The Flemish regional decree of 27 October 2006 on soil remediation and soil protection (the "Flemish Soil Decree") was recently amended (Decree of 28 March 2014, Belgian State Gazette 4 September 2014). Most of the amended provisions will enter into force on 1 January 2015. This article provides a brief overview of the four most important changes.
Abolition of the duty to notify the transfer of high-risk land to OVAM
The Decree of 28 March 2014 aims to make the transfer of land considered to be high risk less administratively burdensome. Currently, a transferor of such land must formally notify its intention to transfer the parcel to the Flemish Public Waste Agency or OVAM (Openbare Vlaamse Afvalstoffenmaatschappij). This duty will be abolished in order to ease the administrative burden and reduce the costs involved for both the transferor and OVAM. Notaries play an important role here as the substantive obligations will remain the same. The transferor must still obtain a soil certificate and have an exploratory soil survey performed prior to the transfer. The survey report must be submitted to OVAM.
Abolition of the requirement to perform a survey prior to the expropriation of high-risk land
The government will no longer be obliged to carry out an exploratory soil survey before expropriating high-risk land. It will, however, still have the possibility to do so. This is, of course, highly recommended, given that the owner of polluted land is a party in the "chain of remediation" (see below).
Introduction of changes to the chain of responsibility for remediation works and a partial exemption
The Soil Decree provides for a chain of responsibility for remediation work. The following parties are responsible for remediation, in descending order of importance: the operator of activities on site, the user, and, finally, the landowner. Currently, a party in the chain can only obtain an exemption from the remediation obligation for all soil pollution (under strict conditions). If the first party in the chain is exempt, the obligation falls to the next in line. If all parties are exempt, OVAM is responsible for remediation.
The current system has proved problematic in practice. The first in line - usually the operator - is obliged to remediate all soil pollution (or risk prosecution), even though this party has often only caused some of the pollution. The same holds true for the next person in line. The responsible party thus bears the financial burden of remediating all pollution. Although in theory it can claim back the remediation costs from the polluter(s), this can prove very difficult in practice (e.g. due to insolvency).
The Decree of 28 March 2014 attempts to share the burden of remediation more equally between the various parties involved. It does so by creating the possibility to assign liability for remediation to different time periods. For each period, a different party may be first in line for remediation. Likewise, it will be possible for a party to obtain a partial exemption from the obligation to perform remediation works.
Introduction of specific rules for "aggregate soil pollution"
The Decree of 28 March 2014 introduces specific rules for "aggregate soil pollution" (see Article 2(32) of the amended Soil Decree for a definition of this term). Today, certain types of complex pollution (e.g. pollution with sources on different sites, pollution caused by different polluters on the same site, pollution spread over different sites which must be treated as a whole, etc.) give rise to uncertainty, lengthy and expensive soil surveys, and legal proceedings. The new rules on aggregate soil pollution aim to tackle this problem.
In the event of aggregate soil pollution, the various responsible parties must first negotiate amongst themselves - with OVAM as a possible mediator - how to remediate the pollution and split the costs. If they fail to reach an agreement, OVAM can officially characterise the pollution as "aggregate soil pollution", which renders all parties involved jointly liable for remediation. If necessary, OVAM can also determine a precise division of costs.