THE POST-PROJECT ANALYSIS in transboundary EIA

Experience of Poland

dr Katarzyna Twardowska

Departament of EIA, General Directorate for Environmental Protection (GDEP)

Geneva, 27 May 2015

1. LEGAL BACKGROUND FOR CARRING OUT THE POST-PROJECT ANALYSIS (PPA) 2. EXPERIENCE of POLAND – 3 STUDY CASES (THE POST-PROJECT ANALYSIS AS THE RESULT OF TRANSBOUNDARY EIA WITH SWEDEN , BELARUS AND CZECH REPUBLIC) 3. PPA IN BILATERAL AGREEMENTS 4. CONCLUSIONS

1. LEGAL BACKGROUND FOR CARRING OUT THE POST-PROJECT ANALYSIS The Espoo Convention (Article 7) says that: The concerned Parties, at the request of any such Party, shall determine whether, and if so to what extent, a post-project analysis shall be carried out. Any post-project analysis undertaken shall include, in particular: - surveillance of the activity, and - determination of any adverse transboundary impact. When, as a result of post-project analysis, the Party of origin or the affected Party has reasonable grounds for concluding that there is a significant adverse transboundary impact or factors have been discovered which may result in such an impact, it shall immediately inform the other Party. The concerned Parties shall then consult on necessary measures to reduce or eliminate the impact.

THEORY…which we know According to Espoo Convention and its Guidance (ECE/MP.EIA/8, 2006): 1) PPA is non-obligatory phase of transboundary EIA 2) each Party could request for the PPA 3) the concerned Parties may have different views whether such analysis is necessary (and if so - to what extent) 4) the Parties could decide if PPA is needed – mainly during and as the result of consultation phase of transboundary EIA 5) PPA is a tool to monitor the compliance with the conditions concerning the activity and the effectiveness of mitigation measures 6) PPA is a tool to review our knowledge about activity and its influence on environment Knowledge about the real impact of activity, comparing to predictions, in the context of proper management and dealing with uncertainties , and in order to taking advantage of study case’s experience - in future.

7) PPA – if is carried out - contains at least: monitoring of the activity and identification (determination) any adverse transboundary impacts 8) there is an obligation to react - in case of unexpected results of PPA (informing, carrying out the consultations with the affected Party - about necessary measures to reduce or eliminate the impacts) 9) PPA can be included in the final decision as the one of the requirements of monitoring of the activity, or it could be made as the part of transboundary assessments’ overall plan, from the beginning of the procedure 10) monitoring of the activity and its impacts – as the typical basis for PPA - could be made also jointly by the Parties and within the territory of all concerned Parties 11) there is an obligation to exchange the results of monitoring 12) extends the Espoo Convention to the implementation stage of the project (gives to the Parties possibility to co-operate during implementation and to reaction if this is necessary - in purpose of the reduction/elimination of the adverse impact) 13) bilateral agreements – the opportunity to establish requirements concerning PPA in details

THE ACT of 3 October 2008 on the Provision of Information on the Environment and its Protection, Public Participation in Environmental Protection and Environmental Impact Assessments Art. 82 par. 1 p. 5 says that: In a decision on the environmental conditions, issued after EIA, the competent authority may impose on the applicant (investor) the requirement to present a follow-up analysis (PPA). In that case – the authority also set out the scope of that analysis and the date of its presentation.

According to the Polish law, PPA is the basic tool for: 1) comparing the findings contained in the EIA documentation and in the decision on the environmental conditions - with the real environmental impact of the activity and the measures taken to reduce it, especially - comparing the findings concerning the predicted environmental impact of the activity (its nature and the scope) - and the proposed prevention measures 3) may indicate the need to designate a restricted use area for the activity

What is already discovered?

What are we discovering…still?

PRACTICE…?

2. POLISH EXPERIENCE – 3 STUDY CASES (THE POST-PROJECT ANALYSIS AS THE RESULT OF TRANSBOUNDARY EIA WITH SWEDEN, BELARUS AND CZECH

REPUBLIC)

Case study 1. PPA of sand exploitation on the Middle Bank in the Baltic Sea Case study 2. PPA of Belarusian Nuclear Power Plant Case study 3. PPA of wind farm „Lubrza”

Case study 1. PPA of sand exploitation on the Middle Bank in the Baltic Sea Poland – Party of Origin Sweden – Affected Party EIA, also in a transboundary context – before issuing the concession for exploitation of mineral deposits on the Southern Middle Bank in the Polish EEZ. The obligation to carry out a post-project analysis was firstly imposed in the decision on environmental conditions that as a rule was binding for the geological concession. The requirement to perform such analysis was included in the concession for exploitation issued by the Minister of Environment on 15 November 2006.

Polish investor was obliged to perform bathymetry study within 18 months since starting the exploitation and then provide the outcomes to Sweden. 1) the core issue covered by the bathymetry study was control of changes in the morphology of seabed on the Swedish side of Southern Middle Bank, that might occur as a result of sand exploitation, 2) the findings of controling measurements showed that there were no changes in the morphology of seabed or water turbidity on the Swedish side in 2008, 3) the post-project analysis was provided to Sweden on 17 February 2010, 4) no comments or doubts arose from Sweden, 5) so, no need for further consultations.

Case study 2. PPA of Nuclear Power Plant project in Belarus Belarus – Party of Origin Poland – Affected Party Notification – August 2008; Final decision - 2013 EIA, also in a transboundary context, including consultations - May 2010 in Warsaw Poland requested about conducting PPA for the Belarusian NPP and presenting the results The Belarusian Side intends to carry out the PPA for NPP – „to control compliance with the conditions of the implementation of the activity, to review the environmental impact and to verify the EIA predictions”.

May 2014 – Belarus sent to Poland the PPA Program for Belarusian NPP (in English only) – asking for suggestions regarding the parameters of post-project analysis and exchange of its data by August, for the purpose of their further discussion Concerned Parties, which sent remarks to the Program: Poland, Lithuania, Latvia, Ukraine, Austria February 2015 – Belarus sent to Poland the PPA Program for Belarusian NPP – „which was finished taking into account remarks and offers of concerned Parties” Poland – every time GDEP was sending the documentation to the concerned national and regional authorities – asking for comments and suggestions

Case study 3. PPA of wind farm „Lubrza” Poland – Party of Origin The Czech Republic – Affected Party Notification – March 2012; Final decision – February 2014 EIA, also in a transboundary context, including consultations – August 2013 The Czech Republic requested for post-project monitoring consists of: 1) actual noise emission (performing measurements of noise during a day and night at the territory of CzR in defined spots, in different weather conditions) 2) monitoring of the birds and bats for 3 years.

The final decision (decision on environmental conditions) issued by RDEP (Regional Director for Environmental Protection) included the obligation of conducting PPA in terms of: 1) impact of the wind farm on the birds In this case – monitoring should be started within the first 12 months of operation, performed three times within five years. 2) impact of the wind farm on the bats This monitoring should be started within the first 12 months of operation, carried out for at least three seasons, during the first five years of the launch of investment, which is mandatory to include in the survey the first two years, while the third season tests can be performed in the third, fourth or the fifth year of the farm. 3) impact of the wind farm on the state of acoustic climate in the areas legally protected against noise The analysis should include the results of measurements of noise in the environment from the operation of the wind farm Lubrza carried out within 6 months from the date of commissioning of the farm, at eight points marked according to the report, and listed in the decision. The important requirements of the final decision: PPA should be translated into Czech, and presented to RDEP and Czech Republic in accordance with the terms set out in Decision

Bilateral agreements under Espoo Convention: 1) Polish – Lithuanian (2004) 2) Polish - German (2006, 2015?) 3) Polish – Slovakian (2016?...) 4) Polish - Belarusian (2016?...)

3. PPA IN BILATERAL AGREEMENTS

Polish – Lithuanian agreement (2004) Polish – German agreement (2006) *

The Parties may, by mutual agreement, in accordance with article 7 of the Convention, pointed to the need for post-project analysis, conducted after the completion of the planned activities. Party of origin shall provide (for affected Party) the results of post-project analysis, translated into the official language of the affected Party.

The Parties may by mutual agreement determine whether and, if so, to what extent the post-project analysis should be performed after the completion of planned activity, in accordance with Article 7 of the Espoo Convention, if the decision concerning the activity or internal regulations provide for the possibility of conducting post-project analysis. Party of origin shall provide (for affected Party) the results of post-project analysis, translated into the official language of the affected Party, if it was conducted.

* There is no important changes in these matters in the draft of agreement, which should be signed in Autumn 2015

DRAFT of Polish – Slovakian agreement DRAFT of Polish – Bielarusian agreement

The competent authorities of the Contracting Parties may determine whether and if so to what extent post-project analysis should be carried out in accordance with Article 7 of the Espoo Convention. The need to conduct post-project analysis, its scope and the way to provide the competent authorities of the Contracting Parties shall settle at the latest at the stage of transboundary consultations. The results of post-project analysis are not mentioned in the article relating to the translation … yet

Arrangements for post-project analysis necessary to prepare the competent authorities of the Parties shall, in each case at the stage of consultations carried out in accordance with Art. 4 of this Agreement. If it is determined the need for post-project analysis , is determined its scope, deadline for drawing up and the deadline for presentation of its results to the affected Party. The post-project analysis is done in accordance with the provisions of Art. 7 of the Convention and Annex V to the Convention. The Party of origin provides a translation into the official language of the affected Party the following documents: (…) the results post-project analysis, if the parties so agreed.

1. Generally, in domestic EIAs in Poland, PPA is mostly imposed in cases of infrastructure projects, especially linear, such as roads or railways, wind farms, huge industrial objects etc. 2. So far, Poland has no big experience in carrying out the post - project analysis in a transboundary context . 3. The scope of PPA – usually the monitored issues are: the air pollutions, noise, water pollutions, soil pollutions, fauna and flora species and natural elements of environment. ..

4. CONCLUSIONS

4. PPA (together with EIA documentation) could be an efficient tool that allows to monitor the state of environment and its quality – before realization of the activity and after, and to set out the necessary actions in „alarm situations”. 5. PPA allows to compare the predicted impacts (at the stage of EIA, also in transboundary context) with real impacts of the activity, so - PPA allows to check, if the methodological approach in EIA analysis (prediction) in specific cases is properly chosen or should be improved/changed - in future, in case of similar situation/projects or, for example, could be extend to more general rules. 6. Preparing jointly the scope of PPA (Affected and Origin Parties) – seems to bo good practice, good example of transparence attitude concerned Parties to the problem. 7. PPA provides Affected Party with the additional information and makes the post-project phase more transparent

8. Translation the documents (PPA and its data analysis, conclusions etc.) into the official language of Affected Party improves the quality of the cooperation, speed up the phase of giving opinions, let to avoid the misunderstandings etc. 9. PPA is seems to be long-term, costly and demanding phase of the project, but brings a lot of advantages - information about the affected environment, about emissions and other nuisance – what is especially important for investors (and their plans of furthe development), authorities, public and… science. 10. A good, transparent co-operation at PPA stage, as the part of EIA in transboundary context, could help both environmental protection and development – so I highly recommend to take care about: - the transparent dialogue between concerned Parties, - the high quality of documentation and its translation, - giving the exhaustive answer in case of questions , - meeting within the working groups and less formal contacts, - preparing bilateral agreement under Espoo Convention and.. - real willingness of solving the problems!

Thank you for your attention!