New Soil Decree in Wallonia - First analysis
On 1 March 2018, the Walloon Region has adopted a new soil decree (“Décret relatif à la gestion et à l'assainissement des sols”, the “new Soil Decree”), published in the Belgian State Gazette on 22 March 2018.
Most of the provisions of the new Soil Decree shall enter into force on 1 January 2019 and will repeal and replace the previous soil decree dated 5 December 2008 which never fully entered into force. The provisions related to new soil remediation thresholds for new contamination, which are more flexible, can however already be taken into account since 1 April 2018 and the data already contained in the soil data bank are available to all for information purposes since 9 April 2018.
The text of the new Soil Decree is long and quite technical but it addresses the shortcomings of the 2008 soil decree by allowing a more complete implementation of its principles. In this way, the new Soil Decree introduces a series of changes focused on eight main axes.
First axe: better articulation between the obligations, the person responsible therefor and the derogations
The system currently applicable has been reviewed and harmonised to provide clear provisions with regard to operative events. Four situations are considered as operative events which lead to the performance of a mandatory orientation soil survey:
- applications for a building permit, a single permit or an integrated permit with regard to a plot of land which is indicated as polluted or potentially polluted in the soil data base;
- permits applications for installations or activities which present a risk for the soil;
- an environmental damage; and
- the administration can impose an orientation soil survey in case of serious contamniation indications, as it is already the case.
But the most important modification, but also difference with Brussels and Flanders, is that the transfer of land, no matter whether risk activities took place on that land does, as such, no longer trigger the performance of an orientation soil survey. This modification is to be approved as this burdensome formality often slowed down or even blocked the transaction process. Note that the provision of the 2008 soil decree containing this obligation never entered into force.
Next to the mandatory orientation soil survey, an orientation soil survey can also be performed on a voluntary basis. The new Soil Decree expressly provides that the person voluntary performing the survey may at any time request from the administration to be given discharge.
Second axe: revision of the sanitation objectives in order to control costs and ensure proportionality
Currently, in case of new contamination exceeding a certain threshold value, a soil remediation has to be performed in order to restore the soil at the level of applicable reference values (weighted by the concentrations or, failing that, as close as possible of the level of these values that the best techniques available allow to reach).
The new Soil Decree sets the sanitation objectives at 80% of the threshold value and no longer refers to reference values. Threshold values depends on risk levels for which it is recommended to investigate the contamination of the plot of land in more detail. These redefined sanitation objectives still allow a safety margin equal to 20%, in order to ensure enough protection to human health, ecosystems and groundwater.
In line with the above, with regard to historical contamination, when there is a need to implement remediation works, the works shall restore the soil at the level determined by the administration on proposal of the expert, which now solely aims to remove the serious threat to human health, ecosystems and groundwater and no longer require to reach certain reference values.
Third axe: revision of the standards
A revision of certain standards (as provided in Annex I of the new Soil Decree) has been implemented in order to allow a better management of the files. It establishes a proportionate approach based on a more limited number of obligations triggers.
Fourth axe: securing the demarcation between waste and soil legislations
The purpose of the new Soil Decree is to ensure better coordination of the administrative policies of the soil legislation, on the one hand, and waste legislation, on the other hand, by providing a clearer definition of their scope of application.
Fifth axe: the basics of differentiated land management
Land management is since more than 15 years subject to waste legislation. As soil and waste legislations contain different standards i.e. with regards to land valuation, it leads to major environmental and administrative inconsistencies and to legal uncertainty.
In order to address this problem, a provision related to (differentiated) land management has been added in the new Soil Decree.
Sixth axe: major simplification of the procedures
In addition to some simplifications made within existing procedures, several mechanisms have been inserted to ensure an operational character of the new Soil Decree.
First of all, it is now possible to conclude with the administration, on a voluntary basis, a soil management convention in certain circumstances, aiming to better regulate works planning and to better organise the management of polluted soils in function of the urgency of the intervention and the availability of financial means.
Next to that, the person responsible for the performance of the obligations under the new Soil Decree can, in certain circumstances, opt for an accelerated procedure for soil remediation. As a result, delays in obtaining administrative authorisations can be considerably reduced.
Finally, a new procedure for emergency situations has been inserted, i.e. immediate management measures.
Seventh axe: simplified implementation of the soil data bank
As already mentioned in our former Quarterly, the new Soil Decree implements the soil data base, which is accessible to all since 9 April 2018 and contains for each cadastral parcel the available data related to a potential soil contamination. Although already foreseen in the 2008 soil decree, its implementation has been blocked by a long and burdensome data validation process.
Eighth axe: the confirmation of the mission of public interest carried out by SPAQuE in soil management
The new Soil Decree provides for a specific status and missions for SPAQuE with a view to giving it a particular legal existence apart from waste legislation. In this respect, SPAQuE can be charged by the Government of investigation, remediation, monitoring or management missions of public interest.
This article is part of the Real Estate Quarterly - July 2018