Environmental protectioni Air quality
The protection of air quality is foremost subject to maturely developed emissions law. Under the BImSchG, the construction and operation of facilities that are particularly likely to cause harmful effects to the environment or otherwise endanger or cause significant disadvantages or significant nuisances to the general public or the neighbourhood, require a specific emission permit. The main criteria determining the permit requirements are the materials used or produced and the functions of the facilities as well as the production volumes. The respective facilities are listed in the Fourth Ordinance Implementing the Federal Emissions Control Act.
The Technical Guidelines on Air Emissions (TA Luft) specify emission values for all relevant airborne pollutants. The TA Luft are currently undergoing revision to adapt standards to the current technical state-of-the-art. It is expected that emission values will decrease owing to European regulations (BAT conclusions), but also as a consequence of the federal government's air pollution control goals under the new 43rd BImSchV of 31 July 2018. The reductions shall apply as of 2020 compared to the year 2005. The federal government is expected to present a first clean air programme on 31 March 2019. Some federal states have also developed guidelines for odour emissions to establish presence of odour nuisances. Standards for odour emissions shall also be incorporated in the revised TA Luft. The competent authority shall periodically monitor air quality (Sections 44 ff., 40 BImSchG), for example, regarding air pollution caused by traffic. In this case, the competent authority may restrict or prohibit the use of motor vehicles.
In the wake of the diesel emissions scandal, discussions on general traffic bans for older diesel cars in German city centres gained momentum. On 1 June 2018, the city of Hamburg decreed the first driving ban for older diesel vehicles on selected streets particularly impacted by high values of nitrogen oxides. Other cities, such as Berlin, Frankfurt and Stuttgart, are currently preparing or have already decided on gradual driving bans as well. The federal government recently decided on a set of measures, including software and hardware updates, as well as replacement strategies to avert further traffic bans, and is also going to determine by way of an amendment of the BImSchG that traffic bans are regularly disproportionate where the concentration of nitrogen dioxide does not exceed an annual average value of 50 mg per m³ (the statutory threshold is 40 mg per m³).
The permit under the BImSchG does not only cover emissions originating from the respective plant but also other public law requirements, in particular under building law (the concentration effect). The permit typically contains collateral clauses and regulations specifying the content of the permit. A modification or alteration of an existing plant must either be notified to the authority or – in case of material alterations – will require a new permit.
If an emitting plant is constructed, altered or operated without the required permit, the competent authority may order the operator to shut down or even demolish the plant. In addition, the operator's misconduct may constitute a criminal offence. If an operator holds a permit but does not comply with the applicable requirements, the competent authority may order remedial measures by way of a subsequent order or may prohibit the operation of the plant. If an operator or owner finally ceases the operation of a plant, he or she is obliged to take necessary measures to return the site to a satisfactory state, for example, by demolishing the installations.ii Water quality
Water quality in Germany is, inter alia, protected by the provisions of the WHG. Under this Act, certain practices with possibly detrimental effects on the natural water resources require permission and are subject to certain provisions. In particular, installations for handling substances hazardous to water must be built and operated in such a manner that no contamination of water or any other detrimental change of its properties is to be feared. Currently, specific technical requirements for such installations, including reporting and safety requirements, are regulated by the Ordinances on Installations for the Handling of Substances Hazardous to Water of the federal states, whereas the obligations of operators are regulated in the Ordinance on Installations for the Handling of Substances Hazardous to Water.
Installations handling substances hazardous to water must be tested and classified with respect to their properties. Substances are classified on the basis of the Administrative Regulation on the Classification of Substances Hazardous to Waters. According to this regulation, there are three water hazard classes (WGK):
- WGK 1: a low hazard;
- WGK 2: a hazard; and
- WGK 3: a severe hazard.
Under German law, a company that handles, stores or uses chemicals and other hazardous substances, in particular, explosive, oxidising, flammable or toxic substances, must comply with certain safety regulations and provide safety measures as stipulated in the above-mentioned ChemG, ChemVerbotsV, GefahrstoffVO, the Technical Rules for Hazardous Substances, the Industrial Safety Ordinance and the Technical Rules for Safety in Work Places.
A company storing hazardous substances must prepare a comprehensive risk assessment determining the necessary occupational safety measures for the working place described. For example, hazardous substances have to be stored in containers that cannot be mistaken for containers containing food regarding the packaging (label, shape). The employer also must appoint a duly qualified responsible person observing compliance with labour safety and protection regulations.
Facilities handling substantial quantities of harmful substances are also subject to the additional requirements of the Ordinance on Hazardous Incidents, including precautions to prevent hazardous incidents and enhanced safety measures as well as notification and reporting obligations. To this end, the Ordinance provides a general concept to prevent major accidents in such areas. The operator must develop an individualised concept, including a safety management system, to prevent major accidents before starting to operate the respective facility. In addition, the operator might be subject to increased duties, for example, to submit a safety report and an alarm and hazard control plan and to fulfil certain information requirements.
The transport of dangerous goods is also subject to special regulations under German law, including the Dangerous Goods Transportation Act and several ordinances. The transport of dangerous goods is generally only permitted if all required safety regulations are fulfilled. A safety adviser must be appointed if a company takes part in the transport of dangerous goods by railroad, aircraft, sea or land vehicles.iv Solid and hazardous waste
German waste law as provided by the KrWG and various ordinances regulates the handling and disposal of waste. According to the KrWG, waste first must be avoided and second must be recycled or recovered or be used to produce energy. Waste that is not recycled must be disposed of in accordance with basic principles of waste management guided by public interest (waste hierarchy). To ensure such disposal, records of proper waste management have to be prepared.
Special regulations apply to the disposal of certain waste substances not covered in the KrWG (e.g., nuclear fuel and radioactive substances or wastewater, which are subject to the national and federal water laws).
Following the nuclear phase-out in Germany by the end of 2022, the final storage of radioactive substances and nuclear fuel is a major challenge. In this regard, the Site Selection Act contains procedural steps for a science-based and transparent search and selection of a suitable site for the safe storage of highly radioactive waste. The selection process shall be completed by the year 2031 and the repository shall be operative by the middle of the century.v Contaminated land
The liability for environmental contamination is mainly governed by the BBodSchG, the BBodSchV and by the federal and state water laws. The BBodSchG particularly applies to harmful soil changes and contaminated sites, such as former waste disposal and industrial sites. Harmful soil changes within the meaning of the BBodSchG are harmful impacts on soil functions that are able to bring about hazards, considerable disadvantages or considerable nuisances for individuals or the general public. This damage may be caused by contamination, but also by a compression or dehydration of the soil. The BBodSchG applies to all currently existing known and (still) unknown and all future harmful soil changes.
The BBodSchG stipulates a general remediation liability irrespective of involvement, fault or knowledge of such contamination. This responsibility applies to:
- the polluter;
- his or her universal legal successor;
- the current and, in the case of a sale after 1 March 1999, the former owner;
- the current occupant of the real property (e.g., the lessee); and
- persons or entities that, under commercial or corporate law, must answer for an entity that owns contaminated real property, or persons or entities that gave up ownership of such properties.
The competent authority may decide which person or entity shall be held liable for remediation measures, subject to the authority's discretion, guided by the consideration of which party will be able to carry out remediation most efficiently. This applies regardless of private law agreements about the responsibility for contamination, as can be found, for example, in lease contracts. To balance potential conflicts resulting from these statutory and administrative principles, the BBodSchG provides for compensation among the several responsible parties if the authority only requested a limited number of parties or only a certain party to carry out the remediation. The obligation to pay compensation and the amount of compensation depend on the extent to which the harmful soil changes or contamination was actually caused primarily by one party or another. By consequence, this provision de facto establishes a restricted 'polluter pays' approach.
As soon as contaminated soil is excavated in the course of construction or remediation works, it no longer falls within the scope of the BBodSchG. Instead, it may qualify as waste pursuant to the KrWG, which may result in additional disposal costs. An administrative provision by the Federal States' Working Group on Waste stipulates six categories on a contaminant-threshold basis for a proper and safe recycling or disposal of landfill. While landfills in categories Z 0, Z 1 and Z 2 may be recycled – subject to restrictions in Z 1 and Z 2 – by means of use for construction works, waste in categories Z 3 to Z 5 may only be disposed of on waste disposal sites. Although these rules are only (legally non-binding) guidelines, they are often used by the respective authorities as the relevant standards.
The Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety has, for quite some time, been preparing an Ordinance on Secondary Construction Materials, which shall establish binding and unified rules for the use of mineral secondary construction materials in Germany. This process was recently picked up again and shall also include a revision of the BBodSchV, which sets out the requirements for soil protection in more detail. The revision will, in particular, address the filling of excavations and open cast mines, pedological site support, harmful soil changes because of erosion by wind and the methodologies for determining the levels of contaminant content. However, only minor and rather consolidating changes are expected regarding the assessment and evaluation of environmental contamination, as well as their cleanup and decontamination.