Mining plant operations plan is the basic document serving as the grounds for the operations of mining plant. The amendment of the Geological and Mining Law (further: GML) of July 2014 lifted the requirement for heads of commune (mayors or city presidents) to issue opinions on operation plans as part of the procedure conducted to approve such plans by a mining supervision authority. It does not mean, however, that asking for the opinions of local government authorities has been completely done away with. The opinion is still required, but currently it must be submitted at the stage before filing the application for the approval of an operations plan and it should be enclosed by entrepreneurs as an appendix to the application.
A measure was introduced in order to ensure expedient issuance of opinions, which provides that when the head of commune (mayor or city president) fail to express their opinion within 14 days from the date of receiving a request, it is deemed that no comments have been submitted. In addition, it has been clarified that the single criterion for issuing an opinion is the lack of intended breach of the original purpose or the manner of use of the real estate specified in Article 7 of GML, which is a welcome improvement. The opinions would often concern various other aspects of the municipality activities, which were not always related to the subject of the opinion (an example here can be the requirement for an entrepreneur to build a road at their own expense).
The regulation specifying the deadline for issuing an opinion and the consequences of failure to meet such deadline seems unnecessary at first glance. The same solutions are contained in the existing provisions of Article 9 of GML, which stipulates that when the opinion (or approval of another authority) is not issued within 14 days from the date of submitting a draft decision, it is deemed that the submitted decision has been tacitly approved by the authority issuing the opinion.
The solutions are, indeed, similar, but still it is a good thing that they were repeated in Article 108 of GML, as in practice doubts could arise whether Article 9 of GML does, in fact, apply to the opinions mentioned in Article 108 of GML.
The above results from a certain minor difference in the character of opinions indicated in Article 9 of GML and the opinions referred to in Article 108 of GML. Although both are of non-binding nature, those mentioned in Article 9 of GML concern opinions issued as part of the administrative procedure (cooperation of authorities while issuing a decision). There is no doubt, then, that Article 106 of the Code of Administrative Procedure will be applicable in this case with all its consequences. It means that the opinions become decisions and can be appealed against.
Doubts concerning the application of Article 106 of the Code of Administrative Procedure may, however, occur regarding the opinions obtained by an entrepreneur before submitting an application for the approval of an operations plan. The regulation introduced seems to be the return to solutions contained in the Geological and Mining Law of 1994 (further: the GML of 1994). Pursuant to Article 64 section 5 of the GML of 1994, issuing a decision on the plan approval required prior submission by an entrepreneur of an opinion expressed by a relevant local government authority. A failure to express an opinion within 14 days from the date of delivering a request for the opinion was deemed as lack of reservations concerning the content of a mining plant operations plan.
The character of opinion mentioned in the Act of 1994 was the subject of comment made by the Supreme Administrative Court in a resolution adopted by 5 judges on 20 May 1996 (case file reference no. OPK 11/96), in which it indicated that the opinion should be issued in the form of a decision which can be appealed against, as the Article 106 of the Code of Administrative Procedure applies in this case. According to the statement of the Supreme Administrative Court, the opinion mentioned in Article 64 section 5 of the GML of 1994 was not a document determining the initiation of a procedure before a mining supervision authority. An entrepreneur, while requesting that a procedure be initiated, was not obliged to enclose the opinion to their application and was allowed to deliver it to the authority when the procedure was already pending. The mere decision on approving a mining plant operations plan could only be issued after the state mining supervision authority become familiar with the opinion of a head of commune (mayor or city president) submitted by the entrepreneur after the end of period specified in the act for issuing such opinion. Without complying with this requirement, it was not acceptable for a state mining supervision authority to decide on a matter. Moreover, the Supreme Administrative Court believes that adopting such statement was caused also by the necessity to guarantee proper legal protection to entrepreneurs – making it possible for them to file a complaint against the decision of a head of commune (mayor or city president). All the above elements lead to the application of the provisions of Article 106 of the Code of Administrative Procedure to this opinion.
It needs to be stated, however, that the provisions of the Act of 2011 (after the amendment of 2014) are somewhat different from the provisions of the GML of 1994. At present, the opinion, or information about the absence of opinion is one of the appendices to the application for approval of an operations plan, and in case when comments are submitted, the applicant has to report on how the comments have been addressed or explain the reasons why they have been disregarded. Hence, the argument concerning the obtaining of opinions in the course of procedure conducted to approve an operations plan, raised in the quoted judgement by the Supreme Administrative Court, seems to be invalid. Lack of enclosed opinion or information about the exceeded deadline for issuing such opinion will be considered a formal deficiency of the application. It also needs to be considered, based on the new wording of Article 108 of GML, if it is necessary to apply the provisions of the Code of Administrative Procedure in order to secure the right of defence, as the entrepreneur is not obliged to acknowledge the opinion. All they have to do, if they find the arguments provided by a head of commune to be wrong, is to express their opinion about the comments made, which also enables them to argue against the comments contained in the opinion and to present their own arguments.
It needs to be emphasized that, in principle, issuing a decision on approving an operations plan will not be possible without becoming familiar with the opinion of a head of commune (apart from the case when the commune mayor does not issue an opinion within a 14-day period), which leaves the issue of applying Article 106 of the Code of Administrative Procedure open for discussion.
The solution suggested in Article 108 of GML was supposed to speed up the process of approving operation plans. For that reason, having regard to the extending of procedures due to the conducting of proceedings aimed at issuing opinions, often before two instances, the obligation to obtain an opinion about the operation plans as part of procedures conducted before mining supervision authorities was waived.
Having regard to the above, the purposive interpretation of the discussed solution indicates that the intention of legislature was to introduce, instead of a formal procedure, a simpler form of obtaining a written opinion containing possible comments regarding the operations plan.
The final settlement of the above issue will result from the judgements of administrative courts and the practical solutions applied by the bodies of local government and of mining supervision.