27 June 2016

Dutch real estate and soil contamination

Dutch real estate and soil contamination

In The Netherlands the main legal requirements regarding soil and groundwater contamination and remediation are covered by the Soil Protection Act (Wet bodembescherming; Wbb). The Soil Protection Act covers almost all legal aspects of ground pollution in The Netherlands. Apart from the Soil Protection Act, other regulations are applicable in cases of soil pollution on land, like the Soil Quality Decree (Besluit bodemkwaliteit) and the Soil Quality Regulation (Regeling bodemkwaliteit). These regulations are too detailed to elaborate on in this blog. Please feel free to contact Real estate attorney Mark van Weeren on any issue on real estate in the Netherlands including pollution. Also check: Dutch soil legislation.

Dutch Soil protection regulation

The NRB guidelines therefore serve as a harmonised toolkit to assess the need and feasibility of soil protection measures and facilities in the Netherlands. Despite lacking a legal status, the guidelines do have a powerful steering function, having been confirmed at the highest administrative level. Deviations from the guidelines are possible, as long as clear reasons are provided (such as in the preamble to an environmental permit). Any deviations must be accompanied by proper reasons because, once the NRB guidelines have been converted into conditions in permits or general administrative orders, they give rise to legally binding regulations.

Duty of care of Dutch landowner regarding soil pollution

An important rule regarding liability concerns the duty of care of the owner of a property, which duty of care is applicable since 1987 (Article 13 Wbb). For older contamination in The Netherlands (for historic contamination) there is only a need for remediation if it concerns a severe case of contamination and risks present. The risks are directly related to the use of the soil function of the property. If the use of the soil is within the scope of its existing or future function involves unacceptable environmental risks, measures should be taken as soon as possible. In case the contamination is not severe, it should be determined whether urgent remediation is required. Improving soil quality cannot be imposed by the Dutch authority on the owner of the property on the basis of the rules for soil remediation.

Severe Contamination under Dutch law

A case of contamination is deemed severe if the average concentration of at least one substance measured in a soil volume of at least 25 m³ in the case of soil contamination, or in a pore-saturated soil volume of at least 100 m³ in the case of groundwater contamination, is higher than the so called intervention value. In some cases, there may be a case of severe contamination, even though the intervention value has not been exceeded.

Permits for remediation work

Permits must be obtained before certain activities may be performed. The permits are issued by the competent authorities. For soil policy, this law means that permits must state the extent to which companies must make provisions to protect the environment and the land, for example. A responsibility to return the soil to its original state may also be in force. In most cases, the permits are issued by the municipalities and/or the provinces.

Liability for soil pollution in the Netherlands

According to article 13 Wbb, the responsibility for any sub-surface contamination is with the polluter, or if not available, with the landowner:

“Any person performing acts on or in the soil as referred to in section 6 to 11 inclusive and who is aware of can reasonably suspect that such acts are likely to contaminate or impair the soil, shall be obliged to take any measure that can be reasonably required of him in order to prevent the soil being so contaminated or impaired or, in the event of such contamination or impairment occurring, to take remedial action and to eliminate as much as possible the contamination or the impairment or the direct consequences thereof. If the contamination or impairment is the result of an unusual event, the measures shall be taken forth with.