Polluters beware: it's clean up time

Mark your calendars. According to my calculations, the Wisła will be safe to swim in on December 31, 2015. That is, of course, if it isn't frozen, or alternatively, if global warming hasn't flooded Warsaw. Drinking from the Wisła will take a little longer, but that too will be possible by 2095. Can't find a reasonably priced plot of land suitable for building your dream home on? No problem, just visit your local landfill, buy the adjoining property and wait 10 years. On December 31, 2012, the landfill will look and smell like a vegetable garden. Are my conclusions based upon careful legal analysis? Absolutely. My information comes from the 2002 Regular Report on "Progress Towards Accession" just released by the EU Commission. Is the report based upon careful legal analysis? No comment.
Truth be told, the country has made significant progress in enacting new legislation to protect the environment. Negotiations on the chapter have been provisionally closed. More importantly, many European leaders have accepted as a foregone conclusion that we will join the EU on January 1, 2004, ready or not. The issue facing the legal community, as well as the business community and even the government itself, is how to interpret, let alone implement, these new laws.

One such law that deserves further refinement is the ubiquitous Directive on Integrated Prevention and Pollution Control, a.k.a. the Pollution Law. This imposes formidable emission control limits on certain industries, such as power plants, steel mills, petrochemical plants, agricultural concerns, mining, waste disposal and other heavy industries. Great, I'm all for saving the environment. What could possibly be wrong with making industry more accountable? But, as with most legislation, nothing is as it first appears. Forgive the pun, but the pollution law needs to be cleaned up.
It imposes a requirement on each regulated company to obtain a new "Pollution Permit" by January 1, 2004, the anticipated EU accession date. Those companies that fail to obtain such a permit will be subject to substantial fines and possible closure. The length of time necessary to obtain a permit is expected to take anywhere from six to 12 months. The problem, however, is that no one really knows for sure how long it will take because, as of today, none have been issued. Tick, tick, tick.....

Each company will need to prove it has used the "best available technique" at its disposal to minimise the amount of emissions or discharges into the environment. What, pray tell, is a "best available technique"? It's unclear because nowhere in the legislation is "best available technique" clearly defined. Does it mean that a company must purchase the most expensive equipment available in the world? Probably not, but the term is still somewhat uncertain because the EU's version, and thus the model for Poland's, is similarly vague in defining "best available technique". In EU parlance, "available" means any technique, regardless of its geographic origin, if it is reasonably accessible to the operator. "Best" is defined as being the most effective in achieving a high level of environmental protection. In practice, the different EU member states have had to interpret for themselves the degree and manner in which a "best available technique" is to be judged.
How long will this confusion last? Most likely until 2005 when the EU hopes to adopt industry specific guidelines. In the meantime, it remains to be seen whether the Environment Ministry will adopt a strict or flexible interpretation of what constitutes a "best available technique".
Now, let's return to my calculations. December 31, 2012 is the deadline by which the country has agreed to implement the EU's landfill directive regulating the disposal of non-hazardous waste and seepage from landfills.

December 31, 2015 marks the end of all transition periods by which the government has agreed to comply with absolutely all EU environmental regulations, including urban wastewater treatment and agriculture runoff.
As for drinking from the Wisła in 2095, a leap of faith is necessary, along with some creative mathematics. At a recent meeting I attended on environmental legal issues, one of the panelists, a respected environmental engineer, suggested that the water we fill our jugs with every day from the wells in Warsaw is actually from the Wisła, albeit after completing an 80-year journey from the Wisła through the ground to the springs. Needless to say, some of the other expert panelists took issue with this assertion. In any case, I found his argument plausible. So, according to my calculations, starting at the point in 2015 when the Wisła is declared clean, it will take another 80 years for that "clean" water to reach the springs under Warsaw. Add 80 to 2015, and you come up with 2095. I think I'll stick to bottled water.

Dr. Andrzej Kiedrzyń is a senior attorney at the law firm of Miller, Canfield, Paddock & Stone, leading the firm's environmental law department.