Our mix of policy instruments

Soil

Up to now Flanders has one of the most progressive legislations on soil remediation in Europe.

Regulatory framework: the Flemish Soil Decree

The existing legal framework in Flanders, the Decree on Soil Remediation and Soil Protection, provides a powerful tool for reducing and remediating soil pollution. 

Enacted on 27 October 2006, the Flemish Soil Decree provides for a thorough, curative approach to soil contamination with, in addition, an important preventive component. This includes stricter regulation of the remediation obligation, liability for new soil contamination and sustainable management of soil materials according to the regulations on soil disposal.  

Specific instruments enacted in the decree, such as the soil certificate and land information register, play crucial roles in the process of protecting and restoring soil contamination and in raising awareness of and incentivising soil stewardship.

Land Information Register

One of the basic provisions of the decree is obligatory exploratory soil investigation of potentially contaminated land that has not yet been investigated (Article 31, Flemish Soil Decree). This obligation is related to OVAM’s ambitious goal of remediating all historical soil contamination by 2036. The Land Information Register provides all up-to-date, relevant information on potential contamination risks, soil investigation and soil certificates. 

Soil Certificate and transfer of land

The soil certificate informs on potential risks and the owner’s legal obligation to remediate in the event of soil contamination. A specific feature of Flemish soil legislation is its legally binding imposition of stewardship regarding soil remediation as a form of soil care, without prejudice to the polluter pays principle.

The decree applies a cascade effect in identifying the polluter, whereby the owner also comes into the picture (and not only the operator who caused the pollution). More specifically, the Soil Decree (Art. 11) imposes a legal clean-up obligation on the owner of a plot of land on which soil contamination has occurred, even though the owner did not cause the pollution, and provides for pre-financing the cost of executing this obligation and for recovering such costs from the liable party (i.e. respects the polluter pays principle).

The owner accordingly has a duty to deal with soil contamination present on its land (under the legal obligation to treat soil contamination insofar as it poses a risk to people and the environment), even if it is not the party causing the contamination. This goes further than the EU Environmental Liability Directive, but is nevertheless in agreement with the Directive, as confirmed in several preliminary rulings of the European Court of Justice. This broader interpretation of the Environmental Liability Directive can be understood as a legal translation of Soil and Land Stewardship that places heavy responsibility on the owner. 

The Soil Decree is considerably stricter regarding new soil pollution as compared to historical soil pollution. This applies, among other things, to the remediation obligation. Unlike historical pollution, new soil pollution results in an automatic remediation obligation and is subject to stricter liability rules. The stricter regulation of new soil contamination has an obviously preventive purpose.  

Further instruction on protection and remediation is provided in the OVAM codes of good practice and standard procedures. OVAM has developed several codes of good practice to ensure that soil investigation and soil remediation are conducted under the best conditions for the environment (e.g. Phytoremediation – Code of Good Practice).

Excavated soil/sediment transport

The rules concerning the transport and use of excavated soil (earth-moving) are also aimed at prevention. In 2001, Flanders published regulations for the use of ‘excavated soil’. This regulation stipulates the conditions for application of ‘excavated soil materials’, aimed at the highest quality reuse option, and includes initiatives for ‘regenerative approaches’ in the process.

Brownfields and blackfields

In addition to its aim to remediate blackfields, OVAM also actively focusses on redevelopment of brownfields by contributing to the provision of customised contamination solutions. Brownfield covenants are a powerful instrument for remediation of complex sites, for recycling soil and for utilising unused sites. They establish, as between public and private parties, the main goals, the timeframe for action and, in the case of polluted brownfields, the parties responsible for financing the remediation.