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09.11.2023 | KPMG Law Insights

Mantelverordnung: New rules for mineral substitute building materials

On 01.08.2023, a number of laws came into force or were amended with the framework ordinance on the recycling of mineral waste: the ordinances on the introduction of a substitute building materials ordinance, on the revision of the Federal Soil Protection and Contaminated Sites Ordinance and on the amendment of the Landfill and Commercial Waste Ordinance.

The Substitute Building Materials Ordinance regulates the production and installation of mineral substitute building materials

The Substitute Building Materials Ordinance (ErsatzbaustoffV) is the first nationally standardized and legally binding regulation for the production and installation of mineral substitute building materials. Mineral substitute building materials according to the ordinance include recycled building materials from construction and demolition waste, industrial by-products such as slag from metal production and ash from thermal processes. Production takes place in plants in which the mineral materials are treated, in particular sorted, separated, crushed, screened, cleaned or cooled.

The Mantelverordnung replaces existing regulations such as LAGA M 20. It specifies limit values for the respective substitute building materials and their individual classes with regard to certain pollutants. Depending on the limit value, the regulation prescribes certain installation methods that are also based on the local conditions. This is intended to limit the entry of pollutants through seepage water into the soil and groundwater and to prevent contamination.

The new version of the Federal Soil Protection and Contaminated Sites Ordinance regulates the application and introduction of materials into the soil

Mineral waste generates around 240 million tons of waste every year. It is therefore important to the Federal Government that these are recycled. One way of doing this is recycling. Another recycling method is the backfilling of opencast mines and excavations. However, it is important to ensure that the soil is also protected. The new Federal Soil Protection and Contaminated Sites Ordinance (BBodSchV) defines the requirements for this type of recycling.

What is new is that in addition to the introduction of substances into the soil, physical impacts are also regulated. This is because, for example, soils are affected mechanically during construction work in the vicinity of the actual building structure and can cause harmful soil changes. In addition to physical soil protection, the ordinance contains new regulations on pedological construction monitoring and risk prevention of harmful soil changes due to soil erosion caused by wind. The methods for determining pollutant levels have also been updated.

These companies and clients are affected by the General Data Protection Regulation

Manufacturers and users of mineral substitute building materials are particularly affected by the Substitute Building Materials Ordinance. These include stationary and mobile processing plants for recycled construction materials, metal-producing industrial plants and waste incineration plants. The regulation is also relevant for road and rail construction.

The new version of the Federal Soil Protection and Contaminated Sites Ordinance, on the other hand, has a particular impact on developers and construction companies, especially for larger construction projects. The rules are also changing for companies involved in the backfilling of excavations or opencast mines.

The building and environmental authorities of the federal states in particular will be responsible for enforcing the Mantelverordnung as a whole.

Manufacturers of substitute building materials require proof of suitability

Manufacturers of substitute building materials require a certificate of suitability in accordance with the Substitute Building Materials Ordinance. Otherwise, operators of processing plants may not place mineral substitute building materials on the market for installation in technical structures. The proof of suitability consists of an initial test in which the material is evaluated and classified. In addition, an operational assessment of the system and in-house production monitoring are required, as well as an external test certificate confirming compliance with these requirements. The proof of suitability must be submitted to the competent authority by 01.12.2023. Operators of treatment plants should quickly look for a suitable monitoring body. This is because capacities are expected to be limited.

Substitute Building Materials Ordinance also applies to ongoing construction work

Even if the proof of suitability is not required until 01.12.2023, mineral substitute building materials must already meet the quality requirements of the Substitute Building Materials Ordinance and be assessed and classified as of 01.08.2023. The following should therefore be noted for the period up to 30.11.2023: As users may only install mineral substitute building materials in technical structures that have been assessed and classified from the time the regulation comes into force, external monitoring and factory production control must be carried out as a minimum from 01.08.2023.

The Substitute Building Materials Ordinance also applies to construction work that began before 01.08.2023. This means that from 01.08.2023, compliance with the required material quality must be checked during ongoing construction work. Since 01.08.2023, the use of substances or material classes as well as installation methods that are not regulated in the Substitute Building Materials Ordinance require approval by the competent authority in accordance with Section 21 para. 2 or 3 Substitute Building Materials Ordinance. This also applies to substances or material classes and installation methods that were or are defined in national regulations.

Consequences of legal violations

If the plant operator fails to carry out a proper acceptance inspection, a fine of up to EUR 10,000 may be imposed. If, for example, the ban on placing substitute building materials on the market only after a test certificate has been issued is violated, or if the building materials are not classified or no in-house production monitoring is ensured, there is a risk of administrative offense proceedings with a fine of up to EUR 100,000.

Conclusion and recommendation for action

As the Mantelverordnung applies to the majority of mineral waste, the regulations are relevant for many companies and clients. It remains to be seen whether the aim of the regulation, i.e. greater acceptance of substitute building materials, will be achieved. An end-of-waste ordinance is already being planned. This could create further requirements for the end-of-waste status of mineral construction and demolition waste.

Affected companies and clients are strongly advised to familiarize themselves with the new regulations at an early stage and to closely follow the latest developments in this area.

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