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
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).