Soil (contamination) in the Environment Act: local rules more important and changes for applying building materials and soil

The Environment Act deals with the physical living environment and thus also with soil. The entry into force of the Environment Act will therefore also affect the Soil Protection Act and the Soil Quality Decree. There will be more room for local customization, for example, because an environmental plan will have great(er) influence on remediation objectives. Furthermore, there may be (stricter) local requirements for the application of building materials, there will be an information requirement for the application of immobilization and the notification will become a requirement for being allowed to apply a batch of soil.

For now, the schedule is that July 1, 2022 the Environment Act will come into force. Therefore, this year we will inform you about the consequences of the entry into force of the Environment Act. Earlier we wrote articles about the environmental plan, fees under the Environment Act, flexibility and procedures under the Environment Act, the Building Works Decree, the technical construction activity, coordination under the Environment Act, the changed system for an application for a test against the environmental plan, steering possibilities, transitional law and the major consequences of the Environment Act for plan damage, for example because of the new assessment for indirect plan damage and the fixed percentage for the normal social risk.

In this article we discuss the changes to the Soil Protection Act and the Soil Quality Decree. This is because the Environment Act[1] affects projects on (potentially) contaminated soil and changes the rules for setting (local) tailor-made regulations, applying immobilization and reporting batches of soil. Incidentally, it should be noted that the changes in the area of soil are more extensive than those discussed in this article.

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Regulate activities

With the Environment Act, it is intended that the emphasis of soil regulations will be more on regulating activities rather than remediation of contamination. As an explicit goal, it has been stated that the number of soil investigations required should decrease. The Environment Act prescribes two standard approaches: removing the contamination or covering it up. However, customization also remains possible.

Environmental Plan

As for many other aspects, with the entry into force of the Environment Act, the environmental plan and municipality will play a greater role in the area of soil. The environmental plan may provide that, for certain areas and functions, a soil investigation is a submission requirement for an application for an environmental permit. If it turns out that the permissible quality is not met, the environmental plan describes what remediation measure will be taken. Section 4.121 of the Living Environment Activities Decree (hereafter: Bal) describes that this can be covering or excavation (or a combination thereof), but another customized solution can also be decided by the municipality (whether or not on request).

More local customization

From the perspective of the developer and user, the intention to focus on the use of the land rather than the contamination is very much to be welcomed. It remains to be seen, however, whether that goal will be achieved. After all, local governments also get more room for customization. This may also lead to stricter standards than those that currently apply nationally. It will also make things less clear for developers and builders. Indeed, under the Environment Act, different values may start to apply at the local level. Those values may even differ within a municipality (per area).

Application of building materials and soil

The application of building materials and soil is currently regulated in the Soil Quality Decree and Regulations. These regulations will continue to exist, but a significant part of the substantive rules will be transferred to, among others, the Decree on activities in the living environment. With the arrival of the Environment Act, some specific rules on the application of building materials and soil will change.

Application of building materials

Currently, it is not mandatory to inform the competent authority in advance about the application of building materials. This will change. With the Environment Act, the application of MSWI bottom ash and immobilization will be subject to an information obligation (4.1258 Bal). There may also be (stricter) customized rules on the application of building materials. This could result in municipalities introducing restrictions or perhaps even a total ban on the application of building materials. The application of IBC building materials will be banned nationwide.

Notification requirement land

Currently, it is mandatory to report that a batch of soil is applied. That obligation to report remains and is even strengthened. The application of soil without notification will be prohibited. Currently, applying soil without reporting is only an administrative violation (failure to report), but with the Environment Act the application itself will also be prohibited. Incidentally, even under the Environment Act there are exceptions to the notification requirement, particularly for small-scale applications (Art. 4.1266, fourth paragraph Bal).

Points of interest for initiators

With the enactment of the Environment Act, it will become (even) more important for initiators to check in good time whether the environmental plan requires a soil survey for certain functions. After all, a lot of time can be lost if it is discovered only after the application has been submitted that additional information still needs to be obtained. Furthermore, it is important to carefully consider in advance what quality is considered permissible and how it should be achieved, if necessary. This can vary from one municipality to another and even from one area to another.

[1] This article is based on the consolidated text of the Environment Act and related acts as published through November 23, 2021.