Federal Soil Protection Act
| Basic data | |
|---|---|
| Title: | Law on the protection against harmful soil changes and the remediation of contaminated sites |
| Short title: | Federal Soil Protection Act |
| Abbreviation: | BBodSchG |
| Type: | Federal law |
| Scope: | Federal Republic of Germany |
| Legal matter: | Special administrative law , soil protection law |
| References : | 2129-32 |
| Issued on: | March 17, 1998 ( BGBl. I p. 502 ) |
| Entry into force on: | March 1, 1999 |
| Last change by: |
Art. 3 VO of September 27, 2017 ( Federal Law Gazette I p. 3465, 3505 ) |
| Effective date of the last change: |
October 3, 2017 (Art. 8 of September 27, 2017) |
| Please note the note on the applicable legal version. | |
The Federal Soil Protection Act ( BBodSchG ) is a federal German law that came into force in 1999 and , together with the soil protection laws of the federal states, forms the main part of federal German soil protection law . The law is supplemented by the Federal Soil Protection and Contaminated Sites Ordinance (BBodSchV).
scope
The BBodSchG applies to soil in the sense of the legal definition. According to § 2 Para. 1 BBodSchG, this is the upper layer of the earth's crust , insofar as it is the carrier of the soil functions mentioned in Paragraph 2 , including the liquid components ( soil solution ) and the gaseous components ( soil air ), but without groundwater and water beds .
Goals and areas of application
The BBodSchG aims to sustainably secure or restore the functions of the soil ( soil protection ). For this purpose, "harmful soil changes" must be fended off, the soil and contaminated sites as well as the water pollution caused by them must be remedied, and precautions must be taken against adverse effects on the soil. If the soil is affected, impairment of its natural functions and its function as an archive of natural and cultural history should be avoided as far as possible.
The legal protection extends to all soil functions such as the natural function as a basis and space for people to live, raw material storage , location for agricultural and forestry use and part of the natural balance . The law also contains provisions to protect the soil from erosion and sealing ; The main area of application in practice, however, is dealing with "harmful soil changes" caused by contaminated sites.
Important provisions
Harmful soil changes
"Harmful soil changes" within the meaning of Section 2 (3) BBodSchG are impairments of soil functions that are capable of causing dangers, significant disadvantages or nuisances for the individual or the general public. From a legal point of view, this is one of the key terms of the Federal Soil Protection Act, which was modeled on the concept of "harmful environmental impact" in the Federal Immission Control Act .
Contaminated sites
According to Section 2 (5) BBodSchG, contaminated sites are old deposits and old sites that cause harmful changes to the soil or other dangers for individuals or the general public.
Redevelopment
Section 2 (7) BBodSchG provides for different types of soil remediation :
- Decontamination (removal or reduction of pollutants),
- Securing (long-term prevention or reduction of the spread of the pollutants without removing the pollutants) and
- other measures to eliminate or reduce harmful changes in the physical, chemical or biological properties of the soil.
Restructuring compulsory
The central point of contention in legal disputes over remediation is the question of who is obliged to do so. This question is initially regulated by Section 4 (3) BBodSchG.
Following on from the right traditions of general safety law in principle between the adhesion of the polluter (= responsible action, action interferers ) and the state of charge (= state interferer ) distinguished. But the universal legal successor (for example an heir ) of the polluter is also held liable . Responsible for the condition are v. a. the property owner, the owner of the actual power (e.g. the tenant of an area), but also the previous owner if he transferred ownership of the property after the law came into force on March 1, 1999 ( Section 4 (6) BBodSchG).
In principle, the person who caused a harmful change in the soil is liable without limitation for the remediation; he has to use his entire fortune . However, the extent of the liability of the person responsible for the condition (disruptor of the condition) is very controversial: He is not involved in the creation of the contaminated site and is therefore "innocently" held liable. The Federal Constitutional Court (BVerfG) confirmed, among other things, in a judgment of February 16, 2000, the constitutionality of liability for malfunctions against the background of the fundamental right to property ( Art. 14 GG); the legislature could create such regulations within the framework of the structuring of the content and limitations of property. The owner regularly has the legal and actual possibility of influencing the thing and thus also the source of danger. The responsibility for the state finds its legitimizing reason in the possibility of influencing the thing causing the danger through mediation. The possibility of economic use and exploitation of the property corresponds to the public law obligation to bear the burdens resulting from the object and the risks associated with the possibility of use.
However, the Federal Constitutional Court has limited the liability of the person responsible for the condition for reasons of proportionality : the upper limit of use is usually the market value of the unencumbered property. However, liability must be further limited in individual cases, especially if the property represents the essential part of the property of the owner and is the livelihood for him and his family. On the other hand, liability beyond the market value may come into consideration if the owner was aware of the circumstances that led to the contaminated site (e.g. use as a gas station) when the property was purchased.
literature
- Hans-Peter Vierhaus: The Federal Soil Protection Act, New Legal Weekly (NJW) 1998, pp. 1262–1269.
- Ludger-Anselm Versteyl, Wolf D. Sondermann: BBodSchG. Federal Soil Protection Act. Comment. Verlag CH Beck, Munich, 2nd edition 2005. ISBN 9783406522857 .
- Christian Bickel: Federal Soil Protection Act. Comment. Heymanns Verlag, 3rd edition 2004. ISBN 9783452247681 .
- Walter Frenz : Federal Soil Protection Act. Comment. Verlag CH Beck, Munich, 2000. ISBN 9783406465710 .
- Andreas Henke: Functional soil protection. The concept of functional protection according to the BBodSchG and the BBodSchV in the area of tension between media environmental protection and hazard prevention. Berliner Wissenschafts-Verlag, 2003. ISBN 9783830503736 .
- Georg Franz: Those responsible for the remediation according to the Federal Soil Protection Act - Requirements and limits of contaminated sites liability. Duncker & Humblot Publishing House, Berlin, 2007. ISBN 9783428122745 .
- Peter Sieben: The principle of sustainable development and soil protection dissertation, Bonn, 2002.
Web links
Individual evidence
- ↑ Text of the Federal Soil Protection and Contaminated Sites Ordinance
- ↑ BVerfG, judgment of February 16, 2000, Az. 1 BvR 242/91, BVerfGE 102, 1 - contaminated sites
