As a matter of fact, the notion of validity of an environmental decision remains undefined. With respect to such decisions, one may rather talk about the possibility of its application by the investor within a certain limit of time. According to Article 72(3) of the Act of 3 October 2008 providing information on the environment and environmental protection, public participation in environmental protection and on environmental impact assessment (Environmental Information Act), the environmental decision should be attached to an application for a decision concerning, inter alia, a concession for the extraction of minerals from deposits. The submission of the relevant application should take place within 6 years of the date on which the environmental decision became final. In case of a project which is implemented in stages, and provided that the conditions defined in the environmental decision have not changed, the application may be submitted within 10 years of the date on which the environmental decision became final.
For example, such “extension” of the time limit is available in case of prospecting and exploration projects where geological works are often carried out in stages.
In this context, it should be noted that the amended Geological and Mining Law provides for the possibility of applying for the conversion of a concession for the prospecting for or exploration of hydrocarbon deposits into a concession for the prospecting for and exploration of hydrocarbon deposits and exploitation of hydrocarbons from deposits.
Therefore the question whether in case of such conversion the existing environmental decisions maintain their “validity” deserves consideration. This is particularly relevant for those situations where the operations plan is subject to revision, given that according to the current legislation, the environmental decision has to be obtained prior to the application for approval of the operations plan.
For a new concession for the prospecting for and exploration of hydrocarbon deposits and exploitation of hydrocarbons from deposits, according to Article 72 section 1 point 4a of the Environmental Protection Act, the issuance of an environmental decision should take place prior to obtaining a decision approving the operations plan for the performance of geological operations related to the prospecting for and exploration of a hydrocarbon deposit, or an investment decision to the exercise of the concession for the prospecting for and exploration of hydrocarbon deposits and exploitation of hydrocarbons from deposits. According to Article 72 section 3 of the Environmental Protection Act, the environmental decision should be attached to the application for the decision approving the operations plan.
This interpretation is not in conflict with the fact that a converted concession for the prospecting for and exploration of hydrocarbon deposits and exploitation of hydrocarbons from deposits covers also production operations. This results from the existence of two phases within such concession, i.e. prospecting/exploration and production. For each of these phases separate environmental decisions are required, which means that a single decision covering both the phases jointly was not provided for. This is supported by the fact that geological operations undertaken with a view to prospecting and exploration are considered (subject to the prerequisites set out in the Regulation and the Environmental Protection Act) as projects with potentially significant environmental impact, whereas the extraction of hydrocarbons is an activity which always has significant environmental impact.
In this regard, it should be assumed that, unless there is a material change in the implementation of the undertaking, e.g. expansion of the scope of geological operations, expansion of the area, change of project location, which trigger the obligation to obtain an environmental decision, such decisions should continue to be in force. It should be noted that they concern the same project which as an identical impact on the environment. Meanwhile, the “joint” concession is effectively transformed from the previous prospecting and exploration concession.
It is worth noting, however, that a different position of the authorities may be supported by the fact that the level of detail of existing decisions varies, as they did not always account for a specific location of the operations.