What regime governs liability for soil pollution (including the allocation, transfer and limitation of liability)?
The Federal Soil Protection Act regulates the joint and several liability of several parties regardless of their contribution to a suspected soil and groundwater contamination to avoid that the taxpayer must assume such costs (ie, the polluter, current and former site owners under certain conditions, the tenants and, in exceptional cases when the corporate veil has been pierced, the shareholder of the owning company). The authorities can decide which parties to investigate and when to issue a clean-up or sealing order. Site owners are often held liable to ensure efficient and fast remediation (ie, the deep pocket principle). This scope of measures may be limited by:
- the permissible use of the site under planning law (eg, an industrial site does not need to be remediated to the level required for a playground);
- proportionality if the contamination was caused after 1 March 1999; and
- the value of the site after decontamination.
Failure to comply with soil contamination regulations may lead to administrative penalties.
What environmental due diligence measures are recommended before concluding land transactions?
In transactions involving potentially contaminated sites it should be checked whether the relevant authority has already ordered investigations or remediation measures. Further, information from the contaminated land cadastre should be requested and critically assessed or supplemented by historical information (eg, prior uses) and other sources, as it may not be up to date. Finally, leases or other contracts may contain clauses relating to existing or suspected soil contamination.
What remediation and clean-up measures are typically applied and how can remediation costs be recovered?
Remediation relates to the current and permitted use of a site under planning law and aims to prevent hazardous changes to soil conditions. In Germany, various environmental thresholds are regulated by ordinance, which if exceeded trigger the need to perform an investigation or clean-up measures. These thresholds are compiled using environmental guidelines and standards (eg, the Dutch List or site-specific expert opinions). The applicable limits are, therefore, often subject to compromise and agreement with the authorities and made subject to remediation agreements determining measures, objectives and deadlines.
Costs may be recovered from a polluter if a site owner performs the clean-up. Notably, there are specific subsidy schemes in place for old industrial sites in the German Democratic Republic. Finally, there may be existing contractual indemnification claims among private parties, which are regularly used in special protected areas and archaeological priority areas.
How are air emissions regulated? What air quality standards and emission limits apply?
The reduction of air pollution is one of the European Union’s main objectives and it has set directly applicable thresholds for nitrogen oxide and particulate matter (a PM10: 50 µg/m3 daily limit value not to be exceeded more than 35 times per year – a 40 µg/m3 average annual limit value). These thresholds are regulated in Germany via ordinances pertaining to the Federal Emissions Control Act.
What are the consequences of non-compliance with air emissions regulations?
The relevant air emissions thresholds have been exceeded in 66 German cities in recent years and, as a result, the EU Commission has sued Germany in the European Court of Justice. Diesel cars and the failure to control and act against their producers have been identified as major contributing factors in this non-compliance. In addition, a non-governmental organisation has successfully sued several major German cities to oblige them to issue bans on older diesel and petrol vehicles as of 2019. The enforcement of these judgments is still the subject of much controversy.
What rules govern the discharge of wastewater and the protection of water resources?
The Water Management Act requires the sustainable management of bodies of water. The use of water (ie, its withdrawal or discharge) requires a permit and is charged in order to incentivise water conservation. Further, the discharge of wastewater and other substances into bodies of water or sewage systems is heavily regulated. For instance, the Groundwater Regulation specifies criteria to control the amount of nitrates in groundwater. In June 2018 the European Court of Justice condemned Germany due to its failure to reduce groundwater pollution from nitrates.
Another controversial issue for developers of industrial projects and non-governmental organisations is the EU Water Framework Directive (2000/60/EC)’s ‘good status’ standard and the maintenance of water standards. The main issue is whether the quality of groundwater is judged to have deteriorated if only one substance threshold has been exceeded or how to handle already exceeded thresholds. The latter would hinder any new projects in bodies of water that do not meet the required threshold.
What are the consequences of non-compliance with water pollution regulations?
The Water Management Act, the Criminal Code and a number of state laws include a system of measures and penalties. The relevant authorities regularly review permits and may withdraw or alter them as a preventive measure. They can also access business premises, request documents and perform investigations. The authorities may order measures to ensure compliance (eg, the removal of a piping installation without a permit). An operator that has caused damage to a body of water must take the necessary remedial measures and, in the case of discharging substances which adversely affect water quality, may be liable to compensate any damage that arises. In June 2018 a farmer was ordered to pay compensation to the owner of surface water for polluting it with fertiliser from his slurry tank, which resulted in fish mortality. Any party that unlawfully pollutes a body of water or alters its qualities negatively may be criminally liable.