(BBodSchG) is intended to safeguard or restore the function of the soil. Harmful changes to the soil are to be prevented and the soil and contaminated sites as well as any water pollution caused by them are to be remediated. In addition, precautionary measures must be taken against adverse effects on the soil. The competent soil protection authorities have a wide scope of action for the prevention of harmful soil changes. In addition to the classic prevention of hazards, the law already covers significant disadvantages or even just nuisances. Therefore, the authority can usually take action at an early stage.
Tasks and measures of the soil protection authorities
The soil protection authority intervenes if there is a harmful soil change (e.g. contamination from a contaminated site). It orders investigations(§ 9 BBodSchG) and restructurings(§ 10 BBodSchG) and monitors them. The decision as to whether, how and in particular against whom the authority takes action is at its discretion. The polluter, the polluter's universal successor in title, the landowner and the owner who has actual control over a plot of land are generally obliged to carry out investigations and restructurings (Section 4 para. 3 sentence 1 BBodSchG). Even the former owner of a plot of land is obliged to investigate and, if necessary, restructure if he transferred his ownership after March 1, 1999 and was aware or should have been aware of the harmful soil change or contaminated site (§ 4 para. 6 sentence 1 BBodSchG).
Discretionary errors in the selection of disturbers
Surprisingly often, however, the soil protection authorities make discretionary errors in the selection of the disturber, i.e. the decision as to whom to make a claim against(see VG Düsseldorf, judgment of 29.07.2016 - 17 K 3089/15 -). The soil protection authorities regularly fail to recognize that all responsible parties to be considered must be properly identified in the first step. In particular, it is not sufficient to simply obtain information from the land register regarding the current owner of the contaminated property. Rather, the soil protection authorities must also investigate the holders of actual control, e.g. tenants, and they must also endeavor to locate the party responsible for the soil or groundwater contamination or its universal successor in title. Only in the second step does the question of selecting the polluter arise. The principle of the effectiveness of hazard prevention is the guiding criterion here. Accordingly, the party that can eliminate the risk of soil or groundwater contamination as quickly and effectively as possible must be called upon.
Conclusion
A large number of people are affected by liability under the BBodSchG. For the purpose of effective hazard prevention, the legislator deliberately defined the group of responsible parties under the BBodSchG broadly. However, this does not mean that the competent soil protection authority can arbitrarily issue an investigation order or remediation order to every responsible party. Rather, the authority must make and substantiate a selection, free of discretionary errors and with many sources of error, between the responsible parties under consideration. However, even if the competent soil protection authority has not committed an error of judgment, the party claimed against by the authority still has the option of claiming compensation for costs in accordance with Section 24 para. 2 BBodSchG. According to this provision, several obligated parties are entitled to compensation regardless of whether they have been called upon to do so.