Actualia soil in the Flemish Region!

At the beginning of 2013, certain changes were made to the Soil Decree and Flemish Soil Regulation (‘Vlarebo’) relating to the transfer and the co-financing of soil remediation works. In addition, a new ‘moment’ was introduced to perform an orientation soil survey of ‘risk land’.

Administrative simplification prior to the transfer: unilateral undertaking and financial security

Prior to the transfer of risk land requiring remediation, the transferor (or the transferee in the case of accelerated transfer – ‘versnelde overdracht’) needs to provide – in addition to drawing up a soil remediation project – 2 other documents:

  • a unilateral undertaking to carry out the soil remediation and possible after care measures
  • a financial security equal to the costs of remediation.

From now on, the standard texts for the undertaking and the security (pledged bank account, bank guarantee, insurance bond) are available online (www.ovam.be/fz), so that the transferor (or transferee) can, himself, complete and sign these documents before submitting them to the OVAM. No countersignature by OVAM is required.

The authority of the signer of the unilateral undertaking to represent an applicant company must be demonstrated by means of the articles of the company and corresponding publications. The authority can also be provided by declaration of a public notary who has already checked the powers for the purposes of the transfer.

The financial security no longer includes the amount or the duration of the security, but reference will be made to the letters of OVAM in which the amount of the soil remediation works and the duration is mentioned.

As a result of this administrative simplification, OVAM’s role is reduced, resulting in considerable time savings.

Entry into force: 1 January 2013

New ‘moment’ for a soil survey prior to starting certain risk activities

A new article 33bis has been inserted into the Soil Decree in the framework of the implementation of the EU Directive relating to industrial emissions.

Prior to an application for an environmental permit for certain risk activities, the operator must submit an orientation soil survey to OVAM.

Companies which, at the start of their operations, had no such obligation, but to which the new article 33bis now applies, still have to carry out a soil survey within a time schedule (before 7 January 2014 or 7 July 2015) which has yet to be determined by the Flemish Government. If the permit application dates from before 7 January 2013, but the operations have not commenced, a soil survey is required prior to the start-up of the operations.

Entry into force of article 33bis Soil Decree: 7 January 2013. However, as long as the Flemish Government has not established the list of risk activities which will fall within the scope of the new article 33bis of the Soil Decree, that article is not enforceable.

Co-financing of remediation of historical soil pollution

The co-financing of soil remediation has, at last, been formulated and approved by the Flemish Government in the Flemish Soil Regulation (‘Vlarebo’)!

Companies and private persons who are required to carry out remedial works to historical soil pollution, may submit an application for co-financing to OVAM if they comply with the 3 following conditions:

  • the remedial works relate to historical soil pollution
  • the owner has obtained the ownership before 1 June 2008
  • the conformity attestation of the soil remediation project dates from after 1 June 2008.

The application for co-financing can be submitted after the soil remediation project has been introduced with or approved by OVAM, but before the remedial works start. The financial contribution will be defined in accordance with the invoices and paid in 3 instalments. The financial contribution of OVAM will amount to a maximum of 50% of the remediatial costs with a cap of € 200.000 over a period of 3 years.

The Flemish Government approved the co-financing on 15 March 2013. Entry into force expected: 1 September 2013.