Development of legislation
Public awareness of soil contamination started in the late 1970s with the discovery of huge amounts of contamination in residential areas. This resulted in the introduction of the Interim Soil Remediation Act in 1983, including the framework to judge whether soil is contaminated or not. Based on the assumption that only a limited number of sites would be contaminated, the policy aimed for total remediation, resulting in soil fit for all possible future uses.
In the following decades, the Dutch government revised this goal and the remediation criteria, developed soil quality objectives and risk assessment procedures and increased the flexibility for local authorities in regulation.
Current legislative framework
In the Netherlands, the legislative framework for Environmental and Planning law is designed in a pyramid structure: a more general act providing an overview and the main goals, followed by several layers of decrees and regulations providing more technical details. In 2021, this framework will be incorporated in the new Environment and Planning Act (Omgevingswet) and its bylaws.
In relation to environmental remediation procedures and soil contamination, the layers of the pyramid are, from top to bottom, (1) the Environmental Management Act (Wet milieubeheer) and the Soil Protection Act (Wet bodembescherming), (2) the Soil Quality Decree (Besluit bodemkwaliteit), (3) the Soil Quality Regulation (Regeling bodemkwaliteit), and (4) a number of (technical) protocols referred to in the regulation. This framework includes the option to develop local standards.
The area surrounding our Amsterdam offices , source
Availability of information
In a joint effort by the state, provinces and municipalities, information in relation to soil contamination at the government’s disposal is available on their website: www.bodemloket.nl, and for the Amsterdam area at www.odnzkg.nl. For due diligence purposes, these websites provide a lot of information.
The Soil Protection Act of 1987 introduced the “polluter pays” principle: the party that caused the soil contamination is also liable for its remediation. The responsibility for the soil contamination lies with the polluter or, if they are not available, the landowner. This concerns the prevention as well as the remedial action in relation to the contamination. This principle was supplemented with the principle of the liable owner: the owner of land with knowledge of contamination existing at the moment of acquiring the land is responsible for – and can be obliged to carry out – the investigation and remediation.
In the case of activity of any company that may cause soil contamination, the environmental permit for the activity will contain specific regulations to prevent contamination. These regulations are standardized for the majority of activities by the Activities (Environmental Management) Decree (Activiteitenbesluit). The regulations often prescribe a baseline measurement.
The Dutch framework includes target values, intervention values (to determine the remediation urgency) and soil use values (to determine remediation targets based on intended use). If contamination exceeds the intervention values, the urgency of remediation will be defined by a three-step approach:
- The first step comprises a survey to determine whether the case has to be qualified as a serious contamination.
- The second step is a calculation based on the results of the survey to identify the risks for humans, the ecosystem and the risk of the contamination spreading.
- The third step improves the model calculations by making additional measurements and calculations, based on the specifics of the contaminated site.
In the case of serious contamination, the competent authority – the province or one of the bigger municipalities – will judge whether remediation is urgent or not. The level of remediation is determined by the proposed use of the land. Dutch law differentiates between three categories: industrial sites, housing areas, and the baseline of agriculture and nature. For all three categories, the permissible maximum levels of a wide range of substances are prescribed in the regulations.
In the case of more common contamination, the regulations provide for a standardized approach (Besluit uniforme saneringen). In the case of more complex contamination, further investigation will lead to a preferred option for remediation, which is prescribed in the remediation plan. Within the framework of this plan, permits will be granted for the actual remediation.
The responsibility for remediation rests on the company redeveloping the site. In the case of an urgent remediation, without the event of redevelopment, the competent authority can impose the obligation to conduct the remediation on the land owner, the polluter or the industrial user of property. After executing the remediation plan, an evaluation plan and – if necessary – an aftercare plan must be filed with the competent authority.
In the event of new soil pollution, the acting company needs to inform the competent authority immediately about the event and the recovery measurements to be taken. The competent authority may issue instructions in relation to the measurements.
Notwithstanding the responsibility and liability of the land owner, polluter and industrial user of property, the government offers a broad range of subsidies and funds to support remediation.
An example: PFAS
In recent years, more information has become available on the detrimental effects of per and polyfluoralkyl substances (PFAS), including PFOA and PFOS. PFAS are man-made substances that do not occur naturally in the environment, do not degrade, spread easily in the environment and can accumulate in animals, plants and the human body.
The above-mentioned legislative framework with categories and maximum levels, does not include levels for PEAS. The standstill principle and duties of care, in combination with advances in scientific knowledge on the hazards posed by PEAS, means that the existence of any PEAS precludes any (re-)use of the soil. This resulted in a stand-off between the authorities and developers/contractors in the summer of 2019. The adoption of a temporary framework to regulate the (re-)use of PEAS-contaminated soil failed to mitigate this problem. The stand-off had a significant impact, especially for contractors and dredging companies, and – combined with the Dutch nitrogen crisis – gave rise to mass demonstrations. The adoption of a second version of the temporary framework in November 2019, increasing the thresholds for several types of PEAS, did ease the pain a bit. The discussion about the use of PEAS, the accepted levels and the damage caused by the standstill is pending.
Contractors demonstrating in The Hague on October 30, 2019., Source: ANP/Koen van Weel