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.