Facts

Parties and proceedings: [A. SA] (appellant) challenges the allocation of costs for investigations on plot No. 1708 in Grenchen, which is registered in the Solothurn cadastre of contaminated sites. Respondents are [B. AG] , [C. AG] and [D.] (owner of the plot). The deciding authority was the Department of Construction and Justice of the Canton of Solothurn (BJD). The lower instance was the Administrative Court of the Canton of Solothurn, which dismissed the appeal by judgment of 30 April 2020.

Facts: [D.] acquired the plot in 1999 from the collective company [C.] , which had purchased it from [A. SA] in 1987. [A. SA] operated watch component manufacturing there from 1924 to 1987; the site files refer to a perchloroethene washing installation. Since 1988, [C. AG] has operated a sanitary, ventilation and heating technology business on the site. A purchase agreement between [D.] and [B. AG] dated 10 December 2014 failed for lack of the consent of the Office for the Environment (AfU) under Art. 32d bis para. 2 FPEA (EPA).

Investigations and cost allocation: SolGeo AG carried out historical, technical and detailed investigations from 2015 to 2017; on 17 July 2018 the AfU required a further investigation (2nd stage). [B. AG] , which had pre-financed the costs until then, requested a cost allocation decision on 30 August 2017. On 9 July 2019 the BJD ruled: for the historical investigation (CHF 4,415.10), [A. SA] bears 70% (CHF 3,090.60), [D.] 20% (CHF 883.--), [F. AG] 3.3%, and the watch-components and mass-articles company [E.] 6.7%, the latter two shares being assumed by the canton as shortfall costs. For the technical and detailed investigation (stage 1) of CHF 87,952.05, [A. SA] bears 80% (CHF 70,361.65) and [D.] 20% (CHF 17,590.40). [A. SA] must pay the canton a total of CHF 73,452.25.

Applications before the Federal Supreme Court: [A. SA] requests annulment of the decision and exemption from the obligation to bear costs, alternatively a reduction of its share, and in the further alternative remittal to the lower instance. [D.] and the BJD request dismissal; the Administrative Court also requests dismissal. The Federal Office for the Environment (FOEN) considers the decision compliant with federal law. By order of 26 June 2020, suspensive effect was granted to the appeal.

Central complaints of the appellant:

  • Identity of [B. AG] : confusion with a deleted company, defective operative part (no. 7).
  • Standing to apply: [B. AG] is not a polluter within the meaning of Art. 32d para. 4 FPEA (EPA).
  • Causation: the source of the CKW (chlorinated hydrocarbons) is unclear; inflow from neighbouring sites; no evidence of its responsibility.
  • Further polluters: [C. AG] , [E.] and [F. AG] are likewise behavioural polluters; [C. AG] and [B. AG] are moreover possessor-liable parties.
  • Shares: its share is too high, that of [D.] too low in view of the increase in value after remediation; the civil-law release from 1987 must be taken into account.

Considerations

1. Appealability and standing The Federal Supreme Court qualifies the cost allocation decision as a final decision (Art. 90 FSCA (FSCA)), or at least a partial final decision (Art. 91 let. a FSCA (FSCA)), since it is limited to completed, pre-financed investigations, fixes the costs in francs, and does not declare the allocation key binding for future costs. The appellant has standing to appeal as a polluter who is a party to the proceedings (Art. 89 para. 1 FSCA (FSCA)). The appeal is admissible. The distinction from earlier practice (interlocutory decision where only a percentage is fixed, e.g. 1C_490/2019; 1C_397/2013) is expressly mentioned.

2. Legal bases and the concept of polluter Under Art. 32d FPEA (EPA), the polluter bears the costs; several polluters bear them in proportion to their share. The concept of polluter follows the police-law concept of disturber (BGE 139 II 106), with behavioural and possessor-liable disturbers as well as the proximity theory (BGE 142 II 232). The polluter-pays principle is a cost attribution principle; unlawfulness is not required, and the duty to pay costs exists independently of the state of the art at the time or of any official permit. The authority establishes the facts ex officio (investigation principle); for causation and contributory causation the standard of proof is that of predominant probability (BGE 144 II 332).

3. Procedural complaints and the identity of the respondent party Restructurings (merger of [B. AG] Grenchen into [C. AG] in 2018, re-establishment of today's [B. AG] ) are understood by all parties as a transfer of the claim for reimbursement of costs to [C. AG] . Whether today's [B. AG] as parent company has party status can be left open, since [C. AG] is undisputedly a party. A correction of no. 7 of the operative part is not warranted, as the appellant derives no practical benefit from it and its obligation to pay costs would remain unchanged.

4. Standing to apply Art. 32d para. 4 FPEA (EPA) speaks in the French text of 'une personne concernée', in the German text of 'Verursacher'. The literature is divided (ROMY for a broad interpretation; GRIFFEL/RAUSCH and others for limitation to polluters). The Federal Supreme Court leaves the question open: setting aside the decision issued on the application of [B. AG] would be excessively formalistic, since [D.] could have filed an application and nothing would have changed in substance. The purchaser may also have its own interest in investigations in order to create the permit requirements under Art. 32d bis para. 3 FPEA (EPA).

5. Causation by the appellant The CKW contamination of the property is clearly established; elevated concentrations of tetrachloroethene (Per) and degradation products are found downstream, and elevated levels in the rammed-core probes (RRKB 2 and 9) cannot be explained by inflow. The appellant operated a watch-industry business with degreasing and cleaning during the most critical period (1950 to 1986, CKW guideline), and the use of Per is very probable, as the perchloroethene washing installation in the site files demonstrates. The objection that CKW was located in upper storeys is unconvincing, since CKW is mobile and can penetrate concrete floors. The objection of biological degradation fails, as degradation is slow and seldom complete and degradation products may arise that are more problematic. The impossibility of taking evidence (archive files destroyed, no contemporary witnesses) does not constitute a breach of the duty to investigate. The lower instances were therefore entitled to assume, on the basis of predominant probability, that the appellant's business caused the contamination.

6. No further behavioural polluters [C. AG] (operating since 1988, heating and refrigeration) cannot be considered a behavioural polluter: in the heating and refrigeration sector CFCs, not CKW, were used; only CKW were found on the site, and Per does not belong to the refrigeration compounds named in the guideline. Use after the entry into force of the 1985 FPEA (EPA) is, according to the FOEN, very unlikely. Construction activity in 1987 also did not alter the contamination. The requests for evidence were rightly rejected by anticipatory assessment of evidence, without any breach of the right to be heard. [E.] and…