Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

Wet algemene bepalingen omgevingsrecht (the Environmental Permitting (General Provisions) Act),
also called the Wabo. Where the Wabo does not regulate a specific topic, the Mining Act comes
into play. In practice this means that the extraction works are regulated by the Wabo, while the
exploration works are regulated by the Mining Act. 156 Both Acts also contain general rules which
replace the license (which is actually step four in the roadmap, prior to a possible application for an
integrated environmental permit).
To decide whether the Wabo is in place, it should first be assessed whether there is an
establishment/installation within the meaning of the Wet Milieubeheer (Environmental Management
Act), also called Wm. Article 1.1(1) Wm gives the definition of an establishment: “Elke door de
mens bedrijfsmatig of in een omvang alsof zij bedrijfsmatig was, ondernomen bedrijvigheid die
binnen een zekere begrenzing pleegt te worden verricht”. Thereby, the establishment has to
belong to a category of establishment which could harm the environment, as identified in the
Besluit omgevingsrecht (Environmental Permitting Decree 2010), also called the Bor. This is
decided in Article 1.1(3)(4) Wm. These categories of establishments are set out in Article 2.1(1)
Bor in conjunction with Annex I, section B and C. Hence, it should be decided whether mining
activities and establishments fall under one of these categories. This could for example be the case
if it concerns an establishment where gases or gas mixtures are manufactured, prepared,
processed, stored or beaten whether or not in a compressed liquefied or under pressure dissolved
in liquid state (Category 2 under Part C). If the mining establishment falls under the Bor, it is
established that it concerns an establishment within the meaning of the Wm. However, it is then not
yet decided whether the establishment should apply for an integrated environmental permit on the
basis of the Wabo.
The starting point is that harmful environmental impacts of establishments are regulated by means
of general rules on the basis of the Wm (Art. 8.40 Wm). The exception to this rule is the regulation
by an integrated environmental permit on the basis of the Wabo (Art. 2.1(1)(e) Wabo in conjunction
with Annex I of the Bor). To decide on this matter, it should be assessed whether the establishment
within the meaning of the Wm is also an establishment within the meaning of the Wabo. Pursuant
to Art. 1.1(1)(3) Wabo the categories of establishments for which the founding of an establishment
should be subjected to prior review (given the nature and extent of the adverse effects that the
establishment can cause for the environment) will be designated by order in council (here: the Bor).
This is (again) done in Annex I, parts B and C, of the Bor. Besides, if the establishment possesses
an installation according to the Industrial Emissions Directive (previously called the IPPCinstallation),
it is also required to have an integrated environmental permit (Art. 1.1(3) Wabo in
conjunction with Art. 2.1(2) Bor). If the mining establishment belongs to one of this categories, it
should apply for an integrated environmental permit ex. Art. 2.1(1)(e) Wabo. The assessment
framework is set in Article 2.14 Wabo. Here, the interest of the environment can be taken into
account (in contrast with the permits according to the Mining Act). The application can only be
refused on the ground of the importance of the protection of the environment (Art. 2.14(3) Wabo).
But again, the integrated environmental permit is only needed if general rules do not apply. With
regard to mining establishments, the Besluit algemene regels milieu mijnbouw (the General Mining
Industry (Environmental Rules) Decree) is applicable, also called Barmm. Article 2.5 Bor (in
conjunction with Article 40(2) Mining Act) states that, notwithstanding Art. 2.1(1)(e) Wabo, no
integrated environmental permit is needed regarding mining works that belong to a category
mentioned in Article 4 Barmm. With regard to shale gas, only sub a of Article 4 Barmm is relevant
(concerning mobile installations on land). An exception to this category is a mobile installation
which is placed by a mining work for the purpose of extraction. A notification has to be made 4
weeks pursuant to the start of the project (Article 7). In Article 5(2) Barmm several exceptions are
set out that exclude the applicability of the Barmm. This includes activities that are situated at a
156
Brans & Van den Brink (2014).
39