Module 6:
Public Participation in Business Decisionmaking

Purpose

Objectives

• options for obtaining information from business;
• permitting processes of industrial activities;
• other rights and obligations of business.

Contents: Public Participation in Business Decisionmaking

Introduction

6.1 Obtaining Information from Industry The issue of obtaining information from industry in Bulgaria is relatively new and has been regulated for the first time only since 1991 with the adoption of the new Constitution. New text was adopted within the Constitution which proclaims the right of each citizen to obtain information form state authorities and from private persons, with the exception of those instances in which state secrets and rights of other persons are not concerned. At this point there is little clarity among state authorities regarding the meaning of the expression "rights of other persons." However, two legal texts referring to Article 41 of the Constitution provide some guidance on the matter. First, Article 52 of the Commercial Code stipulates the obligation for employees to keep "the trade secret of persons who have mandated them with a task." Second, Article 14 of the Law against unfair competition gives a broad definition of the term "producer's and trade secret." Article 14 states that unfair competition is also the "learning, using and publishing the producer's or trade secret of another person." These are important texts for NGOs and the public, since businesses may refuse to provide information about their activities based on these stipulations. 6.1.1 Provisions for Access to Information Up to now, the rights for access to information are hindered to a certain extent due to the fact that there is currently no special procedure for obtaining information about business activity. However, it is good for interested parties to know the different provisions regulating these rights of information. Articles 8-14 of the EPL are the main provisions for the right of information. The provisions of Articles 14, 13 and 13a of the EPL are of particular importance to business; Article 14 states that the producers and the sellers of goods and services are obliged to give information to consumers about the possible negative effects of their goods and services. The information must be given in written form and when the effects are not important the information can be given verbally. There are not yet reported cases when the right of the citizen of information was used against a producer or seller. Articles 13 and 13a require that business give information in cases of possible or already existing pollution or damages to the environment. These texts may be used by the authorities and by business, but there are no reported cases for sanctioning businesses for not giving information under Articles 13 and 13a. According to Article 32 of the EPL, in all cases of violations of the regulations of the EPL, including those in Articles 13, 13a and 14, a violator can be fined up to 300,000 leva. This is the primary sanction for not complying with requirements for providing information. In addition, a violator can be sued for damages if the failure to provide information has led to damages for other persons. But in this case the damages and a causal link must be proven and established. As the primary conditions for asking and providing information, Articles 8-14 of the EPL are a useful for interested parties in two ways. The business can act both as the party requesting as well as the party submitting information. As a member of the "public," the role of business is therefore both as "seller" and "consumer" of information. 6.1.2 Obtaining Information on Hazardous Waste Also of particular importance to accessing information from businesses is the stipulation for the right to information addressed in the regulation on the hazardous waste -- Regulation No. 153/6.VIII.1993 of the Council of Ministers. Regulation No. 153/6.VIII.1993 establishes the procedures for state control over hazardous waste. The two main ideas developed in the regulation are: permitting the importation, dealing and treatment of dangerous waste, and the declaration of dangerous waste on the territory of Bulgaria. Interested parties -- both businesses and NGOs -- should know that a lot can be learned about business activity through the utilization of Regulation No. 153. It is possible, for example, that the tool for asking information about hazardous waste could be used by business for developing a strategy against a competitor. In the matter of environmental information concerning the hazardous waste, however, the interests of business and the public are often in opposition. However, communities and business need to learn to work together since, in the long run, such cooperation will be mutually beneficial for both parties -- for the viability of business activity and the environmental safety of a community. Article 10 of Regulation No. 153/6.VIII.1993 provides that the dangerous waste "producer" must declare the quantity and the type of the dangerous waste he "expects" to be produced over the next year. Copies of this declaration are given in the RIE and in the Local Administration. Article 11 provides for submission of data for the previous year. For declaring false data, parties can be sued under the Penal Code, Article 35 of Regulation No. 153. Business is therefore under obligation to provide data, but are encouraged to do so using both methods of sanctioning and encouragement. 6.1.3 Accessing Information Through EcoFunds Authorities in Bulgaria do not only sanction businesses and collect money from them, but also provide money for helping environmentally safe projects. The main regulation for this matter is Regulation No. 168/17.VIII.1995 for the Ecofunds. One of the main difficulties with Ecofunds is the lack of information about the contracts concluded between the Ecofunds and the business. "Contracted" parties can therefore use Article 8 of the EPL to request additional information. On the other hand, the "contracted" parties are under obligation to provide information regarding the way they spend the funds, and about the results of their project (per paragraph 5 from the additional dispositions). In this case, the "contracted" party can not object to giving information on the basis of "trade secret." Therefore, interested parties, both businesses and citizens, may request to have information about the way the public resources are spent and about the results of the sponsored project. 6.1.4 Access of Local Councellors to Information It is worth repeating here, as discussed earlier in the module on participation in local governmental decisionmaking, that according to Article 36, Line 2 of the LGLAL, Local Councellors have the right to ask and to have information from the authorities and from private businesses when this information is necessary for the Councellor's work. Interested parties should therefore try to access information through Local Councellors.

6.2 Permitting Industrial Activities The procedure for issuing the EIA Act has already been discussed in great detail, but there are also other permits that business must obtain to be able to act in accordance with the law. The most important permits related to the environment are identified in Box 6.1. 6.2.1 Permits for Water Use Permits for water use are issued in two ways: If the water is taken from the water supply within a city or a village, the permit is issued by the "Water and Canalization" Enterprise (WCE) and is regulated by Regulation No. 9/14.IX.1994. If the water is taken from any other source, then the permit is issued under the Water Use Law - Article 8-10 - and the authority is different according to the different type of water. 6.2.2 Permits for Water Discharge There are also two methods for providing permits for water discharge: If the polluted water is discharged in the canalization, the authority is the WCE. If the water is discharged in any other water (i.e. river, lake or the sea), the permit is issued by the MoE according to Article 12 of the Law for the Protection of the Air, of the Water and of the Soil from Pollution (LPAWSP). 6.2.3 Permits for Construction on Agricultural Land The permit for construction on agricultural land is needed when the character of the agricultural land does not change, but when the investor intends to build or construct on the land. The permit is issued under Regulation No. 2 for Constructions in Agricultural Land (State Journal No. 47/1993). 6.2.4 Permits for Changing the Character of Agricultural Land The permit to change the character of agricultural land is always required when the character of the agricultural land is altered, i.e. when an investor builds a construction on the land that is not directly linked with agriculture. The permit is issued by the Land Commission by the Council of Ministers and the matter is regulated by the Law for the Protection of the Arable Land and the Pastures (LPALP). There is also a Regulation for the application of LPALP. 6.2.5 Permits for Treating Hazardous Waste The permits for treating dangerous waste are issued under Article 8 of Regulation No. 153/6.VIII.1993. If the activity is smaller and within the territory of a single RIE, the permit is issued by the RIE. For greater activities, the permit is issued by the MoE. 6.2.6 Permits for Importing, Producing and Treating Hazardous Materials The permits for importing, producing, and treating hazardous materials are issued by the Ministry of Health and the Inspectorates of the MoH. The matter is regulated by the Law on Public Health (LPH) and the regulations for the application of the LPH. There are also some regulations issued for specifying the dispositions of the LPH. The most important of the permits of this kind is Regulation No 27/17.VIII.1995, the permit for the importation of goods, which is of significant importance for human health. The regulation contains a list of goods of significant importance for the human health. 6.3 Other Rights and Obligations of Business Bulgarian legislation imposes some additional obligations on businesses that are also of importance here. 6.3.1 Taxes One such obligation on business is the tax that businesses must pay for consumption of natural resources and pollution greater than that permissible under the permit or by law. This tax is referred to in Articles 3 and 3a of the EPL as a "sanction." Rules for paying these sanctions are given in Regulation No. 24/4.II.1993. The principle of Regulation No. 24 is that if the authority measures the quantity of pollutants of a given industrial activity, and if the quantity is greater than an established median, the owner of the facility must pay the "excess of pollution." There are formulas according to which the abnormal pollution is measured, and any unit of pollutants has a prescribed "price." This regulation is also more commonly referred to as the "polluters pay"principle. There are some problems with the "polluters pay" approach. First, due to the fact that the administration in Bulgaria is not as strong as the administration in more developed countries, there are not enough guarantees that the administration will apply the rule to all parties. Second, the administration in Bulgaria is not supplied with sophisticated enough tools for measuring the abnormal pollution. This is a second source of error in the appreciation of pollution. Third, sanctions are imposed in a given moment, but if an industry does not pay the sanction, there is no procedure for collecting accumulated interest on the sum. Legislators have argued that it is not possible to have "interest" on a sanction. There is a great deal of work for NGOs and businesses to correct these inconsistencies. There is not yet a separate law for "paying taxes for the consumed resources." For some resources the tax is defined in an already existing law (i.e. the tax for the extraction of sand, the tax for the use of water). 6.3.2 Regulations on Construction in Residential Areas Another obligation for the business is to construct facilities at a minimum distance from residential areas. These rules are given in Regulation No. 7/1992 of the Ministry of Construction. There is a long list for the different distances according to the different type of facility. 6.3.3 Obligations of Reporting Under Ecofunds Although discussed to some degree above, it is also worth mentioning again the obligations prescribed in Regulation No. 168/17.VIII.1995 for businesses that have received money from the Ecofunds to report data about the results of the supported activity and how the resources were spent.

Box 6.1 Additional Permits Required for Business Activity - the permits for water use; - the permits for water discharge; - the permit for construction on agricultural land; - the permit to change the usage of agricultural land; - the permits for treating hazardous waste; - the permits for importing, producing, treating hazardous materials.