On April 28 2016 the minister of economic affairs presented to Parliament a draft decree to amend:
- the Zoning Decree;
- the Environmental Impact Assessment (EIA) Decree; and
- the General Mining Industry (Environmental Rules) Decree.
The draft decree is the government's response to the Dutch Safety Board's report on gas production in the Groningen province following a series of earthquakes caused by gas production in the Groningen field. It follows two draft bills to amend the Mining Act, which are pending in the Second Chamber of Parliament.
The decree provides for a new regulatory framework in respect of bore holes necessary for the exploration, production and storage of natural resources. Under existing regulations, the drilling, amendment or expansion of onshore bore holes does not require a zoning permit.
The draft decree provides that, with respect to mobile installations:
- a zoning permit is required and the need for an EIA is examined for the drilling, amendment or expansion of bore holes onshore and within the territorial waters; and
- ministerial consent is required and the need for an EIA is examined for the drilling, amendment or expansion of bore holes on the Dutch part of the continental shelf.
The amendments should give the Ministry of Economic Affairs (as the competent authority) and municipalities and provinces (through the right to advise) greater control over the conditions for the drilling, amendment or expansion of bore holes. This will help to ensure public safety and address public concern regarding mining activities.
Permit and consent decision
The key changes are that instead of a notification requirement to drill, amend or expand a bore hole with a mobile installation on land or within the territorial sea, an environmental permit will have to be obtained under the General Zoning Act.
For the drilling, amendment or expansion of a bore hole with a mobile installation on the continental shelf, a consent decision is required from the Ministry of Economic Affairs. Both decisions will be combined with a duty to investigate whether an EIA is needed.
The amendment of the decrees is likely to result in a more time-consuming procedure, particularly if the Ministry of Economic Affairs' assessment concludes that an EIA must be carried out.
Transitional law will apply for six months after entry into force of the amendment decree, pursuant to which mining companies can notify only bore hole activities. This is on condition that the notified activity commence within 12 months and finish within 18 months of the amendment decree entering into force.
Parliament has until June 6 2016 to respond to the draft decree. After that date, the draft will be sent to the Advisory Division of the Council of State. However, the Advisory Division has no specific deadline by which to deliver its opinion to the Ministry of Economic Affairs, and therefore it is unclear when the new decree will enter into force.
Increased duty of care
To show that the government is serious in its aim to safeguard public safety and address public concerns regarding mining activities, on May 23 2016 the minister of economic affairs published a policy rule which would increase the duty of care for permit holders as stated in the Mining Act. The policy rule is published in anticipation of the entry into force of the amendment decree.
The policy rule would require a permit holder that wishes to drill, amend or expand bore holes to submit a description to the minister of:
- the activity that it wishes to pursue;
- the possible negative environmental effects; and
- the measures that will be taken to prevent these effects.
After reviewing the description, the minister can issue instructions in connection with the permit. The ministerial policy rule entered into force on May 24 2016.
For further information please contact Roland de Vlam at Loyens & Loeff NV by telephone (+31 20 578 5785) or email (firstname.lastname@example.org). The Loyens & Loeff website can be accessed at www.loyensloeff.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.