Former industrial sites in environmental and soil law
Former industrial sites are a central term in environmental law, particularly in the context of contaminated land and soil protection. The term describes areas where industrial or commercial activities have previously taken place and which may therefore potentially be contaminated with harmful substances, even though they are no longer currently being used in a way relevant to contamination. Former industrial sites are to be distinguished from former landfills, which refer to decommissioned waste disposal facilities. This article provides a comprehensive legal analysis of the term former industrial sites, presents the relevant statutory regulations, and explains the resulting legal frameworks and responsibilities.
Definition and distinction
Terminology
In legal terms, a former industrial site refers to areas on which activities were carried out in the past that may have left potentially hazardous residues. These are mostly abandoned manufacturing sites, factory grounds, storage areas, gas stations, or similar uses that have been discontinued.
Distinction from former landfills
Former industrial sites must be distinguished from former landfills, which are areas where waste was stored, deposited, or treated (e.g., former landfills). While both can fall under the overarching term ‘contaminated sites,’ the focus for former industrial sites is on traces of industrial and commercial use and their potential environmental impact on soil and groundwater.
Legal basis
Federal Soil Protection Act (BBodSchG)
The key law regarding former industrial sites is the Federal Soil Protection Act (BBodSchG). According to Section 2 (5) BBodSchG, former industrial sites are certain properties on which environmentally hazardous substances have been handled that can lead to harmful soil changes or other hazardous situations.
State-specific regulations
In addition to the Federal Soil Protection Act, each federal state has supplementary and specific regulations, particularly within their own soil protection laws or ordinances. These may include additional obligations for the investigation and remediation of former industrial sites.
Environmental information laws
The collection, compilation, and management of information on former industrial sites is regularly carried out on the basis of environmental information laws. These guarantee public and official access to data on former industrial sites.
Legal obligations regarding former industrial sites
Obligations to investigate
As soon as there are indications of a relevant contamination of a former industrial site, the BBodSchG requires a risk assessment. Owners, former operators or other obligated parties must, depending on the circumstances, take the necessary investigative measures. In individual cases, the authorities may issue orders for the identification, investigation, and assessment of former industrial sites.
Remediation obligations
If a danger or a concrete risk of harmful soil changes emanates from a former industrial site, the competent authority can order remediation measures (Section 4 BBodSchG). This results in legal obligations for the polluters (polluter liability) and – subsidiarily – for the respective property owners (status liability).
Registration and disclosure obligations
As part of the contaminated site register, authorities are required to register former industrial sites and, if necessary, to enter notes in the land register (Section 12 BBodSchG, supplementary state regulations). Additionally, owners and operators are subject to extensive disclosure obligations when requested by investigative authorities.
Responsibility and liability
Polluter liability and status responsibility
Legally, the person who caused the need for investigations or remediation measures (the polluter) is initially responsible for taking action. If this person is no longer available or cannot be identified, the current property owner, as the so-called status responsible party, can be required to carry out measures at their own expense.
Recourse and cost bearing
If the status responsible party has been held liable without being the polluter, there may, under certain conditions, be a right of recourse against the original polluter. The limitation periods for such recourse claims are governed by the Civil Code (BGB) and special provisions in environmental law.
Investigation, assessment, and remediation of former industrial sites
Risk assessment and evaluation
The first legal obligation when a former industrial site is suspected is to carry out a preliminary investigation. The objective is to determine or rule out a potential risk through soil, soil air, and groundwater samples. The evaluation is carried out in accordance with the Federal Soil Protection and Contaminated Sites Ordinance (BBodSchV), which defines specific threshold and action values for pollutants.
Remediation procedures
If a need for remediation is identified, the BBodSchG regulates the further course of action. The responsible authorities issue orders on the type and scope of remediation. Technical implementation must observe the current state of the art and is regularly monitored and documented by authorities.
Post-remediation obligations
Even after the remediation is completed, monitoring and post-remediation obligations may exist, for example, through monitoring programs or reporting requirements to authorities.
Significance for real estate transactions and urban development
Effects on real estate transactions
The existence of former industrial sites is an important factor in the purchase, sale, and development of properties. If contamination is suspected, comprehensive investigations must be carried out as part of the so-called due diligence review. This allows for the legal assessment of cost risks and liability issues for purchasers.
Urban development planning
For the redevelopment of old industrial locations (so-called land recycling projects), former industrial sites play a central role in urban planning. The existence or suspicion of contamination must be taken into account through comprehensive legal and technical assessments before a construction permit can be granted.
Public participation and transparency
Participation rights
The public is entitled to extensive participation rights in accordance with environmental information laws and within formal planning procedures, especially regarding planned remediation measures. Affected residents are regularly informed about measures and may raise objections.
Conclusion
From a legal perspective, former industrial sites form a complex area that encompasses numerous state and federal regulations. The key issues are the identification of potential hazards, determination of responsible parties, implementation of necessary remediation measures, and regulatory transparency obligations. Proper legal handling of former industrial sites is particularly crucial for environmental protection and property rights, especially in real estate transactions and urban development.
Frequently Asked Questions
Who is responsible for the remediation of identified former industrial sites?
Remediation obligations for former industrial sites in Germany arise primarily from the Federal Soil Protection Act (BBodSchG) as well as state-specific provisions. In principle, the duty to remediate rests with the so-called ‘polluter’ of the harmful soil or groundwater change. If the polluter can no longer be identified or is not legally accessible (e.g., in the case of insolvent or no longer existing former companies), responsibility may extend to the ‘property owner’ or certain rights holders, provided they were aware of the contamination or enabled or aggravated the risk by their conduct. A formal administrative order, usually issued by the relevant soil protection or environmental authority, is required for specific obligations. Liability is independent of fault, meaning it applies regardless of whether the obligated party personally caused the contamination. Legal successors can also be held liable under certain circumstances, particularly if they were aware of or negligently unaware of the contamination at the time of property transfer. Within the scope of remediation obligations, the authority can impose a range of measures – from investigation to complete remediation and post-remediation monitoring – with the costs generally to be borne by the obligated party.
Is the acquisition of a property with former industrial sites subject to any special legal review?
Yes, the acquisition of a property on which a former industrial site is located is subject to particular legal risks and should always undergo comprehensive review (due diligence). According to Section 4 (3) BBodSchG, the new owner – in addition to the polluter – may be called upon to bear the remediation costs, especially if they knew about the contamination at the time of purchase or remained ignorant due to gross negligence. Purchase agreements often contain special provisions regarding liability for contamination; however, such waivers are generally not binding on authorities. Environmental authorities are also entitled to request information and investigations from the owner. As part of the obligation to investigate, significant costs and usage restrictions may arise. Therefore, a thorough review of documents and sites using environmental reports and consultation of the contaminated sites register of the competent authorities is recommended before acquiring ownership.
What administrative procedures apply for the identification and remediation of former industrial sites?
In cases of suspected former industrial sites, identification and prioritization are first carried out by the responsible soil protection or environmental authority, usually based on contaminated sites registers and official research. The authority can order investigations by decree: initially as a preliminary investigation to assess risks, and, if an initial suspicion is confirmed, followed by a detailed risk assessment. If the authorities determine ‘harmful soil changes’ or hazards, a remediation order will be issued (Section 13 BBodSchG). This order specifies remediation objectives, deadlines, and required measures. Parties involved have duties to cooperate and tolerate officially ordered measures. There is also a reporting obligation to authorities during and after remediation. The process is characterized by multiple opportunities for participation, hearings, and appeals, but, depending on the danger, it can be directed at the current owner or user regardless of their material contribution to the contamination.
Are there legal requirements for evidence preservation with regard to former industrial sites?
Evidence preservation is a key aspect in dealing with former industrial sites. Owners, acquirers, and those obligated to remediate may have an interest in court-proof documentation for warranty purposes and in particular to defend against official claims or private liability claims. The legal basis is primarily Section 13 BBodSchG as well as general principles of evidence preservation procedures. The authority may also specifically order investigation and evidence preservation measures. In a remediation procedure, comprehensive documentation of the investigation and remediation performed, including analysis results, remediation measures, and success verification, is required. In some cases, specific investigation concepts approved by the authority and the involvement of expert specialist companies are prescribed. The burden of proof for the proper condition after remediation lies with the obligated party. This documentation also serves to exclude later claims by authorities or third parties.
What are the legal consequences of failing to remediate a former industrial site?
If an officially ordered remediation is not carried out or not carried out properly, significant legal consequences may follow. The competent authority may order enforcement measures such as substitute performance (i.e., carrying out remediation at the expense of the obligated party), coercive fines, or immediate enforcement (§ 15 BBodSchG and general administrative enforcement law). Fines and, in serious cases, criminal sanctions for environmental offenses (§§ 324ff. StGB: soil and water pollution) may also apply. Additionally, private tort claims by third parties, e.g., neighboring property owners in case of pollutant spread, can be asserted. Failure to remediate may also entail liability risks in the context of property sales or insolvency, as authorities and third parties can continue to hold the owner or entitled user liable.
What cooperation obligations do property owners and third parties have in the context of official measures?
Property owners, current users, and former polluters are legally required to cooperate with officially ordered investigations or remediation measures (§ 12 BBodSchG). They must tolerate that official personnel and commissioned specialist companies enter the property, take samples, and carry out technical measures. This also extends to inconvenient measures, provided these are proportionate and necessary to avert danger. Cooperation duties also include the provision of documents and information about previous uses, structural changes, or known contamination. Refusal to cooperate may be sanctioned with enforcement measures. Third parties who are lawfully or unlawfully present on the property are likewise required to cooperate in the general context of hazard prevention.
How are cost bearing obligations regulated by law?
The obligation to bear the costs for investigations, safeguards, and remediation of contaminated sites is regulated in the Federal Soil Protection Act (BBodSchG, § 24) as well as in supplementary state regulations. In principle, the “polluter” and “condition” liability apply: Primarily, the polluter is liable; subsidiarily, the owner or the beneficial user can be held responsible. If there are several liable parties, they are jointly and severally liable, so the authority is free to choose which party it claims for the total costs; internally, however, they may assert claims for compensation among themselves (§ 426 BGB). In the case of substitution (e.g., remediation commissioned by the authority at the expense of the obligated party), the authority can directly determine and, if necessary, enforce the costs incurred as a public law reimbursement claim. In real estate transactions, contractual arrangements regarding the distribution of costs are advisable, but this does not exclude claims by the authority. Funding options or relief exist for certain legacy cases, provided that the property owner demonstrably had no knowledge of the contamination and could not reasonably have been expected to have such knowledge.
