E U R O P E A N E N V I R O N M E N T A L B U R E A U HEAL

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European Commission Environment Directorate-General B-1049 Brussels, 1 April 2014

By email to ENV-INTERNAL-REVIEW@ec.euroDa.eu

Subject: Request for internal review under Title IV of the Aarhus Regulation -Commission Decision of 17 February 2014 on Polish TNP approval -

Dear Mr. Falkenberg,

The European Environmental Bureau (EEB) and Health and Environment Alliance (HEAL) hereby request an internal review by the European Commission of the decision taken on 17 February 2014 on the notification by the Republic of Poland of a transitional national plan referred to in Article 32 of Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions1, hereafter "Polish TNP approval". Our conclusions and detailed requests are mentioned on the last page of this request for internal review.

1. Admissibility and scope of request of internal review

1.1 Contact person and Article 11 criteria Pursuant to Article 10 of Regulation (EC) No 1367/2006 of 6 September 20062 (hereafter "EU Aarhus Regulation"), the contact details of the person empowered by EEB for the purpose of the request for internal review is as follows:

By email: < Tel:+ 32 2289 10 90 European Environmental Bureau 34, Bd de Waterloo B-1000 Brussels

We hereby confirm that the EEB satisfies the Article 11 criteria of entitlement foreseen by the Aarhus Regulation. Evidence for entitlement can be found on the EEB website, e.g.:

- Primary stated objectives, subject matter in respect of which the request for internal review is made is covered by its objectives and activities (see EEB Annual Work programmes) http://www.eeb.org/index.cfm/about-eeb/

- Independent non-profit-making legal personality existing for more than 2 years, see updated official statute (attached).

1 Commission Decision 2014/804 final of 17.2.2014, published in the Official Journal of the European Union OJ C 47 on 19.02. 2014, page 3 2 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies OJ L264/13 of 25.09.2006 &ЖМШ ШУШШШММ 8«W «ВВД BUWWU iS«« « ĽINvmONWIMIMT ÍÍK> Mwtta« # Efwfwnswn« Шю»' Organisa»»* Îauwv¡híí cíe Waterloo '14 I 8l· ÎO06 8гщШ|. I Ssíi.çuí.m: Tel.. 2 2Ш IOW ř»x: *'Я 2 3it '099 (-»»И: «btóeeb erg Wtbilť#$; www e«ìi w*w есаШ net., www ņmh.'ņēit·.ощ. wщ\ч öíg

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Pursuant to Article 10 of Regulation (EC) No 1367/2006 of 6 September 20063 (hereafter "EU Aarhus Regulation"), the contact details of the person empowered by HEAL for the purpose of the request for internal review is as follows:

By email: Tel:+ 32 22 3436 -46 Health and Environment Alliance 28, Bd Charlemagne B-1000 Brussels

We hereby confirm that HEAL satisfies the Article 11 criteria of entitlement foreseen by the Aarhus Regulation. Evidence for entitlement can be found on the HEAL website, e.g.:

- Primary stated objectives, subject matter in respect of which the request for internal review is made is covered by its objectives and activities (see http://env~ heal th. or g/about-us/ http://www.env-health.org/resources/i3ublicatio:ns/article/amiual--review-2012 http://www.env-health.org/resouręes/pubiications/arti.cle/heal-amiual-review-2011 http://ec.europa.eu/transparefacvregisrter/public/consttltation/displavlobbvist.do?id=007 23343929-96 )

- Independent non-profit-making legal personality existing for more than 2 years, see updated official statute (attached).

1.2 Admissibility for request of internal review on administrative act under environmental law

By Decision of 17 February 2014 the European Commission has approved an optional derogation facility for certain operators of 73 combustion plants in Poland, allowing those operators to derogate from stricter Emission Limit Values (ELVs) concerning three key pollutants up to July 2020. The decision was published in the Official Journal of the European Union on 19 February 20145, i.e. less than six weeks preceding this request for internal.

The European Commission's decision regarding the Polish TNP approval is to be regarded as a measure of individual scope under environmental law insofar as the decision in question applies to the benefit of a few individual operators / corporations of clearly identified 47 Large Combustion Plants in Poland.

Reference number of the LCP

Name of the operator/ company source

1,2,3,4 Enea Wytwarzanie S.A. E.PRTR 2011 5, 6, 7, 23, 24, 25, 26, 42, 44, 45,46,47,48,49,51,52,53, 54,61

EDF Group (Grupa Polska) S.A E.PRTR 2011

8,9,10,11 Tauron Ciepło SA E.PRTR 2011 12, 13, 14, 15 PGNiG Termika SA E.PRTR 2011

3 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies OJ L264/13 of 25.09.2006 4 73 combustion plants (units) located at 47 Large Combustion Plants 5 OJ C 47 of 19 February 2014, page 3 í ««off ä« тттжмвшк аиясди «шю ammu &ш mem m mmm&mmmt ащ. Mmtìm # tmtmmmM omme" øiwm**uem B CHM f ψ.ii 4 rir· ,V.ï tr-км; iã į Í-íCJiM) fţr \у«*-,гЛ% \ Tę'i·, > 'i;/ / ,· 1090 * ÌJ / 7% 9 'Ш99 O·?!! Webiittf:

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16, 19, 20,21,22 Dalkia TNP 17, 65,66, 67 Grupa Azoty TNP 18, 40 ENERGA TNP 27, 28, 29,30,31,32,33,34 PGE Górnictwo i Energetyka

Konwencjonalna S.A. TNP

35,36 CEZ Polska Sp. z.o.o. TNP 37, 38, 39 Soda Polska Ciech S.A. TNP 41,72 Grupa Orlen TNP 43 Elektrociepłownia "Będzin"S.A, ENVIA,

Germany TNP

50 Elana Energetyka Sp. Z.O.O ., Boryszew SA

TNP

55 Ciepłownia Fibris S.A. TNP 56 Fortum (Power and Heat) Polska, Finland TNP 57 International Paper TNP 58 KZPP "Koniecpol" TNP 59 Elektrociepłownia PCC Rokita SA, PCC

SE Holding, Germany TNP

60 PEC Gliwice Sp. Z.O.O. TNP 62 SFW Energia Sp Z.O.O. (STEAG New

Energies, Germany) TNP

63,64 SW SOLAR (STEICO SA, Germany) TNP 68, 69, 70 ZE PAK S.A. TNP 71 Miejskie Przedsiębiorstwo Energetyki

Cieplnej w Przemyślu Spółka z o.o. Ciepłownia Zasanie

TNP

73 Fabryka Papieru Myszków Sp. z o. o. TNP

State owned: 1, 2, 3, 4, 8, 9, 10, 11, 12, 13, 14, 15, 18, 40, 27, 28, 29, 30, 31, 32, 33, and 34 [at least 22]

The European Commission's decision on the Polish TNP approval is to the benefit of (24) individual commercial entities in Poland, and therefore of an individual scope. It is addressed to Poland and it applies to objectively determined situations and entails effects for individual beneficiaries - installations and operators listed in the approved TNP. The implementation of the TNP will affect particular operators and installations that are listed in the plan approved by the Commission, thus there is a specifically determined group of benefitting entities. Therefore, this measure could not be regarded as having impact on addressees defined in general and/or abstract manner.

The administrative act is taken pursuant to the application of EU environmental law i.e. the Industrial Emissions Directive6, hereafter "IED". Finally the act in question does have binding and external effect insofar as it constitutes an approval to derogate from stricter ELVs and to provide for a linear decrease of emissions for certain LCPs pursuant to the conditions and ceilings set in the Annex to that decision. Irrespective of considerations on the above, Article 9(3) of the Aarhus Convention7 provides access to administrative or judicial procedures to be available "[...] to challenge acts or omissions by [...] public authorities The General Court has annulled two decisions of

6 Directive 2010/75/EU of 24 November 2010 on industrial emissions (IPPC Recast) OJ L 334/17 of 17.12.2010 7 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed at Aarhus on 25 June 1998 ('the Aarhus Convention') europé an ттшопттм,. юш mm штж у штжж ot ттштшт «te мшш «f штнтм cw»«· огкашммт» BOīiitļv.šiii е»» Wate-í-is ρ ł4 : i -10OO 8íi.meh i Htígittm føl,: »12 "i !Û90 f л·*· < « ι, m,i>i · . •• ι· ι •

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the Commission that considered requests for internal review inadmissible on grounds that the concerned acts were not 'administrative acts' as defined in Art. 2(1 )(g) of the Aarhus Regulation. According to the case T-338/08 Stichting Natuur en Milieu and PAN Europe v. Commission, judgment of 14 June 20128 and Case T-396/09 Vereniging Milieudefensie, Stichting Stop Luchtverontreining Utrecht v Commission, judgment of 14 June 2012, the Court has maintained that the definition in the Aarhus Regulation of an act which may be subject of an internal review request is too narrow and that an administrative act should not be limited to a measure of "individual scope". The Court has therefore found that "It must be held that an internal review procedure which covered only measures of individual scope would be very limited, since acts adopted in the field of the environment are mostly acts of general application. In the light of the objectives and purpose of the Aarhus Convention, such limitation is not justified." (see paragraph 76 of Judgment T-338/08). "It follows from the above that Article 9(3) of the Aarhus Convention cannot be construed as referring exclusively to measures of individual scope. Consequently, in so far as Article 10(1) of Regulation No 1367/2006 limits the concept of 'acts', as used in Article 9(3) of the Aarhus Convention, to 'administrative act[s]' defined in Article 2(l)(g) of Regulation No 1367/2006 as 'measure[s] of individual scope', it is not compatible with Article 9(3) of the Aarhus Convention. " (See paragraph 83 of Judgment T-338/08).

We are aware that the General Court ruling has been appealed by the Commission, that the appeal hearing took place in December 2013 and that the ruling of the Court of Justice of the European Union is pending. Nevertheless, we wish to make it clear that while we maintain above that the Decision in question does in fact constitute a measure of individual scope, this should not in any way be construed as implying that we concur with the Commission's view on the question of individual scope. On the contrary, we do not consider that constituting a measure of individual scope can legitimately be invoked as a pre-condition for the admissibility of this request for internal review.

Further it is clear that in the present case the Commission acted in the exercise of its implementing powers. The granting by the Commission of the Polish TNP approval is of direct and individual concern to the EEB and HEAL since it will result in less strict Emission Limit Values (ELVs) for three harmful pollutants emitted into the environment and negatively affecting human health by large point source emitters, that would otherwise be prevented / reduced if a more stringent implementation of the Industrial Emissions Directive would be enforced by the Commission (i.e. rejection of the optional TNP derogation facility on other grounds) at the latest by 1st January 2016. Further we regard the TNP as in non-compliance with the requirements laid down according to the IPPC Directive (see point 2.3).

Based on the above, the request for internal review should be declared admissible.

2. Grounds for request of internal review

2.1 Procedural flaw: lack of appropriate dissemination of environmental information for the purpose of early and effective participation in decision making

2.1.1 Inadequate public participation at EU level decision making process The TNP referred to in Article 32 of the IED is to be considered as falling within the definitions of "plans and programmes" pursuant to Article 2(5) of the Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a

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Transboundary Context and Article 2(a) of the Strategic Environmental Assessment (SEA) Directive 2001/42/EC9.

The Transitional National Plan (TNP) is drawn up and implemented by a Member State according to an implementing decision which confers binding provisions on the operators subject to it. The plan has to be communicated by the Member State to the European Commission which shall evaluate it. In the evaluation the Commission is reviewing the TNP and takes an active role in the preparation of that plan. Finally the plan is adopted by the Commission through a tacit approval procedure -or a positive decision as is the case of the Polish TNP approval-.

Further, the TNP is to be considered as a plan relating to or on the environment pursuant to Article 2 (e) of the EU Aarhus Regulation.

- ii) "which are required under [...] regulatory or administrative provisions ; and iii) which contribute to, or are likely to have significant effects on, the achievement of the objectives of Community environmental policy, such as laid down in the 6th EAP or in any subsequent general environmental action programme."

The TNP meets all of the above elements, since it can only be accepted pursuant to regulatory and administrative provisions and decision. Further it is undisputed by several Commission documents and other studies that Large Combustion Plants contribute to significant negative effects on the achievement of Community environmental policy such as EU Air quality legislation, the objective of the IPPC/IED Directive and the objectives laid down in the 6th

EAP10. Finally, the TNP is to be considered as a plan / programme relating to the environment pursuant to Article 7 of the Aarhus Convention. The TNP is therefore to be considered as a "plan relating to the environment" and the validity of the approval procedure should be assessed as well against the relevant provisions of the EU Aarhus Regulation and the Aarhus Convention that apply on public participation.

EEB and HEAL deem that the Commission has acted against the provisions on public participation of the EU Aarhus Regulation, in particular Article 9 stating that the "Community institutions and bodies shall provide, through appropriate practical and/or other provisions, early and effective opportunities for the public to participate during the preparation, modification or review of plans or programmes relating to the environment when all options are still open. " (own emphasis added). At no stage in the process did the Commission provide actively an early and effective opportunity to participate during the preparation, modification or review of the Polish TNP approval. On the contrary, the Commission has withheld the essential elements of information about that plan, its preparation, modification or review from the public. It also refrained from providing information on whether the TNP in question would be rejected or subject to further review, nor has it provided information on the state of play on the process. That information was only made available following requests for access to documents by NGOs (i.e. initial request by the EEB on 29 November 2012 GESTDEM 2012/5596 and further request by joint coalition ΰί NGOs including the EEB and HEAL on 10 October 2013 GESTDEM 2013/5125) i.e. as from 9th December 2013 (at the maximum deadline for response).

9 Directive 2001/42/EC of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment; L 197/30 of 21.7.2001 10 Climate change objective to not exceed 2°C max increase, level of pollution not to give rise to harmful effects on human health and the environment, the thematic strategy on air objectives and in particular the objectives and priority areas for action on environment and health and quality of life such as "reducing emissions from relevant source categories". тшхжт mmmmmm, sureau f ни mmm тшотн m vrnmo ттмжх mm мтио» 1ттшт*ям m«««*· одоймИм» ScMííMKt tir Wsffítoö 34 j 1 <100 9íu«#tl i iti pam T*i, »i:? ï 2Ш -ma fălit; . II :í гал? 1099 í· г.д»< Wtíwlf«»: www tiril org. »»Wríer« ívet, WW* biift.tisfg

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Certain key documents were not provided to EEB and HEAL before the decision to approve the Polish TNP has already been taken. That relates to the following:

• the third European Commission letter dating 11 November 2013 Ares(2013)3451923, in which it requested the Republic of Poland to correct one ELV for one plant and a clarification of the ELVs to different types of gases used in two plants;

• the Polish communication of 14 November 2013 Ares(2013)3484235 which provided the requested corrections and clarifications;

• the consolidated version of the final TNP submitted by the Polish authorities on 12 December 2013 under registration number Ares(2013)3708895.

All the above documents contained crucial elements for the preparation, modification or the review of the TNP, which were made available to the EEB by email as from 26 February 2014, after the decisions had already been taken i.e. options were no longer open.

However Article 9(4) of the Aarhus Regulation provides that "a time limit of at least eight weeks shall be set for receiving comments. Further, where meetings or hearings are organised, "prior notice of at least four weeks shall be given. " The Commission did organize a meeting on 26 June 2013 on the TNP where it has informed about the state of the ongoing assessment l. However civil society organizations were not invited to this meeting.

The Compliance Committee under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus

10 Convention), -hereafter "ACCC"- has found in a similar case that "under the circumstances considered in this case, there was a considerable span of time for the participation of the private stakeholders compared to that granted to other members of the public to the extent that the authority exercised its discretion in a way that ran counter to the objectives of the Convention, in particular "to encourage widespread public awareness of and participation in, decisions affecting the environment and sustainable development" by involving, among others, NGOs promoting environmental protection. While the closer inclusion of the private stakeholders in the process may have been justified, there was still an obligation on the public authority to keep with the objectives of the Convention and not to abuse this provision to effectively bar or significantly reduce effective public participation of other members of the public. " 3

Further the ACCC finds that "[...] the Party concerned has the obligation to demonstrate that it has fulfilled its obligations under article 6, paragraph 8. The Committee notes that in the process of preparing a plan this obligation could be fulfilled by following the procedure set out in article 6, paragraph 9, or any other way the Party concerns chooses to demonstrate that it has taken "due account " of the outcome of the public participation. "

In this particular case, the European Commission cannot demonstrate that a public participation procedure has taken place at the EU level decision making process. Hence the public, including the EEB and HEAL, did not have any early and effective opportunity to participate during the preparation, modification or review by the Commission of the Polish TNP when options i.e. to modify / reject were still open.

11 See Agenda point 8.1 of IEEG meeting on 26 June 2013 12 See paragraph 59, ACCC/C/2012 /70 Findings and recommendations with regard to communication ACCC/C/2012/70 concerning compliance by the Czech Republic. Concerning public participation in multi-level government structure involving European Commission and Member States relating to assessment of plan relating to the environment pursuant to EU legislation 13 Ibid paragraph 62 tmmtm ттптт£нш вимж mm «mmi тяошм m towmmmmtm mai «t еинямтмпш ш»«* Офкшшт Tiú i , i í t vü¡4 I f f Wáíffmi) Ì4 1 a-tocii) Bruwb í Bţţi ţ ţ ium î#i.: * id í ì'A'S *090 fâx; « i l 1 3§9 į-mstlk eříjffpÎ! a- į į

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For that reason we would call on the Commission to review the contested decision and to provide for an appropriate public participation in an adequate timescale before any approval of a TNP is made at EU level.

2.1.2 Inadequate public participation at national level decision making process As already raised to the European Commission by letter of Greenpeace Central and Eastern Europe of 10 July 201314, the Polish authorities have not ensured compliance with the requirements for the public participation in environmental decision making under the Aarhus Convention. Although the TNP was available for consultation for the Polish public on a webpage of the Ministry of Environment, it was only for a very limited time - from 27 November to 6 December 2012, which cannot be considered as a sufficient timeframe for the public participation under the Aarhus Convention15 and relevant Aarhus acquis / case law. Moreover, only a limited number of organizations have been approached to submit comments on the TNP. The request by at least one Polish NGO16 for a prolongation of the consultation period has not even been answered by the Ministry of Environment. Pursuant to the Aarhus acquis, each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment. Although, it is a primary duty of Poland to comply as a party to the Convention with its provision, we suppose that a certain obligation rests in this respect also on the European Commission as a body concerned in this regard17. The Commission carried out the assessment of the draft TNP and it had opportunity to check whether the account was given also to the obligations under the Aarhus Convention, namely whether Poland properly implemented Article 7 of the Convention and Article 9(4) of the Aarhus Regulation in preparing the Polish TNP approval. Moreover, in time of the information exchange and the revision of the plan, it was also the Commission's duty as an active player in the preparation process to take into consideration the requirements of the public participation.

In this regard it is important to note Findings of the Aarhus Compliance Committee in communication ACCC/C/2012/70 (Czech Republic), para. 66 "Further, the Committee, while noting the complexity of decision-making in a multi-level government structure, such as the one between the EU and its member States, encourages the EU in designing common framework for the member States to implement the Convention, to ensure compatibility of such framework with the Convention and to fulfil its responsibility to monitor that its member States, including the Czech Republic, in implementing EU law properly meet the obligations resting on them by virtue of the EU being a party to the Convention (cf ACCC/C/2010/54, ECE/MP.PP/C. 1/2012/12, para. 76)."

From the available information it can be concluded that the European Commission did not provide evidence and information that it evaluated Polish TNP in the light of the above requirements. Furthermore, it was the role of the European Commission representing a party to the Convention and as guardian of the Treaties to monitor and ensure that the public

14 Letter addressed to Director General of SG ENV M. Falkenberg on 10 July 2013 15 In this regard see i.e. Findings and recommendations with regard to communication ACCC/C/2010/54 concerning compliance by the European Union, Draft findings 12 April 2012:"A two week period is not a reasonable time-frame for "the public to prepare and participate effectively" taking into account the complexity of the plan or programme (see findings on communication ACCC/C/2006/16, ECE/MP.PP/2008/5/Add.6 para. 69)." 16 Związek Stowarzyszeń Polska Zielona Siec 17 For instance, Draft findings of the Aarhus Compliance Committee - Findings and recommendations with regard to communication ACCC/C/2010/54 concerning compliance by the European Union, Draft findings 12 April 2012, the Committee found that the European Union by not having properly monitored the implementation by Ireland of article 7 of the Convention in the adoption of Ireland's renewable action plan has failed to comply with article 7 of the Convention. тжжт t mim mm штжт «лют m ттжтттт mm бмкшшм amm' от^илов* BOiiir'iïïîd fíe W4í<ľfl9<i ΪΛ í B lOOt) 8í>.m»ň > iiiiiļium ΤψΙ, »13 ï 2B9 i(Í90 fa,*: f JJ 2 2119 1099 f r-з». WelífšMS; »varisi . - ; -

consultation and the public participation in the process of the Polish TNP preparation met the necessary public participation and transparency requirements.

The Commission was informed about this non-compliance, nonetheless no steps were taken to rectify the situation and the European Commission has approved the Polish TNP prepared and adopted in breach of the Aarhus Convention.

Due to the above mentioned reasons, the European Commission's decision shall be considered as unlawful.

2.2 Procedural flaw: non-compliance of the Polish TNP approval procedure with the SEA requirements

2.2.1. Non-compliance of the Polish TNP approval procedure with the SEA Protocol The EU is also a party to the Protocol on Strategic Environmental Assessment (SEA) to the Convention on Environmental Impact Assessment in a Transboundary Context18 (hereafter "the SEA protocol"), which entered into force since 11 July 201019.

EEB and HEAL are concerned that the Commission has failed to comply with the requirements of the SEA Protocol, notably the requirement:

- to provide for a high level of protection of the environment, including health by thoroughly taking into account those considerations in the development of the TNP;

- providing for public participation and effective procedures for strategic environmental assessment; for the Commission officials to assist and provide guidance to the public in matters covered by this Protocol, and to provide support the associations promoting environmental protection in the context of this Protocol; integrating by these means environmental, including health, concerns into measures and instruments designed to further sustainable development.

Article 4(2) of the SEA protocol states that a SEA shall be carried out for plans and programmes which are prepared for (inter alia) energy and which set the framework for future development consent for projects listed in Annex I and any other project listed in Annex II that requires an environmental impact assessment under "national legislation According to the manual to the SEA Protocol20, the TNP does set the framework for future development consent as it contains criteria and conditions such as developments to be permitted in a given area and contain conditions to be met by the application if permission is to be granted (i.e. operating conditions). The Aarhus Compliance Committee has interpreted "national" of Article 4(2) to mean "EU domestic law" and/or "the EU level" 21. Annex I point 2 includes thermal power stations and other combustion installations with a heat output of 300 MW or more. According to the elements to our disposal, at least 47 out of the 73 combustion plants (units) covered under the Polish TNP approval exceed the capacity threshold of thermal input and are thus covered. Out of the 47 LCPs included in the TNP, at

18 http;//www.uiiece.org/fiIeadmin/DAM/env/eia/dociimeiìts/legaltexts/protocolenglish.pdf 19 The European Union is party to this Protocol with signature of 21 May 2003, and approval as of 12 November 2008 20 See page 13 of http://www.TOece.OTg/fi1eadrom/DAM/env/eia/sea nianuaI/documents/SEA°'o20Manual%20-%20€'hapter%2QA3%2Q-%20síides.ndí 21 See paragraph 76 of the Findings and recommendations with regard to communication ACCC/C/2008/32 concerning compliance by the European Union, adopted on 14 April 2011 littp://www.unece.org/fi1eadmiii/DAM/env/Dp/compliance/CC-32/ece.mp.pp.c. 1.2011.4.add. 1 as submitted.pdf luttOKAN immcmmmm. emmu mm boria у шяотм m mmmommmm »m Мташ «í тФжттш стат' Фрмтшат eoüieV.ïSïi lir W:H໫5# '14 S íi-tooo Йп.теН í Sfisfnim îţi,: t'i'J; I Ш90 f«*: > 31 "I ļVi 1β?4 í (чн > Wthäitet; r-rti i i īĶ . www г< лг.я:. îi<*1 . pa t i u : ·¡¡Ątt пщ, www fws»ií4ä№J:.ífsňft лгц. :·.·4 -·> Í: ¿ V;.;·.«, - :> · : . ν . "Λ! í····! "-.-Άί "<•" ΛΖ Í, Í.SÍ :Í? ·.,

least 2922 exceed the aggregated 300MW threshold of the SEA Protocol, for which a SEA should have been carried out.

Based on the above, the Commission was required to carry out a SEA and take other acts pursuant to the requirements of the SEA Protocol.

Notably the Commission failed to do the screening according to Article 5 of the SEA Protocol, on whether the Polish TNP "w likely to have significant environmental, including health, effects either through a case-by case examination or by specifying types of plans and programmes or by combining both approaches. For this purpose each Party shall in all cases take into account the criteria set out in annex III. "(own emphasis added). Annex III lists as relevant criteria: environmental, including health problems relevant to the TNP; the nature of the environmental, including health effects such as probability, duration, frequency, reversibility, magnitude and extent (that criteria is relevant to the TNP approval since a negative response from the Commission would in most cases mean significant pollution abatement equipment to be installed which could lead to an anticipated shutdown of the 47 combustion plants in question by 1st January 2016, bringing significant environmental and health benefits)

Further, the Commission has failed to designate the authorities to be consulted which, by reason of their specific environmental or health responsibilities, are likely to be concerned by the environmental, including health effects of the implementation of the Polish TNP (Article 9(1) of the SEA Protocol). Further, it appears that the Commission has failed to produce the required environmental report according to Article 7 of the SEA Protocol, which had to be made available to the environmental and health authorities prior to the decision (Article 9(3) of the SEA Protocol).

According to Article 7(2) of the SEA Protocol, the environmental report has to identify, describe and evaluate the likely significant environmental, including health effects of implementing the [Polish TNP] and its reasonable alternatives. The report shall contain such information specified in annex IVas may reasonably be required [...]" (own emphasis added).

EEB and HEAL are not aware that an environmental report has been produced and submitted to the relevant entities. Also the highly relevant information listed in points 1 to 11 of Annex IV of the SEA Protocol have not been provided. An essential shortcoming is the absence of any evaluation of likely environmental and health effects (secondary, cumulative, synergistic short, - medium term / positive and negative effects) and the absence of any consideration of alternatives to granting the TNP i.e. derogations from the standard applicable ELVs pursuant to Chapter II / Annex V part 1 of the IED.

Irrespective of shortcomings against the EU Aarhus Regulation (identified under previous section 2.1), Article 8 of the SEA Protocol provides for further obligations upon the Commission to ensure early, timely and effective opportunities for public participation, when all options are open. In this respect there is an explicit requirement pursuant to Article 8(3) of the SEA Protocol that the Commission had to enable the NGOs promoting environmental protection to have an

22 All except the following (15): Elana Energetyka SP (50), Fenice Poland Kluczach (51), Fenice Poland Tychach (52), Fenice Poland R2eszowie (54), Ciepłownia Fibris (55), Fortum Power and Heat Polska (56), ΚΖΡΡ Koniecpol (58), Elektrociepłownia PCC Rokita (59), PEC Gliwice (60), Ciepłownia (61), SFW Energia (62), SW Solar (63, 54), Miejskie Przedsiębiorstwo (71), Elektrocielplownia Spółki (72), Fabryka Papieru Myszków (73) ι у йсикан mmmmmmmt mmm mm wwau тшсжш m. ammoummim mm pmtmUm ©# ьшшшш сш»«»* orgшшт* BfíiHf v-ţftî йе Wife?·«·® Î4 í 8 10PÖ ilrimeH i Tél. > · ϊ ΐ 1 ' i ï}9 109 O ři*: t Į.| J (ff|9 '1099 f - mstil; «bflteeti vnįį Website»; www işeli *>rg. WWW eiatĄn ÍWÍ: #*•< -

"opportunity to express its opinion on the draft [TNP] and the environmental report within a reasonable time frame", considering the elements in annex V such as:

- the envisaged procedure including time and venue of any envisaged public hearing; - the authority to which comments or questions can be submitted and the time schedule

for the transmittal of comments or questions; - what environmental, including health information relevant to the proposed TNP is

available. That has not been the case for the Polish TNP approval (and other pending approvals).

Finally, the Commission did notably fail to comply with the requirements laid down under Article 11 of the SEA Protocol, requiring the Commission to ensure that when the TNP is adopted to take due account of:

- the conclusions of the environmental report (it seems there isn't any of this report available);

- the measures to prevent, reduce or mitigate the adverse effects identified in the environmental report; and

- the comments received (there was no public consultation except with the Member State concerned so no comments could be made/ considered).

Further the Commission did not provide any statement summarizing how the environment, including health considerations have been integrated into it, how the comments received have been taken into account and the reasons for adopting [the Polish TNP] in the light of the reasonable alternatives considered.

Based on the above shortcomings, the Polish TNP approval shall be reviewed.

2.2.2. Non-compliance of the Polish TNP approval procedure with the SEA Directive For the Polish TNP there was no SEA process carried out during its preparation and prior its submission to the EC for assessment. Although some officials of the Polish Ministry of Environment were asking for a SEA23, it has not yet been launched.

Under the SEA Directive 2001/42/EC (precited) an environmental assessment should be carried out for the plans and programmes which are likely to have significant environmental effects and which are prepared, among others, for the energy sector. As stated in section 2.1.1 the TNP fulfils these criteria. The majority of measures foreseen and listed in the TNP are not abstract, but these are very concrete projects with clearly set parameters - such as its localization, technology proposed etc. It follows that the TNP sets out a framework for future development consent of these projects that will be realized by the operators concerned. More importantly, number of planned measures included in the TNP fulfils criteria set out in Annexes I and II to Directive 2011/92/EU and thus must be subject to the environmental impact assessment procedure. Further, it is important to note, that the installations included in the Polish TNP approval are located in the whole area of Poland, therefore the possible impact would not be limited to small areas and the number of the installations are also located in the vicinity of the protected areas under the Habitats Directive 92/43/EEC24.

23 Piotr Czembor, PhD, appointed member by the Ministry of Environment to the working group supporting administrative issues related to the implementation of the TNP into national law, wrote an article stating the need for an SEA in the December 2012 issue of the expert journal Energetyka: h1tp://eleki;roenergetvka.pj/iipioad/file/20l2/j2/("ZEMB()R.Ddf 24 For instance, Installation nr.30 PGE Górnictwo i Energetyka Konwencjonalna SA. Oddział Elektrownia Turów (Kl, K2, K3, K4, K5, K6) is located less than 5 km from the areas with the priority habitats in Poland - Przełomowa Dolina Nysy Łużyckiej (0 km from the installation), Germany - Neißegebiet and Neißetal ( 1,5 km from the installation), Basalt und Phonolithkuppen der östlichen Oberlausitz (5km).

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The failure to carry out an environmental assessment has therefore resulted in a breach of the following provisions of the SEA Directive - Art.3, Art.4 para.l, Art.6 paras. 1 and 2, Art.8, Art.9.

The SEA Directive is binding on the Member State, however if the Commission adopts a decision that consequently leads to the breach of obligations set by the directive by the Member State, this decision contradicts the European law as well.

According to Article 17 of the Treaty of the European Union, the Commission shall "ensure the application of the Treaties and of measures adopted by the institutions pursuant to them " as well as it shall "oversee the application of Union law under the control of the Court of Justice of the European Union". When deciding on a particular issue the Commission cannot escape this general supervisory role by declaring that the responsibility is shifted to a Member State. When the TNP was being approved, the Commission's duty was equally to deal with the environmental aspects and to ensure that the requirements of the SEA Directive were fulfilled. The Commission was informed about this incompliance25, and despite an indication by the Commission26 that "the correct implementation of the SEA Directive in this context is an obligation that the Commission is monitoring separately from the evaluation of the TNPs", it has nevertheless made a final approval of a TNP in breach of the EU law on these counts.

2.2 Substantive flaws

2.2.1. Lack of information on measures for timely compliance As raised in our confirmatory application of 20 December 201327, the Commission did fail to populate and update the CIRCAB webfolders in an appropriate manner, since correspondence between the Commission and the Member States were withheld from the public until 9 December 2013, whilst information was held by the Commission as from June 201328.

Following to that and in view of the information published in the Polish TNP approval in the official journal or the CIRCAB, the public cannot assess whether the requirements of the IED have been provided, such as evidence of timely compliance. Article 32(4) of the IED requires the plan to contain "measures foreseen for each of the plants in order to ensure timely compliance with the emission limit values that will apply from 1 July 2020". (own highlight added) The Commission did contend in its Polish TNP approval that "The Republic of Poland has provided sufficient information regarding the measures that will be implemented in order to achieve the emission ceilings, the monitoring and the reporting to the Commission on implementation of the TNP" (recital 11) and that "The Commission is satisfied that the Polish authorities have taken into consideration the provisions listed in Article 32(1), (3) and (4) of Directive 2010/75/EU and in Implementing Decision 2012/115/EU" (recital 12).

However for those combustion plants that would continue operation after the TNP period and for which retrofit measures have been indicated in the document "Załącznik nr 8 Do Przejściowego Planu Krajowego, Zestawienie działań, które będą podjęte na terenie każdego obiektu w celu osiągnięcia i przestrzegania dopuszczalnych standardów emisyjnych

25 Letter sent by Greenpeace Poland on July 10th 2013 addressed to Mr. Karl Falkenberg Environment Directorate-General European Commission, Joint NGO letter dated 10th October 2013 addressed to Commissioner Janez Potočnik Environment Directorate General European Commission 26 Letter of Commissioner Potočnik of 18 November 2013 Ares (2013)3519474 27 GESTDEM 2013/5125 28E.g. it is clear from the Annex to Ref Ares (2013) 3388603 of 31/10/2013 that most information was held by the Commission since June/July 2013 iu ROCIAN тчтттттт, «υ«« и mm шжш mmmm m жмппотштг mm rntmum «ι шт/ктт«яш cm w»·

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od dnia 1 lipca 2020 r" insufficient information regarding the measures for ensuring timely compliance have been provided. The documentation supplied by the Polish authorities lack of an indication of a concrete and robust timeplan for the implementation of the measures (retrofits) foreseen (e.g. commissioning plans, launch of procedures and start of construction works with associated procedures etc). Further, there is no evidence about how the required investment costs would be ensured. In particular for the state owned combustion plants, we would consider that tendering procedures would have to be launched in a timely manner and budget allocation planned in advance which are subject to validation by the Finance Ministry.

These indications are crucially lacking and therefore raise doubts that effective and timely compliance for the combustion plants concerned will be achieved by 1st July 2020. It is required that sufficient information about the measures for each of the plants, is provided, in order to assess the credibility and probability on whether effective compliance will be ensured, as required by the IED.

2.2.2: Inappropriate reference of ELVs that will apply as from 1st July 2020

2.2.2.1 based on Large Combustion Plant BREF of 2006 It appears from the Polish TNP approval that the Commission has not taken the necessary safeguards in its approval decision to ensure that the relevant provisions of Chapter II of the IED are complied with at the latest by 1st July 2020. Article 2 of the Polish TNP approval merely states that the Commission would assess "Í/any subsequent changes to the TNP, notified by the Republic of Poland in the future, comply with the provisions listed in Article 32(1), (3) and (4) of Directive 2010/75/EU and in Implementing Decision 2012/115/EU\

However, according to common knowledge reaffirmed in Article 73(1) of the IED, "Chapter III and Annex V of this Directive shall be considered to represent the Union-wide minimum requirements in the case of large combustion plants'". It appears from the Polish TNP approval that the Commission would consider that "timely compliance with the emission limit values that will apply from 1 July 2020" are solely based on compliance with the Union Wide minimum requirements for Large Combustion Plants i.e. the ELVs mentioned in Part 1 of Annex V of the IED. The EEB and HEAL therefore consider that the wrong basis for ELV setting is used when assessing timely compliance with the relevant ELVs according to Article 32(4) of the IED. Further, it is not appropriate that any compliance assessment with IED provisions is dependent on a pre-notification by the Republic of Poland in the future, constituting a restriction of the powers of the Commission to assess compliance with the EU Environmental Acquis according to the restrictive wording used in Article 2 of the Polish TNP approval. The Commission should be able to withdraw the TNP at any time when its conditions are no longer fulfilled or if its application may otherwise constitute a prejudice to environmental quality standards.

According to Article 11 and Article 12(l)(i) of the IED, Member States shall take the necessary measures to provide that installations are operated -amongst others- with the following principles:

- the best available techniques are applied; - no significant pollution is caused.

According to Article 14 of the IED, Member States shall ensure that the permit includes all measures necessary for compliance with the requirements of Article 11 and 18 of the IED.

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According to Article 14(3) of the IED "BAT conclusions shall be the reference for settins the permit conditions'". According to Article 15(2) of the IED "Without prejudice to Article 18, the emission limit values and the equivalent parameters and technical measures referred to in Article 14(1) and (2) shall be based on the best available techniques, without prescribing the use of any technique or specific technology. " Pursuant to Article 82(1) the above provisions apply as from 7 January 2014 to existing Large Combustion Plants (Annex I, point 1.1). All the 8 LCPs subject to the Polish TNP approval fall under Annex I, point 1.1 of the IED. The relevant BAT conclusions that are applicable to the setting of the relevant ELVs as from 7 January 2014 are those contained in the BAT conclusions of the Large Combustion Plant Best Available Techniques Reference Document finalized in July 2006 (hereafter "LCP 2006

29 BREF") for the respective size category for lignite fuels for the pollutants dust, S02 and NOx. According to Article 13(7) of the IED, the BAT conclusions contained in the LCP 2006 BREF therefore apply as BAT conclusions for the purpose of Chapter II of the IED i.e. the provisions stated above. The same holds true for the relevant ELVs to be applied as from 1st

July 2020. In fact, according to settled case law of the EC J (First Chamber) of 26 May 2011 in joined cases C-165/09 to C-167/09, Stichting Natuur en Milieu "/"..J the obligation, laid down in the second sentence of Article 9(4) of the IPPC Directive, to see to it that the conditions of the permit contain provisions on the minimisation of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole, can be interpreted only in the context of the system established by the IPPC Directive itself and in particular of the rule, set out in the first sentence of Article 9(4), under which it is mandatory for the emission limit values to be based on the best available techniques. " (paragraph 67) This rule of BAT based permitting has been further strengthened with the IED.

There is a considerable difference in the level of the maximum ELVs allowed by 2016 on the basis of the upper ranges of (daily averaged) BAT associated emissions levels (BAT-AEL) for dust and S02 compared to the minimum binding (monthly averaged) ELVs set pursuant to the LCP-Directive. Effective emission reductions are in general 10% higher when ensuring compliance with BAT performance ranges instead of the compliance regime used in the LCP-Directive / Annex V part 4 of the IED.

The ELVs used for calculating the 2016 and 2019 ceilings as well as the relevant ELVs to be applied with as from 1st July 2020 pursuant to Article 32(4) of the IED are therefore inappropriate in regards to Chapter II of the IED.

2.2.2.2 relevant ELVs for 2020 based on new LCP BREF Irrespective to the above, the relevant ELVs that need to be complied with by 1st July 2020 will also be affected by the revision of the new LCP BREF document, currently under review. A final adoption is expected by the end of this year and a publication of the new BAT conclusions in the Official Journal by early 2015. Without prejudging the outcome of this review process, the upper values on which basis the ELV have to be set are either largely confirmed or tightened up (stricter), which is expected given to the advancement in BAT standards over time. According to Article 15(3) and Article 21(3)(b) of the IED, the operators of Large Combustion Plants need to comply with the new BAT conclusions at the latest within 4 years of the publication of the decision on the new BAT conclusions.

29 See Reference Document on Best Available Techniques for Large Combustion Plants, July 2006 liítp://eÍDPcb.jrc.ec.europa.eu/reference/BREF/lcD bref 0706.pdf &тшт тттжттт, SMWJ mm втмли tmmtrn m ттшттттт жп ьтаттшШ онш»« ;''····- -··,.::··! de W.? f >> > < ; '14 Ī Щ--'НЮ0 i CMíÇfM**1 W. 4 < ľ ï 2%^ ЮчО f шшл *31 | 2Я9- 10^9 í E

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This points to early or mid 2019 as the absolute deadline for compliance with the new BAT conclusions (i.e. stricter ELVs for dust, NOX and S02) for every single Large Combustion Plant, which are different from the ELVs used under the Polish TNP approval calculations.

However, the contested decision does not foresee any basis for the Commission to ensure coherence and timely compliance with the relevant ELVs that needs to apply at a given deadline according to Chapter II of the IED. An explicit compliance assurance with the Chapter II provisions / TNP review clause in light of the existing BAT conclusions (new legal status under IED as from 7 January 2014) and new BAT conclusions (expected for 2015) is not foreseen within the contested decision. The Polish TNP approval is therefore inconsistent with the requirements under Chapter II of the IED.

2.2.3.1: Inconsistency in calculation of the total rated capacity for reference plant #33 It appears from the Polish TNP approval that the reference combustion plants #33 "PGE Górnictwo i Energetyka Konwencjonalna S.A. Oddział Zespół Elektrowni Dolna Odra -Elektrownia Pomorzany (Benson A, Benson B, KWI, KW2)" corresponds to an aggregated total capacity of 474 MWth capacity. According to the information contained in the final TNP, that would correspond to 4 units:

1. Benson A 2. Benson В 3. KWI 4. KW2

1Л However, in the Polish response dating 25 September 2013 the authorities have indicated the following calculation: 474 MWt (Benson A - 156 MWt, Benson В - 156 MWt, KW2 - 162 MWt). It appears that the Combustion plant no 3 listed in the TNP i.e. "KW 1" is omitted from the calculation, but would still be eligible for the derogation of dust, NOx and S02 according to the official Polish TNP.

We have been provided the Environmental Impact Assessment31. According to that information as well as the official company website, different set of figures are provided, suggesting that the combustion plants in question could actually exceed the aggregated 500MWth thresholds. If that were to be confirmed, it would significantly affect the 2016 ceilings calculations, meaning a reduction by 104 mg/Nm3 for S02, factor 3 reductions for NOx and a factor 2 reduction for dust.

The company website indicates that there are 2 Benson Boilers (OP-206) but of 325.5 MWth capacity, confirmed in the EIA (page 1)8. According to the EIA figures (table 19-21) the following capacities are indicated:

1. OP 206 (Benson) A, 156MWth 2. OP 206 (Benson, В 156 MWth 3. Kocioł wodny typ "WP 120" 139,5 MWTh (but on page 21 of the EIA they refer to

2x 90MWth = 180 MWth as well) 4. Turbozepol AEG 50/60 A + В = 2x90MWth = 180MWth (but on page 21 of the EIA

they refer to 2x 67,1 = 134,2 MWt) There is a further indication of two additional oil-gas boilers of 30MWth each for peak load operation, however it is not clear on whether these combustion plants discharge through a common stack and are also to be considered according to the aggregation rules. If the calculations of the capacity thresholds are correct, it would be necessary to clarify that unit "KW1" is not included in the Polish TNP, and it should be amended accordingly.

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2.2.3.2. Inconsistency with inclusion of reference plant #27 Reference plant #27 "PGE Górnictwo i Energetyka Konwencjonalna S.A. Oddział Elektrownia Bełchatów" includes the following 6 units: KI, K2, КЗ, К4, К5, К6. The other 6 units of the LCP "Bełchatów" are covered under ref plant #28.

According to the funding project details of the European Bank for Reconstruction and Development (EBRD) "[...]. The new 833 MWe unit will eventually replace the oldest units at Bełchatów (number 1 and 2 by 2015)"ъг

The new plant got permitted based on the required EIA, which explicitly integrates the decommissioning of units 1 and 2, which should be out of operation at the latest by 31st

December 2015.33

The new unit will therefore not add additional new capacity over this period, albeit an overall increase in installed capacity will occur prior to the formal shut down of unit 1-2 in 2016" Further page 3 states "In Bełchatów, the oldest power units (number 1 and 2) will be operated until 31st December 2015, which coincides with the design life of these units. In order to enable operation of these units until this period, they will be upgraded and modernized, including the addition of S02 abatement equipment (partial flue gas desulphurization) to ensure that emission limits, post 2008, are met. After 2015 units number 1 and 2 will be decommissioned and permanently taken out of service

However the Polish TNP approval includes all the 12 units of Bełchatów, which explicitly includes the units K1 and K2 which will explicitly be taken out of operation prior to 31st

December 2015. According to Article 32, eligible combustion plants are only those LCPs that continue operation from 1st January 2016 - 30 June 2020. This is not the case for unit K1 and K2 of ref plant # 27. Further, according to Article 32(3) " Where a plant included in the transitional national plan is closed or no longer falls within the scope of Chapter III, this shall not result in an increase in total annual emissions from the remaining plants covered by the plan. "

Based on the above information, the combustion plants K1 and K2 of reference plant #27 are not eligible for the Polish TNP approval. The undue emission volumes allocated shall be withdrawn from the calculation (of the 2016 and 2019 ceilings).

2.2.3.3 Confirmation in relation to Art 4.4 opt out derogation of reference plant #50 Reference plant #50 Elana Energetyka Sp. z o.o. EC1 - (Kl, K2, K3, K4, K5, K6) is listed in the TNP with a capacity of 184,40 MWth, corresponding to possibly 30,73MWth for each unit. The same LCP is listed in the table of Art 4(4) exceptions under Directive 2001/80/EC, hereafter "opt out derogation", with 4 units of 92MWth each. That could correspond that each of the 4 combustion plants listed in the opt-out derogation consists of an aggregated capacity of 3 units, some of which may have been included in the TNP. We would appreciate if the Commission can confirm that the units K1-K6 in the TNP are not subject to that opt-out derogation.

32 EBRD, Project Summary Documents: Bełchatów II. http://wwvv.ebrd.com/english/pages/proiect/psd/2005/25438· shtml 33 BOT & ELBIS (2005): Construction of 833 MW power unit at BOT Elektrownia Bełchatów SA. Summary of the Environmental Impact Statement (Non-technical summary). http://www.ebrd.com/english/pages/proiect/eia/2543 8e.pdf iman,m шомшм, витли mm, wrnrn шш » mnvmommmr mm «ι сш*т' афяшт»

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2.2.4: Disregard of ambient air quality objectives

It does not appear from the Polish TNP approval that the Commission has assessed on whether the granting of the TNP derogation to any of those 73 combustion plants would negatively affect the attainment of the goals set forth in Directive 2008/50/EC on ambient air quality and cleaner air for Europe34 (herewith the AAQD). The AAQD, with regard to the Sixth Community Environment Action Programme follows the objective to reduce pollution to levels which minimise harmful effects on human health, and the environment. The Polish TNP approval merely states in recital 13 that "The implementation of the TNP should be without prejudice to other applicable national and Union law. In particular, when setting individual permit conditions for the combustion plants covered by the TNP, the Republic of Poland should ensure that compliance with the requirements set out in, inter alia, Directive 2010/75/EU, Directive 2008/50/EC of the European Parliament and of the Council and Directive 2001/81/EC of the European Parliament and of the Council is not jeopardised."

EEB and HEAL think that this assessment should not be limited to the Polish permitting authorities once the TNP is implemented, but should also be taken by the European Commission in light of the TNP approval decision. In fact it is of the responsibility of the European Commission to assess the TNP application and to ensure the EU environmental acquis is safeguarded. According to own statements by the Commission35, you are particularly concerned with cases where non compliance with EU ambient air quality rules has lasted for more than 5 years and is forecast to continue in the future. The Commission refers to a "fresh approach" to "urge Member States with on-going air quality problems to take forward-looking, speedy and effective action to keep the period of non-compliance as short as possible". In the decision of the European Commission on the notification by the Republic of Poland of an exemption from the obligation to apply the limit values for PMIO in nine air quality zones from the 22.03.2011 relating to the AAQD the Commission raised objections to the notification of Poland, stating that "[...] objections should be raised against the exemption from the obligation to apply the daily PM10 limit value in all the zones, and the annual limit value in zones 12.1 and 12.4-9, on the grounds that it has not been demonstrated that compliance with the respective PM10 limit value can be achieved by the expiry of the exemption period on 11 June 2017."36 Several of the concerned zones of this notification are the locations of TNP plants (zones 12.4-6). Poland is listed as one of the top ranking Member States exceeding PM10 limit values of the AAQD in the 2013 report of the European Environment Agency.3 The TNP approval would only delay further emission reductions and compliance with the AAQD.

2.2.4.1 Interrelation of the AAQD objectives and TNP derogation We doubt on whether it is permissible to include certain LCPs in a TNP which are located in areas which are already in breach of ambient air quality limits. The AAQD, in its Chapter III on ambient air quality management, imposes a number of obligations on Member States, inter alia:

- they are required to ensure that, throughout their zones and agglomerations, levels of S02, PM10, lead, and carbon monoxide in ambient air do not exceed the limit values laid down in Annex XI, while, in respect of NOx and benzene, the limit values

34 Key information relating to potential exceedance is missing, in particular for PM10 within the recent Country Factsheets for Greece provided by the European Environment Agency http://vvwvy.eea.europa.eu/themes/air/air-pollution-country-fact-sheets/greece-air-polliitant-emissions-country-factsheet/at download/file 35 http://europa.eu/rapid/Dress-release IP-13-47 en.htm 36 http://ec.europa.eti/enviroiiment/8ir/qtiality/legislation/pdf/pl3 pi.pdf 37 EEA (2013): Air quality in Europe - 2013 report. Page 28-29. http://www.eea.europa.eu/publications/air-auality-in-europe-2013 тпатм нткшш ammu mn ттми inom m ттттштмтт mm m*mum oi tmtmmmmt crnom' огртишь™

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specified in Annex XI to the AAQD are not to be exceeded from the dates specified therein (Article 13).

- they shall take all necessary measures to reduce exposure to PM 2.5 with a view to attaining the national exposure reduction target laid down in Section В of Annex XIV by the year specified therein (Article 15(1))

- they shall take all necessary measures not to ensure that concentrations of PM 2.5 in ambient air do not exceed the target value laid down in Section D of Annex XIV as from the date specified therein (Article 16(1))

- they are required to take all necessary measures to ensure that the target values and long-term objectives are attained (Article 17(1)).

According to Article 23 of the AAQD, where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV of the AAQD. In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children. (Article 23(1) and (2) of the AAQD).

In the light of the provisions of the AAQD, and in particular the provisions already specifically mentioned, it is clear that the Member States are legally obliged to ensure that, generally speaking, air quality limits are not exceeded, and that any breach of said limits require the undertaking of appropriate measures to ensure that in any case a breach is as short as possible. It is important to note that due to there being no catalogue or definition of "appropriate" measures, such measures may include both affirmative measures (i.e. the undertaking of measures whose aim it is to lower pollution) and passive measures (i.e. forbearance from undertaking measures which increase pollution or the abandonment of such measures already in use). The only determining factor concerning said measures is whether, in case of a breach of air quality limits, said measures can effectively remove the breach in shortest time possible, and, additionally, whether the totality of the measures undertaken by a Member State permits it to attain the goals set forth in the entire AAQD (i.e. minimize negative effects on human health), not just in Article 23 of the AAQD. Given that the limit and target values for ambient air quality set in Annex XI and XIV, respectively, are not in line with the WHO air quality guideline values from 2005 and thus do not warrant sufficient protection of human health although the AAQD refers specifically to the WHO guidelines, any exceedance of those limit and target values should be kept to the minimum.

In the light of the above, one may say that if, in the event of an existing breach, a facultative measure of a derogational nature -i.e. the TNP derogation- is adopted or undertaken which leads to an avoidance or delay of a reduction in pollution which would have otherwise resulted from the coming into force of the IED with its ELVs set out in Annex V, such a measure constitutes a violation not just of Article 23 of the AAQD, but of the general goals set forth in the other provisions of the AAQD. Such a measure violates a Member State's obligation to ensure that, throughout their zones and agglomerations, levels of sulphur dioxide, PM10, lead, carbon monoxide, nitrogen dioxide, and benzene in ambient air do not exceed the limit values laid out in the AAQD, or the general provision laid down in Art. 1 that measures should be aimed at "maintaining air quality where it is good and improving it in other cases We provide further information in section 2.2.4.2 and 2.2.4.3 suggesting that the latter is the case. тшгжш штжттм. штллм mm вжти mnomm м vmwmmmimma mm Шктнж »f штттш cai»«· ощтлшт» ĘOtiievĄfd й<с W-iftrlţso 14 I 8-tOOO i Įteigs«« T«ļ. » JJ :| JSļf 5090 fm-, · il 7 Ш 9 Ш99 <rţ-b&r.vb sig Witiiilfi: »»s ŕŕts »fg. äw ;

It is in this context that one must analyze the relationship between the provisions of the AAQD and the relevant provisions of the IED Directive. Besides the general obligation to hold a permit which sets ELVs on the basis of BAT (see section 2.2.2), it is clear from Article 18 that environmental quality standards (EQS) may not be breached. According to Article 18 of the IED, compliance with relevant EQS need to be ensured at all times. In fact, "additional measures shall be included in a permit without prejudice to other measures which may be taken to comply with environmental quality standards The TNP only allows derogation to ELVs mentioned under Annex V of the IED, but not to the other Chapter II requirements, let alone other requirements set pursuant to other EU legislation such as the AAQD. The adoption of the Polish TNP should therefore not constitute a contradiction with required measures to be taken in order to safeguard relevant EQS i.e. not exempt a Member State from the requirement to take all measures necessary in order to ensure that, inter alia, throughout a Member State's zones and agglomerations, levels of sulphur dioxide, PM10, lead, carbon monoxide, nitrogen dioxide, and benzene in ambient air do not exceed the limit values laid out in the AAQD. The air quality plans required in case of exceedance of limit values by Art. 23 of the AAQD have to be reported to the European Commission two years after the exceedance had been observed. In assessing the plans the European Commission weighs the efforts that Member States are undertaking to comply with the AAQD in the future against ongoing infringement of EU law. The AAQD itself specifically states that "Full account will [...] be taken of the ambient air quality objectives provided for in this Directive, where permits are granted for industrial activities pursuant to Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control". As the IED has replaced Directive 2008/1/EC full account should be taken of the AAQD limit values for permits, and thus also for TNPs, under the IED.

The European Commission has to act as the guardian of the Treaties, and in particular ensure that the EU environment and health protection acquis is effectively enforced. Therefore it should not adopt a measure that would run counter to the objectives set under other relevant EU acquis it is supposed to enforce. However by tacitly approving the Polish TNP without assessing the impacts of that decision for the attainment of the objectives set in the other relevant EU acquis, the Commission is providing an ex ante exemption for Poland from the necessity to take all adequate source prevention measures and eventually from taking full account of the AAQD objectives.

In light of this issue, it should be further considered that there is a high number (about a third of the total) of state owned plants included in the Polish TNP approval, and there may be a conflict of interest by the Polish authorities to imposing ambitious measures for pollution prevention/reduction on their companies, which would require significant investments or could force anticipated closure by 2016.

In fact the TNP should not allow Member States authorities to derogate from standard and stricter source control measures for largest point source emitters for specific pollutants which may negatively affect an area which is already in breach of air quality limits pertaining to those pollutants for which a weakening of emission limits is sought for. The BAT used to achieve the IED ELVs set in Annex V part 1 have already passed the "economic feasibility test" in 2006, and numerous assessment studies carried out by the Commission find that the benefits of pollution prevention by far exceeds the costs (compare also below section 2.2.4.4. on external costs to health from modeling of TNP related emissions). We consider this a violation of certain provisions of the AAQD, most notably Article 13 as well as Article 23. The granting of that TNP derogation for the LCP concerned will not ensure тштш ттоштнш шитт дав» втми mmmm m mtvmcmmmm mm »f ьнштша cmmm- cк$жгшш»т

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that a Member State would remove a breach in the shortest time possible, nor does it enable a Member State to ensure compliance with the requirements of the AAQD. It should not be permitted for a Member State to adopt measures which make it impossible to fulfill its obligations arising under EU law, the European Commission should exercise an ex ante scrutiny on this regard.

2.2.4.2 Impact of Polish TNP approval on AAQD objectives (monitoring results) According to our findings38, there is a high probability that the implementation of the Polish TNP approval would endanger the realization of objectives of the AAQD at least throughout the period 2016-2020.

Methodology: The 73 combustion installations were attributed zone codes in accordance to the implementation of the AAQD. For each zone, the status of air quality was assessed in regards to the relevant pollutants affected by the TNP i.e. S02, NOx, PM 2.5 and PM1039 based on official data from the AirBase database of the European Environment Agency.

Results of air quality status of the relevant were differentiated according to 3 classes: class A - concentrations of substance do not exceed the limit values, the target values, values of long-term objectives throughout the zone, class В - concentrations of substance exceed the limit values but do not exceed limit values plus the margin of tolerance throughout the zone, class C - concentrations of substance exceed the limit values plus the margin of tolerance throughout the zone; if the margin of tolerance is not defined - exceed the limit values.

In order to assess the degree of impediment to achieving the objectives of the AAQD, for each category of air quality class an impediment factor value of "n" was assigned for each of the 4 measured pollutants: S02, NOx, PM 2.5 and PM10: Class A = "0" class В = "1", class C _ ff ļ ft

Further, for each pollutant derogated from, an impediment factor of "1" was applied to any of the pollutants concerned (for "dust", the impediment factor would apply to PM2.5 and PM10).

Illustration 1 : a combustion plant which is seeking a TNP derogation for S02, and NOx in an air quality zone where the monitoring results indicate class A for S02 / NOx and class C for PM10 and PM2.5 would have an impediment factor of "2".

Illustration 2: a combustion plant which is seeking a TNP derogation for S02, NOx and dust in an air quality zone where the monitoring results indicate class A for S02 / NOx / PM10 and PM2.5 would have an impediment factor of "0".

According to this simplified classification installations yielding n = 0 would be considered as not posing difficulties in achieving AAQ Directive objectives in the said zone, however it does not take account of long range and transfrontier pollution.

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Results: It appears that 63 out of the 73 combustion plants included in the Polish TNP would hinder (impediment factor 2 or higher1) or jeopardize (impediment factor 1) the achievement of the objectives of the AAQ Directive. This equates to 86% of the installations covered.

The AAQD explicitly states that "it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level40 ". This approach is in line with the polluter prevents and pays principle enshrined in the Treaties.

It is clear from the EE A Air pollution factsheet for Poland of 201341 that energy use and supply are:

1. the largest source for NOx pollution in Poland, with 63% of the total emissions 2. the exclusive source of S 02 pollution in Poland (99%) 3. the largest source for PM 2.5 pollution in Poland, with 73% of the total emissions 4. according to the same report, in Poland there is a huge need to improve the situation of

PM10 concentrations.

The ambient air quality situation in Poland regarding PM10 is the following: - Between 79 and 86% of the urban population in Poland is exposed to ambient levels of PM10 that exceed the EU reference value of 50μg m"3; - Respectively, 30% of the joint rural and urban population are exposed to average levels of PM10 exceeding the annual limit value of 40μg m"3;

Six out of the ten most polluted cities in Europe, in terms of the number of days on which 50μg m"3of РМю are exceeded, are located in Poland. In Krakow, Gliwice and Katowice, for example, the value was exceeded on more than one third of individual days in a year in 2011. The three cities hold installations that are part of the Polish TNP (numbers 8, 44, 45, 60, 62).

- Every year in Poland air pollution is responsible for 403,900 life years lost,42 which is equivalent to about 37,600 lives being shortened. Pollution with primary and secondary particulate matter is affecting the most lives in this regard.

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The objective of the AAQD is to "maintain air quality where it is good and improving it in other cases". In the below cases, improvements are needed.

The installations that rank worst in the assessment = highest air quality impediment factor "3" are the following (those marked in red also are listed on the EEA 2011 top 622 facilities data sheet Revealing the costs of air pollution from industrial facilities in Europe) I Ref pić

5 589 ļ EDF Polska S.A. - Oddział w Rybniku (Kl)

6 17b7 EDF Polska S.A. - Oddział w Rybniku (K5, K6, K8)

7 2356 EDF Polska S.A. - Oddział w Rybniku (K2, K3, K4, K7)

8 378 Tauron Ciepło SA - Zakład Wytwarzania Katowice (KI)

9 283 Tauron Ciepło SA - Zakład Wytwarzania Tychy (KI, K5)

10 1170 Tauron Ciepło S.A. - Zakład Wytwarzania Nowa (KP-1,2,3,4,5)

11 4 Ì8 Tauron Ciepło S.A. - Zakład Wytwarzania Nowa (K6)

12 7241 PGNiG Termika SA - EC Siekierki (Kl, K2, КЗ, К4)

13 20561 PGNiG Termika SA - ЕС Siekierki (K5, К6, К7, К10, Kil, К14, К15, К16)

14 7001 PGNiG Termika SA - ЕС Żerań (K4, К5, KfB*l/2)

15 PGNiG Termika SA - EC Żerań (KfB*l/2, KfA, K9, K10, Kil, K12)

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25 352 į KOGENERACJA SA Elektrociepłownia Wrocław (Kl, KW-3)

26 SUO KOGENERAGA SA Elektrociepłownia Wrocław (K2, КЗ, KW-5)

35 Elektrownia Skawina S.A. (K3, K4)

36 Elektrownia Skawina S.A. (K5, K6, K8, K9, KIO, Kil)

43 340 Elektrociepłownia "Będzin"S.A.(K5, K6, K7)

44 is68<| EDF Polska SA Oddział 1 Kraków (Kl, K2)

45 EDF Polska SA Oddział 1 Kraków (K3, K4)

51 64 Fenice Poland Sp. z.o.o. Ciepłownia FENICE w Kluczach (K6, K7)

52 169 Fenice Poland Sp. z.o.o. Ciepłownia Fenice w Tychach - (KI, K2, K3, K4)

56 207 Fortum Power and Heat Polska Sp. z o.o. Ciepłownia Rejtana (KI, K2, K3, K4, K5)

58 98 KZPP"Koniecpol"S.A-EC (KI, K2, K3)

60 294 PEC Gliwice Sp. z o.o. Ciepłownia Gliwice (KI, K2, K3)

62 86 SFW Energia Sp. z o.o. ZC Gliwice (K2, K3, K4)

72 119 Elektrociepłownia Spółki Energomedia Sp. z o.o. (KI, K2, K3)

73 99 Fabryka Papieru Myszków Sp. z o. o. (KI, K2, K3)

These combustion plants should be withdrawn from the Polish TNP approval, with case by case considerations for the installations <100MWth

The installations that have a high air quality impediment factor "2" are the following (those marked in red also are listed on the EEA 2011 top 622 facilities list)

1 Enea Wytwarzanie S.A. - Elektrownia Kozienice (Bloki nr 1, 2, 3,4, 5, 6, 7, 8)

2 Enea Wytwarzanie S.A. - Elektrownia Kozienice (Bloki nr 9,10)

19 7611 Dalkia Łódź SA Elektrociepłownia EC-3 (KI, K2, K3, K6, K9)

20 411 ! Dalkia Łódź SA Elektrociepłownia EC-3 (K4, K7, K8)

21 852 1 Dalkia Łódź SA Elektrociepłownia EC-4 (K2, K3, K4, K5, K6)

22 Dalkia Łódź SA Elektrociepłownia EC-4 (K7)

40 ENERGA Elektrownie Ostrołęka SA - Elektrownia Ostrołęka В (Kl, K2, КЗ)

41 EC Anwil S.A. (Kl, K2, КЗ)

53 95 Fenice Poland Sp. z.o.o. Ciepłownia Fenice w Rzeszowie (K2, КЗ, К4)

55 68 Ciepłownia Fibris S.A. w Przemyślu (КЗ, K2)

57 International Paper - Kwidzyn S.A. (KWI, KW2, KW3, KW4, KK)

61 51 Ciepłownia nr3 PEC Tarnobrzeg (Kl, K2, КЗ)

65 Grupa Azoty Zakłady azotowe Kędzierzyn S.A. - Elektrociepłownia (K4, K5, K6)

66 Grupa Azoty Zakłady azotowe Kędzierzyn S.A. - Elektrociepłownia (K7, K8, K9)

71 71 Miejskie Przedsiębiorstwo Energetyki Cieplnej w Przemyślu Spółka z o.o. Ciepłownia Zasanie (K2/1, K2/2, КЗ, K4)

These combustion plants should be withdrawn from the Polish TNP approval, with case by case considerations for the installations <100MWth

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The installation that have an air quality impediment factor "1" for a specific harmful pollutant i.e. PM 10 are the following (those marked in red also are listed on the EEA 2011 top 622 facilities list' Ref Plant number Name of operator

Enea Wytwarzanie S.A. - Elektrociepłownia Białystok (K6, K7)

Enea Wytwarzanie S.A. - Elektrociepłownia Białystok (K5, K8)

Dalkia Poznań Zespół Elektrociepłowni S.A. (1K1,1K2, 2K, 3K, KW-1, KW-2)

Grupa Azoty Zakłady Azotowe "Puławy" S.A. (KI, K2, K3, K4, K5)

KOGENERAGA SA Elektrociepłownia Czechnica (Kl, K3)

201 KOGENERAGA SA Elektrociepłownia Czechnica (K2, K4)

PGE Górnictwo i Energetyka Konwencjonalna S.A. Oddział Elektrownia Turów PGE Górnictwo i Energetyka Konwencjonalna S.A. Oddział Zespół Elektrowni Dolna Odra PGE Górnictwo i Energetyka Konwencjonalna S.A. Oddział Zespół Elektrowni Dolna Odra PGE Górnictwo i Energetyka Konwencjonalna S.A. Oddział Zespół Elektrociepłowni Bydgoszcz -, K2, K3, K4

394 Soda Polska Ciech S.A. Zakład Inowrocław (KI, K2, K3, K4)

38 212 Soda Polska Ciech S.A Zakład Janikowo (KI, K2, K3)

39 218 Soda Polska Ciech S.A. Zakład Janikowo (K4, K5)

42 334 EPF Toruń SA - EC1 (Kl, K2)

50 184 Elana Energetyka Sp. z.o.o. EC1 (KI, K2, K3, K4, K5, K6)

59 194 Elektrociepłownia PCC Rokita SA (KI, K2, K8)

63 69 SW-SOLAR Czarna Woda Sp. z o.o. (K2, K3)

SW-SOLAR Czarna Woda Sp. z o.o. - EC Czarnków (KI, K2, K3)

Grupa Azoty Zakłady Chemiczne "Police" S.A. - EC 2 (Kl, K2)

ZE PAK S.A. - Elektrownia Pątnów (KI, K2, K3, K4, K5, K6)

ZE PAK SA- Elektrownia Konin (K85, K86, Kill, K112)

ZE PAK SA- Elektrownia Adamów (KI, K2, K3, K4, K5)

These combustion plants should therefore not receive a derogation for dust / or should otherwise be withdrawn from the Polish TNP approval because of co-benefits of avoided heavy metals emissions.

2.2.4.3 Assessment of those findings in the light of the new WHO guidelines

The AAQD explicitly states that "it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level. Therefore the emissions of harmful air pollutants should be avoided, prevented or reduced and appropriate objectives set for ambient air quality taking into account relevant World Health Organization standards, guidelines and programmes43 " (own highlights added).

It is indeed inappropriate, also in the context of the EU's Year of Air in 2013, and the objectives of the Sixth and Seventh Environmental Action Plans, respectively, to approve through derogations at EU level less strict air quality requirements on key pollutants from the largest point sources. According to the findings of the World Health Organization (WHO)

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such as REYIHAAP and HRAPIE44 there is a strong scientific evidence-based advice on the health aspects of air pollution with regards to prevention of chronic disease and improvements in productivity as well as reduction of health care costs. According to the REVIHAAP report45 "the adverse effects on health of particulate matter (PM) are especially well documented. There is no evidence of a safe level of exposure or a threshold below which no adverse health effects occur. Only a slightly decreasing trend in average concentrations has been observed in countries in the EU over the last decade. Further, pollution from PM "creates a substantial burden of disease, reducing life expectancy by almost 9 months on average in Europe. Since even at relatively low concentrations the burden of air pollution on health is significant, effective management of air quality that aims to achieve WHO Air Quality Guidelines levels is necessary to reduce health risks to a minimum. Exposure to air pollutants is largely beyond the control of individuals and requires action by public authorities at the national, regional and international levels."

The conclusion on PM 2.5 exposure is the following: "The scientific conclusions of the 2005 global update of the WHO air quality guidelines about the evidence for a causal link between PM2.5 and adverse health outcomes in human beings have been confirmed and strengthened and, thus, clearly remain valid. As the evidence base for the association between PM and short-term, as well as long-term, health effects has become much larger and broader, it is important to update the current WHO guidelines for PM. This is particularly important as recent long-term studies show associations between PM and mortality at levels well below the current annual WHO air quality guideline level for PM2.5, which b 10 μg/mЗ." These minimum thresholds should be considered.

Further, the WHO finds that "In the absence of a threshold and in light of linear or supra-linear risk functions, public health benefits will result from any reduction in PM2.5 concentrations, whether or not the current levels are above or below the limit values."

The above finding reinforces the environmental principles of the EU Treaties that "prevention is better than cure". Abatement techniques that would prevent harmful emissions should therefore be implemented without further delay, and especially in zones where limit values for the protection of human health are not being met.

2.2.4.4 Modeling of external health / environment impacts of granting the Polish TNP derogation compared to regular IED Annex V ELV compliance by 2016

Modeling experiments were carried out46 using the state-of-the-art EMEP MSC-W atmospheric chemical-transport model to estimate the implications of the Polish TNP approval, compared with otherwise required compliance with IED emission limits values.

Methodology: Excess emissions enabled by the TNP (in comparison to a scenario of prompt enforcement of IED ELVs) were estimated by taking for each reference combustion plant the difference between annual emissions requested for 2016 and for 2019, and following the reduction pathways from Dec 31, 2016 to Jan 1, 2019 as laid out in Annex 7 of the Polish TNP. Overachievement or earlier compliance was therefore not taken into account.

44 Co-financed by the European Commission 45 Review of evidence on health aspects of air pollution, WHO/Europe 2013 http://www.euro. who.int/en/health-topics/environment-and-hea]th/air-qualitv/publications/2013/review-of-evidence-on-health-ast)ects-of-air-pollution-revihaap-proiect-final-technical-report. 46 by Greenpeace international тят%ж wmotmmm emua «n шитли тштим tst wtmcmmmm mai <мшьт ot cam»' •SiKiWvatli iïe M ï ïMOOfS gīimeH > ï*!,.: ••il ? ÍB9 1090 f»K *33 2 ïUf (»««Ilt -wt-hüitm: xüvvweríj ощ, »»wiseie mi, чи^^.пмт^плт ·,%*%. w»«

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Model runs were carried out for the emissions in 2016 and the difference in air pollution impacts was scaled down for 2017 and 2018. Location data for the installations was obtained from the E-PRTR database. The 2008 meteorological data provided by EMEP was used for the model runs. The 2010 baseline emission inventory was modified to melude at least the amount of annual emissions reported in the Polish TNP for each EMEP grid cell and sector, and the model was run using these modified baseline emissions. The emission reductions resulting from requiring compliance with IED emission limits were then substracted from the baseline emission inventory and the model was run again. The results for ambient PM2.5 concentrations and wet deposition of sulphur were then compared between the two model runs. The runs covered the months of January, April, July and October to represent the whole year while reducing computational requirements.

Estimated excess emissions enabled by the TNP, in tonnes per year for 2016: PMio ΝΟχ SOx

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Results: Modeled increase in annual average PM2.5 concentrations resulting from the TNP in

Ě μg/mЗ

The map shows additional load of PM2.5 across Poland for the TNP scenario compared to prompt enforcement of IED ELVs. It is important to note that the grid cells of the modelling have a size of 50x50kmso that locally high excess PM2.5 concentrations are blurred on the regional scale. Excess pollution would also negatively affect neighboring Member States such as Austria, Czech Republic, Hungary, Slovakia, as well as the eastern part of Germany and the Baltic countries. Even if the difference in PM2.5 concentrations is only of the order of magnitude of some microgram, the difference can already affect compliance with the AAQD. In the end the large number of people exposed to excess pollution determines the height of the health impacts.

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The above findings correspond to the worrying findings of the air quality assessment data of the EEA, indicating many areas where the annual mean values of PM2.5 exceed the WHO guideline value of lC^gm"3 (all data points except for dark green) and the EU target value of 25μgm"3 set by the AAQD (all red data points).

Modeled increase in wet sulphur deposition in 2016 resulting from the Polish TNP, compared with full compliance with the IED emission limits

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The map shows critical deposition loads of sulphur all over Poland, contributing to acid deposition and causing damages to forests and ecosystems in rivers and lakes, in particular located in north-east of Poland (including valuable habitats and protected areas such as the ШНОРШ* ÏJWretCWMtrmt. SŪRIAU ÍR « 8УЯ«ДУ Ш*ОШ Oí ťW WONNWÖTT Ιβεο ef Шям»* ÖrgÄtiMlians grtyifí'ŕ.íiíi (ie WiilestoiJ 14 I S-*000 liyüfti ! T#l.. · 12 3 2Н9 ^090 #4*: ·ΙΙ I 289 ntbifèt'h at g WfrÉSÍsí«; «w« etÖ mĶ, wwWÍBil.W.í'··!, www ůig, »ww šltiįM. íiťí« ¡;.H'ïî »»i П'ИЧ^'"-Г-М s».:«.» : • í »И.Л; ' »yf i ¡..„üaí-t

Białowieża forest). The Polish TNP approval does also negatively affect eco- systems of neighboring Member States such as located in the Baltic countries.

The above findings correspond to the findings of the air quality assessment data of the EEA, on S02 indicating the areas where the annual mean values are considerably exceeding the AAQD limits for vegetation protection.

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The health impacts resulting from the increase in PM2.5 concentrations were evaluated using the CAFE CBA methodology used i.e. for the 2011 EEA report "Revealing the costs of air pollution from industrial facilities in Europe".

Premature deaths avoided in 2016 from the prompt application of IED ELVs compared to the emissions under the Polish TNP

¡logarithmic scaling

Estimated avoided health impacts 2016-2018 if the Polish TNP is rejected and full compliance with the IE ) emission limits is required

Deaths

Cases of chronic

bronchitis Hospital

admissions Lost working days

External costs (2010 euros,

undiscounted) 2060 970 600 2.06 million 4.8 bin EUR

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The above findings demonstrate serious impediment issues with the achievement of the air quality objectives with high external cost burden on EU citizens which are undue from a sound polluter-prevention and pays policy approach. In conjunction with the Treaty obligations providing that Union policy on the environment "shall aim at a high level of protection" and "be based on the [...] principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay" (Article 191 of the TFEU), the Polish TNP approval should be reconsidered.

2.3 Refusal of Polish TNP approval on the basis of the Treaties obligation The TNP is an optional national strategy offered to certain operators in Member States to delay the application of stricter Emission Limit Values for dust, NOx and S02 under certain conditions, which should have normally been complied with since 30 October 2007 according to the Directive 2008/1/EC concerning integrated pollution prevention and control (hereafter "IPPC Directive")47.

The interest of certain operators - in this case a third with majority ownership by the Polish Republic- to have a TNP accepted cannot be regarded as legitimate, since this is about a derogation option left to certain operators and Member States that failed to implement the relevant EU environmental protection acquis by 30 October 2007, as required by the IPPC Directive which provides in its Article 9(4) that Emission Limit Values shall be based on the best available techniques i.e. the Large Combustion Plants Best Available Techniques Reference Document of 200648. It was indeed agreed a decade ago, through an exchange of information organized by the Commission which cost about 5 Million EUR for European Taxpayers on what standards existing plants should operate to, under technically and economically viable conditions. These shortcomings and derogations (the TNP) lead to additional emissions of pollutants which are technically preventable and in total disregard of the polluter-prevention and pays principle, let alone in contradiction with the requirements laid down in the IPPC Directive the Member States were supposed to enforce by 30 October 2007. In fact, according to settled case law of the EC J (First Chamber) of 26 May 2011 in joined cases C-165/09 to C-167/09, Stichting Natuur en Milieu "/"..J the obligation, laid down in the second sentence of Article 9(4) of the IPPC Directive, to see to it that the conditions of the permit contain provisions on the minimisation of long-distance or transboundary pollution and ensure a high level of protection for the environment as a whole, can be interpreted only in the context of the system established by the IPPC Directive itself and in particular of the rule, set out in the first sentence of Article 9(4), under which it is mandatory for the emission limit values to be based on the best available techniques. " (paragraph 67) This rule of BAT based permitting has been further strengthened with the IED. In relation to the above points we would like to remind the Commission that according to Article 3 of the Treaty on the Functioning of the European Union49 (hereafter "TFEU"), the Union shall work for the sustainable development of Europe based on balanced economic growth [...] and a high level of protection and improvement of the quality of the environment. It shall also promote technological advance. Furthermore the Union policy on the environment "shall aim at a high level of protection" and "be based on the [...] principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay" (Article 191 of the TFEU). Supporting these derogations (i.e. the TNPs) in any way is acting against the Union objectives. We call on the Commission to not act in favor of interests of specific national

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operators and the Polish government, which have not taken appropriate enforcement action in the sector as was required. Finally, the Commission should, when reconsidering its position, base its decision on Article 1(2) of the Treaty of the European Union (TEU) which establishes a fundamental EU objective, stating: "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen." (own emphasis added). Article 10(3) further states that "Decisions shall be taken as openly and as closely as possible to the citizenIn the same line, Article 11(2) TEU states that: "The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society". [Article 15.1 TFUE].

In combination with the above considerations and Article 17 of the TFEU, the Commission "shall promote the general interest of the Union and take appropriate initiatives to that end' (own emphasis added). On the above basis the EEB and HEAL would therefore urge the Commission to review its position on the matter and:

- withdraw those combustion plants for which a serious impediment to the achievement of ambient air quality standards is established or highly probable;

- for plants that constitute a lower impediment, conduct an analysis whether air quality plans have been developed in the respective zones, and which prospects these plans show for the quickest possible compliance with AAQD limits. Finally conduct an assessment of the impediment that the TNP application of the local combustion plant(s) pose to the effectiveness of the air quality plan; introduce an explicit review clause to ensure timely compliance with BAT conclusions (i.e. the LCP BREF of 2006 and the revised version);

- amend Article 2 of the Polish TNP approval providing an explicit possibility to the European Commission to either withdraw the TNP at any time when its conditions are no longer fulfilled or if its application may otherwise constitute a prejudice to environmental quality standards;

- provide for an early and effective public participation procedure prior to any approval of a TNP or tacit approval at EU level, also in light of the provisions of the SEA Protocol.

We request the Commission to change its approach on TNP evaluations without delay, and: - as a first step provide for the full disclosure of the remaining information held by other

Member States (e.g. Bulgaria and the Czech Republic). Full transparency and collaboration is a pre-condition to the exercise of the right of participation; and as a second step we encourage the Commission to take a pro-active stance for ensuring that the public does get an early and effective opportunity to participate in the process of TNP assessments by the Commission, also in light of the relevant provisions under the SEA Protocol (precited). finally, review the Polish TNP approval on the above basis and provide for a new procedure subject to pre-consultation with the public prior to any approval / tacit approval.

Thank you in advance for your consideration.

Best regards,

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