Environmental Management and Conservation Act - Environmental Impact Assessment Regulations 2011

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2. Activities requiring preliminary environmental assessment
3. Preliminary environmental assessment application
4. Referral of preliminary assessment

5. Consultation in preparing terms of reference
6. Conduct of EIA
7. Preparation of EIA Report
8. Contents of EIA Report
9. Environmental management and monitoring plan
10. Public consultation
11. Submission of EIA report
12. Review of EIA report
13. EIA review committee
14. Public consultation on an EIA report
15. Project proponent responsible for reasonable expenses
16. EIA Approval
17. EMMP forms part of EIA approval

18. Fees
19. EIA Guidelines
20. Compliance and monitoring inspections
21. Environmental audit
22. Powers of enforcement officers
23. Variation or cancellation of EIA approval
24. Change in ownership or identity of corporate body
25. Amendments to PEA and EIA applications
26. Discontinuance of PEA or EIA application
27. Registration of consultants
28. Appeal
29. Proving matters relating to environmental impact
30. Prescribed amounts for penalty notices
31. Period to pay penalty notice
32. Commencement

In exercise of the powers conferred on me by paragraphs 45(1)(b) and (d) of the Environmental Protection and Conservation Act [CAP 283], I, the Honourable STEVEN KALSAKAU, Minister of Lands, Geology and Mines make the following Order.

Department means the Department of Environmental Protection and Conservation;

Director means the Director of the Department of Environmental Protection and Conservation;

EIA approval of a project, proposal or development activity means approval of the application under section 22 of the Act, but does not imply approval under any other law;

environmental audit means an assessment of compliance with any environmental requirements, standards or approval conditions;

environmental impact assessment means the environmental impact assessment process as provided in Part 3 of the Act, and EIA has a corresponding meaning;

environmental management and monitoring plan means the environmental management plan and monitoring program as described in clause 9, and EMMP has a corresponding meaning;

preliminary environmental assessment means the preliminary assessment process as provided in Part 3 of the Act, and "PEA" has a corresponding meaning.

Without limiting the scope of section 12 of the Act, the projects, proposals or development activities specified in Schedule 1 are subject to the EIA provisions of the Act.

(a) be submitted by the project proponent to the Director in a form approved for that purpose by the Director; and

(2) If an application for PEA complies with subclause (1), the Director may seek comments on it from any Ministry, Department, Local Government, Statutory Authority, Non-government Organisation or any person who in the opinion of the Director has a direct interest in the subject matter of the application.

(4) A failure to comply with subclause (1) renders any PEA determination in relation to that project, proposal or development activity invalid.

(1) The Director may, in writing, authorise a Government Department to carry out a PEA on his or her behalf.

(2) An authorisation made under subsection (1) expires as soon as the PEA is completed.

(1) The Director may invite participation from any Ministry, Department, Local Government, Statutory Authority, Non-government Organisation or any person who in the opinion of the Director has a direct interest in the subject matter of the project, proposal or development activity to assist in the preparation of the terms of reference.

(2) The Director may conduct public consultations on the terms of reference for a project, proposal or development at times and places determined by the Director and convenient for those likely to wish to take part.

(3) The costs of convening a public consultation meeting, including but not limited to the hire of a venue and publicity, are to be met by the project proponent.

(1) The EIA is to be undertaken under the direction of the Director by an independent consultant or independent team of consultants who are to be selected and appointed by the Director in consultation with interested parties, but at the cost of the project proponent.

(2) A person carrying out an EIA on a project, proposal or development activity is expected to conduct fieldwork to obtain accurate measurements of environmental values for use in making impact predictions and recommending appropriate environmental protection measures in respect of the project, proposal or development activity.

(a) be a comprehensive study report of the potential environmental or resource management and social-cultural impacts of the project, proposal or development activity; and

(b) identify the potential impact of the project, proposal or development activity on the surrounding environment and population, and suggest possible mitigation measures; and

(c) to the extent appropriate, suggest conditions upon which EIA approval of the project, proposal or development activity may be granted.

(2) If it appears that any aspect of a project, proposal or development activity, either individually or cumulatively, may cause a significant impact on the environment, these must be dealt with in the EIA report.

(a) be carried out by an independent registered consultant or consultants nominated by the Director and under the direction of the Director but at the cost of the project proponent; and

(4) The Director may issue Guidelines for the format of an EIA report, but the report may be in any format that gives the information required by the Act and this Regulation.

(a) the name and location of the project, proposal or development activity and details of the project proponent, the date of preparation of the project, proposal or development activity and the person or body responsible for the preparation; and

(b) attach copies of project plans and engineering design with clear units of measurement; and

(c) the identity of any person or persons who prepared or participated in the preparation of the terms of reference, with full contact details; and

(d) a description of the purpose and scope of the proposed project, proposal or development activity, including the background and rationale for the project, proposal or development activity and its intended goals and objectives; and

(e) a description of the environmental setting of the site of the proposal, including a statement of environmental resources and conditions in the area before the implementation of the project, proposal or development activity, and a projection or estimation of changed environmental circumstances that may occur as a result of the project, proposal or development activity; and

(f) a description of the possible environmental and resource management impacts of the project, proposal or development activity, including any pollution or waste that may be generated, and impacts occurring during construction, operation, decommissioning, and abandonment phases of the project, proposal or development activity; and

(g) a statement of the various alternatives that have been considered for the project, proposal or development activity, including energy efficiency measures, that are reasonably foreseeable and technically and economically appropriate, including the option of taking no action, and an outline of the reasons for choosing the proposed action; and

(h) a statement of the mitigation action proposed in respect of any adverse impacts identified in the report; and

(i) details of individuals, organisations, government offices, ministries, non-governmental organisations, villagers, local councils, and others who have an interest, expertise, or jurisdiction regarding the project, proposal or development activity and who have been consulted; and

(g) details and copies of any agreements entered into between the project proponent and any villagers, local councils, and others concerning access, occupation, ownership and any other rights to the land that is the subject of the project, proposal or development activity; and

(k) a summary of the results of public consultations held on the project, proposal or development activity; and

(l) recommendations on the selected alternatives, mitigation measures, monitoring, other studies, analysis, and any additional consultation that may be required; and

(b) have attached to it all reports, plans, analyses and other documents that are needed or appropriate to assist readers of the report to understand it; and

(1) An environmental management and monitoring plan (EMMP) for a project, proposal or development activity must be submitted with the EIA report.

(a) describe, in respect of the project, proposal or development activity, the environmental protection measures that will be put in place by the project proponent if approval is given for the project, proposal or development activity; and

provide for an environmental monitoring manager to be appointed by the project proponent, in consultation with the Department, to verify that the EMMP and protection measures are being fulfilled and adverse impacts of the project, proposal or development activity are documented.

(1) The project proponent must conduct public consultations on the project, proposal or development activity at times and places as determined by the Director and convenient for those likely to wish to take part.

(2) At least one of the public consultation meetings must be held in the close vicinity of the area of the proposed development.

(3) Notices of public consultation meetings must be given by the project proponent in the manner directed by the Director and such notices must inform the public of:

(a) the locality and the nature of the project, proposal or development activity; and

(4) The cost of convening public consultation meetings, including but not limited to the hire of a venue and publicity, is to be met by the project proponent.

(a) 5 hard copies of the EIA report, accompanying documents and EMMP, and one electronic copy; and

(2) If so requested by the Director, the project proponent must supply further hard copies of the report for distribution to members of a review committee.

(3) An EIA report that is not submitted to the Director within 12 months after the terms of reference has been finalised will be invalid and a new application for PEA will need to be submitted, unless the project proponent has obtained a written extension of time from the Director.

(a) seek comments on the EIA report from any Ministry, Department, Local Government, Statutory Authority, Non-government Organisation or any person who in the opinion of the Director has a direct interest in the subject matter of the EIA; and

(b) request a review of the EIA report by an EIA review committee as the Director directs.

(2) The committee consists of not more than 10 people drawn from the relevant industry, Non-Government Organisations, Government, local communities and academic institutions as considered appropriate by the Director for the EIA report to be reviewed.

(4) The committee is to determine its own procedures in respect of reviewing EIA reports made under clause 12, and may meet at any time and place as determined by the Chairperson.

(5) The committee must complete a review and make its recommendations to the Minister within 30 days of the submission of the EIA report or to any extended time limit agreed in accordance with section 22 of the Act.

(6) In determining an appeal against a decision by the Director under this regulation, the EIA review committee will convene without the Director and the Director will appoint a Deputy Chairperson for the purposes of the appeal.

(1) The Director may require a project proponent to conduct public consultations on the EIA report at a time and place determined by the Director and convenient for those likely to wish to take part.

(2) At least one of the public consultation meetings must be held in the vicinity of the area of the proposed development.

(3) If a public consultation meeting is held, notice of it must be given by the project proponent in the manner directed by the Director and must inform the public of:

(a) the locality and the nature of the project, proposal or development activity; and

(d) the time limit as determined by the Director for the submission of comments in writing

(4) The cost of convening a public consultation meeting, including but not limited to the hire of a venue and publicity, are to be met by the project proponent.

(1) The Director may require the project proponent to meet the reasonable costs incurred in reviewing an EIA report, including but not limited to convening of a review committee, site inspection and transport expenses.

(2) Any dispute as to the reasonable cost of the review is to be resolved by the EIA review committee.

If development of a project, proposal or development activity has not substantially commenced within 12 months of the date that the EIA Approval was granted for the project, proposal or development activity, the EIA Approval will be invalid and a new application for PEA will need to be submitted, unless the project proponent has obtained a written extension of time from the Director.

(1) Any environmental management and monitoring plan that has been submitted as part of the EIA Report and approved by the Director forms part of the EIA approval for the project, proposal or development activity.

(2) A person who contravenes or fails to comply with a term or condition of the EMMP commits an offence in accordance with paragraph 41(1) (d) of the Act.

(1) The fees set out in Schedule 2 are prescribed in respect of the matters to which they relate.

(2) Fees, costs and expenses payable under this Regulation are recoverable as a civil debt owing to the Government, if the service to which they relate has been provided.

(3) Fees, cost and expenses payable under this Regulation must be paid to the Ministry of Finance and Economic Management which is to be transferred into the Environmental Trust Fund.

(a) preliminary environmental assessments, terms of reference, EIA report, EMMP, review of the EIA report, public notices and meetings and other documents and procedures required by this Regulation for which a form is not prescribed; and

(b) any other matter in relation to this Regulation that the Director considers appropriate.

(a) whether there has been any change in the environmental condition of the site or the environmental impact of the activity on the surrounding area; or

(b) compliance with conditions of EIA approval, including any EMMP or mitigation measure that is required as a condition of the approval.

(2) If a project proponent fails to comply with a reasonable request for compliance inspection or for the taking of samples, the Director may:

(a) cancel the EIA approval for non-compliance with a term of the EIA approval; or

(b) suspend the EIA approval until specified matters of non-compliance are corrected.

(a) must only be made after giving the project proponent an opportunity to be heard, orally or in writing;

(b) must be made reasonably, having regard to the nature of the proposal and the seriousness of the non-compliance;

(5) The Director may require the project proponent to meet the reasonable costs incurred in compliance inspection, including but not limited to convening of a review committee, site inspection and transport expenses.

(6) A project proponent who is dissatisfied with a decision of the Director under this clause may appeal in writing to the EIA review committee.

(7) A decision must not be made under this clause if it is contrary to any requirement or procedure under this Act or any other law.

(8) Compliance and monitoring inspections may be conducted throughout the life of the activity or use of the project, proposal or development activity for which EIA approval has been granted.

(1) The Department is to undertake an environmental audit on an annual basis of all projects, proposals and development activities that have been granted EIA approval in order to facilitate the renewal of the business licence applicable to the project, proposal or development activity.

(2) The environmental audit fee prescribed in Schedule 2 is payable by the project proponent.

(2) For the purposes of implementing and enforcing the provisions of Part 3 of the Act and this Regulation, including to undertake compliance inspections, the persons referred to in subclause (1) may:

(a) enter private premises after a reasonable attempt to notify the owner or the occupier of their intention to do so; and

(d) take pictures, photographs or measurements or make sketches or recordings in any form; and

(f) require the production of records and information relevant to the matter in investigation; and

(3). A person who obstructs, hinders or impedes an authorised officer or a person assisting the officer, in the performance of his or her duties under subclause (2) is guilty of an offence punishable on conviction to a fine not exceeding VT100,000.

(a) the Director obtains new information that was not known to the Director at the time the EIA approval was granted; or

(b) there is a significant change in the circumstances relevant to the project, proposal or development activity; or

(d) the project proponent requests a variation in the terms of the EIA approval,

the Director may, on the written application of the project proponent, or of the Director's own motion, vary the terms of the EIA approval, including any conditions attached to it, by giving notice in writing to the project proponent.

(a) that an EIA approval of a project, proposal or development activity was influenced by false or misleading information or by deceit on the part of the project proponent; or

(b) that the environmental conditions of the site have changed to such an extent as to render the approval inappropriate,

the Director may cancel the EIA approval and require the site to be restored as far as possible to the state before EIA approval was given.

(3) The restoration cost undertaken under subclause (2) is to be met by the project proponent.

(b) must in writing, inform the project proponent of the intended action and give the project proponent an opportunity to be heard.

(5) A variation of an EIA approval requested by the project proponent that would result in a material change in the use of the land to which the approval relates, must be the subject of a fresh PEA under this Regulation.

(6) A project proponent who is dissatisfied with a decision of the Director under this clause may appeal in writing to the EIA review committee.

(7) A decision must not be made under this clause if it is contrary to any requirement or procedure under this Act or any other law.

(1) The project proponent must apply in writing to the Director for a change in details in relation to a PEA determination or an EIA approval for any change in ownership of a project, proposal or development activity or change in corporate identity of a project proponent.

(a) the nature of the proposed development will not be affected by the change of ownership or identity; and

he or she must record the amended details of the project proponent in the environmental registry.

(3) The Director may request any appropriate information or document from the project proponent for the purposes of determining whether the amendment should be made.

(4) A change in ownership or identity renders a PEA determination or an EIA approval in relation to that owner or body corporate invalid, unless an amendment has been made under this clause.

(5) If the identity of the contact person for a proponent changes, the provisions of this clause apply to the change, with necessary modifications, except that the change will not render an EIA approval invalid.

(1) The project proponent may, before a final decision has been made on a PEA or on an EIA report, in writing request the Director to amend the application or report, both as to matters of substance and as to errors and omissions.

(2) If an amendment requested under subclause (1) is one of substance, the Director may refuse to accept it and may instead require the project proponent to make a fresh application or submit a fresh report, as the case may be, paying any relevant fee and observing any relevant timetable.

(3) An agreement by the Director to accept amendments requested under subclause (1) does not imply that any particular outcome will follow.

(1) A project proponent may at any time give written notice to the Director that the project proponent wishes to discontinue the PEA or EIA process for a project, proposal or development activity.

(2) If a project proponent gives notice of discontinuance, the Director must discontinue the PEA or EIA process for the project, proposal or development activity, incurring minimum costs in doing so.

(3) The Director may require the project proponent to reimburse reasonable costs incurred by the Department in the PEA or EIA process of the project, proposal or development activity to the date of discontinuance.

(4) A dispute as to the reasonable cost of discontinuance under this clause is to be resolved by the EIA review committee.

(2) The criteria for registration of a consultant are as determined by the Director.

(3) Registration is on an individual basis, but a registered consultant must provide information as to any corporation or partnership of which the consultant is a member or employee.

(4) A person who wishes to be registered as an EIA consultant for the purposes of this Regulation must submit an application to the Director:

(a) may call for documents, interview the applicant and cause enquiries to be made as to his or her suitability for registration;

(b) obtain advice from technically qualified persons as to the suitability of the applicant for registration; and

(6) Registration is for 3 years in the first instance and is renewable for 3 years on application, and on payment of the prescribed fee, if the Director is satisfied that the applicant remains qualified as a consultant.

(7) A person wishing to change the category of registration must apply for fresh registration, paying the appropriate fee.

(8) The Director may issue a Code of Practice for consultants registered under this Regulation, after seeking the advice of any relevant professional body and of individuals with extensive experience in EIA matters.

(a) in breach of any registration criteria, or any relevant Code of Practice as approved by the Director; or

the Director may cancel, or refuse to renew, the registration of the consultant.

(10) If the Director proposes to de-register a consultant for any reason, the Director must give the consultant the opportunity to be heard, orally or in writing.

(1) A person who is not satisfied with a decision of the Director under clause 27 may appeal in writing to the EIA review committee.

(2) A decision made under this clause must not be contrary to any requirement or procedure prescribed under the Act, this Regulation, or any other law.

(1) In any prosecution under this Regulation evidence is given by an enforcement officer that there has been, or may be, a harmful or adverse effect on the environment, the Court is to accept that evidence as prima facie evidence of the matters alleged.

(2) If a prosecution relates to a chemical or other similar substance, the court may have regard to any information disclosed on the packaging of the chemical or substance to determine whether there is a danger to health or to the public.

(3) This clause does not limit or affect the manner in which any matter may be proved to the satisfaction of a court.

(1) For the purposes of section 44A of the Act, the prescribed amount in respect of an offence committed under the EIA provisions of the Act listed in Column 2 of Table 1 is:

(a) the amount set out in Column 3 of that Table for a first offence by an individual under such paragraph; and

(b) the amount set out in Column 4 of that Table for a second offence by an individual under such paragraph; and

(c) the amount or penalty set out in Column 5 of that Table for a first offence by a body corporate under such paragraph; and

(d) the amount or penalty, set out in Column 6 of that Table for a second offence by a body corporate under such paragraph.

Table 1 EIA Offences under the Environmental Protection and Conservation Act [CAP 283]
Column 1 Items	Column 2 Provisions of the Environmental Protection and Conservation Act [Cap 283]	Column 3 Prescribed amount for first offence by individual	Column 4 Prescribed amount of second offence by individual	Column 5 Prescribed amount for first offence by body corporate	Column 6 Prescribed amount for second offence by body corporate
1	12A(2) Person developing foreshore of the coast of an island without an EIA	2,500,000	5,000,000	50,000,000	100,000,000
2	24(1)(a) Undertaking any activity that is subject to an environmental impact assessment prior to receiving written approval	2,500,000	5,000,000	50,000,000	100,000,000
3	24(1)(b) Undertaking any activity despite EIA approval having been refused.	2,500,000	5,000,000	50,000,000	100,000,000
4	41(1)(a) Providing false or misleading information, including any false or misleading report required, under any requirement of the Act.	2,500,000	5,000,000	25,000,000	50,000,000
5	41(1)(b) Hindering or obstructing an officer or any person empowered to carry out any function or duty under the Act.	2,500,000	5,000,000	25,000,000	50,000,000
6	41(1)(c) Failing to give all reasonable assistance to any officer or any person empowered to carry out any function or duty under the Act	2,500,000	5,000,000	25,000,000	50,000,000
7	41(1)(d) Contravening a term or condition of an approval, permit or notice issued under the Act	2,500,000	5,000,000	50,000,000	100,000,000
8	41(1)(e) Contravening or failing to comply with any Regulation, Direction or Order made under the Act	2,500,000	5,000,000	50,000,000	100,000,000

(2) For the purposes of section 44A of the Act, the prescribed amount in respect of an offence committed under a provision of this Regulation listed in Column 2 of the Table 2 is the amount set out in Column 3 of that Table.

Table 2 Offences under the Environment Impact Assessment Regulation
Column 1 Items	Column 2 Provisions of the Environment Impact Assessment Regulation	Column 3 Prescribed amount.
1	17(2) Contravenes or fails to comply with a term or condition of an EMMP	2,500,000
2	22(3) Obstructing, hindering, or impeding an authorised officer from carrying out duties under subclause 22(2)	50,000

If the person served does not wish to have the matter determined by a court, the person must pay, within 21 days after receiving or being served with the notice, to a person specified in the notice, the amount of penalty prescribed under this Regulation.

(1) Foreshore developments, for example the construction or alteration of any of the following:

(i) the clearance of any mangroves or the disturbance of any other coastal/estuarine ecosystem including seagrasses, coral, sand etc; or

(2) Tourism-related developments, for example the construction or alteration of any of the following:

(3) Mining, quarrying and logging activities, for example any activity that involves:

(4) Clearing of tress, bushes and natural vegetation over areas of more than 10 hectares.

(5) Industrial development, for example the construction or alteration of any of the following:

(6) Retail and wholesale developments, for example the construction or alteration of a:

(7) Commercial aquaculture and agriculture activities, for example commercial farming and livestock.

(8) Transportation and telecommunication facilities, for example the construction or alteration of any of the following:

(9) Energy generation facilities and other infrastructure services, including the construction or alteration of any of the following:

(10) Waste disposal facilities, for example landfill facility, composting plant, marine outfall, waste water treatment plant or recycling facilities including:

(a) operation of incinerators or destructors of household, commercial or industrial waste; or

(b) operation of rubbish tips or land fills for the accumulation and burying or processing of household, commercial or industrial waste.

(13) Recreational or leisure facilities, for example the construction or alteration of:

(15) Any development impacting a water source (river, stream, lake, estuary, underground aquifer, hot spring etc).

(16) Granting of negotiator' certificate to negotiate the leasing of land for any of the above purposes.

Fees Table
Item No.	Item		Amount Payable (VT)
1	Preliminary environmental assessment application		20,000
2	Submission of EIA report (Note - Fees are charged according to the value of the project, proposal or development proposed)
	(a)	Where the value of the project, proposal or development proposed is VT20 million or less	100,000
	(b)	Where the value of the project, proposal or development proposed is more than VT20 million or more but not exceeding VT24,999,999	150,000
	(c)	Where the value of the project, proposal or development proposed is VT25 million or more but not exceeding VT29,999,999	200,000
	(d)	Where the value of the project, proposal or development proposed is VT30 million or more but not exceeding VT34,999,999	250,000
	(e)	Where the value of the project, proposal or development proposed is VT35 million or more but not exceeding VT39,999,999	300,000
	(f)	Where the value of the project, proposal or development proposed is VT40 million or more but not exceeding VT44,999,999	350,000
	(g)	Where the value of the project, proposal or development proposed is VT45 million or more but not exceeding VT49,999,999	400,000
	(h)	Where the value of the project, proposal or development proposed is VT50 million or more	500,000
3	Application for registration as a consultant
	(a)	Principal Consultant	100,000
	(b)	Technical Assistant	50,000
	(c)	Assistant Consultant	30,000
	(d)	Review Consultant	50,000
4	Renewal of Registration as a consultant
	(a)	Principal Consultant	100,000
	(b)	Technical Assistant	50,000
	(c)	Assistant Consultant	30,000
	(d)	Review Consultant	50,000
5	Variation or amendment of PEA application or EIA Report		5,000
6	Amendment of Identity		5,000
7	Environmental Audit Fee		10,000

Vanuatu Subsidiary Legislation

Environmental Management and Conservation Act - Environmental Impact Assessment Regulations 2011