New legal framework for environmental protection in Bulgaria outlined

The necessity for modern environmental protection laws in Bulgaria first became apparent in the mid 1980s when many areas in central and eastern Europe were affected by severe internal problems, due to their centralised bureaucracies, inefficient use of the environment and a policy that prioritised production at any costs. All this led to poor ecological practices and even dangerous working and living conditions. Rapid political and economic changes and instability in Bulgaria established a situation where both the social fabric and the environment suffered. The situation has now changed due to an increasing environmental consciousness over the past five to ten years and because the international community is now seriously considering a close integration of Bulgaria in the larger political, social and economic sense, including starting the process of EU accession.

From the legal point of view the first important question is, what are the relevant ecological and environmental protection laws? Regulations concerning ecology and the protection of the environment, including the main requirements for legal entities, rights and obligations, as well as ensuing sanctions and legal consequences can be found in the Constitution of the Republic of Bulgaria, in laws, normative acts and international agreements and conventions.

The main law is the Law on Environmental Protection, first published in the State Gazette, Issue 86 of 18 October 1991. It has been amended a number of times and the amendments have been published in the State Gazette, Issue 12, in 1999. This law regulates:

(1) The collection and availability of information on the environment;

(2) The implementation of control on the state of the environment;

(3) The assessment of the effects of the environment;

(4) The planning and the execution of activities for protection of the environment;

(5) The rights and obligations of the state, municipalities, legal entities and individuals for the protection of the environment.

Other important laws regulating the environment include:

• The Law on Water, published in the State Gazette, Issue 67 of 27 July 1999, coming into force on 27 January 2000;
• The Law on the Purity of the Atmosphere, published in the State Gazette, Issue 85 in 1997;
• The Law on the Taxes on Liquid Fuels for the Republican Road Network Fund and for the Fund for Environmental Protection, published in the State Gazette, Issue 61, in 1999;
• The Law on Concessions, published in the State Gazette, Issue 67 in 1999 which does not regulate this area directly but is related to it and makes some reference to the Law on Environmental Protection;
• The Law on Restructuring and Privatisation of State and Municipal Enterprises which also does not regulate the area directly but supplements the laws on liability for and prevention of environmental damage in the mining sector for enterprises, and their sub-divisions, which are in the process of being privatised.

The normative acts regulating environmental issues are numerous. The following are some of the more important:

• Decree No 3 on the standards in respect of permitted amounts of harmful substances in the soil, published in the State Gazette, Issue 54 in 1997;
• Decree No 7 dated 3 May 1999 on the evaluation and regulation of the quality of the atmosphere, published in the State Gazette, Issue 45 in 1999;
• Decree No 5 dated 8 February 1999 approving exploitable underground water resources, published in the State Gazette, Issue 18 in 1999;
• Decree No 5 on the rules and standards of town planning, published in the State Gazette, Issue 7 in 1998;
• Edict No 161 dated 17 April 1997 amending the decree on the determination and implementation of sanctions in cases of environmental damage or pollution above permitted standards, published in the State Gazette, Issue 101 in 1997;
• Edict No 44 of the Council of Ministers dated 1 December 1997 on the approval of the amount of compensation in cases of environmental damage;
• Edict No 16 of the Council of Ministers dated 23 January 1998 on the approval of rates for taxes collected by the municipalities for the benefit of the environmental impact evaluation of projects, sites and activities which are not subject to a mandatory environmental impact evaluation, published in the State Gazette, Issue 13 in 1998.

All international agreements and conventions to which the Republic of Bulgaria is a party and which are ratified by the Bulgarian Parliament are a part of Bulgarian law and apply to all legal entities and individuals. For example, in cases of trans-border pollution, the norms and standards of the agreements and contracts to which the Republic of Bulgaria is a party are applied; if there are no such agreements and contracts, then the norms and standard of the EU countries are applied.

Enforcement and regulatory authorities

In accordance with Bulgarian law, there are two levels of authority in respect of environmental protection - state and municipal. Their authority is defined in the law and in the corresponding decrees. Their functions are determined by the nature of the activity in question: control, information, sanctions, fund raising, distribution of funds, etc.

Article 24 of the section "Rights and obligations of the state and municipal authorities" from the Law on Environmental Protection sets out the minister's role as follows:

"24(1) The Minister for the Environment:

I. Determines, together with the relevant ministers, the governmental strategy on the environment;

II. Manages the national fund for the protection of the environment and distributes funds to both legal entities and individuals for environmental protection programmes, scientific projects and research;

III. Controls the state of the environment on the territory of the Republic of Bulgaria, prohibits or stops activities causing environmental damage;

IV. Co-ordinates the controlling functions of the other ministries and offices in respect of the environment;

V. Prepares the annual report on the state of the environment, in accordance with art 4;

VI. Informs the public of its activities through the mass media, through its own specialised publications and other accessible means;

VII. Together with the relevant ministers and other state authorities involved, approves:

A. Standards for emissions and concentration of contaminants according to the area, environmental components and the type of contaminants, as well as the exploration of renewable and unrenewable natural resources;

B. Special regulations for endangered areas, projects and activities for restoring the environment, subject to further approval by the Council of Ministers;

C. Instructions on the labelling of goods, in accordance with the requirements of art 14;

D. Tax rates for the exploration of natural resources and permitted pollution;

E. Instructions for the transportation, storage, use and disposal of harmful substances;

VIII. Directs and controls the protection of biological diversity and natural eco-systems, approves protected species and territories;

IX. Approves and publishes methods of control and evaluation of the effects on the environment - organises a national system for the supervision and control of the state of the environment;

X. Represents the country in intra-governmental organisations and meetings on the protection of the environment.

24(2) The rights and obligations of the Minister for the Environment and Waters not defined in this law are determined by acts of the Council of Ministers."

The Minister for the Environment and Waters also establishes regional environment and waters inspectors as ministerial bodies and determines their functions and territories.

The regional inspectors serve municipalities which do not have the equipment and personnel for environmental protection. The regional inspectors issue written recommendations and orders.

Article 25 of the section "Rights and obligations of the state and municipal authorities" of the Law on Environmental Protection provides as follows in regard to the authorities:

"26. The Municipal Authorities:

I. Draft their own programmes for the protection of the environment, co-ordinated with the respective authorities from the Ministry of the Environment, and when required, with the Ministry of Health and the Ministry for Agricultural Development, the Use of Land and the Restoration of the Land Property Rights, as well as other related state authorities;

II. Inform the public of the state of the environment and of activities which are subject to environmental impact evaluation;

III. Control the disposal of waste and harmful substances on their territory;

IV. Build, maintain and utilise installations for the purification of household and waste water;

V. Organise and control the collection and neutralisation of household waste;

VI. Manage municipal funds for environmental protection;

VII. Can create public eco-inspectors, which issue acts pursuant to art 37, para 2 of the Law on Administrative Violations and Punitive Measures."

In addition to these authorities, there is also the National Trust Eco-Fund, which is a legal entity managing the assets received from swap transactions "debt against environment" and "debt against nature", as well as from governments and international financial institutions allocated for the protection of the environment of the Republic of Bulgaria.

Information on the state of the environment is collected by the specialised authorities of the Ministry of the Environment, the Ministry of Health, the Ministry of Agricultural Development and the Restoration of Land Property Rights, and National Institute of Statistics and by the people and municipal bodies authorised by them.

Legislative or equivalent definitions

Regarding the environmental matters it is important and absolutely necessary to define legislative or equivalent definitions. A number of definitions exist in the Bulgarian law:

• Environment: a complex of natural and anthropological factors and elements which are in a state of mutual dependency and influence the ecological balance and the quality of life and health of the people, the cultural and historical heritage, and the landscape.
• Protection of the environment: activity aimed at the prevention of the deterioration of the environment, its conservation, protection and improvement, including the collection of information and control of the state and preliminary evaluation of the effects on the environment of the planned activities.
• Natural resources: elements of organic and non-organic matter, which are used or can be used by people for the satisfaction of their needs.
• Renewable resources: resources which are naturally renewable or can be renewed fully or partially through specially designed processes and which are proved to be renewable at a rate equal to the rate of their exploration; all other resources are non-renewable.
• Pollution of the environment: a change in the qualities of the environment as a consequence of the emergence and addition of physical, chemical or biological factors from a natural or anthropological source in the country or abroad, regardless of whether the standards applicable in the country are exceeded.
• Environmental damage: a change of one or more of the environment's components which leads to the deterioration of people's quality of life, the reduction of biological diversity or deters the rejuvenation of the natural ecosystems.
• Harmful substances and wastes: such substances and wastes which, when produced, transported, stored, used or disposed of are harmful or are capable of harming human health, flora or fauna, as well as other aspects of the environment.

There are other rules and regulations on environmental protection; however these are secondary sources which merely refer to other environmental legislation.

Increasing environmental consciousness over the past five to ten years certainly reflects on the remedial measures required under the law on contaminated land and clean-up standards.

Every individual and legal entity has the legal right to the elimination of environmental damage and to environmental protection, and a corresponding obligation is imposed in the cases provided for by the law.

The strategy for the elimination of environmental damage is based primarily on the prepared environmental impact evaluation and, as a whole, follows the recommendations of the relevant authority.

In cases of oversight or the emergence of new circumstances related to the environmental impact evaluation, a supplementary report is prepared and the methods (approved by the relevant state authority) are followed.

There are a variety of standards depending on the type of contamination, the degree of contamination and the type of contaminated land.

There is a significant difference when the contaminated land is within the regulated borders of inhabited areas, arable land, natural reserves or protected territories, etc.

The type of contamination is also significant, whether it is household or industrial, if there is a chemical or physical impact on the environment or a combination of the two, etc.

Depending on the type of contamination and the type of contaminated land, the subject of contamination or the impact on the environment, there are separate standards in the normative acts, adopted in addition to the main legislation, which apply to all specific cases.

Environment permits and enforcement of the law

There is a permissive and prohibitive regime in respect of the various activities which are the subject of the Law on the Environmental Protection.

The prohibitive regime applies to the import of waste and harmful substances into the Republic of Bulgaria, their storage and disposal, and transportation through Bulgarian land and sea territory.

In respect of the permitted activities, the law provides steps as follows:

I. The law includes a detailed list of projects subject to an environmental impact evaluation.

II. The investor or the initiator of the activities refers to independent experts for the evaluation which is carried out in the manner prescribed by the law.

III. The investor presents to the relevant authority a report on the effects on the environment.

VI. The relevant authority organises a discussion of the results with the participation of the local authorities, representatives of public organisations, the public and interested individuals and legal entities.

V. The relevant authority announces a decision after discussing the results.

VI. The relevant authority prohibits or stops the activity or the project, if the environment impact evaluation determined that there would be a negative effect on the environment or if such mandatory evaluation has not been carried out, or if the required purifying and protective equipment is not available.

Privatisation and the reduced state income and economic crisis in many of the most polluting and dangerous industries have resulted in the closure or at least cut-back of operations, which has in itself substantially improved environmental conditions. The chronically high unemployment levels, political and social instability and fiscal crisis of the state significantly diminished its capacity to handle breaches of the law and regulations. This put the focus on one of the most important questions, that is liability.

Enforcement of the law and liability for contamination

The law and the normative acts providing for the protection of the environment apply to all legal entities and individuals, Bulgarian and foreign, carrying out activities regulated by the law.

There are two types of liability: administrative and, for more severe cases, criminal. The legal basis for this can be found in the Law on Environmental Protection and in the criminal courts (para. 221A, 235, 278, 352, 353 and 353A).

Liability for contamination is regulated under the section 'Responsibilities' of the Law on Environmental Protection which provides as follows:

"Anyone who is implicated in the cause of contamination or damage to the environment must indemnify those affected. The indemnity cannot be less than the funds required for the elimination of the damage caused."

Anyone affected can file a suit against the perpetrator in order that he halts the violation and eliminates the consequences of the contamination.

Suits relating to the cessation of the violation and the elimination of the consequences of the contamination can also be filed by the municipal authorities, non-profit organisations and individuals.

The elimination of the damage caused by trans-border contamination of the environment is resolved through international agreements to which the Republic of Bulgaria is a party and, if there is no such agreement, on the basis of the general rules of international law.

Violation of the Law on Environmental Protection, perpetrated by individuals and legal entities, which are not crimes are punished by fines. If the violation of the law is regarded as a crime, in accordance with the Criminal Code of the Republic of Bulgaria, then criminal charges may be brought.

Liability for contaminated land in cases of sale or lease

The extent of liability for environmental damage is defined clearly in the Law on Environmental Protection in para. 9, subpara. 1, 2 and 3. This paragraph contains examples which set out the extent of liability in some instances of property-ownership transfer.

In cases of privatisation (excluding the privatisation agreements executed up to 1 February 1999), restitution and investment in construction projects by foreign and Bulgarian individuals and legal entities, the liability for environmental damage caused by past misfeasance or non-feasance is borne by the state on terms and in the manner determined by the Council of Ministers of the Republic of Bulgaria.

The projects are subject to mandatory environmental impact evaluation from the moment of restitution, privatisation or investment.

The evaluation of the environmental damage caused by past misfeasance or non-feasance is performed in accordance with the proceedings approved by the Minister for the Environment and Eaters, simultaneously with the environmental impact evaluation.

Except for the foregoing, in cases of privatisation, restitution and investment the extent of liability for past environmental damage can be fixed by contract in cases of sale or lease of a particular object. The contract can provide that the new owner or tenant (in cases of lease) does not have responsibility for the environmental damage caused before the date of transfer (succession).

Extent to which liability can be automatically transferred by contract

The extent of liability for environmental damage cannot be subject to contractual provision, because it is clearly defined by the law. Liability for past environmental damage can be fully excluded in cases described in para. 9 above. In the event of new environmental damage or contamination caused by activities of a particular individual or legal entity, liability is determined by the law and is subject to proof in the event of a legal dispute in court.

The main legal basis can be found inn the Law on Environmental Protection, para. 9. Paragraphs 1, 2 and 3 set out only three examples: privatisation, restitution and investment. For any other cases there are different procedures governed by different rules. Therefore one has to look at each individual case based on its own merits, and the appropriate legal procedures must then be followed. For development and redevelopment, different procedures and different licencing must be obtained but the procedure is different in each case regarding the type of land and the governing ministries.

Conclusion

The scope of the Bulgarian legislation is quite wide, yet incomplete in some areas and does not cover all potential eventualities. Where a specific problem arises a solution can be found beyond the scope of the particular laws regulating the protection of the environment, since there are numerous regulations touching on environmental protection.

On top of that, whilst new environmental laws and institutions have been put in place there are still insufficient resources available to implement the changes thoroughly. New, modern laws continue to be poorly enforced. Many of the draft laws included in the legislative programme of the Parliament contains specific norms related to environmental legislation.

When adopted, published and in force, these laws will no doubt do much to improve the protection of the environment in Bulgaria.

Youlita V. Ivanova

This article first appeared in "Eastern European Newsletter", Issue 22