The bill on soil clean-up that is being discussed at the Flemish Council (Vlaamse Raad) contains a detailed regulation on the determination of the person who will have to execute the clean-up operations and the person who will be liable for the costs of such clean-up.

The bill makes a clear distinction between soil pollution that has occurred after the coming into force of the new decree ("new pollution") and soil pollution that originated before the coming into force of the new decree ("historical pollution"). If the soil was polluted before and after the coming into force of the new decree, the rules governing new pollution will apply.

The obligation to clean up new soil pollution will be triggered when certain parameters, laid down by the Flemish government, are exceeded. Historically polluted soils will only have to be sanitised when they cause a "serious threat". These soils will be cleaned up following a priority scheme.

Hereafter, we will give a summary of the new regulations determining who will have to execute the clean-up and who will bear the costs. It should be noted that as long as the bill has not been voted by the Flemish Council, the proposed text can be amended.

New pollution

The person who has actual control over the polluted soil will have to execute the clean-up. This will in most cases be the owner of the land, but could also be the operator of a facility that is situated on the land. He will be exempt from this obligation if he demonstrates that (1) he is not the polluter, (2) at the time of acquiring control over the soil he was not aware or was not obliged to be aware of the pollution and (3) since January 1, 1993 no polluting activity has taken place on the soil. In that case, the polluter will have to perform the clean-up. If the polluter is unknown or does not undertake his obligation to clean up, OVAM (the Flemish Public Waste Company) will execute the clean-up.

In all cases of new pollution, the polluter will be liable for the costs of the clean-up operations. The person who has the obligation to clean up is entitled to request the polluter to make an advance payment or to provide sufficient financial securities.

Historical pollution

Historically polluted soil will also have to be cleaned up by the person who has actual control over the soil. He will be exempt from this obligation if he demonstrates that (1) he is not the polluter and (2) at the time he acquired control over the land, he was not aware or was not obliged to be aware of the pollution. The person who holds actual control and was aware or was obliged to be aware of the pollution will also be exempt if (1) he has acquired control over the polluted land before January 1, 1993, (2) he is not the polluter and (3) since acquiring control over the land, he has not performed polluting activities on the land.

If the person who has actual control over the land is exempt from the obligation to clean up, OVAM will execute the clean-up operations.

To determine the person who is liable for the costs of the clean-up, the bill refers to the liability rules that are in force "the day before the coming into force of the decree". This means that the person who executes the clean-up will only be able to recover the costs if he can find a person that is liable following an existent liability rule. Among these existent liability rules, the most important will be articles 1382-83 of the Civil Code (fault liability - negligence), article 1384 of the Civil Code (strict liability of the owner of a defective object) and article 7 of the Statute of July 22, 1974 (strict liability of the holder of toxic waste).

The content of this article is intended to provide general information on the subject matter. It is therefore not a substitute for specialist advice.

De Bandt, van Hecke & Lagae - Brussels. (32-2)517.95.23.
For further information contact Vincent Macq on + 32.2. 517.94.47.
© Mondaq Ltd 1995 Tel +44 171 820 7733.