IED (Art. 22) Guidance for preparation of the baseline report on the state of soil and groundwater in Germany. Common Forum -May BERLIN

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1 Für Mensch & Umwelt Common Forum -May BERLIN IED (Art. 22) Guidance for preparation of the baseline report on the state of soil and groundwater in Germany Joerg Frauenstein Section II 2.6 / Soil Protection Measures

2 Agenda 1 Introduction and legal basis 2 Implementation of IED into German law 3 Elaboration and assessment 4 Determination of hazard relevance 5 Different sites - adapted investigation 6 Baseline report outline 7 Outlook Acknowledgement: Ad-hoc commission of the Working Group on Soil Protection Issues of the German Federal States and the Federal Government (Bund/Länder- Arbeitsgemeinschaft Bodenschutz, LABO) in cooperation with the Working Group on Water Issues of the German Federal States and the Federal Government (Bund/Länder-Arbeitsgemeinschaft Wasser, LAWA / Common Forum - May BERLIN 2

3 IED (Art. 22) Guidance for preparation of the baseline report on the state of soil and groundwater in Germany OBJECTIVE This baseline report should document the state of the soil and groundwater at the site of the installation. The report ultimately serves to preserve evidence and provide a reference for the obligation to return the site to its baseline state after closure. INTENTION OF GERMAN GUIDANCE is intended to give the competent authorities indications for the assessment of baseline reports submitted to them within the context of permit procedures under emission control law, and to assist installation operators and consultants commissioned by them when preparing a baseline report. Document the state Preserve evidence Provide reference Addressees: Authorities; Operators; Consultants / Common Forum - May BERLIN 3

4 IED (Art. 22) Guidance for preparation of the baseline report on the state of soil and groundwater in Germany Transposition into German law The obligation to return the site to the state established in the baseline report pursuant to Art. 22(3)(1) IED is regulated in Germany in Article 5, para 4 of the Federal Immission Control Act (BImSchG). Under the Act, the operators of installations falling within the scope of the IED are obliged, to the extent commensurate, to return the site of the installation to its original state when operations cease, if, in view of the activities conducted, substantial pollution of soil or groundwater by relevant hazardous substances was caused compared to the state established by the baseline report. Article 3 paras 9 and 10 BImSchG define hazardous substances and relevant hazardous substances. The obligation to produce a baseline report follows from the new Article 10 para 1a BImSchG. Further requirements concerning preparation of a baseline report have been established in particular in Article 4a para 4 of the Ordinance on the Licensing Procedure (Verordnung über das Genehmigungsverfahren, 9. BImSchV). Transposed in: Federal Immission Control Act BImSchG Paras 9 and 10 - define hazardous substances and relevant hazardous substances 10 para 1a BImSchG - obligation to produce a baseline report Article 4a para 4 of the Ordinance on the Licensing Procedure preparation of the baseline report / Common Forum - May BERLIN 4

5 IED (Art. 22) Guidance for preparation of the baseline report on the state of soil and groundwater in Germany Baseline report The applicant intending to operate an installation falling within the scope of the IED in which relevant hazardous substances are used, produced or released must submit a baseline report together with the permit application documents. Those documents set data on the substances used, produced or released in operation. If those substances include relevant hazardous substances they must be identified or listed separately. If no such substances arise no baseline report is then required. The baseline report must contain the following information: Submission of the baseline report and permit application documents at the same time Indication of relevant hazardous substances Site history Quality of available data information on the present use and, if available, on the previous use of the site of the installation, information on soil and groundwater measurements that capture the state at the point in time when the baseline report is prepared, and are in line with the state of measurement technology. No new soil and groundwater measurements are required if sufficient information about the state of the soil and groundwater with regard to the relevant hazardous substances is already available / Common Forum - May BERLIN 5

6 Flowchart for baseline report preparation within the context of the permit procedure Documentation Communication Data Availabilty Sufficiency Measurements Assessment Baseline report

7 IED (Art. 22) Guidance for preparation of the baseline report on the state of soil and groundwater in Germany Hazardous substances or mixtures For the purposes of this Act, hazardous substances are the substances or mixtures as defined in Article 3 of Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ L 353 of 31 December 2008, p. 1), as last amended by Regulation (EC) No 286/2011 (OJ L 83 of 30 March 2011, p. 1) (CLP Regulation). This means that hazardous substances can only be those that fall under the CLP Regulation. Further information on the environmental relevance of substances to be used can be found in the safety data sheets / Common Forum - May BERLIN 7

8 IED (Art. 22) Guidance for preparation of the baseline report on the state of soil and groundwater in Germany Assessment of relevance Substances within CLP? In Germany relevant hazardous substances are defined as Substances that are used, produced or released in substantial volumes in the installation and which, by their nature, can cause pollution of soil or groundwater on the site of the installation. fundamental ability to cause soil and/or groundwater pollution quantity The assessment of relevance thus concentrates on two criteria: the fundamental ability of a substance to cause pollution of soil or groundwater on the site of the installation and the quantity / Common Forum - May BERLIN 8

9 Flowchart for the assessment of substances and substance mixtures Assessment steps substance properties relevance quantitative relevance Baseline report

10 Determination of hazard relevance for soil and groundwater in terms of selected hazard statements and risk phrases Hazard statements are stated pursuant to Article 2(5) of Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures (CLP). Risk phrases were stated in the past in accordance with the repealed Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances the Dangerous Substances Directive. These R-phrases designate the particular hazards associated with dangerous substances and preparations (e.g. R23: "Toxic by inhalation").they are listed in Annex III to the Dangerous Substances Directive. Annex VII to the CLP Regulation converts, in Table 1.1, the previously applicable risk phrases to the classifications applying under the CLP Regulation. Not all risk phrases can be transposed directly into hazard statements, because the two systems are based on different assessment standards. The classification of mixtures and preparations follows from the Dangerous Preparations Directive (Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations). Since 1 December 2010, substances are to be classified and labelled according to the CLP Regulation alone. The Dangerous Preparations Directive continues to apply until 31 May 2015; from 1 June 2015 onwards, the CLP Regulation applies solely / Common Forum - May BERLIN 10

11 Hazard Statements and R-phrases To fulfil the site characterisation purpose of the baseline report, and for later comparisons with the baseline state, the decision on the way in which the grid of soil measurement points is configured is crucial. The following, simplified example of a planned installation shows a possible approach towards selecting the sampling points. In this example, relevant hazardous substances are handled in the production halls, in the tanks and in the storage facility. The configuration of groundwater measurement points is not discussed here. / Common Forum - May BERLIN 11

12 Decision-support flowchart for assessment of relevance Assessment Water Hazard Class troughput storage capacity handling within secured facilities Individual for soil case-by -case

13 Approach depending upon different types of previous use In the German guidance, an extensive chapter is concerned with the specific differences when preparing a baseline report depending upon the previous use of the site. A distinction is made between whether: the installation is to be constructed on a site without previous structural, commercial or industrial use or there was already a structural, commercial or industrial use of the envisaged site. Greenfield Brownfield quality and validity of data and information sampling points, sampling and analytical methods size of the site, location of sources etc. Repetitious documentation on sampling and used analytical methods! For both cases, the guidance sets out specific requirements upon the characterisation of site conditions, practical performance of sampling, soil and groundwater analyses and soil-air analyses. For sites with previous structural, commercial or industrial use, indications are also made for the way in which a suitable sampling strategy is to be designed, which should be agreed upon by the applicant with the permit authority. No detailed summary of this chapter is provided here / Common Forum - May BERLIN 13

14 Example of the selection and positioning of sampling points To fulfil the site characterisation purpose of the baseline report, and for later comparisons with the baseline state, the decision on the way in which the grid of soil measurement points is configured is crucial. The following, simplified example of a planned installation shows a possible approach towards selecting the sampling points. In this example, relevant hazardous substances are handled in the production halls, in the tanks and in the storage facility. The configuration of groundwater measurement points is not discussed here / Common Forum - May BERLIN 14

15 Demarcation of study area The external demarcation of the area to be considered for the baseline report follows, firstly, from the location and structural design of the installation for which a permit is sought, and, secondly, from the use of relevant hazardous substances. On the basis of these two aspects, the part of the site relevant to the baseline report can be demarcated. A uniform grid of sampling points can then be defined / Common Forum - May BERLIN 15

16 Internal differentiation of the study area by using previously available information Information on the soil conditions or on previous uses indicates that individual parts of the area can be distinguished, representative sampling is possible. The precondition is that such areas can be considered homogenous within themselves. Determination of such demarcation will generally require a detailed analysis of the site, using thematic maps. Such preliminary work makes it possible to achieve a depth of information that is comparable to that of other approaches (direct sampling with a uniform grid), while greatly reducing the required number of sampling points. This allows a grid with a larger mesh size / Hier steht der Veranstaltungstitel in 12 Punkt 16

17 Consideration of the components of the installation planned After the site of the installation has been characterised in accordance with steps 1 and 2, the components of the installation planned are considered. Where sensitive components are planned, the mesh of sampling points needs to be tightened / Common Forum - May BERLIN 17

18 Baseline report outline (1) 1 PRESENTATION OF THE CAUSE FOR THE REPORT 2 PRESENTATION OF THE INSTALLATION 3 PRESENTATION OF THE SUBSTANCES AND MIXTURES USED, PRODUCED AND RELEASED Enumeration of hazardous substances, taking account of their decomposition and conversion products Examination of relevance to soil and groundwater Partitioning of site/installation in terms of distribution of relevant hazardous substances (tabular listing and layout plan) 4 PLANNING AND SUBSTANTIATION OF NECESSARY ANALYSIS APPROACH 5 PRESENTATION OF INFORMATION ALREADY AVAILABLE ABOUT THE SITE / INSTALLATION Uses (past uses and planned new use) Soil and groundwater analyses Assessment of utilisability, considering analysis strategy and the state of measurement technology 6 CHECK OF NEED TO CARRY OUT NEW MEASUREMENTS / Common Forum - May BERLIN 18

19 Baseline report outline (2) 7 NEW SOIL AND GROUNDWATER ANALYSES Description of the approaches used for analysis Description of the work carried out and sampling techniques applied Documentation of the results of all field observations (including all deviations and irregularities during the practical application of the approach proposed) Presentation of reasons for the selection of samples for analysis, and documentation of all relevant details concerning sample preservation, storage, transport and pre-treatment, and analysis performance and evaluation Description of analysis results, including information on variations and tolerances (quantification and detection limits) Where appropriate, presentation of points not sampled 8 DESCRIPTION OF THE BASELINE STATE Maps and measuring points Interpolations (methods) 9 ASSESSMENT OF THE BASELINE STATE Where appropriate, presentation of issues that need to be clarified under soil protection and water law (optional) 10 PROPOSAL FOR THE SOIL AND GROUNDWATER MONITORING REQUIRED BY LAW (among other aspects: frequency, scope, sampling points) (optional) / Common Forum - May BERLIN 19

20 Outlook OBLIGATIONS TO OPERATORS: baseline report necessary measures to address that pollution CHALLENGES FOR ADMINISTATIVE EXECUTION a broad variety of cases (installation, industrial branches, substances, mixtures and underground) communication among operator and competent authority ( i.g. concept for site investigation) content, use and approval of existing data handling with still existing contaminations PENDING QUESTIONS: How to assess new substances and mixtures? Capability of those substances to affect soil and groundwater? Relocation and degradation of substances and their metabolites? Additional impacts from outside / Common Forum - May BERLIN 20

21 Outlook FUTURE ACTIVITIES: Post-closure obligation to return the site to the baseline state; Determined by the difference between the state established in the baseline report and the state upon definitive cessation of activities; Where the comparison indicates contamination then the operator must return the site to the initial state => no deterioration!? Intervention at the source Technical feasibility of such measures may be taken into account. NEXT CHALLENGE: Set up practical and legally admissible criteria regarding nature and extend to fulfill the obligation to return the site to the state described in the baseline report! / Common Forum - May BERLIN 21

22 Thank You, any questions? Joerg Frauenstein II 2.6 Soil Protection Measures / Hier steht der Veranstaltungstitel in 12 Punkt 22