Cost bearing responsibilities

For contaminated sites with no duty of decontamination

In last November’s review of the USG a new article was added to the law, namely USG 32 b bis with the title
“Financing in cases of the excavation of material from contaminated sites”. However, the article covers only material excavated from contaminated sites with no duty of decontamination, i.e. where no harmful or burdensome effects – or the danger that such may arise – exists.

Since due to its contamination the proper disposal of material excavated from contaminated sites can have the same high cost implications as the excavation of abandoned hazardous sites, a need for regulation arose because many land owners possess land which they acquired at a time when the high costs of contaminated sites with and without duty of decontamination were not or barely an issue; accordingly no corresponding regulations were made at that time.

The legislators have indeed taken account of the needs of such land owners, however the regulation has been provided with reservations: thus in general two thirds of the additional costs for the investigation and disposal of materials may be demanded from the originators of the pollution and the former owners of the site provided that the following conditions are met on a cumulative basis:

  • The originator paid no compensation for the pollution or the former owners granted no price reduction in respect of the pollution on the sale of the land.
  • The removal of the material is necessary (for the construction or modification of buildings).
  • The current owner acquired the land between 1 July 1972 and 1 July 1997
  • Enforcement does not take place after 1 November 2021.

In the case of sites which are merely contaminated there is no contingent liability on the part of the community and no right to claim cost sharing from the public authorities.

In matters of public law enforcement before the local civil court represents an exception.

For contaminated sites with duty of decontamination (abandoned hazardous sites)

The regulations in accordance with USG 32c et seq. apply to contaminated sites with duty of decontamination. The restrictions set out in USG 32 b bis cease to apply in their entirety; instead the following applies:

  • The originator (however not a former owner who originated no cause or who on exercising due diligence would have had no cause to have knowledge of the pollution) can be prosecuted in full measure for the costs arising from the actions necessary for the investigation, monitoring and decontamination of contaminated sites.
  • In the case of several polluters the costs are divided in accordance with the allotted share of responsibility.
  • In the event that it is not possible to identify the originator, or the originator is insolvent, the responsible local community becomes liable for that originator’s share of the costs (contingent liability).
  • An originator may demand the spreading of costs from the authorities.
  • The responsible local community bears the costs of investigations which it orders but which determine that the land is not contaminated.

For waste

The owner of waste bears the cost of its disposal (USG 32). When a contaminated site is excavated, the owner of the site becomes the owner of the waste and is primarily responsible for its proper disposal. It is therefore absolutely essential to make timely regulations with regard to the responsibility for costs and to specify the right to immediate cessation of excavation activities in the service contract with the excavation company. In this case recourse beyond the provisions described is otherwise no longer possible and the owner of the site must bear full responsibility for the costs of waste disposal.

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