With the new Walloon Decree of 1 March 2018 regarding soil management and soil remediation, a decade of inactivity in Walloon soil legislation is coming to an end. The former decree of 5 December 2008 regarding soil management largely remained a dead letter. For example, the soil database was never created, and the provision listing the events giving rise to the execution of soil obligations never entered into force. New legislation has now been defined, and this will enter into force on 1 January 2019.
Events giving rise to soil obligations
The execution of soil obligations, including the execution of an exploratory soil study and, if necessary, the conducting of a descriptive soil study and further remediation or other measures, is imposed by the decree in the following instances:
- in response to a building permit, a single permit or an integrated permit for certain acts, on land marked as polluted or potentially polluted in the soil database. The soil database is accessible to all;
- upon the termination of an environmental permit, a once-only permit or an integrated permit for an installation or activity entailing a risk for the soil;
- in case of environmental damage impacting the soil; and
- after a decision by the administration in case of serious indications of soil pollution.
Transfers of land are not affected
In the new decree, a transfer of land is not included as an event giving rise to soil obligations. The fact that a transfer of land does not result in soil obligations has been deemed necessary to avoid real estate transactions being slowed down or frozen. Obviously this does not prevent the parties from nevertheless conducting an exploratory soil study, in order to be informed about the state of the soil of the plot concerned.
Prior to a transfer of land – and, incidentally, prior to a transfer of an environmental permit – a soil attestation or "a certified extract of the soil database" must be applied for and submitted to the acquirer. This soil attestation may not be older than one year. The content of the soil attestation must also be copied in the private agreement or in the authentic deed.
If the attestation describes the plot of land as polluted or potentially polluted, and provided that the administration has imposed soil measures on the transferor, the agreement or act must indicate whether or not the acquirer of the plot of land will take over the soil obligations. A takeover must be notified to the administration, which can then demand a guarantee for the execution of the soil obligations.
Revision of the threshold values
The threshold values which, when exceeded, give rise to the obligation to conduct a descriptive soil study are increased for the commercial, industrial and recreational categories of use. The execution of a descriptive soil study will therefore be required in fewer cases than under the former decree. This revision of the threshold values would have an impact on around 150,000 ha within the Walloon Region, which would represent 61% of the built land.
The threshold values for the other categories of use remain unchanged.
Revision of the remediation objectives
The new soil decree also eases the values for decontamination.
Under the former soil decree, new soil pollution had to be remedied up to the point where the reference values were obtained. These reference values correspond to concentrations of pollutants that can be expected in the soil without human interference. For new pollution, the new decree only demands remediation to 80% of the threshold value, or to the soil concentration (reference value) if this is higher than 80% of the threshold value.
For historic pollution, which is pollution caused by an event prior to 30 April 2007, the former soil decree demanded remediation to a value set by the administration, which would take account of the reference values and which would at least prevent a serious threat to public health and the environment. Under the new decree, the referral to the reference values has been omitted. Henceforth, the remediation must only prevent a serious threat to public health and the environment.
By no longer demanding that remediation should achieve restoration of the original state, the legislator wanted to avoid remediation representing such a high cost that this would lead to a limitation on economic development within the Walloon Region.