Further amendments to the law on offshore wind farms

On 29 July 2022, the Act of 7 July 2022 amending the Act on Maritime Safety and the Act on Maritime Areas of the Republic of Poland and Maritime Administration (Journal of Laws of 2022, item 1604) was published in the Journal of Laws. This amendment is another piece of legislation which has been added to the legal framework governing the construction of offshore wind farms and interconnection facilities in the Polish Exclusive Economic Zone of the Baltic Sea, within the meaning of the Act of 17 December 2020 on the Promotion of Electricity Generation in Offshore Wind Farms (i.e. Journal of Laws of 2022, item 1050 as amended) the “Offshore Act”.

The amendments to the Act of 21 March 1991 on Maritime Areas of the Republic of Poland and Maritime Administration (Journal of Laws of 2022, item 457, as amended) do not impose new obligations on investors but merely clarify the procedure for offshore wind farm grid interconnection. The Act’s new wording states that a permit to lay down and maintain export cable will only be issued to entities that have already obtained preliminary interconnection conditions or interconnection conditions, or have concluded a transmission or distribution grid interconnection agreement for the offshore wind farm. Unless at least one of these documents has been obtained, a seabed permit cannot be issued.

Any applications for permits to lay down and maintain export cables which remain pending at the time the Amendment Act enters into force will be governed by the newly adopted law. Thus, an investor will have 30 days from the date of the Act’s entry into force to supplement its application for a permit to lay down and maintain export cable with the missing documents, otherwise the application will be rejected.

This new legislation was adopted in response to a practice which had developed, whereby investors submitted applications for permits to lay down and maintain export cables at a time when no interconnection capacity had been reserved for the offshore wind farm. According to the authors of the amendment, this risked blocking routes for export cables from offshore wind farms  in Polish maritime areas, which are needed by entities that already possess valid wind farm seabed permits.

On the other hand, the new provisions of the Act of 18 August 2011 on Maritime Safety (Journal of Laws 2022, item 515, as amended) will expand supervision over the design, construction and operation of offshore wind farms and interconnection facilities. The current provisions of the Offshore Act require that an offshore wind farm and elements power output units must ensure the following requirements in terms of their design, construction, operation and decommissioning:

1. structural and construction safety in terms of strength, load-bearing capacity and stability;
2. fire safety;
3. operational safety;
4. environmental protection;
5. operating conditions appropriate to the purpose of the various types of equipment and structures or installations included in the offshore wind farm.

According to the new provisions of the Maritime Safety Act, confirmation of compliance with these requirements must be provided in the form of an appropriate certificate from a “recognised organisation”. These certificates should specify the elements of the offshore wind farm or interconnection facilities which are covered by this certificate and the approved requirements. A copy of the certificate must be delivered to the relevant Director of the Maritime Office on the day the certificate is issued.

The particular certificate required depends on the project’s stage of development:

1. Design – Certificate of Design Compliance

• issued after developing the building design, prior to notifying the construction supervision authority of the intended date for commencing construction works;
• confirms that the construction design complies with the technical standards which stipulate the requirements to be met by an offshore wind farm or interconnection facilities;
• issued for an indefinite period of time.

2. Construction – Certificate of Release for Operations

• issued after completing construction of an offshore wind farm, its part, or interconnection facilities, but no later than 30 days prior to the planned date on which the offshore wind farm or part thereof first generates power and delivers it to the grid pursuant to an electricity concession;
• confirms that the construction complies with the building design and the Certificate of Design Compliance. During the construction process, the “recognised organisation” carries out visual inspections, supervises the construction, verifies and inspects the measurements, tests the structure, cable connections and the equipment forming part of the offshore wind farm or interconnection facilities;
• issued for a period not exceeding 5 years.

3. Operation – Certificate of Operational Safety

• issued before the expiry date of the Certificate of Release for Operations, but not earlier than 3 months before the expiry date of that certificate;
• confirms the completeness and accuracy of the documentation regarding the proper maintenance and servicing of an offshore wind farm, or part thereof, or interconnection facilities. Once operations have begun, the “recognised organisation” verifies the documentation regarding the proper maintenance and servicing of the offshore wind farm or interconnection facilities, including documentation regarding any technical inspections of structures and equipment forming part of the offshore wind farm or interconnection facilities, carried out pursuant to relevant technical standards and the organisation’s own regulations;
• issued for a period not exceeding 5 years and requiring renewal not earlier than 3 months prior to its expiry date.

The new provisions are analogous to the Polish law regulating the state’s supervision over the construction and operation of sea-going vessels and offshore oil drilling platforms. The relevant certificate must be issued by a “recognised organisation” which, according to Article 5(17) of the Maritime Safety Act, means an organisation recognised by the European Commission in accordance with European Union law on common rules and standards for ship inspections and survey organisations. Nevertheless, the new provisions stipulate that only those organisations which are authorised by the competent minister for maritime matters will be entitled to conduct the certification process. Such organisations will also be included on a list maintained by the same minister, along with an indication of the scope of their authorisation. The new provisions assume that supervision over the construction and operation of offshore wind farms will be transferred to specialised institutions. Hence, any interested organisation may apply for such authorisation if it:

• is an organisation recognised by the European Commission;
• is accredited according to the PN-EN ISO/IEC 17065 standard or the equivalent Polish Standard which replaces it; and
• has proven experience in assessing technical documentation and supervising the construction, modification or operation of offshore wind farms or complexes of equipment or artificial islands or structures or other equipment and installations located offshore.

The obligation to obtain certificates is another solution aimed at ensuring the safety of the processes involved in constructing and operating offshore wind farms. By way of a reminder, it should be noted that the current provisions of the Offshore Act also require the preparation of: 1) a expert opinion regarding design and 2) an expert opinion on construction. These should confirm, respectively, that the detailed design and the construction process comply with the requirements set out in the Regulation of the Minister of the Climate and Environment of 25 May 2022 on the detailed requirements applicable to elements of equipment used to generate power output and to elements of substations located offshore (Journal of Laws, item 1257), which entered into force on 29 June 2022.

Moreover, the provisions of the Maritime Safety Act expand the catalogue of requirements that apply to offshore wind farms and interconnection facilities, so as to include requirements regarding safety, protection of the marine environment, protection of the state’s maritime border and national defence. These provisions require energy providers to prepare:

1. an expert opinion on navigational matters, to assess the investment’s impact on the safety and efficiency of ship navigation in Polish maritime areas;
2. an expert opinion on technical issues concerning the investment’s impact on Polish maritime areas Al and A2 of the Global Maritime Distress and Safety System (GMDSS) and on the Maritime Search and Rescue Service Operational Communication System;
3. an expert opinion on technical issues concerning the investment’s impact on the National Maritime Safety System;
4. an expert opinion on technical issues concerning the impact of the investment’s equipment on the system of radiolocation imaging, technical observation and maritime radio communication of the Border Guard Service.
5. a rescue plan defining the types of threats to the health and life of personnel involved in the construction, operation and decommissioning of the investment, the methods and procedures to be followed if any of these threats occurs and the human and financial resources provided by the manufacturer to implement this rescue plan;
6. a risk and pollution control plan for the investment.

The provisions of the Act of 7 July 2022 amending the Act on Maritime Safety and the Act on Maritime Areas of the Republic of Poland and Maritime Administration enter into force on 13 August 2022.

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