Decree concerning general provisions relating to environmental policy
Decree of 5 April 1995 concerning general provisions relating to environmental policy

Titel I.
General provisions


Chapter I.
Introductory provisions


Article 1.1.1. This decree regulates a subject referred to in article 39 of the Constitution.

Article 1.1.2.

§ 1

Unless explicitly determined otherwise, the following definitions apply:

environment: the atmosphere, soil, water, flora, fauna and other organisms other than persons, ecosystems, landscapes and the climate;

2° polluting elements: solid substances, liquids, gases, micro-organisms, forms of energy such as heat, radiation, light, noise and other vibrations;

3° emission: any introduction by persons of polluting substances into the atmosphere, soil or water;

4° to pollute: the causing of an emission which in a direct or indirect manner does or can detrimentally affect persons or the environment;

5° pollution: the presence of polluting substances caused by persons in the atmosphere, soil or water which in a direct or indirect manner does or can detrimentally affect persons or the environment;

extraction: the removal by persons of soil, water, air or light which in a direct or indirect manner does or can detrimentally affect persons or the environment;

7° immission: the change in the presence of polluting factors in the atmosphere, soil or water around one or more sources of pollution as a result of an emission from this source or sources;

8° technical environmental entity: different establishments and/or activities, including their op-erating premises and other immoveable property with which they are related, which must be con-sidered as one entity for the assessment of the detrimental effects that they can cause on the popu-lation or environment. A fact that could indicate the existence of a technical environmental entity is the mutual geographic, material or operational relationships of establishments and activities which are concomitant with the relative separation of the whole of these establishments and ac-tivities with respect to other establishments and activities.

 

§ 2

Unless explicitly stipulated otherwise:

  1. the atmosphere does not comprise air in closed spaces;
  2. the soil comprises the solid constituents of the ground, including groundwater, micro-organisms and other components located therein;
  3. water does not comprise drinking water nor groundwater;
  4. radiation does not comprise ionising radiation.

Chapter II.
Objectives and principles


Article 1.2.1.

§ 1

For the benefit of the current and future generation the environmental policy has the following objectives:

  1. the management of the environment by the durable use of raw materials and natural resources;
  2. the protecting, by combating pollution and extraction, of persons and the environment, and in particular ecosystems important to the working of the biosphere and that concerning the production of food, health and other aspects of human life;
  3. the conservation of nature and the stimulation of biological and scenic diversity, in particular by the maintenance, the restoration and the development of natural habitats, ecosystems and landscapes with ecological value and the preservation of wildlife, in particular wildlife that is endangered, vulnerable, rare or endemic.

 

§ 2

Based on the consideration of the different social activities, the environmental policy strives for a high level of protection. It is based on aspects including the precautionary principle and the principle of preventive action, the principle that priority is given to countering environmental pollution at source, the standstill principle and the polluter pays principle.

 

§ 3

The objectives and principles determined in § 1 and § 2 must be integrated in other areas in the determining and execution of policy of the Flemish Region. With the execution of the policy, account is taken of the social-economic aspects, the international dimension and the available scientific and technical information.


Titel II.
Decision making and participation


Chapter I.
Environmental planning


Section 1.
Introductory provisions


Article 2.1.1. Environmental planning is understood as the activities aimed at achieving coherence in the preparation, the establishment and the execution of decisions relating to the environment.

Article 2.1.2. Translation not available

Section 2.
Environmental planning at regional level


Subsection 1.
The environmental report


Article 2.1.3.

The environmental report comprises:

  1. a description, analysis and appraisal of the existing state of the environment;
  2. a description, analysis and appraisal of the environmental policy implemented so far [to the extent relevant to the checking of the results of the implemented environmental policy against the policy objectives established in the environmental regulations or environmental planning];
  3. a description of the expected development of the environment with an unchanged policy, and with a changed policy according to a number of relevant scenarios.

Article 2.1.4.

Every two years an environmental report is drawn up.

 


Article 2.1.5. Translation not available

Article 2.1.6. The environmental report is brought to the attention of the provinces and municipalities.The environmental report is made sufficiently known in the manner determined by the Flemish Government.

Subsection 2.
The regional environmental policy plan

Translation not available

Article 2.1.7. Translation not available

Article 2.1.8. Translation not available

Article 2.1.9. Translation not available

Article 2.1.10. Translation not available

Article 2.1.11. Translation not available

Article 2.1.12. Translation not available

Subsection 3.
The regional yearly environment programme


Article 2.1.13.

The yearly environment programme is drawn up for the execution and putting into operation of the environmental policy plan and includes at least:

  1. a report of the state of execution of the prevailing environmental policy plan;
  2. a report of the state of execution of European environmental legislation;
  3. a report of the situation concerning the approval of the international agreements by the Flemish Region;
  4. a statement of the activities to be carried out by the Flemish Region in the coming year and measures to be taken in order to implement the prevailing environmental policy plan;
  5. a summary of the estimated incomes and expenses in the draft budget for the execution of the environmental policy plan;
  6. a list of all planned and current examinations and restoration programmes.

Article 2.1.14. [...]

Section 3.
Environmental planning at provincial level


Subsection 1.
The provincial environmental policy plan


Article 2.1.15.

§ 1

The Provincial Council can in the course of the first half of the year following the elections for the Provincial Council determine a provincial environmental policy plan for the purposes of the protection and the management of the environment on the territory of the province.


The provincial environmental policy plan gives more specific details of the regional environmental policy plan at provincial level. Within the bounds of provincial competence, the provincial environmental policy plan can also complement the regional environmental policy plan. The provincial environmental policy plan must be in conformity with the compulsory provisions of the regional environmental policy plan.

 

§ 2

The provincial environmental policy plan comprises a plan of action as referred to in article 2.1.7, § 3. The provisions of the provincial environmental policy plan are indicative, except the provisions of the plan of action made compulsory by the Provincial Council. These provisions are compulsory for the province and the municipalities on their territory and for the institutions under their authority.

 

§ 3

With the coming into force of each new regional environmental policy plan the existing provincial environmental policy plan can be revised. Provisions of the existing provincial environmental policy which conflict with compulsory provisions of the new regional environmental policy plan lose their validity ipso jure.


Article 2.1.16. Translation not available

Article 2.1.17. Translation not available

Article 2.1.17bis.

§ 1

With the revision of the plan for the purposes of matching with the regional environmental policy plan mentioned in article 2.1.15, § 3, a reasoned decision established by the Provincial Council suffices. The revised plan is announced to the bodies mentioned in article 2.1.17, § 1.

 

§ 2

Within a period of three months of the notification referred to in § 1, the Flemish Government can nullify the provisions of the plan which conflict with compulsory provisions of the regional environmental policy plan by reasoned decision .


Article 2.1.18.

§ 1

The Flemish Government can grant a subsidy to the provinces for drawing up a provincial environmental policy plan or yearly environmental programme. It determines conditions and the specific regulations to this end.

 

§ 2

After the appraisal of the voluntary execution of the provisions of this subsection by the provinces, the Flemish Government can rule that the provinces must draw up an environmental policy plan from a period it determines.


Article 2.1.18bis. An environmental policy plan as mentioned in article 2.1.15 is drawn up for a first time in 2007. At that time it can also be decided to ratify or update the existing provincial environmental policy plan, possibly linked to an extension of the plan period. In this case a revision procedure as mentioned in article 2.1.17bis.

Subsection 2.
The provincial yearly environment programme


Article 2.1.19. Translation not available

Article 2.1.20. [...]

Section 4.
Environmental planning at municipal level


Subsection 1.
The municipal environmental policy plan


Article 2.1.21.

§ 1

The municipal council can in the course of the second half of the year following the elections for the municipal council determine a municipal environmental policy plan for the purposes of the protection and the management of the environment on the territory of the municipality.


The municipal environmental policy gives more specific details at municipal level of the regional and provincial environmental policy plan. Within the bounds of municipal competence the municipal environmental policy plan can also complement the regional and provincial environmental policy plan. The municipal environmental policy plan must be in conformity with the compulsory provisions of the regional and provincial environmental policy plan.

 

§ 2

The municipal environmental policy plan comprises a plan of action as referred to in article 2.1.7, § 3. The provisions of the municipal environmental policy plan are indicative, except the provisions of the plan of action made compulsory by the municipal council. These provisions are compulsory for the municipality and for the institutions under its authority.

 

§ 3

With the coming into force of each new provincial or regional environmental policy plan the existing municipal environmental policy plan can be revised.


Provisions of the existing municipal environmental policy which conflict with compulsory provisions of the new regional or provincial environmental policy plan lose their validity ipso jure.


Article 2.1.22.

§ 1

The draft plan is drawn up by the Mayor and Aldermen.

 

§ 2

With the drafting of the plan, the municipality involves the public authorities, institutions and organisations under private law it considers most relevant.

 

§ 3

The Flemish Government can enforce specific regulations concerning the consultation and involvement of the bodies, institutions and organisations referred to in § 2.


Article 2.1.23. Translation not available

Article 2.1.23bis. Translation not available

Article 2.1.24.

§ 1

The Flemish Government can grant a subsidy to the municipalities for drawing up a municipal environmental policy plan or yearly environmental programme. It determines conditions and the specific regulations to this end.

 

§ 2

After the appraisal of the voluntary execution of the provisions of this subsection by the municipalities, the Flemish Government can rule that the municipalities must draw up an environmental policy plan from a period it determines.


Article 2.1.24bis. A municipal environmental policy plan as mentioned in article 2.1.21 is drawn up for a first time in 2007. At that time it can also be decided to ratify or update the existing municipal environmental policy plan, possibly linked to an extension of the plan period. In this case a revision procedure as mentioned in article 2.1.23bis suffices.

Subsection 2.
The municipal yearly environment programme


Article 2.1.25.

§ 1

The Mayor and Aldermen can annually establish a yearly environment programme.

 

§ 2

[...]


Article 2.1.26. [...]

Chapter II.
Environmental quality standards


Section 1.
General


Article 2.2.1.

Each draft order entailing the establishment or changing of environmental quality standards is announced by the Flemish Government to the Flemish Council for the Environment and Nature, that provides reasoned opinion within a period of two months of receipt of the draft.


Insofar as necessary because of periods imposed by international obligations, the Flemish Government can shorten the advice period in the last paragraph, while respecting the minimum period determined in article 16, § 2, of the decree of 18 July 2003 on the regulation of strategic advisory committees.


Article 2.2.2. Translation not available

Article 2.2.3.

§ 1

A distinction can be made in the standards referred to in article 2.2.1 between basic environmental quality standards and special environmental quality standards.


Basic environmental quality standards determine the quality requirements to be met by the relative environmental constituent in the whole Flemish Region.
Special environmental quality standards determine the quality requirements to be met by the relative environmental constituent in areas requiring particular protection, either because of their use, or because of the function they serve or must serve.

 

§ 2

If the Flemish Government intends to set particular environmental quality standards for areas with boundaries with neighbouring states or other Regions, they enter into prior consultation with the competent authorities of these states or Regions.

 

§ 3

If for a certain area both basic environmental quality standards and special environmental quality standards are applicable, the most stringent environmental quality standard applies.

 

§ 4

The Flemish Government evaluates and as necessary revises the environmental quality standards at set intervals as well as the areas for which special environmental quality standards have been imposed.


Article 2.2.4.

The environmental quality standards referred to in article 2.2.1 can be established in the form of limit values and guide values.


Limit values may not be exceeded, except in the case of force majeure. Without prejudice to the other provisions of this decree, the regulations imposed determine the measures to be taken by the designated authorities in the event of excess pollution or threatening excess pollution with the objective of protecting the relative interests of the environment.


Guide values determine the environmental quality level that must be reached or maintained to the extent possible.


Limit values and guide values can be imposed separately or in combination with each other.


Article 2.2.5.

§ 1

When in a certain area for a constituent of the environment the actual quality of that constituent is better than required by the prevailing limit or guide value, the necessary measures must be taken to at least maintain this quality.

 

§ 2

The actual quality of a constituent of the environment in a certain area for which a limit or guide value applies is established in accordance with article 2.2.6, §§ 1 and 2.


Article 2.2.6.

§ 1

The Flemish Government appoints the institutions or persons who are charged with the measuring of the quality of the different constituents of the environment for which environmental quality standards have been imposed in accordance with article 2.2.1.

 

§ 2

The Flemish Government establishes specific regulations concerning the location and the frequency of sampling, the methods of sampling and analysis or other measuring methods to be used, the checking of the results obtained against the established standards, and the way in which and the frequency with which reports must be issued concerning these results.

 

§ 3

if it appears from the results referred to in § 2 that the applicable limit or guide values have not been complied with, the Flemish Government initiates an investigation into the causes of such non-compliance.

 

§ 4

Upon simple request the public may dispose of the actual, non-interpreted measurement results. The Flemish Government determines the specific regulations and appoints the authority from which this information can be requested.


Article 2.2.7.

§ 1

If it appears from the investigation referred to in article 2.2.6, § 3 that the exceeding of a limit value is not the consequence of incidental and transient circumstances or that permanent threats to the environment have been caused, the Flemish Government or its appointed administration or institution draws up a recovery programme.

 

§ 2

The recovery programme comprises:

  1. an inventory of all demonstrable sources of pollution or disruption with the indication of their contribution to the pollution or the disruption of the relative area;
  2. the emission reduction that must take place at these sources or other measures that must be taken to suffice with regard to the prevailing environmental quality standards;
  3. the policy instruments to be used to achieve this objective with the indication of the authorities competent for this purpose;
  4. the period within which this restoration must take place.

 

§ 3

The recovery programme is forwarded to the authorities referred to in § 2, 3° for further monitoring. If the cause of the exceeding of a limit is located in a neighbouring state or in another Region, the Flemish Government will consult with the competent authorities of this neighbouring state or Region.

 

§ 4

At set intervals the Flemish Government or its appointed administration or institution evaluates the situation of the implementation of the recovery programme.

 

§ 5

The provisions of this article are not applicable to land rehabilitation as referred to in the decree of 22 February 1995 concerning land rehabilitation.


Section 2.
Special provisions


Article 2.2.8.

§ 1

The Flemish Government establishes special regulations for temporary situations of increased air pollution as a result of particular meteorological conditions.

 

§ 2

These special regulations comprise limit values for air pollution of which their exceeding results in the initiation of a warning phase or alert phase depending on the case.

 

§ 3

During the warning phase the relative authorities and the operators of major sources of pollution are informed of the fact that depending on the further evolution of the situation in the near future, the alert phase can be initiated.

 

§ 4

During the alert phase the operators and authorities competent to this end implement the safety measures determined by the Flemish Government, while observing the severity of the situation with respect to these significant causes of pollution.

 

§ 5

The Flemish Government also determines the way in which the public is informed and the measures with respect to the public that can be taken by the competent authorities.


Title III.
Environmental management within companies


Chapter I.
Objective and definitions


Article 3.1.1. Environmental management within companies has the purpose of striving for durable production patterns and managing and reducing the impact on the environment of a company in all its aspects, with the objective of contributing to the achieving of the objectives described in article 1.2.1 of this decree.

Article 3.1.2. Translation not available

Chapter II.
The environmental coordinator


Article 3.2.1. Translation not available

Article 3.2.2. Translation not available

Article 3.2.3. Translation not available

Article 3.2.4. The operator is obliged to do everything required to enable the environmental coordinator to appropriately carry out his task. He will make supplementary personnel, rooms, material and resources available to the extent required.

Article 3.2.5.

An environmental coordinator who is an employee of the operator may not be disadvantaged as a result of his duties as environmental coordinator.


The appointment and the replacement of an employee environmental coordinator, the relieving of his position and the appointment of a temporary replacement takes place by the operator, without prejudice to that stipulated in article 3.2.3, § 3, after prior agreement from the committee for health, safety and the embellishment of the workplace or, in its the absence, from the trade union representative. In the case of a lasting difference of opinion within the committee or with the trade union representative, the opinion is requested of of the division appointed by the Flemish Government.


Translation not available

Chapter III.
EMAS and the decretal compulsory environmental audit


Article 3.3.1.

§ 1

In view of the application in the Flemish Region of Regulation (EC) No. 1221/2009 of the European Parliament and the Council of 25 November 2009 on the voluntary participation by organisations in a Community eco-management and Audit Scheme (EMAS), repealing Regulation (EC) No. 761/2001 and Commission Decisions 2001/681/EC and 2006/193/EC, the Flemish Government appoints the body which - as far as the Flemish Region is concerned - is charged with the accreditation of independent environmental verifiers and the monitoring of their activities. It informs the European Commission of this.

 

§ 2

The Flemish Government appoints the competent body as described in article 11 of Regulation (EC) No. 1221/2009 of the European Parliament and the Council of 25 November 2009 on the voluntary participation by organisations in a Community eco-management and Audit Scheme (EMAS), repealing Regulation (EC) No. 761/2001 and Commission Decisions 2001/681/EC and 2006/193/EC, »;

 

The competent body is charged with the execution of the tasks assigned to it by virtue of this Regulation.

 

§ 3

The Flemish Government can impose a charge on the applicant of the registration towards the registration costs of a organisation, of which the Flemish Government determines the amount.


Article 3.3.2. Translation not available

Article 3.3.3. Unless specified otherwise, the environmental audit takes place at the operator's expense.The Flemish Government can grant subsidies for the conducting of a decretal compulsory or voluntary environmental audit within the limits of the budget credit. It determines the specific regulations for the granting of subsidies.

Chapter IV.
Compulsory measurements and recording


Article 3.4.1. Translation not available

Article 3.4.2. Translation not available

Article 3.4.3. Translation not available

Chapter V.
The annual environmental report


Article 3.5.1. Translation not available

Article 3.5.2. If the information referred to in article 3.5.1 is based on calculations, the operator forwards the information on which basis the calculation is made, as well as the calculation method used.

Article 3.5.3.

The Flemish Government can determine that the providing of information specified by the environmental regulations to the Flemish Government or to legal persons associated with the Flemish Region takes place by means of an integral annual environmental report.


The Flemish Government determines the content of the integral annual environmental report, as well as the way in which and the period within which it is submitted. It determines to which institution or department the integral annual environmental report is submitted. It can instruct the institution or department to forward the whole or partial report or its whole or partial contents to other institutions or departments. It can introduce the obligation of the drawing up of an integrated annual environmental report in phases.


Chapter VI.
Operating policy to prevent major accidents and to limit their consequences for persons and the environment


Article 3.6.1. [...]

Article 3.6.2. [...]

Chapter VII.
Reporting and warning obligation in the event of accidental emissions and incidents


Article 3.7.1. Translation not available

Chapter VIII.
Supervision and penalties


Article 3.8.1. [...]

Article 3.8.2. [...]

Article 3.8.3. [...]

Title IV.
Environmental impact and safety reporting


Chapter I.
Definitions, procedural provisions, objectives and characteristics of the environmental impact and safety reporting


Section I.
Definitions


Article 4.1.1. Translation not available

Subsection II.
General provisions with respect to the procedures


Article 4.1.2. Translation not available

Article 4.1.3. Translation not available

Subsection III.
Objective and characteristics


Article 4.1.4. Translation not available

Subsection IV.
Relationships between reports


Article 4.1.5. If appropriate, in later reports drawn up in compliance with this title, account is taken of reports drawn up in compliance with this title at previous stages of the decision making, and of the resulting approved reports.

Article 4.1.6. Translation not available

Subsection V.
Continuation of decision making


Article 4.1.7. Translation not available

Section II.
Environmental impact reporting on plans and programmes


Subsection 1.
Scope of action


Subsection 1.
Scope of application


Article 4.2.1.

This chapter shall apply to each plan or programme that forms the framework for the granting of a licence for a project.

This chapter shall also apply to each plan or programme for which, in view of the possible impact on areas, a suitable assessment is required pursuant to article 36-ter, § 3, first paragraph of the decree of 21 October 1997 in regard to the conservation of nature and the natural environment.


Article 4.2.2.

The following plan or programme shall not be included in the scope of application of this decree:

  1. plan or programme that is exclusively destined for national defence;
  2. financial or budget plan and programme;
  3. plan or programme that is co-financed in the framework of the present programming period 2000-2006 with regard to EC Regulation no. 1260/1999 of the Council of 21 June 1999 laying down general provisions on the Structural Funds and the programming periods 2000-2006 and 2000-2007 of EC Regulation no. 1257/1999 of the Council of 17 May 1999 with regard on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF))

Subsection 2.
The obligation to draw up an EIA plan


Article 4.2.3. Translation not available

Subsection 3.
Integration track


Article 4.2.4. Translation not available

Section 2.
Research in the environmental impact assessment


Article 4.2.5. For the research in the environmental impact assessment, mentioned in article 4.2.3, § 2, 2°, and article 4.2.3, § 3, the initiator shall duly consult the authorities that are designated by the Flemish Government and in the manner determined by the Flemish Government. These authorities shall submit their advice in the manner and within the term determined by the Flemish Government.

Article 4.2.6. Translation not available

Article 4.2.7. Translation not available

Section 3.
Notification and scope of the content of the EIA plan


Article 4.2.8. Translation not available

Section 4.
The drafting of the EIA plan


Article 4.2.9.

§ 1.

The EIA Plan shall be drawn up under the responsibility and at the expense of the initiator. The initiator must appeal to a accredited EIA coordinator for this. He shall make all relevant information available to the EIA coordinator. He shall give any cooperation so that the EIA coordinator may fulfil his task properly.

 

§ 2.

The accredited EIA coordinator may have neither interest in the intended plan or programme or the alternatives, nor may he be involved in the later implementation of the plan or programme. He shall carry out his assignment entirely independently and, where appropriate, shall manage a team of assistants that is made entirely or partially available by the initiator.

 

The accredited EIA coordinator shall ensure that the composition of the team of assistants enables the drafting of the EIA plan in accordance with the guidelines manual for the environmental impact assessment and within the scope of the content and special guidelines, mentioned in article 4.2.8, § 6.

 

§ 3.

During the drafting of the EIA plan, the accredited EIA coordinator shall consult with the administration. Where appropriate, the EIA coordinator must observe the additional special written guidelines of the administration, supplementary to the defined content and the special guidelines mentioned in article 4.2.8, § 6.

 

The Flemish Government may specify further conditions with regard to the execution of the task of the accredited EIA coordinator.


Section 5.
The examination and the use of the EIA plan


Article 4.2.10. Translation not available

Article 4.2.11. Translation not available

Section III.
Environmental impact reporting on projects


Subsection I.
Scope


Article 4.3.1. Translation not available

Article 4.3.2. Translation not available

Article 4.3.3. Translation not available

Subsection II.
Notification and definition of content of the proposed EIA project

Translation not available

Article 4.3.4. Translation not available

Article 4.3.5. Translation not available

Subsection III.
Drawing up the EIA project


Article 4.3.6. Translation not available

Article 4.3.7. Translation not available

Subsection IV.
The research and the use of the EIA project


Article 4.3.8. Translation not available

Article 4.3.9. Translation not available

Section IV.
Safety reporting on land-use implementation plans


Article 4.4.1. Translation not available

Article 4.4.2. Translation not available

Article 4.4.3.

The land-use safety report consists of at least following components:

  1. a general part that contains the following information:
    1. a description of the objectives and generalities of the draft land-use implementing plan, includ-ing a map on an adapted scale;
    2. a summary of the motives for the drawing up of the land-use implementing plan;
    3. a description of the alternatives taken into consideration for the draft land-use implementing plan, or an outline of the alternatives that can reasonably be taken into account for specific com-ponents, in each case including the relative considerations of the initiator;
    4. a comparison between the described alternatives and the draft land-use implementing plan or its relevant parts;
  2. A part concerning the influence of the land-use implementing plan on the risks of serious acci-dents involving persons and the environment that contains the following information:
    1. a description of the methods that were used for the determination and the assessment of the risks of major accidents to the population and the environment, including a summary and descrip-tion of the relevant criteria used in the land-use safety report for the demarcation of the risk zo-nes;
    2. if appropriate, information on risks of serious accidents involving persons and the environment related to the existing establishments, and on the safety measures taken and/or which can be ta-ken by existing establishments to prevent serious accidents and to limit their consequences for persons and the environment;
    3. for the draft environmental implementing plan and the described alternatives, a scientific as-sessment of the influence of the developments taken into consideration at existing establishments in the vicinity and/or the possible siting of new establishments on the risks of major accidents to the population and environment including the demarcated risk zones;
    4. on the basis of the assessment referred to in c), recommendations concerning:
      1. the relative town and country planning conditions, including in the light of the requirement to also retain a sufficient distance in the long term between the establishments covered by the agreement of cooperation and certain vulnerable areas referred to in article 24, § 1, last para-graph, of the agreement of cooperation;
      2. supplementary measures which can be taken by existing establishments to avoid serious acci-dents and limit their consequences for persons and the environment in order to not increase risks;
    5. an overall assessment of the draft land-use implementing plan and of the described alternatives within the framework of the policy relating to the prevention of serious accidents and the limiting of their consequences for persons and the environment;
  3. A statement of the difficulties, technical absences or missing knowledge that the initiator and/or the accredited expert may have experienced with the collection and processing of the re-quired information and the consequences of this for the scientific nature of the report;
  4. A non-technical summary of the information provided as described in 1° up to and including 3°;

Article 4.4.4. Translation not available

Article 4.4.5. The Flemish Government can establish specific regulations relating to the compila-tion, investigation and the further use of the land-use safety report.

Section V.
Safety reporting on the operation of installations


Subsection I.
Scope


Article 4.5.1. Translation not available

Subsection II.
Notification and content demarcation of the proposed regional safety report


Article 4.5.2. Translation not available

Article 4.5.3. Translation not available

Article 4.5.4.

If the initiator demonstrates that certain substances present at the establishment or in a part of the installation itself can cause no serious accidents in accordance with the criteria referred to in article 12, § 5, of the agreement of cooperation, the administration can decide that the information in the regional safety report will be restricted to that of importance to the preven-tion of the remaining risks of major accidents and the limitation of their consequences on man and the environment.


If the administration decides to limit the information in the regional environmental report, it sends its decision and all the necessary information immediately and in any event before the li-censing decision to the Commission of the European Community.


Subsection III.
Drawing up of the regional safety report


Article 4.5.5. Translation not available

Article 4.5.6.

Without prejudice to the application of Art. 4.5.4, the regional safety report must contain at least following information to the extent this is available:

  1. Information on the management system and on the organisation of the establishment with a view to the prevention of serious accidents. This information must cover the points contained in article 10 of the agreement of cooperation.
  2. presentation of the environment of the establishment:
    1. a description of the site, including the geographical position, the meteorological, geological and hydrographic information, including historical aspects relevant to safety;
    2. the identification of external sources of danger and vulnerable objects in the environment as well as the information available on these sources;
    3. a description of the zones which could be affected by a serious accident;
  3. description of the plant:
    1. identification of installations and activities inside the establishment which could cause a seri-ous accident;
    2. description of the activities and products from parts of the establishment which are important from a safety perspective;
    3. description of the procedures and operating methods;
    4. description of hazardous substances:
      1. a list of the hazardous substances which consists of:
        • the description of the hazardous substances: chemical name, CAS number, name according to IUPAC Nomenclature;
        • the maximum quantity of the hazardous substances present or that can be present;
      2. physical, chemical, toxicological characteristics and information both on immediate and sub-sequent dangers to persons and the environment;
      3. the physical and chemical behaviour under normal conditions of use or with foreseeable accidents;
  4. Identification and analysis of serious accidents with potential consequences for the surround-ing area (persons and environment) and prevention resources:
    1. detailed description of the scenarios for possible major accidents and the circumstances in which these can occur, including a summary of the incidents that can play an important part in the triggering of these scenarios, irrespective of whether the causes are inside or outside the installation;
    2. a description of the possible causes of serious accidents and of the circumstances in which such a serious accident could occur, accompanied by a description of the preventive action taken;
    3. quantification of the risks, as indicated in the SR guideline manual, associated with scenarios described in point a);
    4. an appraisal of the extent and severity of the consequences of identified serious accidents;
    5. a description of the technical parameters of importance to the safety of the installations and of the equipment intended for the safety of the installations;
  5. Measures for protection and taking action to reduce the consequences of a serious accident:
    1. a description of the technical parameters of importance to the safety of the installations and of the equipment intended for the safety of the installations;
    2. description of the equipment installed in the plant to limit the consequences of major accidents; organisation of alarm and intervention;
    3. description of mobilizable resources, internal or external;
    4. description of the internal emergency plan referred to in article 15 of the agreement of cooperation;
  6. A description and appraisal of the preventive and consequence-limiting measures of a technical and organisational nature to be taken by the initiator, including the period during which that will be completed;
  7. a plan of alternatives that can reasonably be taken into consideration as regards location, site, procedure and quantities of hazardous substances, included the zero alternative and the closure of the installation;
  8. a statement of the difficulties, technical absences or missing knowledge that the initiator and/or the experts may have experienced with the collection and processing of the required in-formation and the consequences of this for the scientific nature of the report;
  9. A non-technical summary of the information provided as described in 1° up to and including 8°;

Subsection IV.
Research and the use of the regional safety report


Article 4.5.7. Translation not available

Article 4.5.8. Translation not available

Section VI.
Common aspects of quality care


Subsection I.
The accreditation of experts and coordinators


Article 4.6.1. Translation not available

Subsection II.
Guideline manuals, appraisal and monitoring


Article 4.6.2. Translation not available

Article 4.6.3. Translation not available

Article 4.6.3bis.

§ 1

The initiator will examine any considerable consequences on the environment resulting from the implementation of plans and programmes, so as to enable early identification of any unforeseen negative effects and initiation of the appropriate remedying measures. 

 

§ 2.

In order to meet the provisions of paragraph 1, the existing monitoring rules may be used where appropriate to avoid overlap.

 

§ 3.

The Flemish Government may define further rules as regards monitoring.


Subsection III.
The Advisory Committee


Article 4.6.4. Translation not available

Section VII.
Supervisory and criminal provisions


Article 4.7.1. [...]

Article 4.7.2. [...]

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Title X.
Agencies


Chapter I.
Introductory provisions


Article 10.1.1. Translation not available

Chapter II.
[Flemish Environment Agency]


Section 1.
Establishment


Article 10.2.1. Translation not available

Section 2.
Mission, tasks and competence


Article 10.2.2. Translation not available

Article 10.2.3. Translation not available

Article 10.2.4.

§ 1

The [Flemish Environment Agency] can conduct all activities that directly or indirectly contribute to the fulfilling of its mission or tasks.

 

§ 2

The [Flemish Environment Agency] can acquire immoveable property it considers useful for the execution of its mission and tasks. It can also dispose of the goods if they are no longer of use.


The Flemish Government can authorise the [Flemish Environment Agency] to make compulsory purchases in cases in which they judge that the obtaining of the property in question is required for the general interest.

 

 

§ 3

The [Flemish Environment Agency] can arrange to have scientific research carried out to the extent useful for the completion of its tasks.

 

§ 4

The [Flemish Environment Agency] can, to the extent desirable, open laboratories to conduct analyses or measurements of air, water or nuisance, or have this done by laboratories accredited by the Flemish Government or according to prevailing international standards. The Flemish Government can appoint a reference laboratory.

 

§ 5

The Flemish Government can establish more specific rules relating to the tasks specified in § § 1 up to and including 3 of article 10.2.3.

 

§ 6

In derogation from the previous paragraphs of the present article, the Flemish Environment Agency shall have authorisation, following Flemish Government approval, to sell the sewage water treatment infrastructure and/or the accompanying grounds to NV Aquafin.


Section 3.
Financial resources


Article 10.2.5. Translation not available

Chapter III.
The Public Waste Agency for the Flemish Region


Section 1.
Establishment


Article 10.3.1. Translation not available

Section 2.
Mission, tasks and competence


Article 10.3.2. The OVAM has the mission of contributing to the achievement of the objectives of environmental policy referred to in article 1.2.1, § 1, by contributing to the sustainable management of material cycles and the achievement of the objectives of the waste materials policy mentioned in Article 4 of the Materials Decree and by carrying out a land rehabilitation policy in accordance with the Land Rehabilitation Decree.

Article 10.3.3. Translation not available

Article 10.3.4.

§ 1

The OVAM can conduct all activities that directly or indirectly contribute to the completion of its mission or tasks.

 

§ 2

The OVAM can acquire the immoveable property it considers useful for the execution of its mission and tasks. It can also dispose of the goods if they are no longer of use.


The Flemish Government can authorise the OVAM to make compulsory purchases in cases in which it judges that the obtaining of the property in question is required for the general interest.

 

§ 3

The OVAM can arrange to have scientific research carried out to the extent this is useful for the execution of its mission or tasks.

 

§ 4.

[...]

 

§ 5

The OVAM may market and sell the products obtained by recovery and regeneration and waste materials suitable for reuse.

 

§ 6.

The Flemish Government can determine further regulations concerning the tasks stated in Article 10.3.3.


Section 3.
Financial resources


Article 10.3.5. Translation not available

Chapter IV.
[...]


Chapter V.
[...]


Chapter VI.
Common provisions


Section 1.
Administration and operation


Article 10.6.1. Translation not available

Section 2.
Consultative committee


Article 10.6.2.

The Flemish Government can set up a consultative committee on the proposal of the head of an agency mentioned in this title.


The Flemish Government can establish more specific rules relating to the task, the composition and the working of the consultative committee and introduce payments for its members.


Section 3.
Relationship with other administration levels, policy areas and parties, co-operation and co-ordination


Article 10.6.3.

Within the framework of their mission and tasks, the agencies referred to in this title contribute in co-operation within the policy area and coordinated by the Flemish Government and the department to:

  1. international, European, supraregional and interregional co-operation and decision making regarding the environment;
  2. stimulating the achievement of the objectives of environmental policy by means of other policy areas and the development of forms of co-operation to this end;
  3. the realisation of forms of co-operation with local authorities;
  4. the realisation of forms of co-operation with non-governmental organisations and interest groups.

Article 10.6.4.

Within the framework of their mission and tasks, the agencies referred to in this title contribute in co-operation within the policy area and coordinated by the Flemish Government and the department to:

  1. the complete conversion and application of international and European environment law and of the agreements of cooperation with the other regions;
  2. the communication strategy and planning for the policy area, including raising public awareness and providing information;
  3. the realisation of a broad social basis of support for their mission and the stimulation of social participation;
  4. coordinated target group policy for the policy area;
  5. the development of optimally integrated instruments for environmental policy;
  6. the determining of the information requirements, the integrated collection of data and information and integrated information management;
  7. the integrated control of the scientific research.

Title XI.
Strategic advice


Chapter I.
Introductory provisions


Article 11.1.1. Definitions

Drafts of orders of the Flemish Government of strategic importance are understood in this decree as: drafts of regulatory or organic administrative orders for the implementation of the content of a decree and considered by the Flemish Government as basic implementing decisions.

Article 11.1.2. Establishment

Translation not available

Chapter II.
Task description


Article 11.2.1. Assignment

§ 1.

The MiNa Council has the following task for the purpose of achieving the objectives and principles drawn up in article 1.2.1 of this decree:

  1. on its own initiative or upon request, provide advice on the basic issues of environmental policy or on policy relating to the environmental aspect of sustainable development;
  2. to contribute to the forming of a policy vision on environmental policy or on policy relating to the environmental aspect of sustainable development;
  3. to monitor and interpret social and policy developments relating to the environment and the environmental aspect of sustainable development at the different policy levels and in the different policy areas;
  4. to provide advice on preliminary drafts of decrees with respect to environmental policy or preliminary drafts of decrees with respect to other policy areas that can have considerable consequences for the environment;
  5. to on its own initiative or on request provide advice on decree proposals with respect to environmental policy or decree proposals with respect to other policy areas that can have considerable consequences for the environment;
  6. on its own initiative or upon request provide advice on draft orders of the Flemish Government with respect to environmental policy
  7. to offer consideration on policy documents submitted to the Flemish Parliament concerning environmental policy and the environmental aspect of sustainable development in Flanders;
  8. on its own initiative or upon request provide advice on drafts agreement of cooperation of strategic importance to policy relating to the environment or the environmental aspect of sustainable development that the Flemish Region wishes to conclude with the State or with other regions, as well as on national plans of strategic importance to environmental policy or policy relating to the environmental aspect of sustainable development;
  9. on its own initiative or upon request provide advice on policy intentions, policy plans and legislation being prepared at European Union level, as well as on international treaties being prepared that are of strategic importance to environmental policy or policy relating to the environmental aspect of sustainable development.

 

§ 2

The Flemish Government must request advice concerning:

  1. the preliminary drafts of decrees referred to in § 1, 4°;
  2. the drafts of orders of the Flemish Government that are of strategic importance as referred to in § 1,6°.

 

§ 3

The Flemish Government can decide not to act upon the advice of the strategic advisory committee referred to in § 2, while explaining such and informing the MiNa Council.

 

§ 4

The advice of the MiNa Council is made public.


Chapter III.
Composition and organisation


Article 11.3.1. Composition

§ 1

The MiNa Council is made up of representatives of the social middle ground active in or involved with environmental policy, of independent experts in the environment or environmental policy, as well as representatives of the cities, municipalities and provinces.

 

§ 2.

The following organisations or groups from the social middle ground are represented in the MiNa Council:

  1. environment associations, including each organisation founded on private initiative and not for profit, that mainly has Flanders as its area of activity, with the key and unambiguous aim of the promotion of environment protection or nature conservation in the sense of article 1.2.1 of this decree, and that develops wide ranging policies to achieve this aim;
  2. social-economic organisations, including each organisation founded on private initiative and not for profit, that mainly has Flanders as its area of activity, with the key and unambiguous aim of defending the interests of employers and employees in the business community or specific economic sectors or branches of industry;
  3.  agricultural organisations, including each organisation founded on private initiative and not for profit, with the exception of the organisations mentioned in 1° and 2° that represent agricultural interests at Flemish level;
  4. organisations relating to open space, including each organisation founded on private initiative and not for profit, with the exception of the organisations mentioned in 1°, 2° and 3°, that represent a specific interest at Flemish level with regard to the economic or recreational use of the environment and nature in open space in Flanders;
  5. socio-cultural organisations representing the interests of consumers and families, including each organisation founded on private initiative and not for profit, with the exception of the environmental associations that at Flemish level represent the interests of consumers, families or other groups in society and therefore have an interest in the good state of the environment or nature in Flanders

 

§ 3

Independent experts are understood as including: academics, environmental experts who work for an independent consultancy or as self-employed, or other persons who on the basis of their experience, commitment or expertise have acquired competence as regards the achievement of the objectives mentioned in article 1.2.1 of this decree.


Article 11.3.2. Composition

Translation not available

Article 11.3.3. Independence

The members of the MiNa Council exercise their duties in complete independence from the Flemish Government.

Chapter IV.
Working


Article 11.4.1. Internal working

Translation not available

Article 11.4.2. Permanent working committees

§ 1

Permanent working committees are set up within the MiNa Council for nature policy, forestry policy, hunting policy, inland fishing policy, nature and environmental education (NME) and sustainable development.

 

§ 2

The Flemish Government can set up other permanent working committees within the MiNa Council for parts or aspects of environmental policy for which specific expertise exists, and where specific target groups or social groups are approached.

 

§ 3

The composition of these permanent working committees takes account of the balanced representation of men and women:

  1. half of the members are selected and appointed by the Flemish Government on the basis of specific expertise and on the basis of specific representativeness relating to the subject worked on by the permanent work committee;
  2. half of the members are selected and appointed by the Flemish Government on the basis of specific expertise and on the basis of a recommendation from the MiNa Council. 
The permanent working committees can never have more than 16 members.

 

§ 4

The MiNa Council delegates to the permanent working committees the preparation of the activities described in article 11.2.1, to the extent the activities are related to the policy that comprises the subject of the task of the work committee.

 

§ 5

The MiNa Council always takes the final decision on the draft advice and other draft documents originating from the permanent working committees.


Article 11.4.3. Financial resources

The MiNa Council obtains the resources for its operation and for the carrying out of its task from:

  1. contributions;
  2. own income.

Article 11.4.4. Co-operation

§ 1

To investigate special issues the MiNa Council can make use of expert third parties, subject to payment or otherwise.

 

§ 2

The MiNa Council can enter into forms of cooperation to complete its tasks including the following:

  1. co-operation with comparable advisory bodies outside the Flemish Region to exchange information and ideas about interregional, national, European and international environmental policy and policy relating to the environmental aspect of sustainable development;
  2. co-operation with other strategic advisory committees of the Flemish Region or the Flemish Community, to advise on policy affairs that cover different policy areas;
  3. co-operation with provincial and municipal environmental advice committees to exchange information and ideas on Flemish, provincial or municipal environmental policy

Title XV.
Environmental Damage


SECTION I.
Introductory provisions


Heading I.
Definitions


Article 15.1.1. Translation not available

Heading II.
Scope


Article 15.1.2.

This title applies to environmental damage caused by any business activity of the type stated in appendix IV, or to the immediate threat that such damage will occur as the result of one of these business activities.

 

This title also applies to damage to protected species and natural habitats caused by any business activities other than those stated in appendix IV, as well as to the immediate threat that such damage will occur as the result of one of those other business activities, provided it can be demonstrated that the operator is at fault or was negligent. 


Heading III.
Relationship to other law


Article 15.1.3. This title applies, without prejudice to more stringent provisions on a business activity that falls within the scope of this title.

Article 15.1.4. This title applies regardless of the prevailing legislation on liability, the laws governing access to the courts, and laws governing conflicts of jurisdiction.

Article 15.1.5. This title does not apply in cases of physical injury, damage to private property or economic loss, and therefore, does not entitle people to compensation for environmental damage or an immediate threat of such damage.

Heading IV.
Exceptions


Article 15.1.6.

§ 1.

This title does not apply to environmental damage, or to the immediate threat that such damage will occur, as the result of:

  1. an act of war, hostilities, civil war or rebellion;
  2. a natural phenomenon that is exceptional, inescapable and unavoidable

 

§ 2.

This title does not apply to activities designed chiefly to defend the country or ensure international security.

 

§ 3.

This title does not apply to activities designed solely to offer protection against natural disasters.

 

§ 4.

This title does not apply to:

  1. damage, caused by an emission, an event or an incident that took place before 30 April 2007;
  2. damage, caused by an emission, an event or an incident that took place on or after 30 April 2007, if the damage is the result of a specific activity that took place and ended before that date;
  3. damage, if it has been more than thirty years since the occurrence of the emission, event or incident that caused the damage.

 

§ 5.

This title does not apply to nuclear risks or environmental damage, or to the immediate threat that such damage will occur, resulting from activities subject to the Treaty establishing the European Atomic Energy Community, or as the result of an incident or activity for which liability or compensation falls within the operating sphere of one of the following international conventions, including future amendments thereof:

  1. the Paris Convention of 29th July 1960 on Third Party Liability in the Field of Nuclear Energy, as well as the Brussels Convention of 31 January 1963 supplementary to the Paris Convention;
  2. the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage;
  3. the Convention on Supplementary Compensation for Nuclear Damage of 12 September 1997;
  4. the Joint Protocol of 21st September 1988 relating to the Application of the Vienna Convention and the Paris Convention;
  5. the Convention relating to Civil Liability in the field of maritime carriage of nuclear material (Brussels, 17 December 1971).

 

§ 6.

This title does not apply to environmental damage, or to the immediate threat that such damage will occur, resulting from an incident in which liability and compensation falls within the operating sphere of one of the following international conventions, including future amendments thereof:

  1. the International Convention of 27 November 1992 on Civil Liability for oil pollution damage;
  2. the International Convention of 27th November 1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage.

 

§ 7.

This title only applies to environmental damage, or to the immediate threat that such damage will occur, if it is the result of diffuse contamination, provided a causal link can be established between the damage and the activities of individual operators.


SECTION II.
Preventive action


Article 15.2.1. If no environmental damage has as yet occurred, but there is an immediate threat that such damage will occur, the operator will immediately put the necessary preventive measures in place.

Article 15.2.2. Operators are required to inform the competent authority as quickly as possible of all relevant aspects of the situation if an immediate threat of environmental damage does not disappear despite the preventive measures put in place by the operator in question.

Article 15.2.3.

At any time, the competent authority can:

  1. oblige the operator to provide information on an immediate threat of environmental damage, or, in cases in which such an immediate threat is suspected;
  2. oblige the operator to put the necessary preventive measures in place;
  3. give the operator instructions to be followed when putting the necessary preventive measures in place.

Article 15.2.4. The Flemish Government can set further rules to assist implementation of the provisions of this section, and in particular, with reference to the content and procedure governing the operator’s obligation to provide information.

SECTION III.
Remediation action


Heading I.
Basic obligations


Article 15.3.1.

When environmental damage has occurred:

  1. the operator informs the competent authority without delay of all relevant aspects of the situation;
  2. the operator puts all restrictive measures in place;
  3. the operator puts the necessary remediation measures in place, in accordance with Articles 15.3.3 up to and including 15.3.11.

Article 15.3.2. Translation not available

Heading II.
Choice and establishment of remediation measures


Article 15.3.3. The operators establish, in accordance with Articles 15.3.11 up to and including 15.3.11, the potential remediation measures and submit them to the competent authority for approval.

Subheading I.
Remediation of damage to natural habitats, protected species and water


Article 15.3.4. When drafting the primary remediation measures, the options of returning natural resources or ecosystem functions to their reference condition in a direct and accelerated manner, or by natural generation, will be considered.

Article 15.3.5. When determining the extent of complementary and compensatory remediation measures, an approach which rests on the equivalence of the resources or functions will be considered first. In an approach of this type, measures which lead to natural resources or ecosystem functions of the same kind, quality and quantity as those affected will be considered first. If this is not possible, alternative natural resources or ecosystem functions will be provided.

Article 15.3.6.

If the approach stated in 15.3.5, based on the equivalence of the natural resources or functions, does not appear possible, alternative valuation techniques will be used.

 

If a valuation of the lost resources or functions is possible, but a valuation of the replacement natural resources or functions is not feasible within a reasonable period of time and at a reasonable cost, the competent authority can opt for remediation measures whose costs correspond with the estimated financial value of the lost natural resources or ecosystem functions.


Article 15.3.7.

Reasonable remediation options are to be assessed using the best available techniques and are to be based on the following criteria:

  1. the effect of each option on human health and safety;
  2. the costs of implementing the various options;
  3. the chances of success of each option;
  4. the degree to which each option will prevent future damage and in which unintentional damage can be avoided during implementation of the option;
  5. the degree to which each option benefits the various components of the relevant natural resources or ecosystem functions in question;
  6. the degree to which each option takes account of relevant social, economic and cultural issues and other relevant local factors;
  7. the time required to effectively remediate the environmental damage;
  8. the degree to which each option brings about the remediation of the location of the environmental damage;
  9. the geographic relationship with the damaged location.

Article 15.3.8. When evaluating the various remediation options, primary remediation measures can be chosen which do not entirely return the damaged water and protected species and natural habitats to their reference condition or return them to their reference condition in a shorter period of time. Such a decision can only be made if the natural resources or ecosystem functions under consideration are compensated by strengthening the complementary and compensatory measures, thereby creating a level of natural resources or ecosystem functions similar to that which originally existed.

Article 15.3.9.

Notwithstanding the provisions of Article 15.3.8, the competent authority can, in accordance with Article 15.8.10, decide that no further remediation measures be taken if:

  1. the remediation measures already put in place guarantee no significant danger of a negative impact on human health, water or protected species and natural habitats;
  2. the cost of the remediation measures to be put in place to achieve the reference condition or a similar level would not be proportional to the environmental benefits thus obtained.

Article 15.3.10. The remediation of damage to water, protected species and natural habitats also implies the removal of every significant risk of the negative impact on human health.

Subheading II.
Remediation of soil damage


Article 15.3.11. The remediation of soil damage is subject to the relevant provisions of the Soil Decree.

Heading III.
Further implementation


Article 15.3.12. The Flemish Government can set further rules to assist implementation of the provisions of this section, and in particular, with reference to the content and procedure governing the operator’s obligation to provide information and the use of the valuation techniques.

SECTION IV.
Cost of prevention and remediation


Heading I.
Obligation of the operator


Article 15.4.1.

The operator bears the cost of measures put in place in accordance with this title, without prejudice to any later application of Articles 15.5.1 up to and including 15.5.6.

 

Measures taken by the competent authority on the grounds of Articles 15.8.4 up to and including 15.8.7 do not affect the operator’s obligations under the terms of this title, or measures with regard to state aid.


Heading II.
Recovery of costs where multiple parties are involved


Article 15.4.2. If one and the same incident of damage or immediate threat of damage is caused by multiple parties, the parties are jointly and severally liable for the costs.

SECTION V.
Defencess


Heading I.
General provisions


Article 15.5.1.

§ 1.

In cases in which the operator is of the opinion that he satisfies the conditions stated in Articles 15.5.3, 15.5.4, 15.5.5 or 15.5.6, he must serve his reasoned standpoint on repayment of the costs incurred to the competent authority by registered post.

 

He shall do this, under penalty of forfeiture, within a period of ninety days after completion of the measures.

 

§ 2.

The competent authority will investigate his reasoned standpoint and assess whether or not the operator satisfies the conditions.

 

The competent authority will inform the operator of its decision within a period of sixty days after receipt of his reasoned standpoint.

 

§ 3.

If the competent authority is of the opinion that the operator’s request for repayment is grounded, the competent authority will take the appropriate measures within the confines of the credit available in the Mina fund.

 

§ 4.

In cases in which the operator invokes the defences stated in Article 15.5.3, he must recoup the costs first of all from the third- party . If it cannot be determined who the third party at fault is, or if he is not solvent to carry all or part of the costs, the operator can recover his costs or the non-collected portion thereof in accordance with the measures stated in § 1, second paragraph.


Article 15.5.2. The provisions of this chapter do not apply to soil damage.

Heading II.
Third party at fault and mandatory government order


Article 15.5.3. An operator is not obliged to bear the costs of measures taken by virtue of this title, if he is able to demonstrate that the environmental damage or the immediate threat that such damage will occur was caused by a third party, despite the fact that appropriate safety measures were taken and insofar as the third party involved is not a legal predecessor, representative, appointee or agent of the operator.

Article 15.5.4. An operator is not obliged to bear the costs of measures taken by virtue of this title, if he is able to demonstrate that the environmental damage, or the immediate threat that such damage will occur, results from the following of a enforcement order or instruction issued by a government authority, unless it is an order or instruction resulting from an emission or incident caused by the activities of the operator himself.

Heading III.
Licence


Article 15.5.5.

The operator does not need to bear the costs of remediation measures taken on the grounds of this title, if he demonstrates that:

  1. he was not at fault or negligent;
  2. the environmental damage was caused by an emission or incident that is expressly permitted on the grounds of, and entirely consistent with the conditions of, a licence granted under or by virtue of prevailing federal and regional provisions and implementing orders that implement the Community legislative measures stated in appendix IV, as applied on the date of the emission or incident.

Heading IV.
State of scientific and technological knowledge


Article 15.5.6.

The operator does not need to bear the costs of remediation measures taken on the grounds of this title, if he demonstrates that:

  1. he was not at fault or negligent;
  2. the environmental damage was caused by emissions or activities or any way in which a product is used during an activity, where the operator is able to prove that, based on the state of scientific and technological knowledge at the time at which they took place, they were not considered harmful.

SECTION VI.
Request for measures


Article 15.6.1.

The following persons can, if they are aware of cases of environmental damage, submit their observations to the competent authority and request that the competent authority take measures under this title:

  1. natural persons and legal persons who suffer from or are in danger of suffering from environmental damage;
  2. natural persons and legal persons who have an interest in the decision-making process regarding the damage;
  3. legal persons, as stated in Article 2 of the Act of 12 January 1993 establishing a right of action for the protection of the environment.

Article 15.6.2. A request for measures is to be accompanied by the relevant information and data supporting the observations submitted in relation to the environmental damage in question.

Article 15.6.3. The competent authority will inform the persons stated in Article 15.6.1 as soon as possible, and in any case, within a period of thirty days of its decision on whether or not to take measures and the reasons for this.

Article 15.6.4. The Flemish Government can set further rules on the submission, processing and notification of a request for measures.

SECTION VII.
Appeal


Article 15.7.1.

§ 1.

The persons stated in Article 15.6.1 can lodge an appeal with the Flemish Government against the decision of the competent authority stated in Article 15.6.3.

 

Operators, with regard to whom the competent authority took preventive measures against in accordance with Article 15.2.3, or remediation measures in the sense of Article 15.3.2, can also lodge an appeal with the Flemish Government against a decision involving this action.

 

§ 2.

The appeal must be served, under penalty of inadmissibility, by registered post with proof of receipt or delivered with proof of receipt to the Flemish Government within thirty days of the date of receipt of the contested decision.

 

The Flemish Government will make a judgement on admissibility within a period of fourteen days of receipt of the appeal.

 

§ 3.

Within a period of ninety days of being declared admissible, the Flemish Government will decide the appeal after examining it against the material and procedural rules of this title.

 

§ 4.

This appeal is non-suspensive

 

§ 5.

If a judgement is not given on the appeal within a period of ninety days, it is considered to be rejected.

 

§ 6.

The Flemish Government can set further rules as to the way in which the appeal stated in this Article is to be submitted, announced and processed.


SECTION VII.
Competent authority


Heading I.
Designation


Article 15.8.1. Translation not available

Heading II.
Tasks


Subheading I.
General tasks


Article 15.8.2. The authority to assess the nature, extent and severity of the damage rests with the competent authority. Soil damage is established in accordance with the relevant provisions of the Soil Decree.

Article 15.8.3.

The authority to identify the operator who caused the damage, or the immediate threat of damage, rests with the competent authority.

 

The indication of the person required to prevent and remediate soil damage at his own expense shall take place in accordance with the relevant provisions of the Soil Decree.


Translation not available

Translation not available

Subheading II.
Preventive action


Article 15.8.4. Translation not available

Article 15.8.5. The competent authority demands that the operator take the preventive measures. If the operator does not fulfil the obligations in Article 15.2.1 and Article 15.2.3, 2° and 3°, or cannot be identified, the competent authority can take the preventive measures itself.

Subheading III.
Remediation action


Article 15.8.6. Translation not available

Article 15.8.7. The competent authority demands that the operator take the restrictive measures and remediation measures. If the operator does not fulfil the obligations in Article 15.3.1 and Article 15.3.2, 2° and 3°, or cannot be identified, the competent authority can take these measures itself.

Article 15.8.8. The authority to determine which remediation measures must be implemented, in accordance with Articles 15.3.3 up to and including 15.3.11, rests with the competent authority.

Subheading IV.
Establishment of remediation measures

Translation not available

Article 15.8.9. If necessary, the competent authority will work with the operator.

Article 15.8.10. Translation not available

Article 15.8.11.

The competent authority invites the persons stated in Article 15.6.1, and, in any case, the persons on whose land the remediation measures and restrictive measures are put in place and the operator in question, to give their comments. The competent authority takes this comments into consideration.

 

The Flemish Government can set further rules as to the method of notification.


Subheading V.
Recuperation of costs


Article 15.8.12. Without prejudice to the application of Articles 15.5.1 up to and including 15.5.6, the competent authority recuperates the costs it incurs in putting measures in place on the grounds of this title from the operator who caused the damage or the immediate threat of damage. The competent authority collects and recovers these costs on behalf of the Mina fund.

Article 15.8.13.

The Flemish Region can recover these costs by means of an enforcement order. The enforcement order will be signed and declared enforceable by the competent authority.

 

The enforcement order is subject to the provisions of part V of the Legal Code on the sequestering of property and means of enforcement.

 

The enforcement order is served on the debtor in the form of a writ of summons.

 

Within a period of thirty days of the date of receipt of the enforcement order, the debtor is entitled to lodge a protest with Flemish Region.

 

This protest suspends the enforcement. The Flemish Region can request that the court remove the suspension of enforcement.


Article 15.8.14.

The Flemish Region can recuperate the costs by, among other things, means of a business surety or another appropriate guarantee.

 

On the grounds of the enforcement order that has been declared enforceable, and to secure recuperation of the costs, the Flemish Region has a general preferential claim on all movable property of the operator and can take a legal mortgage out on all appropriate or registered goods of the operator located or registered in the Flemish Region.

 

This preferential claim takes precedence immediately after the preferential claims stated in Articles 19 and 20 of the Act of 16 December 1851 and in Article 23 of book II of the Commercial Code.

 

The rank of the legal mortgage is determined by the date of registration taken under the enforcement order that has been declared enforceable and served.

 

The mortgage is registered at the request of the competent authority. The registration takes place, notwithstanding protest, dispute or appeal, on production of a copy of the enforcement order, which is certified by the official and makes mention of the service thereof.

 

Article 447, second paragraph of book III of the Commercial Code with regard to compulsory liquidation, bankruptcy and deferment of payment does not apply to the legal mortgage as regards the costs of the measures. The Flemish Government can accept other forms of financial security.


Article 15.8.15. Contrary to Article 15.8.12, the Flemish Government can decide not to pursue recuperation of the costs, if the cost of recuperation is greater than the amount to be recouped or if it is not possible to establish the identity of the operator.

Article 15.8.16. The competent authority is authorised to initiate proceedings against the operator to recuperate the costs relating to all measures taken on the grounds of this title, before the expiry of a period of five years, starting from the date on which the measures are completed in full or the date on which the liable operator is identified, where this date is later.

Article 15.8.17. The Flemish Government can set further rules and procedures to establish the costs and with regard to exercising the recuperation of costs.

Subheading VI.
Processing of requests for measures


Article 15.8.18. The competent authority will consider observations and requests that make it reasonable to assume that environmental damage has occurred. Article 15.8.11 equally applies here.

Article 15.8.19. The competent authority informs the persons stated in Article 15.6.1 as soon as possible about the decision of whether or not to take measures and the reasons for this.

Article 15.8.20. Translation not available

Translation not available

Article 15.8.22. Translation not available

SECTION IX.
Financial securities


Article 15.9.1. The Flemish Government takes measures to encourage the appropriate economic and financial players to develop financial security tools and markets, including financial mechanisms for cases of insolvency, in order to enable operators to make use of financial guarantees to meet their responsibilities as subject to this title.

SECTION X.
Cooperation with Regions, the federal government and other Member States


Article 15.10.1.

If environmental damage has consequences or threatens to have consequences for one or more regions, the federal government, or other Member States of the European Union, the competent authority works with the competent authorities of the other regions, federal government, and other Member States via, among other things, an appropriate exchange of information, in order to ensure that the necessary measures are taken relating to that environmental damage or immediate threat of environmental damage.

 

If environmental damage of the type stated in the first paragraph occurs, the competent authority provides sufficient information for the competent authorities of the other regions, the federal government, or other Member States of the European Union.

 

When the competent authority identifies environmental damage not caused within its borders, it can report this to the competent authorities of the relevant regions, the federal government, or Member States of the European Union; where appropriate, recommendations on the necessary measures can be made to the European Commission and requests can be made for repayment of the cost of the measures that have been taken.

 

This cooperation shall have no negative effect on existing and future forms of cooperation.


SECTION XI.
Report and evaluation


Article 15.11.1.

The competent authority will report to the Flemish Government biennially, as from the date on which this title comes into effect, on the application of this title.

 

This report will contain at least the following information:

  1. the measures taken to encourage the use of financial security tools and the results thereof;
  2. the cases of environmental damage, the type of environmental damage, the dates on which the environmental damage occurred or came to light;
  3. the results of the remediation processes;
  4. the outcomes of the appeal procedures;
  5. the estimate of the extra administrative costs to be borne by the government on an annual basis;
  6. the evaluation of the defence resources stated in Articles 15.5.1 up to and including 15.5.6, particularly with regard to the application of the state of the scientific and technical knowledge;
  7. the non-application of the procedure for requests for measures in cases posing an immediate threat of environmental damage. 
The Flemish Government can set further rules in this matter. “

Title XVI.
Supervision, enforcement and safety measures


Chapter I.
Area of application and definitions


Article 16.1.1. Translation not available

Article 16.1.2. Translation not available

Translation not available

Chapter II.
Policy and organisation


Section I.
Environmental enforcement policy


Article 16.2.1. Translation not available

Article 16.2.2. Translation not available

Article 16.2.3. Translation not available

Article 16.2.4. Translation not available

Article 16.2.5. Translation not available

Section II.
Flemish High Council for Environmental Enforcement

Translation not available

Article 16.2.6. Translation not available

Article 16.2.7. Translation not available

Article 16.2.8. Translation not available

Article 16.2.9. Translation not available

Article 16.2.10. Translation not available

Article 16.2.11. Translation not available

Chapter III.
Supervision


Section I.
Supervisors


Subsection I.
General provisions


Article 16.3.1. Translation not available

Article 16.3.2.

Only persons who have the required qualifications and characteristics to properly fulfil the task of supervision may be appointed as Supervisors. The Flemish Government can stipulate more detailed conditions to be fulfilled by the Supervisors.

 

The Flemish Government may specify further provisions to be satisfied by the supervisors, including among others conditions relating to qualifications.


Article 16.3.3.

The Supervisors perform the task of supervision in an independent and a neutral manner.

 

They must be able to perform their task properly and must be provided with the necessary resources to this end.

 

They should not suffer a disadvantage due to the task that they perform as Supervisor.

 

The Flemish Government can stipulate more detailed rules for this.


Article 16.3.4. Within the limits of the budget appropriations, the Flemish Government can subsidise the appointment of the Supervisors, stated in Article 16.3.1, § 1, 2°, 3°, 4° and 5°, as well as provide assistance for the training and continued education of those Supervisors. The Flemish Government can stipulate more detailed rules for this.

Article 16.3.4bis. Translation not available

Subsection II.
Municipal Supervisors and Inter-municipal Associations and Police Zone Supervisors

Translation not available

Article 16.3.5. Translation not available

Article 16.3.6. Translation not available

Article 16.3.7.

In the absence of the Supervisors appointed pursuant to Article 16.3.1, § 1, 3°, 4° en 5°, ad interim Supervisors may be appointed for a maximum period of one year.

 

The Flemish Government can stipulate more detailed rules for this.


Translation not available

Translation not available

Subsection III.
Regional Supervisors


Article 16.3.8. Translation not available

Section II.
Supervisory tasks


Article 16.3.9. Translation not available

Section III.
Supervision rights


Subsection I.
General provisions


Article 16.3.10.

The Supervisors have the following supervision rights while carrying out their supervisory tasks:

  1. right of access, stated in Article 16.3.12;
  2. right to inspect and take a copy of business data, stated in Article 16.3.13;
  3. right to investigate items, including the right to take samples, measurements, carry out tests and analyses, stated in Article 16.3.14;
  4. right to investigate the means of transport, stated in Article 16.3.17;
  5. right to receive support, stated in Article 16.3.18;
  6. right to make determinations by means of audiovisual resources, stated in Article 16.3.19;
  7. right to receive police assistance, stated in Article 16.3.21.
The Flemish Government determines the supervision rights to be exercised by each category of Supervisors.

Article 16.3.11. Supervisors only use their supervision rights insofar as that is considered reasonably useful for the fulfilment of their supervisory tasks.

Translation not available

Subsection II.
Right of access


Article 16.3.12.

Supervisors may always, without prior notice, freely enter any place and take with them the necessary material. They must respect the internal and external safety procedures while doing this.

 

However, they only have access to occupied rooms if they meet one of the following conditions:

  1. they have prior and written permission from the occupant;
  2. they have been authorised to do this, in advance and in writing, by the judge of the police court. In that case, the Supervisors only have access between 5 a.m. and 9 p.m.

Subsection III.
Right to inspect and take a copy of business data


Article 16.3.13.

With a view to exercising the supervision rights, as referred to in Article 16.3.10, 1° to 5° inclusive, Supervisors may demand access to all business documents and other business data carriers as they consider necessary for carrying out this supervision. To this end, they may ask for those data carriers to be submitted to them at a location they specify.

 

They may ask for a copy of all business documents and other business data carriers to be provided to them free of charge or make a copy themselves. If copying is not possible, they may keep these data carriers or take these with them, against a written proof issued by them, for the period required to complete their task.


Subsection IV.
Right to investigate items


Article 16.3.14. Translation not available

Article 16.3.15.

The sampling, measurements or tests are carried out by the Supervisors or by laboratories or environmental experts certified for that purpose.

 

The analyses are carried out by the Supervisors or by laboratories certified for that purpose.

 

If accreditation is not held for a specific sampling, measurement, test or analysis, this sampling, measurement, test or analysis shall be carried out by the supervisors, or by the accredited laboratory, or in accordance with a reference measurement method or, where none exists, in accordance with a method accepted by the authority appointed to this task by the Flemish Government. 


Article 16.3.16.

The Flemish Government can stipulate more detailed rules related to the taking of samples, measurements, tests and analyses.

 

The Flemish Government can stipulate the rules for the certification of laboratories or environmental experts. They can also stipulate the conditions that must be met when using the certification.


Subsection V.
Right to investigate the means of transport


Article 16.3.17.

Supervisors may investigate or let others investigate the means of transport and the transported goods, as well as demand the right to inspect the legally required documents.

 

They may give orders to the drivers or the escorts. They may order the drivers or escorts to stop their vehicle free of charge and take it to a location they specify free of charge.


Subsection VI.
Right to receive support


Article 16.3.18. Translation not available

Subsection VII.
Right to make determinations by means of audiovisual resources


Article 16.3.19. Translation not available

Subsection VIII.
Right to receive assistance


Article 16.3.20. Everyone must provide all assistance that could be reasonably requested by the Supervisors while exercising their supervision rights within the period of time specified by them.

Article 16.3.21.

Supervisors may demand the assistance of the police while carrying out their supervisory tasks.

 

To make it possible to exercise their supervision right with regard to inspecting and taking a copy of business data, Supervisors may, with the assistance of the police, proceed to opening and making use of or letting others make use of the items if the following conditions are met:

  1. performing the supervisory task requires the exercise of the supervision right;
  2. the exercise of the supervision right is not possible in any other way;
  3. the person who has the use of the items in question does not give their permission for opening or using them.

Section IV.
Prevention and detection of environmental violations and environmental crimes


Subsection I.
Advice


Article 16.3.22. If Supervisors establish that an environmental violation or an environmental crime is imminent, they can give all the advice they deem useful to prevent that from occurring.

Subsection II.
Detection of environmental violations


Article 16.3.23. Translation not available

Translation not available

Subsection III.
Detection of environmental crimes


Article 16.3.24. Translation not available

Translation not available

Article 16.3.25. Translation not available

Article 16.3.26. When an environmental crime is detected, Supervisors may, for the purpose of providing proof, take all protective measures with regard to these issues for a maximum period of seventy-two hours. The Supervisors who have taken such protective measures immediately inform the Public Prosecutor of the court within whose area of jurisdiction the environmental crime has been committed.

Subsection IIIbis.
Identification


Article 16.3.26bis. Translation not available

Subsection IV.
Orders


Article 16.3.27. If, while carrying out their supervisory tasks, the Supervisors detect an environmental violation or environmental crime, they can order the suspected offender and possible other involved parties to take the necessary measures to end this environmental violation or environmental crime, wholly or partially rectify its consequences or prevent any recurrence of this.

Chapter IV.
Administrative enforcement


Section I.
General provisions


Article 16.4.1. The Supervisors retain their supervision rights during the administrative enforcement phase.

Article 16.4.2. Translation not available

Article 16.4.3. Administrative measures or administrative fines may only be imposed for offences that are in violation of the legal regulations that have been stipulated and have come into effect prior to those facts.

Article 16.4.4. In the event of the imposition of administrative measures or administrative fines, the persons stated in Article 16.4.6, as well as the regional entity stated in Article 16.4.25, ensure that there is no obvious disparity between the facts forming the basis of the administrative measures or administrative fines, and the measures or the fines imposed on the basis of those facts.

Section II.
Administrative measures

Translation not available

Subsection I.
Imposition


Article 16.4.5. Translation not available

Article 16.4.6. Translation not available

Article 16.4.7. Translation not available

Translation not available

Article 16.4.8.

In the cases stated in Article 16.4.7, § 1, 1° and 2°, administrative measures have an end date by which they must be carried out. In determining that implementation period, the time reasonably required to carry out the measures is taken into account.

 

If no end date is stipulated, the administrative measures must be carried out as soon as possible.


Translation not available

Article 16.4.9. The Flemish Government can stipulate more detailed rules regarding the form and contents of the administrative measures.

Subsection II.
Procedure for the imposition of administrative measures

Translation not available

Article 16.4.10. Translation not available

Subsection III.
Withdrawal


Article 16.4.11. Translation not available

Article 16.4.12. The administrative measures, as appropriate stated in Article 16.4.7, § 1, 1° or 2°, describe the conditions for the withdrawal of the measures.

Article 16.4.13.

If the conditions stated in the administrative measures are fulfilled, the person who has taken the administrative measures can officially and in a reasoned manner withdraw these measures.

 

Exceptionally, that person can officially and in a reasoned manner withdraw the administrative measures as stated in Article 16.4.7, § 1, 1° or 2° if the conditions imposed in the administrative measures have not been fulfilled. The Flemish Government can stipulate more detailed conditions in this respect. Reasoned and official withdrawal of administrative measures as stated in Article 16.4.7, § 1, 1° or 2° is also possible if changed circumstances require the imposition of new administrative measures.


Article 16.4.14. Translation not available

Article 16.4.15. Translation not available

Subsection IV.
Implementation


Article 16.4.16. Translation not available

Subsection V.
Appeals

Translation not available

Article 16.4.17. Translation not available

Subsection VI.
Request for the imposition of administrative measures


Article 16.4.18. Translation not available

Translation not available

Translation not available

Translation not available

Translation not available

Section III.
The Environmental Enforcement Board

Translation not available

Subsections I.
General provisions


[...].

Article 16.4.19. Translation not available

Translation not available

B.
Composition

Translation not available

Article 16.4.21. Translation not available

Article 16.4.22. Translation not available

C.
Functioning

Translation not available

Article 16.4.23. Translation not available

Article 16.4.24. Translation not available

Section IV.
Administrative fines


Translation not available

Translation not available

Article 16.4.26. Translation not available

Article 16.4.27. Translation not available

Article 16.4.28. Translation not available

Article 16.4.29. Translation not available

Article 16.4.30. Translation not available

Translation not available

Article 16.4.31. Translation not available

Article 16.4.32. Translation not available

Article 16.4.33. Translation not available

Article 16.4.34. Translation not available

Article 16.4.35. Translation not available

Article 16.4.36. Translation not available

Article 16.4.37. Translation not available

Article 16.4.38. Translation not available

Article 16.4.39. Translation not available

Translation not available

Article 16.4.40. Translation not available

Article 16.4.41. Translation not available

Article 16.4.42. Translation not available

Article 16.4.43. Translation not available

Article 16.4.44. Translation not available

Subsection V.
Appeal to the Environmental Enforcement Court

Translation not available

A.
Assistance and representation

Translation not available

Article 16.4.45. Translation not available

B.
Commencement of proceedings

Translation not available

Article 16.4.46. Translation not available

Article 16.4.47. Translation not available

Article 16.4.48. Translation not available

Article 16.4.49. Translation not available

C.
Periods

Translation not available

Article 16.4.50. Translation not available

D.
Composition of the dossier

Translation not available

Article 16.4.51. Translation not available

Article 16.4.52. Translation not available

Article 16.4.53. Translation not available

E.
Investigation

Translation not available

Article 16.4.54. Translation not available

Article 16.4.55. Translation not available

Article 16.4.56. Translation not available

Article 16.4.57. Translation not available

Article 16.4.58. Translation not available

Article 16.4.59. Translation not available

F.
Hearing and judgement

Translation not available

Article 16.4.60. Translation not available

Article 16.4.61. Translation not available

Article 16.4.62. Translation not available

Article 16.4.63. Translation not available

Article 16.4.64. Translation not available

Article 16.4.65. Translation not available

Chapter V.
Collection and recovery of due amounts


Article 16.5.1. Translation not available

Article 16.5.2. Translation not available

Translation not available

Article 16.5.3. Translation not available

Article 16.5.4. The civil servant, entrusted with the collection and recovery, also decides over the reasoned requests for deferment or distribution of payment submitted to him by the offender.

Chapter Vbis.
The tracking of environmental offences


Article 16.5.5. Translation not available

Article 16.5.6. The regional environmental tracking officials must be in possession of the required qualifications and qualities so as to ensure the proper implementation of their tracking powers.

Article 16.5.7. Translation not available

Article 16.5.8.

The regional environmental tracking officials shall carry proof of identity and show this immediately when requested to do so.

 

The Flemish Government shall determine who issues proof of identity, as well as its content and its form.


Article 16.5.9. Translation not available

Article 16.5.10. Translation not available

Article 16.5.11. Translation not available

Article 16.5.12. Translation not available

Chapter VI.
Criminal enforcement


Article 16.6.1. Translation not available

Article 16.6.2. Translation not available

Article 16.6.3. Translation not available

Article 16.6.3bis. Translation not available

Article 16.6.3ter. Translation not available

Article 16.6.3quater. Translation not available

Article 16.6.3quinquies. Translation not available

Article 16.6.3sexies. Translation not available

Article 16.6.3septies. Translation not available

Article 16.6.4.

Whoever dumps waste materials in violation of the provisions of the Decree of 23 December 2011 on the sustainable management of material cycles and waste, is sentenced by the criminal judge to carry out the collection, transport and processing of those waste materials within a stipulated period.

 

While retaining the application of the provisions in the first paragraph, the sentenced person can be obliged to repay the costs for the collection, transport and processing of the waste materials by the municipality, by the Public Waste Agency of the Flemish Region or by the Flemish Region.


Article 16.6.5. After having heard the parties, the judge may, as a safety measure, ban the establishments that have committed the environmental crime from carrying on operations during the periods determined by him.

Article 16.6.6. Translation not available

Article 16.6.7. The authorised official may also request the remedial measures referred to in Article 16.6.6 before the court of first instance judging in civil matters in the legal district in which the environmental offence took place.

Article 16.6.8.

If the person required to carry out the remedial measures thus imposed has carried them out voluntarily, s/he shall notify the authorised official of this by registered letter or recorded delivery.

 

On receiving this notice, the authorised official will immediately verify the situation on site and draw up a report of the findings. The authorised official shall send a copy of this report to the person on whom the remedial measures were imposed.

 

The report of the findings shall serve as proof of remediation and establish the date of remediation.


Article 16.6.9. Translation not available

Article 16.6.10. Translation not available

Chapter VII.
Safety measures


Section I.
Basic provisions


Article 16.7.1. Translation not available

Article 16.7.2.

Safety measures can include, among other things:

  1. the termination or execution of operations, transactions or activities, immediately or within a specific period;
  2. the ban on the use of or the sealing of buildings, installations, machines, equipment, means of transport, containers, sites and all that is located in or on these;
  3. the complete or partial closure of an establishment;
  4. the taking away, storage or disposal of materials liable for this, including waste materials and animals;
  5. the keeping out or abandoning of specific areas, sites, buildings or roads.
Safety measures cannot be withdrawn if the risk in question has not yet been either eliminated, restricted to an acceptable level or stabilised.

Article 16.7.3. The order stipulating safety measures, which oblige one to undertake or abstain from an action, clearly describes the obligations that must be fulfilled.

Article 16.7.4.

Expenses incurred for the enforcement of safety measures are wholly or partially at the expense of the persons responsible for causing the significant risk.

 

The due amounts are collected and recovered in accordance with the provisions of Articles 16.5.1 to 16.5.4 inclusive.


Subsection II.
The procedure for adopting the safety measures with regard to persons responsible for the significant risk


Article 16.7.5.

§ 1.

Safety measures are taken in writing. If an immediate action is required, safety measures may also be verbally taken.

 

§ 2.

When safety measures are taken in writing, this is done through the notification of the order containing the safety measures.

 

§ 3.

If safety measures are verbally taken and the persons responsible for the significant risk are not present, then a written notice is left on-site in a visible place.

 

By means of a written confirmation, the persons responsible for the significant risk are informed of the verbally taken safety measures within five working days after they have been taken. This written confirmation is done by means of a notification.

 

§ 4.

The Flemish Government can stipulate that the written confirmation stated in § 3, second paragraph and the order stated in § 2 be distributed electronically. In that case, it stipulates more detailed conditions for this.

 

§ 5.

The written confirmation stated in § 3, second paragraph, and the order stated in § 2, include at least:

  1. a description of the significant risk that makes it necessary to adopt safety measures;
  2. a description of the safety measures which are necessary and the possible implementation period.

 

§ 6.

The Flemish Government can stipulate which authorities need to be informed regarding the safety measures taken, as well as the way in which this should be done.


Section III.
Withdrawal of safety measures


Article 16.7.6. Translation not available

Article 16.7.7. If the significant risk for which safety measures have been taken is eliminated or restricted to an acceptable level or is stabilised, then the person who has taken the safety measures may officially and in a reasoned manner withdraw these.

Article 16.7.8. Translation not available

Article 16.7.9.

The persons against whom safety measures have been taken are informed of the order for the official or reasonably requested withdrawal of safety measures within a period of ten days. This is done by means of a notification.

 

The period stated in the first paragraph starts on the day on which the order comes into effect.


Appendices.


Appendix I.

The criteria in accordance with article 4.2.3, § 2, 2°, and article 4.2.3, § 3:

 

1. The characteristics of plans and programmes, in particular with regard to:

  1. the extent to which the plan or programme comprises a framework for projects and other activities with respect to the location, nature, importance and conditions for use as well as that con-cerning the allocation of sources of assistance;
  2. the extent to which the plan or programme influences other plans and programmes, including those which are a part of a hierarchical entity;
  3. the relevance of the plan or programme to the integration of environmental considerations, particularly in view of the promotion of sustainable development;
  4. environmental problems relevant to the plan or programme;
  5. the relevance of the plan or programme to the purposes of the environmental legislation of the European Community (for example plans and programmes concerning waste management or water protection). 

2. Characteristics of the effects and the areas which can be influenced, in particular with regard to:

  1. the likelihood, duration, frequency and irreversibility of the effects;
  2. the cumulative nature of the effects;
  3. the cross-border nature of the effects;
  4. the risks to human health or safety or the environment (e.g. due to accidents);
  5. the extent and the environmental range of the effects (geographical area and extent of the population that can be affected);
  6. the value and vulnerability of the area that can be influenced with regard to:
    • special natural characteristics or cultural patrimony;
    • the exceeding of the environmental quality standards or limit values;
    •  intensive land use;
  7. the effects on areas and landscapes recognised by a Member State, by the Community, or in an international context as a protected area

Appendix II. Translation not available

Appendix III. Criteria for determining the negative effects as referred to in Article 15.1.1, 6°

The reference condition will be used to determine whether or not a form of damage exercises a considerable negative impact on reaching or maintaining the optimum state of conservation of species or natural habitats, taking into account the functions resulting from their perceived value and capacity for natural regeneration.

 

Whether or not the reference condition has undergone considerable negative changes, is determined by means of quantifiable data such as:

  1. the number of specimens, the population density or the surface area occupied;
  2. the role of individual specimens or of the damaged surface area in proportion to the species or the conservation of the habitat, the rarity of the species or the habitat as established at the local, regional, national or higher level, including Community level;
  3. the reproductive capability of the species according to the dynamic specific to this species or population, its viability or the natural regeneration capacity of the habitat according to the dynamic specific to the characteristic type of habitat or populations of that species;
  4. the capacity of the species or habitat to recover, once the damage has occurred, within a short period of time and without interventions other than the setting of more stringent protective measures, to a condition which, exclusively on the basis of the dynamic of that species or habitat, leads to a condition considered equivalent to or better than the reference condition. 

Impact on human health is considered as a significant negative impact.

 

The following are not considered as a significant negative impact:

  1. negative fluctuations which are smaller than the normal average fluctuations of a particular species or habitat;
  2. negative fluctuations resulting from natural causes or as the result of interventions relating to the normal management of areas, as established in habitat dossiers or in documents in which the goals are set forth, or as previously exercised by the owners or operators;
  3. damage to species or habitats which are known to recover within a short period of time and without intervention, to the reference condition or to a condition which, exclusively on the basis of the dynamic of the species or habitat, leads to a condition which is considered equivalent to or better than the reference condition. “

Appendix IV. Activities stated in Article 15.1.2

Translation not available

Translation not available

Translation not available

Translation not available