The Final Decision in the Environmental Impact Assessment Procedure in Ukraine as a Multilateral Agreement Tretiak Taras Associate Professor of National Taras Shevchenko University of Kyiv E-mail: t.o.tretyak@gmail.com

The final decision – is the transaction (contract) Civil Code of Ukraine dated 16.01.2003 no. 435-IV (hereinafter - CC) A transaction shall be an action of a person aimed at acquisition, changing or termination of civil rights and obligations (article 202(1) of CC). Transactions may be unilateral, bilateral or multilateral (contracts) (article 202(2) of CC). The final decision is only efficient provided that the authorised public authority possess wide margin of discretion.

Legal nature of the final decision in the EIA procedure The decision allowing the proposed activity to be carried out The decision shall approve all “environmental parameters” of the proposed activity All stages of EIA procedure must be completed before the final decision Taking the final decision the competent public authority has to take duly into account the results of EIA (public comments and the comments of the others public authorities) The decision shall be binding The final decision is not the tool for the installation inspection.

The final decision shall approve all “environmental parameters” of the proposed activity The goals of the EIA procedure performed by the final decision are: To assess whether the design choices are reasonable; To strike the fare balance between the different interests; To prevent the damage to the environment or human health, even if the legislation allows the harmful proposed activity; To decrease the level of impact on the environment and the risk for human health, even if this risk is lawful, but can be eliminated by economically reasonable measures; to establish the operational rules for the chemicals there are no norms for; To establish the developer action plan in case of lack of knowledge how to act in case of some particular risk.

Limited liability Company “Eurofinance LTD” The company planed to build the cast and roll plant with the production capacity of 1,8 million ton steel production per year in the city of Bila Tserkva. The company submit the EIA to the Ministry of Environmental protection of Ukraine for environmental expertise. The state environmental expertise conclusion no. 484 dated 28/4/2007 required to improve the construction design The state environmental expertise conclusion no. 484 require to add more information about the impact on water bodies in the low-water season (the EIA report allowed the company to abstract 10 600 cubic meter per day) The state environmental expertise conclusion no. 616 dated 18/4/2008 contains positive assessment of the EIA report (the EIA report allowed the company to abstract 4 000 cubic meter per day).

Avdiivka coke plant Technological norms of emission limit value from coke ovens, adopted by the order of Ministry of Environmental protection of Ukraine dated 29/9/2009 no. 507 (as in force in 2009) The perspective technological norm for particulate matters – 50 mg per cubic meter. 2.1.2. The current technological norm for particulate matters, laid down in the table 1 is valid till 31/12/2014. Technological norm for particulate matters has not exceed the indicators established by paragraph 3.1. [perspective technological norm] since 1/1/2015. 26.06.2018

Extract from the Air permit 26.06.2018

1/7/2015 The application for the permit was submitted 31/7/2015 The day, when the permit had to be issued 1/7/2016 Coke oven was dismantled and replaced with the new one The mass concentration of Sulphur dioxide (dioxide and trioxide) on conversion to dioxide shall not exceed the following indicators of technological norm of emission limit value: for coke ovens using as an fuel the coke gas is equal to 500 mg/cubic meter. The installation of limited term of exploitation is the coke ovens or other coke-chemical installations that would be exploited till the first of January 2015 and than would be dismantled or replaced. The installations are not submitted to the technological norms and the emission limit values are established in the permit. 26.06.2018

The rules if the parties have not come to the agreement As well as to the other agreement the legislation establishes the rules defining the consequences of mentioned above state. Example Article 645(1) of CC If the response on acceptance of the offer to conclude an agreement was received with delay, a person that made an offer shall be released from his/her respective obligations.

The rules in case of the parties can not reach the agreement Article 6(8) of Aarhus convention Each Party shall ensure that in the decision due account is taken of the outcome of the public participation. Article 2(3)(3)and(8) of the Code of Ukraine on Administrative Court Trial Procedure, dated 3. In cases, when the applicant appeals of a public authority decisions, actions or failure to act administrative courts shall check, whether the they are taken (are made): 3) reasonably, that is taking into account all circumstances important for decision making (making of action); 8) in proportion, in particular with observance of necessary balance between any adverse effects for the rights, freedoms and interests of the person and the purposes on which achievement this decision (action) is directed;

The legal precondition of the final decision as an agreement The public authority taking the final decision has to establish reasonable conditions, otherwise the state officials will be punished for not fulfilling their obligations. If public concerned is deprived from the reasonable opportunity to participate in decision-making procedure the public’s property rights at least deemed to be violated; Having fulfilled the legal requirements applicant has the right to obtain the permit (the applicant has the right to permit (or other final decision));

If the final decision is recognise to be the agreement (or contract) The procedure or conclusion, amendment and cancellation of the agreements will cover the final decision; The public concerned role is not to make the public authorities just to follow what it is prescribed by the general binding rules, but it participates in the final decisions condition drafting.