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Waste Water Charges Act (Abwasserabgabengesetz, AbwAG) – Excerpts

Long title: Act Pertaining to Charges Levied for Discharging Waste Water into Waters (Gesetz über Abgaben für das Einleiten von Abwasser in Gewässer)

In the version published on 3 November 1994 (Federal Law Gazette I, p. 3370), most recently amended by the Act of 25 August 1998 (Federal law Gazette I p. 2455)

Translation provided by Inter Nationes and reproduced with kind permission.


Table of Contents

Section One General Provisions

Article 1 Principle
Article 2 Definitions
Article 3 System of Assessment

Section Two Determination of Noxiousness

Article 4 Determination on the Basis of an Official Notice
Article 6 Determination in Other Cases
Article 7 Comprehensive Assessment for the Discharge of Polluted Rain Water
Article 8 Comprehensive Assessment for the Discharge of Small Quantities of Domestic and Similar Types of Polluted Water

Section Three Liability to Pay Charges

Article 9 Liability to Pay Charges, Rates
Article 10 Exemption from Liability to Pay Charges

Section Four Establishment, Levying and Use of Waste Water Charges

Article 11 Period of Assessment, Obligation to Notify
Article 12 Failure to Comply with the Obligation to Notify
Article 12a Legal Remedies against Liability to pay Charges
Article 13 Use of Charges Levied


Section One General Provisions

Article 1 Principle

A charge (waste water charge) shall be paid for discharging waste water into a water within the meaning of Article 1, para. 1 of the Federal Water Act (Wasserhaushaltsgesetz). The charge shall be levied by the Federal Länder.

Article 2 Definitions

(1) For the purposes of this Act, waste water is water, the properties of which have been changed by domestic, commercial, agricultural or other uses, and the water drained together with it during dry weather conditions (polluted water), as well as water running off and collected from built-up or paved or asphalted surfaces following precipitation (hereinafter referred to as rain water). Liquids released and collected from facilities designed for the treatment, storage and depositing of waste shall also be deemed to be polluted water.

(2) For the purposes of this Act, discharging is the direct conveyance of waste water into a water body; conveyance into the subsoil shall be deemed to constitute a discharge into a water, whereby conveyance into the ground within the framework of agricultural soil treatment techniques shall be excluded from this provision.

(3) For the purposes of this Act, a waste water treatment plant is a facility used to reduce or eliminate the noxiousness of waste water; facilities serving to prevent the generation of waste water either in full or in part shall also be regarded as waste water treatment plants.

Article 3 System of Assessment

(1) The waste water charge shall depend upon the noxiousness of the waste water, which shall be determined on the basis of the oxidisable substances, of phosphorus, of nitrogen, of the organohalogens, of the metals mercury, cadmium, chromium, nickel, lead, copper and their compounds, as well as of the toxicity of the waste water to fish, expressed in units of noxiousness in accordance with the Annex(1) to this Act. In addition to rain water (Article 7) and small discharges (Article 8), a specific assessment of noxiousness shall not be required if the concentration of noxious substances or the annual volume to be used as a basis for determining the number of units of noxiousness does not exceed the threshold values stated in the Annex, or if the dilution factor TF does not exceed 2.

(2) In the cases falling under Article 9, para. 3 (river clarification basins), the charge levied shall be calculated according to the number of units of noxiousness in the water body downstream from the river clarification basin.

(3) The Länder may stipulate that the noxiousness of waste water shall not be calculated to the extent that it is eliminated in secondary settling ponds directly connected with a waste water treatment plant.

Section Two Determination of Noxiousness

Article 4 Determination on the Basis of an Official Notice

(1) With the exception of rain water (Article 7) and small discharges (Article 8), the pollutant load to be used as a basis for determining the units of noxiousness shall be calculated in accordance with the values stated in the official notice licensing the respective waste water discharge. The official notice shall at least set limits for the concentration of noxious substances and groups of noxious substances stated in the Annex to Article 3 under subparas 1 to 5 which are to be complied with during a specific period of time, and, in the case of toxicity to fish, the dilution factor to be complied with during a specific period of time (“monitoring values”), and shall stipulate the annual volume of polluted water. If the official notice contains monitoring values for a noxious substance or a group of noxious substances for various periods of time, the monitoring value of the longest period of time shall be used as a basis for calculating the charges. Such monitoring values need not be established if a noxious substance or a group of noxious substances stated in the Annex to Article 3 is not expected to exceed in the waste water the threshold values prescribed in the Annex.

(2) Para. 1 shall apply accordingly in cases falling under Article 9, para. 3 (river clarifying basins).

(3) If water that has been directly withdrawn from a water resource has noxious properties within the meaning of Article 3, para. 1 prior to its use (initial pollution load), this initial pollution load shall be estimated for the noxious substances and groups of noxious substances stated in Article 3, para. 1 at the request of the party liable to pay waste water charges; this estimated initial pollution load shall not be attributed to this party. This estimate shall be based on the mean values determined over several years for the concentrations of the noxious substances in question. The Länder may stipulate uniform levels for the mean concentration of noxious substances in waters or parts thereof.

(4) Within the framework of water monitoring pursuant to the provisions of water legislation, compliance with the provisions of the official notice shall be monitored by government agencies or officially recognised bodies. If the monitoring results show that one of the monitoring values used for calculating the charges to be paid has neither been complied with nor may be deemed to have been complied with in the assessment period, the number of units of noxiousness calculated shall be increased. This increase shall depend on the percentage by which the highest value measured exceeds the monitoring value specified. If the monitoring value specified has not been complied with on only one occasion, the increase shall be determined on the basis of half this percentage; if the monitoring value specified has not been complied with on several occasions, it shall be determined on the basis of the full percentage. If the official notice licensing the waste water discharge in accordance with para. 1, sentence 4 does not specify such a monitoring value, and if monitoring shows that the concentration stated as a threshold in the Annex to Article 3 has been exceeded, then the number of units of noxiousness calculated, taking the threshold value as a basis, shall be increased by the percentage resulting from sentences 3 and 4. If the official notice, in addition to the monitoring values to be taken as a basis pursuant to para. 1, also contains monitoring values specified for shorter periods of time, or stipulates values for the volume of waste water or pollutant load to be complied with over a specific period of time, the number of units of noxiousness shall also be increased, where these values are exceeded. If the specified volume of waste water has not been complied with, then the number of units of noxiousness shall be increased for all monitoring values limited in the official notice pursuant to para. 1. Where neither the monitoring value pursuant to para. 1 nor a monitoring value or a specified value pursuant to sentence 6 has been complied with, the increase in the number of units of noxiousness shall be determined on the basis of the highest applicable percentage.

(5) Where a discharger notifies the competent authority that he will observe a value lower than the monitoring value stipulated in the official notice pursuant to para. 1, or a volume of waste water smaller than the volume of waste water stipulated in the official notice for a specific period of not less than three months in the assessment period, then the number of units of noxiousness for this period of time shall be determined in accordance with the notified value. The deviation must be at least 20 per cent. This notification outlining the circumstances on which it is based shall be submitted at least two weeks before the beginning of the period for which the application is made. Paras 2 and 3 shall apply accordingly. Compliance with the declared value shall be proved in line with the monitoring value stipulated in the official notice: the measured results of the official monitoring shall be included in the evaluation of the measurement programme. If there is no evidence of compliance with the declared value or if the official monitoring reveals that a monitoring value to be based on charge calculation pursuant to para. 1 or specification pursuant to para. 4, sentence 6 has not been complied with or is deemed not to have been complied with, paras 1 to 4 shall apply.

Article 6 Determination in Other Cases

(1) Where the specified values required for determining the units of noxiousness are not contained in an official notice pursuant to Article 4, para. 1, the discharger must notify the competent authority, at the latest one month before the beginning of the assessment period, as to which monitoring values of significance for determining the units of noxiousness will be observed by him in the assessment period. If the discharger does not fulfil his obligation pursuant to sentence 1, the highest measured result obtained from official monitoring shall be used as a basis for determining the units of noxiousness. Where no result from official monitoring is available, the competent authority shall estimate the monitoring values. The annual volume of polluted water shall be estimated at the time the units of noxiousness are determined.

(2) Article 4, paras 2 to 5 shall apply accordingly.

Article 7 Comprehensive Assessment for the Discharge of Polluted Rain Water

(1) The number of units of noxiousness of rain water discharged via a public sewerage system shall be deemed to be 12 per cent of the number of inhabitants served by this system. If rain water from paved or asphalted commercial areas is discharged via a private sewerage system, the charges shall be calculated on the basis of 18 units of noxiousness per full hectare, if the paved or asphalted commercial areas are larger than 3 hectares. The number of the inhabitants served by the system and the size of the paved area may be estimated.

(2) The Länder may determine the conditions under which the discharge of rain water shall be exempt in whole or in part from waste water charges.

Article 8 Comprehensive Assessment for the Discharge of Small Quantities of Domestic and Similar Types of Polluted Water

(1) Unless prescribed otherwise by the Länder, the number of units of noxiousness of polluted water from domestic sources and similar types of polluted water for which a public corporation is liable to pay charges in accordance with Article 9, para. 2, sentence 2, shall be deemed to be half the number of inhabitants not served by the public sewerage system. The number of inhabitants may be estimated where it is impossible to determine this number, or where this would involve unreasonable expenditure.

(2) The Länder may determine under which conditions the discharge shall be exempt from charges. The discharge shall be exempt from charges if the construction of the waste water treatment plant complies with at least the generally acknowledged rules of technology and if the proper disposal of sludge is ensured.

Section Three Liability to Pay Charges

Article 9 Liability to Pay Charges, Rates

(1) Anyone who discharges waste water (discharger) shall be liable to pay waste water charges.

(2) The Länder may determine that public corporations shall be liable to pay waste water charges in lieu of dischargers. Public corporations to be designated by the Länder shall be liable to pay waste water charges in lieu of dischargers who discharge less than 8 cubic metres of polluted water per day from private households or similar sources. The Länder shall determine how waste water charges levied in this way may be passed on to the generators of such water.

(3) Where the water of a water body is purified in a river clarifying basin the Länder may determine that the operator of the river clarifying basin shall be liable to pay waste water charges in lieu of dischargers in a catchment area to be defined. Para. 2, sentence 3 shall apply accordingly.

(4) The liability to pay waste water charges shall not apply before 31 December 1980. The annual rate levied per unit of noxiousness shall be

DM 12.00 as of 1 January 1981

DM 18.00 as of 1 January 1982

DM 24.00 as of 1 January 1983

DM 30.00 as of 1 January 1984

DM 36.00 as of 1 January 1985

DM 40.00 as of 1 January 1986

DM 50.00 as of 1 January 1991

DM 60.00 as of 1 January 1993

DM 70.00 as of 1 January 1997.

(5) Apart from rain water (Article 7) or small discharges (Article 8), the rate specified in para. 4 shall be reduced by 75 per cent from 1999 onwards for those units of noxiousness which cannot be avoided, even though

1. the contents of the official notice pursuant to Article 4, para. 1 or the notification pursuant to Article 6, para. 1, sentence 1 at least meet the requirements specified by the Federal Government with the agreement of the Bundesrat pursuant to Article 7a, para. 1 of the Federal Water Act, and

2. the requirements specified by the Federal Government with the agreement of the Bundesrat pursuant to Article 7a, para. 1 of the Federal Water Act.

Sentence 1 shall apply mutatis mutandis if the Federal Government with the agreement of the Bundesrat pursuant to Article 7a, para. 1 of the Federal Water Act do not make any requirements for the monitored values laid down in the official notice pursuant to Article 4, para. 1 or declared pursuant to Article 6, para. 1, sentence 1.

(6) If a declaration pursuant to Article 4, para. 5 is made, the reduction shall be calculated in accordance with the notified value, provided the official notice is adapted to the notified value following the notification and provided this value fulfils the requirements of para. 5.

Article 10 Exemption from Liability to Pay Charges

(1) Liability to pay waste water charges shall not be applicable

1. to the discharge of water which was already polluted before it was withdrawn from a water resource for use and which does not show any additional noxiousness within the meaning of this Act,

2. to the discharge of polluted water into a surface water created during the extraction of mineral raw materials, provided that this water has only been used for washing the products obtained there and does not contain any noxious substances other than those extracted, and provided that it is ensured that no noxious substances will enter other waters,

3. to the discharge of polluted water from watercraft that has been generated on such craft,

4. to the discharge of rain water running off from paved or asphalted commercial areas of up to three hectares and from railroad tracks where no public sewerage system is used for this purpose.

(2) The Länder may stipulate that waste water charges shall not be levied on the discharge of waste water into layers of the subsoil in which the groundwater, on account of its natural properties, is not suitable for the extraction of drinking water using conventional treatment methods.

(3) If waste water treatment plants are constructed or enlarged, the operation of which may be expected to reduce one of the values to be taken as a basis for determination of the units of noxiousness by at least 20 percent when discharged into the water and a corresponding reduction of the pollution loads, the expenses incurred for construction or enlargement of the plant may be set off against the charges due all in all for this discharge during the three years prior to the planned entry into operation of the plant. This does not apply to the percentage by which the charge is increased pursuant to Article 4, para. 4. If the charge has already been paid the operator of the waste water treatment plant is entitled to repayment of the appropriate sum. Interest shall not be paid on this sum. The charge shall have to be paid retrospectively if the plant is not taken into operation or a reduction of at least 20 per cent is not achieved. Pursuant to Article 238 of the Fiscal Code (Abgabenordnung) interest shall be paid on the charge levied retrospectively starting from the day the amount was due.

(4) For plants that conduct the waste water of existing discharges to a waste water treatment plant and that meet the requirements of Article 18b of the Federal Water Act or are brought into line with the same, para. 3 shall apply accordingly, provided that a reduction of the pollutant load as a whole is to be expected with the discharges.

Section Four Establishment, Levying and Use of Waste Water Charges

Article 11 Period of Assessment, Obligation to Notify

(1) The period of assessment shall be deemed to be the calendar year.

(2) In the cases referred to under Articles 7 and 8, the party liable to pay waste water charges shall calculate the units of noxiousness of the waste water and submit the relevant documents to the competent authority. If the party liable to pay waste water charges is not also the discharger (Article 9, paras 2 and 3), the discharger shall supply the party liable to pay waste water charges with the necessary data and documents.

(3) The Länder may stipulate that the party liable to pay waste water charges shall also calculate the number of units of noxiousness of the waste water in other cases, that such party shall provide the data required for an estimate, and submit the relevant documents to the competent authority. Para. 2, sentence 2 shall apply accordingly.

Article 12 Failure to Comply with the Obligation to Notify

(1) If the party liable to pay waste water charges fails to comply with its obligations pursuant to Article 11, para. 2, sentence 1 and the supplementary provisions issued by the Länder, the competent authority may estimate the number of units of noxiousness.

(2) A discharger who is not liable to pay waste water charges pursuant to Article 9, para. 2 or 3 may nevertheless be rendered liable by way of an estimate to pay such charges if he fails to comply with his obligations pursuant to Article 11, para. 2, sentence 2 and the supplementary provisions issued by the Länder. In this case the party liable and the discharger shall be liable jointly and severally.

Article 12a Legal Remedies against Liability to pay Charges

Objections and rescissory action contesting liability to pay charges shall not have a suspensive effect. Sentence 1 shall also be applied to official notices issued prior to 19 December 1984.

Article 13 Use of Charges Levied

(1) The revenue accruing from waste water charges shall only be used for specific purposes connected with measures for maintaining or improving water quality. The Länder may stipulate that the administrative expenditure associated with the enforcement of this Act and of their own supplementary provisions shall be paid for out of the revenue accruing from waste water charges.

(2) The following shall in particular be deemed to be measures pursuant to para. 1 above:

1. the construction of waste water treatment plants,

2. the construction of rain water retention basins and facilities for the purification of rain water,

3. the construction of circular sewers and retention sewers at and along reservoirs, the shores of lakes and the seashore, and of connecting interceptors permitting the establishment of joint treatment facilities,

4. the construction of facilities for the disposal of sewage sludge,

5. measures such as low-flow augmentation or oxygenation taken in and at water bodies for observing and improving water quality and measures for maintaining such water bodies,

6. research on and development of suitable facilities and techniques for improving water quality,

7. basic and further training of operating staff for waste water treatment plants and other facilities designed to maintain and improve water quality.


Endnote:

1 Editor’s note: The Appendix has not been printed in this edition.

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.