Soil remediation obligations under the Environment and Planning Act: three takeaways

The Soil Protection Act offers separate frameworks for tackling new and historical contaminations:

• Article 13 contains a duty of care and regulates new contaminations caused after 1 January 1987. Anyone who performs soil-threatening acts as referred to in Articles 6 through 11 is obliged, on the basis of the duty of care, to (i) take all measures that can reasonably be required to prevent soil contamination; and (ii) limit any contamination that has arisen and and undo it as much as possible.
• Soil contaminations caused before 1 January 1987 cannot be addressed on the basis of the duty of care. For these historical contaminations, it is determined whether there is a ‘serious case of contamination’ and subsequently determined whether urgent remediation is necessary, in view of (i) the health risks for humans; (ii) the ecological risk for animals and plants; and (iii) any risks of spreading. Pursuant to a ‘seriousness and urgency’ decision, owners or leaseholders of industrial sites are required to remediate such contamination functionally. If the ownership or ground lease is transferred, the remediation obligation will remain with the old owner or leaseholder until the successive owner or leaseholder has provided financial security for the remediation costs. In the case of non-industrial sites, too, the landowner or leaseholder may be required under specific circumstances to clean up the soil. At least, all this was the case before the Environment and Planning Act entered into force.

The Environment and Planning Act explicitly assumes that all emergency locations have been addressed on the basis of the Soil Protection Act. Pursuant to the Agreement on the Approach to Emergency Locations 2010-2015, governments have committed themselves to tackling all humane emergency locations. Pursuant to the Soil and Subsoil Agreement 2016-2020, the other emergency locations must also have been remediated or the risks must have been managed on the basis of a remediation plan in place.

After the implementation of the Environment and Planning Act (pursuant to transitional law), the system of the Soil Protection Act will simply remain in force in respect of “seriousness and urgency” decisions, remediation obligations, temporary security measures, and restrictions on use. The duty of care from Article 13 of the Soil Protection Act also continues to apply to (new) contaminations caused before the entry into force of the Environment and Planning Act (note: even if these are only discovered after the entry into force of the Environment and Planning Act). All in all, the system of the Soil Protection Act therefore remains relevant for the implementation practice for a long time to come.

The Environment and Planning Act provides for new duties of care for contaminations caused after the Act has entered into force. The general duty of care requires in general terms that everyone takes care of the physical living environment. The specific duty of care from the Living Environment (Activities) Decree obliges the party carrying out an activity that is harmful to the environment to (i) take all measures that reasonably can be required to prevent adverse consequences; (ii) limit and reverse as much as possible all adverse consequences that cannot be prevented; and (iii) refrain from the activity insofar as reasonably can be required. The specific duty of care includes an obligation to (i) take all appropriate preventive measures; (ii) apply the best available techniques; and (iii) not cause significant environmental pollution. In doing so, the duty of care provides, inter alia, for an enforceable remediation obligation for new contaminations.

The Environment and Planning Act also provides for the regulation of an unusual incident. An unusual event is broadly defined as an event that deviates from the normal course of an activity, such as a malfunction, an accident or a calamity, which causes or threatens to cause significant adverse consequences for the physical living environment. The competent authority obliges the party responsible to take all measures that can reasonably be expected of it to prevent and reverse the adverse consequences of the unusual incident. In addition, the party designated as the party responsible is (i) the party carrying out the activity; (ii) the party holding an integrated environmental permit; (iii) the party that reported the activity; or (iv) the party to whom, at the time of the incident, decisive economic control over that activity had been transferred. The regulation of an unusual event therefore also entails a remediation obligation for new contaminations.

The point of departure of the Environment and Planning Act is that all emergency locations with historical contaminations have been remediated, or in any event still fall under the system of the Soil Protection Act through transitional law. Given the premise that all 'seriousness and urgency' contaminations have been addressed in this way, the Environment and Planning Act no longer provides for a remediation obligation for emergency locations and industrial sites.

The Environment and Planning Act assumes that the remaining historical contaminations will be addressed and regulated through the Environment Plan at a ‘natural’ moment. The quality of the soil is one of the interests that the municipality must consider when assigning functions to a specific location. With location-specific rules, the municipality can indicate in the environmental plan where measures in the soil are necessary before a certain activity may be carried out. Although the Environment and Planning Act therefore does not provide for a specific remediation obligation for the remaining historical contaminations, landowners or project developers must of course ensure that the soil is suitable for the use of the location. In this way, an implicit remediation obligation applies to the owner or project developer, although the extent of this obligation depends on the question of which activities are carried out and which rules have been included in the environmental plan.

The final element of the new system is the regulation for the random find: an unexpected find of contamination on or in the soil with unacceptable health risks as a result of exposure to that contamination. The competent authority must oblige the owner or leaseholder to take temporary protective measures that can reasonably be requested from him in order to limit the unacceptable health risks. This regulation deviates from the remediation obligations under the Soil Protection Act on two important points. First of all, this concerns only soil contaminations with a human risk, and not serious contaminations with a risk of spreading or an ecological risk. In addition, the regulation only provides for an obligation to take temporary protective measures to mitigate the health risk, and not for a more comprehensive remediation obligation. The remediation requirement for the owner or leaseholder is therefore relatively limited, and the approach to residual pollution is also being passed on to another ‘natural’ moment.

Existing remediation obligations under the Soil Protection Act simply remain in force through transitional law. For new contaminations, the Environment and Planning Act still assumes a duty of care and an associated remediation obligation. The party responsible for an unusual incident is also required to clean up soil contamination. For historical contaminations, the Environment and Planning Act no longer provides for specific remediation obligations, although the rules in the environmental plan may require the soil to be cleaned up before a new activity can be implemented. Finally, the regulation in the Environment and Planning Act on the discovery of a random find may mean that the owner or leaseholder is obliged to take temporary protective measures, although there is no full remediation obligation in that case.