Methods for calculating emissions from industrial facilities. Claims, litigation. Penalties. administrative barriers. Management of risks. Protecting company assets. Cases in arbitration.
I came across material on the topic of a major conflict between the state and business, which threatens with billions in fines and disruption of projects. Here is a link to the full version, authors: Dmitry Kozlov, Polina Smertina, Olga Nikitina, Anna Vasilyeva, Evgeny Zainullin.
Briefly, what are we talking about. The bottom line is that gaps in legislation and formal procedures hinder the commissioning of new facilities and lead to financial losses for businesses. The Ministry of Natural Resources, on the basis of a government order, is gradually compiling a list of relevant methods for calculating emissions from industrial facilities and insists on using only documents approved by it. However, inclusion in the list is very slow (so far, no more than 15% of the methods - 21 out of 160) have passed the examination of the Ministry of Natural Resources since 2016. All methods are different, they provide calculations depending on the field of activity and types of emissions.
The situation became especially aggravated when, in October of this year, local authorities of Rosprirodnadzor received a landmark letter from the federal center. In it, the head of the department, Svetlana Rodionova, ordered businesses that use "unapproved" methods to be fined. The letter is available to the media.
In practice, this has already led to massive denials of integrated environmental permits required to commission new industrial facilities.
With emissions, everything is also complicated: no documents on emission rationing are issued even to large companies, calculations based on unapproved documents threaten to increase fees by tens and hundreds of times if they are recognized as excessive.
The parties, as always, have different views on the situation. The Ministry of Natural Resources refers to the irrelevance of the methods and the fact that businesses have the right to develop their own methods. And the requirements for documents and the procedure for compiling the list became known 3.5 and 1.5 years ago, respectively. Thus, the business had time to prepare properly.
Representatives of large industries, in turn, complain about the high cost of the development process. And to update old documents, the participation of their developer is necessary. As a result, taking into account the duration of approval procedures in the Ministry of Natural Resources, the process of adopting one new methodology takes at least a year. In addition, formally the obligation to approve new methods and include them in the register lies with the developers, but they are not interested in this.
As methodologies are questioned, the legitimacy of previously issued permits in 2019-2020 may be challenged.
The situation creates administrative barriers to activity and investment, business representatives have already applied to the Government. Large industrialists hope that the Government of the Russian Federation will intervene and regulate relations, since this is in the common interest. Delays jeopardize the implementation of the Clean Air federal project to reduce emissions, which is under the control of the president.
Representatives of big business believe that it is necessary to give at least 2-3 years for the process of updating the methodological material, and not force events artificially in an administrative manner.
In our opinion, in order to manage risks in this situation, it is advisable to try to go in a comprehensive manner. Here is an assessment of the applicability of the methodology itself, its individual parameters in relation to the activities of the company and / or the company itself, but also the ability to assess the consequences of an unsuccessful outcome in challenging such a methodology, its application. To what extent are the company and its beneficiaries prepared for legal penalties, bankruptcy and a possible collapse in business?
It is worth thinking about it now and it is possible not only to restructure the business correctly, but also to increase the protection of the company's assets and its owners.
David Glikshtein, manager.
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