Comment to article 332. Failure to comply with the requirements of the legislation on mandatory state environmental assessment The Code of the Republic of Kazakhstan on Administrative Offences
Failure to comply with the requirements of legislation on mandatory state environmental assessment or the requirements contained in the conclusion of the state environmental assessment, as well as the financing of projects and programs that have not passed the state environmental assessment, –
they impose a fine on individuals in the amount of ten, on officials, small businesses – in the amount of thirty, on medium–sized businesses – in the amount of fifty, on large businesses - in the amount of three hundred and fifty monthly calculation indices.
The generic object of the offense is the social and legal relations that arise when observing the procedure for conducting an environmental assessment.
According to clause 99) of Article 1 of the Environmental Code of the Republic of Kazakhstan, "environmental expertise" is "the establishment of compliance of planned economic and other activities with environmental quality standards and environmental requirements, as well as the determination of the permissibility of the implementation of the object of environmental expertise in order to prevent possible adverse effects of this activity on the environment and related social consequences".
In accordance with Article 45 of the Environmental Code of the Republic of Kazakhstan, the following types of environmental expertise are carried out in the Republic of Kazakhstan:
1) state environmental expertise;
2) public environmental assessment;
3) environmental assessment of projects.
46 of the Environmental Code of the Republic of Kazakhstan stipulates that an environmental assessment is carried out in order to:
1) determining and limiting the possible negative consequences of the implementation of planned managerial, economic, investment, rule-making and other activities on the environment and public health;
2) maintaining a balance between the interests of economic development and environmental protection, as well as preventing damage to third parties in the process of environmental management.
The objective side of the offense may manifest itself in actions (inaction), expressed in:
- failure to comply with the requirements of the legislation on the mandatory conduct of a state environmental assessment or the requirements contained in the conclusion of the state environmental assessment;
- financing of projects and programs that have not passed the state environmental assessment.
Paragraph 1 of Article 47 of the Environmental Code of the Republic of Kazakhstan states that mandatory state environmental expertise is subject to:
- pre-design and project documentation of the planned environmental impact activities, with accompanying environmental impact assessment materials in accordance with the stages defined in article 37 of the Environmental Code;
- draft emission standards for the environment;
- draft regulatory legal acts of the Republic of Kazakhstan, regulatory and technical, instructional and methodological documents, the implementation of which may lead to negative impacts on the environment;
- materials on the possibility of destruction of goods placed under the customs procedure of destruction, providing for the possibility of burial, neutralization, disposal or other destruction of goods, as well as waste generated as a result of the destruction of goods, indicating the method and place of destruction;
- projects of natural science and feasibility studies for the creation and expansion of specially protected natural areas, the abolition of state nature reserves and state protected areas of national importance and the reduction of their territory;
- biological justifications for the extraction and use of flora and fauna resources;
- survey materials of territories justifying the classification of these territories as zones of ecological disaster or environmental emergency;
- projects of economic activity that may have an impact on the environment of neighboring states or for which it is necessary to use natural objects shared with neighboring states or which affects the interests of neighboring states, including the Baikonur complex, defined by international treaties of the Republic of Kazakhstan.
It is prohibited to finance the implementation of projects of economic and other activities for which it is mandatory to conduct a state environmental assessment by banks and other financial organizations without a positive conclusion of the state environmental assessment (paragraph 4 of Article 51 of the Environmental Code of the Republic of Kazakhstan).
In accordance with paragraph 5 of the Rules for Conducting the State Environmental Assessment, approved by the Order of the Minister of Energy of the Republic of Kazakhstan dated February 16, 2015 No. 100, the objectives of the state environmental assessment are:
1) determining the environmental validity of the planned decisions, the implementation of which may affect the state of the environment and natural resources;
2) determining the completeness and correctness of the assessment of the impact of planned and ongoing management, economic, investment and other activities on the environment and public health, including an analysis of possible social, economic and environmental consequences and determining the level of environmental risk;
3) assessment of the effectiveness, completeness and sufficiency of measures proposed in the objects of expertise for environmental protection, rational use of natural resources, and public health protection;
4) preparation of conclusions of the state environmental expertise, timely transmission of them to state and other organizations making decisions on the implementation of the object of expertise and provision of necessary information to interested authorities and the public;
5) verification of compliance in the examined documentation with the environmental requirements contained in the laws of the Republic of Kazakhstan, standards, norms and rules in force on the territory of the Republic of Kazakhstan.
According to paragraph 14 of the Rules of the State Environmental Assessment, the procedure of the state environmental assessment consists of successive stages, during which expert bodies review materials and evaluate the object of the examination and form a reasoned and objective expert opinion, and includes:
1) registration of an application for a state environmental assessment with the authorized body, its territorial divisions and local executive bodies;
2) verification of the availability and completeness of materials submitted for examination, details, including the EIA of the planned economic activity;
3) an expert examination providing for the determination of the required level of expertise, assessment and analytical processing of materials, identification of the degree of environmental hazard of the planned or ongoing activity, sufficiency and reliability of the justifications for the implementation of the objects of expertise;
4) working out comments with the nature user through the e-government web portal www.egov.kz (hereinafter referred to as the portal) if there are comments on the projects and the materials attached to them submitted for the state environmental assessment.;
5) summarizing individual expert assessments and the results of the state environmental assessment, preparing an expert opinion with conclusions on the approval of materials or their rejection.
The subjective side of the offense is characterized by the fact that it can be committed either intentionally or negligently.
The subject of a special offense is a person who committed these violations (an individual, an official, a small business entity, a medium–sized business entity, or a large business entity).
According to Part 1 of Article 697 of the Administrative Code, the authorized body in the field of environmental protection considers cases of administrative offenses provided for in Article 332 of the Administrative Code.
Paragraph 47) of Article 1 of the Environmental Code of the Republic of Kazakhstan states that "the authorized body in the field of environmental protection is the central executive body responsible for management and intersectoral coordination in the field of environmental protection and environmental management, as well as its territorial bodies."
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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