35. The duties in Germany

Section 31 names the reasons why this analysis cites predominantly German rules. This section brings together the German provisions in force in one place and gives the source for every statement. In doing so it repeats points that stand in their own context elsewhere, so that a company in Germany does not have to assemble the duties from the whole of the analysis.

The term hazardous substance also covers what only arises later

The German Hazardous Substances Ordinance does not attach to the purchase. Section 2 paragraph 1 number 3 counts among the hazardous substances “substances, mixtures and articles from which substances within the meaning of number 1 or number 2 arise or are released during manufacture or use”. Number 4 additionally covers substances and mixtures which, because of their properties and the manner in which they are present or used at the workplace, can endanger the health and the safety of the employees. A chromate that forms at the interface between insulation material and hot component is therefore covered, although nobody bought it and nobody wanted to manufacture it. [195]

The term activity is just as wide. Section 2 paragraph 5 sentence 1 names “any work with substances, mixtures or articles, including manufacture, mixing, use and consumption, storage, keeping, treatment and processing, decanting and transfer, removal, disposal and destruction”. The removal, storage, reinstallation and disposal of a contaminated insulation are therefore activities within the meaning of the Ordinance. [195]

The risk assessment therefore begins with a determination and not with a measurement. Section 6 paragraph 1 sentence 1 requires the employer to determine “whether the employees carry out activities with hazardous substances or whether hazardous substances can arise or be released during activities”. Section 6 paragraph 5 sentences 1 and 2 names the group of cases relevant here expressly: account is to be taken of activities in which the possibility of a hazard remains even after all technical protective measures have been exhausted, and this applies “in particular to maintenance work, including servicing work”. For substances without a supplier classification, section 6 paragraph 3 sentence 1 requires the employer to classify them himself. [195]

Investigation before work begins and the duties of the party commissioning the work

Since 5 December 2024 the Ordinance has contained a provision of its own in section 5a for the party commissioning activities on structural or technical installations. Before the activities begin, he has to make available to the executing company, in writing or electronically, all the information available to him on the construction or use history concerning hazardous substances that are present or suspected, and for this purpose he has to make use of the documents accessible to him with reasonable effort. Sentence 3 provides that hazardous substances within the meaning of this provision are those “which are released by the activities and can lead to a particular hazard to health”. [196]

On the side of the executing company stands section 6 paragraph 2c. If a technical investigation is necessary in order to determine whether hazardous substances are released during the activities on structural or technical installations and can constitute a hazard to health, that investigation is “a precondition for carrying out the activities”. The absence of an examination is therefore not a state in which work may be done. [196]

The wording is “structural or technical installations”. Whether vehicles, ships and locomotives fall under it, the Ordinance does not say, and I have not found any guidance on its interpretation. For stationary installations, that is for combined heat and power plants, boilers, pipework and turbines, the question does not arise. [196]

The risk assessment is to be documented before the activity is taken up and, under section 6 paragraph 11 sentence 1, may be carried out only by competent persons. Section 6 paragraph 8 sentence 2 number 5 requires in the documentation “a reason where, in the case of activities with carcinogenic or germ cell mutagenic hazardous substances of category 1A or 1B, employees have not been entered in the exposure register under section 10a paragraph 1 sentence 1”. Non-entry therefore has to be reasoned. [195]

Substitution and the ranking of the measures

Section 7 paragraph 3 requires that, on the basis of the result of the substitution check, “substitution be carried out as a matter of priority”, namely by substances, mixtures, articles or processes which, under the respective conditions of use, are not hazardous or are less hazardous. Section 7 paragraph 4 orders the further steps: the design of the processes and low emission forms of use according to the state of the art, after that collective technical measures at the source of the hazard and organisational measures, and only then individual measures including personal protective equipment. Section 7 paragraph 5 sentence 2 provides that the use of burdensome personal protective equipment may not be a permanent measure. [195]

For carcinogenic substances of category 1A or 1B, section 10 paragraph 1 tightens this order. Where substitution is not technically possible, the employer has to ensure manufacture and use in a closed system; where that too is not technically possible, he has to minimise the exposure according to the state of the art. Section 10 paragraph 4 names the cases in which personal protective equipment is to be worn, among them activities in the area of high risk and a substantially increased exposure to hazardous substances without a workplace limit value or tolerance concentration. [195]

The German TRGS 561 implements this ranking for the case dealt with here. Section 4.1 paragraph 1 requires the substitution check and expressly names the examination of “whether powdered materials can be replaced by less dusting ones”. Section 4.2 paragraph 1 sentence 1 describes measures to avoid and reduce dust generation as “absolutely necessary”. Section 5.9.3 paragraph 5 ties the additional protective regime to activities on industrial components “on which a chromium(VI) contamination is present or on which it cannot be ruled out”. [19]

The value of 1 µg/m³ and what it does not achieve

For chromium(VI) compounds there is no workplace limit value in Germany. The German TRGS 910 carries in table 1 a tolerance concentration of 1 µg/m³ for the inhalable fraction with an excursion factor of 8 and the note “see TRGS 561”; an acceptance concentration is not laid down for this entry. The concentration relates to the element content of the metal and is defined as a shift average over eight hours. [101]

The German TRGS 561 quantifies the associated risk in section 3.3.4 paragraph 2: at an exposure of 1 µg/m³ over the whole of working life, an additional statistical lung cancer risk of the order of about 4:1000 results. Above this value there is a high risk, below it a lower risk that cannot be quantified. The rule requires that the concentration be complied with and that further minimisation to the greatest possible extent be sought. [19]

The duties under sections 6 and 7 of the German Hazardous Substances Ordinance do not depend on whether this value is exceeded. An air measurement moreover answers neither the question of skin contact nor that of surface contamination; for the hazard from skin contact the German TRGS 401 applies. [195, 99]

Exposure register

Since the amendment of 2 December 2024 the exposure register has stood in a provision of its own. Section 10a paragraph 1 sentence 1 requires a register of the employees who carry out activities with carcinogenic, germ cell mutagenic or reproductive toxic hazardous substances of category 1A or 1B “for whom the risk assessment shows a hazard to their health”, stating the activity and the level and the duration of the exposure. Under paragraph 2 it is to be kept, for carcinogenic or germ cell mutagenic hazardous substances, for 40 years after the end of the exposure; on termination of the employment relationship the employee receives an extract. Under paragraph 3 the employer may discharge these duties by transmitting the data to the competent accident insurance institution or its association. [197]

The Zentrale Expositionsdatenbank ZED, the central exposure database of the German Social Accident Insurance, is the route set up for this. It is described there as a free service by which employers can meet their obligation under the German Hazardous Substances Ordinance; where it is used, the duty to hand over and to archive is transferred to the German Social Accident Insurance, and the data are kept for at least 40 years after the end of the exposure. [199]

The version of the German TRGS 410 of 25 September 2026 has introduced a criterion for inclusion of its own for chromium(VI). Under section 4 paragraph 1 number 10, employees are to be included where “during activities with chromium(VI) compounds the concentration of 1 µg/m³ as a shift average is exceeded”. Further criteria of the same paragraph apply irrespective of this, among them number 5 where respiratory protection has to be worn as a protective measure, and number 7 where no sufficient information on the level of a possible exposure is available. [198]

Section 4 paragraph 4 of the same rule covers the activities dealt with here directly. Employees are also to be included where repair and overhaul work, servicing work, cleaning work, sampling on systems that are not closed, demolition work or activities in contaminated areas are carried out repeatedly and a hazard cannot be ruled out on the basis of the risk assessment. Paragraph 3 names the dermal hazard as a ground for inclusion in its own right. For the level of the exposure, section 5 paragraph 1 provides that the effects of wearing personal protective equipment are left out of account. [198]

The duty also falls on outside contractors. Section 3 paragraph 7 records that the risk assessment and the keeping of the register apply to them as well, that they have to obtain the necessary information from the client and that the client has to make this information available. For temporary agency workers, under paragraph 8 the hirer documents during the period of hire, and the agency afterwards takes the entries into its own register. [198]

Occupational health care and occupational disease

Part 1 paragraph 1 number 1 of the annex to the German Ordinance on Occupational Health Care (Verordnung zur arbeitsmedizinischen Vorsorge, ArbMedVV) carries “chromium-VI compounds” in its list of substances. Mandatory occupational health care is to be arranged, among other cases, where repeated exposure cannot be ruled out and the hazardous substance is carcinogenic of category 1A or 1B. Under section 4 paragraph 2 the employer may allow an activity to be carried out only where the employee has taken part in the mandatory occupational health care. Irrespective of this, under part 1 paragraph 1 number 2 letter i there is mandatory occupational health care for activities with high temperature wools in so far as fibre dusts classified as carcinogenic can be released. [200]

Annex 1 of the German Occupational Diseases Ordinance (Berufskrankheiten-Verordnung, BKV) carries under number 1103 “diseases caused by chromium or its compounds”. The list number is framed in open terms and is restricted to no particular compound and no particular activity. [201]

Supervision and sanctions

Supervision is a task of the state. Section 21 paragraph 1 of the German Occupational Safety and Health Act (Arbeitsschutzgesetz, ArbSchG) assigns it to the competent authorities of the Länder; since the calendar year 2026, under section 21 paragraph 1a at least 5 percent of the establishments present in the Land are to be inspected each year, and this minimum inspection quota may not be departed from by Land law. Section 22 paragraph 2 confers the power to examine working procedures and to carry out measurements, section 22 paragraph 3 the power to issue orders and, where they are not carried out, to prohibit the work concerned. [202]

The German Hazardous Substances Ordinance supplements these powers. Under section 19 paragraph 3 number 3 the competent authority may order the employer to have the work stopped where he does not take the necessary measures ordered without delay or within the period set. Under section 19 paragraph 4, proof that the risk assessment was drawn up by a competent person is to be submitted to it on request. [197]

In addition, the accident insurance institutions supervise. Section 17 paragraph 1 of the German Social Code Book VII assigns to them the supervision of the preventive measures and the advising of the undertakings. Section 19 paragraph 1 gives the supervisory officers the power to issue orders in the individual case and, where there is imminent danger, orders that are immediately enforceable, section 19 paragraph 2 number 5 the power to determine the presence and the concentration of hazardous substances or to have them determined at the expense of the entrepreneur, and number 6 the power to take samples. This provision contains no power to shut down; shutting down is assigned to the state authorities. [203, 202]

The administrative offences are set out in section 22 paragraph 1 of the German Hazardous Substances Ordinance. They cover, among other things, the risk assessment that is not documented, or not documented correctly or in time, the hazardous substances register that is not kept or not kept correctly, the taking up of an activity contrary to section 7 paragraph 1, the permanent use of burdensome personal protective equipment and the exposure register that is not kept, or not kept correctly or completely, and that is not kept for the prescribed period. [103]

The amount follows from the German Chemicals Act (Chemikaliengesetz, ChemG). For the reference relevant here, section 26 paragraph 3 provides a range of up to 50,000 euros. Anyone who by such an act intentionally endangers the life or the health of another person is liable under section 27 paragraph 2 to imprisonment of up to five years or to a fine; in the case of negligence the range under section 27 paragraph 4 number 2 is up to two years. Under the German Occupational Safety and Health Act the range of fines for breaches of enforceable orders reaches up to 30,000 euros, and section 26 makes persistent repetition and the intentional endangerment of the life or health of an employee a criminal offence. [204, 202]

Waste

The German Waste Catalogue Ordinance (Abfallverzeichnis-Verordnung, AVV) contains no waste code that names chromate-loaded insulation materials. The classification runs through the pairs of a hazard-relevant and a non-hazard-relevant entry. For insulation material other than asbestos, 17 06 03* “other insulation materials consisting of or containing dangerous substances” comes into consideration, with 17 06 04 as its counterpart. For linings and refractory materials, 16 11 03* from metallurgical and 16 11 05* from non-metallurgical processes apply, with 16 11 04 and 16 11 06 as their counterparts. For separated chromates, 16 09 02* “chromates, for example potassium chromate, potassium or sodium dichromate” applies. Under section 3 paragraph 1 the asterisk means hazardous within the meaning of section 48 of the German Circular Economy Act. [205]

Which entry of the pair applies is decided by the content. The introduction to the annex provides in number 2.2.1 that a waste is classified as hazardous where it contains relevant dangerous substances on account of which it displays one or more of the properties listed in Annex III of Directive 2008/98/EC. For the property HP 7 carcinogenic, which is relevant here, the concentration limit for a substance classified as a carcinogen of category 1A or 1B with H350 is 0.1 percent. [205, 69]

Section 9a paragraph 1 of the German Circular Economy Act (Kreislaufwirtschaftsgesetz, KrWG) prohibits “the mixing, including the dilution, of hazardous waste with other categories of hazardous waste or with other waste, substances or materials”. Paragraph 3 obliges producers and holders to separate waste that has been mixed in an impermissible manner without delay, in so far as this is necessary for proper recovery that causes no harm. Section 326 paragraph 1 number 2 of the German Criminal Code makes the unauthorised handling of waste that is carcinogenic for humans a criminal offence. [206, 107]

The distance from the asbestos regime

For asbestos there is a procedure of its own in Germany. The German TRGS 519 requires in section 2.7 proof of expertise through successful participation in a course recognised by the authorities with an examination; the proof is valid for six years. The German Hazardous Substances Ordinance requires in section 11a paragraph 3 an official approval for activities in the area of high risk, since 20 December 2025 in section 11a paragraph 4a a permit for demolition work in the area of low and medium risk, and in section 11a paragraph 4 notification at the latest one week before the activities begin. Section 14.5 of the German TRGS 519 allows the protective measures to be lifted only where a visual check shows no visible residual contamination and a measurement gives a fibre concentration below 500 fibres per cubic metre. [97, 197]

For chromium(VI) on insulated hot components none of these points exists. There is no duty of expertise, no approval, no permit, no notification before work begins and no clearance measurement. The only involvement of the authorities is the notification under section 10a paragraph 5 of the German Hazardous Substances Ordinance, and this is made within two months of taking up the activity and only where the workplace limit value is not complied with or where work is carried out in the area of high risk. Section 25 describes the same asymmetry for the other legal systems considered. [197]

What the German body of rules names

Germany is the only one of the legal systems considered here in which the case of application has a section of its own in the sub-statutory body of rules. The German TRGS 561 describes in section 5.9.3 that chromium(VI) compounds can form on thermally loaded chromium-alloyed industrial components, that these can be deposited in insulation materials or assembly pastes and that exposure can follow during dismantling and maintenance work. As influencing factors it names the steel temperature, the chromium content of the alloy, the reaction time, the presence of alkali and alkaline earth metal oxides from insulation materials or assembly pastes, and oxygen and air humidity close to the surface. On the mechanism it records that it is at present not yet clarified. [19]

Three German statutory accident insurance institutions describe the same matter on their sector pages. BG ETEM names the temperature range of about 350 to 800 °C and the contact of chromium-alloyed steels with insulation materials or assembly pastes containing alkali and alkaline earth metals. BG Verkehr names yellowish deposits on stainless steel when insulation materials are stripped off and records that the question is the subject of investigations of its own for ship engine rooms and car engines. BG BAU distinguishes according to the presence of thermal insulation materials containing alkali and alkaline earth metals and states that BG ETEM is taking the lead. [2, 207, 208]

The German Hazardous Substances Ordinance itself does not name the case. It covers it through the term hazardous substance, the term activity and the duty of determination in section 6 paragraph 1. The German TRGS 910 does not name it and refers only in the notes column to the German TRGS 561. The German Waste Catalogue Ordinance contains no code of its own. The German Ordinance on Occupational Health Care names chromium(VI) compounds and high temperature wools separately, without connecting them. [195, 101, 205, 200]

What follows from this for a company in Germany

From the provisions named there follows a set of documents that can be examined. These include the documented risk assessment, drawn up by a competent person, for the material pairing of chromium-alloyed hot component and basic insulation material, and the substitution check carried out and reasoned under section 7 paragraph 3. They include the information from the party commissioning the work under section 5a and the technical investigation under section 6 paragraph 2c. They include the operating instruction and the annual instruction under section 14. They include the entry in the exposure register or its reasoning under section 10a in conjunction with the German TRGS 410, the arranging of the mandatory occupational health care and the classification of the waste according to its content. [195, 196, 197, 198, 200, 205]

None of these points presupposes a measurement, and none of them falls away through a negative measurement result. The duty arises with the possibility of formation, and ruling out that possibility is the point that would have to be demonstrated.