The Hazardous Substances Ordinance is addressed primarily to employers, who have to implement measures that guarantee their employees and other persons are protected when hazardous substances are handled.

In order to achieve this goal, the employer or a person with professional expertise appointed by them to conduct a risk assessment must identify that a hazardous substance is present. Hazardous substances are not always marked with hazard labels or pictograms. For example, water becomes a hazardous substance in a wet workplace. But hazardous substances can also be generated or released, as is the case with soldering and welding fumes, pyrolysis products, exhaust fumes, hazardous substances emitted by chemical reactions and decay processes, or hidden hazardous substances set free when materials are recycled.

Once a hazardous substance has been detected, the risk it poses is assessed. The results allow measures to be taken that protect employees against such risks. Essentially, effective protection presupposes that, as a minimum, the “general protective measures” provided for in Section 8 of the Hazardous Substances Ordinance are implemented. This section deals with fundamental requirements, for example with regard to organisation, workplace hygiene, ventilation, and the provision of suitable equipment. Any other steps taken will build on these “general protective measures”.

The Technical Rules for Hazardous Substances (Technische Regeln für Gefahrstoffe, TRGS) set out in concrete terms how the Hazardous Substances Ordinance is to be interpreted and applied. The TRGSs are drawn up by the Committee on Hazardous Substances (Ausschuss für Gefahrstoffe, AGS), and published after the Federal Ministry of Labour and Social Affairs (Bundesministerium für Arbeit und Soziales, BMAS) has carried out legal checks on them. The requirements of the Hazardous Substances Ordinance are satisfied as long as businesses follow the relevant Technical Rules, for example when conducting risk assessments and implementing protective measures.

2024 Hazardous Substances Ordinance

Apart from the provision made for mental health issues in risk assessments, the innovations in the 2024 Hazardous Substances Ordinance include the expansion of the group to which the ordinance is addressed. The new duties placed on parties who initiate works to cooperate with other stakeholders and share information mean the Hazardous Substances Ordinance now has implications for private households as well, for example if they arrange for maintenance or refurbishment works to be carried out. Apart from possible exposures to asbestos fibres in buildings, these obligations also allow other major risks from hazardous substances to be dealt with by risk assessments (Section 5a).

The amendments made to the Hazardous Substances Ordinance are risk-oriented as they relate to category 1A and 1B substances that are carcinogenic, mutagenic, and toxic to reproduction (CMR substances) and carcinogenic asbestos fibres. The Federal Ministry of Labour and Social Affairs has issued transitional guidance for activities involving asbestos that explains how the Hazardous Substances Ordinance is to be implemented until TRGS 519 has been amended.

Overview of relevant changes for activities involving CMR substances

• Special protective measures now also required for substances that are toxic to reproduction (Section 10)
• Additional inclusion of substances toxic to reproduction in the list of exposures organisations have to keep, with records to be retained for five years (Section 10a)
• Acceptance and tolerance risks now to be considered when specifying protective measures dependent on low, medium, or high levels of risk (Section 10)
• Introduction of the European Binding Occupational Exposure Limit Value (BOELV) set in Annex III of Directive 2004/37/EC for carcinogenic hazardous substances not subject to a national occupational exposure limit value (sections 7, 10)
• An action plan for carcinogenic and germ cell mutagenic hazardous substances to be drawn up as of a medium risk level or if the occupational exposure limit value is not complied with (Section 10)
• Notification of the level of exposure and forwarding of the action plan, at the latest two months after the commencement of the activity, where there is a high degree of risk or if the occupational exposure limit value is not complied with (Section 10a).

Overview of relevant amendments for activities involving asbestos

• If necessary, the employer can commission a technical survey and bill this as a special service (Section 6)
• The protective measures for activities involving asbestos are graduated depending on whether the risk level is low, medium, or high. There are no longer any specific requirements relating to asbestos where concentrations are below 1,000 fibres/m³ (Section 11a)
• Manual activities such as the removal and handling of plasters, fillers, tile adhesives and other chemical building products that contain asbestos are now permitted. The proviso is that employees’ exposure should be kept in the low or medium risk range by the implementation of protective measures using a recognised low-emission technique (constructional method) (sections 11, 11a)
• Demolition and renovation works only still require authorisation for high-risk activities (sections 11a, 25)
• The competent authority is to be notified of activities involving asbestos at the latest one week prior to their commencement (Section 11a, Annex I, para. 3.5)
• The evidence of expert knowledge required depends on the task and the risk range. The evidence required may be determined specifically for each trade (Section 11a, Annex I, para. 3.5)