SYSTEM TO SUPERVISE ENVIRONMENTAL DUTIES AND TO PURSUIT INFRINGEMENTS TAKING CLEAN AIR MANAGEMENT AS EXAMPLE

PROFESSOR DR.-ING. MANFRED PÜTZ, Ministerialdirigent

1 THE LEGAL SYSTEM OF IMMISSION CONTROL IN GERMANY

The Federal Republic of Germany is a federal state and consists of 16 states ("Länder") itself. The Federal parliament possesses the legislative power, as far as the Constitution ("Grundgesetz") does not concede the right for legislation to the states ("Länder").

The environmental laws, belongs to the competing legislation in the Federal Rep. of Germany. In order to establish rules which are valid within the whole Federation, the federal parliament ("Bundestag") has used its rights and has proclaimed, inter alia, the "Federal Immission Control Act" (FICA).

It is the purpose of the Federal Immission Control Act to protect human beings, animals and plants, water, the atmosphere as well as cultural assets and other material goods against harmful effects on the environment.

The provisions of this Act shall especially apply to the establishment and operation of industrial installations. Furthermore the Act contents requirements on the nature of installations and chemical or technical products.

At least the Act contents special regulations concerning instruments protecting certain areas.

Industrial installations shall be established and operated in such a way that harmful effects on the environment are be prevented. According to installations not subject to licensing the requirements given by the Act and the ordinances issued hereunder are similar but less strictly.

2 ORGANIZATION AND STAFFING IN NORTHRHINE-WESTFALIA (NRW)

2.1 Legal framework of supervision

Environmental legislation of supervision operators duties, given by the environmental legislation are the first step to reach environmental protection. But as important as these duties is the supervision by the authorities.

I would like to give you an introduction which instruments by law are given to the competent authority.

2.1.1 Article 52 Federal Immission Control Act (FICA)

According to Art. 52 FICA the competent authority shall supervise the implementation of this act and of any ordinances issued hereunder. This means that the implementation and acceptance of this act is guaranteed not only as an operators duty but also within special tasks given to the authorities.

Therefore Art. 52 FICA says, that owners and operators shall undertake to grant the staff members of the competent authority free access to such premises and to enable such persons to carry out tests and, finally, to furnish such information and produce any such supporting documents as are needed by such persons to perform their duties.

2.1.2 Article 17, 20, 21 Federal Immission Control Act

Besides the possibility of getting infirmations according to Art. 52 FICA, the authority is able to influence the operation of installations.

In order to perform the obligations resulting from the FICA or from any ordinances issued hereunder the competent authority may permit to give orders subsequent to the granting of the licence. And, following Art. 17, Para (1), if after the issue of such licence the protection attended to the general public or the neighbourhood against harmful effects on the environment or other hazards, considerable disadvantages and considerable nuisance turns out to be inadequate, the competent authority shall give such subsequent order.

Art. 20 gives the authority the instruments of prohibition and closure. If the operator of an installation subject to licensing does not comply with an additional condition imposed, and enforceable subsequent order given or a conclusive obligation ensuing form an ordinance issued under the FICA the competent authority may prohibit all or part of such operation pending compliance with such condition, order on obligation ensuing form such ordinance issued under the FICA. The competent authority shall give orders to close down or dismantle an installation established, operated or materially laterad without having been licensed to do so.

Even after having become final, a licence duty granted under the FICA may be revoked in its entirely or in part for any future operation.

This is possible under Art. 21, for instance, if the licensing authority were entitled by virtue of facts having occurred subsequently to refuse to grant such licence and non-revocation might be of prejudice to the public interest.

2.1.3 Finally under Enforcement Administration Act of Northrhine-Westfalia the authorities have the task to make sure that the operators realize their orders. Therefore the authorities have the opportunity of forced payments or that their orders will be done by other persons.

2.2 Liability of contravenes

Beside such orders, shown above, the German Law is able to punish contravenes against environmental legislation.

2.2.1 Art. 325 ff Penal Code (PC)

Under Art. 325 PC anyone should be punished who makes wilfully on negligently incontrary to duties given by the authority air pollution and noise, which liable to cause harmful effects on the healthiness of anybody or important objects.

Operating an installation which not have been licensed is under Art. 327 PC also not allowed as doing the same thing within a specific area.

2.2.2 Finally Art. 62 FICA contains a lot of Administrative Offenses which shall be liable to payment of a fine up to 100.000,= DM.

According to the constitution, the execution and enforcement of most federal laws, in this context of the FICA, is the responsibility of the federal states ("Länder"). They establish the authorities and control the administration.

Taking the state of Northrhine-Westfalia as example, the enforcement of the FICA and of the ordinances issued hereunder is the duty of 22 state inspectorates. The state inspectorates are lower state authorities according to the organisation structure of the state. They are supervised by five so called "Regierungspräsidenten" (Presidents of provinces), department "inspectorates", as middle state authorities. The top state authority for air pollution control is the ministry of the Environment, Regional Planning and Agricultur (MURL) at Düsseldorf, which superintends the state inspectorates, the Presidents of the Provinces and the state agencies.

The state inspectorates in their function as authorities for air pollution control supervise wether the operators of installations are compliance with legal prescriptions. They inspect the plants, perform measurements and pursue offences against the laws. If the state inspectorates find out an administrative offence, they impose fines. Serious cases are reported to the public prosecutor, who carry out the criminal procedure.