Environmental law states that, in addition to the building permit, production facilities also require, for example, a BImSchG permit, a permit under water law, a permit or suitability determination for a storage permit or an environmental impact assessment.
This means that construction or modification may only be started when a corresponding official "licence" is available. If this licence is not available at the time of commissioning, this may even constitute illegal plant operation under § 324 of the StGB.
However, projects often face a tight schedule and operational resources for permit management are limited. If licensing procedures are discussed in public (discussion meeting), or if unforeseen difficulties arise in the dialogue with the authorities, delays in the project are often pre-programmed. The declared goal is therefore often to accelerate approval procedures.
New installations or projects should therefore be checked at an early stage to see whether they require approval, permission or notification. The project plan should then be checked for its approvability, and it should be discussed with the authority in advance which environmental law requirements (e.g. limit values, technical specifications, initial status report or stack heights) are to be applied and which documents are to be submitted in the official approval procedure. If necessary, it must still be clarified whether a notification under immission control law is likely to be sufficient or whether a concentrative approval procedure must be gone through as a simplified or formal procedure. This requires at least comprehensive and cross-media competences as well as experience in communication with the authorities (application conference), and a project plan must be drawn up and implemented within the set deadlines. This poses a great challenge to the operational experts (if any), especially because delays in deadlines can lead to economic consequences or competitive disadvantages.
With an interdisciplinary team of experienced engineers, scientists, experts and lawyers, we have been supporting smaller and larger companies in licensing and other approval procedures, particularly in the areas of immission control, construction, chemicals, nature conservation and water law, for four decades now. Our clients from almost all sectors benefit from efficient and goal-oriented project work and comprehensive experience in accelerating approval procedures. Our services include:
An operating site for commercial or industrial enterprises is expected to protect established rights, on the one hand, and to enable entrepreneurial growth (safeguarding the business location), on the other. This often proves to be especially difficult for installations subject to licensing under the Bundes-Immissionsschutzgesetz (BImSchG installations), not only in designated areas of mixed use, but also in commercial areas or what is known as the unplanned inner zones (pursuant to section 34 of the Baugesetzbuch (Federal Building Code - BauGB)).
Entrepreneurial growth should frequently also take place through the construction of new production facilities. A wide variety of criteria must then be taken into account in this site search.
This means that companies should engage with planning legislation and neighbourhood protection at an early stage to protect their established rights and to make entrepreneurial growth possible for the future or to find appropriate new sites.
It is more frequently problematic for companies if, due to an amendment of immission control legislation, they become "subject to licensing within the meaning of the BImSchG" or even operate an IE installation or potentially hazardous installation, but are located in an area of mixed use or a commercial area or are surrounded by mixed use such that admissibility criteria pursuant to the Baunutzungsverordnung (German Land Use Ordinance) or BauGB are no longer satisfied. The same applies if residential or spa areas arise, or protected areas are designated, in the neighbourhood. This frequently confronts at least the next generation of entrepreneurs with excessive hurdles to surmount. Hitherto favoured new sites are excluded in the same way if licensability under planning legislation or the necessary distances from protected areas or the neighbourhood are not satisfied.
BfU AG examines and assesses your company's site security, provides early-stage information about changes to legislation and assists you with procedures under BauGB, BImSchG or the Verwaltungsverfahrensgesetz (German Administrative Procedure Act).
We assist you similarly in your search for new production sites and examine the circumstances in terms of building, environmental and nature conservation legislation.
In the context of the licensing of industrial installations pursuant to BImSchG, the question of the extent to which the operation of installations can impact the indirect and direct neighbourhood arises more and more frequently nowadays. The particular focus here is on all kinds of emissions. These can be air pollutant emissions (e.g. arising from incineration processes), noise emissions (e.g. caused by the operation of noise-intensive fans or high traffic volumes due to operational reasons) as well as odour emissions (e.g. in foundries, food-processing or waste-processing plants), nitrogen depositions (from furnaces, power stations) or even light emissions. Neighbourhood complaints or official monitoring frequently raise the question whether the neighbourhood is sufficiently protected against hazards or disadvantages/nuisances.
In order to protect the neighbourhood against hazards, significant disadvantages or significant nuisance levels caused by all kinds of emissions or immissions, legislators have issued guide values in relevant sets of rules (TA Luft (German Technical Instructions on Air Quality Control), TA Lärm (German Technical Instructions on Noise Control), Geruchsimmissions-Richtlinie (Odour Immissions Guideline - GIRL)), which must be adhered to when operating the respective installations. This means that the emissions produced by the installation must be compared with the applicable immission values, which necessitates the use of measuring procedures and EDP-based dispersion models (e.g. AUSTAL) as well as the involvement of experts and assessors.
We have many years' experience in preparing and undertaking relevant expert appraisals on the respective emissions and immissions (dispersion calculations for air pollutants in accordance with TA Luft, noise immission forecasts/noise assessments in accordance with TA Lärm, dispersion calculations for odours in accordance with GIRL).
Our approach with regard to the relevant expert appraisals is based on the following project steps:
We prepare the following expert appraisals in the context of licensing procedures:
The current Hazardous Incidents Ordinance (12th Federal Immission Control Ordinance) results from the so-called Seveso II Directive and aims to ensure the protection of humans and the environment against the consequences of such incidents.
In order to comply with the specifications of the Globally Harmonised System of Classification and Labelling of Chemicals (GHS) or the CLP Regulation, the Seveso II Directive has been revised. The Seveso III Directive, which is now applicable and has been brought into line with the GHS or CLP Regulation, requires several legal bases in Germany, including the 12th Federal Immission Control Ordinance and the Federal Immission Control Act, to be amended.
This has a significant impact, in part, on the continued operation of industrial plants in Germany, as a large number of the affected plants are located in mixed situations (close to sensitive usages). In addition to legal uncertainty, particularly in relation to planning legislation and necessary safety distances, there may be a risk of withdrawal of the operating licence.
The most important amendments to the Seveso III Directive relate to the
As a result of this, companies are advised, particularly in respect of the existence of dangerous substances and mixtures, to review classification as a potentially hazardous operation.
Classification as a potentially hazardous operation depends on the substances and mixtures present in the operating area as well as their maximum quantities. It must be borne in mind here that dangerous substances or mixtures that might only arise as a result of incidents also need to be taken into account. Wastes can also be substances relevant to hazardous incidents (cf. KAS (Commission on Process Safety) 25).
The operators of potentially hazardous plants are obliged to take safety precautions to prevent hazardous incidents from occurring from the outset, to immediately identify any hazardous incidents that arise and to act accordingly as well as to minimise their impact on humans and the environment as far as possible. Depending on the type and size of the substance quantities used in the plant, the obligations of potentially hazardous plants may be extensive.
We will be pleased to assist you by way of the following services:
and in preparing any other required documentation.
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Dr. Frank Heinke
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Companies that discharge exhaust air from production processes or incineration plants and are subject to precautionary limit values under immission control legislation must construct state-of-the-art chimneys or flues for it. Checks need to be performed in licensing procedures or as part of official monitoring to determine whether the requirements on flue heights, exhaust air speeds, distances etc. laid down by immission control legislation have been taken into due consideration. Authorities therefore frequently request expert appraisals to be submitted.
The Technical Instructions on Air Quality Control (TA Luft) formulate requirements on conditions for discharging exhaust gases or exhaust air for installations subject to licensing (installations pursuant to Annex 1 of the 4th Federal Immission Control Ordinance). These requirements stipulate that exhaust gases must be discharged in a manner that guarantees they are dispersed by means of the free air flow. This is mainly achieved through a certain minimum chimney height. The 1st Federal Immission Control Ordinance BImSchV also lays down requirements on chimneys for small furnaces. Special requirements (13th and 17th Federal Immission Control Ordinance) are, of course, in place for large-scale furnaces and waste incineration plants.
Being able to provide the necessary evidence requires technical expertise, application of standards, EDP programs or the involvement of assessors. The assessor must take into account certain minimum requirements, pollutant-specific emission mass flow rates (Q/S values) and, under certain circumstances, the mathematical summary of individual sources/flues or uneven terrains. In doing so, he should also assist the operator in an advisory capacity so as to be able to mitigate requirements through appropriate measures, if required.
Volatile organic compounds (VOCs) are often harmful to health and partly responsible for the creation of "summer smog". In 1999, therefore, the European Union adopted Directive 1999/13/EC (VOC Directive), which has since been transposed into the IE Directive and implemented, in Germany, by means of the Solvent Ordinance (31st Federal Immission Control Ordinance).
The German Solvent Ordinance covers numerous installations or activities, such as coating facilities/paint shops, printing works, paint and glue manufacturers or cleaning plants, and places extensive requirements, particularly in respect of substitution of raw materials, exhaust air purification or the use of reduction plans for limiting VOC content as well as in respect of the regular preparation of solvent management plans.
As even the regulations governing the scope of the German Solvent Ordinance are extremely complex, implementation alternatives are possible and the verification obligations (emissions measurements, solvent management plans) require time and expertise, operators often face a major challenge.
Since the 31st Federal Immission Control Ordinance came into force, we have assisted numerous companies from a wide variety of industries in implementing the German Solvent Ordinance, always aiming to find an economically viable and legally compliant operating solution. We always first examine whether the scope of the Ordinance actually applies and, if so, whether exhaust air purification is actually required. We also assist our customers with communications with authorities, with licensing procedures (Licensing/approval procedures) under environmental legislation), with changes to the law (CertLex) and with the annual preparation of solvent management plans.
Environmental impact and FFH assessments are an important part of environmental protection, as a project's possible consequences for the environment can be identified at an early stage and taken into account in any decision about the project.
Documents/ expert appraisals in respect of the environmental impact (Gesetz über die Umweltverträglichkeitsprüfung (Environmental Impact Assessment Act - UVPG)) or the FFH impact of plans and projects are required by the authorities as part of licensing procedures pursuant, say, to the Federal Immission Control Act. This requires the submission of meaningful documents. Specific features arise in relation to special species protection or in the event of interventions in natural surroundings and landscape.
The environmental impact assessment, which is laid down in the Environmental Impact Assessment Act, is integrated into the approval procedures for industrial installations as well as infrastructure and other projects. It describes how a project can affect protected entities such as human beings (including human health), animals, plants, biological diversity, soil, water, air, climate, landscape, as well as cultural goods.
In the context of an FFH assessment, new plans, projects and intentions that might significantly impair a Natura 2000 area (FFH and EU protected areas for birds) and its protection goals, are assessed in terms of their impact under Art. 6 of the FFH Directive or section 34 of the Bundesnaturschutzgesetz (German Federal Nature Conservation Act).
BfU AG, with its interdisciplinary team of advisers, initially assists its customers in determining the assessment and documentation obligations. The aim here is to present the need for the project and its environmental compatibility and to obviate any issues or fears that the neighbourhood or nature conservation associations may have. Overall, the planned deadline for the granting of the licence or project implementation should not be put at risk. A corresponding strategy and careful preparation, particularly in the case of public licensing procedures, are essential here.
Following implementation of the European Directive on industrial emissions (IED), new requirements are being placed on certain types of installation during operation and as part of licensing and alteration procedures. In the event of the construction of a new IE installation or major alterations to an existing one pursuant to section 16 of the Federal Immission Control Act, the baseline report (also referred to as soil status report) must be prepared for the environmental compartments of soil and groundwater and submitted to the licensing authority as part of the licensing procedure. The legal basis for preparing a baseline report is contained in section 10(1a) of the Federal Immission Control Act. All "IE installations", i.e. installations identified by an "E" in column d of Annex 1 of the 4th Federal Immission Control Ordinance, are affected by this provision.
The status of groundwater and soil is determined in the context of the baseline report (AZB). The obligation to prepare the AZB applies only if relevant hazardous substances are used, created or released in the installation and there is a possibility of the groundwater and soil being polluted by these relevant hazardous substances. Following the subsequent closure of the installation, the BR is used as a yardstick of the obligation to remediate contamination that has occurred as a result of relevant hazardous substances. What is known as a "final status report" is prepared for this purpose after closure of the installation.
This means that specialist expertise in respect of the Federal Immission Control Act (Authorised experts / environmental verifiers) will initially need to be involved, and soil verifiers may subsequently need to be involved, in the licensing procedure (Licensing procedures).
Checks initially need to be performed to determine whether and in what quantities relevant hazardous substances are created, used or released (qualitative and quantitative assessment). The possibility of contamination of soil and groundwater by the relevant hazardous substances that need to be analysed in the AZB owing to their exceeding defined storage or throughput quantities must then be assessed. If the possibility of contamination by relevant hazardous substances can be excluded, no sampling or analysis of soil and groundwater needs to be carried out, which means that there is no obligation to restore the original status under the Federal Immission Control Act and no reporting obligation (baseline report). This is also set out in the guideline issued by the Joint Committee of the German Federal Government and the German Federal States on Soil and Water (Guide for the Baseline Report (AZB)), which has been supplemented by decrees in a number of federal states (e.g. NRW). In a further step, a technical investigation concept would need to be planned and implemented and the original status described as far as possible in quantitative terms (baseline report).
Our services include:
Substances that, as "hazardous", fall within chemicals legislation, hazardous substances legislation, dangerous goods legislation, occupational safety legislation or water legislation are naturally being used in every manufacturing or processing plant. Numerous statutory regulations, which also change on a regular basis, thus affect the company, and it also needs to engage with various monitoring authorities. In-house tasks relate, for example, to hazard assessment, storage subject to licensing, prohibitions on substances, employee instruction, water protection, fire and explosion protection, hazardous incident legislation as well as special legal requirements for certain substance groups (e.g. solvents, coolants, toxic substances and substances hazardous to water).
In addition to the issue of hazardous substances within occupational safety, hazardous substances are also frequently relevant to the environment.
Hazardous substances, in general, are substances or mixtures with one or more hazard characteristics. At European level, chemicals legislation is regulated, in particular, by the REACH Regulation ((EC) No. 1907/2006) and the CLP Regulation ((EC) No. 1272/2008). Hazardous substances need to be allocated to hazard classes and categories according to the level of hazard that they pose and assigned label elements. The label elements include hazard pictogram, signal word, hazard indications (hazard statements) and safety indications (precautionary statements).
With regard to the handling of hazardous substances, numerous regulations from various areas of the law, such as the Gefahrstoffverordnung (Ordinance on Hazardous Substances - GefStoffV) need to be taken into account at national level.
The regulations in respect of the handling and storage of hazardous substances are also relevant with a view to ensuring legally certain operation. For example, the use of substances with certain hazard characteristics may give rise to requirements that are crucial in terms of whether installations require licences.
We will assist you with the identification and in-house implementation of legal requirements concerning the handling and storage of hazardous substances.
Our services include:
Pursuant to the Kreislaufwirtschaftsgesetz (Closed Substance Cycle and Waste Management Act - KrWG), the waste producer is initially responsible for implementing legal requirements, such as the classification of wastes in accordance with the Abfallverzeichnis-Verordnung (Waste Catalogue Ordinance - AVV) and final, environmentally friendly recovery/disposal. In addition to, in part, high disposal costs, recovery potential and sales proceeds are also emerging more and more frequently. However, the differentiation between waste, product and co-product preoccupies lawyers and courts again and again. There are also legal risks in terms of waste avoidance, waste treatment subject to licensing and waste storage. As the waste producer (consignor), you are also affected by requirements arising from dangerous goods legislation.
In addition to direct assignment of installations pursuant to the 4th Federal Immission Control Ordinance based on activity concerning the disposal and recovery of wastes (e.g. waste sorting facilities or composting facilities) or waste facilities that require only a building permit, wastes play a role in terms of the licensing requirement of installations insofar as legally compliant handling of wastes is one of the obligations incumbent upon an operator and hence represents a licensing prerequisite. Legally compliant handling within the meaning of the Federal Immission Control Act means avoiding wastes, recovering unavoidable wastes and disposing of non-recoverable wastes without impairing the welfare of the general public.
The question for those in charge in the company is therefore how to deal with the wastes arising and whether they may perhaps even be avoidable. Changes to the legal framework or switches in production require a regular review and adjustment of the approach to waste in an installation or plant. Apart from the objective of waste avoidance, the challenge remains to dispose of wastes in a flexible, efficient and cost-effective manner.
We assist you in determining whether you require a licence or permit to store, recover or dispose of your wastes and how you can meet your obligations as an operator (particularly verification obligations) with regard to handling wastes. We will be pleased to offer you advice on waste avoidance strategies and the search for market opportunities. Our services include:
Further information about this topic can be found here.
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The raw materials industry, from coal to potash and salt production through to industrial minerals and the quarrying sector, is faced with ever new challenges in the form of both national and European regulations. New laws and ordinances require continual adaptation of production operation, management and business planning.
The raw materials industry as well as the downstream processing industries thus face new requirements in many fields of law, such as immission control, mining legislation, waste legislation, nature conservation legislation, water legislation etc. These have an effect on both licensing procedures and daily operations. The requirements also always have an impact on the business management of companies, e.g. in the form of capital expenditure costs incurred for replacement machinery in the area of exhaust air filter technology, treatment technology, dewatering technology etc. or in the form of provisions in the area of waste legislation and, not least, in the form of costs incurred as a result of implementing nature conservation compensatory measures.
Since 1976, Betreuungsgesellschaft für Umweltfragen Dr. Poppe AG has been providing its customers with support and advice in the above-mentioned thematic areas and beyond. In addition to handling projects, we also keep you informed about current issues of interest to customers.
Operators of installations subject to licensing under the Federal Immission Control Act must always operate their installations in accordance with the state of the art (cf. section 5). The competent authority needs to issue corresponding orders or collateral provisions in relevant licensing procedures and as part of their monitoring. On the other hand, a state-of-the-art installation that does not cause any harmful environmental impacts must not be refused a licence under immission control legislation. However, there is only a partial definition of what "state of the art" is (cf. TA Luft, 31st Federal Immission Control Ordinance). Instead, certain criteria (cf. Annex 1 of the Federal Immission Control Act) and now also the European BAT reference documents and BAT conclusions.
The Federal Immission Control Act (BImSchG) requires that installations subject to licensing be operated according to the state of the art (in relation to the limitation of emissions to the air, water, soil, with regard to process safety and waste disposal as well as other environmental impacts). "State of the art", in the first instance, is an indeterminate legal concept, which is, however, fully verifiable in legal terms. More precise specifications are contained, in part, in the TA Luft and in various ordinances to the Federal Immission Control Act (e.g. emission limit values, chimney heights, operating modes). The granting of an operating licence under the Federal Immission Control Act is also conditional upon compliance with state-of-the-art technology.
Through the IVU Directive and currently through the IED/ IE Directive, the EU is, however, aiming not only to prescribe, but also to implement a uniform state of the art throughout the EU. To this end, BAT conclusions, which are issued from the well-known BAT reference documents by means of the comitology procedure, need to be transposed into national legislation. In addition, in the case of affected IE installations, the IE Directive also requires regular environmental inspections by the authorities, baseline reports and regular reports under section 31 of the Federal Immission Control Act.
In Germany, BAT conclusions are currently being implemented by cancelling the enforcement of relevant provisions in TA Luft so as to enable BAT conclusions and, to a limited extent, BAT reference documents to become directly binding (see also recommendations by the Federal Committee for Air Pollution Control (LAI) in this respect). The amendment of TA Luft is attempting to bring together the relevant provisions regarding the state of the art. Provisions on the energy efficiency of production facilities and provisions on business organisation (environmental management) are new in this regard.
As far as the operator is concerned, this means that he constantly needs to check whether his existing installations are state of the art so as to ensure legally compliant operation. In the case of alterations to installations or new licences, the project needs to be planned so as to ensure licensability.
We assist operators of installations subject to licensing in meeting environmental obligations and in communicating with the authorities, and provide support for projects from the planning stage to licence management through to legally certain operation. We offer you the following assistance, in particular:
We also present best practice with regard to this issue on our homepage.
Requirements on storing and handling substances hazardous to water have previously been laid down in federal state-specific regulations thereon (VAwS). The requirements of the federal state-specific VAwS diverged in a number of points over the course of time, resulting in a wide variety of requirements applying to similar installations or installation types depending on the federal state involved.
To standardize these federal state-specific requirements, a draft of the federal regulation in respect of the handling of substances hazardous to water, known as the AwSV, was prepared by the Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMUB) in 2012 and revised several times through to 2016.
The recent communication of the regulation text of the AwSV in the Federal Law Gazette on 21 April 2017 now requires that the AwSV enter into force on 1 August 2017, with the 16 Länder-specific regulations (VAwS) ceasing to be directly applicable. From this point in time onwards, the requirements of the AwSV must be complied with and implemented!
The AwSV introduces the following reforms, among others:
In addition, the AwSV defines transitional provisions according to which the requirements of the AwSV need to be implemented for existing installations.
Owing to the above-mentioned diversity of the currently applicable federal state-specific provisions for handling substances hazardous to water, it is not possible to provide a blanket assessment and presentation of the new provisions in the AwSV to be complied with. Our recognized experts for installations for handling substances hazardous to water are available to answer any questions that you may have in this respect and will be pleased to assist you with