32 (127) 2017
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Energy & Environment

Derogations freely given

by Daniel Chojnacki, counsel, Environmental Advisory Team, Infrastructure & Energy Practice, Domański Zakrzewski Palinka sp. k.
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A Polish Perspective on BAT Conclusions.

The main piece of EU legislation regulating the environmental impact of large industrial installations is Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions. The so-called 'BAT Conclusions' (BAT = best available technology) are among the novelties that Directive 2010/75/EU introduced into the EU law. The concept is that BAT is a moving target, since technologies and social values are continually changing.

In formal terms, the BAT Conclusions mean a document containing the parts of a BAT reference document laying down the conclusions on best available techniques, their description, information to assess their applicability, the emission levels associated with the best available techniques, associated monitoring, associated consumption levels and, where appropriate, relevant site remediation measures*.

BATs for a given industrial sector are described in BAT Reference documents (BREFs).

In practical terms, the BAT Conclusions are a summary of the BREF reference documents, formally binding upon the authorities of the member states, prepared by the European Commission.

While the BREF reference documents are extensive (for example, the Polish version of the final draft of BREF of June 2016 for large combustion plants has 976 pages), BAT conclusions are significantly condensed (the Polish version of the BAT conclusions for large combustion plants has only 82 pages).

The current status of the work on updating BREF reference documents and adopting the BAT Conclusions by the European Commission for the individual types of installations covered by Directive 2010/75/EU can be tracked on the European Commission website (http://eippcb.jrc.ec.europa.eu/reference/) or the website of the Polish Ministry of the Environment http://www.ekoportal.gov.pl/pozwolenia-zintegrowane/konkluzje-bat/). The latter contains significant information for operators of the installations in Poland on the date by which these need to be adjusted to meet the requirements of the BAT Conclusions.

Much has been written and said mainly about the July BAT Conclusions for large combustion plants in Poland, for three  main reasons. First, the significance of the conclusions for the Polish power industry that is predominantly based on coal. Second, the fact that the Polish government challenged the Commission’s decision before the Court of Justice of the European Union (CJEU) (see https://www.mos.gov.pl/aktualnosci/szczegoly/news/konkluzje-bat-zaskarzone/). And finally, the Ministry of the Environment's provision of a manual on granting derogations from the obligation to adjust installations to BAT Conclusions requirements (see http://www.ekoportal.gov.pl/fileadmin/Ekoportal/Pozwolenia_zintegrowane/Podrecznik_dotyczacy_udzielania_odstepstw_-__Konkluzje_BAT_dla_LCP.pdf).

The fundamental obligation arising under the BAT Conclusions, that is adjustment of installations to the new requirements within four years from their publication by the European Commission, applies to existing installations (plants). According to the Polish Ministry of the Environment, in terms of the BAT Conclusions for fuel combustion plants, such an installation is one that, on the date of their publication (17 August 2017), held an integrated permit, even if not yet enforceable and final in the course of administrative proceedings. This view must be deemed quite lenient. Since the BAT conclusions include no transitional provisions, in contrast to the existing installations (plants), new installations (plants), that is those that on the date of publication of the BAT conclusions did not hold the above permit, are required to meet the requirements of the BAT conclusions immediately, i.e. on the date of obtaining the required environmental decisions and (integrated) permits.

The structure of the Commission’s decision establishing the BAT conclusions for the individual types of installations is similar to that of the BAT conclusions for large combustion plants. That is why the position of the Ministry of the Environment on the interpretation of the terms existing installation and new installation adopted for the purposes of the conclusions for large combustion plants will also apply as appropriate to the BAT conclusions adopted for other industries.

Directive 2010/75/EU provides for a Member State granting a derogation from the obligation to adjust the existing installations to the BAT requirements. The relevant provision of the Directive is quite general. That is why, for large combustion plants, the Ministry of the Environment provided a manual on how to grant the above derogations to remain in compliance with the Directive. The manual, although it formally addresses the BAT conclusions for large combustion plants, may have a much broader application, i.e. it can apply as appropriate to all the BAT conclusions adopted by the Commission.

According to the Environment Protection Law, the so-called cost derogation is granted in the course of proceedings to amend an integrated permit. In specific cases, the competent authority to issue the integrated permit may, in the integrated permit being amended, allow a derogation from emission limit values if its assessment shows that achievement of those limits would lead to disproportionately higher costs compared to the environmental benefits and providing that the emission standards, if applicable, are not exceeded.

In its assessment, the competent authority takes into account the geographical location, local environmental conditions, technical characteristics of the installation concerned, or other factors affecting the operation of the installation and the environment as a whole. To apply the derogation, public participation in the proceedings must be ensured.

The manual provided by the ministry provides sets out three types of derogations:

  • type A derogation – indefinite, providing that periodic reviews of the expediency of maintaining the derogation are carried out;

  • type B derogation – standard, fixed-term (e.g. decommissioning or upgrade not possible within four years);

  • type B1 derogation – fixed-term, granted due to the need to ensure security of electricity supply; applies to some of the centrally dispatched generating units and centrally coordinated generating units.

*Article 3(12) of the Directive, adopted by the European Commission in the form of decisions; Article 13.5 of the Directive, being the reference for setting the integrated permit conditions (Article 14(3) of the Directive)

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