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4 Eur. Envtl. L. Rev. 232 (1995)
Dutch Soil Protection Act 1994, The

handle is hein.kluwer/eelr0004 and id is 234 raw text is: 232 European Environmental Law Review AugustlSeptember 1995 The Dutch Soil Protection Act 1994 The Dutch Soil Protection Act 1994 Gerrit Betlem, Researcher at the Centre for Enforcement of European Law/NISER, Utrecht University, The Netherlands.' Summary: In 1994 the Dutch legislature adopted an Act of Parliament which further contributes to the establishment of a comprehensive legal regime for the protection of the soil in the Netherlands.2 The 1994 Act amends the 1986 Soil Protection Act by the insertion of provisions on the clean-up of contaminated land. This article will briefly sketch the parliamentary history of the new Act and provide a broad overview of the scheme it contains. Both public and private law liabilities arising under the Act are then discussed. Finally, the application of the general tort rules in the context of unlawful transport of waste will be illustrated with an international case.3 1. Legal History The Parliamentary history of the 1994 Act goes back to 1971 when a Preliminary Bill on Soil Contamination was introduced. Legislative progress was slow until 1980 when the disastrous effects of large scale and continuous dumping of chemicals necessitated the evacuation and partial demolition of an entire residential area in the town of Lekkerkerk. Alongside the introduction of a Bill for a more general Soil Protection Act, the Interim Soil Clean-Up Act was adopted, and came into force in 1983. To a certain extent this legal regime is comparable to the U.S. CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act, or Superfund).5 Regional and central public authorities are required to set up programmes of investigation and clean-up of contaminated sites, while costs can be recovered from responsible parties, albeit not on the basis of strict and retroactive liability. Accordingly, until 1994 two separate Acts dealt with soil protection: the Interim Soil Clean-Up Act mentioned above with respect to restoration measures; and the Soil Protection Act 1986, providing the general administrative law framework, aiming for prevention of pollution. This framework Act largely consists of procedural provisions and envisages the adoption of various Orders in Council providing rules on dumping of substances, research, transport, special protection areas, financing and enforcement, and the establishment of a Technical Commission on Soil Protection. The essence of the 1994 amendment is the incorporation into the Soil Protection Act of clean-up provisions (thereby repealing the Interim Act on this subject). Entry into force of the new regime as a whole is taking place in three stages. On 15 May 1994 those provisions that continue (and modify) the old regime of the Interim Act became law. On 1 January 1995 rules on, inter alia, reporting of intended clean-ups, the Clean-Up Plan, the Clean-Up Order and the Service Centre for Soil Purification, came into force. The third phase requires the enactment of more statutory instruments concerning under-water soil, accelerated pro- ceedings with respect to so-called unusual incidents and the accommodation of clean-up measures in land transactions. The Act also either requires or enables the adoption of subordinate legislation elaborating certain statutory con- cepts such as the need for clean-up, standards of clean-up and soil investigations. Finally, no soil-lawyer will be able to produce reliable advice without consulting numerous policy documents, such as the important Guidelines on Soil Protection (to be raised to the status of statutory Instrument) and reports of task forces. All in all, once the full package of Orders in Council and other statutory instruments is in place, and the stream of court decisions continues, Dutch soil protection law will not leave many questions unregulated. 2. General Overview The Soil Protection Act consists largely of rules of administrative law, in combination with a few provisions on tortious liability. As already mentioned, this framework statute seeks to give comprehensive protection to the environmental component soil. It has adopted, as a basic principle, the preservation, or restoration, of multifunction- ality: enabling future usages of various kinds, irrespective of current use, is the message (Article 1). The principle of multifunctionality is implemented, inter alia, by the formulation of quality standards (albeit pursuant to the Environmental Protection Act not the Soil Protection Act).6 In practice, this drastic starting point is mitigated by the 'A German version of this article has been published in Produkt- und Haftpfllcht internartional 1995. 2Wet bodembescherning, as amended, Staatsblad 1994, 374; Schuurmans & Jordens No. 147-VI, 2nd ed. (Zwolle 1994), M.J. Dresden ed. 3For this article the following literature has been consulted: Hugo G. von Meijenfeldt, De wettelijke regeling van de bodemsanering (Lelystad 1994); C. Lambers, De vernieuwde wet bodembescherm- ing, Tijdschrift voor Milieu en Recht 1995, 70-76; H.AE. Uniken Venema, De nicuwe Wet bodembcscherming, cen helc ondernem- ing, Tijdschrift voor Yennootschappen, Verenigingen en Stichtingen 1995, 6-11; E. Bauw, Publiek- en privaatrechtelijke aansprakelijk- heid in de gewijzigde Wet bodembeseherming, (1994) 43 Ars Aequi, 810-820; J.H.G. van den Broek, De nieuwe bodemsaner- ingsregeling, Tyidschrift voor Milieu en Recht 1993, 410-421; 0. de Savornin Lohman, De aanpak van bodemverontreiniging in de Inbouwwet IBS/WBB, Bouwrecht 1991, 247-254. 4See, for an overview in German, F. Willem Grosheide, Anwendung des Privatrechts durch den Staat zur Rckerstattung von Kosten fr Bodensanierungen (Art. 21 Interimgesetzes Boden- sanierung), in: Meinhard Schrder, ed., Jahrbuch des Umwelt- und Technikrechts 1992 (Heidelberg 1992), 233. 542 United States Code Annotated, para. 9601 et seq. 6See generally F.C.M.A. Michiels, De Wet milieubeheer, 2nd ed. (Zwolle 1994), Chapter 7. Copyright © 2007 by Kluwer Law International. All rights reserved. All rights reserved. No claim asserted to original government works.

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