Community of Akhtala. Civil society activists, representatives of the mentioned NGOs, the Mayor of Akhtala and Akhtala Municipality representatives took part in the mentioned discussions.

The meeting agenda included following questions:

  1. The legal significance, value and ways of appealing of No BP-31 Environmental Impact Assessment Expertise per March 20, 2007.
  2. The main requirements for water resources protection and measures of legal control.
  3. The legal significance and legal consequences of violating (as well as in the context of the draft code of Administrative Offences) the requirements of the Natural Resource Mining Project,  specified by the RA Mining Code.
  4. Procedures for publicizing, notification and requesting of inspection results, and liability.
  5. Contemporary legal issues of administration.

At the same time, the legality of ceasing the deduction of the environmental fees for the Community of Akhtala was questioned and at the request of the Mayor of Akhtala added to the agenda.

During the meeting, the legal significance of the Environmental Impact Assessment Expertise became a special subject of a detailed discussion. In particular, the following question was discussed: how to react through legal dimensions if: a) the assessment expertise was filed with violations of the requirements of law, b) a legitimate assessment expertise is followed by newly emerging environmental problems. In other words, in the second case, an assessment expertise might be considered well-grounded but then new environmental problems are emerging.  

A clarification was made by Dr-Prof. Gevorg Danielyan about the basis for the recognition of the assessment expertise results as repealed being fixed in the article 21, part 2 of the according law.

“The positive result of the expertise is considered repealed if:

1)      If the actions are carried out with deviations from the requirements towards the expertise and towards the project documents being examined,

2)      If changes in the project and basic documents being examined, that can potentially impact the environment, have been made without notifying the authorized body,

3)      If the conditions mentioned in Part 1 of current article are not met within the fixed timeline,

4)      A new environmental legislation has been adopted,

5)      New environmental factors have occurred after the assessment expertise had been made”.

This legislative norm implies that an expertise can be considered repealed if the procedure of its compilation established by the law is violated, as well as when new ecological problems occur, which are not expressed in the expertise. In the latter case it should be noted, that in case of changes in the environmental situation and/or the requirements, defined by the regulating ecological laws or other legislative acts, the authorized body notifies the initiator concerning the new ecological conditions and the timeline of their implementation. If after receiving the notification, the initiator fails to implement the described conditions within the fixed timeline, the authorized body considers the issued expertise repealed.

Thus, the expertise can be considered repealed if the authorized body notifies the initiator concerning the newly occurred circumstances, fixes a reasonable timeline for their elimination, but no appropriate measures are being taken during that period of time.

The participants also discussed that it is not appropriate to repeal an expertise judicially. In particular, the contemporary judicial practice is still not inclined to observe an expertise as an administrative act, and as a result, such claims are being returned by the Administrative Court.

Applying to the authorized body, using one of the mentioned grounds, in order to repeal an assessment expertise, is the most efficient method. Moreover, if the authorized body does not make a decision in the grounds prescribed by law or makes an unfounded decision, that decision or its inactivity can be appealed.

Acts or certificates of inspection shall be publicized. These documents cannot be considered as ones, containing secrets protected by state or law. If, however, such data do exist in these documents, only the recorded violations part shall be publicized, and not the one, containing secrets protected by law.

As for the legal significance of the mining plan, it was highlighted that according to the current legislation (The Mining Code of the RA, article 49), in order to obtain the mining right, the application should be accompanied by the plan for mining. It was emphasized that according to the mentioned law (article 50):

The mining plan shall contain:

1) such modes operation systems of opening a deposit, which are in line with the best international practice and shall ensure reasonable and comprehensive, economically feasible industrial extraction of reserves of basic minerals and varietals, ensuring the minimal losses for the environment as well as safe and long-term operation of facilities,

2) details regarding development of planned infrastructures,

3) estimation of expected period of operation of the mine based on the existing technical and economic indicators,

4) assessment of nature and environmental impacts, including development of a plan for environmental management and ongoing monitoring;

5) assessment of social impacts, including:

a) provisions for improving social conditions of population;

b) guarantees for participation in the process of socio-economic development of the community,

6) storage and preservation of removed soil and base ore extracted in parallel,

7) observance of the established rules and norms of work safety, protection of health of employees and nature and environmental protection,

8) reclamation of the affected lands.

 

The Mayor of Akhtala, Mr. Hayk Khachikyan, raised the question of the legality of ceasing the deduction of the fees for the Community of  Akhtala. There is no decision made by a competent authority, just discussions, held by the Ministry of Nature Protection. As a result, a highly controversial practice has been formed, in particular, in some cases fee deduction is intended, and in other cases it is not.

It was clarified, that no ministry has right to make a final decision, using a protocol approach, especially on contributions made to municipal budgets. In particular, according to article 57 of “Law on Self-Governance” of the RA, The rates of deductions from income and profit taxes, as well as environmental fees, collectable to the community budgets according to the legislation shall be defined in the annual budget laws on a yearly basis. Thus, it is the state budget, and in such circumstances we can talk only about the RA “Law on State Budget” adopted by the National Assembly of the Republic of Armenia. If deductions are defined by law, no agency is allowed to ignore the legislative requirements of setting interest rates.

As a result, the “Center for Economic and Legal Analysis” NGO experts were issued the copies of documents, containing information on controversial issues for discussions. It was agreed that after a detailed examination of the documents, necessary papers, including appeals and complaints, will be drawn up and sent to the addressee via e-mail.