The Ministry of Environment (the “MOE”) recently expressed its commitment to accelerate regulatory innovation by improving the environmental impact assessment system through active administration. “Active administration” refers to public officials’ proactive handling of matters based on creativity and expertise for the public interest, such as improving unreasonable regulations. Pursuant to (i) Article 4 of the General Act on Public Administration and (ii) the Regulations on Active Administration Operation, each central administrative agency, including the MOE, has an Active Administration Committee for handling such matters.

The MOE also announced that it has been seeking measures to rationalize the scope and procedures of environmental impact assessment, as this assessment system, along with the chemical substance regulations, have been considered the MOE’s “killer regulations” (i.e., regulations that may discourage corporate investment). The MOE plans to implement structural reforms to the framework as well as to continuously improve the system through active administration.

Against this backdrop, the MOE’s Active Administration Committee deliberated and resolved on the following three agendas on August 7, 2023:
 

• Current system: For related developments (i.e., development method of obtaining individual permits by dividing adjacent sites within a certain area), small-scale environmental impact assessment applies if (i) the combined size of the already approved area and additionally approved area is not less than the minimum requirement for small-scale environmental impact assessment, and (ii) the size of the additionally approved area is at least 30% of the minimum requirement for small-scale environmental impact assessment. That said, whether to conduct small-scale environmental impact assessment for additionally approved project areas is determined based on the size of the initially approved project area for related developments.

• Proposed amendment: In case of multiple approvals for related developments, whether to conduct small-scale environmental impact assessment for the additionally approved area is determined based on the size of the project area immediately before exceeding that of the minimum requirement for small-scale environmental impact assessment¹. 
   

• Current system: Whether to collect opinions and negotiate/renegotiate on changes is determined based on the size of increase outside the minimum range of the affected area (i.e., smallest range of area affected by each assessment item) only in cases of road and railway construction projects that are conducted as government-financed projects.

• Proposed amendment: The same shall apply to road and railway construction projects under the Act on Public-Private Partnerships in Infrastructure to promote equality in operating the system².
   

• Current system: For public projects, endangered wildlife may not be captured or collected in a timely manner, as the permits to capture and collect endangered wildlife are issued after the permits for development activities, thereby causing delays in development projects and economic losses to project owners and local residents.

• Proposed amendment: In case of public projects for which the consultation of environmental impact assessment is completed, the habitats of endangered wildlife can be relocated by consulting with relevant experts even before the permit for development activities is issued.
   

Thereafter, the MOE’s Active Administration Committee also deliberated and resolved on the following three agendas on September 22, 2023:
 

• Current system: K-Water cannot conduct overseas sewage projects (conducted by the Korea Environment Corporation).

• Proposed amendment: The MOE preemptively applied the regulations to also allow K-Water to conduct overseas sewage projects in order to promote overseas water projects.
   

• Current system: Although a separate recycling facility is not required for disassembling and re-manufacturing or re-using EV waste batteries, EV waste battery recycling businesses must install at least one recycling facility and obtain a recycling business license pursuant to the Wastes Control Act.

• Proposed amendment: EV waste battery recycling businesses may obtain a recycling business license without recycling facilities if they disassemble and reassemble EV waste batteries for the purpose of re-manufacturing or re-using.
   

• Current system: Businesses that do not subscribe to environmental liability insurance are subject to administrative disposition as well as imprisonment of up to one year or a fine of up to KRW 10 million.

• Proposed amendment: Regulations have been relaxed to impose administrative sanctions (i.e., suspension of business) on businesses without environmental liability insurance for the first violation, and imprisonment of up to one year or a fine of up to KRW 10 million for subsequent violations.
   

Business operators may consider utilizing the active administration system when difficulties arise during project implementations through environmental impact assessment or when legal issues arise due to a gap between law and actual practice in other environmental areas. In particular, when public officials interpret laws and regulations passively due to the absence or lack of clarity regarding the relevant laws and regulations, business operators may utilize the MOE’s active administration system to resolve (i) an unreasonable situation that contradicts the purpose of the environmental impact assessment system (Agenda 1), (ii) inequalities among business operators (Agenda 2) or (iii) excessive time, costs or losses incurred during project implementations (Agenda 3).

The Environmental Impact Assessment Act is a system that requires the pre-regulation of various projects by nature and faces a gap between law and actual practice. This may lead to unexpected legal challenges for business operators pursuing development projects. To this end, it may be advisable for relevant companies to consider the proactive administrative procedure to resolve such issues.

Further, as seen from the MOE materializing the relaxed license standards for recycling EV waste batteries and relaxing the application of sanctions for failing to subscribe to environmental liability insurance, businesses may consider proposing to improve or relax regulations through the active administration system.

1   The proposed amendment is also reflected in the proposed partial amendment to the Enforcement Decree of the Environmental Impact Assessment Act (announced on August 25, 2023).
2   The proposed amendment is also reflected in the proposed partial amendment to the Enforcement Decree of the Environmental Impact Assessment Act (announced on August 25, 2023).

[Korean Version]