This chapter will describe the steps, legislative, procedural and in terms of Structure Plan policies that lay down the foundations of the environmental impact assessment (EIA) process in Malta. Special emphasis will be given to the extractive industry. The changes envisaged for the future will also be described.

The legislative roots of EIAs in Malta were spelt out for the first time in the Environment Protection Act V of 1991. Part eight of this act was specific to EIAs and included sections about their contents (article 40), conditions for exemption (article 41), information to be submitted (article 42) and notice for objection (article 43). Of particular importance are Articles 40 and 42 which state:

Article 40. The Environmental Impact Assessment shall identify, describe and assess, in every case, the direct and indirect effects on the environment, but especially and separately declared:

1. on human beings, the Fauna and the Flora;
2. on the soil, water, air, climate and landscape;
3. on the economy and the historical heritage;
4. on the social environment.

Article 42. Whosoever shall be responsible for the application for a permit to put into execution a project the environmental impact of which is to be assessed, and every head of a government department executing a project with an environmental impact, shall furnish the Minister with all requested information and especially with:

1. a description of the project, its dimensions, design and proposed site;
2. an explanation of the steps taken or about to be taken to diminish harmful effects;
3. scientific data which serve as basis for the project;
4. a brief explanation of the project which explains the aim thereof. (Environment protection Act V, 1991, p.A91)

This is almost an exact copy of articles 3 and 5(2) from the European Directive 85/337/EEC.

When this legislation came into force, the Planning Authority was still in the conceptual stages. In fact the initial EIAs were prepared by the Planning Services Division, within the Ministry for Development of Infrastructure, with the help of Malta University Services, a subsidiary of the University of Malta and mostly utilizing professional staff at the University (Mallia, pers. comm., 1998). One must also point out that the Planning Services Division was the leading entity within the Government which was coordinating all the work with regards to the Structure Plan.

In March 1991, Dr. Jonathan Wager was commissioned by the Planning Services Division to develop procedures for a system of Environmental Impact Assessments. The final version was presented in March 1993 following a public consultation exercise of the draft report. It included a series of recommendations for the integration of EIA procedures in the development control process within the framework of the Environment Protection Act of 1991 and the Development Planning Act of 1992.

Wager (1993) said that the recommendations presented in his report are in line with European Community Directives. He remarked that the list of projects to be subjected to an EIA were the same as those found in Annex I and II of the European Directive 85/337/EEC. However, when one compares the report prepared by Wager, the Policy and Design Guidance, Environmental Impact Assessment in Malta (1993) prepared by Planning Authority and the European Directives 85/337/EEC and 97/11/EC, one notes that the new projects incorporated in Annexes I and II in the new Directive were already incorporated in the local guidelines prior to becoming effective in the European Union. Amongst the full list of projects found in the local guidelines, one notes that wind farms, installations to harness energy from waves and sun, and fish farms were included. The differences between EU Directives and local guidelines with regards to projects’ lists requiring an EIA are the threshold values. Wager claimed to consider the local situation when making his recommendations.

Wager (1993), in his report suggested that regulations should be brought into effect to formalize all the process, spelling out the various responsibilities of the different participants involved. However, to date, these have not yet come into force, but Mallia (pers. comm., 1998) confirmed that these are ready and will be published in the coming months. In spite of all this the Planning Authority still uses the environment Planning Act, 1991, article 39 and also the Development Planning Act, 1992, S36(2) to ask for an EIA, even if the project is not listed in one of the categories of the EIA guidelines. Section 36 was fine-tuned by means of the Development Planning (Amendment) Act, 1997.

The chronology of events can be summarized as follows:

The Environmental impact Assessment process could start in any one of the three ways shown in figure 2.1. The PA can request an EIA either on grounds of policy or on the basis of the information supplied by the developer and/or that already held at its offices (e.g. GIS system). In both cases, it is envisaged that the development would have a significant impact on the environment.

The type of assessment required would be either an environmental impact statement (EIS), or an environmental planning statement (EPS) or a transport impact statement (TIS). A transport impact statement could be part of an EIS or EPS or a separate assessment.

An EIS should describe the development project, the existing environment, the likely impacts of the development on the existing environment and ways and means how to minimize and compensate these impacts.

An EPS is similar to an EIS but will normally cover fewer topics and so be less comprehensive. Secondly, an EIS requires a public meeting to discuss the findings whereas an EPS does not.

Following site visits, consultation with Government agencies, including the Environment Protection Department (EPD) and available information within the PA, and information submitted by the developer, a decision is taken on whether an EIS or an EPS is required. This could also, in certain cases, be taken by using the "Schedule of projects requiring environmental assessment" given in the appendix of the Policy and Design Guidance - Environmental Impact Assessment in Malta. This schedule is divided into two categories. Developments falling within category I require an EIS, whereas those falling within category II require an EPS.

The Terms of Reference for the assessment are produced by the PA staff in consultation with the EPD and are based on all the information which would have been collated so far.

The report submitted by the developer is circulated within the Environment Management Unit for comments. A substantial input is made by the Minerals and wastes Unit staff, who deal with matters related to the extractive industry. Comments for refusal or conditions for approval are made and handed to the Development Control Unit, DCU, which is the Unit within the PA which deals with applications for development permission.

At some stage during or before starting the assessment process, the developer would have submitted his application for the development, but since there is a stipulated time period during which a decision should be taken, this is suspended whenever there is some information pending from the developer. This also includes cases when an EIS or EPS is undertaken.

A decision is taken in public by the PA Board, during which a presentation of the development is also held.

In case of a refusal, the developer has a right for a reconsideration or an appeal to the Planning Board of Appeals which is a quasi-judicial body independent of the PA. The decisions of the Board are final, except on points of law which may be challenged in the Court of Appeal.

In case of an approval, conditions are attached and a legally binding agreement to cover deposit of a bond is entered into. This will ensure that mitigating measures and monitoring programmes and also rehabilitation work is carried out according to plans.

The developer is responsible for monitoring works. However, in the case of quarries, the EMU staff monitor certain works, such as vibrations resulting from rock blasting. stipulated permit conditions are continuously monitored. Infringements could lead to withdrawal of permit.

There is no provision for a post development audit to take place.

Scoping is the determining step, after screening, in the EIA process. Its importance lies in the fact that, the significant impacts generated by the development will be highlighted at this stage (Wood, 1996). Scoping is a multi-functional activity designed to identify key concerns at a stage when alternatives are still being considered and mitigation measures can be incorporated into project designs. Scoping provides the opportunity to highlight the benefits of projects and in some cases, opportunities for environmental enhancements can also be identified (Environment Agency, 1996).

The importance given to scoping has been denoted by environmental agencies in countries such as England and New Zealand, both of which, have issued handbooks on the subject aimed at developers, planning staff and consultants. In both cases emphasis is made to benefits of the scoping process and the importance of public consultation. The New Zealand handbook is even more comprehensive giving details of the various forms of public consultation, the importance of negotiation, conflict resolution and public review processes (Environmental Agency, 1996 and Ministry for the Environment, 1992). The European Commission has also issued a guidance book on scoping, as part of an EIA good practice series (European Commission, 1996).

Public consultation at the scoping stage helps, apart from identifying the public concerns, to increase the acceptability and credibility of the EIA and the decision-making process. It reduces the risk of opposition emerging at a later stage, causing delays and costs (European Commission, 1996).

The Environment Management Unit, EMU, within the Planning Authority are the people responsible for scoping the projects which require an EIA. In the early years this was done by different people within the Unit, depending on the nature of the project. However, lately a person has been appointed to coordinate all the work with regard to EIAs. This ensures more uniformity in issuing Terms of reference and a standard approach to handling the significant issues (Mallia, per. comm., 1998).

In the case of the extractive industry, a standard TOR was initially set, a copy of which is found in appendix I. Applications received after 1996 had a new TOR, which are more comprehensive and better formulated than the previous ones. The PA could still ask for more information, depending on the situation in which the development fits (Mallia, per. comm., 1998). The TORs produced by the Pa are also approved by the EPD prior to being presented to the developer.

The old TOR were divided into five sections namely:

1. location of site and description of intended development;
2. the current and projected need for the resource;
3. technical justification of resources;
4. major impacts of the quarry and mitigating measures;
5. quarry restoration.

Of notable importance in these TOR is the absence for the requirement of a non-technical summary and also that of alternatives, both for sites and technologies. These issues were included in the new TOR, but the restoration section was omitted.

The effectiveness of the TOR is debatable. Mallia (per. comm., 1998) claimed that the quality of the reports produced initially was poor, but was slowly improving. The PA staff are trying hard to convince consultants to supply the required information as requested by the TOR, to the extent that in some cases, several draft reports are prepared and reviewed, prior to submitting the final one. This is withering the whole EIA process and consuming a lot of time and resources for the PA. The situation could possibly be attributed to the years of laissez-faire in planning.

One must point out that the standard use of these TOR could be slightly confusing. This is due to the fact that in the case of the extractive industry reports which will be referred to later on, there was no distinction between the use of the TOR for an EPS or an EIS.

It seems that the PA is trying to get the most out of the present situation in the quarry industry and thus attempting to raise standards and working conditions It is using the EIA process as leverage to gain mileage to upgrade and shape up the industry using the various regulations and legislation at its disposal.

Public participation is absent at the scoping stage of the process. However, one must point out that once a developer submits an application for a development, this is advertised in the press and a site notice is affixed on location. People may view the application form and site plans on the development and have fifteen days to submit written representations on these applications. They can also appoint architects or civil-engineers to view the detailed plans on presentation of a written request (art 32(5), Development Planning (Amendment) Act, 1997). The legislation only states that the Authority shall consider and decide on the objections.

The planning Authority has prepared new regulations which will be issued in the coming months, to improve the EIA process. Mallia (per. comm., 1998) said that the regulations will spell out the responsibilities for everyone involved in the EIA process. These regulations will be issued under the Development Planning Act of 1992. Amongst the areas which will be tackled are the following:

1. public participation in the process. The public will have access to the TOR of developments which would require an EIS. These could be changed according to public response.
2. EIAs would be deposited at the Local Councils for public consultation.
3. there will be a register of consultants who would be able to form part of the EIA multidisciplinary team.
4. Projects list and thresholds in the present EIA guidelines will be revised.
5. A project description statement to be handed in prior to consultation will be mandatory.
6. EIA procedures will be reviewed.
7. There will be more accessibility to the process through the Internet.

The minerals resource assessment commissioned from Wardell Armstrong et al., (1996, vol. I ), has quantified the potential amounts of extractable material in the surveyed areas. The assessment did not consider restrictions, such as the fact that some of the areas under investigation are known to be environmentally sensitive. There is however no indication that the reserves could run out in the Structure Plan period, which is 20 years. This does not relieve the present administrative structure of the Planning Authority from its responsibilities to safeguard the resource for use by future generations. This could be achieved through the Minerals Subject Plan, terms of reference of which are currently being prepared (Planning Authority, 1997). The Plan will forecast land release requirements for mineral extraction, providing a 20 year reserve bank and rationalize supply as stipulated by Minerals policies in the Structure plan. Measures to promote more efficient use of quarried material and strategies to encourage recycling would also be incorporated.

This chapter reviewed the legislative basis of the EIA system in Malta. It explained the whole process which any developer has to follow if his project is subject to an EIA. A flowchart of the process was produced. The responsibilities of the different participants in the process and the rights of the developer were also discussed. The general importance of the scoping process vis-à-vis environmental impact assessments was briefly highlighted. The approach utilised for the local extractive industry was mentioned. The areas which are addressed in the terms of references used in the industry were briefly addressed. The future changes which are envisaged to ameliorate the whole process were then presented in view of the local legislation and the Structure Plan policies.