PRINCIPLES OF ECOLOGICAL REGULATION

Any relations in the field of environment protection, conservation and recovery, as well as mineral resources management in the course of economic and other activities connected with the use of natural resources and protection of environment in the Republic of Kazakhstan, are regulated by the environmental (nature conservation) and sanitary\epidemiological laws of the Republic of Kazakhstan, primarily, Environmental Code of the Republic of Kazakhstan No. 400-VI of 2 January 2021 (the “Environmental Code”).

The main difference between the Environmental Code and the repealed Environmental Code of the Republic of Kazakhstan No. 212-III of 9 January 2007 is that the current Environmental Code focuses on preventing any negative impact on the environment.  Furthermore, it strengthens liability and raises administrative penalties for excess emissions.  The current Environmental Code introduces the “polluter pays and rectifies” principle and obliges newly incorporated entities to obtain comprehensive ecological permits.  Besides, the current Environmental Code is aimed at waste minimization and appropriate expenditure of the national budget on environment protection.  The Environmental Code sets out a hierarchy of waste ensuring a step-by-step management of waste.  The Kazakhstan Waste Classification is brought into compliance with the EU Waste Catalogue and sets out a list of both hazardous and nonhazardous wastes.  The current legislation strengthens liability for illegal logging.

The Environmental Code requires appropriate amendments to the Entrepreneurial Code, Criminal Code, Forest Code, Water Code, Land Code, Tax Code, and the laws concerning permits and notifications, civil defence, public administration, development of the agro-industrial complex and rural areas, and compulsory environmental insurance.  The current legislation exempts the operators of new facilities who have obtained comprehensive ecological permits due to the deployment of the best available technologies from the emission fee.  The existing enterprises seeking exemption from the emission fee have to develop and implement a program for improvement of their ecological efficiency and to deploy the best available technologies.

Land, mineral resources, surface and underground waters, atmospheric air, forests and other vegetation, fauna, genetic resources, natural ecological systems, climate and global ozone layer must be adequately protected from destruction, degradation, damage, pollution and any other adverse effects.  Specially protected nature conservation areas and nature reserve funds are the areas of special concern.

We have to understand the difference between the government regulation of environment protection and the government regulation of mineral resources management.

Subject to the Environmental Code, the government regulation of environment protection includes the following measures:

1)      licensing of environment-related activities;

2)      ecological regulation;

3)      technical regulation in the field of environment protection;

4)      ecology evaluation;

5)      government environmental impact assessment;

6)      issuance of environmental permits and environmental impact statements;

7)      government environmental and natural resources monitoring;

8)      government environmental monitoring;

9)      collection, sorting and/or disposal of waste on a notification basis; and

10)    instruments of government control in relation to greenhouse gas emissions and absorption.

The Kazakhstan Environment Protection Authority implements a unified national environmental policy be means of the following measures:

1)      drafting and adopting regulatory legal acts aimed at the protection of environment to the extent set forth in the Environmental Code;

2)      coordinating, within its competence, environmental conservation activities pursued by central and local authorities;

3)      licensing environmental conservation activities;

4)      issuing environmental permits within its competence determined by the Environmental Code;

5)      receiving notices of commencement or termination of business activity where provided for by the Environmental Code;

6)      conducting state environmental expert evaluation within its competence determined by the Environmental Code;

7)      conducting state environmental monitoring;

8)      developing and implementing nationwide environmental conservation measures;

9)      exercising public control over greenhouse gas emissions and absorption;

10)    implementing government control measures aimed at the protection of the ozone layer;

11)    approving environmental action plans of local authorities on the level of oblast/republican status city/capital;

12)    maintaining international cooperation on improving environmental quality; and

13)    exercising other functions vested therein by the Environmental Code, other Kazakhstan laws and acts issued by the Kazakhstan President and Government.

The Environmental Code clearly distributes environment protection management functions across multiple government agencies.  To date, the Kazakhstan Ministry of Environment, Geology and Natural Resources has set up such subdivisions as the Committee for Environment Regulation and Control, Committee for Geology, Committee for Forestry and Wildlife, Committee for Fisheries and Committee for Water Resources.  The Kazakhstan Government also has other special agencies responsible for environment protection and natural resources management/restoration whose authority is determined by the respective Kazakhstan legislative acts.

Presently, the economic and other activities subject to the environmental impact assessment are subdivided into the following four categories depending on the significance and coverage of such assessment:

the first category covers all facilities that exert a substantial adverse impact on the environment;

the second category covers all facilities that exert a moderate adverse impact on the environment;

the third category covers all facilities that exert a minor adverse impact on the environment; and

the fourth category covers all facilities that exert the minimum adverse impact on the environment.

All activities/facilities not classified by the Environmental Code in terms of their environmental hazard extent or not falling under the criteria set out in the Environmental Code are subsumed under the fourth category.

Any activity conducted by a corporation or individual in the field of environmental design and rationing under the first category requires a license for the performance/provision of environmental works/services.

All environmental works and services are licensed by the competent environmental authorities in compliance with the Kazakhstan law concerning licensing and notification.

In order to establish the acceptable concentrations, the competent authorities responsible for sanitary and epidemiological well-being of the population maintain a register of potentially hazardous chemical and biological substances banned in Kazakhstan.

For the sake of atmospheric air protection the government establishes the following standards for permissible anthropogenic impact on atmospheric air:

1)   maximum permissible emissions standard, i.e. an environmental standard prescribed by an environmental permit and determined as the maximum amount of air pollutant or mixture of air pollutants permitted (allowed) to emit into atmospheric air;

2)   technology-forcing emissions standard permitting (allowing) emissions from technologically unavoidable gas flaring when baseline data underlying the calculation of emissions in draft maximum permissible emissions standards and project documentation are deviated, provided that the established maximum permissible emissions standards and technology-forcing emissions standards are met; and

3) maximum permissible limit of harmful physical influence on atmospheric air.

The permissible emissions standards are set for individual pollution sources falling under the first and second categories at the values equal to or below:

1)      the respective emissions limit values specified in the relevant environmental impact assessment report as provided for by the Environmental Code, when such environmental impact assessment is mandatory; and

2)      the respective emissions values specified in the declaration of the intended activity as provided for by the Environmental Code, when the Environmental Code requires only screening of the intended activity with regard to its potential impact on the environment without the need to perform a mandatory environmental impact assessment.

In relation to the facilities requiring comprehensive ecological permits, the permissible emissions standards are set for individual pollution sources falling under the first and second categories at the values equal to or below the respective marker-pollutant emissions values associated with the application of the best available techniques as described in the relevant best available technique reference notes.

The permissible emissions standards do not apply to the facilities falling under the third and fourth categories and to any mobile sources of emissions.

Emissions of pollutants the level of potential danger of which to human life and/or health and environment has not been scientifically established are prohibited.

Kazakhstan law prohibits the manufacturing of any transport and other mobile vehicles the pollutant emission values of which do not meet the standards set out in the EAEU Technical Regulations.

Furthermore, Kazakhstan law prohibits the storage, treatment, burial and incineration of any waste potentially causing air pollution outside designated areas and without specially fitted facilities, plants and equipment meeting the requirements of Kazakhstan environmental law.

Import of radioactive products or semi-products, raw materials and components the radioactive content of which exceeds the elimination threshold determined by the applicable radiological safety regulations is subject to Kazakhstan export control legislation and government accounting of nuclear materials and ionizing radiation sources in compliance with the Kazakhstan nuclear energy legislation.

Environmental impact assessment is a process of identifying, researching, analysing and evaluating the likely substantial environmental impacts of a proposed activity comprising the stages set out in the Environmental Code.  The reference to ‘proposed activity’ in the Environmental Code includes the reference to any activity proposed by citizens or corporations and associated either with the construction and subsequent operation of certain production and other facilities or with any other intervention in nature, including by means of subsoil use operations, as well as any significant developments in such activity.

Environmental impact assessment is mandatory for all types of economic and other activities having direct or indirect impact on the environment and human health.  It is prohibited to develop or implement any economic or other projects having impact on the environment without the assessment of such impact.  The results of impact assessment form an integral part of any pre-planning, planning, pre-project and project documentation.  Project customers, sponsors and developers must consider the results of such environmental impact assessment and ensure the selection of such solutions which have the lowest adverse effect on the environment and human health.

Environmental expert review is an expert operation that addresses the compliance of the documentation submitted for expert review with Kazakhstan environmental laws, and is meant to (i) prevent any significant adverse effect on the environment and human health expected from the implementation of such documentation, and (ii) ensure the environmental soundness and sustainability of Kazakhstan development.

The Environmental Code discerns the following two types of environmental expert review:

1)        government environmental expert review; and

2)        public environmental expert review.

The following documents and projects are subject to the mandatory government environmental expert review:

1)      project documentation for the construction and/or operation of the first and second category facilities, and other project documentation required by the Environmental Code for the issuance of environmental permits;

2)     project documentation for the construction and/or operation of the third category facilities, and other project documentation required by the Environmental Code for the preparation of an environmental impact declaration;

3)      draft regulatory legal acts prepared by Kazakhstan central and local authorities the implementation of which can have adverse effects on the environment;

4)      draft scientific and feasibility studies in relation to the creation and expansion of nature conservation areas, including land-use planning, infrastructure master plans, transfer of nature conservation areas under reserve land regime, abolishment or reduction of state nature sanctuaries of nationwide or local significance and state conservation areas of nationwide significance, environmental organisation management plans developed in compliance with the Kazakhstan Law Concerning Specially Protected Natural Areas;

5)      survey data that justify subsuming the surveyed areas into environmental disaster or emergency zones;

6)      projects for business activities that can affect the environment of neighbouring states or the implementation of which requires the involvement of natural sites shared with neighbouring states or affects the interests of neighbouring states (including Baikonur Complex) provided for by international treaties of the Republic of Kazakhstan;

7)      data of complex environmental surveys of the lands used for nuclear testing or exposed to military training in the past;

8)      projects for surveying and management of state-owned and state-managed forests and/or ad hoc surveying of the state forestry fund for the purpose of categorisation/re-categorisation or designation as specially protected area where forest use is prohibited or restricted; and

9)      project documentation for any activity that requires the relevant environmental permit and compulsory favourable opinion of a government environmental expert.

 Public environmental expert review is performed, on a voluntary basis, by expert committees set up by nonprofit organisations and implies the review of any economic and other activities for compliance with the public interests safeguarding public health and/or sound environment.  Public environmental expert review can be initiated by any citizens or corporations.

The subjects of environmental expert review and the procedure for assessment of their compliance with Kazakhstan environmental laws are determined by Kazakhstan technical regulations.

Environmental permit is a document that certifies the entitlement of a sole trader or legal entity to engage in a certain activity having adverse effects on the environment and sets out the environmental requirements to the performance of such activity.  Each facility subsuming under the first and second categories requires an environmental permit.

Kazakhstan subsoil users must obtain the following environmental permits:

1)      comprehensive environmental permit required for any first category facility; and

2)      environmental impact permit required for the construction and/or operation of any second category facility and for the operation of any first category facility to the extent provided for by the Environmental Code.

Any emissions from any stationary sources are subject to environmental permits.  Greenhouse gas emissions are not subject to environmental permits, save for those emissions which are determined by the Environmental Code as pollutants.

Greenhouse gases are gaseous substances (chemical compounds), either natural or anthropogenic, that absorb and emit infrared radiation in the wavelength range emitted by Earth.  By 31 December 2030, the Republic of Kazakhstan aims to reduce its carbon balance (emission less absorption) by at least 15% of the 1990 carbon balance.

The government regulates emissions and absorption of greenhouse gases through:

1)        the application of appropriate tools and methods provided for by the Environmental Code; and

2)        the implementation of a market mechanism for carbon unit trading.

It is worth noting that emission charges payable by subsoil users at the rates determined by their environmental permits are levied in compliance with the Kazakhstan tax law.  The methodology for calculating emission charges is approved by the competent authorities responsible for environment protection.  The discharge of emission tax liabilities does not relieve a subsoil user from the liability to compensate environmental damages.

Ecological damage is a damage caused to any components of the environment set forth in the Environmental Code when there is no possibility to restore such components to the original level in a natural way within a reasonable period of time without placing them in remediation.  Remediation is a set of measures aimed at remedying environmental damage through the restoration and recreation of the damaged component of natural environment or, when damage is entirely or partially irremediable, through the replacement of such component of the environment.

Following the polluter-pays-principle, the person whose acts or activities have caused ecological damage must remediate the damaged components of the environment to a full extent at their own expense.

For environmental claims the statute of limitations is 30 years starting from the date when the event or action or omission causing the ecological damage occurred.  When a damage is of long continuance, the statute of limitations starts to run from the date when the event or action or omission causing the ecological damage ended.

Government Environmental Control

Government environmental control is a set of measures implemented by the Environment Protection Authority to ensure citizens’ and companies’ compliance with Kazakhstan environmental laws, in particular:

1)        compliance with the provisions of the Environmental Code aimed at the protection of the environment;

2)        environmental compliance in relation to nature conservation areas;

3)        environmental compliance of subsoil users in the course of abandonment, remediation and recultivation operations;

4)        performance of extended manufacturer/importer responsibilities;

5)        compliance of the operator of extended manufacturer/importer responsibilities with the provisions of the Environmental Code;

6)        compliance with the qualification requirements and regulations for the performance of environment protection activities subject to licensing and notification; and

7)        environmental compliance of local authorities in the course of providing public services in connection with the protection of the environment.

They discern the following types of government environmental control:

1)        off-site preventive control;

2)        on-site preventive control; and

3)        audit (inspection).

The government environmental control procedure is regulated by the Environmental Code and Entrepreneurial Code of the Republic of Kazakhstan No. 375-V of 29 October 2015.

The government ecological control is exercised by the following officers:

1)        Chief State Ecological Inspector of the Republic of Kazakhstan;

2)        Deputy Chief State Ecological Inspector of the Republic of Kazakhstan;

3)        Senior State Ecological Inspectors of the Republic of Kazakhstan;

4)        State Ecological Inspectors of the Republic of Kazakhstan;

5)        Chief State Ecological Inspectors of oblasts, republican status cities and the capital city;

6)        Senior State Ecological Inspectors of oblasts, republican status cities and the capital city; and

7)        State Ecological Inspectors of oblasts, republican status cities and the capital city.

Any subsoil user-related confidential information may not be disclosed to any third party without a prior written consent of such subsoil user.  Confidentiality is determined by Kazakhstan legislative acts and international treaties.  A state ecological inspector may not disclose any information classified as a state, trade or any other legally protected secret or any confidential information obtained in connection with the government ecological control, unless otherwise provided for by Kazakhstan legislative acts.

State Cadastres

The Kazakhstan Unified System of State Cadastres of Natural Resources is created and maintained as an intersectoral information system uniting all kinds of state cadastres of Kazakhstan natural resources in an effort to ensure comprehensive and unified national accounting and evaluation of the Kazakhstan natural and economic resources.   State cadastres of mineral resources represent a corpus of systematized data on quantitative and qualitative parameters of mineral resources organised in the manner prescribed by the Environmental Code and other legislative acts of the Republic of Kazakhstan.  The subjects of the Unified System of Cadastres include land, water, forest, soil, subsoil, vegetation and wildlife in their interaction.

Besides, there is a state cadastre of industrial and consumption waste.  Any waste and waste disposal facilities are subject to registration with the State Cadastre of Waste.

There is also a subsoil user and pollutant source accounting database arranged in the form of a state register of emitting subsoil users and pollutant sources in the Republic of Kazakhstan.

Liability for Environmental Offences

Offenders of Kazakhstan environmental law are subject to serious civil, administrative and criminal liability.

Any damage inflicted upon the environment, public health, private or corporate property, and the government as a result of:

1)        natural resources destruction or injury;

2)        unlawful or irrational use of mineral resources;

3)        unauthorized emissions; or

4)        emissions above the allowable level,

must be compensated to a full extent by the offender, either of his own free will or through judicial proceedings, in compliance with Kazakhstan law and depending on the degree of the victim’s disablement, the cost of his/her treatment and rehabilitation, the cost of medical attendance, and any other costs and losses.

Environmental damages caused by violation of Kazakhstan environmental law must be compensated by the offender, either of his own free will or through judicial proceedings, subject to the economic assessment of damages performed in the manner prescribed by the current Environmental Code.

Any corporation or individual whose activity presents higher environmental risks must compensate any damages caused by the source of increased danger, unless they prove that the damages were caused by force majeure or malicious intent of the affected person.

Moral damages caused by violation of Kazakhstan environmental laws must be compensated in the manner prescribed by Kazakhstan civil law.

Waste disposal and pollution discharge in excess of industry norms in the facilities equipped and designated for disposal of waste and discharge of sewage waters and preventing the contamination of surface, subsurface and underground waters are not deemed as environmental damages.  Ingress of chemicals or sewer overflows in production sites restricted with protective structures preventing their entry into the soil, subsurface or underground waters are also not deemed as environmental damages.

Requirements to the performance of extended manufacturer/importer responsibility

Those citizens and corporations who manufacture in or import to Kazakhstan certain products listed by the Environmental Code are subject to extended responsibility provided for by the Environmental Code, including the responsibility for mitigation of negative effects of such products on human life and/or health and environment.

Those individuals and entities who manufacture in and/or import to Kazakhstan the goods/products falling under the extended manufacturer/importer responsibility must ensure the collection, transportation, preparation for recycling, sorting, treatment, processing, decontamination and/or utilisation of waste generated as a result of the loss of such goods’/products’ consumption characteristics falling under the extended manufacturer/importer responsibility, as well as the packaging thereof, by any of the following methods:

1)        a manufacturer/importer has its own system for collection, transportation, preparation for recycling, processing, decontamination and/or utilisation of waste subject to the regulations determined by the appropriate environmental authority. 

The requirement to have an in-house system for collection, processing and utilisation of waste does not apply to manufacturers and importers of motor vehicles and self-driving farm equipment;

2)        a manufacturer/importer (i) signs a contract with an operator of extended manufacturer/importer responsibility for collection, transportation, preparation for recycling, sorting, treatment, processing, decontamination and/or utilisation of waste generated as a result of the loss of such goods’/products’ consumption characteristics falling under the extended manufacturer/importer responsibility, (ii) files an application in accordance with the guidelines for performance of extended manufacturer/importer responsibilities adopted by the Kazakhstan Government, and (iii) transfers the statutory utilisation fee to the bank account of the operator of extended manufacturer/importer responsibilities.

The extended manufacturer/importer responsibility does not apply to the following manufacturers/importers:

  1. manufacturers of oils, polymer/glass/paper/cardboard packaging and accumulator batteries who use in the process at least thirty percent of waste oils, polymer/glass/paper/cardboard wastes and utilized accumulator batteries, respectively, processed and utilized in Kazakhstan;
  2. manufacturers/importers of goods/products sold outside Kazakhstan;
  3. manufacturers/importers of polymer, glass, paper, cardboard and/or metal packaging, or mixed material packaging intended and/or used for packaging of goods/products sold outside Kazakhstan;
  4. individuals who import to Kazakhstan the goods/products which do not fall under the extended manufacturer/importer responsibility, provided that the volume of such imported goods/products does not exceed quota on duty-free import of goods/products for personal use, save for importers of motor vehicles and self-driving farm equipment;
  5. importers of polymer, glass, paper, cardboard and/or metal packaging, or mixed material packaging used for packaging of staple foods officially listed by the Kazakhstan Government;
  6. manufacturers of PET preforms for packaging who prepay collection, transportation, processing, decontamination, use and/or recycling fees;
  7. importers of polymer, glass, paper, cardboard and/or metal packaging, or mixed material packaging used for packaging of imported/exported goods/products used as PPE, raw and other materials, spare parts or components for the production of goods and performance of works/services needed for general business/operation purposes and not intended for sale; and
  8. importers of polymer, glass, paper, cardboard and/or metal packaging used for packaging of goods imported as foreign gratuitous aid (assistance) in the manner prescribed by Kazakhstan law.