In the Flemish Region soil pollution matters are covered by the Soil Decree of 27 October 2006. With two Decrees both dated 17 May 2024, the Flemish legislator made some changes the Soil Decree. Although these changes do not fundamentally alter the decree, it is worth mentioning some of them.
- The competent authority (the Flemish Public Waste Agency - OVAM) may ask the person liable for remediation to provide a financial security to guarantee the execution of descriptive soil investigation, soil remediation or aftercare measures. Previously, a financial guarantee had already to be provided in case of a transfer of land taking place before a descriptive investigation was established or before remediation works were carried out (known as the "accelerated transfer procedure"). Now, the right to impose a financial guarantee applies as a general possibility as soon as a remediation obligation applies.
- Any person potentially liable for remediation (as an operator, user or owner of real estate) can invoke an exemption from soil investigation and decontamination under the conditions set out in the decree. Regarding historical contamination, it has now been additionally confirmed that when a party liable for remediation enjoys an exemption (in part or in full), OVAM resumes its authority to turn to other potential parties liable for remediation and declare them in default.
- The decree contains a specific regulation on sediments (waterbodems). A sediment is the bed of a surface water which is always or for a large part of the year under water. The Soil Decree now explicitly stipulates that the sediment manager is liable for any remediation. However, if it is determined that some or all of the sediment pollution was caused by the spread of pollution from another property, and a remediation obligation to remediate has been established concerning this property, the obligation to remediate the sediment rests with the party liable to remediate the source property.
- OVAM can always decide to carry out soil remediation on its own initiative (ex officio). The Soil decree now stipulates that the authority can declare the person who caused the pollution (or his legal successor) in default to carry out remediation works, before deciding to act ex officio. Especially new is that the Soil Decree targets the perpetrator as the person liable for remediation.
- At present, soil certificates and the soil information register make it possible to know which soil pollution related information the authorities (OVAM) have about a plot of land (in particular which soil investigations have been carried out, if any, and whether any remediation is/was required). In the future, the public information will be expanded to include a soil pollution explorer (a digital map with colour codes, which will be publicly accessible) and soil pollution sheets (a sheet per plot, which can be consulted under certain conditions).
- Anyone who has obtained an exemption from remediation obligations as an operator, user or owner, but fails to comply with an order from the competent authority (OVAM) to allow its designated persons access to the plot of land, may lose the exemption by operation of law.
- The amendment to the Soil decree does not affect the regime
applicable in the case of a land transfer. For the
record, we recall the obligations applicable in the case of a
transfer of "risk land", i.e. a plot of land on which
potentially contaminating activities (listed by a Flemish
Government Decision) are or have been present.
- The transferor must carry out and communicate an exploratory soil investigation to OVAM prior to the transfer.
- Based on this exploratory soil investigation OVAM confirms whether or not a descriptive soil investigation has be carried out (before the transfer can take place).
- Descriptive soil testing must not be carried out:
- if the soil contamination was not initiated on the land to be transferred;
- if the transferor complies with the general conditions under which a person liable for remediation is exempted ;
- however, these exemptions do not apply if the pollution was caused by a legal predecessor of the transferor.
- If the descriptive soil investigation was carried out, the transfer can also take place before actual remediation has been conducted provided a soil remediation project has been drawn up and declared compliant, an explicit commitment has been made to OVAM to carry out the remediation, and the required financial security has been provided.
- An accelerated transfer may still be possible (without a prior soil remediation project) if (a) a cost estimate has been drawn up (by a soil expert) and the aforementioned commitment and financial security are in place, or (b) within the framework of an agreement with the competent Flemish Minister on the grounds of socio-economic reasons and urgency.
The changes were published in two separate decrees:
- The Decree of 17 May 2024 amending the Soil Decree (Official Gazette of 12 June 2024); (NL – FR) and
- The Collective Decree of 17 May 2024 amending various provisions concerning environment and urban development (Chapter 13) (Official Gazette of 10 July 2024) (NL – FR).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.