Remedial actions organised by the OVAM

Pursuant to the Soil Decree, the party with the obligation to proceed to soil remediation is expected to take the initiative in soil survey and remedial procedures.

In the following specific instances, the OVAM may itself undertake the remediation process (this constitutes an 'ex officio' intervention on the part of the OVAM):

• When neither the owner nor the user of the sites where the contamination originated is under an obligation to start remediation; in such case he is referred to as the "non-culpable owner";
• When the party that is required to carry out soil remediation or other measures is not proceeding, or fails to proceed adequately, not even after receiving notification to that effect;
• When soil contamination presents an immediate and present danger and the OVAM is capable of taking safety measures for the protection of people and the environment.

In most instances where the OVAM acts in an ex officio capacity, it pertains to cases in which the status of non-culpable owner has been conferred. Parties under a remediation obligation can take recourse to this if they are able, in the event of new contamination, to deliver proof that:

• they themselves were not responsible for the soil contamination in question;
• they, at the time when they assumed ownership of or began operations on the land, or received factual control over the terrain, were not aware, or were not expected to be aware of the soil contamination;
• since 1 January 1993, no activity had been established or carried out on the site that was included in the list of activities or facilities capable of causing soil contamination.

In cases of historical soil contamination, they need to demonstrate that:

• they themselves did not cause the contamination;
• they, at the time when they assumed ownership of, or began operations on the site, or received factual control over it, were not aware, or were not expected to be aware, of the contamination;

In cases of historical soil contamination, however, it is possible that the operator, the owner, or the factual user of the land was, in effect, aware, or should have been aware, of the problem. In that event, he may nonetheless qualify for the status of "non-culpable owner" if he can demonstrate that he himself did not cause the contamination and has not or did not carry out his profession, trade, or occupation or operate his business on the terrain in question since the time he acquired it (which must have happened prior to 1 January 1993).

In other cases where no progress is reported, or when the party obligated to carry out remediation activities fails to accomplish its obligations, the OVAM will proceed to a default notification. In the event that such a measure remains without response, the OVAM will draw up a decision to proceed to ex officio soil remediation action.

Safety measures will be implemented by the OVAM in cases where the soil contamination gives rise to serious concerns and may constitute an immediate danger to the inhabitants of the district, neighbouring residents, workers in the workplace, or, for instance, threatens the safe potable water supply. This action may include both precautionary measures and their implementation. In view of the urgent nature of safety measures, they cannot be included in the planning.

In conclusion, the Flemish Government may under extraordinary circumstances give the OVAM the explicit assignment to conduct an ex officio survey and/or conduct soil remediation activities. Recently, this was done in zones for housing development projects, brownfields, or in cases of contamination that have reached widespread proportions.

The planning of these ex officio interventions is being updated on an annual basis, The OVAM establishes every year the list of the soil remediation projects for which the implementation will be ex officio or continued by the OVAM in the course of the coming year. For 2008, this involved 2 million EUR for soil surveys and more than 25 million EUR for the actual remediation works and subsequent follow-up activities.

In the implementation of its ex officio soil remediation activities, the OVAM as contracting authority is subject to the 'Administrative Assignments Act'. This Act determines, depending on the nature of the assignment, how the contracts will be assigned to an accredited soil remediation specialist and a contractor. The steps taken in case of an ex officio intervention are identical to the general staging within the soil remediation process.

The costs incurred as a result of an ex officio intervention can be recovered either from the party that has been negligent in the fulfilment of its obligations as established in the decree, or from the party liable for the contamination.

The implementation of ex officio soil remediation activities requires consultation with all stakeholders. Therefore, extra attention is to be paid to the communication with such parties, namely the neighbouring residents, local authorities, businesses, individuals that have received a notice of default and non-culpable owners. It is important to come to an understanding with all such parties involved in order to be able to guarantee an effective and correct implementation. Safety is an absolute top priority in the execution of the works. As a standard procedure, a safety coordinator is generally appointed.