Immission control officer

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An immission control officer is to be appointed in Germany in accordance with the Federal Immission Control Act (BImSchG) if this is necessary due to the type and size of the emission-generating plants operated and requiring approval.

General

Sections 53 to 58 of the BImSchG regulate the principles of the Commissioner for Immission Control . Details are determined by the ordinance on immission control and accident officers (5th BImSchV) issued on this basis .

The representative must be appointed in writing by the operator of the system. The activities of the immission control officer must be precisely described.

A company employee as an immission control officer has special protection against dismissal . In this case, this means that - even one year after being dismissed as pollution control officer - he can only be terminated extraordinarily, i.e. for important reasons ( Section 58  BImSchG).

Historical development

With the Federal Immission Control Act (BImSchG) in its original version of March 15, 1974, the position of the company representative was for the first time anchored in an environmental act.

With the 5th BImSchV of February 14, 1975, the area of ​​the systems requiring approval, the operators of which have to appoint an immission control officer, was defined.

With the ordinance on the specialist knowledge and reliability of the immission control officers (6th BImSchV) of April 12, 1975, the requirements for their specialist knowledge and reliability were regulated in more detail.

With the revised 5th BImSchV on immission control and accident officers of July 30, 1993, the essential parts of which came into force in August 1993, the 5th BImSchV of 1975 on immission control officers and the 6th BImSchV of 1975 on specialist knowledge and reliability the immission control officer newly summarized or supplemented and expanded to include appropriate regulations for the accident officer.

The systems for which an immission control officer has to be appointed were listed in the 5th BImSchV in Appendix I of July 30, 1993. The list largely corresponded to the plant catalog of the old 5th BImSchV from 1975. However, an expansion of the obligation to order resulted from the Investment Facilitation and Housing Land Act of April 22, 1993, with which the waste disposal plants were transferred from the Waste Act to the Federal Immission Control Act. In addition, the systems that are named there have been adapted to the development of the state of knowledge.

Practice had shown that regular advanced training at a high technical level is necessary in order to keep pace with the rapid development of technical progress and the resulting environmental impacts. For this reason, the amendment to the 5th BImschV ordinance of July 30, 1993 expressly provided for the obligation to provide regular training.

Order

Obligated

are:

  • Operators of plants that require approval according to the BImSchG (see § 4 BImSchG with 4th BImSchV ) that meet certain additional hazard characteristics. The law establishes the obligation; the types of systems concerned are listed in Appendix I to Section 1 of the 5th BImSchV.
  • Operators of other systems that require or do not require approval, who are obliged to do so in individual cases by an official order. The appointment of an immission control officer for non-emission-intensive systems may only be ordered if this is necessary for reasons of immission control.

In the 5th BImSchV, only those plants requiring approval from the plant catalog of the 4th BImSchV are listed for which the requirements of Section 53 (1) BImSchG are to be regarded as fulfilled in terms of their type and size. The law specifies the following criteria for this:

  • Of the plants outgoing emissions ,
  • technical problems of emission control or
  • Suitability of the products, when used as intended, to cause harmful environmental effects through air pollution, noise or vibrations.

In the case of systems requiring approval that are not listed in the 5th BImSchV, an official order may be required to appoint an immission control officer in individual cases. This can be combined with the approval as a secondary provision or ordered at a later point in time.

Operators of plants that do not require a permit can also be obliged to order by an official order if the criteria mentioned in Section 53 (1) are met.

Ordered

As the immission control officer, the operator cannot designate himself to be the immission control officer, even if this is not directly stated in the law. The operations manager cannot be appointed as pollution control officer either, since general case law assumes that independence is then not given.

number

The law does not regulate how many pollution control officers are to be appointed for a company. Normally, an immission control officer is sufficient to meet the company's requirements. Section 53 (1) sentence 1 BImSchG speaks of one or more operational officers for immission control. § 1 5th BImSchV is usually based on an immission control officer. According to § 2 of the 5th BImSchV, the authority can order that several immission control officers must be appointed. B. if the spatial separation or the locations in widely spaced parts of the factory make it necessary to ensure that the tasks to be performed can be carried out. The degree of difficulty and the scope of the tasks to be solved are decisive.

The number of immission control officers is based on the tasks described in § 54 BImSchG. If several company officers are appointed for immission control, it is necessary to coordinate their activities. This can be done through integration into a special environmental protection department or the establishment of an environmental committee. According to § 2 5th BImSchV, the competent authority can order that the operator of a facility within the meaning of § 1 must appoint several immission control officers so that the proper fulfillment of the tasks set out in § 54 BImSchG is guaranteed.

However, according to § 3 5th BImSchV, it is also possible to appoint only one immission control officer, although the operator operates several systems according to § 1 BImSchV, as long as it is ensured that the tasks according to § 54 BImSchG are properly fulfilled.

Corporations

The ordinance may allow a group that is the operator or several operators of systems within the meaning of § 1 5th BImSchV to appoint only one authorized person for the entire group as pollution control officer if the company is part of a group. However, this is only possible if the group management is authorized to give instructions to the individual companies in the areas relevant to the BImSchG and the specialist knowledge and reliability of the immission control officer ensures that the tasks are carried out properly. Relevant areas in the BImSchG with regard to the authority to issue directives are Section 54 Paragraph 1 Sentence 2 No. 1 and Section 56 Paragraph BImSchG.

Not employees

From Sections 53 and 54 BImSchG one can infer that the legislature assumes that the immission control officer is a member of the company or company to which the systems requiring approval belong. However, the appointment of non-company immission control officers is not excluded. The competent authority may, upon request, allow operators of systems within the meaning of Section 1 (1) 5th BImSchV to appoint one or more non-company immission control officers. The prerequisite for this is that the proper fulfillment of the duties of the immission control officer specified in § 54 BImSchG is not jeopardized. It can be, for. B. are employees of engineering offices or technical monitoring organizations. In practice, it is often the only way for small or medium-sized companies to meet the obligation to place an order with a reasonable economic effort. However, the prerequisite for the appointment of an external person is an application to the competent authority, which is to comply with this application, if this does not jeopardize the proper fulfillment of the tasks assigned to the company officer by law. (cf. § 55 BImSchV and § 4 of the regulation on company representatives for waste). If it can be demonstrated to the authority that the external person has the necessary professional qualifications, that he has been granted the same powers and that a monitoring activity has been agreed with him, the frequency and intensity of which corresponds to that of an internal company representative, there is no reason for the authority to To refuse the appointment of an external company representative (see § 5 BimSchV).

Exceptions

For smaller businesses, diversified and differentiating specialist regulations are made available in accordance with the requirements of the Federal Immission Control Act on the one hand and their economic possibilities on the other. From the point of view of reducing costs, the possibility of appointing a joint pollution control officer is important. According to § 6 5th BImSchV, the individual operator can be exempted from his obligation upon request by the competent authority. The authority decides this, taking into account Section 53 (1), if it assumes that it is not necessary according to these criteria.

tasks

He has the right and the duty to provide the operator and employees with technical advice on reducing the environmental risks that (can) arise from the system and its products, and in particular has to work towards environmentally friendly processes and products and to participate in their development and implementation. He is involved in the decisions of the management and reports annually to it, § 54 BImSchG.

Personal requirements

He or she must be competent (§§ 5 to 7, 5th BImSchV) and reliable. A punishment for offenses under environmental law or if a fine of more than EUR 500 has been imposed for such obligations or for drugs or weapons, for example, or other obligations as a company representative have been violated ( § 10 5th BImSchV) speak against the latter requirement .

Improper conduct

Anyone who, in breach of duty, does not, for example, appoint a pollution control officer, disregards his rights of participation, does not furnish him or does not act as an authorized person, does not commit a criminal offense or administrative offense.

The competent authority can, however, ensure compliance with the legal obligation by way of administrative compulsion. In addition, in the case of plants that require approval, an operating ban or even a revocation of the approval can be considered, as well as liability for the effects of neglecting such obligations.

literature

  • Martin J. Ohms: Practical Guide to Immission Control Law , page 34, “Par. 1.1.1 Several company officers in one company "

Individual evidence

  1. ↑ Text of the Ordinance on Immission Control and Incident Officer
  2. ↑ § 53 BImSchG