When applying a construction material with a product certificate, it is very important to check which application that product certificate refers to. If the product certificate relates to another application, precautions may have to be taken that are not prescribed in the product certificate. This is the responsibility of the user.
It is common for earthwork, such as road embankment, to use residual products such as steel slag and immobilizer. Those products are called building materials in that context. Applying or keeping building materials in a work is called applying in that context. The Soil Quality Decree regulates the application of those building materials because the application of contaminated residual products could affect the soil environment. Therefore, such building materials must meet a certain quality. This is guaranteed with an environmental health declaration.
In addition, a duty of care applies to the application of building materials - and, for that matter, to other soil interventions. This duty of care means that anyone who performs activities on or in the soil is obliged to take all measures that can be demanded of him to prevent or minimize soil contamination or damage. Compliance with the duty of care can take various forms. It is very important for applicators to be clear about what can be expected of them based on the duty of care. A recent case at the Administrative Law Division of the Council of State (hereafter: the Division) shows that it is also important to check very carefully whether only the product certificate can be used as a basis.
Steel slag for temporary road
The Division ruled on the application of steel slag for a temporary dike and rampart for the storage and application of dredged material and soil through a decision of September 23, 2020 (ECLI:NL:RVS:2020:2271). That temporary dike and walling are also used as an unpaved road for the trucks that brought in dredged material.
The building material used, in this case LD steel slag, is supplied with a product certificate. In that product certificate, application conditions are described, which also include a requirement to install a rainwater drainage system. The applicator did not implement that requirement because that application condition would not cover temporary applications. It is also not in dispute that that condition does not refer to a temporary application. Otherwise, the applicator did comply with the application condition.
The competent authority - in this case the Municipal Executive - then proceeds to enforce. The board imposes the charge that the duty of care has not been met. As remedial measures, it prescribes that the duty of care can still be met by bringing the application of the building material into line with the application condition about the rainwater drainage system, which in itself does not apply.
The applicant argues to the Division that it has not been established that the duty of care has not been met, because the relevant application conditions of the product certificate have been met. The condition regarding the roof drainage system has not been met, but that condition does not relate to a temporary application.
Scope of product certificate
The Division notes that the product certificate focuses exclusively on the protection of the soil in a permanent large-scale application as a sand replacement. The fact that no specific conditions have been included for a temporary application does not mean that the supplier did not consider protective measures necessary then. Because the product certificate does not cover the temporary application of steel slag, the competent authority may require, based on the duty of care of the applicator, that adequate provisions, such as the construction of a rainwater drainage system, be taken.
Precautions in addition to product certificate
This case shows that it is possible for enforcement action to be taken even though the relevant conditions of application are met. In fact, those application conditions may not relate to this specific application. In that case, the duty of care may require other measures in addition to the application conditions. It is therefore very important for applicators to carefully check which application conditions are relevant.
