Agricultural biogas in Poland: What you need to know in 2024
The energy transition requires decisive actions in many sectors of the economy. This demands a legal framework enabling a shift away from fossil fuels and towards renewable energy sources. In September 2023, regulations for agricultural biogas plants went into effect which are expected to finally unleash Poland’s biogas potential.
Interest in construction and operation of biogas plants has spiked recently in Poland, primarily due to entry into force of the Biogas Act of 13 July 2023, which took effect on 11 September 2023.
According to the drafters, the Biogas Act is aimed at facilitating ventures for development of agricultural biogas plants. And since it was decided to create special provisions facilitating implementation and operation of such facilities, it is reasonable to assume that under prior law there were significant impediments in this area. In this article, we examine these provisions generally and in terms of how the new act will spur development of biogas plants.
This primarily means the substantial formal requirements imposed on such projects and existing facilities—specifically environmental rules at both the project stage and the operating stage. This is just an overview, and we will discuss these issues in more detail in subsequent articles.
Terminological matrix
We should begin by defining the basic terms for this topic. Many of them have express legal definitions in the regulations, but the overall notion of a “biogas plant” is not directly defined.
However, such a definition can be derived from the definition of “renewable energy source installation” in Art. 2(13) of the Renewable Energy Sources Act of 20 February 2015, from which it can be inferred that a biogas plant is an RES installation forming a separate set of structures and equipment, constituting a technical and functional unit dedicated to the production of biogas, agricultural biogas, biomethane or renewable hydrogen, including connected facilities for storage of these gases or the electricity generated from them.
This definition should be clarified by expanding on key terms such as “biogas,” “agricultural biogas” and biomethane.” These are all defined in the RES Act:
- Biogas is a gas obtained from biomass, in particular from an animal or vegetable waste processing installation, wastewater treatment plant or landfill (RES Act Art. 2(1))
- Agricultural biogas is gas obtained by the process of fermentation of methane from a number of products or substances exhaustively listed in the definition, also taking into account the exclusions in the final part of the definition (RES Act Art. 2(2))
- Biomethane is a gas obtained from biogas, agricultural biogas or renewable hydrogen, subjected to a purification process, fed into a gas network or transported in compressed or liquefied form other than via a gas network, or used for refuelling motor vehicles without the need for transport of the gas (RES Act Art. 2(3c)).
We should note right away the definition of “agricultural biogas plant” in Art. 2(2) of the Biogas Act, i.e. an RES installation for production of agricultural biogas, electricity from agricultural biogas, heat from agricultural biogas, or biomethane from agricultural biogas.
The main criterion for agricultural biogas plants is the production of agricultural biogas. But it follows from the definition that an integral component of such an agricultural biogas plant is devices for:
- Use of the agricultural biogas produced at the plant, generating electricity or heat, or
- Purifying the agricultural biogas to obtain biomethane.
This appears to exclude transport of agricultural biogas from an agricultural biogas plant to external facilities for generation of electricity or heat, which is allowed in the general definition of the term “biogas plant” (derived from the definition of “RES installation” in Art. 2(13) of the RES Act).
Implications of the definitions
Several consequences follow from these definitions. The first is the distinction between biogas and biomethane. On average, biogas consists of methane (50–75%) and carbon dioxide (25–45%), as well as small admixtures of hydrogen sulphide, nitrogen, oxygen, and hydrogen. Thus, as a mixture of methane and other substances, biogas cannot be injected into the gas grid, because it has different physical and chemical properties than natural gas. The percentage of the various components of biogas is not fixed, but depends on the type of feedstock and the technological process used.
On the other hand, biomethane is produced in the process of purifying biogas of sulphur compounds and carbon dioxide, and in principle biomethane has the same quality and properties as natural gas, i.e. a fossil fuel. In turn, biomethane can be directly injected into gas transmission networks, liquefied into the bioLNG form (biomethane in liquefied form—LNG = liquefied natural gas) or compressed into bioCNG (biomethane in highly compressed form—CNG = compressed natural gas).
Thus it would be reasonable to conclude that biomethane is an “ennobled” form of biogas. From this perspective, the term “biomethane plant” is not simply a subcategory of “biogas plant.” A biomethane plant is a biogas plant expanded to include biogas purification equipment. Theoretically, a biomethane plant could be a separate installation solely for biogas purification, but for logistical and economic reasons such an approach is unlikely to be applied. (It should be noted, by the way, that in general biogas treatment methods are complex and expensive.)
The second key issue arising from the foregoing definitions is that they clearly indicate the “feedstock materials” from which biogas or agricultural biogas can be produced. Here, the sources of such gas must also be taken into account.
This issue is important primarily because it affects the classification of biogas plants from the point of view of environmental law, in particular waste regulations. The first question this raises is whether a biogas plant or an agricultural biogas plant will always be regarded as a waste treatment installation.
In answering this question, we must refer to the definition of “biogas,” where the starting point is the assumption that this is a gas produced from “biomass” (a notion separately defined in Art. 2(3) of the RES Act). Meanwhile, the second part of the definition gives examples of the types of installations where biogas can be produced—here, it would be reasonable to assume that these are installations processing “biomass.” But this reasoning is inconsistent, primarily from the standpoint of compliance with the environmental provisions.
First, the statement that these are “installations for modification of animal or plant waste” employs a term not found in the waste regulations. The drafters should not use the term “modification,” but “processing.” Nonetheless, it seems clear that what is meant here is a waste treatment installation.
Second, the wording suggesting that biogas can be produced in a wastewater treatment plant is imprecise, because a treatment plant as such cannot produce biogas. Instead, biogas can be produced by processing sludge in a separate installation, which could potentially qualify as a biogas plant.
With respect to a landfill, however, it is obvious that the landfill process produces gas that should be captured and that can be defined as biogas. Regardless, a landfill cannot be treated as a biogas plant. Formation of landfill gas does not appear to be the result of applying a planned biogas production process, but is a natural process associated with the accumulation of significant quantities of biodegradable waste at a specific location. While a landfill is obviously a waste treatment installation, the treatment in this case is in the nature of neutralising the waste. This means that the formation of landfill gas cannot be regarded as a waste recovery process.
However, the question of whether a biogas plant processing biomass must always be a waste treatment installation is answered primarily by the Waste Act of 14 December 2012. Art. 2 of the act indicates when the act does not apply, and under Art. 2(6) one of the exclusions is for biomass in the form of:
- Manure
- Straw
- Other non-hazardous natural substances originating from agricultural or forestry production.
This means that biomass is not covered by the Waste Act, so long as the biomass is used in agriculture or forestry or for energy production by processes or methods that are not harmful to the environment and do not pose a risk to human life and health. This means that a biogas plant using only such types of biomass will not be a waste treatment installation, as it is not subject to the Waste Act.
Conclusion
A comprehensive legal framework for investments in agricultural biogas plants has long been needed in Poland. Indeed, a clear picture emerges from the many reports presented that Poland has enormous potential in this area. In turn, production of biogas and biomethane is an opportunity to move away from an economy based on burning fossil fuels (natural gas in particular).
However, the legal conditions for development of biogas plants remain quite complicated and can raise serious doubts. Due to the short period in which these provisions have been in effect, there is also a lack of developed administrative and judicial practice in applying these regulations.
In response to these challenges, we present this article as the first in a series on establishment and operation of agricultural biogas plants. In later articles, we will discuss the most important aspects for implementation and functioning of these facilities in light of the requirements of environmental law.
Prof. Marek Górski, attorney-at-law, Dr Adrianna Ogonowska, attorney-at-law, Karol Maćkowiak, Environment practice, Wardyński & Partners
