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What regime governs liability for soil pollution (including the allocation, transfer and limitation of liability)?
Soil pollution is mainly governed by the Federal Act on the Protection of the Environment and the Federal Ordinance on Contaminated Sites.
As a core principle, the ‘polluter pays’ principle governs liability for soil pollution. The Federal Act on the Protection of the Environment provides for the following rules. In the first instance, the person responsible bears the costs of the measures required to investigate, monitor and remediate polluted sites. If two or more persons are responsible, they bear the costs according to their share of the responsibility. The first to bear the costs is the person that caused the measures to be needed through its conduct. Anyone responsible simply as the proprietor of the site does not bear any costs if, by exercising the required care, it could not have had any knowledge of the pollution. The public authority concerned bears the share of the costs of responsible parties that cannot be identified or are unable to pay.
The authority issues a ruling on the allocation of costs if any person responsible so requests or if the authority is carrying out the measures itself. Such a ruling is subject to appeal.
If an investigation of a site entered in the register of contaminated sites or for which an entry is planned reveals that the site is not polluted, the public authority concerned bears the costs of the investigative measures required.
Investigation, monitoring and remediation measures will be carried out by the holder of the polluted site, which is not necessarily the polluter of the concerned site. If the authorities have reason to believe that the pollution of the site was caused by the action of third parties, the authorities may require them to carry out a preliminary investigation, monitoring measures or detailed investigation. If the pollution of the site was caused by the action of third parties, the authorities may require these, with the approval of the holder, to prepare the remediation project and perform the remediation measures.
To the extent that the holder of a polluted site or third parties pay for the investigation, monitoring and remediation measures, such payments are considered to be cost advances and may be refunded by the polluter in the final cost allocation pursuant to the ‘polluter pays’ principle.
If the shares in a company owning a contaminated site and being the polluter are sold, the environmental liability remains with the company pursuant to the polluter pays principle. If a contaminated site is sold by its polluter, pursuant to the polluter pays principle, the seller remains liable for the previous pollution, and the buyer will be liable for future pollution, if any. Nevertheless, the buyer as the new owner of the site can be asked to cover remediation costs for any pollution, including the one caused by the seller, so that it will have to take recourse against the seller based on the polluter pays principle.
Generally, liabilities pursuant to environmental laws cannot be modified or excluded in agreements with the competent authorities. Among private parties, agreements on the allocation of environmental liabilities and related hold harmless obligations are possible and used in share purchase agreements and asset purchase agreements.
Failure to comply with soil pollution regulations may lead to administrative penalties such as monetary fines and custodial sentences.
What environmental due diligence measures are recommended before concluding land transactions?
Generally, the scope of recommended due diligence measures strongly depends on the previous use and the planned future use of the concerned land, as well as the age, previous use and planned future use of buildings that are part of the transaction.
Before concluding land transactions, a general inquiry as to the location should take place and the planned use or project should be assessed with regard to potential restrictions from environmental laws, such as traffic restrictions, groundwater protection zones or wildlife protection zones.
Further, the cantonal register of contaminated sites should be consulted. This register is limited to sites whose pollution originates from waste and that are restricted in area – namely, waste disposal sites, industrial sites and accident sites. It is therefore important to also consult any other available public register containing information about the soil and potential contaminations, such as the register of movements of polluted soil and registers showing pollution from traffic, farming and special cultures.
In the case of existing buildings on the concerned land, an examination of the building materials is recommended, especially if the building was constructed at a time when the use of hazardous materials (eg, asbestos) was allowed and common. In this regard, no public registers are available.
What remediation and clean-up measures are typically applied and how can remediation costs be recovered?
The objective of remediation pursuant to the Ordinance on Contaminated Sites is the elimination of impacts that lead to the need for remediation. Remediation measures are the elimination (decontamination) of hazardous substances, the long-term prevention of hazardous substances to further spread and the long-term monitoring of concerned sites.
Remediation costs are allocated based on the polluter pays principle (see above).
How are air emissions regulated? What air quality standards and emission limits apply?
Air pollution is mainly governed by the Federal Act on the Protection of the Environment and the Federal Ordinance on Air Pollution Control.
Pursuant to the Federal Act on the Protection of the Environment, air pollution is limited by measures taken at its source (ie, by the limitation of emissions). Irrespective of the existing environmental pollution, as a precautionary measure, emissions are limited as much as technology and operating conditions allow, provided that this is economically acceptable. Emissions are limited more strictly if the effects are found or expected to be harmful or a nuisance, taking account of the existing level of environmental pollution.
Emissions are limited by issuing:
- maximum emission values;
- regulations on construction and equipment;
- traffic or operating regulations;
- regulations on the heat insulation of buildings; and
- regulations on thermal and motor fuels.
Limits are prescribed by ordinance or, in cases where an ordinance makes no such provision, by rulings based directly on the Federal Act on the Protection of the Environment.
The Ordinance on Air Pollution Control defines the ambient limit values for assessing harmful effects or nuisances, also taking into account the effects of pollution levels on particularly sensitive groups such as children, the sick, the elderly and pregnant women. The ambient limit values for air pollution are set at a level so that, in the light of existing scientific knowledge and experience, ambient air pollution below these levels:
- does not endanger people, animals or plants, their biological communities and habitats;
- does not seriously affect the well-being of the population;
- does not damage buildings; and
- does not harm soil fertility, vegetation or waters.
The Ordinance on Air Pollution Control defines maximum ambient limit values for a number of pollutants. To the extent that it does not define such a value for a certain pollutant, a specific emission can still be excessive if it endangers human beings or plants, if it significantly affects the well-being of a substantial part of the population or if it damages buildings or harm soil fertility.
What are the consequences of non-compliance with air emissions regulations?
Installations that exceed the permitted emission must be improved. Before ordering major improvement works, the authorities must request the operator of the installation to submit improvement proposals. The authorities specify the time limit for improving the concerned installation. No improvement must be made if the installation is shut down within the time limit set for improvement.
In urgent cases, the authorities must order improvements as a precautionary measure. In an emergency, they may issue operating restrictions or order the shutdown of the installation.
Failure to comply with limitations of emissions may lead to administrative penalties in the form of monetary fines.
What rules govern the discharge of wastewater and the protection of water resources?
Water pollution is mainly governed by the Federal Act on the Protection of the Environment the Federal Act on the Protection of Waters and the Federal Waters Protection Ordinance.
Two core principles of the Waters Protection Act are directly relevant for discharging wastewater and the protection of water resources:
- everyone is obliged to take all the care due in the circumstances to avoid any harmful effects to waters; and
- it is prohibited to introduce into a body of water, either directly or indirectly, any substances which may pollute it.
The infiltration of such substances is also prohibited, as is the storing or spreading of such substances outside a body of water if there is a genuine risk of water pollution.
Further, the Waters Protection Act and the Waters Protection Ordinance contain specific provisions on the disposal or discharge of waste water. Polluted waste water must be treated and may only be discharged or infiltrated into a body of water with the approval of the cantonal authority. Non-polluted waste water must be discharged by infiltration according to the instructions of the cantonal authority. If local conditions do not permit this, such non-polluted water may be discharged into surface waters. In this case, retention measures must be taken if possible so as to ensure a steady discharge in the event of high inflow. The discharge of water that is not shown on a communal drainage plan approved by the canton requires the consent of the cantonal authority.
What are the consequences of non-compliance with water pollution regulations?
Failure to comply with water pollution regulations may lead to administrative penalties such as monetary fines and custodial sentences.
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