Who foots the bill for the investigation, monitoring and remediation of contaminated sites? Can financial assistance be provided by the federal government?
The party actually responsible for undertaking the necessary measures - the investigation, monitoring or remediation (party obliged to do the remediation) - is not necessarily the party who is obliged to bear the costs (party obliged to pay). For this reason the party obliged to take action and the party obliged to bear the costs must be differentiated from a legal viewpoint.
Who has to take action?
In accordance with the Contaminated Sites Ordinance, the requisite measures (investigations, monitoring, remediation, aftercare) are fundamentally the concern of, and to be performed by, the owner of the site. But the authorities can require the party who caused the pollution at the site to pay for the preliminary investigation, monitoring measures or detailed investigation. The same is true for the development of the remediation project and for the implementation of remediation measures. In this case, the agreement of the owner is essential.
Naturally, the authorities do not make their decisions arbitrarily but are obliged to adhere as far as possible to the principle of equality before the law: Where a third party is involved as the cause of the pollution and where this party is also in a position to complete the measures in good time, it is this party and not the mere owner (e.g. tenant or leaseholder) who is, as a rule, required by the authorities to do the job.
Who has to pay?
The Federal Law relating to the Protection of the Environment stipulates that the polluter has to bear the costs of remediation. If there is more than one polluter in a remediation case, each bears the cost in proportion to his share of responsibility. Thus, the polluter is primarily liable, and the owner only secondarily.
The polluter is the party who caused the pollution of the site through his/her actions or through the actions of a third party acting on his/her behalf.
The owner is the party exercising legal or actual control over the polluted site which contravenes the regulations. In the contaminated site sector, this is the owner (actual owner, leaseholder, tenant, agent) of the site.
The polluter and the owner of the site are not held to be jointly and severally liable. Thus, in remediation cases where the polluter cannot be called upon to bear the costs, the remediation costs cannot simply be passed on to the owner or the other parties involved. Any shortfalls that arise in such cases must be borne by the community. In such cases, the canton can request partial repayment of the remediation costs from the federal government on the basis of the Ordinance relating to Charges for the Remediation of Contaminated Sites (VASA).
Ordinance relating to Charges for the Remediation of Contaminated Sites (VASA)
If the polluter of a contaminated site cannot be identified or is unable to pay, the community must bear the costs of remediation. In such cases and in the remediation of landfills for municipal waste, the federal government bears 40% of the remediation costs. To finance this contribution to remediation, the federal government established the VASA (in force since1 January 2001). This Ordinance stipulates that the requisite funds are to be raised by means of a charge on the disposal of wastes in landfills in Switzerland and abroad.
This financing instrument is designed to enable dangerous contamination to be cleaned up as quickly as possible and not passed on to future generations for lack of funds. The Ordinance also promotes the environmentally sound and economical remediation of contaminated sites in accordance with the current state of technology.
The Federal Law relating to the Protection of the Environment also explicitly exempts the site owner from the obligation to bear the costs of remediation if he could not have known of the pollution, gained no benefit from the pollution and gains no advantage from the remediation.
The authority makes a ruling on the apportionment of costs if the person obliged to carry out the remediation so requests or the authority performs the remediation itself.
In many cases, the site may be polluted but not in need of remediation - i.e. not a contaminated site. Whoever excavates material from such a site, e.g. in the course of a construction project, is responsible for ensuring that it is appropriately disposed of. Under certain conditions, the initiator of the construction project can claim around two thirds of the additional costs arising from investigation and disposal of excavated material from the polluters and previous owners of the site.
If an investigation shows that a site is not contaminated, the costs of the measures involved are borne by the community.
Der Verursacherbegriff nach Artikel 32d USG (PDF, 212 kB, 01.01.2004)Kostentragungspflicht im Zusammenhang mit der Sanierung von Altlasten. Verfasser: Prof. Pierre Tschannen. Gutachten im Auftrag des BAFU
Last modification 12.09.2018