Over the past several months, the Provincial Administrative Court in Kielce and the Provincial Administrative Court in Krakow have issued favourable rulings in cases concerning complaints against decisions determining for clients of the Law Firm who conduct opencast mining operations a variable fee for water services for the drainage of water from six mining plants.
In examining the complaints lodged by the Law Firm’s lawyers acting on behalf of the clients, the Provincial Administrative Courts upheld the allegations raised therein.
In their justifications for the judgments, the Provincial Administrative Courts took the following position:
- the contested decisions were issued without clarifying the facts relevant to the case, in particular, they did not establish the basic premise for determining the water fee, i.e. whether the water discharged from the mining plants is sewage;
- the determination of whether water from mine drainage is sewage must be made taking into account the statutory definition contained in Article 16(61)(e) of the Water Law Act, which states that whenever this Act refers to sewage, it means water discharged into water or soil from the drainage of mining plants, with the exception of water injected into the rock mass, if the types and quantities of substances contained in the water injected into the rock mass are identical to the types and quantities of substances contained in the water extracted, excluding unpolluted water from the drainage of mining plants,
- The courts shared the line of jurisprudence expressed, inter alia, in the judgment of the Supreme Administrative Court of 16 December 2021, ref. no. III OSK 575/21, according to which the concept of ‘unpolluted water’ covers not only water that is originally unpolluted, but also purified water, and found that the authorities had violated Article 16(61)(e) of the Water Law by misinterpreting that provision,
- the mere fact that a decision granting a permit for the discharge of wastewater remains in legal circulation does not automatically mean that there are grounds for imposing a fee for the discharge of wastewater,
- classifying mining activities as projects that may have a significant impact on the environment in the light of § 2(1)(27) of the Regulation of the Council of Ministers of 10 September 2019 on projects that may have a significant impact on the environment does not result in an assessment of the actual quality of the discharged water,
- assessing whether certain waters can be considered wastewater requires making appropriate factual findings, and above all, determining the actual (real) quality of the wastewater.
Further cases concerning similar issues are pending, in which we also expect favourable outcomes.