Revision of the ‘Contaminated Site Ordinance’ in Switzerland
In Switzerland, consultation on the latest revision of the Environmental Protection Act was completed at the end of 2021. Parliamentary consultation on this has been ongoing since December 2022. Part of the revision also concerns contaminated sites and legacy issues.
Example image ‘Landscape’ ©M. Semadeni
In addition to various points, challenges in the reuse and recycling of the site's own contaminated excavated material gave rise to necessary adjustments to the contaminated sites regulations, the revision of which was submitted for consultation from June to October 2023. Corresponding triggers were, for example, the future handling of hundreds of thousands of tons of contaminated excavated material per year in view of the increasingly limited landfill space available and circular economy mechanisms that needs to be promoted. The question arises to what extent the requirements for filling back the site specific, slightly contaminated excavated material (Type B) with regard to new pollutant classes, such as PFAS, having extremely low limit values, hence being no longer helpful in reducing landfill deposition rates. In addition, such extremely low limit values lead to increasing environmental impacts of energy-intensive thermal treatments for destructing PFAS in the contaminated material.
A “proposal to allow backfilling site specific excavated material being more contaminated than type B, if demonstrated that this practice does not lead to a need for remediation later on” would be implemented with an adaptation of Article 18 of the CSO, Section 5 ‘Remediation’ (Explanatory report from June 2023 on the amendment to the ordinance on the remediation of contaminated sites (Contaminated Sites Ordinance, CSO , SR 814.680).
The old Article 18 defining the necessary remediation measures contained 2 paragraphs as follows:
Paragraph 1; the authority assesses the renovation project. In particular, it takes into account:
a. the impact of the measures on the environment;
b. their long-term effectiveness;
c. the threat to the environment caused by the contaminated site before and after remediation;
d. If the decontamination is not complete, the controllability of the measures, the possibility of correcting defects and ensuring the necessary means for the planned measures;
e. whether the requirements for deviating from the restructuring objective 15 paragraphs 2 and 3 are met.
Paragraph 2; based on the assessment, it specifies in a ruling:
a. the final goals of the renovation;
b. the renovation measures, the monitoring of success and the deadlines to be adhered to;
c. further requirements and conditions to protect the environment.
A new paragraph 3 is added with the following wording:
Paragraph 3; the authority may, exceptionally and with the consent of the Federal Office for the Environment (FOEN), authorize the backfilling of contaminated excavated material that does not meet the requirements for the reuse and recycling of excavated material in accordance with Article 19 of the Waste Ordinance of December 4, 2015, for the site where the material is generated, if:
a. as a result, the environment as a whole is less polluted; and
b. it is proven that the reinstalled excavated material does not lead to harmful or annoying effects or that there is no concrete risk that such effects will arise.
However, in my opinion, an additional number/letter is missing in the sense of:
c. it is explained that - within the framework of sustainable remediation solutions and future options for promoting circular economy - temporary, secured on-site facilities for the relocation of these contaminated excavated materials puts less strain on the environment overall (construction and temporary use of secured storage buildings/halls).
The use of secured storage facilities over a longer period of time would therefore only be permitted, if there was a clear prospect of new recycling and/or treatment processes (e.g. with the help of technology funding).
In the remediation option study (Art. 17), the discussion of secured storage buildings would have to be carried out in order to show to what extent the overall environmental benefits and costs are improved, and the economic efficiency and social compatibility ensured (cf. proportionality principle defined in the Environmental Protection Act). After an initial fundamental clarification of the eligibility for approval, further review would be carried out by the authority as planned via the application procedure in Article 18. Necessary methodological bases for assessment, such as life cycle assessment and risk assessment, would of course be a prerequisite in order to be able to successfully continue the application procedure for the construction and use of the relocation facilities.
The practice of using relocation facilities is already in place in Germany, although the legal basis seems relatively far-fetched; i.e. the situation is borrowed from the management of accumulated or emerging mining residues and is based accordingly on the Federal Mining Act in conjunction with the regulation on environmental impact assessment of mining projects” – cf. 'Concept for space-saving transfer age facilities in future mining (TP 2.4)' - Final report June 12, 2020, Saxon State Office for the Environment, Agriculture and Geology, funded by the European Regional Development Fund.
As explained in the explanatory report on the CSO revision from June 2023, the requirements for the application of Art 18 Paragraph 3 are generally met when it involves the remediation of industrial sites, large excavation volumes or if there are no domestic or foreign facilities for effective treatment with proportional efforts. It should also be mentioned, however, that ubiquitous and sometimes very widespread contamination of soils with new pollutants such as PFAS, whose extremely low limit values can be measured today, may require the use of secure storage facilities in accordance with Article 18 Paragraph 3 "letter c.". What may be legally challenging, however, is that the widespread occurrences of PFAS pollution over large landscapes are difficult to delimit (which is necessary for the definition of a 'contaminated site'). If these areas are developed, they still would lead to heavily increasing annual amounts of excavated material (remediation/decontamination triggered by development projects); amounts of waste material that could not be reused for backfilling and/or temporarily stored for a longer period of time without a legal basis.