The Federal Court changes its practice

concerning the entry of deposit sites in the cadastre of polluted sites

by Alexander Rey

In its decision 1C_556/2020 of November 25, 2021, the Federal Supreme Court clarified its practice on the delimitation of the term "deposit" in connection with the entry in the cadastre of polluted sites.

Under discussion were encumbrances of various kinds on a plot of land that were only discovered in the course of a construction project. Besides 132 m3 Type E material according to VVEA (increased contents of hydrocarbons C10 - 40), just under 12,000 m3 Material excavated and deposited in type B landfills. This material was partly slightly contaminated (Annex 3 No. 2 VVEA; so-called T-material) and partly little contaminated (according to Annex 3 No. 3 VVEA).

In particular, the Federal Supreme Court states, based on Art. 19 para. 2 VVEA, which will be revised in 2020, that according to the current legal situation, backfilling with unpolluted and slightly polluted material (according to Annex 3 para. 2 VVEA) is permissible in principle. If such material is used for backfilling, it is not a deposit site, which is why no entry has to be made in the register of polluted sites. The situation is different, however, if there are indications that the fillings contain more heavily polluted material, because the latter is subject to a fundamental recycling ban pursuant to Art. 19 Para. 3 VVEA. In this case, there was no environmentally compatible recycling within the meaning of Art. 30 Para. 2 and 3 USG, with the consequence that the site was a dumping ground within the meaning of Art. 2 Para. 1 lit. a AltlV. In principle, this would result in an entry in the register of polluted sites (except in minor cases [cf. judgments 1C_714/2021, E. 6 and 1C_712/2021, E. 6]).

Thus, it must be noted that despite Art. 2 Para. 1 lit. a AltlV, which expressly excludes from the cadastral entry only disposal sites that contain exclusively uncontaminated excavated, excavated or quarried material, backfills with slightly contaminated material (T-material) are also to be qualified as reutilizations and thus do not constitute a disposal site under contaminated site law. The smaller backfills (e.g. of single-family houses) already mentioned in the BAFU's implementation guide on the register of contaminated sites could also be exempted from entry in the register as minor cases, provided that the hazard potential is low (e.g. B material that is only slightly contaminated chemically, but contains more than 5 percent by weight of building rubble). If, on the other hand, there is a suspicion - or if it is already certain on the basis of investigations - that large-volume backfilling has been carried out with more than slightly contaminated material, a minor case can no longer be assumed. This applies in particular to larger construction waste deposits. The same applies to smaller fills with heavily contaminated material (e.g. E-material).

On the other hand, it is not important whether the intention of disposal (as building material) or recycling was in the foreground, especially since this can usually no longer be clarified.

This clarification of the case law contradicts the practice of many cantons. There are probably hundreds of sites containing only slightly contaminated material, in particular material containing between 1 and 5 percent by weight of construction waste, which are registered in cantonal cadastres of contaminated sites. Based on the Federal Court decision described above, it should now be possible for the owners of these sites to demand that they be removed from the cadastre of polluted sites. In addition, they should be entitled to compensation for the investigation costs then incurred (Art. 32d para. 5 USG).

Whether this makes sense in the context of an overall assessment remains to be seen. Nevertheless, the Federal Court recognizes that the cadastre of contaminated sites also serves to draw the attention of buyers, builders and authorities to the pollutants present in the subsoil, in order to take the necessary precautions for safe treatment and disposal in the case of construction measures. If sites on which slightly polluted material has been deposited are now removed from the cadastre, this information will no longer be available and in the future, when buying land, it is to be expected that there will be an increasing number of corresponding pollutants that are no longer listed in the cadastre.

From a legal point of view, the decision following the amendment of Art. 19 Para. 2 VVEA is understandable, but in my opinion, a more in-depth discussion of the contradiction between this provision and Art. 2 Para. 1 lit. a AltlV, according to which only waste disposal sites on which only unpolluted material is deposited are exempt from the cadastral entry, would have been necessary. Therefore, in the sense of a congruent legal system, Art. 2 para. 1 lit. a AltlV should have been amended together with the revision of Art. 19 para. 2 VVEA. The change in the practice of the Federal Supreme Court was also not mandatory, since Art. 19 para. 2 lit. d VVEA no longer provides after the 2020 revision that slightly polluted material may only be used in civil engineering works at the site where the material is produced if a cadastral entry is available, but still only slightly polluted material may be (re)installed that on site accumulates. The transfer and installation of slightly polluted material from another location is still inadmissible. One would therefore have wished that the Federal Supreme Court would have examined whether the conditions for a change in practice (cf. for example BGE 141 II 297) actually exist.

According to the decision of the Federal Supreme Court, there is an obvious contradiction with the wording of Art. 2 para. 1 lit. a AltlV. Moreover, the concept of unpolluted excavated material is also applied in other laws (cf. for example Art. 37 para. 1bto GSchG). Does the amended case law now mean that landfills with slightly polluted material also fall under this provision? Various new questions will therefore arise as a result of the Federal Supreme Court decision of November 25, 2021, and the cantons will have to think about how they want to deal with sites that are currently entered in the cadastre of polluted sites, but which no longer have any place in it based on the amended Federal Supreme Court ruling.