The German regulatory context of contaminated site remediation

IED (Art. 22) – Development of guidance

concerning the soil and groundwater baseline report

Joerg Frauenstein UBA - Federal Environment Agency, Germany

23.+24.10.2012 Common Forum Bilbao2

Agenda

• Introduction and European activities• Implementation of IED into German Law• Baseline Report - approach, content, limitations• Site closure and Remediation• Comparison Base line – Closure; criteria to

assess significant changes in soil and groundwater

• Outlook

23.+24.10.2012 Common Forum Bilbao

Introduction

DIRECTIVE 2010/75/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 24 November 2010 on industrial emissions (integrated pollution prevention and control)

Commencement: 06.01.2011 Transposition on the MS level within two years Forerunner - „IPPC Directive“

3


Three Pillar Policy on the Environment

preventive regulatory instruments

regulatory instruments


prevent, reduce and as far as possible eliminate pollution arising from industrial activities in compliance with the ‘polluter pays’ principle and the principle of pollution prevention;

intervention at source; taking into account the economic situation and

specific local characteristics of the place in which the industrial activity is taking place.

Objectives and principles


Operators should submit permit applications containing the information necessary for the competent authority to set permit conditions.

Operators should be able to use information resulting from the application of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment.

Permit application


Requirements for Site closure and remediationProblem definition

IPPC: return the site to a “satisfactory state”

Wide differences of interpretation across MS and large variation in the level of environmental protection!

IED approach

“Historical contamination”: risk-based regime

“New contamination”: no-deterioration regime

Baseline report will be a useful tool to boost prevention and clarify liability!


Site closure and remediation – baseline report

Article 23 (site closure and remediation)

Baseline report required, where the activity involves the use, production or release of dangerous substances, having regard to the possibility for contamination

Baseline report prepared before starting operation or before a permit is updated

Criteria on content of baseline report to be established through comitology!


Site closure and remediation – baseline reportArticle 23

Once the activity stops operating then the operator assesses the state of soil and groundwater contamination by dangerous substances

The operator compares the final assessment and the initial baseline report

Where the comparison indicates contamination then the operator must return the site to the initial state established in the baseline report

=> no-deterioration approach


New obligations - Summary Baseline report is part of the permit application for IED

installations. A Baseline report is required if the activity involves the use,

production or release of dangerous substances, having regard to the possibility for contamination

Baseline report should allow a qualified and quantified comparision between start of operation and site closure.

Upon definitive cessation: Where the installation has caused significant pollution of soil or groundwater by relevant hazardous substances the operator shall take the necessary measures to address that pollution so as to return the site to baseline state. For that purpose, the technical feasibility of such measures may be taken into account.


Implementation into German Law Deadline 06. January 2013 one-to-one transposition Federal Cabinet 23.05.2012 Federal Council of Germany 6. 07. 2012 +

November/December 77. Conference of Ministers for the Environment from

the German Laender (UMK)– Guideline for the overall execution of national

regulations related to IED (LAI, LABO, LAWA und LAGA)

– Commissioning a working group to prepare a guideline how to compile a baseline report.


Guideline- Stucture IntroductionLegal Framework (e.g. Relation to soil and

groundwater law, preserving evidence )Baseline report (criteria for relevant hazardous

substances, definition „site of installation“, historic and current information, site investigation concept, quality assurance)

course of action depending on former use (Brownfield, Greenfield)

Annexes (e.g. proposed outline for a baseline report)


for area of application of IED only ( many industrial installation are not covered by IED)

for all new installions restricted for installation amendments, if new

substances and mixtures are inserted for existing istallations dealing with relevant

hazardous substances in case of a first amendment

Baseline Report


Baseline ReportPart of the permit applicationSubmission at least until the start of construction or

bringing installation into serviceApproval of the baseline report during permission by

competent authoritiesPreserving Evidence about the initial level of pollutionReference for determining remediation after closureProvide a basis for provisos within the permit

application; e.g. to ensure remediation needs with site closure


Limitations of the Baseline Reportrelated to „relevant hazardous substances “ (Art.

3 Nr. 19 IED)! „hazardous“? „relevant“? quantity ?inserted amountchemical characteristics of substances + fate and

behaviourcapability to affect soil and groundwaterHow to assess new substances and mixtures?

Restricted to the site of installation!


Installation with IED relevance?Existence of relevant and hazardous substances?Definition „site of installation“Use of exiting data and information whenever possible! Adjustment of site specifc investigation (case related)Use of existing legally binding valuesas much as possibleSurvey about the usability of existing data und informationPreserving Evidence will need a comprehensive documentation (sampling points, used analytical methods etc.) Repetitious documentation



Approach to verify quantity relevance

Group Flow/ Capacity Substance e.g. for H-Set

1 ≥ 10 [kg/a] oder [l] For very small amounts

H 350

2 ≥ 100 [kg/a] oder [l] For small amounts

H 411

3 ≥ 1.000 [kg/a] oder [l] For medium amounts

H 412

4 ≥ 10.000 [kg/a] oder [l] For huge amounts

H 312


Content of a baseline report

Minimum requirements:

– information about recent and former use about the site of installation

– available data about concentration and flux of hazardous substances in soil and groundwater


Site investigation concept - case related and site specific (targeted and non-targeted sampling)– Greenfield – Brownfield– quality and validity of data and

information, sampling points, sampling and analytical methods

– size of the site, location of sources etc.– repetitious documentation on soil and

groundwater sampling and used analytical methods!

Content - baseline report


Comparision baseline - site closure

Baseline report will be the main instrument to preserve evidence!

determination of relevant soil-/groundwater contamination

Attention should be paid to : Relocation and degradation of substances and

metabolites Additional impacts from outside


OutlookObligations to operators:• baseline report• necessary measures to address that pollution Challenges for administative execution• a broad variety of cases (installation, industrial branches, substances, mixtures and underground)• coordination among operator and competent authority ( i.g. concept for site investigation)• content, use and approval of existing data• handling with still existing contaminations

How to go further in Germany?


AMEC – Final Report A valuable document with a European wide

survey!The report is: Adressing the most relevant questionsOffering many realistic and pragmatic solutionsDevelpoing serious recommendations how the

Commission should finalise a guidelineBut the report also show „traditional“

differences among member states and issues for European harmonization!


Thank You

Contact: Joerg Frauenstein

Umweltbundesamt Dessau-RosslauWoerlitzer Platz 1, 06813 Dessau-Rosslau

[email protected]

Documents

The German regulatory context of contaminated site remediation