Although quite recent, the Swiss law on old, neglected deposits of toxic waste is becoming increasingly important for courts and authorities. At the time that the ordinance which implements the federal and environmental legislation was enacted, the clean-up costs for the 3,000-4,000 contaminated site cases already known to exist were expected to amount to approximately Sfr5 billion.
The law obliges all cantons to register sites containing existing or presumed neglected toxic waste deposits. This can be done by a summary analysis of the activities, mostly industrial, which were carried out at a specific location. Registration has a negative impact on the value of the land. The indication of a possible toxic waste deposit often provides an interested buyer with the opportunity to negotiate a price reduction, even though there may be no clear evidence that the soil is in fact polluted, or of the costs of the clean-up.
As a result, increasing numbers of landowners are attempting to carry out preliminary investigations in order to determine the extent of a possible obligation to clean up their land lot. The authorities which monitor the clean-up of old, neglected toxic waste deposits have also begun to take swift action where a presumed risk to the environment becomes actual.
The Swiss Federal Tribunal recently had the opportunity to address clean-up issues in one of its judgments.(1) It ruled that a landowner may be obliged to carry out a preliminary investigation if toxic waste is found on its land lot, even if this waste originated from a former or neighbouring business. The purpose of the investigation is to determine whether there is any old toxic waste to be cleaned up and who could have caused it.
The Federal Tribunal decided that the duty to accept or to organize such an investigation is separate from the duty to pay for it. It is generally the landowner of the suspect site who is obliged to take these measures, since he is most closely linked to the object. The actual polluter of the soil will rarely be obliged to carry out the investigation, not least because this party is often only identified once an expert examination has been carried out.
Even preliminary investigations can entail significant costs, as they must be organized by a specialized consultant or engineering office. Since the landowner is considered to be responsible for implementing these measures, he must also pay the accrued costs. If responsibility for the investigation is contested between several individuals and the need to carry out the investigation becomes urgent, a state authority can assume responsibility for the investigation. However, the disputing parties are nonetheless obliged to meet the ensuing costs.
In some cases a clean-up may not be necessary, but the results of the initial investigation might require that the suspicious site be subject to further controls. For example, regular water and soil samples might have to be taken and analyzed. In this instance costs will arise from the initial investigation and from the control measures. Where an expert finds that several polluters are responsible for the toxic waste, the law allows public authorities to require the various parties involved to share these costs. Polluters may include previous landowners and their tenants. Often, the owners or tenants of neighbouring land lots are also implicated. If the toxic waste results from previous deposits of garbage which were not considered critical at the time, the dumpers of this garbage will also be considered polluters.
Costs are not divided according to rules requiring strict evidence, as would be the case in civil proceedings. Instead, the authorities review all the circumstances of the case and estimate which polluter has caused what part of the pollution in a suspicious site. Thus, persons can be charged with the costs of analyzing toxic waste deposits even if the suspicious site does not belong to them or if they have not been active on the site, as long as clean-up is necessary. As yet, there have been no rulings on whether such a third party is obliged to share the costs if only control measures are ordered.
Where there is no need for a clean-up, the landowner must bear the costs of tests conducted on the suspicious site. The Federal Tribunal has ruled that this duty stems from the landowner's general civil liability under the 'polluter pays' principle. However, it remains doubtful whether authorities which requested and paid for preliminary investigations themselves can take action to recover the costs from the landowner.
In practice, in the event of a sale of a suspicious site which might contain old toxic waste, detailed provisions must be included in the deed of sale to determine whether the new owner can have recourse against the seller should the toxic waste risk materialize. Account should be taken of the fact that the authorities are not obliged to contribute to the costs of a voluntary preliminary investigation. A landowner who carries out such measures in order to determine whether he will be able to build on the suspicious site and whether he must take account of clean-up costs must also meet the costs of these procedures himself, as must those who undertake preliminary investigations in order to obtain further information on the value of the land, so as to secure a mortgage or acquire material information for the sale negotiations.
For further information on this topic please contact Max Walter or Andrea Würzner at Pestalozzi Lachenal Patry by telephone (+41 1 217 91 11) or by fax (+41 1 217 92 17) or by email ([email protected] or [email protected]).
(1) Federal Tribunal Decision, 1A 214/1999, May 5 2000.