Home » Fields of Law » Public » Environmental » Federal Immission Control Act (Bundes-Immisionsschutzgesetz, BImSchG) – Excerpts

Federal Immission Control Act (Bundes-Immisionsschutzgesetz, BImSchG) – Excerpts

Long title: Act on the Prevention of Harmful Effects on the Environment caused by Air Pollution, Noise, Vibration and Similar Phenomena (Gesetz zum Schutz vor schädlichen Umwelteinwirkungen durch Luftverunreinigungen, Geräuschen, erschütterungen und ähnliche Vorgänge)

As amended and promulgated on 14 May 1990 (Federal Law Gazette I. p. 880), as last amended by Article 1 of the Act of 3 May 2000 (Federal Law Gazette I. p. 632)

Translation provided by Inter Nationes and reproduced with kind permission.


Table of Contents

Part One General Provisions

Article 1 Purpose of the Act
Article 2 Scope of the Act
Article 3 Definitions

Part Two Establishment and Operation of Installations

Section I Installations Subject to Licensing

Article 4 Licensing
Article 5 Obligations of Operators of Installations Subject to Licensing
Article 6 Prerequisites for Licensing
Article 7 Ordinances Governing the Requirements for Installations Subject to Licensing
Article 8 Partial Licence
Article 8a Licence for Premature Beginning
Article 9 Preliminary Decision
Article 10 Licensing Procedure
Article 11 Objections by Third Parties in the Case of Partial Licences and Preliminary Decisions
Article 12 Collateral Licensing Provisions
Article 13 Licence and Other Official Decisions
Article 14 Exclusion of Claims under Civil Law to Protection against Abridgement of Legal Rights
Article 14a Simplified Filing of a Complaint
Article 15 Alterations to Installations Subject to Licensing
Article 16 Material Alterations to Installations Subject to Licensing
Article 17 Subsequent Orders
Article 18 Expiry of the Licence
Article 19 Simplified Procedure
Article 20 Prohibition, Closure and Dismantling
Article 21 Revocation of the Licence

Section II Installations not Subject to Licensing

Article 22 Obligations of Operators of Installations not Subject to Licensing
Article 23 Requirements Concerning the Establishment, Nature and Operation of Installations not Subject to Licensing
Article 24 Orders on a Case-to-Case Basis
Article 25 Prohibition

Section III Determination of Emissions and Immissions, Safety Checks, Installations Safety Commission

Article 26 Measurements for Special Reasons
Article 27 Emission Declaration
Article 28 Initial and Recurrent Measurements in the Case of Installations Subject to Licensing
Article 29 Continuous Measurements
Article 29a Orders Regarding Safety Checks
Article 30 Costs of Measurements and Safety Checks
Article 31 Information regarding Emissions and Immissions Established
Article 31a Installations Safety Commission

Part Three Nature of Installations, Substances, Products, Fuels and Lubricants

Article 32 Nature of Installations
Article 33 Design approval
Article 34 Nature of Fuels and Lubricants
Article 35 Nature of Substances and Products
Article 36 Exports
Article 37 Implementation of Intergovernmental Agreements and of Decisions of the European Communities

Part Four Nature and Operation of Vehicles and Craft, Construction of and Alterations to Roads and Railtracks

Article 38 Nature and Operation of Vehicles and Craft
Article 39 Implementation of Intergovernmental Agreements and of Decisions of the European Communities
Article 40 Traffic Restrictions
Article 41 Roads and Railways
Article 42 Compensation for Sound-Proofing Measures
Article 43 Ordinance Issued by the Federal Government

Part Five Monitoring of Air Pollution in the Territory of the Federal Republic of Germany, Clean Air Plans and Noise Abatement Plans

Article 44 Areas Subject to Investigation
Article 45 Measuring and Evaluation Methods
Article 46 Emission inventory
Article 47 Clean Air Plans
Article 47a Noise Abatement Plans

Part Six Joint Provisions

Article 48 Administrative Regulations
Article 48a Implementation of Decisions of the European Communities
Article 49 Protection of Specific Areas
Article 50 Planning
Article 51 Hearing of the Parties Concerned
Article 51a Hazardous Incident Commission
Article 51b Ensuring Reception of Delivered Information
Article 52 Supervision
Article 52a Obligation to Furnish Information on the Organisation of the Enterprise
Article 53 Appointment of an Immission Control Officer
Article 54 Duties
Article 55 Operator’s Obligations
Article 56 Opinion on Operator’s Decisions
Article 57 Right of Submission
Article 58 Non-discrimination, Protection against Dismissal
Article 58a Appointment of a Hazardous Incident Officer
Article 58b Duties of the Hazardous Incident Officer
Article 58c Operator’s Obligations and Rights towards the Hazardous Incident Officer
Article 58d Non-discrimination of the Hazardous Incident Officer, Protection against Dismissal
Article 59 Jurisdiction for Installations Serving National Defence Purposes
Article 60 Exemptions for Installations Serving National Defence Purposes
Article 61 Report of the Federal Government
Article 62 Administrative Offences


Part I General Provisions

Article 1 Purpose of the Act

It is the purpose of this Act to protect human beings, animals and plants, the soil, water, the atmosphere as well as cultural assets and other material goods against harmful effects on the environment and, to the extent that this concerns installations subject to licensing, also from hazards, considerable disadvantages and considerable nuisance caused in any other way, and to take precautions against the emergence of any such harmful effects on the environment.

Article 2 Scope of the Act

(1) The provisions of this Act shall apply to

1. the establishment and operation of installations,

2. the production, marketing and importation of installations, fuels, substances and products made of any such substances, in conformity with Articles 32 to 37 hereof,

3. the nature, equipment, operation and testing of motor vehicles including their trailers, and of railborne vehicles, aircraft and watercraft as well as floating bodies and floating installations, in conformity with Articles 38 to 40 hereof, and

4. the construction of public roads as well as railways, magnetic suspension railways and tramways, in conformity with Articles 41 to 43 hereof.

(2) The provisions of this Act shall not apply to airports, nor shall they apply to installations, equipment, fittings or nuclear fuels or other radioactive substances falling under the provisions of the Atomic Energy Act or any statutory ordinance issued thereunder, to the extent that this concerns the protection from the hazards of nuclear energy or from the harmful effects of ionising radiation. Furthermore, they shall not be applicable if provision has otherwise been made in any water regulations issued by the Federal and Länder governments for the purpose of water protection.

Article 3 Definitions

(1) Harmful effects on the environment as used herein shall be immissions which, according to their nature, extent or duration, are liable to cause hazards, considerable disadvantages or considerable nuisance to the general public or the neighbourhood.

(2) Immissions as used herein shall be air pollution, noise, vibration, light, heat, radiation and similar effects on the environment which affect human beings, animals and plants, the soil, the water, the atmosphere as well as cultural assets and other material goods.

(3) Emissions as used herein shall be air pollution, noise, vibration, light, heat, radiation and similar phenomena originating from an installation.

(4) Air pollution as used herein shall be a change in the natural composition of the air, especially through smoke, soot, dust, gases, aerosols, steam or odorous substances.

(5) Installations as used herein shall be

1. operating plants and other stationary facilities,

2. machines, equipment and other non-stationary technical facilities, as well as vehicles and craft unless these are subject to the provisions of Article 38 hereunder, and

3. premises used to store or deposit materials or to carry out work which might cause emissions, except routes used for public communication.

(5a) Operational area…

(6) State of the art as used herein shall mean the state of development of advanced processes, facilities or modes of operation which is deemed to indicate the practical suitability of a particular technique for restricting emission levels. When determining the state of the art, special consideration shall be given to comparable processes, facilities or modes of operation that have been successfully proven in practical operation.

(7) Manufacture, processing or any other treatment shall be deemed to be production as used herein; any other conveyance into the jurisdiction of this Act shall be deemed to be import as used herein.

Part II Establishment and Operation of Installations

Section I Installations Subject to Licensing

Article 4 Licensing

(1) The establishment and operation of installations which, on account of their nature or their operation, are particularly liable to cause harmful effects on the environment or otherwise endanger or cause considerable disadvantages or considerable nuisance to the general public or the neighbourhood, as well as the establishment and operation of stationary waste disposal plants designed to store or treat wastes, shall be subject to licensing. With the exception of waste disposal plants, installations which do not serve commercial purposes and are not used within the framework of business undertakings shall not be subject to licensing unless they are particularly liable to cause harmful effects on the environment through air pollution or noise. After hearing the parties concerned (Article 51), the Federal Government shall designate by statutory ordinance, with the consent of the Bundesrat, those installations which require licensing (installations subject to licensing); the statutory ordinance may also provide that licensing is not required if the entire installation or essential parts thereof specified in the statutory ordinance are approved with regard to the construction type and are constructed and operated in accordance with the construction type approval.

Article 5 Obligations of Operators of Installations Subject to Licensing

(1) Installations subject to licensing shall be established and operated in such a way that

1. this does not involve harmful effects on the environment or other hazards, considerable disadvantages and considerable nuisance to the general public and the neighbourhood,

2. precautions are taken to prevent harmful effects on the environment, in particular by such emission control measures as are appropriate according to the state of the art.

3. waste is avoided, unless provision is made for its orderly and safe re-use and recycling or, if such avoidance and re-use or recycling is technically not feasible or not reasonable, is disposed of without impairing the public welfare, and

4. any waste heat generated is utilised within any of the operator’s own installations or made available to third parties who have declared their willingness to accept delivery of such heat, to the extent this is technically feasible and reasonable in view of the type and location of such installations and is compatible with the obligations defined in subparas 1 to 3 above.

(2) After hearing the parties concerned (Article 51), the Federal Government shall designate by ordinance, with the consent of the Bundesrat, those installations which might produce utilisable heat in significant quantities and which, according to the requirements to be particularised in such ordinance, shall be established and operated in conformity with para. 1 subpara. 4 above.

(3) The installations needing approval shall be set up, operated and shut down so that even after the cessation of operation

1. no harmful effects on the environment or any other hazards, considerable disadvantages and considerable nuisance to the general public and the neighbourhood may be caused by such installation or the surrounding premises, and

2. provision is made for an orderly and safe re-use and recycling of any waste left over or the disposal thereof without impairing the public welfare.

Article 6 Prerequisites for Licensing

(1) A licence shall be granted provided that

1. it is ensured that the obligations arising from Article 5 hereof and from any ordinance issued under Article 7 hereof will be complied with, and

2. the establishment and operation of such installation does not conflict with any other provisions under public law and labour protection concerns.

(2) In the case of installations that serve different means of operation or in which different substances are used (multi-purpose or multi-substance installations), the licence shall cover different means of operation and substances upon request if the conditions pursuant to para. 1 have been met for all means of operation and substances recorded.

Article 7 Ordinances Governing the Requirements for Installations
Subject to Licensing

(1) The Federal Government is authorised, after hearing the parties concerned (Article 51), to provide by ordinance, with the consent of the Bundesrat, that the establishment, nature, operation, condition after cessation of operation and supervision on the operator’s part of installations subject to licensing shall satisfy specific requirements in order to comply with the obligations ensuing from Article 5 hereof, which means, in particular, that

1. such installations shall meet specific technical requirements,

2. any emissions released from such installations shall not exceed specific limits,

3. the operators of any such installation shall take measurements, or have measurements taken, of emissions and immissions using methods to be particularised in such ordinance, and

4. the operators of such installations shall provide for specific safety checks, as well as specific audits of safety-related documents to be carried out by an expert in conformity with Article 29a hereof and according to a procedure to be particularised in such ordinance, i.e.

a) during the establishment or else prior to the start-up of the installation,

b) following such start-up or any alteration as defined in Article 15 or Article 16 hereof,

c) at regular intervals, or

d) at the time of or after cessation of operation,

insofar as these inspections are not laid down in statutory ordinances pursuant to Article 11 of the Act on the Safety of Appliances (Gerätesicherheitsgesetz).

(2) It may be provided in the ordinance to which degree the requirements stipulated in para. 1 above as a precaution against harmful effects on the environment shall be met at the end of specified transitional periods, in so far as less exacting requirements had been set forth in a provisional decision or a licence at the time of entry into force of such ordinance. When fixing the duration of such transitional periods and any such requirements, special attention shall be paid to the nature, volume and hazardousness of the emissions originating from such installations as well as the useful life and the characteristic technical features thereof. The first and second sentences shall apply mutatis mutandis to installations, which require notification under Article 67, para. 2 hereof or which, before the entry into force of this Act, had to be notified under Article 16, para. 4 of the Industrial Code (Gewerbeordnung).

(3) To the extent that such ordinance sets forth specific requirements pursuant to Article 5, para. 1, subpara 2 hereof, permission may be given therein, with respect to such installations as are specified in para. 2 above, for a deviation to be made from the requirements specified in paras 1 and 2 above as a precaution against harmful effects on the environment. This shall apply only if technical measures taken within the operator’s plants or third parties’ plants result in an overall reduction of emission levels for the same substances or substances having a comparable impact on the environment which is substantially higher than any such reduction achieved by the observance of the requirements set on the basis of paras 1 and 2, thus contributing to the achievement of the purpose referred to in Article 1 hereof. It may furthermore be stipulated in such ordinance whether and to which extent, for the purpose of performing intergovernmental agreements with states adjoining the Federal Republic of Germany, the second sentence above shall equally apply to any such technical measures taken within installations located in such adjoining states.

(4) In order to implement binding decisions of the European Communities, the Federal Government may, in order to achieve the purpose referred to in Article 1, prescribe by ordinance, with the consent of the Bundesrat, specific requirements regarding the establishment, nature and operation, cessation of operation and supervision on the operator’s part of installations subject to licensing.

(5) As far as the requirements specified in para. 1, subparas 1 to 4, also in conjunction with para. 4, are concerned, reference may be made to generally accessible publications by expert agencies; in this respect

1. the ordinance shall indicate the date of such publication and full particulars of the source reference thereof,

2. such publication shall be lodged in the archives of the German Patents Office for safe custody and reference thereto be made in the ordinance.

Article 8 Partial Licence

Article 8a Licence for Premature Beginning

Article 9 Preliminary Decision

Article 10 Licensing Procedure

Article 11 Objections by Third Parties in the Case of Partial Licences and Preliminary Decisions

Article 12 Collateral Licensing Provisions

Article 13 Licence and Other Official Decisions

Article 14 Exclusion of Claims under Civil Law to Protection against Abridgement of Legal Rights

Nobody shall have the right to request cessation of operation in an installation on the basis of claims under civil law, not based on specific titles, to protection against the detrimental impacts which any piece of land may have upon neighbouring premises, to the extent that licensing of such installation has become final; it may only be possible to insist on such precautionary measures as are necessary to prevent such detrimental impacts. If such measures are technically not feasible according to the state of the art or economically unviable, compensation may only be claimed for the actual damage suffered.

Article 14a Simplified Filing of a Complaint

Article 15 Alterations to Installations Subject to Licensing

Article 16 Material Alterations to Installations Subject to Licensing

Article 17 Subsequent Orders

Article 18 Expiry of the Licence

Article 19 Simplified Procedure

Article 20 Prohibition, Closure and Dismantling

Article 21 Revocation of the Licence

Section II Installations not Subject to Licensing

Article 22 Obligations of Operators of Installations not Subject to Licensing

(1) Installations not subject to licensing shall be established and operated in such a way that

1. harmful effects on the environment which are avoidable according to the state of the art are prevented,

2. harmful effects on the environment which are unavoidable according to the state of the art are kept to a minimum, and

3. wastes produced during the operation of such installations can be duly disposed of.

The Federal Government shall be empowered, after hearing the parties concerned (Article 51), to determine, by means of a statutory ordinance agreed in conjunction with the Bundesrat, those installations for which the requirements of Article 5, para. 1, subpara. 3 shall apply accordingly on the basis of the type and quantity of all the waste or the individual types of waste produced. As regards installations which do not serve commercial purposes and are not used within the framework of business undertakings, the obligation referred to in the first sentence above shall only apply to the extent that such obligation is directed to the prevention or restriction of harmful effects on the environment through air pollution or noise.

(2) Nothing herein contained shall affect any other legal provisions under public law.

Article 23 Requirements Concerning the Establishment, Nature and Operation of Installations not Subject to Licensing

(1) The Federal Government is authorised, after hearing the parties concerned (Article 51), to provide by ordinance, with the consent of the Bundesrat, that the establishment, nature and operation of installations not subject to licensing satisfies specific requirements with a view to protecting the general public and the neighbourhood from harmful effects on the environment… as well as taking precautions against such harmful effects on the environment, which means in particular that

1. such installations shall meet specific technical requirements,

2. the emissions released from such installations shall not exceed specified limits, and

3. the operators of such installations shall take measurements of emissions and immissions using procedures to be particularised in such ordinance, or have such measurements taken by an agency also to be specified in such ordinance,

4. the operators of specific installations shall inform the responsible authority of the commissioning or a alteration to the installation without undue delay that may be important for the fulfilment of the duties prescribed in the statutory ordinance,

4a …

5. specific installations may only be operated after the certification from an expert nominated publicly by the authority responsible under Land law has been submitted stating that the installation meets the requirements of the statutory ordinance or of a construction type approval pursuant to Article 33.

In the statutory ordinance under sentence 1 also the requirements may be defined that experts have to satisfy with regard to their knowledge of the subject, reliability and technical equipment. As for the requirements referred to in the first sentence, subparas 1 to 3 above, Article 7, para. 5 hereof shall apply mutatis mutandis.

(1a) For certain installations not subject to licensing requirements, a statutory ordinance pursuant to para. 1 may prescribe that a procedure to grant a licence pursuant to Article 4 para. 1 sentence 1 in conjunction with Article 6 shall be carried out upon the request of the project sponsor. In the event of an application pursuant to the first sentence above the applicable provisions for installations requiring a licence shall be used for the installation concerned instead of the provisions for installations not subject to licensing requirements. Article 19 paras 2 and 3 shall apply to the procedure mutatis mutandis.

Article 24 Orders on a Case-to-Case Basis

Article 25 Prohibition

Section III Determination of Emissions and Immissions, Safety Checks, Installations Safety Commission

Article 26 Measurements for Special Reasons

The competent authority may order that the operator of an installation subject to licensing or, in so far as Article 22 hereof is applicable, of an installation not subject to licensing shall have the nature and type of the emissions released from such installation and the immissions occurring within the sphere of influence of such installation determined by one of the agencies designated by the authority responsible under Land law if it is to be feared that harmful effects on the environment may be caused by such installation. The competent authority is authorised to specify details regarding the type and extent of the measurements to be made and regarding the presentation of the results thereof.

Article 27 Emission Declaration

(1) The operator of an installation subject to licensing shall be liable to provide the competent authority, within a period to be fixed by such authority or on the date which has been fixed in the ordinance issued pursuant to para. 4 below, with information on the type and volume and the spatial and temporal distribution of air pollution emitted from such installation within a specified period, including the conditions governing such emission (emission declaration); he shall update the emission declaration at regular intervals of two years each. Article 52, para. 5 hereof shall apply mutatis mutandis. The first sentence above shall not be applicable to operators of installations emitting only insignificant quantities of air pollutants.

(2) Articles 93, 97, 105, para. 1, Article 111, para. 5, in conjunction with Article 105, para. 1 and Article 116, para. 1 of the Fiscal Code (Abgabenordnung) shall not be applicable to the information and documents obtained pursuant to para. 1 above. This shall not apply to the extent the tax authorities need such information for the institution of proceedings on the ground of a fiscal offence and tax assessment proceedings ensuing therefrom for the prosecution of which there exists a compelling public interest, or to the extent that this concerns wilfully false information by the person liable to furnish such information or by any other person acting on his behalf.

(3) It shall not be allowed to publish details of the emission declaration if these could be used to draw conclusions concerning trade or business secrets. When submitting the emission declaration, the operator shall contact the competent authority and specify which of the detailed information contained in the emission declaration are deemed to enable such conclusions to be drawn.

Article 28 Initial and Recurrent Measurements in the Case of Installations Subject to Licensing

Article 29 Continuous Measurements

Article 29a Orders Regarding Safety Checks

Article 30 Costs of Measurements and Safety Checks

Article 31 Information regarding Emissions and Immissions Established

Article 31a Installations Safety Commission

Part III Nature of Installations, Substances, Products, Fuels and Lubricants

Article 32 Nature of Installations

(1) The Federal Government is authorised, after hearing the parties concerned (Article 51), to provide by ordinance, with the consent of the Bundesrat, that series-produced parts of operating plants and of other stationary installations, as well as the installations referred to in Article 3, para. 5, subpara. 2 hereof, including series-produced parts thereof, shall not be placed on the market or imported, be it commercially or within the framework of business undertakings, unless they satisfy specific requirements with a view to affording protection against harmful effects on the environment through air pollution, noise or vibration. It may be expressly provided in such ordinance referred to in the first sentence above that

1. the emissions released from such installations or series-produced parts thereof shall not exceed specified emission values,

2. such installations or series-produced parts thereof shall comply with specified technical requirements for the control of emissions.

The emission values referred to in the second sentence, subpara. 1 above may also be fixed for some future date after the entry into force of such ordinance taking into account the latest technical developments. As for the requirements specified in the first, second and third sentences above, Article 7, para. 5 hereof shall apply mutatis mutandis.

(2) It may furthermore be provided by ordinance that any such installations or series-produced parts thereof shall not be placed on the market or imported, be it commercially or within the framework of business undertakings, unless they carry a mark indicating the amount of emissions caused thereby.

Article 33 Design approval

Article 34 Nature of Fuels and Lubricants

(1) The Federal Government is authorised, after hearing the parties concerned (Article 51), to provide by ordinance, with the consent of the Bundesrat, that fuels, lubricants or any additives thereto shall not be produced, placed on the market or imported, be it commercially or within the framework of business undertakings, unless they satisfy specific requirements with a view to affording protection against harmful effects on the environment through air pollution. It may be specifically provided in such ordinance referred to in the first sentence above that

1. natural constituents of fuels or lubricants or any additives thereto as defined in the first sentence above which, in case of normal use of such fuels, lubricants or additives thereto for the intended purpose, are deemed to give rise to air pollution or obstruct measures aimed at combatting air pollution shall not be added nor shall they exceed a specific maximum content,

1a. additives to fuels or lubricants shall not contain any specific substances which are deemed to give rise to air pollution or obstruct measures aimed at combatting air pollution or shall contain special compositions thereof only,

2. fuels or lubricants as defined in the first sentence above shall contain specific additives which help limit the formation of air pollutants,

3. fuels, lubricants or any additives thereto as defined in the first sentence above shall undergo a special treatment which helps limit the formation of air pollutants,

4. whoever produces or imports liquid fuels, lubricants or any additives thereto or in any other way conveys them into area of the jurisdiction of this Act, be it commercially or within the framework of business undertakings, shall notify the competent supreme Federal authority of

a) any additives to such liquid fuels or lubricants that are composed of chemical elements other than carbon, hydrogen and oxygen, and

b) any details still to be particularised of the type and quantity used of such additives and any combustion products thereof as well as the potentially harmful effects thereof on the environment.

Such requirements as are referred to in the second sentence above may also be fixed for some future date after the entry into force of such ordinances, taking into account the latest technical developments. As for the requirements specified in the first, second and third sentences above, Article 7, para. 5 hereof shall apply mutatis mutandis.

(2) The Federal Government is authorised to provide by ordinance, with the consent of the Bundesrat,

1. that for imports of fuels, lubricants or any additives thereto which are the subject of any such requirements as are specified in para. 1, first sentence above, a written statement by the manufacturer indicating the nature of such fuels, lubricants or additives thereto shall be submitted to the customs authorities, then carried along during conveyance until the consignment has reached its first place of destination and kept available at such place of destination until such consignment is dispatched therefrom,

2. that the importer shall file the written statement with his business records,

3. which information regarding the nature of such fuels, lubricants or additives shall be given in the written statement,

4. that any fuels, lubricants or additives thereto, referred to in para. 1, first sentence above, when conveyed into the area of jurisdiction of this Act, except for customs exclaves, shall be notified by the importer, upon being conveyed, to the competent authorities at the place of destination,

5. that in case of storage of any such fuels, lubricants or additives thereto referred to in para. 1, first sentence above, tank voucher registers shall be kept indicating the suppliers of any such fuels, lubricants or additives thereto referred to in para. 1, first sentence above,

6. that whoever sells any such substances or additives thereto referred to in para. 1, first sentence above to consumers, be it commercially or within the framework of business undertakings, shall mark such items in a clearly visible and easily readable manner indicating the specific properties thereof, and

7. that whoever places any such substances or additives thereto referred to in para. 1, first sentence above on the market, be it commercially or within the framework of business undertakings, shall inform the party liable to mark such items pursuant to subpara. 6 above of any such specific properties.

Article 35 Nature of Substances and Products

(1) The Federal Government is authorised, after hearing the parties concerned (Article 51), to provide by ordinance, with the consent of the Bundesrat, that particular substances or products therefrom which, when used for the intended purpose or combusted for the purpose of disposal or recycling of particular constituents, are liable to cause harmful effects on the environment through air pollution, shall not be produced, imported or otherwise put in the market, be it commercially or within the framework of business undertakings, unless they satisfy specific requirements regarding their composition and the process used for their production with a view to affording protection against such harmful effects on the environment through air pollution. The authorisation mentioned in the first sentence above does not refer to installations, fuels, vehicles and craft.

(2) Such requirements as are specified in para. 1, first sentence above may also be fixed for some future date after the entry into force of the ordinance, taking into account the latest technical developments. As for the requirements specified in para. 1 and para. 2, first sentence above, Article 7, para. 5 hereof shall apply mutatis mutandis.

(3) To the extent that this is compatible with the protection of the general public from harmful effects on the environment through air pollution, provision may also be made in the ordinance specified in para. 1 above, in lieu of the requirements regarding the composition and the production process, for such substances and products to be marked in a clearly visible and easily readable manner indicating that harmful effects on the environment may arise in case of normal use for the intended purpose or in ease of combustion or that such harmful effects may be avoided by having resort to particular types of use.

Article 36 Exports

In the ordinances referred to in Articles 32 to 35 above it may be laid down that the provisions concerning production, importation and marketing shall not apply to any installations, substances, products and fuels which are intended for delivery into areas outside the jurisdiction of this Act.

Article 37 Implementation of Intergovernmental Agreements and of Decisions of the European Communities

Part IV Nature and Operation of Vehicles and Craft, Construction of and Alterations to Roads and Railtracks

Article 38 Nature and Operation of Vehicles and Craft

(1) The nature of motor vehicles including their trailers, of railborne vehicles, aircraft and watercraft, as well as of floating bodies and floating installations shall be such that in case of normal use for the intended purpose the emissions resulting from their participation in traffic do not exceed the limits which must be observed to ensure protection from harmful effects on the environment. They must be operated in such a manner that avoidable emissions are prevented and unavoidable emissions are kept to a minimum.

(2) The Federal Minister of Transport and the Federal Minister for the Environment, Nature Conservation and Nuclear Safety shall, after hearing the parties concerned (Article 51), provide by ordinance, with the consent of the Bundesrat, as to which requirements have to be met regarding the nature, equipment, operation and testing of such vehicles, craft and installations as are defined in para. 1, first sentence above, to ensure protection from harmful effects on the environment, also to the extent that any such vehicles, craft and installations are subject to the valid Federal traffic regulations. In this respect, emission limits may also be fixed for some future date after the entry into force of such ordinance, taking into account the latest technical developments.

(3) As for the requirements under para. 2 above, Article 7, para. 5 hereof shall apply mutatis mutandis.

Article 39 Implementation of Intergovernmental Agreements and of Decisions of the European Communities

In order to implement any obligations arising from intergovernmental agreements or binding decisions taken by the European Communities, the Federal Minister of Transport and the Federal Minister for the Environment, Nature Conservation and Nuclear Safety may, in the light of the purpose referred to in Article 1, provide by ordinance, with the consent of the Bundesrat, that the vehicles and craft specified in Article 38 hereof shall satisfy particular requirements as regards their nature, equipment, testing and operation. As for the requirements referred to in the first sentence above, Article 7, para. 5 hereof shall apply mutatis mutandis.

Article 40 Traffic Restrictions

(1) The Land governments are authorised to designate by ordinance specific areas in which motor vehicle traffic shall be restricted or banned during weather conditions where air circulation is poor, in order to prevent or limit the increased formation of harmful effects on the environment through air pollution; the ordinance may also stipulate the duration of such traffic restrictions as may become necessary. The road traffic authorities shall ban the operation of all or part of the motor vehicles specified in the ordinance in such areas in accordance with the valid traffic regulations as soon as public notice is given by the competent authority of any such weather conditions as are defined in the first sentence above.

(2) The road traffic authorities may restrict or even ban motor vehicle traffic on specified roads or in specified areas in accordance with the valid traffic regulations, taking into account given traffic requirements and town planning concerns, where the authority responsible for immission control deems this necessary in view of the given local conditions in order to reduce harmful effects on the environment through air pollution or even prevent the formation thereof. After hearing the parties concerned (Article 51), the Federal Government shall stipulate by ordinance, with the consent of the Bundesrat, the concentrations which, if exceeded, shall require measures to be considered pursuant to the first sentence above, including the applicable measuring and assessment methods.

Article 41 Roads and Railways

(1) Notwithstanding Article 50 hereof, provision shall be made in case of any construction or material alteration of public roads, as well as railways, magnetic suspension railways and tramways that this does not involve any harmful effects on the environment through traffic noise which is avoidable according to the state of the art.

(2) Para. 1 shall not be applied to the extent that the costs of the protective measure would not be commensurate with the desired objective for protection.

Article 42 Compensation for Sound-Proofing Measures

Article 43 Ordinance Issued by the Federal Government

Part V Monitoring of Air Pollution in the Territory of the Federal Republic of Germany, Clean Air Plans and Noise Abatement Plans

Article 44 Areas Subject to Investigation

(1) In order to determine the current state and development of air pollution in the territory of the Federal Republic of Germany and to obtain basic information for remedial and precautionary measures, the authorities competent under Land law shall measure, either for a specified period or continuously, in the areas designated by ordinance as being subject to investigation, the type and extent of specific air pollution in the atmosphere which may cause harmful effects on the environment, including the circumstances that are conducive to the development and dispersion of such pollution. The same shall apply to areas in which such immission values or characteristic immission levels as were established within the scope of any ordinances or general administrative regulations issued for the implementation of this Act, with a view to affording protection against health risks or under any binding decisions taken by the European Communities, have been found or are expected to be exceeded.

(2) Areas subject to investigation shall be deemed to be areas in which air pollution has occurred or is expected to occur which, due to

1. the frequency and duration thereof,

2. the high concentrations thereof, or

3. the potential risk of a combined effect of different air pollutants, might cause harmful effects on the environment.

Article 45 Measuring and Evaluation Methods

Article 46 Emission inventory

Article 47 Clean Air Plans

(1) If an evaluation pursuant to Article 44, para. 4 hereof shows that any of the immission levels laid down in any such legal provisions or general administrative regulations as have been issued for the implementation of this Act, with a view to affording protection against health risks or under binding decisions taken by the European Communities, are exceeded in all or part of an area subject to investigation or in any other area referred to in Article 44, para. 1, second sentence hereof, the authority competent under Land law shall draw up a clean air plan which shall serve as a rehabilitation plan. Such rehabilitation plan shall be drawn up for all or part of such area subject to investigation if other harmful effects on the environment have occurred or are expected to occur due to air pollution. A clean air plan may be drawn up as a precaution against harmful effects on the environment (precautionary plan) as soon as the air pollutants manifested or anticipated go beyond the characteristic immission levels laid down in any legal provisions or general administrative regulations issued under this Act or under any binding decisions of the European Communities, or if the proposed use of such areas according to regional and land-use planning objectives could be impaired. Clean air plans may be confined to specified air pollutants, specified parts of an area subject to investigation and specified types of emission sources. When drawing up such plans, allowance shall be made for the specific needs of regional and land-use planning.

(2) Such clean air plan shall comprise

1. a representation of emissions and immissions established for all or specific air pollutants,

2. information about the impacts recorded for assets worthy of protection referred to in Article 1 hereof,

3. any findings obtained as to the causes and effects of such air pollution,

4. an assessment of any forthcoming changes in emission and immission conditions,

5. details on the immission levels and characteristic immission values referred to in para. 1 above, as well as any proposed types of use, and

6. the measures envisaged for the reduction and prevention of air pollution.

(3) The measures laid down in such clean air plan shall be enforced by orders given or other decisions taken by the competent public administrative authority in conformity with this Act or any other legal provisions. To the extent that such clean air plan contains specific commitments under planning law, the competent planning authorities shall consider whether and to what extent such planning is to be taken into consideration.

Article 47a Noise Abatement Plans

(1) In areas in which harmful environmental effects have been caused by noise or are expected to be caused thereby, the local authorities or the authorities competent under Land law shall determine the noise levels resulting from the different noise sources and their effects on the environment.

(2) The local authority or the authority competent under Land law shall draw up noise abatement plans for residential areas and other areas worthy of protection if the harmful effects on the environment due to noise that have occurred or are expected to occur in such areas are not only temporary, and the abatement or reduction of such harmful effects on the environment call for a concerted action against various types of noise sources. When drawing up such plans, allowance shall be made for the specific needs of regional and land-use planning.

(3) Noise abatement plans shall contain information on

1. the noise levels recorded and those anticipated,

2. the sources of such noise levels, and

3. any measures envisaged to reduce or prevent a further increase in noise levels.

(4) Article 47, para. 3 hereof shall apply mutatis mutandis.

Part VI Joint Provisions

Article 48 Administrative Regulations

Article 48a Implementation of Decisions of the European Communities

Article 49 Protection of Specific Areas

(1) The Land governments are authorised to provide by ordinance that, in specific areas still to be identified which require special protection against harmful effects on the environment due to air pollution or noise, it shall not be permitted

1. to operate non-stationary installations,

2. to establish stationary installations,

3. to operate non-stationary or stationary installations except in so far as such installations are operated at fixed times only or satisfy increased technical requirements, or

4. to use any fuels in such installations or to use them on a larger scale,

where such installations or fuels are liable to cause harmful effects on the environment due to air pollution or noise which is not compatible with the specific protective needs of such areas, and where such air pollution and noise cannot be prevented by the imposition of additional conditions.

(2) The Land governments are authorised to designate by ordinance specific areas in which a considerable increase in air pollution is to be feared during weather conditions where air circulation is poor. Provision may be made in such ordinance that in such areas

1. non-stationary or stationary installations may be operated at fixed times only, or

2. fuels which are particularly liable to cause air pollution shall not be used in such installations or may be used on a limited scale only,

as soon as public notice is given by the competent authority of any such weather conditions.

(3) This shall not affect any powers under Land law delegated to local authorities in respect of the issue of by-laws governing the protection of the public against harmful effects on the environment due to air pollution or noise.

Article 50 Planning

As far as regional planning projects and associated measures are concerned, the land earmarked for specific types of use shall be zoned in such a manner that harmful environmental effects and the impact of serious incidents within the meaning of Article 3 indent 5 of Directive 96/82/EC in operational areas on areas that are exclusively or predominantly used for residential purposes, as well as other areas worthy of protection, are kept to a minimum.

Article 51 Hearing of the Parties Concerned

To the extent that provision is made in any authorisation for the issue of ordinances and general administrative regulations that the parties concerned shall be heard, an ad-hoc group to be constituted from time to time from among representatives of the scientific community, those directly affected, trade and industry and the traffic sector, in so far as involved, and the supreme Land authorities responsible for immission control shall be heard.

Article 51a Hazardous Incident Commission

Article 51b Ensuring Reception of Delivered Information

Article 52 Supervision

Article 52a Obligation to Furnish Information on the Organisation of the Enterprise

(1) If in the case of a corporation the board entitled to represent such corporation consists of several members, or if in the case of a partnership several partners are entitled to represent such partnership, notice shall be given to the competent authority as to which of such persons performs the duties of operator of the installation subject to licensing on behalf of such corporation or partnership in accordance with the regulations governing the authority to conduct business, such duties being incumbent on the said operator pursuant to this Act and any ordinances and general administrative regulations issued hereunder. Nothing contained herein shall affect the collective responsibility of the members of such board or the partners of such partnership.

(2) The operator of the installation subject to licensing or, by virtue of this authority to conduct business, the person to be notified pursuant to para. 1, first sentence above, shall inform the competent authority whether and in which way it is ensured that the regulations and orders providing protection against harmful effects on the environment and other hazards, considerable disadvantages and considerable nuisance are observed during operation.

Article 53 Appointment of an Immission Control Officer

(1) Operators of installations subject to licensing shall appoint one or several officers responsible for immission control (immission control officers) if this is deemed necessary in view of the type and size of such installations on account of

1. the amount of emissions released by such installations,

2. technical problems concerning emission control, or

3. the susceptibility of the products, if used for the intended purpose, to causing harmful effects on the environment due to air pollution, noise or vibrations.

After hearing the parties concerned (Article 51), the Federal Minister for the Environment, Nature Conservation and Nuclear Safety shall specify by ordinance, with the consent of the Bundesrat, any such installations subject to licensing whose operators are liable to appoint such immission control officers.

(2) The competent authority may order that operators of any installations subject to licensing for which the appointment of an immission control officer has not been expressly provided by ordinance, as well as operators of installations not subject to licensing, appoint one or several such immission control officers if, from case to case, there seems to be ample reason to require such appointment in view of the aspects specified in para. 1, first sentence above.

Article 54 Duties

(1) The immission control officer shall advise the operator and the staff members on all matters which are deemed to be of relevance for immission control. He is authorised and shall undertake

1. to work towards the development and introduction of

a) environmentally compatible processes including processes for the prevention or proper and safe re-use or recycling of wastes resulting from operation or the disposal thereof as waste, as well as the utilisation of any waste heat produced,

b) environmentally compatible products including processes for recycling and re-use,

2. to cooperate in developing and introducing environmentally compatible processes and products, especially by appraising the environmental compatibility of such processes and products,

3. unless this is a task incumbent on the hazardous incident officer pursuant to Article 58b, para. 1, second sentence, subpara. 3 hereof, to ensure compliance with the provisions of this Act and any ordinances issued hereunder, as well as the fulfilment of specific conditions made and obligations imposed, especially by controlling the operating plant at regular intervals, measuring emissions and immissions, notifying any defects observed and submitting proposals to remedy such defects,

4. to instruct the staff members on the harmful environmental effects caused by their installation and on suitable equipment and measures to prevent such effects, taking into account the obligations ensuing from this Act or any ordinances issued hereunder.

(2) The immisson control officer shall give the operator an annual account of any measures taken and proposed pursuant to para. 1, second sentence, subparas 1 to 4 above.

Article 55 Operator’s Obligations

(1) The operator shall appoint the immission control officer in writing stating full particulars of the duties incumbent on such officer. The operator shall notify the competent authority without undue delay of the appointment of such immission control officer and such particulars including any changes in the scope of duties, and of any revocation of such appointment. A copy of the notification shall be handed over to the immission control officer.

(1a) The operator shall inform the works council or staff council prior to the appointment of the immission control officer stating full particulars of the duties incumbent on such officer. The same shall be done in the event of any changes in the immission control officer’s scope of duties and any revocation of such appointment.

(2) The operator shall not appoint anyone as immission control officer who does not have the requisite technical qualification and reliability to properly perform the duties incumbent on such officer. Should any facts become known to the competent authority indicating that the immission control officer in charge does not have the requisite technical qualification or reliability, the authority may insist upon the appointment of another immission control officer by the operator. The Federal Minister for the Environment, Nature Conservation and Nuclear Safety is authorised, after hearing the parties concerned (Article 51), to prescribe by ordinance, with the consent of the Bundesrat, the standards to be set in respect of the immission control officer’s technical qualification and reliability.

(3) In case of the appointment of several immission control officers, the operator shall provide for the necessary co-ordination of the duties incumbent on such officers, especially by setting up an environmental protection committee. The same shall apply if there are other officers appointed under other legal provisions in addition to such immission control officer or immission control officers. The operator shall furthermore provide for close cooperation between such other officers and the persons entrusted with matters concerning labour protection.

(4) The operator shall assist the immission control officer in the performance of his duties and in particular, to the extent necessary for such performance, provide him with personnel for his assistance as well as rooms, facilities, equipment and other means and shall enable him to take part in training courses.

Article 56 Opinion on Operator’s Decisions

(1) Before taking any decisions regarding the introduction of processes and products, as well as any investment decisions, the operator shall obtain the immission control officer’s opinion on such decisions if these are deemed to be relevant for immission control.

(2) Such opinion shall be obtained in due time so that proper consideration can be made thereof in any decision taken pursuant to para. 1 above; it shall then be submitted to the agency which decides on the introduction of processes and products, as well as the investment.

Article 57 Right of Submission

The operator shall ensure by means of internal organisational measures that the immission control officer can submit his proposals or objections directly to the executive management if he is unable to reach agreement with the plant manager in charge and if he considers a decision by the executive management imperative in view of the particular importance of the matter at issue. If the immission control officer is unable to reach agreement with the executive management on any measure proposed by him within the scope of his duties, he shall be given a detailed explanation of the reasons for their rejection of such measure.

Article 58 Non-discrimination, Protection against Dismissal

(1) The immission control officer may not be discriminated on grounds arising out of the performance of the duties entrusted to him.

(2) If the immission control officer is an employee of the operator who is liable to appoint such officer, a dismissal shall not be admissible unless there are established facts entitling the operator to terminate such employment for cogent reasons without complying with any period of notice. After revocation of the immission control officer’s appointment, dismissal shall not be admissible within a period of one year from the end of such appointments unless there are established facts justifying such dismissal by the operator for cogent reasons without complying with any period of notice.

Article 58a Appointment of a Hazardous Incident Officer

Article 58b Duties of the Hazardous Incident Officer

Article 58c Operator’s Obligations and Rights towards the Hazardous Incident Officer

Article 58d Non-discrimination of the Hazardous Incident Officer, Protection against Dismissal

Article 59 Jurisdiction for Installations Serving National Defence Purposes

Article 60 Exemptions for Installations Serving National Defence Purposes

Article 61 Report of the Federal Government

Article 62 Administrative Offences

The above translation was published by Inter Nationes. Reproduced with kind permission. This HTML edition by Lawrence Schäfer and © 2001 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.