Chapter III.
Obligation to carry out and (pre-)finance the descriptive soil survey and the soil remediation


Section I.
new soil contamination


Subsection I.
Remediation criterion


Article 9.

1.

The Flemish Government establishes land remediation standards. These land remediation standards include levels of soil contamination that involve a marked risk of negative effects on man or the environment in view of the soil characteristics and the functions it is to fulfil.

2.

If there are clear indications that the soil contamination exceeds or threatens to exceed the land remediation standards, a descriptive soil examination is immediately conducted.

3.

If the descriptive soil examination demonstrates that the land remediation standards are exceeded, land remediation starts immediately.

4.

If because of its special nature the soil contamination cannot be checked against land remediation standards, the remediation criterion mentioned in article 19, 1 and 2applies.

5.

The provisions of 2 and 4 are not applicable in cases of damage covered in conformity with the provisions of article 74 up to and including 82.


Subsection II.
Remediation objective


Article 10.

1.

With new soil contamination, land remediation has the purpose of achieving the guide values for the soil.

2.

If, due to the properties of the soil contamination or of the contaminated land, it is not possible to achieve the target values for soil quality by using the best available technologies that are not paired with excessively high costs, then the soil remediation shall at least be targeted at achieving soil quality which is better than that specified in the applicable soil remediation standards.

In cases where the land in the context of a provisionally established draft land use plan, land-use implementation plan, or project decision is given a use for which stricter soil remediation standards apply, then the stricter soil remediation standards shall be used as the remediation objective.

3.

If because of the properties of the soil contamination or of the contaminated land it is not possible to achieve the soil quality mentioned in 1 and 2, by using the best available techniques while not entailing excessive costs, the remediation objective mentioned in article 21, 1 applies.

4.

If it is not possible to achieve the soil quality mentioned in 1 up to and including 3, by using the best available techniques while not entailing excessive costs, restrictions on use or purpose are imposed as necessary.

5.

If because of its special nature the soil contamination cannot be checked against the guide values for the soil quality, the remediation objective mentioned in article 21, 1, is used. The provisions of 4 are accordingly applicable.

6.

The selection of the best available techniques entailing no excessive costs takes place independent of the financial resources of the party obliged to remediate the land. The Flemish Government can determine which elements must be taken into account with the evaluation of the best available techniques entailing no excessive costs.


Subsection III.
Party obligated to carry out remediation works


A. Appointment of the party obligated to carry out remediation works.

Article 11. Translation not available

B. Exemption from the remediation obligation.

Article 12.

1.

The operator is not obligated to carry out a descriptive soil survey or the soil remediation if the OVAM is of the opinion, based on the soil file or based on the substantiated position of the operator, that the operator cumulatively complies with the following conditions:

1 the operator has not directly caused the soil contamination;
2 the soil contamination occurred before the point at which the operator began to develop the land.

If the OVAM is of the opinion, based on the soil file or based on the position, that the operator cumulatively complies with the conditions, stated in the first paragraph, for a part of the soil contamination, then the operator is exempt from the remediation obligation for that part of the soil contamination.

The provisions of the first and second paragraphs shall also apply to the user accordingly.

2.

The owner is not obligated to carry out a descriptive soil survey or the soil remediation if the OVAM is of the opinion, based on the soil file or based on the substantiated position of the owner, that the owner cumulatively complies with the following conditions:

1 the operator has not directly caused the soil contamination;
2 the soil contamination occurred before the point at which the operator became the owner of the land;
3 the operator was not aware and could not have been aware of the soil contamination at the point at which the operator became the owner of the land. The Government of Flanders can stipulate which elements must be taken into account in the assessment of whether the owner was not aware or could not have been aware of the soil contamination at the point of acquisition;
4 [...]

If the OVAM is of the opinion, based on the soil file or based on the position, that the owner cumulatively complies with the conditions, stated in the first paragraph, for a part of the soil contamination, then the owner is exempt from the remediation obligation for that part of the soil contamination.

3.

As a departure from the provisions of 1 and 2, the person mentioned in article 11 is still obliged to carry out the descriptive soil examination or the land remediation if the OVAM demonstrates that a legal predecessor caused the soil contamination, or that the soil contamination originated during the period in which a legal predecessor operated or used the land.

4.

All parties involved can appeal against the decision of the OVAM mentioned in 1 up to and including 3 to the Flemish Government in accordance with articles 153 up to and including 155.

5.

The Flemish Government determines further regulations concerning:

  1. the processing of the application for exemption from the obligation to carry out the descriptive soil investigation or soil remediation;
  2. the transferability and the expiry of exemption from the obligation to carry out the descriptive soil investigation or soil remediation.

The Flemish Government can determine further regulations concerning:

  1. the documents that, on the penalty of inadmissibility of the application, must be included with the motivated viewpoint, as stated in 1 or 2;
  2. the period in which the application for exemption, on the penalty of inadmissibility, must be submitted to the OVAM.

Subsection IV.
Remediation financing


A. (Pre)financing.

Article 13.

1.

The party obliged to remediate the land mentioned in article 11 carries out the descriptive soil examination or the soil remediationat his own expense.

2.

The party obliged to remediate the land can recover the costs of the descriptive soil examination or the land remediation from the person who in accordance with article 16 is responsible, and can require from this party responsible for the remediation an advance payment or require that he pays a financial deposit.


B. Capacity to pay arrangements.

Article 14.

1.

A party obliged to remediate the land mentioned in article 11, who has insufficient capacity to (pre)finance the land remediation, can submit a reasoned request to the Flemish Government for the allocation of a capacity to pay arrangement. A capacity to pay arrangement has the purpose of spreading the financing of the remediation. The Flemish Government decides on the granting of a capacity to pay arrangement within a period of ninety days of receipt of an admissible request.

2.

The Flemish Government establishes more specific regulations concerning the procedure for such application and the conditions for the allocation of a capacity to pay arrangement.


C. Co-financing.

Article 15.

1.

The Flemish Government can determine in which cases the person proceeding with a descriptive soil examination or land remediation can claim co-financing. In this case it also makes more specific regulations concerning the procedure for and the conditions of cofinancing, and the percentage share of co-financing in the total cost of the descriptive soil examination or land remediation. The Flemish Government can also determine the maximum co-financing in nominal amounts.

2.

The co-financing is granted within the bounds of the credit provided to this end in the budget of the Flemish Region.


Subsection V.
Liability


Artikel 16.

1.

Whoever has caused soil contamination is responsible for the costs made in accordance with this decree for the descriptive soil examination, the land remediation and other measures mentioned in section VI., as well as for damage caused by these activities or measures.

2.

If the emission that caused the soil contamination to occur originated from an installation or activity that is subject to the notification or licensing obligations pursuant to Title V of the Decree of 5 April 1995 containing general provisions regarding environmental policy, then the operator of the installation or activity, stated in Title V, is nevertheless liable;

3.

The liability for the costs and further damage, as stated in 1, that the person who satisfies the conditions, as stated in Article 12, 1 or 2, can incur on the basis of the regulations applicable to the present Decree that place the liability purely on ownership or purely on the security of the piece of land is limited to the amount of the costs necessary to prevent the soil contamination from spreading or spreading further or from forming an immediate hazard.


Article 17.

1.

If on the basis of the provisions of this decree a number of persons are responsible for the same soil contamination, they are jointly and severally liable.

2.

In that case, those who have reimbursed the party suffering the damage have recourse against the other liable parties to the extent the different emissions for which they are liable have contributed to the cause of the land contamination.

3.

The provisions of this decree are without prejudice to the possibilities of the person responsible to exercise recourse based on another legal foundation.


Article 18. The provisions of this decree are without prejudice to the other rights of the persons incurring costs or suffering damage as mentioned in article 16, 1, with respect to the causer or other persons.

Section II.
Historical soil contamination


Subsection I.
Remediation criterion


Article 19.

1.

On land with historical soil contamination a descriptive soil examination is proceeded with if there are clear indications of serious soil contamination.

2.

On land with historical soil contamination it is proceeded with land remediation if the descriptive soil examination demonstrates the presence of serious soil contamination.

3.

[...]


Article 20. Extra Versions

[...]


Subsection II.
Remediation objective


Article 21.

1.

For historical soil contamination, soil remediation is targeted at preventing the soil quality from causing a risk or resulting in adverse effects on people or the environment by using the best available technologies that are not paired with excessively high costs.

In cases where the land in the context of a provisionally established draft land use plan, land-use implementation plan, or project decision is given a different use, then the soil remediation is targeted at preventing the soil quality from causing a risk or resulting in adverse effects on people or the environment within the context of this future use.

2.

If, due to the properties of the soil contamination or of the contaminated land, it is not possible to achieve the target values for soil quality by using the best available technologies that are not paired with excessively high costs, then the soil remediation shall at least be targeted at achieving soil quality which is better than that specified in the applicable soil remediation standards.

In cases where the land in the context of a provisionally established draft land use plan, land-use implementation plan, or project decision is given a use for which stricter soil remediation standards apply, then the stricter soil remediation standards shall be used as the remediation objective.

3.

The provisions of article 10, 6, are accordingly applicable.


Subsection III.
Party obligated to carry out remediation works


A. Appointment of the party obligated to carry out remediation works.

Article 22. Translation not available

B. Exemption from the decontamination obligation.

Article 23.

1.

The operator is not obligated to carry out a descriptive soil survey or the soil remediation if the OVAM is of the opinion, based on the soil file or based on the substantiated position of the operator, that the operator cumulatively complies with the following conditions:

1 the operator has not directly caused the soil contamination;
2 the soil contamination occurred before the point at which the operator began to develop the land.

If the OVAM is of the opinion, based on the soil file or based on the position, that the operator cumulatively complies with the conditions for exemption for a part of the soil contamination, then the operator is exempt from the remediation obligation for that part of the soil contamination.

The provisions of the first and second paragraphs shall also apply to the user accordingly.

2.

The owner is not obligated to carry out a descriptive soil survey or the soil remediation if the OVAM is of the opinion, based on the soil file or based on the substantiated position of the owner, that the owner cumulatively complies with the following conditions:

1 the operator has not directly caused the soil contamination;
2 the soil contamination occurred before the point at which the operator became the owner of the land;
3

the operator was not aware and could not have been aware of the soil contamination at the point at which the operator became the owner of the land. The Government of Flanders can stipulate which elements must be taken into account in the assessment of whether the owner was not aware or could not have been aware of the soil contamination at the point of acquisition.

The owner, who, although he, she, or it was aware or should have been aware of the soil contamination, acquired the contaminated land before 1 January 1993 is also not obligated to carry out a descriptive soil survey or the soil remediation if the OVAM is of the opinion, based on the soil file or based on the substantiated position of the owner, that the owner did not cause the contamination directly and that, since acquiring the land, the owner has only used it for private purposes.

If the OVAM is of the opinion, based on the soil file or based on the position, that the owner cumulatively complies with the conditions for exemption for a part of the soil contamination, then the owner is exempt from the remediation obligation for that part of the soil contamination.

3.

As a departure from the provisions of 1 and 2, the person mentioned in article 22 is still obliged to carry out the descriptive soil examination or the land remediation if the OVAM demonstrates that a legal predecessor caused the soil contamination, or that the soil contamination originated during the period in which a legal predecessor operated or used the land.

4.

All parties involved can appeal against the decision of the OVAM mentioned in 1 up to and including 3 to the Flemish Government the provisions of article 153 up to and including 155.

5.

The provisions of Article 12, 5 shall also apply accordingly.


Subsection IV.
Remediation financing


Article 24. The provisions of article 13 up to and including 15 are accordingly applicable.

Subsection V.
Liability


Article 25.

1.

The liability for the costs that are incurred in accordance with this decree for the descriptive soil survey, the sediment study, the soil remediation, and other measures, stated in Chapter VI, as well as those incurred for the damage that is caused by these activities or measures, is stipulated, in cases of historical soil contamination, in accordance with the liability rules that were applicable before 29 October 1995

2.

Responsibility for the costs and further damage mentioned in 1 that may be incurred by a person who meets the conditions mentioned in article 23, 1 or 2, based on the rules applicable before 29 October 1995, being liability established due to simple ownership or the simple monitoring of the land, is limited to the amount of costs required to prevent the soil contamination from further spreading or comprising an immediate danger.


Section III.
Mixed soil contamination


Article 26. [...]

Article 27.

1.

If mixed soil contamination has been observed, the soil remediation expert shall draw up, in all reasonableness, an apportionment of the soil contamination that is as accurate as possible of one part in which the contamination occurred before 29 October 1995 and in one part in which it occurred after 28 October 1995.

The OVAM shall decide upon the apportionment based on the substantiated proposal of the soil remediation expert in his or her soil survey report. All stakeholders can lodge an appeal against the OVAM’s decision with the Government of Flanders in accordance with Articles 153 to 155, inclusive.

2.

If the OVAM is of the opinion, based on the apportionment, that the largest part of the mixed soil contamination occurred before 29 October 1995, or that the part that occurred before 29 October 1995 is equal to the part that occurred after 28 October 1995, then only the provisions applicable to historical soil contamination are applicable to the mixed soil contamination.

If, based on the apportionment, the largest part of the mixed soil contamination occurred after 28 October 1995, then only the provisions applicable to new soil contamination are applicable to the mixed soil contamination.


Translation not available

Subsection I.
Qualifications for mixed soil contamination


Article 27bis.

The OVAM can qualify a case of soil contamination as mixed soil contamination. The OVAM describes the mixed soil contamination and states the land or lands on which the mixed soil contamination occurred.

Subject to provisions that state otherwise in this section, the provisions in Articles 9 to 11, inclusive, Articles 13 to 22, inclusive, and Articles 24 to 27, inclusive, are applicable to the mixed soil contamination.


Subsection II.
Obligation to jointly carry out a descriptive soil survey and soil remediation for the mixed soil contamination Extra Versions


Article 27ter.

The qualification as mixed soil contamination automatically results in the persons who, in application of Articles 9 and 11, are obligated to carry out remediation works or who, in application of Articles 19 and 22, were appointed as being obligated to carry out remediation works, being obligated to jointly carry out a descriptive soil survey or soil remediation for the mixed soil contamination.

On the condition that the persons who are obligated to carry out remediation works are in agreement, the OVAM can then proceed to carry out the descriptive soil survey or the soil remediation for the mixed soil contamination. This shall be done at the cost of the persons who are obligated to carry out remediation works in accordance with the distribution formula and stipulated in application of Article 27quater.


Subsection III.
Obligation to (pre-)finance based on the distribution formula


Article 27quater.

In deviation from Article 13, first paragraph, and Article 24, the (pre-)financing for carrying out the descriptive soil survey and the soil remediation by the persons obligated to carry out remediation works, stated in Article 27ter, is to be done according to a distribution formula, which is based on all the reasonably available data, specified by the OVAM. The Government of Flanders shall specify further rules governing the specification of the distribution formula.


Subsection IV.
Administrative appeal


Article 27quinquies. All stakeholders can lodge an appeal against the OVAM’s decisions, stated in Articles 27bis and 27quater, with the Government of Flanders in accordance with Articles 153 to 155, inclusive.