One man’s trash is another man’s treasure: remediation of contaminated sites in a completely new way!

The Law on the Remediation of Contaminated Sites (ALSAG) subjects certain activities in connection with waste to a contribution obligation (contaminated site contribution). The idea behind this contribution is to identify, secure and remediate contaminated sites. The 2024 ALSAG amendment introduces significant changes, with the key points outlined below.

New procedural law

While previously measures to secure or remediate brownfields were commissioned or approved by the state governor in accordance with the relevant material laws (GewO 1994, AWG 2002, WRG 1959), a separate procedural law has now been established in the ALSAG.

A fault-independent obligation of the person responsible for a contaminated site to undertake remedial measures is to be introduced. At the same time, liability is extended to the legal successor of the polluter. Conversely, the (subsidiary) liability of property owners is to be removed from the legal framework. Under certain conditions, however, the property owner may be obliged to provide compensation if the brownfield measure was carried out by the federal government and the property has experienced a significant increase in value.

The state governor is now generally designated as the competent authority. In case of imminent danger, the district administrative authority may order measures. In the future, determination notices, which are very relevant in practice, are to be handled by the state governor instead of the district administrative authority.

(Possible) standardization in the assessment and risk evaluation of contaminated landfills and sites

The Federal Minister of Climate Action, Environment, Energy, Mobility, Innovation and Technology (BMK) has been granted authorization to establish guidelines and criteria for assessing the presence of significant contaminations or risks at contaminated landfills and sites as well as criteria for risk evaluation and setting remediation target values.

Clarification of the digital identification of contaminated sites in the Contaminated Sites Portal

Contaminated sites have previously only been identified based on property numbers. This has repeatedly led to inaccuracies since the actual contaminated area did not always correspond to the plot area.

In the future, the location of contaminated sites is to be shown on a GIS-based online map. The previous plot numbers are to be replaced by a link to the graphical representation in the online map.

Changes in relation to contribution and contribution debtor offenses

The “storage offense” – meaning the storage of waste for more than one year for recycling purposes or for more than three years for disposal purposes – is now to be combined into one offense. In the future, the purpose of storage will no longer be relevant; instead, a uniform deadline of three years will apply.

The question of who, in terms of the ALSAG, is liable to pay the contribution in the case of a cross-border shipment of waste has already been dealt with several times by the Supreme Administrative Court (see VwGH 02/08/2022, Ro 2021/13/0008). The Supreme Administrative Court most recently stated that while the contribution offense regarding the shipment of waste has been amended, the contribution debtor offense has not been, meaning that the decisive factor remained the activity for which the waste shipment was carried out (the “initial activity”); however, a subsequent activity in the further (undetermined) future was not relevant.

This legal loophole is to be closed by adjusting the definition of who is liable for the contribution.

Land recycling of industrial and commercial brownfield sites

The ALSAG amendment 2024 will also amend the Environment Promotion Act and Environment Control Act. The aim is to create the necessary framework conditions for promoting the reuse of industrial and commercial brownfield sites that do not reach the threshold of a contaminated site according to the ALSAG.

Our experts Julius Spieldiener and Xaver Meusburger from the Environmental and Technology Law team will be happy to answer any further questions you may have on this topic.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.

 

3. April 2024

 

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