Key Benefits:
55. Federal law on environmental liability for the prevention and remedying of environmental damage (Bundes-Umweltthaftungsgesetz-B-UHG)
The National Council has decided:
Objectives
§ 1. On the basis of the "polluter pays" principle, this federal law regulates measures to prevent and rehabilitate environmental damage.
Scope
§ 2. (1) This federal law shall apply to:
| 1. |
damage to waters and to any imminent threat of such damage by the pursuit of one of the professional activities listed in Annex 1; and |
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| 2. |
damage to the soil and to any imminent danger of such damage by the exercise of one of the occupational activities listed in Annex 1, Z 1 to 11. |
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(2) If an environmental damage or an imminent danger of such damage is caused by a pollution which is not clearly defined, this federal law shall be applied only if a causal link between the damage and the activities is caused by the damage caused by the damage to the environment. individual operator can be identified.
(3) Further obligations arising from direct applicable Community legislation and laws and regulations and regulations adopted on the basis of which the prevention or remedying of environmental damage is rules, remain unaffected.
(4) The provisions of the civil law in the field of damages shall remain unaffected.
Exceptions
§ 3. (1) Environmental damage and the imminent threat of such damage do not fall under this federal law if it is caused
| 1. |
by armed conflict, hostilities, civil war, insurgency or terrorist attacks, or |
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| 2. |
by an extraordinary, incalculable and non-influenceable natural event. |
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(2) This law does not apply to environmental damage and not to the imminent threat of such damage, insofar as it is within the scope of the 1999 Atomic Liability Act, BGBl. I No 170/1998.
(3) This federal law shall not apply to activities whose main purpose is national defence or international security, nor to activities whose sole purpose is to protect against natural disasters.
Definitions
§ 4. The following definitions shall apply to this Federal Act:
| 1. |
Environmental damage |
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| a) |
any significant damage to the aquatic environment, that is any damage which has a significant adverse effect on the ecological, chemical or quantitative status or the ecological potential of the waters concerned in the spirit of the Water Law 1959 (WRG 1959), BGBl. No 215, and is not covered by an authorization in application of the 1959 WRG, and |
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| b) |
any degradation of the soil, which is any soil contamination, which poses a significant risk of adverse effects on human health caused by the direct or indirect introduction of substances, preparations, organisms or micro-organisms in, on or under the ground. |
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| 2. |
Damage or injury shall be deemed to be a directly or indirectly occurring detectable adverse change in a natural resource or impairment of the function of a natural resource. |
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| 3. |
The imminent threat of environmental damage is given if there is a sufficient probability that such damage will occur in the near future. |
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| 4. |
As a professional activity, any activity listed in Annex 1 which is carried out in the course of an economic activity, a business activity or a business with or without a profit-making purpose, whether or not such activity is carried out provisions of private law or public law. |
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| 5. |
The operator shall be deemed to be any natural or legal person governed by private or public law who pursues or determines the professional activity, either on its own or by means of a code, including the holder of an authorisation or authorisation, and of the holder of the Person carrying out the notification or notification. If the activity is no longer exercised and the previous operator can no longer be used, the owner (each co-owner) of the property on which the injury is based shall be replaced by the owner (s) of the property, provided that he/she is responsible for the installations or measures, of that the injury is based on, consented to, or willingly condoned, and subdued reasonable defensive measures. |
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| 6. |
The emission of substances, preparations, organisms or micro-organisms into the environment as a result of human activities shall be considered as the emission. |
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| 7. |
As a preventive measure, any measure taken following events, acts or omissions which have caused an imminent threat of environmental damage, shall be taken to avoid or minimise such damage. |
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| 8. |
As a reorganisation measure, any activity or combination of activities, including mitigating and insinuating measures, shall apply in the meaning of Annexes 2 and 3 with the aim of regenerating damaged natural resources or impaired functions. , to manufacture, restore, or replace, or create an equivalent alternative to these resources or functions. |
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| 9. |
As a natural resource, waters and soil are considered; the functions and functions of a natural resource are the functions that a natural resource fulfils for the benefit of another natural resource or the public. |
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| 10. |
As a starting condition, the state of the natural resources and functions which existed at the time of the damage occurred and which would have existed if the environmental damage had not occurred and which was determined on the basis of the best available information. . |
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| 11. |
As a restoration, including natural recovery, the return of damaged natural resources or impaired functions to the initial state and, in the event of damage to the soil, shall be considered in the case of water. Elimination of any significant risk of impairment of human health. |
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| 12. |
Costs in the sense of this federal law are the costs justified by the need for the proper and effective implementation of this federal law, including the costs of testing an environmental damage, a direct cost the risk of such damage, of alternative measures and of administrative and procedural costs and of the cost of the enforcement of the measures, the costs of data collection, other subsistence costs, financing costs and the costs incurred by the Costs of supervision and supervision. |
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Prevention
§ 5. (1) If an environmental damage has not yet occurred, but there is an imminent threat of such damage, the operator shall immediately take the necessary preventive measures.
(2) If the imminent threat of environmental damage cannot be averted, despite the adoption of the preventive measures provided for in paragraph 1, the operator shall immediately inform the Authority of all relevant aspects of the facts.
(3) In the case of the Authority, the Authority shall be entitled to provide information on all relevant aspects of the damage caused by the imminent threat of environmental damage, and shall be entitled to provide information on all relevant aspects of the damage caused by any operator concerned. To request facts and to enter properties and installations through their organs, and to take samples for this purpose. The supervisory, control and investigative powers laid down by other administrative provisions shall remain unaffected.
(4) If the measures necessary for the application of the direct risk of environmental damage are not taken, not sufficiently or not in good time, the Authority shall apply the appropriate measures to the operator or, in the event of danger, in the event of delay, and, if necessary, to have it carried out without delay in order to replace the costs by the operator. In any case, if a water supply is at risk, there is a danger in default.
(5) Measures which are the subject of an administrative order or an administrative order in accordance with paragraph 4 do not require an authorization to comply with federal regulations. § 72 WRG 1959 shall apply mutasensitily.
(6) If the imminent threat of environmental damage falls within the scope of this Act, the administrative measures taken for the time being in accordance with other environmental regulations of the Federation shall apply in order to avoid the risk as measures in the sense of of this provision.
Remediation activities
§ 6. (1) If an environmental damage has occurred, the operator shall immediately-irrespective of any understanding which has taken place in accordance with Section 5 (2)-immediately
| 1. |
to inform the competent authority of all relevant aspects of the facts, |
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| 2. |
to take all necessary steps to immediately control, contain, remove or otherwise treat the pollutants concerned and their harmful factors in order to have adverse effects on human health as well as further damage to the body of water, of the soil and further impairments of functions, and |
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| 3. |
take the necessary reorganisation measures in accordance with § 7. |
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(2) In the case of the Authority, where there is evidence to believe that environmental damage may have occurred, it may require any operator concerned as the responsible person to provide all the information necessary for the assessment of the situation and to: For this purpose, they also enter properties and installations through their organs, examine and take samples. The supervisory, control and investigative powers laid down by other administrative provisions shall remain unaffected.
(3) If an environmental damage has occurred and if the arrangements provided for in paragraph 1 (2) or the reorganisation measures referred to in paragraph 1 (3) are not met, not sufficiently or not in good time, the Authority shall take the appropriate measures to the operator , or in the event of a risk of delay, to be immediately ordered and, if necessary, to be carried out without delay in exchange for the replacement of the costs by the operator. In any case, if a water supply is at risk, there is a danger in default.
(4) Measures which are the subject of an administrative order or an administrative order in accordance with paragraph 3 do not require an authorization to comply with federal regulations. § 72 WRG 1959 shall apply mutasensitily.
Determination of remedial measures
§ 7. Where damage to a body of water has occurred, the operator shall have possible remedial measures in accordance with Annex 2, if the soil has been damaged, the operator shall identify possible remedial measures in accordance with Annex 3. The operator shall notify the authority of the remedial measures provided for, unless the authority has already been active in accordance with Section 6 (3).
(2) In the opinion of the Authority, the measures referred to in the second sentence of paragraph 1 shall not be sufficient to immediately control, contain, eliminate or otherwise control the pollutants in question or their harmful factors. , and in order to prevent further damage to the environment and other adverse effects on human health or any further deterioration of functions, the Authority shall, in accordance with Annex 2 or 3, require the operator to: to apply measures. Such measures may also exceed the arrangements made by the Authority in accordance with Section 5 (4) or § 6 (3) if this is necessary to achieve the objectives set out in Annex 2 or 3.
(3) The Authority shall publish the essential content of the displayed and the reorganisation measures to be taken by the Authority. It has to inform the interested parties (affected parties) in person, and to take into account the comments received in good time.
(4) Measures which are the subject of an administrative order or an administrative order in accordance with paragraph 2 do not require an authorization to comply with federal regulations. § 72 WRG 1959 shall apply mutasensitily.
(5) Where several damage to a water or several damage to the soil has occurred in such a way as to ensure that the Authority cannot ensure that the necessary remedial measures are taken at the same time, the Authority shall: decide which damage should be remedied first. In particular, it shall have the nature, extent and severity of the individual claims and risks to human health and the possibility of returning the body of water or soil to its initial state through the natural course of action. of things.
(6) If an environmental damage falls within the scope of this Act, the administrative measures taken for the time being in accordance with other environmental regulations of the Federal Government to reduce or remediate the risk as measures in the sense of this law shall apply. Determination.
Costs of preventive and remedial activities
§ 8. (1) Unless otherwise determined in the following paragraphs, the operator shall bear all the costs arising from § 4 Z 12 of the avoidance and remediation activities carried out under this Federal Act, including the costs of: administrative appeal procedures in which he is subject. The Federal Minister for Agriculture, Forestry, the Environment and Water Management is authorized, in agreement with the Federal Minister for Finance and the Federal Minister for Economic Affairs, Family and Youth, and after hearing the provincial capitals, with Regulation in the interest of simplifying the identification of detailed rules on administrative and procedural costs to be reimbured, costs of enforcement of measures and other overheads.
(2) Where preventive or restorative measures are to be carried out by the Authority against costs incurred by the operator, the Authority shall at the same time provide the operator with the lodging of a security or other appropriate guarantees at the level of the operator. of the estimated costs likely to be incurred by the Authority. The advance is to be cancelled if the pledge provides proof in the sense of paragraph 3. Otherwise, the security will be offset against the costing of costs by the legal entities, which bear the burden of the authority, with the cost of the cost.
(3) The operator shall not bear the costs of the avoidance and remediation activities if he proves that the damage or imminent threat of damage is
| 1. |
by a third party (those persons who are not acting on behalf of the operator or the bodies with which the activity is carried out, in accordance with their provision) have been caused and have occurred, although appropriate security measures have been taken and it further proves that in the event of failure of all the necessary conditions for the application of this federal law in the sense of § 2 (1) (1) (1) 1 also none of the provisions of § 31 WRG 1959 are subject to water purification is available, or |
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| 2. |
to comply with orders or orders of a public authority, provided that they are not orders or orders due to emissions or incidents caused by the operator's own activities. |
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| The operator shall be entitled, under the same conditions, to the replacement of the costs incurred by the operator in respect of the necessary preventive and remedial measures. The Authority shall take a decision on the claims made in accordance with this paragraph. |
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(4) Cost-carrying obligations under the above paragraphs shall apply to the legal successor in cases of a full succession of corporate law.
(5) If the costs referred to in the preceding paragraphs cannot be brought forward in the case of the costing of costs, then the owner (each co-owner) of the property on which the injury is based may be obliged to bear the cost of the costs, in so far as it consented to, or willingly condoned, the installations or measures on which the injury is based and to refrain from taking reasonable defensive measures. This also applies to the legal successor of the property owner under the conditions of § 31 para. 4 second sentence WRG 1959.
(6) The power of a person employed in accordance with the preceding paragraphs to assert his own expense vis-à-vis third parties before the ordinary courts shall remain unaffected.
(7) The Federal Government, represented by the Federal Minister for Agriculture, Forestry, the Environment and Water Management, has party status in administrative proceedings concerning costs and revenue in accordance with the preceding paragraphs.
Authority
§ 9. (1) The district administrative authority shall be responsible for the measures provided for in this Federal Act, in the local sphere of activity of which the avoidance or remediation measures to be taken or to be taken have been to be taken.
(2) The competent authority shall be responsible for determining which operator has caused the damage or imminent threat of damage, to determine the relevance of the damage and to determine what remedial measures are to be taken in accordance with Annex 2 or 3. will be met. To this end, the competent authority shall have the power to require the operator concerned to carry out its own assessment and to provide all the necessary information and data.
(3) Where official decisions on preventive or remedial measures are not notified, the operator, at the expense of which the measures are taken, shall, on request, be immediately informed of the reasons and the open- Legal remedies to be lecturing.
(4) In the event of a rehabilitation of the soil, the Authority shall inform the municipality of the restoration objective on which the remediation is based.
Cross-border environmental damage
§ 10. (1) Where environmental damage has occurred which may have an effect on the territory of another Member State of the European Union, the Authority shall inform the Member State concerned.
(2) Where an authority establishes an environmental damage caused outside the territory of the Republic of Austria, it may do so by the Commission of the European Communities and the other Member States of the European Union which are eligible to do so. Union and to these Member States, the costs of preventive and restorative measures incurred in the case of the legal entities which bear the burden of the Authority.
(3) In the case of transboundary environmental damage, the authorities in whose authority the environmental damage or the imminent threat of such damage has become effective in Austria shall have the competent authorities of the other competent authorities in Austria. Member States of the European Union shall cooperate, including in the form of an appropriate exchange of information, in order to ensure that prevention and, where necessary, remediation activities are carried out in respect of such damage are carried out.
(4) Special state-contractual arrangements shall remain unaffected.
Environmental complaint
§ 11. (1) Natural or legal persons who may be infringed on their rights by an environmental damage which has occurred may, in a local area where the alleged environmental damage has occurred, be subject to the following: Request written complaint to act in the sense of § 6 and § 7 paragraph 2. The right to environmental complaints is also the environmental lawyer (§ 2 para. 4 of the Environmental Impact Assessment Act 2000-UVP-G 2000, BGBl. No 697/1993) and those environmental organisations which are recognised in accordance with Article 19 (7) of the UVP-G 2000, in each case within the framework of their local recognition.
(2) As rights within the meaning of paragraph 1, first sentence apply
| 1. |
the protection of human life and health, and |
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| 2. |
in relation to waters: existing rights in the sense of § 12 para. 2 WRG 1959 and |
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| 3. |
in relation to the ground: ownership or other rights in rem on a property concerned, but not the possibility of a mere reduction in the value of the transport value. |
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(3) In the complaint, the existence of the conditions set out in paragraph 1 is to be made credible, with the assistance of the factual information and data. Unless it is self-competent, the seized district administrative authority shall immediately forward this complaint to the competent authority in accordance with Section 9 and inform the complainant thereof.
If the Authority considers that there is no right to appeal in the sense of paragraphs 1 and 2, that there is no environmental damage, or where all the necessary measures or remedial measures have already been taken, the Authority shall be informed of the following: Decision to be adopted.
Party Position
§ 12. In the proceedings pursuant to § 6 and § 7 (2), the party status of the operator is not the same as the operator:
| 1. |
persons and organisations which have brought an environmental complaint pursuant to Article 11 (1), |
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| 2. |
those persons and entities referred to in § 11 (1) who have stated in writing within two weeks of their publication in accordance with Section 7 (3) that they wish to participate in the proceedings as a party. |
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Legal protection
§ 13. (1) In the event of a trade enacted in application of this Federal Law, the parties shall have the right of appeal to the independent administrative Senate of that Federal State in which the authority which issued the decision shall have its seat.
(2) The Federal Government, represented by the Federal Minister for Agriculture, Forestry, the Environment and Water Management, is entitled to appeal to the Verwaltungsgerichtshof (Administrative Court) against last-instance decisions concerning costs and revenues under this Federal Act pursuant to Art. 131 (2) B-VG.
Criminal provisions
§ 14. (1) An administrative surrender shall be punishable by a fine of up to € 3 500, who shall
| 1. |
does not or does not immediately carry out the communication of the Authority prescribed in accordance with § 5 para. 2 or the agreement of the Authority prescribed in accordance with § 6 (1) Z 1 |
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| 2. |
The person concerned violates the duty to carry out the duties pursuant to Section 5 (5), Section 6 (4) or Section 7 (4). |
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(2) An administrative surrender shall be carried out and shall be punishable by a fine of up to € 15 000, who does not grant the information provided for in § 5 para. 3 or the information provided for in § 6 para. 2, or does not immediately give it or the checks and investigations provided for there disabled.
(3) An administrative surrender is committed and is punishable by a fine of up to € 35 000
| 1. |
shall not immediately take the preventive measures required pursuant to Article 5 (1), |
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| 2. |
shall not immediately take the necessary measures pursuant to Article 6 (1) (2), |
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| 3. |
does not immediately identify the remedial measures required pursuant to § 6 (1) Z 3 and § 7 (1) and indicate to the Authority, or |
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| 4. |
does not take the necessary remedial measures pursuant to § 6 (1) Z 3 in accordance with § 7. |
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(4) A surrender according to para. 1 to 3 shall not be punished if it satisfies the facts of a court-punishable act.
Reports
§ 15. The Federal Minister for Agriculture, Forestry, the Environment and Water Management is empowered to regulate the reports to be made by the Commission of the European Communities on matters relating to environmental liability.
References
§ 16. Insofar as provisions of other federal laws are referred to in this Federal Act, these are to be applied in their respectively applicable version.
Personal name
§ 17. In the case of the personal names used in this Federal Act, the chosen form is valid for both sexes.
Transitional provisions
§ 18. This federal law is not applicable
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damage caused by emissions, events or incidents that occurred prior to the entry into force of this Federal Law, |
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| 2. |
for damage caused by emissions, events or incidents which have taken place after the entry into force of this Federal Law, provided that they are due to an activity which is unquestionably prior to the entry into force of this Federal law was ended, and |
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| 3. |
for damage, if more than 30 years have passed since the emissions caused by the damage, events or incidents. |
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References to Community law
§ 19. This federal law provides for Directive 2004 /35/EC on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 206, 22.7.2004, p. No. L 143/56 of 30 April 2004, as amended by Directive 2006 /21/EC on the management of waste from the extractive industries and amending Directive 2004 /35/EC, OJ L 327, 30.12.2004, p. No. OJ L 102/15 of 11 April 2006, transposed into Austrian law.
Enforcement clause
§ 20. (1) The Federal Minister for Agriculture, Forestry, the Environment and Water Management is entrusted with the enforcement of this Federal Act, unless otherwise determined by Section 2, but with regard to Section 8 (1) in agreement with the Federal Minister for Finance and the Federal Minister for Economic Affairs, Family and Youth.
(2) The Federal Minister of Justice is responsible for the enforcement of § § 2 (4) and (8) (6).
Fischer
Faymann
ANNEX 1
ACTIVITIES IN THE SENSE OF § 2 (1):
| 1. |
The operation of installations requiring approval or approval in accordance with federal legislation implementing Directive 96 /61/EC concerning integrated pollution prevention and control, OJ L 327, 30.12.1996, p. No. L 257 of 10. 26, as in particular Section 77a of Annex 3 of the Commercial Code 1994 (GewO 1994), BGBl. No 194, Section 37 (1) iVm Annex 5 of the Waste Management Act 2002 (AWG 2002), BGBl. 102, § 121 of the MinroG (MinroG) Act, BGBl. No 38/1999, § 5 (3) of the German Emissions Protection Act (ETS), Federal Law Gazette (BGBl). I No 150/2004. This shall not apply to the activities covered by Z 12 and to the operation of installations or parts of installations which are mainly used for the purposes of research, development and testing of new products and processes. |
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| 2. |
Waste management measures, such as the collection, transport, recovery and disposal of non-hazardous and hazardous waste, including the monitoring of such operations and the monitoring of landfills according to their Closure, provided that these measures are carried out by a waste collector or a treatment handler according to § 2 (6) (3) or (4) AWG 2002. |
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| 3. |
Measures of the management (minimisation, treatment, recovery and disposal) of mineral waste, which are waste which are directly related to the search, extraction, processing and storage of mineral raw materials as well as the operation of quarries , by means of facilities and companies which acquire mineral raw materials in open-cast mining or underground mining for economic purposes, including extraction in the mining of the wellbore and the preparation of the materials obtained. This does not apply to the discharge of water and the re-introduction of pumped groundwater, which is not permitted without special authorisation. This shall not apply in so far as the competent authority meets the requirements for the deposition of non-hazardous wastes arising from the search for mineral raw materials, with the exception of oil and evaporites other than gypsum and anhydrite, as well as for the Deposits of unpolluted soil and of waste which is produced, prepared and stored by peat shall be reduced or suspended. |
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| 4. |
All discharges, discharges or transfers to waters which require the approval of the WRG 1959. |
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| 5. |
Water abstraction and upsetting of waters requiring approval under the 1959 WRG. |
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| 6. |
The manufacture, use, storage, administration, refilling, release into the environment and the internal transport of |
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dangerous substances and dangerous preparations in the sense of § § 2 and 3 of the Chemicals Act 1996 (ChemG 1996), BGBl. I No 53/1997, |
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Plant protection products within the meaning of § 2 (1) of the Plant Protection Products Act 1997, BGBl. I No 60, and |
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Biocidal products within the meaning of § 2 paragraph 1 Z 2 of the Biocidal Products Act (Biocide G), BGBl. I No 105/2000, |
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| insofar as these activities are not covered by Z 13. |
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| 7. |
The transport of dangerous or polluting goods by road, rail, inland waterway, sea or air (§ 1 para. 1 to 3 of the German Dangerous Goods Transport Act (GGBG), BGBl. I No 145/1998). |
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| 8. |
The operation of the under-lit. a) unless they are already covered by one of the preceding paragraphs, provided that they require a permit issued in 1994, the AWG 2002, the MinroG or the EC-K, in relation to the derivation of the under-lit. b listed pollutants into the atmosphere: |
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| a) |
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Coking plants |
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Refineries for crude oil (excluding companies producing only oil lubricants) |
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Plants for coal gasification and coal liquefaction |
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Thermal power plants and other combustion plants with a rated heat output of more than 50 MW |
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Rust and sinter plants with a capacity of more than 1 000 tonnes of ore per year |
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Integrated systems for the production of pig iron and crude steel |
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Iron foundries with a melting plant with a capacity of more than 5 tonnes |
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Installations for the production and melting of non-ferrous metals with installations with a total capacity of more than 1 tonne for heavy metals and 500 kg for light metals |
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Plants for the production of cement and dredgenkalk |
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Installations for the production and processing of asbestos and for the manufacture of asbestos products |
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Plants for the production of glass and rock fibres |
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Plants for the production of normal and special glass with a capacity of more than 5 000 tonnes per year |
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Installations for the production of coarse ceramics, in particular refractory bricks, stone pipes, bricks for walls and floors, as well as roof tiles |
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chemical plants for the production of olefins, olefinic derivatives, monomers and polymers |
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Chemical plants for the production of other organic intermediate products |
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Plants for the production of inorganic basic chemicals |
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Installations designed to eliminate hazardous waste, including toxic waste, by burning |
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Installations for the disposal of other solid and liquid wastes by incineration |
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Plants for the chemical production of paper pulp with a production capacity of at least 25 000 tonnes per year. |
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| b) |
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Sulphur dioxide and other sulphur compounds |
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Nitrogen monoxide and other nitrogen compounds |
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Carbon monoxide |
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organic substances and, in particular, hydrocarbons (other than methane) |
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Heavy metals and metal-containing compounds |
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Dust, asbestos (suspended particles and fibres), glass fibres and rock fibres |
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Chlorine and chlorine compounds |
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| - |
Fluorine and fluorine compounds |
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| 9. |
Any work with genetically modified micro-organisms in closed systems, including their transport (§ 4 Z 2, 3, 4 and 7 of the German Genetic Engineering Act (GTG), BGBl. No. 510/1994). |
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| 10. |
Any deliberate release into the environment of genetically modified organisms, as well as the transport and placing on the market of such organisms (§ 4 Z 3, 20 and 21 GTG). This does not apply to activities that are subject to Z 14. |
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| 11. |
Shipments of waste for which an authorisation requirement or a ban within the meaning of Regulation (EC) No 1013 /2006/EC of the European Parliament and of the Council on shipments of waste, OJ L 145, 31.7.2002, p. No. OJ L 190 of 12 July 2006, p. 1 to 98. |
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| 12. |
The operation of installations requiring approval or authorisation in accordance with national legislation implementing Directive 96 /61/EC concerning integrated pollution prevention and control, OJ L 327, 30.12.1996, p. No. L 257 of 10. 26 October 1996, p. 26. |
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| 13. |
The use of dangerous substances and dangerous preparations, plant protection products and biocidal products for the protection of plants against diseases and pests. |
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| 14. |
Any other deliberate release into the environment of genetically modified organisms within the meaning of Directive 2001 /18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms and on the Repeal of Directive 90 /220/EEC No. OJ L 106 of 17 April 2001. |
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ANNEX 2
Restoration of environmental damage in the sense of § 4 Z 1 lit. A
This Annex sets out the framework conditions which must be met in order to ensure that the most appropriate measures are selected for the remedying of damage to waters.
Remedying of damage to the aquatic environment can be achieved by restoring the body of water to its initial state by means of primary refurbishment, complementary remediation or compensatory remediation, with the result that:
| a) |
"primary refurbishment" means any remedial measure which returns the damaged body of water or its impaired functions to its initial state, either in whole or in part; |
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| b) |
"complementary remediation" means any remedial action in relation to the water or its functions, which should compensate for the fact that the primary rehabilitation does not result in the complete restoration of the damaged natural Resources or functions; |
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| c) |
"compensatory remediation" means any activity to compensate for interim losses in the water or its functions, which arise from the date of the occurrence of the damage up to the point in time in which the primary refurbishment is fully effective has developed; |
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| d) |
"interim losses" means losses due to the fact that the damaged body of water or its functions do not fulfil their ecological tasks or their functions for other natural resources or for the public can not be fulfilled as long as the measures of the primary or the complementary remediation does not have its effect. Financial compensation for parts of the public does not fall below that. |
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| If the primary refurbishment does not result in the water being returned to its initial state, then a complementary refurbishment is to be carried out. In addition, a compensating adjustment is to be carried out in order to compensate for the interim losses. |
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| A rehabilitation of environmental damage in the area of water has also to include the need to remove any significant risk of adverse effects on human health. |
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| 1.1. |
Remediation objectives |
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| Goal of primary refurbishment |
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| 1.1.1. |
The primary aim of the primary refurbishment is to restore the damaged water or its functions to the original state. |
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| Objective of the supplementary rehabilitation |
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| 1.1.2. |
If the damaged body of water or its functions cannot be returned to the initial state, a complementary refurbishment must be carried out. The aim of the supplementary rehabilitation is to establish, where appropriate, a state of natural resources or of the functions of the natural resources in a different location, which is equivalent to a return of the damaged area to its initial state. Where this is possible and appropriate, this other place should be geographically related to the damaged location, taking into account the interests of the population concerned. |
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| Objective of balancing |
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| 1.1.3. |
The compensation is used to compensate for the interim losses of natural resources and their functions, which are created up to the restoration. The compensation consists of additional improvements to the waters either in the damaged area or in another place. It does not include financial compensation for parts of the public. |
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| 1.2. |
Definition of reorganisation measures |
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| Establishment of primary remedial measures |
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| 1.2.1. |
Options are to be considered, the activities with which the water and its functions are directly transferred to a state that leads them back to their initial state, or they include a natural recovery. |
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| Establishment of complementary remedial measures and compensatory measures |
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| 1.2.2. |
When determining the scope of the complementary remediation measures and the compensatory measures, it is first of all to examine the application of concepts based on the equivalence of resources or functions. In the first place, measures must be taken to ensure that natural resources or functions are made in the same way, quality and quantity, such as the damaged resources or functions. If this proves to be impossible, other natural resources or functions shall be provided. Thus, for example, a reduction in quality can be compensated for by a quantitative increase in the remediation measures. |
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| 1.2.3. |
If the application of the above concepts of equivalence of resources or functions proves impossible, other valuation methods shall be applied instead. The competent authority may prescribe the method, e.g. determination of the monetary value, in order to determine the extent of the necessary complementary remediation measures and compensatory measures. If an assessment of the loss of resources or functions is possible, but an assessment of the replacement of natural resources or functions within a reasonable time frame is impossible or associated with unreasonable costs, the competent authority shall order reorganisation measures, the cost of which shall be equivalent to the estimated monetary value of the loss of natural resources or functions. |
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| The complementary remediation measures and the compensatory measures shall be such as to create additional resources or functions which will result in the temporal preferences and the time-lapse of the Refurbishment measures. The longer it takes, for example, for the initial state to be reached again, the more compensation measures are to be taken (under otherwise identical conditions). |
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| 1.3. |
Choice of refurbishment options |
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| 1.3.1. |
The appropriate remediation options shall be assessed using the best available techniques on the basis of the following criteria: |
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the impact of each option on public health and public safety; |
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costs for the implementation of the option; |
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the prospects for success of each option; |
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the extent to which any option of future damage is prevented and any additional damage is avoided as a result of the implementation of the option; |
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the extent to which each option represents a benefit to each component of the natural resource or function; |
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the extent to which each option takes into account relevant social, economic and cultural concerns and other location-specific factors; |
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how long it takes for the restoration of the environmental damage to be carried out; |
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the extent to which it is possible to renovate the site of environmental damage with the particular option; |
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geographical context with the damaged location. |
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| 1.3.2. |
When assessing the different set of remedial options, it is also possible to select primary remedial measures to ensure that the damaged waters are not fully or more slowly returned to the initial state. Such a decision can only be taken if the loss of natural resources or functions at the original site is offset as a result of the decision by strengthening complementary remediation activities and more Counterbalancing activities are carried out with which comparable natural resources or functions can be created as before the occurrence of the damage. This is the case, for example, if equivalent natural resources or functions can be created at a different location with lower cost. These additional remediation measures shall be in accordance with point 1.2.2. . |
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| 1.3.3. |
Notwithstanding point 1.3.2., the Authority shall be empowered, in accordance with Section 7 (5), to decide that no further reorganisation measures shall be taken if: |
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| a) |
the reorganisation measures already taken ensure that there is no longer a significant risk of adverse effects on human health or water; and |
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| b) |
the cost of the reorganisation measures to be taken in order to produce the initial state or comparable level shall not be proportionate to the benefits to be achieved for the environment. |
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ANNEX 3
Restoration of environmental damage in the sense of § 4 Z 1 lit. B
This Annex sets out the framework conditions which need to be met in order to ensure that the most appropriate measures are selected for the rehabilitation of soil damage.
The necessary measures shall be taken to ensure, at least, that the pollutants in question are removed, controlled, contained or reduced, so that the damaged soil, taking into account its at the time of the Injury to present or approved future use no longer poses a significant risk of adverse effects on human health. The existence of such risks shall be assessed by means of risk assessment procedures taking into account the following factors: the nature and function of the soil, the nature and concentration of the pollutants, preparations, organisms or micro-organisms, the risk associated with them and the possibility of their dissemination. The use shall be determined on the basis of the land-use regulations or other relevant provisions in force at the time of the claim entry.
In the absence of land-use requirements or other relevant provisions, the use of the specific area shall be determined on the basis of the condition of the damaged soil, taking account of its likely development.
Taking into account is the option of a natural restoration, ie. an option without immediate intervention of the person in the recovery process.
