|Federal Soil Protection Act (Bodenschutzgesetz, BBodSchG) - Excerpts|
Long title: Act on Protection against Harmful Changes to Soil and on Rehabilitation of Contaminated Sites
In the version published on 17 March 1998 (Federal Law Gazette I p. 502).
Translation provided by Inter Nationes and reproduced with kind permission.
Table of Contents
Part I General Provisions
Article 1 Purpose and Principles of the Act
Article 2 Definitions
Article 3 Scope of Application
Part II Principles and Obligations
Article 4 Obligations to Prevent Hazards
Article 5 Unsealing of Sealed Ground
Article 6 Application and Introduction of Materials on to or into the Soil
Article 7 Obligation to take Precautions
Article 8 Values and Requirements
Article 9 Risk Assessment and Orders for Investigations
Article 10 Other Orders
Part III Supplementary Provisions for Contaminated Sites
Article 11 Identification
Article 12 Informing Affected Parties
Article 13 Investigation and Planning for Remediation
Article 14 Remediation Planning by Authorities
Article 15 Supervision by Authorities, Self-Monitoring
Article 16 Supplementary Orders Regarding Remediation of Contaminated Sites
Part IV Agricultural Soil Use
Article 17 Good Agricultural Practice
Part V Final Provisions
Article 18 Experts and Investigating Bodies
Article 19 Data Transmission
Article 20 Hearing of Parties concerned
Article 21 Provisions under Länder Law
Article 22 Compliance with Binding Decisions of the European Communities
Article 23 National Defence
Article 24 Costs
Article 25 Value Compensation
Article 26 Provisions Regarding Fines
The purpose of this Act is to protect or restore the functions of the soil on a permanent sustainable basis. These actions shall include prevention of harmful soil changes (to the soil), rehabilitation of the soil, of contaminated sites and of waters contaminated by such sites; and precautions against negative soil impacts. Where impacts are made on the soil, disruptions of its natural functions and of its function as an archive of natural and cultural history should be avoided as far as possible.
(1) Soil within the meaning of this Act is the upper layer of the earth's crust, as far as this layer fulfils the soil functions mentioned in paragraph (2), and including its liquid components (soil solution) and gaseous components (soil air), except groundwater and beds of bodies of water.
(2) Within the meaning of this Act, the soil performs
1. natural functions
a) as a basis for life and a habitat for people, animals, plants and soil organisms,
b) as part of natural systems, especially by means of its water and nutrient cycles,
c) as a medium for decomposition, balance and restoration as a result of its filtering, buffering and substance-converting properties, and especially groundwater protection,
2. functions as an archive of natural and cultural history and
3. functions useful to man as
a) a medium that holds deposits of raw materials,
b) land for settlement and recreation,
c) land for agricultural and silvicultural use,
d) land for other economic and public uses, for transport, and for supply, provision and disposal.
(3) Harmful soil changes within the meaning of this Act are harmful impacts on soil functions that are able to bring about hazards, considerable disadvantages or considerable nuisances for individuals or the general public.
(4) Suspected sites within the meaning of this Act are lands suspected to contain harmful soil changes.
(5) Contaminated sites (Altlasten) within the meaning of this Act are
1. closed-down waste management installations, and other real properties, in/on which waste has been treated, stored or landfilled (former waste disposal sites), and
2. real properties that house closed-down installations, and other real properties, on which environmentally harmful substances have been handled, except for installations that can be closed down only under a license pursuant to the Atomic Energy Act (former industrial sites),
that cause harmful soil changes or other hazards for individuals or the general public.
(6) Sites suspected of being contaminated sites within the meaning of this Act are former waste disposal sites and former industrial sites that are suspected to contain harmful soil changes or other hazards for individuals or the general public.
(7) Remediation within the meaning of this Act refers to measures
1. to eliminate or reduce pollutants (decontamination measures),
2. that prevent or reduce spreading of pollutants in a lasting way, without eliminating the pollutants themselves (securing containment measures),
3. that eliminate or reduce harmful changes in the soil's physical, chemical or biological characteristics.
(8) Protection and restriction measures within the meaning of this Act are other measures that prevent or reduce hazards, considerable disadvantages or considerable nuisances for individuals or the general public, especially usage restrictions.
(1) This Act applies to harmful soil changes and contaminated sites, as far as
1. provisions of the Closed Substance Cycle and Waste Management Act regarding application of waste for use as secondary raw-material fertilizer or farm fertilizer within the meaning of Article 1 of the Fertilizer Act and of the relevant ordinances issued on the basis of the Closed Substance Cycle and Waste Management Act and of the Sewage Sludge Ordinance of 15 April 1992 (Federal Law Gazette I p. 912),
2. provisions of the Closed Substance Cycle and Waste Management Act regarding the licensing and operation of waste management installations for waste disposal and regarding the closure of landfills,
3. provisions regarding the transport of hazardous materials,
4. provisions of fertilizer and plant-protection law,
5. provisions of the Genetic Engineering Act (Gentechnikgesetz),
6. provisions of Chapter Two of the Federal Forest Act and of the forest-management and forest laws of the Länder,
7. provisions of the Land Consolidation Act (Flurbereinigungsgesetz) regarding the relevant consolidated land, also in conjunction with the Agricultural Adjustment Act (Landwirtschaftsanpassungsgesetz),
8. provisions for construction, modification, maintenance and operation of transport routes, or provisions that govern transport,
9. provisions of construction-planning law and of the building regulations,
10. provisions of the Federal Mining Act (Bundesberggesetz) and of the ordinances issued on the basis of this Act with regard to the establishment, management or closure of installations, and
11. provisions of the Federal Immission Control Act and of the ordinances issued on the basis of this Act with regard to the establishment and operation of installations, taking paragraph (3) into account,
do not regulate impacts on the soil.
(2) This Act does not apply to installations, activities, devices or equipment, nuclear fuels and other radioactive substances in cases in which legal provisions mandate protection from hazards of nuclear energy and from the effects of ionising radiation. Furthermore, this Act shall not apply to searches for, and to recovery, transport, storage, treatment and destruction of warfare agents.
(3) With respect to soil as a resource to be protected, harmful soil changes within the meaning of Article 2 (3) of this Act and of the statutory ordinances on the basis of this Act, where such changes are caused by immissions, shall be considered as harmful environmental impacts pursuant to Article 3 (1) of the Federal Immission Control Act, and otherwise shall be considered as other hazards, considerable disadvantages or considerable nuisances pursuant to Article 5 (1) No. 1 of the Federal Immission Control Act. For purposes of detailed determination of obligations to take precautions under immission control law, the values set forth in a statutory ordinance pursuant to Article 8 (2) shall be used, as soon as a statutory ordinance or Federal administrative provision has defined the additional burdens, arising from operation of a installation, that are not to be considered causal contributions to the occurrence of harmful soil changes. Such ordinance or administrative provision should also set forth that an installation whose emission-mass streams are below certain values shall be considered, even without determination of the additional burdens, as not contributing to harmful soil changes.
(1) Any person who is by his action affecting the soil shall act in such a manner that harmful soil changes do not occur.
(2) The property owner and the occupant of a real property shall be obligated to take measures to prevent harmful soil changes originating from their property.
(3) The party who caused a harmful soil change or a contaminated site, and his universal successor, as well as the relevant property owner and the occupant of the relevant real property, shall be obligated to remediate the soil and contaminated sites, and any water pollution caused by harmful soil changes or contaminated sites, in such a manner that no hazards, considerable disadvantages or considerable nuisances for individuals or the general public occur in the long term. In cases of burdens from pollutants, in addition to decontamination measures also securing measures are to be taken into consideration, that permanently prevent spread of pollutants. Where such measures are not possible or cannot be reasonably required, other protection and restriction measures shall be carried out. Persons who, for reasons of commercial law or company law, are required to answer for a legal entity that owns a real property that is encumbered with harmful soil changes to the soil or site contamination, and persons who give up ownership of such properties, is also obliged to carry out remediation.
(4) As part of fulfilment of obligations relative to the soil and to contaminated sites, pursuant to paragraphs (1) through (3), the permissible use of the piece of land under planning law, and the resulting protection requirements, shall be taken into account, as far as this is compatible with the protection of the soil functions mentioned in Article 2 (2) Nos. 1 and 2. If relevant determinations under planning law are lacking, the nature of the relevant area, taking into account its expected development, shall determine the requirements for protection. The requirements to be fulfilled in connection with rehabilitation of bodies of water shall be determined by law pertaining to water.
(5) If harmful soil changes or contaminated sites have occurred after first of march 1999, pollutants shall be eliminated, where this is a reasonable requirement with respect to the previous soil pollution. This shall not apply to a party who, at the time the pollution was caused, expected that such impacts to the soil would not occur because he had fulfilled the applicable legal requirements, and whose good faith is worthy of protection, taking the circumstances of the relevant individual case into account.
(6) The former owner of a real property is obligated to carry out remediation if he has transferred his property after first of March 1999, and if he was aware of, or should have been aware of the relevant harmful soil change or site contamination. This shall not apply to a party who, when purchasing the real property, confided that such harmful soil changes or contaminated sites would not be present, and whose confidence is worthy of protection, taking the circumstances of the relevant individual case into account.
Where provisions of construction law do not define the competence of the authorities, the Federal Government shall be authorised, after hearing the parties concerned (Article 20), to obligate property owners, by means of a statutory ordinance and with the consent of the Bundesrat, to maintain or restore the functional capacity of the soil within the meaning of Article 1, to the possible and reasonable extent, on land that is to remain unused in the long term and whose sealing would violate determinations under planning law. Until the entry into force of a statutory ordinance pursuant to the first sentence of this paragraph, the competent authorities pursuant to Länder law may, in individual cases, issue orders to obligated parties pursuant to the first sentence of this paragraph, requiring unsealing of sealed surfaces, if the other prerequisites mentioned in the first sentence of this paragraph are fulfilled.
The property owner, the occupant over a site and the party who carries out, or has carried out by others, actions on a site that can lead to changes in soil characteristics are obligated to take precautions against the occurrence of harmful soil changes that could be caused by their uses of the site or in its area of influence. Precautionary measures shall be required if there is concern that harmful soil changes could occur as a result of the spatial, long-term or complex impacts of a use on the soil's functions. In order to fulfil the obligations to take precautions, soil impacts shall be avoided or reduced where this is a reasonable requirement also with respect to the purpose of the use of the site. Orders to take precautions against harmful soil changes may be issued only where relevant requirements have been defined in a statutory ordinance pursuant to Article 8 (2). Fulfilment of the obligation to take precautions in connection with agricultural soil use shall be based on Article 17 (1) and (2); in connection with silvicultural soil use, it shall be based on Chapter Two of the Federal Forest Act and on the forest-management and forest laws of the Länder. Precautions with respect to groundwater shall be based on provisions of law pertaining to water. In cases of existing soil impacts, the obligations to be fulfilled shall be determined pursuant to Article 4.
(1) The Federal Government shall be authorised, after hearing the parties concerned (Article 20), to issue statuary ordinances, with the consent of the Bundesrat, setting forth provisions for fulfilment of the obligations, with respect to the soil and to contaminated sites, arising from Article 4, and for the investigation and the assessment of suspected sites, harmful soil changes, sites suspected of being contaminated and contaminated sites. Such ordinances may include, in particular, definition of
1. values which, if exceeded, shall mean that investigation with respect to the individual case in question is required, taking the relevant soil use into account, to determine whether a harmful soil change or site contamination exists (trigger values),
2. values for impacts or pollution which, if exceeded, shall normally signal the presence of a harmful soil change or site contamination, taking the relevant soil use into account, and to mean that measures are required (action values),
3. requirements for
a) warding off harmful soil changes; these shall include requirements relative to the handling of excavated, (shoved off) and treated soil material,
b) remediation of the soil and of contaminated sites, especially with regard to
- determination of the rehabilitation objective,
- the extent of decontamination measures and safeguarding measures that prevent spreading of pollutants in the long term, and
- protection and restriction measures.
(2) The Federal Government shall be authorised, after hearing the parties concerned (Article 20), to issue regulations, by means of a statutory ordinance and with the consent of the Bundesrat, for fulfilment of obligations pursuant to Article 7 and for definition of requirements for relevant investigation and assessment of pieces of land where there is reason for concern that they harbour harmful soil changes, especially regulations with respect to
1. soil values which, if exceeded, shall normally mean there is reason that concern for a harmful soil change exists, taking geogenic or wide-spread, settlement-related pollutant concentrations into account (precautionary values),
2. permissible additional pollution load, and requirements for prevention or reduction of substance inputs.
(3) Together with the values mentioned in paragraphs (1) and (2) procedures for determination of levels of environmentally harmful substances in soils, in biological materials and in other materials are to be defined. Such procedures shall also include requirements for taking of representative samples, for treatment of samples and for quality assurance, including determination of values for different types of pollution.
The Länder may issue provisions regarding identification of contaminated sites and of sites suspected of being contaminated.
The parties obligated, pursuant to Article 9 (2) first sentence, to investigate the contaminated site, and the parties obligated, pursuant to Article 4 (3), (5) and (6) to carry out rehabilitation of the contaminated site, shall inform the owners of the affected pieces of land, as well as the other affected authorised users and the affected neighbourhood (affected parties) regarding the pending execution of the planned measures. The main existing documents required to estimate the measures shall be made available for examination. If documents contain business or company secrets, their content shall be so comprehensively described, to the extent possible without disclosure of such secrets, that affected parties are able to estimate the impacts of measures on their interests.
(1) If for the rehabilitation of contaminated sites a coordinated approach is required, due to the differences between the necessary measures pursuant to Article 4, or of sites with particularly harmful soil changes or that hold particularly great hazards for individuals or the general public, due to the type, spreading or amount of relevant pollutants, the competent authority should require, from parties obligated to carry out rehabilitation pursuant to Article 4 (3), (5) or (6), the necessary investigations for decisions regarding the type and extent of the necessary required measures (rehabilitation investigations ), as well as the submission of a rehabilitation plan, with such plan containing especially
1. a summary of the risk assessment and of the remediation investigations,
2. information regarding the use up to now and future use of the pieces of land that are to be remediated,
3. a description of the remediation objective and of the relevant necessary decontamination, securing, protection, restriction and self-monitoring measures, as well as the schedule for execution of these measures.
The Federal Government shall be authorised, after hearing the parties concerned (Article 20), to issue regulations, by means of a statutory ordinance and with the consent of the Bundesrat, regarding the requirements for remediation investigations and for the content of remediation plans.
(2) The competent authority may require the rehabilitation investigations and the remediation plan to be carried out by an expert pursuant to Article 18.
(3) A party who, pursuant to paragraph (1), is required to submit a remediation plan shall inform the affected parties pursuant to Article 12 at an early date, by appropriate means and without special request, regarding the relevant planned measures. Article 12 second and third sentences apply mutatis mutandis.
(4) The draft of a remediation agreement regarding the execution of the remediation plan may be submitted with the plan, and such agreement may involve third parties.
(5) If removed soil material is to be reintroduced within the area of the land affected by the rehabilitation of the contaminated site, Article 27 (1) first sentence of the Closed Substance Cycle and Waste Management Act shall not apply if, by means of a remediation plan accepted as binding or of an order for enforcement of obligations pursuant to Article 4, it is ensured that the public interests are not impaired.
(6) The competent authority may declare the plan to be binding, also in cases in which it is modified or given auxiliary clauses. A plan declared to be binding shall include other authorities' decisions with regard to the rehabilitation - with the exception of licensing decisions for projects that, pursuant to Article 3 in conjunction with the Annex to Article 3 of the Environmental Impact Assessment Act (Gesetz über die Umweltverträglichkeitsprüfung) or pursuant to Länder law, are subject to environmental impact assessment - if such decisions are issued in agreement with the relevant competent authority and if the included decisions are listed within the plan declared to be binding.
(1) In cases of agricultural soil use, the obligation to take precautions pursuant to Article 7 shall be fulfilled by good agricultural practice. In their advising, the competent agricultural advising bodies pursuant to Länder law should impart the principles of good agricultural practice pursuant to paragraph (2).
(2) The principles of good practice in agricultural soil use are the permanent protection of the soil's fertility and of the soil's functional capacity as a natural resource. In particular, the principles of good agricultural practice include:
1. in general, the soil shall be worked in a manner that is appropriate for the relevant site, taking weather conditions into account,
2. the soil structure shall be conserved or improved,
3. soil compaction shall be avoided as far as possible, especially by taking the relevant soil type and soil humidity into account, and by controlling the pressure exerted on the soil by equipment used for agricultural soil use,
4. soil erosion shall be avoided wherever possible, by means of site-adapted use, especially use that takes slope, water and wind conditions and the soil cover into account,
5. the predominantly natural structural elements of field parcels that are needed for soil conservation, especially hedges, field shrubbery and trees, field boundaries and terracing, shall be preserved,
6. the soil's biological activity shall be conserved or promoted by means of appropriate crop rotation and
7. the soil's humus content, as is typical for the site in question, shall be conserved, especially by means of adequate input of organic substances or of reduction of the intensity with which the soil is worked.
(3) Obligations pursuant to Article 4 shall be fulfilled by means of compliance with the provisions mentioned in Article 3 (1); where these provisions contain no requirements for prevention of hazards and no such provisions result from the principles of good agricultural practice pursuant to paragraph (2), the other provisions of this Act shall apply.
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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.