New soil regulations in the Brussels Region

The new ordinance on the management of polluted soils of the Brussels Capital Region [1], will be applicable from 1 January 2010. Undoubtedly your organisation will be confronted with these new regulations. This could happen in various circumstances such as when negotiating a real estate transaction, when applying for a building or environmental permit, when an accident occurs causing soil pollution, etc.

The aim of the new regulations

The new regulations greatly differ from the 2004 regulations [2], which will be abolished, and aim to achieve the following goals: application of the polluter pays principle, integration of the economic reality, providing for legal compliance, clarifying procedures and improving transparency and access to information. In view of achieving these objectives, the new regulations provide for different procedures and obligations to be applied to the different stages of soil pollution and remediation.

Obligations upheld by the new regulations

The Brussels Environmental Agency (IBGE-BIM) will keep a register of the most relevant available data on soil pollution and will classify all plots of land into five pollution categories and three pollution types.

Based on these classifications, different actions must be undertaken. These obligations vary from different kinds of surveys to the actual clean-up of the pollution. The starting point is the exploratory soil survey [3].

The exploratory soil survey is mandatory in the event of a transfer of property or rights in rem on land where risk activities are carried out (shutting-down, transfer or renewal of a risk activity), the application for a new environmental permit or extension of an existing environmental permit covering a risk activity, the application for an environmental permit and/or building permit, the chance discovery of pollution during excavation or at the event of an accident, an expropriation or a bankruptcy.

The outcome of the exploratory soil survey will determine the next steps to be taken. Depending on the type of pollution, the applicable remediation and clean-up thresholds, soil clean-up measures will be required. Those can range from a detailed soil survey to, possibly, a risk survey, the set up of a risk management project, clean-up or precautionary and safety measures. Hence, the licensed soil clean-up expert plays a crucial role when reporting on the level, nature and origin of pollution, and consequently influences the necessary measures that need to be taken.

The new soil clean-up regulations also require that anyone who discovers a case of soil pollution reports it to the IBGE-BIM.

Most failures to comply with the provisions of the new ordinance are criminally sanctioned.

The polluter pays principle

The polluter pays principle has explicitly been incorporated in the new regulations. The exploratory soil survey and/or soil treatment (detailed soil survey and remediation) have to be performed by the operator of the concerned classified installation, the owner (the holder of the rights in rem) of the concerned land and/or the identified polluter. Furthermore, a strict liability is put in place: the cost of the exploratory soil survey and remediation, and all other related damages, can be recovered from the author of the soil pollution. Obviously, soil clean-up measures can be very costly. Therefore, it is essential to react swiftly and to determine whether you have to comply with these requirements yourself or whether you can impose them on others.

Although implementing decrees are necessary but not yet issued, these soil clean-up regulations will nevertheless enter into force on 1 January 2010. Anticipation and proper guidance will play a major role in helping undertakings when facing the requirements and obligations of the new regulations.