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Impact of new soil remediation policy - International Law Office

International Law Office

Environment & Climate Change - Netherlands

Impact of new soil remediation policy

August 31 2010

Thirty years after the discovery of the Lekkerkerk toxic waste dump (which can be compared to the Love Canal case in the United States), the remediation of contaminated sites in the Netherlands is still a serious source of concern for the authorities. In Lekkerkerk, toxic waste from a paint plant was found under a residential area that had been constructed in the early 1970s. It emerged that the construction site had been used as a landfill for toxic waste from 1969 to 1970 and that various permits had been issued to that end. This resulted in a clean-up operation funded by the central government at a cost of €91 million.

This triggered nationwide attention for contaminated sites; optimistic calculations found that all contaminated sites would have been remediated within approximately 10 years and that the unlawful polluters, mostly large and medium-sized industries, would have to pay for it. However, 30 years later there are still over 20,000 urgent locations in the Netherlands to be remediated. Recently, delegates of the authorities involved concluded the Covenant on Soil Development Policy and Strategy for Urgent Sites. These authorities are the central government, provincial authorities, water authorities and municipalities. The aim is to remediate most of the 20,000 urgent sites before 2015 with a budget of €893 million (approximately $1.1 billion). This can be seen as a major breakthrough in the ongoing efforts to remediate the remains of the industrial development. 'Urgent' means that there is contamination above a certain level (the intervention level) and that there is an immediate danger to public health and/or of the further spread of the contaminated groundwater.

However, not included in the 20,000 sites are:

  • non-urgent sites;
  • sites where remediation will be financed by the business community; and
  • sites contaminated after 1987.

Many sites are located in historic city centres and the contamination took place centuries ago. Adding such sites to the urgent list may depend on whether a new development is planned. Another amendment laid down in the covenant is that €660 million will be directly assigned to local authorities due to their direct interest in the clean-up process.

No funds are being made available to contaminated industrial sites that are in use. The policy line under the Soil Protection Act is that the present owners (or long leaseholders) must remediate at their own expense, regardless of whether they actually contaminated the site. Soil and groundwater contamination is deemed to be the owner's risk. Since 2006, a mitigating factor has been that the clean-up goal is no longer the multifunctional use of the site, but only the intended use, which, in a vast majority of the cases, is industrial use. Furthermore, since 2006, usual practice has been that remediation is required by the authorities only in case of new developments.

The Netherlands is the only EU member state that voted against the European Commission's proposal for a framework directive for soil protection, on the grounds that the proposed directive was a violation of the subsidiarity principle. However, the contents of the directive are fully in line with the Dutch soil policy programme.

For further information on this topic please contact Norbert de Munnik or Jolize Lautenbach at NautaDutilh by telephone (+31 10 224 0000), fax (+31 10 414 8444) or email (Norbert.deMunnik@nautadutilh.com or Jolize.Lautenbach@nautadutilh.com).

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