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.