Dishing the dirt

Belgium has been a federal state comprising communities and regions since 1993 when a number of responsibilities, including environmental matters, were devolved to the regions. This means that all three regions in Belgium (Flemish, Walloon and Brussels-Capital) are able to have their own set of rules on the contentious issue of soil pollution.

Different authorities adopt different rules as well as different priorities in implementing them. While, for example, the Flemish soil legislation has been in force for over 10 years, the Brussels rules only came into force in 2005 and the Walloon rules are not even applicable yet.

At a time when the European Commission is proposing an EU-wide framework regarding soil protection, it is interesting to see even in the space of one country considerable differences in soil strategy arise across the regions.

Regional differences

Soil pollution has been legislated against in Flanders since as early as 1996 by the decree of 22 February 1995. This decree will be replaced in 2008 by the revised Soil Clean-up and Protection Decree of 27 October 2006. The Flemish government also approved a new implementing order in December 2007.

Notwithstanding some novelties (such as the implementation of the EU environmental liability directive, see page 25), the new decree does not provide for a sea change in soil protection policy and uses the same basic principles as the 1995 decree.

A duty to decontaminate can essentially be triggered by two events: either when land is being transferred (in the case of it being purchased, for example), or when a soil examination proves the existence of pollution that requires decontamination.

One of the main aims of the Flemish soil legislation has always been to provide protection to the person who acquires land that might be polluted. Therefore obligations have to be complied with by the transferor (or vendor) of the land. The notion of ‘transfer of land’ is defined in the decree and determines which transactions fall under the formal procedure of the decree. All the rights in rem constitute a transfer of land. Leases, however, no longer qualify as transfer of land in the new decree. Also, the transfer of shares is not a transfer of land.

The Brussels ordinance concerning soil pollution is fairly young and dates back to 2004. It entered fully into force on 20 January 2005, when the government adopted the list with the so-called risk activities.

The obligations in the ordinance are largely similar to those laid down in the Flemish legislation. A formal procedure has to be completed before the actual clean-up works can start. The formal procedure starts with an orientating examination, then a risk study has to be carried out. If necessary it will be followed by the submission of a soil decontamination plan, after which the clean-up works can be done.

Contrary to the regulatory framework in Flanders, no distinction is made between new and historic pollution. Both types of soil pollution are dealt with in the same way.

A person’s decontamination duty will differ according to whether or not they caused the soil pollution. If they did not pollute, they only have to take measures to manage the pollution. However, if the person did cause the pollution they will have to carry out clean-up works and remove all the pollution.

Contrary to the rules in the Flemish and Walloon regions, the ordinance does not provide for exemptions from clean-up obligations. There is also no possibility of appealing against the decision of the Brussels environmental agency.

In the Walloon region, the management and clean-up of contaminated land is governed by the decree of 1 April 2004. However, this decree is not yet in force as the Walloon government has, until now, not approved the necessary implementing orders. The Walloon government is actually considering replacing this dormant decree with a new one in the near future.

This regulatory gap implies that no specific legislation protects the rights of persons who acquire land. As a consequence, parties make contractual arrangements as to the consequences of soil pollution: who will take appropriate measures and who will finally bear the costs? Such contractual arrangements should be watertight given that it is quite conceivable that the parties are, in fact, dealing polluted land as Belgium’s heavy metal industry was located in the Walloon region.

New legislation

The Flemish region has already had an efficient soil pollution framework in place for more than 10 years, aimed at preventing new pollution while balancing private and public interests. The new 2008 legislation builds on these years of experience and has fine-tuned the rules for the 21st century.

The Brussels-Capital region also enforces soil legislation, but persons are confronted with legal uncertainty as several legal provisions and obligations remain unclear. The Walloon soil pollution rules came to a dead stop as the government never took the necessary action to enforce them. This inaction, however, might change in the near future when adopting a whole new scheme.

These regional differences in soil protection in Belgium (ranging from ‘high’ to ‘medium’ to ‘no’ protection) can also be found at EU level as each member state has its own – or no – approach to soil protection.
Dominique Devos is a litigation and regulatory partner at DLA Piper in Brussels