Air Quality Protection; Application for a Permit to Construct and Operate a Facility

Environmental protection laws apply to a wide range of facilities.

Certain facilities, as well as large-scale agricultural operations, can be sources of significant environmental pollution—to prevent this, operators of such facilities must obtain a permit from the competent authority. You can inquire with the competent authority to determine whether a permit under air pollution control law is required for the facility you are planning. Selected aspects of the permitting process are described below; however, it is strongly recommended that you contact your competent authority as early as possible when planning such projects.

The Federal Immission Control Act (BImSchG) stipulates that the construction and operation of facilities that typically have the potential to cause harmful environmental impacts require a permit under immission control law. The relevant types of facilities are exhaustively listed in the Ordinance on Facilities Requiring Permits (4th BImSchV).

A distinction is made between the formal procedure under Section 10 BImSchG and the simplified procedure under Section 19 BImSchG. Common to both procedures is that they require a written or electronic application, the submission of all documents relevant to the review, and the involvement of other affected authorities. In the formal procedure, there is additionally a public announcement of the project, a public review of the application and supporting documents, and, if applicable, a public hearing. In certain cases, an environmental impact assessment must also be conducted.

A facility not subject to approval that has already been constructed or for which construction or a substantial modification has already begun becomes subject to approval upon its inclusion in the catalog of facilities requiring approval set forth in the regulation. In this case, the facility is subject to the permitting requirements under emission control law and must be reported to the competent authority within three months of the respective 4th BImSchV taking effect, in accordance with Section 67(2) of the Federal Immission Control Act (BImSchG).

Under certain conditions, a partial permit, a preliminary decision, or authorization for an early start of operations may be granted.

If the operator intends to change the location, nature, or operation of a facility requiring a permit, the operator must also obtain a permit for such a change if it constitutes a substantial modification. Other changes must be reported to the permitting authority at least one month before they take effect.

Even for the construction, operation, or modification of facilities that do not require a permit under immission control law but that constitute an operational area or part of an operational area within the meaning of the 12th BImSchV (the so-called Major Accidents Ordinance), the project must be reported and, if necessary, a permit obtained pursuant to Section 23b BImSchG or Section 16a BImSchG.

The district administrative authority (district office, independent city, or county seat) is generally responsible for deciding on the permit; in exceptional cases specified by law, the state government or the mining authority is responsible.

Permit Procedures Under the Federal Immission Control Act (BImSchG):

The facilities requiring a permit under the law on the control of environmental emissions are specified in the Annex to the 4th BImSchV.

There are two types of procedures:

V-installations: those approved through a simplified procedure (without public review) G-installations: require approval through the formal procedure, i.e., with public review of the application documents; facilities marked with an “E” are those subject to the Industrial Emissions Directive, which must meet the requirements set forth in the BAT guidance documents and are subject to stricter monitoring.

Another important factor for the permitting process is whether the facility falls under one of the following categories:

Installations listed in Annex 1 of the Environmental Impact Assessment Act (UVPG); installations or operational areas where substances listed in Annex I of the Major Accidents Ordinance (12th BImSchV) are present and exceed the specified quantity thresholds.

Concentration Effect

The permitting process is governed by Sections 4–21 of the Federal Immission Control Act (BImSchG). It is important to note that the permitting procedure under immission control law encompasses other public-law approvals, authorizations, permits, and licenses (concentration effect pursuant to Section 13 of the Federal Immission Control Act (BImSchG)). This means that, for example, the building permit or the permit under
the Industrial Safety Ordinance must be submitted to the competent air pollution control authority along with the application for a permit under air pollution control law.

Facilities Requiring a Permit:

Facilities that typically pose a higher potential for environmental pollution or hazard may not be constructed until a permit has been granted under the Federal Immission Control Act (BImSchG).

If the operator intends to make changes to the location, design, or operation of a facility that has been approved under emission control law, this must generally be reported to the permitting authority at least one month before the measure begins (Section 15(1) BImSchG). If the change is substantial, a permit must be applied for in accordance with § 16 BImSchG.

The permitting authority is generally the district administrative authority; this means that for facilities within the city limits of Erlangen, the City of Erlangen—Office for Environmental Protection and Energy Issues (lower air pollution control authority)—is responsible. The Government of Middle Franconia is responsible for facilities related to public energy supply and public waste disposal—see Article 1 of the Bavarian Act on the Control of Air Pollution (BayImSchG).

As part of the permitting process under emission control law, the impacts of the proposed facility on protected resources—including humans, animals, and plants; soil; water; the atmosphere; and cultural and other material assets—must be comprehensively assessed, and the requirements for its construction and operation must be determined; For example, the following must be assessed: the effects of pollutant emissions, noise emissions, the waste generated, energy consumption, and other
hazards (fire, accidents, and others) that may arise from the facility both during normal operation and in the event of a disruption to normal operation.

Facilities requiring a permit under environmental protection law must, as a general rule, be operated in such a way that

• harmful environmental impacts and other hazards, significant disadvantages, and significant nuisances cannot occur,
• precautions are taken against harmful environmental impacts and other hazards, significant disadvantages, and significant nuisances, in particular through measures in accordance with the state of the art,
• waste is prevented, recycled, or disposed of without adversely affecting the public welfare,
• energy is used sparingly and efficiently,
• and that, following the cessation of operations, no harmful environmental impacts, other hazards, significant disadvantages, or significant nuisances can be caused to the general public or the neighborhood.

Notice of Change Pursuant to Section 15 of the Federal Immission Control Act (BImSchG)

Pursuant to § 15 BImSchG, any change in the location, nature, or operation of a facility requiring a permit—provided that a permit is not being applied for—must be reported in writing to the competent authority (Office for Environmental Protection and Energy Issues/lower-level immission control authority) at least one month before the change is scheduled to begin, if the change could affect protected resources (people, animals, and plants; soil, water, and the atmosphere; as well as cultural and other material assets). The notification must be accompanied by documentation necessary to determine whether the project
requires a permit.

What constitutes a modification to a facility?

• A change in location refers to a change in the spatial relationship between a facility and its surroundings.
• A change in configuration occurs, for example, when parts of the facility (machines, equipment, installations) are replaced, or when technical equipment or installations are modified or added.
• A change in operation refers, for example, to process-related changes affecting the feedstocks, intermediate, by-product, or end products, noise emissions or immissions, energy sources used, as well as changes to the facility’s operating hours and capacity.

The permitting authority must immediately acknowledge receipt of the notification of change pursuant to Section 15 of the Federal Immission Control Act (BImSchG); if necessary, additional documentation will be requested if the submitted documents are insufficient for the assessment. The plant operator may begin making the changes to the plant as soon as the permitting authority notifies the operator that the change does not require approval, or if the authority has not responded within one month. The one-month period specified in § 15(2), sentence 1, of the Federal Immission Control Act (BImSchG) does not begin until the authority has received all required documents.

The concentration effect under § 13 BImSchG does not apply in the case of a notification of change under § 15 BImSchG; thus, any other official permits that may be required for the modification of the facility (for example, a building permit, approval under the Industrial Safety Ordinance, or a determination of suitability under water law) must still be obtained separately. However, a separate permitting process under, for example, the Bavarian Building Code, the Industrial Safety Ordinance, or water law may only be initiated once it has been determined that no amendment permit under § 16 BImSchG is required for the project.

Substantial Change Under Section 16 of the Federal Immission Control Act (BImSchG)

Under § 16 BImSchG, a permit is required for any change to the location, nature, or operation of a facility requiring a permit (see Permit Procedure) if the change could cause adverse effects.
A permit is always required if the modification or expansion of the operation of a facility requiring a permit, in and of itself, reaches the capacity limits or facility size thresholds specified in the annex to the Ordinance on Facilities Requiring a Permit (from Column 2 to Column 1 of the Annex to the 4th BImSchV).

Whether a modification is material does not depend on whether, in the specific case, the protected interests under the Federal Immission Control Act may actually be impaired or not. Rather, the decisive factor is whether a change gives rise to a need for a renewed examination of the permit issue. It is therefore not the result of the examination, but its basis, that is decisive. Conducting the review is part of the permitting process under § 16 BImSchG. (See BVerwG judgment of July 6, 1984—BVerwG 7 C 71.82) Please use the application form for an application regarding a material change.

For a change subject to notification, a permit may also be voluntarily applied for in lieu of the notification (Section 16(4) BImSchG), with the advantages of legal certainty and the consolidating effect of the permit under immission control law. Under certain circumstances, due to the consolidating effect, the amendment permit under § 16 BImSchG may be granted more quickly than in the case of a notification under § 15 BImSchG followed by an application for, e.g., a building permit.

You must demonstrate to the competent authority that you will comply with the requirements of the Federal Immission Control Act during the construction, operation, and modification of a facility. Other public law regulations and occupational safety and health requirements must not conflict with the project.

You must notify the competent authority of your project before commissioning or before carrying out the project.

Please submit to the competent authority the documents listed in the checklist for application documents in the environmental protection approval process or for the approval process for wind energy facilities (see “Related Links”).

In general, there are no deadlines.

However, for example, in the case of a planned change to the location, nature, or operation of a facility requiring a permit, the change must be reported at least one month before work on the change is scheduled to begin.

A decision on the permit application must be made within seven months of receipt of the application and the documents required under Section 10(1), second sentence, of the Federal Immission Control Act (BImSchG); in simplified procedures, the decision must be made within three months.

In special cases, different deadlines apply; for example, a decision on an application for repowering must be made within six months.

• The application documents depend on the specific case.
  

  Information on the types of documents can be found in §§ 3 ff. of the 9th BImSchV (see "Legal Basis") and in the checklists under "Related Links."

   

Permit Process Under the Federal Immission Control Act (BImSchG):

Preliminary Consultation Regarding the Permit Application

Detailed documentation must be submitted with the permit application. It is strongly recommended that you contact the Air Pollution Control Authority within the Office for Environmental Protection and Energy Affairs of the City of Erlangen before submitting your application. We offer a detailed preliminary consultation regarding the planned permitting process. We will prepare a checklist of the required application documents for you. Submitting a complete set of application documents significantly reduces processing time.

To submit your application, please use the application form for a new permit or for an amendment permit in accordance with Section 16 of the Federal Immission Control Act (BImSchG).