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Flemish soil clean-up rules amendments enter into force

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Goossens Fee
Fee Goossens

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van Thuyne Gauthier
Gauthier van Thuyne

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06 January 2015

By virtue of the Statute dated 28 March 2014 (the Statute of 2014), the Flemish Government decided to amend the existing Soil Statute of 27 October 2006 (the Statute of 2006). The modifications were published in the Official Belgian Gazette on 4 September 2014 and most of them apply from 1 January 2015. This publication summarises the main modifications that became applicable on 1 January 2015.

1.Partial exemption from remediation obligations

The Statute of 2006 provided for a phased mechanism for determining the person responsible for remediation ie first the operator, then the user and finally the owner could be held responsible for remedying any pollution caused on its land. A partial exemption from remediation obligations was not possible, even if any of these persons fulfilled the exemption requirements for part of the pollution.

The Statute of 2014 introduces a new mechanism, one which allows a person responsible for remediation to obtain a (partial) exemption from remediation obligations. In the event of such a partial exemption, part of the remediation obligations may pass-on to the next person in the cascade-system. When all three persons (ie the operator, the user and the owner) are partially exempt from the pollution, the Flemish Waste Agency (Openbare Vlaamse Afvalstoffenmaatschappij) (OVAM) may carry out remediation obligations ex officio in relation to the relevant aspect of the pollution.

2.New concept of “mingled pollution”

The Statute of 2006 included a definition of “mixed pollution” (gemengde bodemverontreiniging), ie pollution which had its origins partly before 29 October 1995 and partly after 28 October 1995). The Statute of 2014 does not amend this definition, but does introduce a new concept of so-called “mingled pollution” (vermengde bodemverontreiniging), ie pollution which is caused by several remediation responsible persons but for which it is not possible to (i) determine the person responsible for each aspect of the pollution or (ii) carry out a descriptive soil survey and/or remediation for each part of the pollution according to best available techniques which do not entail excessive costs.

If mingled pollution is present but the relevant actors cannot reach an agreement on the treatment of such pollution, OVAM may formally qualify the pollution as mingled pollution. As a result of this qualification, the relevant actors will be obliged to carry out a joint descriptive soil survey and/or remediation, which must be financed based on a cost allocation (to be) determined by OVAM.

3.Modification of the rules in relation to the transfer of “at risk” parcels of land

Under the Statute of 2006, a notification (including a preliminary soil survey) must be submitted to OVAM to transfer any parcels of land on which (potentially) polluting activities take/have taken place (ie so-called “at risk” parcels of land). The Statute of 2014 still requires the submission of a preliminary soil survey to OVAM in the context of the transfer of “at risk” parcels of land, but no longer requires submission of a notification to OVAM in relation to the transfer.

These modifications emphasise and strengthen the responsibility of the parties involved in the transfer to comply with the relevant transfer of land rules. In case a transfer of “at risk” parcels of land takes place without complying with the transfer of land rules, such transfer will not be applicable to OVAM. In such case, OVAM may require the transferor to carry out a preliminary and/or descriptive soil survey, soil remediation and/or aftercare.

4.Modification of the rules in relation to the expropriation of “at risk” parcels of land

In case of an expropriation of “at risk” parcels of land, the Statute of 2006 required the relevant authority to carry out a preliminary and/or descriptive soil survey. Under the Statute of 2014, this is no longer a mandatory requirement (although the expropriating authority may still opt to carry out such surveys).

If pollution is present to the extent that remediation is required, the expropriating authority will automatically become the party responsible for remediation (unless the operator, user, and/or owner benefitted from an exemption from remediation duties before the expropriation took place).

In the event that the expropriating authority becomes the party responsible for remediation, the expropriation compensation must take into account the (estimated) costs in relation to any descriptive soil survey and/or remediation.

5.Other modifications

The Statute of 2014 introduces a number of other modifications, including the following:

•A modification to the deadlines for delivering soil certificates in relation to non-risk parcels of land (14 days instead of 30 days);

•A simplification of the rules in relation to mixed pollution;

•A broadening of the rules governing a declaration that a preliminary soil survey conforms with the relevant requirements;

•The introduction of the possibility for OVAM to require the operator, user or owner to carry out a preliminary soil survey in case there are indications of the presence of serious soil pollution;

•The elimination of the rules governing risk management;

•The simplification of the conditions regarding the attainment of an exemption in relation to any new soil pollution and of the accelerated transfer procedure for “at risk” parcels of land;

•The optimisation of the rules in relation to site investigations by OVAM; and

•The elimination of the twin appeal procedure and a broadening of the scope of the appeal procedure to include all interested parties.