From 7 July 2015 on every operator of installations subject to licensing according to BImSchG which are within the scope of the Directive 2010/75/EU on industrial emissions (IED) and of which activity involves the use, production and release of relevant hazardous substances so that there is the possibility of soil and groundwater contamination principally shall provide to the competent authority a baseline report with regard to the whole installation in the context of the first application for a license for a major alteration.

 Legal background

  • According to sect. 10 para. 1a BImSchG an applicant, intending to operate an installation which is in the scope of the IED and of which activity involves the use, production and release of relevant hazardous substances, shall submit to the competent authority a baseline report (Ausgangszustandsbericht) if a contamination of soil and groundwater on the site is possible.
  • In principle, a baseline report shall only be submitted to the competent authority in the context of a licensing procedure concerning a license for a major alteration (Änderungsgenehmigung) if the alteration involves the use, production and release of new or additional relevant hazardous substances.
  • This principle, however, is not applicable for “old sites” (i.e. installations which have already been operative on 2 May 2013 and of which activity already involves the use, production or release of relevant hazardous substances) in the context of the first licensing procedure concerning a license for a major alteration. In this respect the operator of the “old site” shall provide a baseline report which takes the whole installation into focus, whether the alteration involves the use, production and release of relevant hazardous substances or not. With regard to this there are two fixed dates within the German law:
    • Concerning installations which are both within the scope of the IED and within the scope of the Directive (2008/1/EC) concerning integrated pollution prevention and control (IVU) the obligation to provide a baseline report is in force since 7 January 2014.
    • Concerning installations which are within the scope of the IED but not within the scope of the IVU the obligation to provide a baseline report will be applicable from 7 July 2015 on; the date of the receipt of application is decisive.

 Consequences / Opportunities for action for operators of IED-installations

  • From 7 July 2015 on operators of „old sites“ of which activity involves the use, production and release of relevant hazardous substances have to check if the respective installation is within the scope of the IED before filing the first application for a license for a major alteration. The installation may be within the scope of the IED due to an amendment of the Ordinance on Installations Subject to Licensing (4. BImSchV), no matter if the operator is aware of that (only the content of the respective license is decisive)
  • If the operator of an IED-installation wants to avoid fulfilling the obligation to provide a baseline report – especially with regard to the respective costs – it is recommendable to check whether the application for a license for a major alteration may be filed before 7 July 2015 or whether it is legally and economically justifiable to free the installation from the “bonds” (e.g. regular supervisions, publishing of reports on the supervision etc.) of the IED.