Facility Operation and Emissions under German Environmental Criminal Law

By Dr. Julius Hagen, Attorney at Law

When the operation of a facility moves outside its legal framework

A company may hold a permit and still face an environmental criminal investigation. Common triggers include a changed production line, higher throughput, a new input substance, unusual measurements or an official prohibition. The relevant object is the facility as it actually operated, not merely its description in the permit.

The starting point is a comparison between the authorised and the actual operation. This shows whether a technical change moved outside the existing framework, which duty may be affected and who was responsible for the event. Measurements acquire their significance only in that operational context.

Permit requirements and the scope of the facility

Section 4 BImSchG makes certain facilities subject to approval; the 4th BImSchV specifies them in its Annex. The type of facility, capacity threshold, legally and actually possible operating scope and the spatial and technical connection with auxiliary facilities may matter. Several facilities of the same type may also be assessed together.

Conditions shape the authorised operation. They may regulate substances, operating times, maintenance, exhaust-gas treatment, measurements, noise protection or records. Non-approval-based facilities also remain subject to operator duties, including those under Section 22 BImSchG. The absence of a permit does not mean that operation is legally unregulated.

Operating conditions, permit conditions and later orders

The authorised mode of operation is not defined by the original permit alone. Later orders and directly applicable requirements under the BImSchG or its regulations may alter the framework or create additional duties.

A breach of a condition must first be classified under administrative law. Criminal liability depends on whether the breached duty is incorporated into the offence and which offence is alleged. The wording of the decision, its period of validity and any official tolerance may therefore be decisive.

Changes and extensions

Section 15 BImSchG concerns changes subject to notification. Section 16 requires approval for a material change where adverse effects may arise and may be relevant to the approval requirements. The line between maintenance, a minor adjustment and a material change must be determined from the technical event.

Higher production, a different input substance or a changed exhaust or ventilation route may leave the existing permit framework. Calling the work a repair does not settle the issue, nor does the fact that the remainder of the facility is unchanged. Technical effects, capacity thresholds, protected interests and the original permit must be compared.

Section 327 StGB and unauthorised operation

Section 327(2) sentence 1 no. 1 StGB covers, among other things, operating certain approval-based facilities without the required approval or contrary to an enforceable prohibition. It is dependent on administrative law and operates as an abstract endangerment offence; a proven concrete environmental harm is not required.

The scope therefore depends on the facility, the approval requirement, the actual operation and the legal effect of the official decision. The wording and period of the decision may limit the allegation. Intent must cover the relevant facts and the approval or prohibition element.

Noise, vibration, light and other immissions

Section 325a StGB concerns noise, vibrations and non-ionising radiation. A facility may become criminally relevant where an administrative duty is breached and the resulting impact is capable of harming human health outside the facility area. That capability must be established on the facts.

Technical instructions and measurements help define the administrative standard but do not replace the criminal analysis. The TA Lärm may concretise the regulatory assessment; exceeding it does not automatically establish every element of Section 325a. Measurement point, method, operating state and actual effect remain relevant.

Measurements, expert evidence and the chain of proof

Measurements often become central evidence in facility cases. The plan, location, operating state, calibration, evaluation and the relationship between the measurement and the alleged period must be examined. Start-up, maintenance, malfunction or an unusual operating phase may affect the result.

An expert report must also explain the connection between the breached duty, emission and immission. For noise, prior exposure, tonal or impulsive characteristics and the relevant neighbourhood may matter; for air pollutants, dispersion models and reference data may be decisive. A claimed limit exceedance does not establish attribution by itself.

Operators, managing directors and technical managers

Criminal responsibility does not follow merely from the label operator or managing director. Actual control, delegated duties, information flows and the ability to prevent or stop unlawful operation are central. For technical managers and designated officers, the assumed scope of responsibility must be identified.

The allocation of duties in the relevant period should be documented. An organisational failure, an unchecked delegation or ignored warnings may be assessed differently from an isolated technical deviation unknown to management. Whether the case concerns negligence or intent also depends on the factual sequence.

After an inspection, order or search

After an inspection, official measurement or search, preserve the timeline, affected plant parts, extracted data and documents taken. Changes to the operation must be recorded technically. Retrospective alterations to records without a transparent correction trail can damage the evidentiary position.

At the same time, establish whether an order is immediately enforceable, which deadlines apply and which protective measures are required. Regulatory steps and a criminal statement serve different purposes and should be coordinated with legal and technical advice.

Distinguishing water and waste offences

The allegation concerning plant operation must be separated from consequences affecting particular environmental media. A discharge into water may additionally engage Section 324 StGB, while waste-related conduct requires its own assessment under the waste offences. The applicable provision depends on the operational event and the specific duty allegedly breached.

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