Facts
In the 1950s and 1960s, gravel was extracted below the groundwater level in the Oberfeld area in Kloten. Between 1956 and 1968, the gravel pit was gradually filled with excavated material, construction waste, industrial and commercial waste. The area was recorded in the canton of Zurich's register of suspected contaminated sites as suspected landfill site D.2.
During excavation work for the construction of a commercial building of X. AG on a partial area of the landfill site (plot no. 3857), battery residues were discovered in June 2001. The detailed investigation concluded that the areas with battery residues should be classified as requiring remediation.
X. AG submitted a remediation project to the AWEL for the remediation of its plot, which provided for the complete removal of the battery residues. By order of July 19, 2002, the AWEL approved the remediation objective and project.
On June 24, 2007, the AWEL submitted an application to the Federal Office for the Environment (FOEN) for 40% compensation of the remediation costs for the partial area of X. AG. The FOEN rejected the application by order of November 9, 2011.
Both X. AG and the canton of Zurich filed an appeal against this order with the Federal Administrative Court. On November 26, 2012, this court dismissed the appeal.
Thereupon, X. AG and the canton of Zurich filed an appeal in public law matters with the Federal Supreme Court.
Considerations
The Federal Supreme Court first notes that the appeal is admissible, as there is a legal entitlement to compensation if the requirements are met.
The law applicable at the time of the 2002 remediation applies, i.e., the then version of Art. 32e EPA, the former VASA, and the…