Facilitation of biogas plants: An overview of the most important changes in legislation
We devoted the third article in our series on biogas plants to administrative decisions and other requirements for implementation of biogas projects. In this article, we present the most significant legislative amendments concerning biogas plants that came into effect last year.
Changes under the Act on Facilitation of Agricultural Biogas Plants
First, it should be noted that the parliament limited the entities covered by the Act on Facilitation of Agricultural Biogas Plants of 13 July 2023. Under Art. 3(1), only an entity included within a fixed list is authorised to prepare and implement an agricultural biogas plant.
The list in Art. 3(1) encompasses nine cases, but here we do not intent to discuss all nine types or groups of entities, as the list is not precisely constructed and the terms in the various points are not mutually exclusive.
The act also introduced restrictions on biogas plants that can be prepared and operated under its provisions. Under Art. 4, these concern:
- The location of the installation (in principle, it should be real estate owned by an authorised entity under Art. 3(1), from which at least some of the substances processed at the installation originate)
- The size of the installation (the maximum amount of energy or biogas produced)
- The type of substances that can be processed in the plant (called substrates).
The last point should be analysed more closely, as it involves an important exception to the general rules. In light of the new provisions of the Waste Act, the substrates referred to generally in Art. 4(1)(3) of the Act on Facilitation of Agricultural Biogas Plants and specified in detail in a fixed list in the appendix to the Regulation of the Minister of Agriculture and Rural Development of 12 October 2023, are deemed to be by-products.
It should be emphasised that the status of a by-product is expressly indicated in the act. In practice, this means that no additional administrative decision is required to confirm that the substrate is a by-product (see Art. 11(5)(2) of the Waste Act).
However, a substance regarded as a substrate must meet the conditions specified by law, i.e. the general conditions of the Waste Act and specific conditions established by regulation. Consequently, an agricultural biogas plant using only the indicated substrates to produce agricultural biogas is not regarded as a waste treatment facility.
These changes offer a great convenience, as the investor does not need to obtain a waste treatment permit or a decision approving the treatment of a particular substance as a by-product (non-waste). However, with the potentially large number of agricultural biogas plants, it can be difficult in practice to ensure that only permissible substances (recognised as substrates and meeting the conditions for recognition as a by-product) are used in such installations.
Art. 19(3) of the Act on Facilitation of Agricultural Biogas Plants also introduces the rule that an agricultural biogas plant is to be implemented pursuant to the local zoning plan. The siting procedure is also simplified under certain conditions.
Pursuant to Art. 6(1) of the act, designation of land in the local zoning plan for development related to agriculture or production or storage also allows for siting of an agricultural biogas plant, if it meets the conditions set forth in the act.
This means that siting of a biogas plant on property in an area covered by such a local plan exempts it from the need to obtain a siting decision. This effectively carves out an exemption from a possible study of the environmental impact of the facility. However, this issue should nevertheless be covered by a strategic assessment conducted for the draft local plan.
Another convenience, rare in the law and also an exception to the rule in Art. 19(3), is introduced by Art. 19(4) of the act, allowing for the possibility of executing an agricultural biogas plant regardless of the existence or arrangements of a local zoning plan.
In such a case, the basis for implementation of the project would be an individual resolution of the commune council determining the location of an agricultural biogas plant. However, such a resolution is not expressly given the status of a local law, although it may affect the content of the local zoning plan, which undoubtedly does constitute a local law.
However, in such circumstances, a necessary condition is that the resolution is not inconsistent with the study of conditions and directions of spatial development of the commune and the resolution on establishment of a cultural park. Here, in accordance with Art. 65(1) of the Act of 7 July 2023 Amending the Spatial Planning and Development Act and Certain Other Acts, studies of the conditions and directions of spatial development of communes are to remain in force until entry into force of the general plan for the commune, but no later than 31 December 2025.
But based on Art. 20(1) of the Act on Facilitation of Agricultural Biogas Plants, it must be assumed that this siting procedure may be used only for an application filed by the investor on or before 31 December 2025.
Changes under the Planning and Spatial Development Act
The amendment to the Planning and Spatial Development Act made by the Act on Facilitation of Agricultural Biogas Plants also introduced certain procedural simplifications in the issuance of decisions on development conditions for agricultural biogas plants. In particular, this involves:
- Restriction of the possibility of obtaining the status of a party to the procedure
- Application of the provisions on simplified procedure
- Exclusion of the principle of active participation by parties to the procedure.
Under the first point, we should refer to Art. 64aa(1) of the Planning and Spatial Development Act, which provides that the only parties to a procedure for issuance of a decision on development conditions for an agricultural biogas plant are the applicant, holders of limited in rem interests in the real estate or other rights permanently restricting ownership of the property, and owners or perpetual usufructuaries of real estate in the area affected by the project.
This provision is undoubtedly intended to expedite the proceedings by reducing the number of parties involved. In practice, this means that fewer entities will be able to influence the course of the procedure (e.g. by requesting admission of evidence) or contest the decision (e.g. through an appeal).
In turn, whether the simplified procedure is allowed is determined by Art. 64aa(2) of the act, pursuant to which Section II, Chapter 14 of the Administrative Procedure Code (Simplified Procedure) applies to a decision on development conditions for an agricultural biogas plant. But here the possibility of tacit resolution of the matter was excluded.
Under Art. 64aa(3) of the act, Art. 10 of the Administrative Procedure Code does not apply in the procedure for issuing a decision on development conditions for an agricultural biogas plant. Art. 10(1) of the code provides that public administrative bodies must ensure the parties’ active participation in every stage of the procedure, and before issuing a decision must allow them to comment on the evidence and materials collected and the requests submitted in the case. Excluding this rule is also expected to streamline the procedure. The idea is that the decision should be issued in the shortest possible time after the investor files an application.
Changes under the Construction Law
Obtaining a building permit is facilitated by an amendment to the Construction Law reducing the period within which such a decision should be issued for an agricultural biogas plant.
The architectural and construction authority has up to 45 days to issue a decision on the building permit application for an agricultural biogas plant, under Art. 35(6)(2) of the Construction Law.
There are analogous provisions on other deadlines in such cases:
- For issuance of a decision on the location of a public-purpose project, up to 65 days (Art. 64(1)(1b) of the Spatial Planning and Development Act, with some exceptions)
- For issuance of conditions for connection of a biogas plant generating electricity to the grid by an energy company engaged in transmission or distribution of electricity, up to 90 days (Art. 7(8g)(6) of the Energy Law).
These regulations are further evidence that the parliament sought to create a legal framework allowing for smooth implementation of agricultural biogas plant projects. The reductions in time limits for case resolution are comprehensive, and cover administrative procedures conducted under a number of laws.
Changes under the Fertilisers Act
The Act on Facilitation of Agricultural Biogas Plants also introduced many amendments to the Fertilisers Act. In general, these amendments simplify the handling of digestate products from biogas plants, which are covered by the Fertilisers Act. In simple terms, the status of these digestate products has now been equated with the status of fertilisers.
Digestate products meeting the conditions set forth in the Fertilisers Act and identical for products treated as fertilisers, may be marketed on the same basis as fertilisers. This means that they do not have the nature of waste, and no approval is required to generate them as waste.
The effect of these provisions is that digestate products can be used in agricultural activity without first obtaining a permit to market such products as organic fertiliser (pursuant to Art. 4 of the Fertilisers Act).
However, it is an open question whether these solutions somehow seek to circumvent the requirements of EU law, where quality conditions for fertilisers and the conditions for placing fertilisers on the market are defined by the EU’s Fertilising Products Regulation (2019/1009). It is important to be aware that in this respect, a potential conflict may lead to the repeal of these Polish provisions in the future.
Conclusion
2023 witnessed many legislative changes in Poland regarding agricultural biogas plants. There is no doubt that many of these changes were designed as incentives to invest in biogas plants. Whether these incentives actually increase the number of biogas plants in Poland in the coming years remains to be seen.
The parliament decided to exempt investors from a number of requirements related to the Waste Act. Once the relevant requirements are met, the investor may not need to obtain a waste generation permit or a waste processing permit. Only the new provisions on fertilisers, which may violate EU regulations, raise serious doubts.
The shortening of deadlines in administrative proceedings, intended to allow investors to more quickly obtain the necessary administrative decisions, should be assessed positively. If the public administrative bodies comply with these deadlines, the development process can realistically be completed in a shorter time. This will allow the investor to start operating the biogas plant more quickly.
Prof. Marek Górski, attorney-at-law, Dr Adrianna Ogonowska, attorney-at-law, Karol Maćkowiak, Environment practice, Wardyński & Partners
