All questions

Environmental protection

i Air quality

Air quality standards are primarily laid down in and on the basis of the EMA. These standards and requirements should be taken into account, inter alia, when determining whether an environmental permit for a facility may be granted. If an application for such permit has been submitted, the application should also include an assessment on whether the activities conducted within a facility do not lead to the exceeding of the applicable quality standards. Air emission standards and related requirements have been set in the Dutch Activities Decree, for instance with respect to combustion plants. The various standards and requirements, inter alia, concern NOx SOx, and particle pollution, but also substances of very high concern.

The air quality standards referred to above also aim to implement the air quality standards set at the European level in Directive 2008/50/EC on ambient air quality and cleaner air for Europe. It has been established that those standards are not being complied with at all locations in the Netherlands. Initially, the District Court in The Hague therefore ordered the Dutch state in injunction proceedings to adopt air quality plans, containing additional measures to comply with the air standards at all locations as soon as possible. This ruling seemed to be in line with previous case law of the European Court of Justice (ECJ). The District Court also ordered the state to refrain from taking measures in the meantime that could negatively affect the possibility to comply with the air quality standards as soon as possible.

However, this ruling has been overruled by the District Court in The Hague in the main proceedings. By a judgment of 27 December 2017, the District Court ruled that the state has discretion in deciding which measures to adopt to ensure compliance with the air quality standards at all locations as soon as possible. According to the District Court, there is no reason to assume that the air quality plans in place do not provide for adequate measures. Higher appeal is pending.

In future, the above-discussed rules will be included in the new Environment and Planning Act.

ii Water quality

The water quality regime in the Netherlands is primarily laid down in the Water Act. This Act requires the Minister, in consultation with the Minister of Economic Affairs, to adopt a National Water Plan, as well as the provincial council of each province in the Netherlands to adopt regional water plans. The current National Water Plan is valid until 2021 and contains the principles and the framework of the national water policy. The National Water Plan refers to the EU Water Framework Directive 2000/60/EC (WFD) and aims to further improve the water quality in line with the WFD. Further to the obligation to adopt a National Water Plan and regional water plans, the Water Act prohibits the discharge of waste water or contaminating or hazardous substances in surface waters, except when the discharge of these substances is allowed for under a water permit or the general rules laid down in the Water Decree.

The water quality standards mentioned in the WFD have been implemented in the Dutch Decree on quality requirements and monitoring for water 2009.

In future, the rules discussed above will be included in the new Environment and Planning Act.

iii Chemicals

Similar standards for the manufacturing, supply and safe use of chemicals apply across the entire European Economic Area, which includes EU Member States, Iceland, Liechtenstein and Norway. In the Netherlands, as in any EU Member State, Regulation (EC) No. 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) has direct application. The aims of REACH include the protection of human health and the environment from the risks that can be posed by chemicals.

REACH establishes procedures for collecting and assessing information on the properties and hazards of substances. Companies need to register their substances and to do this they need to work together with other companies who register the same substance. The European Chemicals Agency, the central regulatory authority in the implementation of REACH, receives and evaluates individual registrations for their compliance.

To allow companies and authorities to manage the workload related to registering chemicals, REACH introduced a staggered system for substances that were already on the European market in 2007 and that were pre-registered by 1 December 2008 (or in certain circumstances, a later pre-registration date) in accordance with REACH (phase-in substances). The most hazardous substances and those manufactured or imported in the largest quantities were to be registered first, in 2010, followed by the registration of chemicals in 2013 that were manufactured or imported at 100–1,000 tonnes a year. Finally, the chemicals manufactured or imported between 1–100 tonnes per year per company had to be registered last, before 31 May 2018.

Substances that do not fulfil the criteria for phase-in substances must be registered before they can be manufactured or imported in the European Union.

The EU Member States evaluate selected substances and examine the quality of the registration dossiers and the testing proposals to clarify initial concerns for human health or for the environment. Authorities can ban hazardous substances if their risks are unmanageable. They can also decide to restrict a use or make it subject to a prior authorisation.

REACH impacts on a wide range of companies across many sectors, including manufacturers and importers into the European Union. To a limited extent, downstream users may also have some responsibilities under REACH. The specific obligations that companies have depend on the type of products involved (i.e., substances on their own, including metals, mixtures or articles).

In the Netherlands, Bureau REACH performs most tasks pursuant to REACH, including the management of the REACH help desk. Enforcement is the responsibility of a cooperation of the Labour Inspectorate, the Food and Goods Authority and the ILT.

Other EU regulations on chemicals, such as the Biocidal Products Regulation (Regulation (EU) 528/2012), the Classification, Labelling and Packaging Regulation (CLP Regulation (EC) No. 1272/2008) and the Prior Informed Consent Regulation (PIC Regulation (EU) 649/2012), directly apply in the Netherlands as well.

As said above, the national PGS sets detailed guidelines on the handling and storage of hazardous substances. These guidelines apply to nearly all industrial facilities, through a reference in the Activities Decree, or in the environmental operating permit.

iv Solid and hazardous waste

Waste storage, transportation and disposal are controlled by a variety of legislation, both at a national and a regional level. Increasingly, there has been a legal emphasis on waste prevention and minimisation.

The EMA is the main Act setting out the obligations in respect of waste management and transportation. It defines the roles of parties involved in the waste processing chain such as the 'disposer', 'transporter' and 'collector' of waste, each having specific rights and obligations. For example, business waste may only be transferred to a permitted waste collector or certified transporter. In addition, the EMA has set a national landfill ban (i.e., landfilling may only occur at designated areas). Furthermore, on the basis of the EMA, a National Waste Management Plan must be drawn up setting out the national waste management policy for the years to come.

Similar to REACH, the EU Waste Transportation Regulation (EC) 1013/2006 applies in the Netherlands (and other EU Member States), setting out the legal requirements for transportation of waste from and to the Netherlands (e.g., transport of dangerous waste needs to be notified).

In future, the above-discussed (national) rules will be included in the new Environment and Planning Act.

Circular economy

The concept of a circular economy – where the value of products, materials and resources is maintained in the economy for as long as possible, and the generation of waste minimised – has been embraced by the Dutch government. The Netherlands positions itself within the European Union as a circular hotspot, and various 'green deals' on circular initiatives have been agreed upon by (semi-) public institutions and commercial parties. Next to these market initiatives, in the summer of 2016, a national policy programme named 'the Netherlands circular in 2050' was presented to the Dutch parliament. Much of the policy initiatives concern waste management and the recovery of raw materials from waste, although the Dutch government is bound to the EU law concept of 'waste'.

Shell case

In respect of the latter, the judgment of the ECJ of 12 December 2013 in the Shell case (Cases C-241/12 and C-242/12) is worth mentioning here. This case concerned ultralight sulphur diesel (ULSD) that was accidentally mixed with methyl tert-butyl ether (MTBE). Because the flashpoint of the mixture was too low for it to be resold as fuel for diesel engines, the mixture was off spec. The District Court in Rotterdam filed a request for a preliminary ruling to the ECJ on the question of whether the mixture could be qualified as waste. Under the EU Waste Framework Directive 2008/98 any substance or object that the holder discards, or intends or is required to discard can be considered as waste. The ECJ ruled that the mixture of ULSD and MTBE did not qualify as waste. According to the ECJ, particular attention must be paid to whether the substance in question is of any use to its holder. If not, the substance constitutes a burden that he or she will seek to discard in a way that is likely to cause harm to the environment. In the present case, however, the mixture of ULSD and MTBE did not constitute a burden. On the contrary, the holder had sent back the mixture with the intention of getting a refund under the sales contract, while the recipient had taken back the mixture with the intention of blending it and placing it back on the market.

The judgment of the ECJ in the Shell case has not gone unnoticed by the Dutch Council of State, the highest administrative judge in the Netherlands. The key factor for the Council of State in determining whether an object or substance can be considered as waste now appears to be whether the object or substance in question constitutes a burden for the holder that he or she will seek to discard in a way that is likely to harm the environment. Based on that factor, the Council of State has ruled, for example, that electric devices returned by customers do not qualify as waste, even those that should be repaired first in order to be reused. The Council of State reached the same conclusion in respect of flux-oil that still contained minor contaminations.

v Asbestos

The use of asbestos-containing materials has been prohibited in the Netherlands since July 1993. Notwithstanding this prohibition, there is no general legal requirement to remove asbestos already present in buildings, provided this presence does not impose health risks. Concentration limit values have been set to this end, and are used to determine whether remediation is required (usually in the case of friable asbestos, or in case of demolition and renovation activities). Good practice dictates that all asbestos on site should be identified, labelled and maintained in a good condition (i.e., not in a fibre releasing state), and management plans are adopted to this end. Having a building used while being aware of a dangerous situation concerning asbestos posing a health risk for the people in that building, may constitute a criminal offence.

It is anticipated that, as of 2025, asbestos-containing materials in rooftops will be prohibited. Owing to age, the surface of roofing materials containing asbestos is becoming brittle, slowly releasing asbestos fibres to the environment and therefore creating a health risk.

vi Contaminated land

The most important requirements regarding prevention and remediation of contaminated soil and groundwater have been laid down in the SPA. The SPA distinguishes between 'historical' soil and groundwater contamination (caused before 1 January 1987) and 'new' soil and groundwater contamination (caused from 1 January 1987 onward). All new soil contamination must be prevented as far as possible, and in the event that new soil or groundwater contamination occurs nonetheless, all new contamination must in principle be cleaned up. For historical soil contamination, remediation requirements only apply if the authorities deem the soil contamination to be 'severe' and a clean-up urgently required. Whether contamination must be deemed severe contamination is determined by a number of factors, including whether certain limit values (intervention values) are exceeded. The urgency of a clean-up depends on a risk assessment.

Anyone who intends to remediate or move contamination must notify the authorities. Remediation may, in principle, only be carried out in accordance with a remediation plan that has been approved by the authorities. The objective of the clean up should be that the soil becomes suitable for the intended use. Upon completion of the clean-up, a final report must be issued to the authorities for approval. The authorities will determine whether the clean-up meets the conditions stated in the remediation plan. If the contamination has not been entirely removed, restrictions regarding the use of the soil and 'aftercare' requirements (e.g., monitoring of potential migration) may also be imposed. The authorities may also require remediation prior to redevelopment as a condition of planning permission. In theory, under the SPA, the polluter is primarily responsible for the contamination. However, in addition, the landowner or leaseholder can be held responsible by the authorities, regardless of whether he or she contributed to the contamination. The authorities have discretion in deciding whether to assign responsibility for remediation to either the polluter or the landowner, and in practice, the polluter plays a very limited role in the discussions.

The SPA does not deal with apportioning liability and recourse between the various civil parties that may be held responsible; that should be determined under rules of civil law. A party that is held responsible by the authorities for a remediation under the SPA, or otherwise incurs cost in relation to contamination he or she did not cause, may try to take recourse against the polluter on the basis of tort, or against the party from whom he or she acquired the site. In addition, an owner of a site from which contamination migrates to an adjacent site may be held liable by the owner of the adjacent site, regardless of whether the owner of the site caused the contamination.

In future, the rules regarding prevention and remediation of contaminated soil and groundwater will be included in the Environment and Planning Act (in the proposed bill for new soil protection legislation, the role of the polluter is even more limited). The focus on the landowner, which is already actual practice, will be formalised and the SPA itself will be withdrawn.

vii Nature protection

On 1 January 2017, the Nature Protection Act entered into force. This Act provides the legal framework for, inter alia, the protection of protected flora and fauna and of habitats in designated Natura 2000 areas. Under the Nature Protection Act, the killing, disturbing and wounding of protected species is prohibited, unless an exemption has been obtained (or a general exemption applies). In addition, a permit is required for activities that may adversely affect a Natura 2000 area.

With respect to nitrogen deposition, reference must be made to the Integrated Approach to Nitrogen (PAS) that was introduced in the Netherlands in July 2015. The PAS provides for the allocation of 'nitrogen development space' to projects that negatively impact a designated Natura 2000 area by means of nitrogen depositions. The available nitrogen development space is, however, limited. A key assumption under the PAS is that nitrogen development space is created by restoration measures for Natura 2000 areas and source-directed measures aimed at lowering NOx emissions, resulting in a general (autonomous) reduction of the nitrogen depositions onto such areas.

The PAS is currently the subject of legal proceedings. In 2017, the Council of State submitted various questions for a preliminary ruling to the ECJ, asking the ECJ whether the PAS violates the European Habitats or Birds Directives (EU Directives 92/43/EEC and 2009/147/EC). The ECJ answered these questions in its judgment of 7 November 2018. In short, the ECJ ruled that the European Habitats and Birds Directive do not preclude a programmatic approach, provided that a thorough and in-depth examination of the restoration measures and source-directed measures under the PAS makes it possible to ensure that there is no reasonable scientific doubt as to the absence of adverse effects of each plan or project on the integrity of the Natura 2000 areas concerned. Whether the PAS complies with this condition is to be determined by the Council of State. A final judgment of the Council of State is currently being awaited.