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EHS Germany // EHS Regulatory Update Germany

Date // 20th July 2017

EHS Regulatory Update Germany

Most significant adaptions and expansions within German EHS laws as of beginning of 2017

Environment ETS, NEC, VOC, CLP, HBCD, ...

Health and Safety Novelty of the Workplace Ordinance

Environment – Emission Trading System (ETS) Revision

Brief Introduction:
The EU emission trading system (EU ETS) is a cornerstone of the EU's policy to combat climate change and its key tool for reducing greenhouse gas emissions cost-effectively. It is the world's first major carbon market and remains the biggest one.

On 15th December 2016, the European Parliament‘s Environment Committee (ENVI) approved the draft legislative resolution on the revision of the Emissions Trading Directive by a large majority. From the view point of the DIHK, the vote is to be assessed critically in a few key respects. Already in February, Parliament‘s plenary session could vote on the position. An agreement is a prerequisite for the start of trialogue negotiations with the Council.

The political parties in the ENVI agreed on 17 partly broadly based compromise change proposals only one day before the vote. These were all adopted in the vote. The level of the linear reduction factor, which is now to be tightened to 2.4%, was not part of the compromise and was voted separately. All in all, the draft rapporteur Ian Duncan (ECR / UK) received a large, cross-factional assent with a majority of 53 votes (5 votes and 7 abstentions).

Environment – National Emission Ceilings (NEC) Directive

Brief Introduction:
The Euro pean NEC-Directive stipulates the maximum amount of particular air pollutants on a national level. Background of the directive is the negative impact of these pollutants to the environment and the human health. The national limit values are referable to the Goteborg protocol 1999. Initial release date is the 27th November 2001.

On 14th December 2016, the European Parliament and the Council signed the new NEC-Directive on the basis of a proposal from the Commission. It limits the five most important pollutants in Europe: fine dust, sulfur dioxide, nitrogen oxides, volatile organic compounds (without methane) and ammonia. The new NEC-Directive enters into force on 31st December 2016. The EU states must transpose the directive into national law by 30th June 2018 and draw up a national program for the control of air pollution by 2019. They must define measures to reduce the five most important air pollutants by 2020 and 2030. The aim is to reduce the negative health effects of air pollution, such as airway diseases and premature death, by almost 50% until 2030.

A reply from the Federal Government to the request made by the Bündnis 90 / Die Grünen Group to the NEC-Directive (Druckache 18/10466) shows that Germany complies with the values of the total emissions of all relevant substances, with the exception of ammonia. By 30th June 2018, the reduction of the following emissions shall apply within the EU:

  • NOx reduced by 63%,
  • NMVOC reduced by 40%,
  • SO2 reduced by 79%,
  • PM 2.5 reduced by 49% and
  • NH3 reduced by 19%

Environment – Formaldahyde values in VOC regulation decided

Brief Introduction:
The VOC-Regulation limits the emissions of volatile organic compounds (VOC) due to the usage of varnish containing organic solvents and products of vehicle repair painting. Initial release date was the 21st April 2004.

The Federal Council has adopted a series of regulations on the protection of the environment with regard to its adaptation to European law. Emission limit values for solvents with volatile organic compounds (VOC) have also been defined. The regulation package must still be drawn up and published.

Due to classification of formaldehyde into the hazardous category Carc. 1 B (H350: Can produce cancer), separate emission values are set out in the 31. BImSchV (VOC Regulation): For formaldehyde, a mass flow of 10 g per hour or a mass concentra tion of 2 mg per m³ will apply in future (generally VOCs of 2 g per h and 1 mg per m³). The 31. BImSchV applies to different plants in which volatile organic compounds (VOC) are handled: Specific printing, cleaning, varnishing or coating processes as well as equipment for the production of certain oils, plastics, plant protection products or medicinal products.

The Federal Government still has to approve the few amendments to the Federal Council and publish them in the Federal Law Gazette. An entry into force is expected in January 2017.

Environment – BlmSchV adapted to CLP regulation

Brief Introduction:
The Federal Ordinances on Immission Protection (BImSchV) serves the protection against harmful environmental impacts by air pollution and noise. Particular technical details are regulated.

The CLP (Classification, Labeling and Packaging) Regulation implements the Globally Harmonized System of Classification and Labelling of Chemicals of the UNO and is equally valid for all members of the EU.

The Federal Council has approved the adaptation of the Ordinance on Installations requiring Approval (4th BImSchV) to the current classification and labeling of chemicals (CLP Regulation).

In the 4th BImSchV, Annex 2 is adapted to the CLP regulation. This specifies the requirement for the approval of storage facilities for certain hazardous substances, depending on their storage capacity. The regulation has yet to be published in the Federal Law Gazette. In addition, regulatory gaps are concluded with the European Industrial Emissions Directive. Therefore, the obligation to permit within the process with public participation is introduced in some plants (coating of crude steel with molten metal protective layers, processing or production of fish meal or fish oil, firing of molasses and drying of green fodder or beer grains).

Since the translation of the hazard designation of the existing Material Guideline is not in line with the classification and labeling of the CLP Regulation, certain storage systems may fall under the scope of the 4th BImSchV for the first time. These installations shall be notified to the competent authority three months after entry into force (Section 67 (2) BImSchG). Two months after the notification, documents concerning the type, position, scope and mode of operation of the installa tion are to be submitted (§ 10 para. 1 BIm-SchG).

Environment – Commercial Waste Ordinance and the second KrWG Amendment Act

Brief Introduction:
The Commercial Waste Ordinance enjoins on 15th December 2016, the German Bundestag approved the Commercial Waste Ordinance (Annex 4) without amendment, as well as the draft Second Act amending the Closed Substance Cycle Act (Annex 5). In the future proceedings, the Federal Council still has to agree in 2017.

The law on circular economy (KrWG) is the heart of the German waste law. Intention of the law is to promote the circular economy in order to protect natural resources and to ensure the protection of human and environment at the generation and management of waste as well as to boost recycling.

In addition to the deletion of the calorific value clause pursuant to section 8 (3) sentence 1 KrWG, an amendment to the ElektroG is intended to replace the trade in Article 2 with an amendment to the ElektroG

  • which may not be linked to the sale of a new device, is limited to five devices per device type;
  • the enforcement is supplemented by the offense of an administrative offense, which can amount to up to 100,000 euro

According to Article 3, the amendment to the ElektroG is to come into effect on 01.06.2017.

Environment – Hexabromocyclododecane (HBCD) waste: the Federal Council decides on a temporary derogation for one year

Brief Introduction:
Hexabromocyclododecane (HBCD) is a brominated flame retardant. It's primary application is extruded (XPS) and expanded (EPS) polystyrene foam that is used as thermal insulation in the building industry.

With the amendment of the Ordinance on Waste Dis posal (AVV) containing Annex 6, the North Rhine-Westphalia compromise application, which had previously been submitted by Saarland, is to be disposed of as hazardous waste only until 31st December 2017. The background is that the application of the AVV to HBCD-containing  thermal insulation materials has led to considerable problems in the disposal of small and medium-sized construction, demolition and roofing companies in many countries. According to the amendment, established waste disposal routes disappear for the waste, which has been classified as non-hazardous so far. According to estimates by all experts and the economy concerned, the development of new paths would be incalculable and time-consuming, especially because plant approvals must be extended in an approval procedure under federal pollution control law. The purpose of the decision is to achieve a clear relief for the citizen, the administration and, in particular, the economy.

Environment – Ordinance on Disposal specialized Company's and Ordinance on Waste Management Officer

Brief Introduction:
The Ordinance on Disposal specialized Companies regulates the requirements of companies and public facilities, which collect, transport, store, treat, utilize or dispose waste as a waste disposal specialized company. The determined require ments shall guarantee a high level of quality. 

The supervision and certification of waste disposal systems are being reorganized with the Ordinance on Disposal specialized Companies. The Ordinance on Waste Management Officers also obliges many companies with product-specific collection and disposal obligations to become a legal waste inspector.

Annex 7 is attached to the „Second Ordinance on the Further Development of Waste Management", published on 07.12.2016, which comes into force on June 1, 2017 in accordance with Article 10.

Article 1 Ordinance on Disposal Firms, Technical Monitoring Organizations and Waste Disposal Associations (Entsorgungsfachbetriebeverordnung - EfbV)

The new Ordinance on Disposal specialized Companies is intended to further extend the tried and tested instrument for the certification of plants to waste management companies and to reduce existing legal and application uncertainties. The quality of the mark is to be improved by establishing minimum standards for establishments, certification organizations and the experts appointed, as well as the regulations on monitoring and certification.

In the future, only experts will be admitted to the assessment of initial treatment facilities with the following qualifications:

  1. Experts with a public order according to § 36 of the Commercial Code (for the assessment according to the ElektroG) or
  2. environmental consultants (with the appropriate Scope, Department 38).

The DIHK will organize as soon as possible the required public order according to § 36 of the Commercial Code.

Ordinance on Waste Management Officers (Abfallbeauftragungsverordnung - AbfBeauftrV)

This Ordinance requires, as before, certain plant operators, as well as - new owners of the property within the meaning of § 27 KrWG as well as the operators of collection systems and sites to appoint a statutory waste disposal officer. Concretely, the obligation to order as well as the requirements for the reliability and specialist knowledge of waste management officers are regulated.

Environment – Ordinance on Incidents (12. BImSchV) obliged operators to inform the public in case of incidents

Brief Introduction: The Ordinance aims the regulation of the protection of human and environment against the consequences of abruptly occurring incidents of technical facilities with emission of hazardous substances.

From 17th January 2017 on, the operator shall provide the public with the information referred to in Annex V, Part 1, permanently, also by electronic means. The information shall be kept up-to-date, in particular, in the event of a change relevant to the incidents  according to § 3 paragraph 5b of the Federal Immission Control Act. The obligation to provide information must be complied with at least one month prior to the start-up of an operating area or before any incidents relevant to the incidents under section 3 (5b) of the Federal Immission Control Act. Other public-law provisions for public information remain unaffected.

Subject to the consent of the competent authority, the publication of information may be omitted for reasons of protection of public or private interests in accordance with the provisions of the Federal Government and the federal states on access to environmental information.
Environment – The legislation on Environmental Impact Assessment (UVPG) requires now an EIA Obligation, if risk of incidents exists.

Brief Introduction:
The legislation on Environmental Impact Assessment (UVPG) regulates the assessment of environmental impact of projects, which may have significant impact to the environment due to its kind, dimension or location.

If the general preliminary examination of the individual case shows that due to the realization of a project which is at the same time an adjacent protection object within the meaning of § 3 Paragraph 5d of the Federal Immission Control Act within the appropriate safety distance as defined in § 3 Paragraph 5c of the Federal Immission Control Act meaning of section 3 (5a) of the Federal Immission Control Act, the possibility exists that a fault occurs within the meaning of section 2 no. 8 of the Ordinance on incidents (StörfallV), the occurrence probability of such a fault increases or the consequences of such a fault may worsen that the project can have a significant negative environmental impact.

Health and Safety – Novelty of the Workplace Ordinance (ArbStättV)

Brief Introduction:
The Ordinance on Workplaces sets targets for the safety and health of workers in setting up and operating workplaces. It contains the basic requirements laid down for workplaces.

In December 2016, the Federal Ministry of Labor (BMAS) passed the amendment of the Workers Ordinance (ArbStättV). It follows that the existing Ordinance on VDU-Workstations (BildscharbV) will cease to exist as a single regulation and will be inserted into the ArbStättV. The formally existing BildScharbV, which is now integrated into ArbStättV, was a regulation on safety and health at work on screen devices with the aim to regulate the health protection at these workplaces.

Niklas Jung

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