ENVIRONMENTAL IMPACT ASSESSMENT (EIA) AND THE

DECISION ON ENVIRONMENTAL CONDITIONS IN RELATION TO

THE INVESTMENT CONSTRUCTION PROCESS

FKA Furtek Komosa Aleksandrowicz sp.k.

for Polska Agencja Informacji i Inwestycji Zagranicznych S.A.
(PAIiIZ)
Contents
1. What is an EIA? ........................................................................................ 3
2. What does the term “project” mean? ....................................................... 3
3. Where can one check whether a project planned by an investor
necessitates an EIA?................................................................................. 4
4. When is an EIA carried out? ..................................................................... 4
5. The parties in proceedings concerning an EIA .......................................... 5
6. The six stages of the EIA process ............................................................. 5
7. Report on environmental conditions ........................................................ 7
8. Scope of the Report on environmental conditions .................................... 8
9. Defects in the Report ................................................................................ 8
10. The public’s participation ......................................................................... 9
11. Procedure for opinions and arrangements ............................................. 10
12. What is a decision on environmental conditions?................................... 10
13. Issuance of the Decision as a condition for the issue of other
administrative decisions in investment construction proceedings ......... 11
14. Who issues the Decision? ....................................................................... 11
15. Application to issue a Decision ............................................................... 12
16. Content of the Decision .......................................................................... 12
17. Issuing a final decision ........................................................................... 14
18. Refusal to issue a Decision ..................................................................... 14
19. Period of validity of the Decision ............................................................ 15
20. Transfer of the Decision.......................................................................... 15
21. Repeated EIA .......................................................................................... 15

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 ENVIRONMENTAL IMPACT ASSESSMENT (EIA) AND THE DECISION ON
ENVIRONMENTAL CONDITIONS IN RELATION TO THE INVESTMENT
CONSTRUCTION PROCESS

An environmental impact assessment (“EIA”) is part of the proceedings concerning the

issuance of a decision on environmental conditions of approval to a project
(“Decision”). These proceedings are of fundamental significance for the correct and
timely conduct of the investment construction process. An EIA for planned projects is
conducted to examine the possible impact of a specific investment on the environment
and to agree on such conditions for completing it that it reduces – and if possible,
eliminates – the risk of a negative impact on the environment.
Detailed principles of the EIA are regulated by the Act on Making Available Information
about the Environment and its Protection, the Public’s Participation in Environmental
Protection, as well as on Environmental Impact Assessments (“AEIA”), which specifies
when conducting the proceedings is required, what projects need to have an EIA
conducted, what the procedure and the stages of conducting such proceedings are, and
what authorities are relevant in such a case; however, the legal norms specifying the
requirements of environmental protection law with regard to the investment
construction process are contained in many parliamentary acts of substantive law,
which poses a difficulty for investors operating or commencing operations in Poland.
This study is intended to discuss the most important issues connected with this
problem.

1. What is an EIA?
An environmental impact assessment (“EIA”) of a project, according to the
wording of the Act on Making Available Information about the Environment and
its Protection, the Public’s Participation in Environmental Protection, as well as on
Environmental Impact Assessments (“AEIA”), involves proceedings in which the
impact on the environment of a planned project is assessed, covering in
particular:
1. the verification of the report on the impact of a project on the environment
(“Report”),
2. obtaining the opinions and approvals required by the act,
3. ensuring the possibility of the public’s participation in the proceedings.

2. What does the term “project” mean?

According to the definition in the AEIA, a project is a “construction intention” or
other interference in the environment, involving transforming or changing the
manner of making use of land, including the extraction of minerals. What is
important is that technologically connected projects are classed as a single
project, including when they are being carried out by various entities.

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3. Where can one check whether a project planned by an investor
necessitates an EIA?
3.1 The basic legal act regulating the EIA in Polish law is the Act on Making Available
Information about the Environment and its Protection, the Public’s Participation in
Environmental Protection, as well as on Environmental Impact Assessments of 3
October 2008 (Journal of Laws of 2013, item 1235) (“AEIA”).
3.2 However, to specify on the AEIA, an ordinance of the Council of Ministers of 9
November 2010 was adopted concerning projects that may have a significant
impact on the environment (Journal of Laws of 2010, No. 213, item 1397)
(“Ordinance”), where the following are indicated in the catalogue:
3.2.1 the kinds of projects that may always have a significant impact on the
environment (so-called “group I”);
3.2.2 the kinds of projects that may potentially have a significant impact on the
environment (so-called “group II”);
3.2.3 cases in which the changes made to structures are classed as group I or II
projects.
3.3 It is also worth seeking information on the websites of relevant authorities for EIA
proceedings:
3.3.1 locally appropriate Regional Directorates for Environmental Protection;
3.3.2 The General Directorate for Environmental Protection
(http://www.gdos.gov.pl/);
3.3.3 The Ministry of the Environment (https://www.mos.gov.pl/);
3.3.4 relevant local authorities.

4. When is an EIA carried out?

4.1 An EIA can be required for an investment project involving:
4.1.1 construction;
4.1.2 reconstruction;
4.1.3 expansion.
4.2 An EIA is required for projects:
4.2.1 that may always have a significant impact on the environment (group I),
and
4.2.2 that may potentially have a significant impact on the environment (group
II) – only if the relevant authority has confirmed the obligation to conduct
an EIA.
4.3 The catalogue with a division into group I and group II is available in the
Ordinance, described in item 3.2 above.

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5. The parties in proceedings concerning an EIA
A party in proceedings ending with the issuance of a Decision is anyone whose
legal interests or obligation the proceedings concern, or anyone requesting action
by an authority on account of his legal interests or obligation. In practice, the
parties to proceedings concerning an environmental impact assessment are those
entities on whose rights or obligations a planned project could have an impact,
e.g. owners of real properties adjacent to the real property which a project
concerns (see ruling of the Supreme Administrative Court of 25 October 1999, IV
SA 1714/97).

6. The six stages of the EIA process

From a practical point of view, the EIA process for a given project can be divided
into the six most important stages:
(I) classifying a project for EIA proceedings (screening),
(II) specifying the scope of expert analyses performed as part of the EIA
(scoping),
(III) presenting information on the environment, in the form of a Report, to
the appropriate authorities,
(IV) verification of the Report,
(V) consultations with the appropriate environmental protection authorities
and with the public,
(VI) issuance of the Decision and its publication.

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I. STAGE I - classifying a project for EIA proceedings (screening),
A crucial stage for an investor is the process of classification for the preparation
of an environmental impact report, i.e. screening. At this stage it is recommended
that the investor should familiarise itself with the guidelines of the European
Commission, entitled “Guidance on EIA. Screening”, in order to verify the
conditions accepted at the stage of creating preliminary assumptions in relation to
the draft project, with a checklist constituting an element of the guidelines
(http://ec.europa.eu/environment/archives/eia/eia-guidelines/g-screening-full-
text.pdf). The Polish language version of the guidelines is available on the
website of the Ministry of Development (“MD”).
II. STAGE II - specifying the scope of expert analyses performed as part of the EIA
(scoping),
The next stage is specifying the scope of the expert analyses that must be
performed when drawing up the Report. Scoping in the EIA procedure makes it
possible to suitably prepare information about the scope and detail of materials,
and it has a decisive influence on their quality. For that reason it is worth sending
a question about the scope of the Report to the relevant authority. After the
issuance of an order specifying that scope, the authority suspends the
proceedings by way of an order until the documents are ready and submitted. At
this stage it is recommended that the investor should familiarise itself with the
guidelines of the European Commission, entitled “Guidance on EIA. Scoping”.
(http://ec.europa.eu/environment/archives/eia/eia-guidelines/g-scoping-full-
text.pdf). The Polish language version of the guidelines is available on the
website of the MD.
III. STAGE III - presentation of the Report on environmental conditions,
IV. STAGE IV - verification of the Report,
A reliably prepared Report and – generally – correctly conducted EIA proceedings
minimise the dangers associated with delays in carrying out the project. Materials
prepared imprecisely and an inappropriately conducted administrative procedure
form the basis for appealing against the Decision by parties to the proceedings or
non-government organisations involved in monitoring investments, EU and
domestic fund expenses, as well as areas subject to protection (with particular
emphasis placed on areas included or planned for inclusion in the Nature 2000
network). The quality of the Report can therefore have an influence on lowering
the comprehensive costs of the project by ensuring the efficient and rapid
conduct of the procedures aimed at the issuance of the Decision.
V. STAGE V – consultations with the relevant environmental protection
authorities and with the public,
VI. STAGE VI – issuance of the Decision and its publication.

7. Report on environmental conditions

The report on the impact of a project on the environment (“Report”) is one of
the basic EIA documents. Included in it is all the information accumulated during

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 the assessment conducted by the investor, concerning the accustomed impact
that can be expected as a result of the construction, and the operation and
demolition carried out under the project.

8. Scope of the Report on environmental conditions

The Report has a couple of basic fixed elements that determine whether it is
complete.
8.1 The first of them is a description of the project. The contractor is obliged, in
particular, to present the project’s characteristic features and the conditions
under which the land will be used in the realisation and operational phases, the
main characteristic features of the production processes, and the expected
amount of emissions resulting from the operation of the planned project.
8.2 Next, in accordance with Article 66 of the AEIA, it is necessary to provide expert
analyses of alternative solutions:
8.2.1 the variant proposed by the applicant,
8.2.2 a rational alternative variant,
8.2.3 the most favourable variant for the environment.
8.3 A further element is specifying proposed actions intended to prevent, reduce or
compensate the natural environment in respect of the negative impacts on it.
8.4 The Report also states whether it is necessary in relation to the planned project
to establish an area of restricted use, and it specifies the limits of that area, the
restrictions with regard to the intended use of land, the technical requirements
concerning civil structures and the manner of making use of them.
8.5 In the event of confirming the possibility of a trans-border impact on the
environment, the information in the Report should include specification of the
impact of the planned project outside the territory of the Republic of Poland.
8.6 Also subject to analysis are possible social conflicts connected with the planned
project.
8.7 Apart from the general obligation to present the issues in graphic form, in case of
group I projects, it is also necessary to enclose appropriate maps of roads and
railway lines as well as overhead power lines and installations for transmitting oil,
petroleum products, chemical substances or gas.

9. Omissions in the Report

9.1 The authority relevant for issuing a Decision does not directly have the power
specified in the AEIA to “reject” the Report if it does not contain all the elements
required by law (Article 66 of the AEIA) or by an order to impose the obligation of
an EIA, or if it is not sufficiently detailed from the point of view of the needs to
assess the impact of the project on the environment.
9.2 In the case of group I projects, formal defects in the Report, constituting an
element of the application to issue a Decision, are subject to removal on the basis
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 of Article 64 par. 2 of the Code of Administrative Procedure (“CAP”). Failure to
remove such defects within seven days of the day of delivery of the request to do
so will have the effect that the application to issue a Decision will not be
considered.
9.3 In the case of group II projects, where the Report is evidence prepared in the
course of proceedings, the basis for demanding the removal of defects in the
Report will be the clauses concerning the call to provide explanations (Article 50
of the CAP).
9.4 Regardless of the classification of a project and the basis for the obligation to
prepare a Report, the relevant authority can shape the content of the Report as
early as upon imposing the obligation to prepare it. Other requirements specified
by the relevant authority for issuing a Decision may be connected with preparing
a Report, but only to the extent to which this is really necessary to specify the
impact on the environment.
9.5 If the Report is not, in the authority’s opinion, exhaustive or detailed to the
necessary degree on account of the subject of the case, or if it contains errors,
the authority can, regardless of the means stated above:
9.5.1 conduct an administrative hearing about which the authority can, under
Article 90 par. 3 of the CAP, inform state and local government
organisational units, social organisations and other persons, if their
participation in the hearing is justified on account of its subject; in that
event the authority will request them to take part in the hearing or to file a
statement and evidence before the hearing in support of their demands,
which are included in the case file;
9.5.2 make use of other evidence, e.g. from an expert’s opinion or a site visit.

10. The public’s participation

One of the most important issues resulting from the AEIA is the obligation to
ensure the public’s participation in the proceedings before a Decision is issued,
and – generally – in proceedings within the framework of environmental
protection law. In first-instance proceedings, the authorities are obliged to apply
procedures, among other things to:
1. inform the parties to the proceedings and the public about carrying out an
EIA, initiating proceedings, the subject of the Decision and the relevant
authority to issue it,
2. provide information about the possibility of familiarising oneself with the
case documents, the place where the documents will be available for
access, and the manner of submitting comments and requests and where to
do so,
3. stipulate a 21-day deadline for submitting such comments and requests
(Please note: as of 1 January 2017 this deadline will be extended to 30
days).

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11. Procedure for opinions and approvals
11.1 If an EIA is being conducted, before a Decision is issued the relevant authority for
issuing such a Decision:
11.1.1 approves the conditions for carrying out the project with the Regional
Directorate for Environmental Protection (“RDEP”);
11.1.2 requests the opinion of the appropriate Sanitary Inspectorate.
11.2 The system of opinions and approvals, operating on the basis of the AEIA, is as
follows:

Authorities acting jointly in the course of opinions and approvals

conditions with respect to x RDEP (approvals) – deadline: 30
carrying out the project before days as of receiving documents;
the Decision is issued – when an x relevant body of the Chief
EIA is being conducted (groups I
Sanitary Inspectorate (only
and II)
opinions) – deadline: 30 days as
of receiving documents.

Failure by the relevant body of the

Chief Sanitary Inspectorate to issue
an opinion within 14 days shall
mean that the relevant body has no
reservations.

12. What is a decision on environmental conditions?

12.1 A decision on environmental conditions (“Decision”) is an administrative decision
which:
12.1.1 specifies the environmental conditions after the fulfilment of which the
project can be carried out, and
12.1.2 whose task involves shaping the planned project in such a way that it
worsens or affects the surroundings to the slightest possible extent.
12.2 One Decision is issued for a single project, including when obtaining a greater
number of investment decisions is required for a given project or separate
decisions are being obtained for the various stages of the realisation of the
project.
12.3 This Decision binds the authorities issuing later decisions in the investment
process, by already determining, at the very beginning, many essential features
of the planned project (a catalogue of such investment decisions is included in
Article 72 of the AEIA and in item 13 of this study).

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13. The issuance of the Decision as a condition for the issue of other
administrative decisions in the investment construction proceedings
Both in the case of projects which can always have an impact on the environment
and projects which can potentially have an impact on the environment, the
Decision must be issued before the following administrative decisions are
obtained:
1. building permit,
2. decision approving a construction design,
3. decision permitting the resumption of works, issued on the basis of the
Construction Law,
4. planning permit, issued on the basis of the Act on Spatial Planning and Land
Development,
5. concession to explore or identify mineral deposits, to extract minerals from
deposits, issued on the basis of the Geological and Mining Law,
6. water permit to build water facilities, issued on the basis of the Water Law,
7. decision approving a project to consolidate or replace land, issued on the
basis of the Act on Land Consolidation and Replacement,
8. decision to change a forest for agricultural use, issued on the basis of the
Act on Forests,
9. decision on permitting a road investment, issued on the basis of the Act on
Particular Principles of Preparing and Realising Public Road Investments
(the so-called “Special Act”),
10. decision on establishing a railway line location, issued on the basis of the
Act on Railway Transport, and
11. decision on establishing a motorway location, issued on the basis of the Act
on Toll Motorways and on the National Road Fund.

14. Who issues the Decision?

Various authorities are relevant for issuing the Decision. In principle, the district
administrator/mayor/president of a town or city issues such decisions. In
particular situations, decisions are issued by the county administrator and the
head of the regional directorate of the State Forests. Decisions and proceedings
are also conducted by the regional director for environmental protection with
respect to projects which always have a significant impact on the environment,
particularly: roads, railway lines, overhead power lines, projects carried out in
closed areas and at sea, as well as projects involving public utility airport
investment. The county administrator is the relevant authority in the case of land
consolidation, replacement or division. The General Director for Environmental
Protection enters proceedings if irregularities are found in the issuance of

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 decisions on environmental conditions. State sanitary inspectors perform the
function of an opinion-providing authority.
Generally speaking – the regional director for environmental protection (“RDEP”)
conducts cases that are more important from the point of view of regional and
national development; the executive authority of a municipality conducts cases
that are important locally; and other authorities conduct cases directly connected
with their specialisation.

15. Application to issue a Decision

15.1 The application to grant consent to perform a project is a document initiating
administrative proceedings. It is subject to being made available to the public and
is the subject of an opinion given by a jointly-acting environmental protection
authority. If a Report is required, the applicant will enclose it with the application
to issue a Decision. In proceedings concerning projects under group II, an
information sheet regarding the project is enclosed with the application to issue a
Decision.
15.2 The documentation enclosed with the application covers a copy – certified by the
relevant authority, i.e. the authority keeping land and building records – of the
cadastral map for the land on which the project will be carried out, and covering
the area the project will impact.
15.3 In the case of projects for which the RDEP is the authority conducting the
proceedings, an application must also be accompanied by a copy and extract from
the local zoning plan if that plan has been approved, or else information about
the lack of it. This does not apply to an application to issue a decision on
environmental conditions for a public road, a railway line of national importance,
a public utility airport or projects requiring a concession to prospect for and
explore mineral deposits.
15.4 Under Article 74 par. 2 of the AEIA, the Report and information sheet for a
project is submitted in three counterparts, together with their electronic record on
data storage media.

16. Content of the Decision

16.1 If an EIA is not conducted, the relevant authority states that there is no need to
do so in the Decision. In that event the characteristic features of the project
constitute an appendix to the Decision (Article 84 of the AEIA).
16.2 In the Decision being issued after the EIA has been conducted, the appropriate
authority specifies the type and location of the project, as well as the conditions
with respect to the use of the land in the phase of realisation and operation or
use of the project, taking particular account of the need to protect natural values,
natural resources and monuments as well as to reduce the nuisance impact on
neighbouring land.

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16.3 If, under an EIA, there is a need of environmental compensation, the authority
states the need to do so in the Decision, and if that need concerns the
prevention, reduction and monitoring of the project’s impact on the environment,
it imposes an obligation to carry out such activities.

16.4 The Decision requires justification which, regardless of the requirements arising
from the CAP, should contain:
EIA conducted (Article 85 par. 2 EIA not conducted (Article 85 par. 2 pt.
pt. 1 of the AEIA): 2 of the AEIA):
1. information about proceedings Information on the conditions referred to
conducted requiring the in Article 63 par. 1 of the AEIA, taken into
participation of the public, as account when ascertaining that there is
well as about the manner in no need to conduct an EIA.
which comments and requests
made in connection with the
public’s participation were

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 noted and to what extent they
were taken into account,
2. information about the manner
in which the following were
noted and to what extent they
were taken into account:
 findings contained in the
Report,
 approvals of the RDEP and
opinions of the Chief Sanitary
Inspectorate,
 results of proceedings in the
case of a trans-border impact
on the environment, if they
have been conducted, and
3. justification of the standpoint
concerning repeated
assessment.

17. Issuing a final decision

By virtue of Article 80 par. 1 of the AEIA, if an EIA has been conducted, the
relevant authority issues a Decision, taking into account:
1. the results of the approvals and opinions referred to in Article 77 par. 1 of
the AEIA and item 11 above:
2. findings contained in the Report;
3. the results of proceedings with the public’s participation;
4. the results of proceedings in the case of a trans-border impact on the
environment, if they have been conducted.

18. Refusal to issue a Decision

An authority can refuse to issue a Decision in the event of:
1. no compliance between the location of the project and the findings of the
local zoning plan, if such a plan has been adopted (Article 80 par. 2 of the
AEIA – this does not apply to a Decision being issued for a public road, a
railway line of national importance, or projects requiring a concession to
prospect for and explore mineral deposits);
2. the refusal by the RDEP to approve the conditions of carrying out the
project;
3. a lack of consent by the applicant to carry out the project in a variant other
than the one proposed, if justification in carrying out the project in another

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 variant follows from the environmental impact assessment (Article 81 par. 1
of the AEIA); and
4. if it follows from the environmental impact assessment that the project
could have a significantly negative effect on a Nature 2000 area, and
carrying out the project is not supported by necessary requirements of
overriding public interest, including requirements of a social or economic
character, and there is a lack of alternative solutions (Article 81 par. 2 of
the AEIA in connection with Article 35a and 34 of the Act on Nature
Protection (Journal of Laws of 2015, item 1651)).
One must also acknowledge the refusal to issue a decision on environmental
conditions as being justified if prohibiting a project from being carried out follows
from particular regulations, e.g. those on the protection of the natural
environment.

19. Period of validity of the Decision

19.1 A Decision on environmental conditions is valid for six years from the day on
which it became final.
19.2 However, the validity period can be extended to ten years if the planned project
is being carried out in stages and the conditions specified in the Decision or the
resolution (if issued) referred to in Article 90 par. 1 of the AEIA have not
changed.
19.3 An extension is performed by the authority that issued the Decision, during the
period in which it is valid (i.e. before the lapse of the first six years).
19.4 An extension is made by way of a resolution that can be appealed against.

20. Transfer of the Decision

It is possible to transfer a Decision, and the relevant authority for issuing the
Decision is obliged to transfer it if the party to which the Decision was issued
gives its consent to the transfer and the entity to which the transfer is to be made
accepts the conditions in the Decision.

21. Repeated EIA

21.1 The obligation to have a repeated EIA can arise from the standpoint presented in
the Decision or as a consequence of the authority relevant for issuing
construction decisions ascertaining that changes were made in the application to
issue a Decision in relation to the requirements specified in the Decision. This
assessment can also be due to the will of the investor.
21.2 A repeated EIA cannot exist independently without a prior Decision being issued
or in proceedings other than those concerning that Decision. However, it can also
be initiated by the investor if no EIA was conducted in the proceedings to issue
the Decision.

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21.3 If the first EIA is conducted in separate proceedings to issue a Decision, the
repeated EIA involves proceedings performed simultaneously with proceedings
concerning cases for the issuance of:
x a building permit,
x a decision approving a construction design,
x a decision permitting the resumption of construction works – issued on the
basis of the Construction Law (Journal of Laws of 2013, item 1409) (“CL”),
x a decision permitting a road investment – issued on the basis of the Act on
Particular Principles of Preparing and Realising Public Road Investments,
x a decision permitting a public utility airport investment – issued on the basis
of the Act on Particular Principles of Preparing and Realising Public Utility
Airport Investments of 12 February 2009 (Journal of Laws No. 42, item 340).
21.4 This assessment may also be conducted in proceedings to amend the
aforementioned Decision.
21.5 A repeated EIA is not conducted by the authority relevant for issuing the
Decision, but by the RDEP. These proceedings end in an approval or a refusal to
approve the conditions of carrying out the project.
21.6 As in the case of the Decision, the main evidence in the EIA continues to be the
Report.
21.7 The procedure of a repeated EIA is initiated by the authority relevant for issuing
the main decision. After receiving the Report, that authority contacts the RDEP
with a request to approve the conditions of carrying out the project, by
submitting:
x an application to issue a building decision,
x the Decision,
x the Report.
21.8 The RDEP issues a resolution on approving the conditions of carrying out the
project within 45 days of receiving the documents. The deadline can be revised
on account of the circumstances referred to in Article 35 par. 5 of the CAP. There
is no complaint available on this resolution.
21.9 The justification of the RDEP’s resolution, under Article 91 of the AEIA, regardless
of the requirements arising from the CAP, should contain:
21.9.1 information about proceedings conducted requiring the participation of the
public, as well as about the manner in which comments and requests
made in connection with the public’s participation were noted and to what
extent they were taken into account;
21.9.2 information about the manner in which the following were noted and to
what extent they were taken into account:
(i) findings contained in the Report,
(ii) findings contained in the opinion of the Sanitary Inspectorate, and

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 (iii) the results of proceedings in the case of a trans-border impact on
the environment, if they have been conducted.
21.10 The RDEP’s resolution binds the authority conducting the main proceedings, in
principle, to an equal extent as being bound by the Decision. This means that the
conditions of carrying out the project, specified in both those decisions, should be
taken into account when issuing the decisions ending the proceedings.

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