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Official Gazette

Sunday, June 7, 2020

Environmental protection assessment by foreign-invested enterprises

Updated: 14:10’ - 06/04/2020
Pham Duy Khuong
Managing Director of ASL LAW

Is it true that only firms of a certain production capacity need to carry out environmental impact assessment (EIA) (for example, in the food industry, only firms that produce more than 500 metric tons per annum need to make EIA?)

Regarding EIA issues, pursuant to Article 8 of Decree 18[1], not all firms have to make EIA. Only those whose projects are specified in Column (2) of Appendix II to this Decree have to follow this process.

Is EIA required only for construction of these projects, or should it also be renewed for regular production of goods or provision of services?

Your firm must make an EIA report before constructing and bringing a project into operation. However, for the following projects, under Article 15 of Decree 18, such EIA report must be re-compiled:

- For a project specified at Point a or b, Clause 1, Article 20 of the Law on Environmental Protection[2]:

(i) The project is not executed within 24 months from the date of issuance of the decision approving the EIA report;

(ii) The project location has been changed compared to the approved plan stated in the EIA report.

A construction project regarded as having not been executed for 24 months under Point a, Clause 1, Article 20 of the Law on Environmental Protection means that its owner fails to complete any work item during the construction stage of the project as required by the construction law.

- For a project specified at Point c, Clause 1, Article 20 of the Law on Environmental Protection: “Any increase in its size or capacity or any technological change can cause adverse environmental impacts in comparison to approved alternatives stated in the EIA report”, such as:

(a) Scale expansion or capacity increase (expansion of the main production line or addition of a main work or item) of the project resulting in generation of a waste volume exceeding the waste treatment capacity of environment protection works as compared with the plan stated in the decision approving the EIA report;

(b) Change in the technology for manufacturing main products of the project; change in the waste treatment technology of the project which might cause adverse environmental impacts as compared with the plan stated in the decision approving the EIA report;

(c) Expansion of investment scale of an industrial park or addition in an industrial park of new investment sectors of manufacturing products which might cause environmental pollution as specified in Groups I and II, Appendix IIa, Section I of Decree 18.

Is it correct that one must have the EIA report reviewed and approved by concerned authorities to get a certificate of environmental standards and take regular pollution control measures? Does this mean that small- and medium-sized firms, which are not required to make EIA, may take pollution control measures and still get a certificate of environmental standards regardless of how small they may be?

In other words, are all firms in Vietnam (including small- and medium-sized firms, such as cottage or household firms) required to get a certificate of environmental standards, or environmental permit/license?Even when these firms are not required to make EIA, do they still need a certificate of pollution control?

Regarding the EIA reporting process, one must follow the following two steps:

(1) Being verified by the minister or chairperson or a person who takes over as a leader of the Ministry of Natural Resources and Environment, Ministry of National Defense or Ministry of Public Security, or provincial-level People’s Committee by means of seeking permission of the inspection agency or obtaining advisory opinions of relevant agencies and organizations, and concurrently bear legal responsibility for verification results, depending on projects that the firms implement.

(2) Being approved by the head or person who takes over as the leader of the inspection agency.

As per Article 18 of the Law on Environmental Protection, Article 8 of Decree 18 and relevant provisions, EIA reporting depends on the nature and size of the project, not on the size of the project-implementing firm (small or medium-sized firm).

Under Article 18.1 of Decree 18, for production, business or service activities of a scale or capacity not falling into cases where an EIA report is required, an environmental protection plan must be made for:

- A new investment project, project for extension of scope or capacity with the total scope or capacity of the existing facilities and new investment portions prescribed in Column (5), Appendix II to Decree 18.

- A project or plan on business investment or extension of scope or capacity of business facilities which generate a wastewater volume of between 20 m3/day and under 500 m3/day or a solid waste volume of between 1 ton/day and under 10 tons/day or an emission volume of between 5,000 m3/hour and under 20,000 m3/hour (including both ongoing facilities and extension) other than projects specified in Column (3), Appendix II, Section I of Decree 18.

A firm that registers an environmental protection plan will obtain approval of such registration instead of certificate of environmental standards (under Articles 18, 19 and 22 of Decree 18).

In addition, projects and plans not specified in Article 18.1 of Decree 18 may be exempt from registration of environmental protection plans but the management and treatment of wastes and other environmental protection obligations shall be carried out in accordance with law.- (VLLF)

[1] Decree 18/2015/ND-CP on environmental protection master plans, strategic environmental assessment, environmental impact assessment and environmental protection plans, which took effect on April 1, 2015, and was amended and supplemented by Decree 136/2018/ND-CP dated October 5, 2018, and Decree 40/2019/ND-CP dated May 13, 2019.
[2] Law 55/2014/QH13 on Environmental Protection, which took effect on January 1, 2015, and was revised by Law 35/2018/QH14 Amending a Number of Articles of Thirty Seven Laws Concerning Planning and Law 39/2019/QH14 on Public Investment.

 

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