It has long been a policy of the Abu Dhabi and UAE governments
to protect the environment and several significant laws and
regulations have been passed with that objective in mind. These
need close scrutiny by any investor contemplating a project in Abu
Dhabi, particularly in the industrial sector.
An investor seeking to establish a business with potential impact
on the environment will, when consulting with the Economic
Department about licensing requirements, be informed of any
required approval from the Environment Agency of Abu Dhabi or any
other relevant competent authority. The Economic Department
maintains a list of activities requiring such approvals and will
not issue a commercial license until all relevant approvals have
been obtained. In order to gain the Environment Agency's (or
other competent authority's) approval it may be necessary to
submit an environmental report detailing potential environmental
effects of the business and the methods proposed to be used to
mitigate or eliminate them. Investors seeking to establish an
industrial facility in a zone administered by the Higher
Corporation for Specialised Economic Zones ("ZonesCorp")
may find that under ZonesCorp's "One Stop Shop"
program ZonesCorp will assist by obtaining any necessary
environmental approval for them.
A number of environmental laws at the federal and emiri level are
of broad relevance and are discussed below. There are
others1 that are of more specialist concern and cannot
be examined in an article of this length.
Federal Laws
At the federal level there is an environmental statute of
general application, Law No. 24 of 1999 regarding Protection and
Development of the Environment. This law covers every aspect of
environmental protection including land, water and air. It requires
all governmental bodies concerned with planning, construction and
economic development to consider environmental protection, the
prevention of pollution and the rational use of natural resources
in carrying out their functions.
This law empowers the federal Ministry of Environment and Water, in
consultation with others, to require an environmental impact
assessment for certain categories of projects2 .The
categories of projects for which an environmental impact assessment
is required are set out in the executive regulations³ to the
law. The owner of a project, once licensed by the relevant
competent authority4; may be required to undertake
regular analyses of waste and to monitor any discharges of
pollutants. The law also provides for the establishment of
emergency plans for combating environmental disasters. It imposes a
general ban on discarding untreated waste or other substances
polluting the water environment and prohibits any activity damaging
or polluting the soil. Certain airborne pollutants are subjected to
limits5. There is also a requirement that any person
producing or dealing with hazardous substances must have a license
from the Environment Agency of Abu Dhabi and that such persons must
take all necessary precautions to ensure there is no damage to the
environment from their activities. The executive
regulations6 provide a detailed system of licensing and
other requirements for the storage and transportation of hazardous
waste.
The Environment Agency of Abu Dhabi is the designated competent
authority under the law for the Emirate of Abu Dhabi. It has
produced a range of "Standard Operating Procedures" which
set out its approach to permitting for commercial, industrial,
light industrial, chemical, hazardous materials and infrastructure
projects.
Importantly, the law provides that any person who intentionally or
negligently causes damage to the environment resulting from a
breach of the law or its implementing legislation shall be
responsible for the remediation of the damage caused and any
additional compensation to be incurred as a result of the breach.
Compensation in that regard is payable not only for the damage to
the environment that has prevented its lawful uses but also for the
costs of environmental remediation together with damages for the
diminution of any aesthetic values that have been adversely
affected.
In addition to creating liability to pay compensation, the law creates a range of offences with penalties including fines ranging from AED 500 to AED 10,000,000, imprisonment and, in the case of serious and intentional dumping of radioactive waste, the death penalty.
Laws of the Emirate of Abu Dhabi
Any investor establishing a business that generates waste
will need to be aware of the provisions of Abu Dhabi Law No. 21 of
2005. Among other things, this law obliges "waste
generators" to reduce waste by techniques approved by the
Environment Agency, to comply with regulations and guidelines
issued by the Environment Agency and to comply with certain
procedures if contracting with a private sector entity for the
transport, storage, treatment or disposal of waste. Any business in
the field of waste transportation, storage, treatment and disposal
must also be licensed by the Environment Agency under this
law.
Abu Dhabi has recently enacted an innovative law, Decree No. 42 of
2009, to implement a comprehensive environment, health and safety
management system ("EHSMS"). The law implements an EHSMS
framework, which is intended to be a performance based management
system aiming to achieve excellence in the management and
protection of health, safety and the environment through
partnership between the government and private sectors to ensure
that economic activities in the Emirate of Abu Dhabi are undertaken
in a responsible, safe and sustainable manner.
The EHSMS is not meant to replace existing laws relating to the
environment and health and safety, but aims to:
- Serve as a management tool to achieve increased compliance with relevant laws and regulations;
- Ensure that the Emirate's environment, health and safety objectives are met;
- Align with existing environment, health and safety laws and regulations;
- Drive continuous improvement in the management of environment, health and safety issues to achieve best outcomes having regard to the social and economic development of the Emirate of Abu Dhabi; and
- Identify elements required to ensure environment, health and safety issues are addressed in a systematic manner.
The benefits from development of the EHSMS are anticipated to be:
- Improved management of environmental and social impacts in the Emirate;
- Improved worker communication and community health and safety;
- Improved natural resource conservation and utilisation;
- Improved progress towards sustainable development;
- The development of an Emirate environmental health and safety performance database and baseline data;
- Reduced corporate risks and liabilities;
- Improved business efficiency; and
- Improved efficiency in waste management.
The EHSMS is to be implemented in phases. Initially, certain
economic sectors will be required to implement the EHSMS. Each of
these sectors is required to develop and implement its own sector
EHSMS, which is to be approved by the Environment Agency, and each
sector has its own sector regulatory authority.
The sectors currently affected and their sector regulatory
authorities are:
- Energy (ADWEA);
- Transport (Department of Transport);
- Tourism (Abu Dhabi Tourism Authority);
- Construction (Department of Municipal Affairs);
- Industry (ZonesCorp);
- Health (Health Authority of Abu Dhabi); and
- Waste (Abu Dhabi Waste Management Centre).
Within each of these identified sectors, certain entities are to
be nominated and are to develop their own entity EHSMS, which is
then to be approved by the relevant sector regulatory authority.
Each entity must then actively audit their own compliance with
their EHSMS and must undergo annual third party compliance auditing
as well. Environment, health and safety compliance is to be
reported to the relevant sector regulatory authority. Entities must
report environment, health and safety incidents and "near
misses" as well. Each sector regulatory authority must monitor
the performance of the entities in its sector and must prepare
sector level reports for submission to the Environment Agency. It
is the intention of the Abu Dhabi authorities to include additional
sectors and entities in the future.
If a new project or a major modification to an existing project
within an affected sector may have a significant effect on the
environment or the health and safety of workers or the public, then
there is a requirement for an integrated environment, health and
safety impact assessment, replacing the existing requirement for an
environmental impact assessment only.
There are detailed framework codes of practice to be followed
relating to the administration of the EHSMS, risk management,
emergency management, auditing, monitoring and reporting,
occupational health and safety and the quality of air, land and
water and other environmental values. EHSMSs developed for
particular sectors and entities must comply with the framework, but
will address the particular hazards and risks associated with the
particular sector or entity. Sector and entity EHSMSs must include
performance goals and progress towards these must be monitored and
reported upon.
The Environment Agency sits above the sector regulatory authorities
in the hierarchy of administration of the EHSMS. The Environment
Agency:
- Reviews and approves the EHSMSs of the participating sectors;
- Monitors the implementation of the EHSMS framework by those sectors and the entities within them;
- Updates the EHSMS regulatory framework if necessary;
- Periodically submits reports on the functioning of the EHSMS at the Emirate level;
- Promotes the implementation of the EHSMS; and
- Develops an incentive system to provide assistance and support to entities that will develop an EHSMS in accordance with the Abu Dhabi framework EHSMS.
At the apex of the system implemented by the EHSMS law there is
a Higher Committee charged with responsibility for establishing the
Abu Dhabi EHSMS framework, including its various codes of practice,
technical guidelines and the registration requirements for the
auditors engaged to audit compliance with the EHSMS. The Higher
Committee also approves the reports on the performance of the EHSMS
at the Emirate level prepared by the Abu Dhabi Environment Agency
before they are submitted to the Abu Dhabi Executive Council.
Any investor establishing or acquiring a business affected by this
legislation will need to ensure his/her organisation has or can
acquire the management capabilities to embed the requirements of
the EHSMS framework into the business's environment, health and
safety management systems.
Conclusion
There is an extensive environmental law regime that
applies in Abu Dhabi. Business people in Abu Dhabi will come across
environmental regulations at all stages of the life of their
business, from initial applications and permitting and also when
engaging in their business's ongoing operations. Compliance
with environmental laws is therefore an essential part of any
company's corporate policies and procedures.
Footnotes
1 E.g. Certain regulations of the Federal Authority for
Nuclear Regulation, laws and regulations relating to aviation or
marine transportation.
2 Any environmental report produced for the Environment Agency of
Abu Dhabi should comply with the various "Technical Guidance
Documents" produced by the Environment Agency of Abu
Dhabi.
3 Cabinet Resolution No. 37 of 2001.
4 In the Emirate of Abu Dhabi this will be the Environment Agency
of Abu Dhabi.
5 These are specified in detail in Cabinet Decision 12 of 2006
concerning Protection of Air from Pollution.
6 Cabinet Resolution No. 37 of 2001.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.