Developing a biogas plant: From siting to operation from an environmental point of view
In the second article in our series on biogas plants, we discussed the requirements for classification of biogas plants during the development process. This time we will take a look at the obligations that must be performed before such an installation can start operating.
Environmental aspects of the permit required at the project location stage
In the course of obtaining a permit for siting of a project in Poland, it is necessary to reckon with the environmental impact assessment of the facility planned for a particular site. In the case of a local zoning plan, this is always done by conducting a strategic environmental assessment procedure (with an impact forecast).
In the case of individual siting decisions, it may be necessary to obtain a decision on environmental conditions (for projects by their nature likely to have a significant impact on the environment), potentially issued in conjunction with an environmental impact assessment procedure (mandatory for ventures presumed to always have a significant impact on the environment, or optionally via an administrative decision for ventures potentially having a significant impact on the environment).
There may also be an obligation to conduct an assessment for possible impacts on Natura 2000 areas for projects that are not deemed likely to significantly affect the environment but are “ventures” within the meaning of the Environmental Impact Assessment Act. This also applies to projects determined through the prescribed procedure to potentially adversely affect Natura 2000 areas (Part V, Chapter 5 of the EIA Act).
With regard to siting of a biogas plant based on a siting decision, some doubts may still surround the question of whether this decision is subject to environmental assessment analogous to a decision on construction conditions.
The EIA Act does not expressly address this subject, as the regulations refer exclusively to decisions on construction conditions. But it should be recognised that a decision on environmental conditions is necessary, and the relevant requirement from the EIA Act concerns both types of location decisions.
A similar position was expressed by the Supreme Administrative Court of Poland in the judgment of 15 March 2017 (case no. II OSK 2697/15): “Art. 96(2)(1) of the EIA Act of 2008 refers to decisions provided for in Art. 72(1) of the act. Meanwhile, among the decisions listed in Art. 72(1) of the act is a decision on construction conditions (pt 3), but there is no decision on the location of a public-purpose project. However, given the similar nature of the decision on construction conditions and the decision on location of a public-purpose project, and considering that the list of decisions in Art. 96(2) of the act is open-ended, this provision also covers a decision on location of a public-purpose project. In other words, although a decision on location of a public-purpose project is not mentioned in Art. 72(1) in conjunction with Art. 96(2) of the act, it should undoubtedly be regarded as a decision required prior to starting implementation of the venture, and therefore as a decision referred to in Art. 96(1) of the act.”
Environmental aspects of the permit required at the project siting stage
Naturally, a basic stage of any development process is the activities directly involving construction of the intended facility. Such activities can be undertaken after obtaining the required building permit. The Construction Law expressly states that the ventures requiring an environmental impact assessment to be conducted, and ventures requiring an assessment of the impact on a Natura 2000 area (pursuant to Art. 59 of the EIA Act), are executed pursuant to a building permit (Art. 29 of the Construction Law).
In turn, a decision issuing a building permit or a permit for demolition of a structure may be issued after first conducting an assessment of the venture’s environmental impact or its impact on a Natura 2000 area, if required by the EIA Act (Art. 32 of the Construction Law).
Under the EIA Act, a decision granting a building permit, a decision approving a design for development of land or an architectural and construction design, and a decision granting a permit to resume construction works under the Construction Law, are all regarded as types of implementation decisions. In practice, this means that if they relate to ventures likely to have a significant impact on the environment, they must be preceded by a decision on environmental conditions (Art. 72 of the EIA Act).
It should be noted that under Art. 86 of the EIA Act, a decision on environmental conditions is binding on the authorities issuing implementation decisions, which include both building permits and prior location approvals in the form of administrative decisions. Therefore, Art. 72(5)–(5a) of the EIA Act state the “unitary principle” for environmental decisions. Under this principle, only one environmental decision is issued for a given venture during the validity period of the decision.
A single environmental decision is also required in situations where more than one implementation decision is required for a venture. And only one environmental decision is obtained when the applicant obtains separate decisions for different stages of implementation of a project.
Formally, the decision on environmental conditions is a required attachment to the application for an implementation decision, and the application itself should be submitted no later than 6 years after the decision on environmental conditions became final (which can be extended to 10 years in certain situations specified in the act).
Art. 35 of the Construction Law requires that before issuing a decision granting a building permit or a separate decision approving the design for development of land or an architectural and construction design, the administrative authority must verify that the design for development of the land or the architectural and construction design complies with:
- The local zoning plan and other acts of local law, or the decision on conditions for development and land use (in the absence of a local zoning plan), and
- Environmental protection requirements, in particular as specified in the decision on environmental conditions.
It should be noted that in the procedure for issuing a building permit, it may be necessary to reassess the project’s impact on the environment (Part V, Chapter 4 of the EIA Act). The purpose of a reassessment is to supplement the information gathered in the initial assessment associated with issuance of the environmental decision. Primarily, a reassessment will be conducted when the need for reassessment is established in the environmental decision (Art. 82(1)(4)), or, if relevant, any of the situations indicated in Art. 88 of the act.
Environmental requirements for the operation phase of a biogas plant
In the context of operating a biogas plant, it must be stated that such a project will have the status of an “installation.” The concept of “installation” is fundamental to the emissions regulations (protecting the environment against pollution), as defined in Art. 3(6) of the Environmental Protection Law.
Pursuant to this definition, an “installation” is a stationary technical device or a set of stationary technical devices technologically linked, to which legal title is held by the same entity and located on a single site, also including structures that are not technical devices or a set of technical devices but the operation of which may cause emissions. We write more extensively on the classification of biogas plants as installations in the article “The development process for a biogas plant.”
If the planned project is an “installation” (and biogas plants undoubtedly are), it will be necessary to:
- Comply with the general rules for the operation of installations, which are directly binding under the Environmental Protection Law, and
- If required by law, obtain a relevant emissions permit.
Among the obligations of the installation’s operator, we should stress the importance of the provisions in Art. 76 of the Environmental Protection Law. Art. 76(1) provides that a newly constructed or reconstructed building, set of facilities, or installation may not be put into operation if it does not meet environmental protection requirements.
The main requirements of this type are indicated in Art. 76(2), including:
- Implementation of technical measures to protect the environment, as required by law or an administrative decision
- Application of appropriate technological solutions as provided by law or in an administrative decision
- Obtaining the required decisions defining the scope and conditions for exploitation of the environment.
Alternatively, the permits for emission of gases or particulate matter into the air, and a waste generation permit, may be required for biogas plants. In cases indicated in the regulations, a permit to emit gases or particulate matter into the air is replaced by notification of the installation (Art. 154 of the Environmental Protection Law and the Regulation of the Minister of Environment of 2 July 2010).
An integrated permit may be required for biogas plants meeting the criteria provided for in the Regulation of the Minister of Environment of 27 August 2014. In that situation, the integrated permit combines the requirements under other special provisions, including the industry emission permits described above.
Also important for the operation phase is that biogas plants can base their activity to some extent on waste processing, and they can also produce waste while functioning. Thus the operator should take into account the need to obtain a waste generation permit and a waste processing permit.
Under Polish law, a waste generation permit takes the form of an industry emission permit, issued under the Environmental Protection Law, while a waste processing permit is issued under the Waste Law.
In the case of an installation requiring both types of permits, a waste generation permit also includes in its wording a waste processing permit and a determination of the conditions for carrying out processing (combined decision, Waste Law Art. 45(5)). A combined decision may also take the form of an integrated permit, if the installation in question requires such a permit.
Concluding remarks
A number of requirements must be met to move from the conceptual phase to the operational phase of a biogas plant, including obtaining numerous administrative decisions. Each of these in turn poses a number of environmental requirements.
It may be time-consuming to obtain all these administrative decisions, but it is essential. The same is true for the numerous environmental requirements. Otherwise, the operator of the installation will face legal liability, backed by administrative and criminal sanctions. In some cases, civil liability may also come into play.
Prof. Marek Górski, attorney-at-law, Dr Adrianna Ogonowska, attorney-at-law, Karol Maćkowiak, Environment practice, Wardyński & Partners
