Immission control; application for a permit for the construction and operation of a plant

Immission control legislation applies to a large number of facilities.

Certain facilities, such as large agricultural operations, can be sources of considerable environmental pollution - to prevent this, operators of such facilities require a permit from the competent authority. You can find out whether your planned plant requires a permit under immission control law from the authority responsible for you. Selected aspects of the approval procedure are described below, and it is strongly recommended that you contact the authority responsible for you as early as possible for such projects.

The Federal Immission Control Act (BImSchG) stipulates that the construction and operation of installations that may typically have a harmful impact on the environment require a permit under immission control law. The relevant types of installations are listed exhaustively in the Ordinance on Installations Requiring a Permit (4th BImSchV).

A distinction is made between the formal procedure under Section 10 BImSchG and the simplified procedure under Section 19 BImSchG. What both procedures have in common is that they require a written or electronic application and the submission of all documents relevant to the assessment as well as the involvement of other affected authorities. In the formal procedure, there is also a public announcement of the project, a public display of the application including documents and, if necessary, a discussion meeting. In certain cases, an environmental impact assessment must also be carried out.

An installation that does not require a permit and has already been constructed or the construction or substantial modification of which has already begun becomes subject to approval when it is included in the list of installations requiring approval under the ordinance. In this case, the installation is subject to the licensing requirements under immission control law and must be notified to the competent authority within three months of the respective 4th BImSchV coming into force in accordance with Section 67 (2) BImSchG.

Under certain conditions, the granting of a partial permit, a preliminary decision or the approval of an early start is possible.

If the operator intends to change the location, nature or operation of an installation requiring a permit, he must also obtain a permit for this if it is a significant change. Other changes must be notified to the licensing authority at least one month before commencement.

The project must also be notified for the construction and operation or modification of installations that do not require a permit under immission control legislation and that are an operating area or part of an operating area within the meaning of the 12th BImSchV (so-called Hazardous Incident Ordinance) and, if necessary, a permit must be obtained in accordance with Section 23b BImSchG or Section 16a BImSchG.

As a rule, the district administrative authority (district administration office, independent city or large district town) is responsible for the decision on the permit; in exceptional cases defined by law, the government or the mining authority is responsible.

Approval procedure according to BImSchG:

The installations requiring approval under immission control legislation are specified in the Annex to the 4th BImSchV.

There are two types of procedure:

V installations: which are approved in the simplified procedure (without public display) G installations: requiring approval in the formal procedure, i.e. with public display of the application documents, installations marked E are installations in accordance with the Industrial Emissions Directive, which must meet the requirements in accordance with the BAT reference documents and are monitored more strictly.

It is also important for the approval procedure whether the installation falls into one of the following categories:

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

Concentration effect

The approval procedure is regulated in §§ 4 - 21 BImSchG. It is important to note that the approval procedure under immission control law includes other approvals, grants, permits and authorizations under public law (concentration effect according to § 13 BImSchG). This means that, for example, the building permit or the permit in accordance with the
Ordinance on Industrial Safety and Health must be submitted to the responsible immission control authority together with the application for immission control approval.

Installations requiring approval:

Installations that may typically have a higher pollution or hazard potential for the environment may only be erected if a permit has been issued for this in accordance with the Federal Immission Control Act (BImSchG).

If the operator intends to make changes to the location, nature or operation of an installation that has been approved under immission control legislation, the approval authority must be notified at least one month before the start of the measure (Section 15 (1) BImSchG). If it is a significant change, a permit must be applied for in accordance with § 16 BImSchG.

As a rule, the approval authority is the district administrative authority, i.e. the City of Erlangen - Office for Environmental Protection and Energy Issues (lower immission control authority) - is responsible for plants in the city of Erlangen. The government of Middle Franconia is responsible for public energy supply and waste disposal facilities - see Article 1 of the Bavarian Immission Control Act (BayImSchG).

As part of the immission control licensing procedure, the effects of the plant applied for on the protected assets of humans, animals and plants, soil, water, the atmosphere as well as cultural and other material assets must be comprehensively examined and the requirements for construction and operation determined; for example, the effects of pollutant emissions, noise emissions, the waste produced, the use of energy or other hazards (fire, accident and others) must be examined.
hazards (fire, accident and others) that may emanate from the plant both during normal operation and in the event of a disruption to normal operation.

Installations requiring approval under immission control legislation must always be operated in such a way that

• harmful effects on the environment and other hazards, significant disadvantages and significant nuisances cannot be caused,
• precautions are taken against harmful effects on the environment and other hazards, significant disadvantages and significant nuisances, in particular by means of state-of-the-art measures,
• waste is avoided, recycled or disposed of without adversely affecting the public good,
• energy is used sparingly and efficiently,
• no harmful effects on the environment, other hazards, significant disadvantages and significant nuisances for the general public and the neighborhood can be caused after the cessation of operations.

Notification of changes according to § 15 BImSchG

According to § 15 BImSchG, the competent authority (Office for Environmental Protection and Energy Issues / Lower Immission Control Authority) must be notified in writing of any change to the location, nature or operation of an installation requiring a permit, unless a permit has been applied for, at least one month before the change is to begin if the change may affect the protected goods (humans, animals and plants, soil, water, atmosphere as well as cultural and other material goods). The notification must be accompanied by documents that are required to assess whether the project
is subject to approval.

What are changes to an installation?

• A change in location refers to a change in the spatial relationship of an installation to its surroundings.
• A change in the nature of a facility is, for example, when parts of the facility (machines, devices, equipment) are replaced, technical equipment, installations are changed or additionally installed.
• The change in operation concerns, for example, procedural changes with effects on the input materials, the intermediate, by-products or end products, the noise emissions or immissions, the energy sources used and changes to the operating times and capacity of the installation.

Receipt of the notification of change in accordance with § 15 BImSchG must be confirmed immediately by the licensing authority; additional documents may be requested if those submitted are not sufficient for the assessment. The plant operator can start modifying the plant as soon as the licensing authority informs him that the modification does not require a permit or has not issued a statement within one month. The one-month period under Section 15 (2) sentence 1 BImSchG does not begin until the authority has received all the necessary documents.

The concentration effect according to § 13 BImSchG does not apply in the case of a notification of change according to § 15 BImSchG, so that any other official permits required for the change to the installation (e.g. building permit, approval according to the Industrial Safety Ordinance, determination of suitability under water law) must still be obtained separately. However, an independent approval procedure in accordance with, for example, the Bavarian Building Code, the Ordinance on Industrial Safety and Health or the Water Act can only be applied for once it has been established that the project does not require a modification permit in accordance with Section 16 BImSchG.

Significant change according to § 16 BImSchG

According to Section 16 BImSchG, a permit is required for changes to the location, nature or operation of a plant requiring a permit (see Permit procedure) if the change could have adverse effects.
A permit is always required if the modification or extension of the operation of an installation requiring a permit in itself reaches the performance limits or installation sizes of the Annex to the Ordinance on Installations Requiring a Permit (from column 2 to column 1 of the Annex to the 4th BImSchV).

The materiality of a change is not dependent on the question of whether or not the protected interests of the Federal Immission Control Act may actually be impaired in the specific case. Rather, the decisive factor is whether a change gives rise to a re-examination of the licensing issue. The decisive factor is therefore not the result of the review, but the reason for it. Carrying out the review is the task of the approval procedure in accordance with § 16 BImSchG. (see BVerwG judgment of July 6, 1984 - BVerwG 7 C 71.82) Please use the application form for an application for a substantial modification.

For a change requiring notification, a permit can also be applied for voluntarily instead of the notification (§16 Para. 4 BImSchG) with the advantages of legal certainty and the concentration effect of the immission control permit. Under certain circumstances, the concentration effect means that the modification permit in accordance with Section 16 BImSchG can be issued more quickly than if a notification in accordance with Section 15 BImSchG and subsequent application for planning permission, for example, is made.

You must prove to the competent authority that you will comply with the obligations of the Federal Immission Control Act during the construction, operation and modification of an installation. Other public law regulations and occupational health and safety concerns must not conflict with the project.

You notify the competent authority of your project prior to commissioning or implementation of the project.

Please submit to the competent authority the documents listed in the checklist for application documents in the immission control licensing procedure or for the licensing procedure for wind turbines (see "Further links").

In principle, there are no deadlines.

However, in the event of a planned change to the location, nature or operation of an installation requiring a permit, for example, the change must be notified at least one month before the change is to begin.

A decision on the application for approval must be made within seven months of receipt of the application and the documents to be submitted in accordance with Section 10 (1) sentence 2 BImSchG, or within three months in simplified procedures.

Other deadlines apply in special constellations, e.g. a decision on an application for repowering must be made within six months.

• The application documents depend on the individual case.
  

  Information on the type of documents can be found in §§ 3 ff 9. BImSchV (see under "Legal bases") and in the checklists under "Further links".

Approval procedure according to BImSchG:

Preliminary discussion on the permit application

Detailed documents must be submitted for the permit application. It is strongly recommended that you contact the immission control authority at the Office for Environmental Protection and Energy Issues of the City of Erlangen before submitting your application. We offer a detailed preliminary discussion of the planned approval procedure. We will draw up a checklist of the required application documents for you. Complete application documents shorten the processing time considerably.

For the application, please use the application form for a new permit or for a modification permit according to § 16 BImSchG.