The parties are disputing questions of responsibility concerning the treatment of mine water that is contaminated with heavy metals and leaking from a decommissioned metal ore mine.

Pyrite, zinc and lead were extracted underground from the M. mine from 1852 until extraction ceased in March 1992. The mine had to be drained on account of ground and fissure water penetrating the mine. The mine water was contaminated with heavy metals and the water was purified of these dissolved metals at the expense of the mine operator in a treatment plant operated by the Ruhrverband before being discharged into the receiving river, the Lenne.

Until its decommissioning, the mine was operated by S. Bergbau GmbH & Co. The personally liable partner (persönlich haftender Gesellschafter) is S. Bergbauverwaltungsgesellschaft mbH, whose sole shareholder is the claimant. S. Bergbau GmbH & Co. managed the mine in its own name and for the account of the claimant.

With notice of 21 October 1993, the mining authority (Bergamt) authorised the closure plan of 17 December 1991 submitted by S. Bergbau GmbH & Co. in the version of 21 May 1992. It was prescribed in the authorisation notice that water controls should be maintained to the extent required until the final closure of the surface openings. A special operating plan was to be submitted for the cessation of the pumping measures, which was to include a presentation of the consequences of such cessation.

The removal of mine water from the underground mine ceased in April 1996. After the mine had filled up, mine water has been flowing freely out of the mouth of the water drainage tunnel since March 1999. From there, it is drained and treated in the mine water precipitation system which had meanwhile become the property of the mining company. Time-limited permits required under water law were issued to the mining company to discharge the purified mine water into the river Lenne and to extract water.

Following ultimately unsuccessful negotiations lasting several years between the parties concerning the limitation of liability for the purification of the mine water, which the claimant had carried out on the basis of special operating plans, Arnsberg District Government, which was now competent to deal with the case, instructed the claimant in a notice of 8 April 2008 either to submit a new, admissible special operating plan for the operation of the mine water treatment system to supplement the permitted closure plan or to apply for an extension of the previously applicable operating plan for treating the mine water. The obligation to purify the mine water derived from the closure plan. It was currently reasonable that the claimant should continue to bear the aftercare obligation. Upon the claimant’s action, the Administrative Court rescinded the administrative decision.

Upon the defendant’s appeal, the Higher Administrative Court rejected the action. The claimant’s appeal on points of law was unsuccessful.

20 (…) The Higher Administrative Court was right to dismiss the admissible action (1.), at least in the result. The challenged order has its legal basis (…) in section 71 (1) first sentence of the Federal Mining Act (BBergG, Bundesberggesetz) in the version of the promulgation of 13 August 1980 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1310), most recently amended by article 4 para. 71 of the Act of 7 August 2013 (BGBl. I p. 3154) (2.). It is consistent with the principle of proportionality (3.).

21 - 40 (…)

41 3. The order, which is appropriately based on section 71 (1) first sentence BBergG, meets the requirements of the general principle of proportionality that is based on fundamental rights. This principle is the benchmark for any order, regardless of whether it concerns an interference with the freedom of occupation pursuant to article 12 (1) of the Basic Law (GG, Grundgesetz) or the provision on the content and limits of property under article 14 (1) second sentence GG. The mine water purification demanded is appropriate and also necessary to guarantee water protection. The order is also proportionate in the narrower sense.

42 a) The special standard of section 56 (1) second sentence no. 1 BBergG is not applicable here. According to that provision, any subsequent obligations are only admissible if they are economically reasonable for the entrepreneur and the type of facilities he operates. As already stated above, section 56 (3) in conjunction with section 56 (1) second sentence BBergG is not relevant here. It is also not necessary to extend the specific legal requirements concerning economic reasonability to section 71 (1) first sentence BBergG (…), a matter that was left open in the judgment of 9 November 1995 - 4 C 25.94 (…). That could only be considered if the interests were comparable. That is not the case. Giving privileged treatment to an entrepreneur in the form of increased requirements on establishing the proportionality of an order takes account of the idea of protecting legitimate expectation. The new requirements also have to be measured by the economic dispositions made by the entrepreneur on the basis of an authorised operating plan. That means that during the extraction phase, he should not, in compliance with the new order, be obliged to carry out permanently unprofitable operations. These considerations do not apply when the closure plan has consciously left open the management of a significant consequence of the cessation of operations that all the parties concerned regarded as costly, and consequently the matter was left open for a decision to be taken at a later date. An entrepreneur’s legitimate expectation that only the closure plan in its original form will continue to exist cannot be disappointed by requirements affecting the entrepreneur as a result of the supplementation of an incomplete closure plan.

43 b) Proportionality in the narrower sense requires that the relationship between means and ends are appropriate i.e. the measure may not cause a disadvantage that is disproportionate to the intended success. In the case of the necessary comparison of the - financial - burden associated with the order and the benefit pursued, no further statement needs to be made to the effect that the objective pursued by purifying the mine water is of great significance. Pollution control of the surface water in accordance with the requirements on the quality of water discharges to be defined under water law serves a predominantly important interest of the common good. The not inconsiderable requisite financial expenditures are not per se disproportionate to the success pursued.

44 The claimant is responsible in principle for the full costs as the entrepreneur responsible under mining law (section 58 (1), section 4 (5) BBergG). This obligation is justified by its previous mining activity over many years (Federal Administrative Court, (BVerwG, Bundesverwaltungsgericht) judgment of 13 December 2007 - 7 C 40.07 (…); order of 14 April 2011 - 7 B 8.11 (…)), and it is attributable to the claimant as the legal successor of the earlier mine entrepreneur (see BVerwG, judgment of 16 March 2006 - 7 C 3.05 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 125, 325 para. 19 ff.). Contrary to the claimant’s opinion, the legitimation of liability not only derives from the mine entrepreneur’s possibility to gain economic benefit from the extraction licence issued to him (sections 8 and 9 BBergG), whereby, in the claimant’s opinion, the limitation of liability is designated as comprising the profit made. This illegitimately fails to take into account that mining activities are associated with special risks, particularly for the environment. These are not made legally insignificant by virtue of the fact that the activity was authorised under an extraction licence. Legalisation can only be effected within the context of the regulatory content of the licence in accordance with its subject, content and extent (see BVerwG, judgments of 2 December 1977 - 4 C 75.75 - BVerwGE 55, 118 <123> and 16 March 2006 - 7 C 3.05 -BVerwGE 125, 325 para. 31). Operating plans for the extraction phase have no legal effect on the closure phase on account of their limits in terms of time and contents. As a consequence of the fact that mining activities are potentially hazardous, mining aftercare obligations only take effect to the extent that they relate to preventing risks specifically deriving from mining operations, as is the case when there is a threat of water pollution. While the leakage of mine water after the cessation of its removal from the underground mine may in itself be a natural process, hazardous heavy metal pollution is caused to a significant extent by mining and results from the leaching of residual metals remaining in the shafts (BVerwG, judgment of 9 November 1995 - 4 C 25.94 - BVerwGE 100, 31 <40>).

45 In view of this responsibility deriving from the earlier potentially hazardous activity which is now manifesting itself in a hazardous situation typically caused by mining, a limitation of liability under the principles of the decision by the Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) on contaminated sites (decision of 16 February 2000 – et al. 1 BvR 242/91 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 102, 1) is not possible, as the Higher Administrative Court correctly explained. The benchmarks developed in that decision concerning the liability of a plant operator who finds himself in the role of a victim on account of effects beyond his sphere of responsibility and of not having actively contributed to these effects (decision of 16 February 2000 - 1 BvR 242/91 et al. - BVerfGE 102, 1 <21>) cannot be applied to responsibility for one’s own conduct under mining law.

46 Finally, a limitation of liability does not follow from the so-called spring water theory, which, according to the claimant, had not least impeded the formation of sufficient reserves. The question need not be addressed here as to whether there is evidence, as the claimant claims, that it was the mining authorities’ general practice to grant exemption from aftercare obligations for polluted mine water on industrial and economic policy grounds if necessary. There is no evidence that this line of argument played a role in any court proceedings. Thus, in the Rammelsberg ruling, the Federal Administrative Court (judgment of 9 November 1995 - 4 C 25.94 - BVerwGE 100, 31) does not discuss a supposedly unanimous legal view with which it does not concur. In any case, the claimant had no legitimate expectation that the legal framework conditions, in the form of an administrative practice favourable to it, would remain unchanged de jure. The asserted practice of the authorities was neither expressed in the decisions addressed to the claimant during the extraction phase of operations, nor was it reliably based on normative standards. The expectation entertained in spite of this, that upon ceasing ore extraction one is no longer responsible for purifying the mine water, is of no legal effect. This applies all the more since the requirements of environmental law to which mining law refers in section 55 (1) no. 9 BBergG are not static, but are subject to dynamic development. Particularly in mining law, which is designed to be applied over a long period even in the development phase, the entrepreneur must adapt to changes in the legal environment.

47 Accordingly, a limitation of liability is only reached when the criterion relevant for establishing obligation according to the polluter-pays principle no longer applies. Thus, in assigning spheres of responsibility, a causal contribution that was initially decisive may, over time, become completely insignificant, while only the current situation is subject to assessment and responsibility is now reassigned, for example according to the common burden principle that the general public has to pay. This assessment and the drafting of general rules are primarily the remit of the legislator. The legislator can take into account, for example, that mining law pursuant to section 1 no. 1 BBergG also serves to ensure the availability of raw materials and thus that private mining activity is at the same time of special public benefit (cf. BVerfG, judgment of 17 December 2013 - 1 BvR 3139/08 et al. - BVerfGE 134, 242 para. 202; BVerwG, judgments of 14 December 1990 - 7 C 5.90 - BVerwGE 87, 241 <249> and of 20 November 2008 - 7 C 10.08 - BVerwGE 132, 261 para. 20). Without a relevant decision by the legislator, on the other hand, there are no arguments in favour of assuming merely on the basis of the circumstances existing in this case that the temporal proximity was so significantly relaxed that further liability would be inappropriate. Following a mining activity lasting more than 100 years, which ended in 1992, the situation that now needs to be regulated has been ongoing since 1999. Even if in the present situation one were to consider basing a time limit for the exercise of intervention powers on the earlier regular limitation period of section 195 of the German Civil Code (BGB, Bürgerliches Gesetzbuch), old version, and the present maximum limitation period of thirty years under section 197 BGB as the expression of a general legal concept that exceeds the original area of application (cf. BVerwG, judgment of 21 October 2010 - 3 C 4.10 (…) para. 14, 16), this time limit would not have expired either at the time the challenged order was issued or at the present time.

48 In this case, the question of “eternal liability” beyond the currently estimable periods thus remains open. In any case, the claimant cannot maintain that he has any procedural claim to a final ruling on a limitation of liability to secure effective legal protection at the present time. The claimant wrongly invokes the reasoning by the Federal Constitutional Court in its decision on contaminated sites (decision of 16 February 2000 - 1 BvR 242/91 et al. - BVerfGE 102, 1 <24>). The circumstances of the cases are not comparable. Cleaning up a contaminated site is usually a single event, enabling the limitation of liability to be defined in terms of a fixed amount. The present case, however, relates to obligations extended over a long period of time. The extent of these obligations may change, especially in the course of time. For example, the cost of mine water purification may decline significantly on account of new technical developments or other measures. In this respect, considerations are documented in the files according to which the annual costs can be reduced from EUR 1.3 million to EUR 0.3 million by putting alkaline backfill material in the shafts. Such changes may also be of significance for an examination that becomes pending as the distance in time increases of whether a further obligation is still appropriate.(…)