Voluntary and mandatory soil surveys and remediations

In 2008, the decree of 27 Octobre 2006 on soil came into force in Flanders. This Soil Decree succeeds the Soil Remediation Decree of 22 February 1995. The Soil Decree is an important tool for the Flemish government , not only to counter the contamination of land, but also, and more specifically, to prevent such contamination. Ultimately, prevention remains preferable to remediation.

The soil remediation procedure includes 5 major steps:

• The exploratory soil survey
• The descriptive soil survey
• The soil remediation project
• The soil remediation works
• Follow-up
• Soil remediation standards and site-specific risk assessment

Execution

The various steps in the soil remediation procedure need to be carried out under the direction of an independent soil expert accredited by the OVAM, the so-called soil remediation expert. This expert must for the execution of his tasks follow the standard procedures and codes of good practice as established by the OVAM. Likewise, sampling and analyses must be carried out by an accredited agency.

Before concluding an agreement regarding the transfer of land, the transferor must request a soil certificate from the OVAM.

By transfer of land is meant, amongst others:

• the transfer inter vivos of the property title;
• the assumption or termination;
• the merger of legal persons, at least one of which will be owner of the land;
• the splitting of a legal person who is owner of the land.

In the event of a transfer of land on which an activity is or was carried out or a facility is or was established that is included in the 'list', it will also be necessary to conduct an exploratory soil investigation in advance of the transfer.
In the event that the exploratory soil investigation indicates that a descriptive soil investigation is called for, the OVAM will inform the transferor that such a descriptive soil investigation is needed.
If from the descriptive soil investigation it appears that a soil remediation project needs to be instituted, the transfer may only take place on condition that the transferor:

• has drawn up a soil remediation project in conformity with the legislation;
• has committed himself vis-à-vis the OVAM to carry out soil remediation works;
• has posted financial securities.

All of the above-mentioned obligations may likewise be assumed by the buyer of the land or by a party with legal title to proceed to the execution of transfer.