Guidelines for Part 17.2 of the Dutch Environmental Management Act: measures in the event of environmental damage or its imminent threat (English translation of original version dated 8 January 2008)

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Introduction This document provides the guidelines for the new Part 17.2 of the Dutch Environmental Management Act (Wm), “measures in the event of environmental damage or its imminent threat”. The revised Part 17.2 of the Wm requires you as a competent authority to order action be taken or take action yourself to prevent impending environmental damage, and to limit and remedy such damage that has already occurred. You have an obligation to recover the costs incurred from the operator that caused the damage. This is a practical application of the “polluter pays” principle. One of the objectives of the new regulations is to encourage business operators to keep the risk of environmental damage as low as possible, meaning that the regulations are also intended to have a preventive effect. A special feature of the new regulations is that government also has an obligation to recover the costs of preventing and remedying environmental damage from the operator concerned. These new Sections in the Wm are the implementation in Dutch legislation of the EC’s Environmental Liability Directive1. This is an English translation of the original version of the guidelines, no changes having been made to it since initial publication. Although the regulations in Part 17.2 of the Environmental Management Act applying to environmental liability have not been amended, this might not be true of some of the regulations to which these guidelines refer. Please accept our apologies for any confusion. Summary If you discover damage, or the threat of damage, to soil, water or nature areas, the action plan can be of assistance. The plan sets out the steps that you as a competent authority can and must do in such cases. It specifies what you have to do if the damage falls within the scope of Part 17.2 of the Wm. You may also apply the measures even if Part 17.2 does not apply.

1 Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (Official Journal, 30 April 2004).

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By working through the module “Does Part 17.2 of the Wm apply?”, you can determine whether this Part covers the environmental damage concerned, or the damage threatening to occur. Chapters 1 to 8 of these guidelines provide background information on various subjects that the module deals with in depth. Links to these chapters will appear as you follow the action plan. Although these guidelines have been prepared with great care, they cannot be considered as conferring any rights. They do not have the status of regulations. The wording of the Wm prevails.

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Contents Action plan for competent authorities when applying Part 17.2 of the Environmental Management Act Internet program “Does Part 17.2 of the Wm apply? Chapter 1: Scope of Part 17.2 of the Wm Chapter 2: Damage thresholds for soil, water and nature Chapter 3: Procedures and legal protection Chapter 4: Cost recovery Chapter 5: Notification of environmental damage Chapter 6 Competent authority, coordination and the powers of demand of the Minister of Housing, Spatial Planning and the Environment Chapter 8: Relationship to other regulations Appendixes:

• A. Links: o The text of the parliamentary bill for Part 17.2 of the Wm o Explanatory memorandum to the draft parliamentary bill o Environmental Liability Directive

• B. Procedures for rulings in the action plan (appendix to chapter 3)

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Action plan for competent authorities when applying Part 17.2 of the Wm Introduction This action plans presents the steps in a logical order that you as a competent authority have to carry out pursuant to Part 17.2 of the Wm. It is not obligatory to keep to this order, as it might be more practical in some cases to follow a different order. Step 11 (notification of environmental damage) might also be appropriate somewhere between steps 3 and 10. As a competent authority, you are required to apply the provisions of Part 17.2 if they are applicable. You may apply your usual enforcement and other powers in addition, but only insofar as they do not conflict with Part 17.2 Wm2. Chapter 7 provides more information on enforcement (administrative as well as criminal). This action plan specifies the steps you have to follow as a competent authority. However, the entity carrying out the activity that causes the environmental damage (or the imminent threat of such damage) (called the “perpetrator” in the rest of this document) must also take action: provide information and take steps to prevent, limit and remedy the damage. The action plan is divided into the following parts: I. Detection of environmental damage (or its threat) - Step 1: Correct competent authority and coordination Once environmental damage (or its threat) has been identified or notified, you must first determine who the competent authority is according to Part 17.2 of the Wm. If you are the competent authority, you must immediately report the situation to all administrative bodies who might be involved. It is possible that you are only one of the administrative bodies with the status of competent authority. If this is the case, the various administrative bodies concerned have to agree on which one is to take responsibility for the coordination. - Step 2: Collect information You must next collect information on the nature, extent and perpetrator of the environmental damage. You must also proactively share this information with all administrative bodies that might be involved. - Step 3: Determine if Part 17.2 of the Wm applies At this point, you have to determine whether the damage actually falls within the scope of Part 17.2 of the Wm. - Step 4: Ruling on requests for measures to be taken If you have received a request to take measures, you will have to make a decision on it. 2 Section 17.9(7) of the Dutch Environmental Management Act (Wm).

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If the environmental damage falls within the scope of Part 17.2 of the Wm and you are the competent authority – or the competent authority responsible for taking action where coordination is involved – carry on with part II of the plan. II. Measures to prevent and limit environmental damage - Step 5: Verification of measures already taken You have to verify the measures that have already been taken. - Step 6: Take further measures to prevent or limit environmental damage You must next order the perpetrator to take further measures to prevent and limit the environmental damage. You can also take such measures yourself, in addition or instead. - Step 7: Informing duty of the competent authority You have to inform certain bodies about the situation, insofar as you have not already done so. NB As the competent authority, you always have the right to take measures yourself to prevent and limit environmental damage, if such measures are necessary. For this, you do not have to take into consideration whether the perpetrator has taken any measures or which ones. III. Remedial measures - Step 8: Approval of proposed remedial measures You have to judge whether the remedial measures the perpetrator proposes are appropriate. - Step 9: Taking remedial measures yourself You have to decide whether to take remedial measures yourself. Such a situation arises if, for example, you cannot establish who the perpetrator is. NB: As the competent authority, you always have the right to take remedial measures yourself, if such measures are necessary. For this, you do not have to take into consideration whether the perpetrator has taken any measures or which ones. IV. Cost recovery - Step 10: Cost recovery You have an obligation to recover the costs of the measures from the perpetrator (including additional costs). V. Notification and registration - Step 11: Reporting You must notify the Minister of Housing, Spatial Planning and the Environment about every instance of environmental damage and liability, including the provision of specified data.

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The steps of the action plan are detailed below.

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I. Detection of environmental damage (or the threat of such damage) Step 1: Correct competent authority and coordination (Sections 17.9(5) and 17.15(2) of the Wm) Correct competent authority If Part 17.2 of the Wm applies, verify that you are the correct competent body according to its provisions. (Chapter 6 provides more information on this point). If you are not the correct competent body, you have to pass on all relevant information received to the correct one3. In addition, if you received the information as part of a notification or request for measures to be taken, you must inform the person making the notification or request that you have passed on the information. Coordination If multiple administrative bodies are designated as competent authorities, or another administrative body has been granted relevant powers, all the competent administrative authorities will have to hold timely group consultations to ensure the effective coordination of decisions and measures. The competent administrative bodies have to agree among themselves which of them is to take responsibility for the coordination4. The competent authority (administrative body) responsible for the coordination manages all the activities under Part 17.2 of the Wm. If the competent bodies cannot organise the division of tasks themselves, they jointly find a solution, for example, through the intermediation of another administrative body (such as the Queen's Commissioner). Should they fail to find a solution in time, the Minister of Housing, Spatial Planning and the Environment can assign the various tasks5. If poor coordination among the competent bodies results in conflicting decisions, they are exposed to the risk of objection and appeal procedures, as well as claims for damages. A competent body in this context can always take the initiative to bring the coordination or other issues to the attention of the Minister of Housing, Spatial Planning and the Environment. Chapter 6 includes an extensive discussion of the terms “competent authority” and “coordination”. Step 2: Collect information (Sections 17.10(1), 17.12(2), 17.13(2) and 17.14(1) of the Wm) 3 Section 2:3(1) of the General Administrative Law Act (Awb). 4 Section 17.9(5) of the Wm. 5 Section 17.15(2) of the Wm.

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Collection of information following notification by the perpetrator When the perpetrator detects environmental damage (or the threat of such damage), it must notify the competent authority accordingly as soon as possible, providing information on all relevant aspects of the situation. The perpetrator must provide the following details in every case6: a. the cause of the incident and the circumstances in which it occurred; b. the substances discharged as a result of the incident, including their characteristics; c. other information relevant for assessing the nature and seriousness of the impact of

the incident on the environment; d. the measures taken or being considered for preventing, limiting or reversing the

impact of the incident; e. the measures being considered for preventing a recurrence of such incidents. As a competent authority, you verify that all the above information is provided in full. If this is not so, you can order the perpetrator to provide this or supplementary information. You must also determine the extent of the environmental damage7. Collection of information in other situations If you detect environmental damage (or its threat) while acting in your official capacity, accede to the request of a third party to take measures, or receive instructions from the Minister of Housing, Spatial Planning and the Environment to take a specific action, you perform the following as a competent authority: 1. Determine the extent of the environmental damage and, if possible, the perpetrator8. 2. If deemed necessary, order the perpetrator to provide information or supplementary data9. Only when the above information is received does the competent authority start filling out the notification form. Clearly, if there are multiple competent authorities pursuant to Part 17.2 of the Wm, the authority responsible for the coordination fills out the form. See also step 11. It is envisaged that the competent authority supplements the notification form with new information as soon as this becomes available and updates the form at least once a year before 1 February. Accordingly, it might be appropriate to perform step 11 somewhere between steps 3 and 10. This will ensure that the competent authority adequately discharges its duty to provide certain information to the Minister of Housing, Spatial Planning and the Environment (Section 17.8 of the Wm). Step 3: Determine if Part 17.2 of the Wm applies By working through the module “Does Part 17.2 of the Wm apply?”, verify that this Part is applicable. More background information is contained in chapters 1 and 2. If not, the notification of environmental damage (or its imminent threat) is handled according to another regulation (see chapter 8).

6 Sections 17.12(2) and 17.13(2) of the Wm. 7 Sections 17.10(1a), 17.10(1b) and 17.14(1) of the Wm). 8 Section 17.14(1) of the Wm. 9 Sections 17.10(1a) and 17.10(1b) of the Wm.

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If it is, carry on with step 4. Step 4: Ruling on requests for measures to be taken (Sections 17.15(1) and 17.9(6) of the Wm) Rulings on requests Interested parties and the bodies referred to in Part 17.2(3) of the Wm, can request that you as a competent authority order the perpetrator to take measures10. If you receive such a request, you have to issue a ruling on it, supported with reasons. If insufficient data is provided, you do not need to consider the request11. The outcome is therefore that you either issue a ruling compelling the perpetrator to take measures or reject the request of the third party (and accordingly not demand any measures be taken). The procedure to be followed is described in chapter 3. Coordinated issuing of rulings in the case of multiple competent authorities If multiple administrative bodies are designated as competent authorities, they have to coordinate their handling of requests12. In reaching a decision, they will have to take into account the interrelationships between their individual rulings. II. Measures to prevent and limit environmental damage Step 5: Verification of measures already taken (Sections 17.12(1), 17.12(2) and 17.3(1) of the Wm) Verification In the case of impending environmental damage, as well as environmental damage that has already occurred, the perpetrator has an obligation to take measures. As a competent authority, you have to determine as quickly as possible the measures that have already been taken and whether the perpetrator has carried out its statutory duties. These duties are set out below in two groups: one concerns situations where the environmental damage has occurred; the other, situations where it has not yet occurred. Environmental damage has not yet occurred: The perpetrator must immediately take preventive measures to prevent the environmental damage or limit it to a minimum. If the threat of environmental damage nevertheless remains, the perpetrator has to provide supplementary information in accordance with step 213.

10 Section 17.15(1) of the Wm. 11 Section 4:5 of the Awb. 12 Section 17.9(6) of the Wm. 13 Sections 17.12(1) and 17.12(2) of the Wm.

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Environmental damage has already occurred: The perpetrator has to take all feasible measures to keep polluting substances and other damage factors under control, to restrict their impact, to remove them or to manage them in some other way. All other environmental damage and adverse effects on human health, as well as further impairment of functions, must be limited or prevented14. The foregoing are therefore measures to prevent further environmental damage as much as possible, and should not be confused with remedial measures. Step 6: Taking further measures to prevent or limit environmental damage (Sections 17.10, 17.12(4), 17.12(5), 17.12(6), 17.13(5), 17.14(2) and 17.14(5) of the Wm) Taking or prescribing measures Once it is known which measures have been taken, in your capacity of competent authority you order the perpetrator (if known) to immediately take the necessary measures for preventing or limiting the environmental damage. In connection with this, you have the right to issue specific instructions. Section 17.12(1) of the Wm places an obligation on the perpetrator to immediately take preventive measures. The obligation of the competent authority can thus be regarded as supplementing and/or complementing that of the perpetrator. You also have the right to take measures yourself at all times – irrespective of whether the perpetrator takes actions – and recover the costs later. No special justification is required for these actions on your part. Examples of such situations are where the perpetrator takes the measures unsatisfactorily or not at all, or where the urgency is so great that the competent authority prefers to avoid the risks of leaving the responsibility to the perpetrator. In contrast to enforcement situations, the above do not require the setting of a time limit for the perpetrator to still take measures on its own initiative. Measures you take yourself have to be justified by a ruling, however (see step 9). If you cannot establish the identity of the perpetrator, you will have to provide a ruling on whether you are taking measures yourself15. Priorities If several incidents of environmental damage have occurred simultaneously and the necessary remedial measures cannot be taken at the same time, you as a competent authority decide which damage is going to be remedied first16. In the case of multiple administrative bodies acting as competent authorities, they will have to make this decision jointly. Permission The legal owner of the property where the activities are being carried out or the environmental damage is occurring (or threatening to occur) has an obligation to permit preventive or remedial measures to be taken on its land17. As the legal owner, this entity

14 Section 17.13(1) of the Wm. 15 Sections 17.10(2) and 17.14(2) of the Wm. 16 Section 17.14(4) of the Wm. 17 Section 17.11 of the Wm.

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might have nothing to do with causing the environmental damage. It can obtain financial compensation, however. The procedure to be followed is described in chapter 3. Step 7: Informing duty of the competent authority (Sections 17.12(3), 17.13(3) and 17.14(1) of the Wm) You must immediately inform the bodies referred to in Section 17.2(3) of the Wm about all the relevant aspects of the situation. In the case of environmental damage that has already occurred outside Dutch territory, or might occur, you have to inform the Minister of Housing, Spatial Planning and the Environment accordingly18. III. Remedial measures Step 8: Approval of proposed remedial measures (Sections 17.9(6), 17.10(2), 17.11, 17.12(5), 17.12(6), 17.14(3) and 17.14(4) of the Wm) Taking or prescribing remedial measures In accordance with Annex II of the Environmental Liability Directive, if environmental damage has occurred, the perpetrator has to specify potential remedial measures and submit them to you19. Go to step 9 if you are enable to establish who carried out the activities. Go to step 10 if you have taken all the necessary measures yourself. As a competent authority, you decide which of the proposed remedial measures have to be taken. You can order the party involved to provide an assessment of the extent of the environmental damage20. If the perpetrator fails to take the measures, you take measures yourself21 and recover the costs later. You can also compel the perpetrator to take these measures and force discharging of the responsibility by means of a penalty payment order. You also have the right to take remedial measures yourself at all times, irrespective of whether the perpetrator takes measures. No special justification is required for these actions on your part. In contrast to enforcement situations, the above do not require the setting of a time limit for the perpetrator to still take measures on its own initiative. Measures you take yourself have to be justified by a ruling, however (see step 9). Priorities

18 Section 17.13(3) of the Wm. 19 Section 17.13(6) of the Wm. 20 Section 17.14(3) of the Wm. 21 Section 17.10(2) of the Wm.

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If several incidents of environmental damage have occurred simultaneously and the necessary remedial measures cannot be taken at the same time, you as a competent authority decide which damage is to be remedied first22. In the case of multiple administrative bodies acting as competent authorities, they will have to make this decision jointly. Coordinated approach in the case of multiple competent authorities If multiple administrative bodies are designated as competent authorities, they have to coordinate their handling23 of requests for the approval of proposed remedial measures. In reaching a decision, they will have to take into account the interrelationships between their individual rulings. Permission The legal owner of the property where the activities are being carried out or the environmental damage is occurring (or threatening to occur) has an obligation to permit preventive or remedial measures to be taken on its land24. As the legal owner, this entity might have nothing to do with the environmental damage. It can obtain financial compensation, however. The procedure to be followed is described in chapter 3. Step 9: Taking remedial measures yourself as a competent authority if the perpetrator is unknown (Sections 17.10(2), 17.10(6), 17.11, 17.14(2) and 17.14(4) of the Wm) Taking measures yourself If you cannot determine who the perpetrator is, you will have to make a well-founded decision on whether to take measures yourself25 and, if so, which measures. You can always take measures yourself, i.e., even if the perpetrator is known. You have the right to take all feasible measures to keep polluting substances and other damage factors under control, to restrict their impact, to remove them or to manage them in some other way26. The aim is to limit or prevent further environmental damage and adverse effects on human health and activities, as well as further impairment of functions. You can take the necessary preventive or remedial measures yourself, or have them implemented by third parties. Setting priorities If several incidents of environmental damage have occurred and the necessary remedial measures cannot be taken at the same time, you as a competent authority decide which damage is to be remedied first27. 22 Section 17.14(4) of the Wm. 23 Section 17.9(6) of the Wm. 24 Section 17.11 of the Wm. 25 Section 17.14(2) of the Wm. 26 Section 17.10(2) of the Wm. 27 Section 17.14(4) of the Wm.

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Permission The legal owner of the property where the activities are being carried out or the environmental damage is occurring (or threatening to occur) has an obligation to permit preventive or remedial measures to be taken on its land28. As the legal owner, this entity might have nothing to do with causing the environmental damage. The procedure to be followed is described in chapter 3. IV. Cost recovery Step 10: Cost recovery (Sections 17.16 and 17.17 of the Wm) Aim is cost recovery Whether you take measures yourself as a competent authority or have third parties take them, you have an obligation to recover the costs from the perpetrator29. (See below for exceptions to this rule.) If the perpetrator is unknown, the recovery of costs is not relevant. You have to set the amount owed in costs in the form of a ruling. Costs comprise not only the costs of the measures themselves, but also all additional costs, such as administrative and legal expenses, and any compensation paid to the legal owner of the property because of inconvenience suffered. You can recover the costs by means of a writ30. If multiple competent bodies are involved in a claim, it also makes sense for them to keep each other informed regarding the recovery of costs and to coordinate the recovery procedures (or issue a single ruling for all the costs). Exceptions Exception 1: You have no right to recover the costs of preventive or remedial measures if the perpetrator proves that the environmental damage (or its threat): a. was caused by a third party despite proper security measures being in place; or b. was the consequence of following a compulsory order or instruction from an

administrative body, unless this was an order or instruction the perpetrator received because of an emission or event it had caused itself.

Exception 2: You have the right to waive the recovery of costs if the expenses involved in recovering them exceed the amount to be claimed. Exception 3: This applies only to remedial measures. You can waive recovery of all or part of the associated costs if the appropriate reasonableness test shows that the perpetrator cannot reasonably be held liable for all or some of the costs. This is subject to the perpetrator satisfying two conditions: 1) prove it was not in default or negligent, and 2) be able to successfully invoke the authorisation defence or the state-of-the-art defence.

28 Section 17.11 of the Wm. 29 Section 17.16 of the Wm. 30 Section 5:26 of the Awb.

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The authorisation defence is that the environmental damage resulted from an activity, emission or event that was explicitly permitted at the time, based on and completely in accordance with the conditions attaching to a permit. The state-of-the-art defence is where the entity carrying out the activity claims that the impact on the environment was not deemed harmful at the time, based on scientific and technological understanding existing then.

Time limit on right to recover costs The right to recover costs expires five years after the day on which the preventive and remedial measures are fully implemented31. However, if the perpetrator is not identified until after these measures are fully implemented, the five-year expiry period commences at the time of identification. You therefore need to monitor this expiry period and initiate a recovery process in time. Refer to chapter 4 for the details of cost recovery. The procedure to be followed is described in chapter 3. V. Notification and registration Step 11: Reporting (Sections 17.9(7), 17.15(2) and 17.18 of the Wm) Obligations Pursuant to Part 17.2 of the Wm, you have an obligation to submit certain data and information to the Minister of Housing, Spatial Planning and the Environment concerning each instance of environmental damage and liability32. You should use the notification form for this purpose. Fill out the reporting form as quickly as possible after receiving the initial information. It is recommended that the contents of the notification form be updated as soon as new data becomes available and supplemented with new information at least once a year before 2 February. Accordingly, step 11 might also be appropriate somewhere between steps 3 and 10. Coordination If multiple bodies are competent authorities for the same instance of environmental damage, the obvious approach is for the body acting as coordinator to make the notification. Order of the Minister of Housing, Spatial Planning and the Environment

31 Section 17.17 of the Wm. 32 Section 17.18 of the Wm.

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If the Minister of Housing, Spatial Planning and the Environment ordered competent authorities to take certain measures described in Part 17.2, you have to report in writing on the approach adopted to comply with the order33. More information on the required content of the report is given in chapter 5. Enforcement In accordance with Section 18.2g of the Wm, you as a competent authority have the obligation for enforcement of the provisions prescribed by or pursuant to Part 17.2 of the Wm. If an offence has been committed, you have the power to impose a penalty payment order for example. This would be the case if the perpetrator provides no information even though you had requested it. As a competent authority, you are required to apply the provisions of Part 17.2 if they are applicable. You may apply the usual enforcement and other powers in addition, but only insofar as they do not conflict with Part 17.2 of the Wm (Section 17.9(7) in particular). Chapter 7 contains more information on enforcement (administrative as well as criminal). Definitions The bodies referred to in Section 17.2(3) of the Wm The administrative bodies and government agencies referred to in Section 17.2(3) of the Wm are: - the mayors of the municipalities concerned; - the inspector; - the Queen’s Commissioners in the provinces concerned if the impact of the incident

extends or could extend beyond the boundaries of the municipality where the establishment in question is entirely located or is for the most part;

- the Provincial Executive if the incident causes soil pollution or damage; - other administrative bodies or government agencies that have a direct interest in being

informed immediately. It is not possible to provide an exhaustive list of such bodies. Some examples are the Inspectorate of the Ministry of Housing, Spatial Planning and the Environment, General Inspection Service, water authorities, water quality manager and managers of nature reserves.

As soon as possible The expression “as soon as possible” in relation to Part 17.1 of the Wm (not Part 17.2) has figured in some case law: - ABRvS 25 October 2006, case number 200603135/1: this judgment concerned a case

where the company in question had not telephoned the competent authority immediately,

33 Sections 17.15(2) and 18.8a(2) of the Wm.

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the offence being based on the fact that it did have time to telephone the fire service and the police.

- ABRvS 12 July 2006, case number 200507336/1; a competent authority does not have the right to define the expression “as soon as possible” from Section 17.2 of the Wm in the relevant permit.

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Scope of Part 17.2 of the Wm as an Internet program (temporarily in hardcopy version; final version will replace hardcopy by links to the program) Using this interactive decision tree, you can determine whether a particular type of environmental damage (or its threat) falls under Part 17.2 of the Wm. The decision tree is represented by the diagram below. You can start the program by clicking the button at the bottom of the page. In addition, by clicking a block in the diagram, you can invoke the corresponding step of the decision tree. It is not essential to follow the steps in sequence. You can click each box. It is also possible to jump ahead in the decision tree, instead of having to follow all the steps. No No Yes Yes No No Yes

No No Yes No Yes Yes Yes

Is the activity professional or operational?

Does the environmental damage (or its threat) fall under the heading of an exception?

Is the activity listed in Annex III to the Directive?

Does guilt or negligence apply to the perpetrator of the environmental damage?

Is one of the three damage thresholds (soil, water, and protected species and natural habitats) being breached (or is the threat imminent)?

Is the damage threshold for protected species and natural habitats being breached (or is the threat imminent)?

Part 17.2 of the Wm applies

Start the program

Part 17.2 of the Wm does not apply

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1. Is the environmental damage (or its imminent threat) the result of a professional or operational activity? For help in answering the question, click here. No: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. Yes: continue with question 2.

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2. Section 17.8 of the Wm contains a list of exceptions for environmental damage to which Part 17.2 does not apply. Does one of these exceptions apply to the environmental damage in question (or its imminent threat)? Yes: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. No: continue with question 3. The exceptions referred to in Section 17.8 of the Wm are discussed extensively in chapter 1. In brief, the liability under Part 17.2 of the Wm does not apply to: a. environmental damage (or the imminent threat of such damage):

1º. due to of wars or riots; explanation 2º. due to exceptional natural phenomena; explanation 3º. caused by oil tankers; explanation 4º. due to nuclear accidents and risks; explanation 5º. caused by military operations; explanation 6º. due to activities for protection against natural disasters. explanation

b. environmental damage to nature areas (or the imminent threat of such damage) resulting from actions in conformity with a permit issued under the 1998 Nature Conservancy Act or the Flora and Fauna Act; explanation

c. environmental damage (or its imminent threat) due to an emission or event: explanation 1º. that occurred before 30 April 2007; 2º. that occurred after 30 April 2007, provided the damage is the result of a specific activity that began and ended before this date; or 3º. that occurred more than 30 years in the past.

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3. Is the activity listed in Annex III to the Directive? Yes: continue with question 5. No: continue with question 4. Annex III to the Directive lists activities that are incorporated in EU regulations. A discussion of the scope of each EU directive mentioned goes beyond the purpose of these guidelines. Instead, the table below provides a general description of each activity in question and of the corresponding EU regulation. You can download a regulation by clicking its number. If a list of documents appears, you should select the most recently consolidated version. Activities referred to in Annex III Description of activity Conditions Operation of installations for integrated pollution prevention and control (IPPC)

Permit required under the IPPC Directive (96/61/EC).

Waste management operations, (including the collection, transport, reuse, disposal, supervision and after-care)

Permit or registration required under the Waste Directive (75/442/EEC) or the Hazardous Waste Directive (91/689/EEC). Also applies to operations covered by Directive 1999/31/EC (landfill sites) and Directive 2000/76/EC (waste incineration).

Discharge into surface water Permit required under Directive 76/464/EEC. Discharge of substances into groundwater

Permit required under Directive 80/68/EEC.

Discharge or injection of pollutants into surface water or groundwater

Permit, authorisation or registration required under Directive 2000/60/EC.

Water abstraction and water impoundment

Prior authorisation required under Directive 2000/60/EC.

Installations that release pollutants into the air

Permit required under Directive 84/360/EEC.

Cross-border shipment of waste Permit required or activity forbidden under Regulation 259/93 EEC.

Manufacture, storage, processing, landfilling, release into the environment and onsite transport of dangerous substances, preparations, plant protection products or biocides

Concerns: 1. “dangerous substances” as defined in

Directive 67/548/EEC, 2. “dangerous preparations” as defined in

Directive 1999/45/EC, 3. “plant protection products” as defined in

Directive 91/414/EEC, or 4. “biocides” as defined in Directive 98/8/EC.

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Transport of dangerous substances or polluting goods by road, rail, inland waterways, sea or air

Concerns: 1. “dangerous substances” as defined in

Annex A to Directive 94/55/EC, 2. “dangerous goods” as defined in the Annex

to Directive 96/49/EC, 3. “dangerous goods or polluting goods” as

defined in Directive 93/75/EEC. Contained use, including transport, of genetically modified micro-organisms

Concerns genetically modified microorganisms as defined in Directive 90/219/EEC.

Deliberate release of genetically modified organisms into the environment, including the transport and marketing

Concerns “deliberate release”, “placing on the market” and “genetically modified organisms” as defined in Directive 2001/18/EC.

Management of facilities for extractive waste (land for the collecting or depositing of waste from the prospecting, extraction, treatment and storage of mineral resources and from the operating of quarries)

Concerns the management of waste facilities as defined in Directive 2006/21/EC.

Example Owing to a disaster, a company suddenly emits a substance into the air. This can be an activity within the scope of Annex III if: • the company is an IPPC plant; or • it requires a permit under Directive 84/360/EEC because the plant is emitting polluted

substances; or • there is an emission of “dangerous substances” as defined by Directive 67/548/EEC.

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4. Can the entity performing the activity that caused the environmental damage (or the imminent threat of such damage) be deemed at fault or negligent? No: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. Yes: continue with question 6. Fault or negligence: the significant point of this formulation is that “intent” does not have to exist. In the framework of Part 17.2 of the Wm, the concept of liability based on fault requires the perpetrator to have acted in a way deserving condemnation. In other words, fault or negligence has to exist. This is the case, for example, if the perpetrator took inadequate precautionary measures to prevent the damage, or the damage was due to carelessness on the part of its employees.

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5. Are one or more damage thresholds being breached, or is the threat of this happening imminent?

- Threshold for damage to protected species and natural habitats - Threshold for damage to water - Threshold for damage to soil

No: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. Yes: Part 17.2 of the Wm applies.

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6. Is the Threshold for damage to protected species and natural habitats being breached or is there an imminent threat of this happening? No: Part 17.2 of the Wm does not apply. Chapter 8 discusses the regulations that might apply. Yes: Part 17.2 of the Wm applies.

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Chapter 1 Scope of Part 17.2 of the Environmental Management Act 1.1 Introduction This chapter deals with the question of which cases are covered by the regulation for environmental liability of Part 17.2 of the Wm. The easiest way to answer this is by using the module “Does Part 17.2 of the Wm apply?”. This chapter provides a further explanation in greater depth. The scope of Part 17.2 is defined by Sections 17.7 (general application), 17.8 (exceptions) and 17.6 (definitions) of the Wm. These Sections are discussed below. In broad terms, damage falls within the scope of Part 17.2 if it: • is to protected species, natural habitats, water or soil; • exceeds the damage threshold; • results from an activity performed in a professional or operational capacity; • falls within the scope of: o Annex III to the Environmental Liability Directive; or o if not, it can be classified as damage to protected species or natural habitats, and the

entity carrying out the activity that caused the environmental damage (or the imminent threat of such damage) (the “perpetrator”) can be deemed at fault or negligent;

• and the damage is not an exception as described in Section 17.8 of the Wm. 1.2 General application of Section 17.7 of the Wm Section 17.7 of the Wm This Part applies to: a. environmental damage or an imminent threat of such damage that is caused by activities referred to in

Annex III to the EC Directive on Environmental Liability; b. environmental damage to protected species or natural habitats or an imminent threat of such damage that is

caused by an activity other than those referred to in a, if the entity performing the activity can be deemed at fault or negligent.

Two types of activity distinguished Subsections a and b of Section 17.7 of the Wm distinguish between the activities in Annex III to the Directive and other activities: • In the case of Annex III activities, liability is for damage to soil, water or protected

species and natural habitats. • For activities not covered by Annex III, the liability is limited to damage to protected

species and natural habitats.

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Damage to soil or water resulting from an activity not specified by Annex III is not within the scope of Part 17.2 of the Wm. Distinction between risk liability and fault liability Risk liability exists in the case of damage resulting from the activities listed in Annex III to the Directive. Such liability applies by definition to this type of damage, irrespective of the question of fault. Fault liability applies in the case of damage resulting from activities not covered by Annex III. In the framework of Part 17.2 of the Wm, the concept of liability based on fault requires the perpetrator to have acted in a way deserving condemnation. In other words, fault or negligence has to exist. This is the case, for example, if the perpetrator took inadequate precautionary measures to prevent the damage, or the damage was due to carelessness on the part of its employees. “Entity performing the activity” Part 17.2 focuses on the “entity performing the activity”. This entity is defined as follows: Section 17.6(1) of the Wm entity performing the activity: the natural person or the legal person under private or public law that is performing the activity or having it performed, managing the activity or having it managed, or to whom decisive financial control of the technical operation of the activity has been transferred, including the holder of a permit or authorisation to perform the activity and the entity that is having or has had the activity registered or is giving or has given notification of the activity; The person performing the activity can therefore act in two capacities: 1. As the entity with a permit or other authorisation (an exemption or notification for

example) to perform the activity. 2. As the entity with such control over the establishment’s operations that it has the power to

terminate the activity causing the damage. Accordingly, this entity is liable for the damage resulting from activities covered by Annex III, whether or not it is at fault. Regarding damage resulting from other activities, fault or negligence has to exist. If, in a given situation, it can be imputed to one of the possible actors, the condition is satisfied. The consequence is that this entity can be said to be the “entity performing the activity” and therefore liable. In these guidelines, the entity performing the activity is referred to as the “perpetrator”. “Activity” Section 17.6(1) of the Wm activity: an activity carried out professionally or operationally, irrespective of whether its nature is public or private, profit-making or non-profit-making; Part 17.2 applies to professional and operational activities. It does not apply to an activity performed as part of a hobby. In deciding whether something is professional or operational, making a profit is not the only criterion, as non-profit activities can also fall in the former

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category. Profit as an objective can certainly be one of the factors in determining the nature of an activity, alongside its continuity (how long it lasts), obstacles, extent, size of the land involved, purpose (hobby or personal) and the environment in which it takes place. Annex III to the Directive As stated above, activities named in Annex III are subject to a different liability regime than the one for activities not covered by the Annex. What is the scope of Annex III precisely? In Annex III to the Directive, many activities are grouped. Each of these activities is covered by Annex III, but only insofar as it is included in an EU Directive referred to in connection with the activity. A discussion of the scope of each relevant EU regulation exceeds the purpose of these guidelines. Instead, the table below provides a general description of each activity in question and of the corresponding EU regulation. You can download a regulation by clicking its number. If a list of documents then appears, you should select the most recently consolidated version.

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Activities referred to in Annex III Description of activity Conditions Operation of installations for integrated pollution prevention and control (IPPC)

Permit required under the IPPC Directive (96/61/EC).

Waste management operations, (including the collection, transport, reuse, disposal, supervision and after-care)

Permit or registration required under the Waste Directive (75/442/EEC) or the Hazardous Waste Directive (91/689/EEC). Also applies to operations covered by Directive 1999/31/EC (landfill sites) and Directive 2000/76/EC (waste incineration).

Discharge into surface water Permit required under Directive 76/464/EEC. Discharge of substances into groundwater

Permit required under Directive 80/68/EEC.

Discharge or injection of pollutants into surface water or groundwater

Permit, authorisation or registration required under Directive 2000/60/EC.

Water abstraction and water impoundment

Prior authorisation required under Directive 2000/60/EC.

Installations that release pollutants into the air

Permit required under Directive 84/360/EEC.

Cross-border shipment of waste Permit required or activity forbidden under Regulation 259/93 EEC.

Manufacture, storage, processing, landfilling, release into the environment and onsite transport of dangerous substances, preparations, plant protection products or biocides

Concerns: 1. “dangerous substances” as defined in

Directive 67/548/EEC, 2. “dangerous preparations” as defined in

Directive 1999/45/EC, 3. “plant protection products” as defined in

Directive 91/414/EEC, or 4. “biocides” as defined in Directive 98/8/EC.

Transport of dangerous substances or polluting goods by road, rail, inland waterways, sea or air

Concerns: 1. “dangerous substances” as defined in

Annex A to Directive 94/55/EC, 2. “dangerous goods” as defined in the Annex

to Directive 96/49/EC, 3. “dangerous goods or polluting goods” as

defined in Directive 93/75/EEC. Contained use, including transport, of genetically modified micro-organisms

Concerns genetically modified microorganisms as defined in Directive 90/219/EEC.

Deliberate release of genetically modified organisms into the environment, including the transport and marketing

Concerns “deliberate release”, “placing on the market” and “genetically modified organisms” as defined in Directive 2001/18/EC.

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Management of facilities for extractive waste (land for the collecting or depositing of waste from the prospecting, extraction, treatment and storage of mineral resources and from the operating of quarries)

Concerns the management of waste facilities as defined in Directive 2006/21/EC.

Example Owing to a disaster, a company suddenly emits a substance into the air. This can be an activity within the scope of Annex III if: • the company is an IPPC plant; or • it requires a permit under Directive 84/360/EEC because the plant is emitting polluted

substances; or • there is an emission of “dangerous substances” as defined by Directive 67/548/EEC. The terms “environmental damage” and “damage threshold” Part 17.2 of the Wm applies to environmental damage. As stated above, environmental damage can comprise damage to water, soil, protected species and natural habitats. Section 17.6(1) of the Wm defines these types of damage as: Section 17.6(1) of the Wm 1. every type of damage to protected species or natural habitats that, given the baseline condition and the

criteria of Annex I to the Environmental Liability Directive of the EC, has significant adverse effects on the achievement or maintenance of the favourable conservation status of these species or habitats;

2. every type of damage to waters that has a significant adverse effect on the ecological, chemical or quantitative status, or the ecological potential, as specified in the Water Framework Directive, of the waters concerned, with the exception of the adverse effects to which Article 4(7) of the Directive applies;

3. every type of soil pollution that holds a significant risk of adverse effects on human health, and involved the depositing of substances, preparations, organisms or microorganisms directly or indirectly on, in or under the soil.

Each of the three types of damage has a lower limit, below which there is no environmental damage within the meaning of Section 17.2 of Wm. This is because there have to be “significant adverse effects”, “significant adverse impact” or “a significant risk”. Each limit is referred to as a “damage threshold”. If the damage remains under this threshold, Part 17.2 of the Wm does not apply. The three damage thresholds are discussed extensively in chapter 2 of these guidelines. Protected species and natural habitats You can go to the discussion on the meaning of “protected species” and “natural habitats” by clicking here. An imminent threat of environmental damage Section 17.6 of the Wm environmental damage or an imminent threat of such damage: environmental damage or a sufficiently high probability that environmental damage will occur in the near future;

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An imminent threat of environmental damage is also within the scope of Part 17.2 of the Wm. By “imminent threat” is understood “sufficient likelihood that environmental damage will occur soon”. The presence of “sufficient likelihood” can depend on so many factors, that each competent authority has to decide on a case-by-case basis whether it exists. 1.3 Exceptions in Section 17.8 of the Wm Section 17.8 of the Wm summarises the situations to which the provisions of Part 17.2 do not apply.

Section 17.8 of the Wm Contrary to Section 17.7, this Part does not apply to: a. environmental damage or an imminent threat of such damage as a result of:

1º. an act of war, hostilities, civil war or riot, 2º. a natural phenomenon that is exceptional, inescapable and inevitable, 3º. an event for which the liability or compensation for damage is within the scope of a Convention mentioned in Annex IV to the Environmental Liability Directive of the EC and which is binding on the Netherlands, 4º. nuclear risks or an activity to which the Treaty establishing the European Atomic Energy Community applies; 5º. an activity or event for which the liability or compensation for damage is within the scope of a Convention mentioned in Annex V to the Environmental Liability Directive of the EC, 6º. an activity that primarily serves the interests of national defence or international security, 7º. an activity whose sole purpose is to provide protection against natural disasters;

b. environmental damage to protected species and natural habitats comprising the predefined adverse effects of activities for which the competent authority granted a permit:

1º. in conformity with provisions for the implementation of Article 6(3) and Article 6(4), or Article 16 of Council of Europe Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, and Article 9 of Council of Europe Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds, or 2º. in the case of species or habitats not covered by Community law, in conformity with the provisions of or pursuant to Sections 3,4 and 5 of the Flora and Fauna Act or Sections 10 and 10a of the 1998 Nature Conservancy Act;

c. environmental damage or an imminent threat of such damage due to an emission or event: 1º. that occurred before 30 April 2007, 2º. that occurred after 30 April 2007, provided the damage is the result of a specific activity that began and ended before this date, or 3º. that occurred more than 30 years ago.

Subsection a contains the general list of exceptions. Subsection b deals with the damage that is permitted by a permit under the 1998 Nature Conservancy Act or the Flora and Fauna Act. Subsection c includes the exceptions in the case of damage resulting from an event that occurred too long ago for Part 17.2 of the Wm to apply. The table below is a simplified presentation of the types of damage excluded by Section 17.8. Damage Subsection due to wars, riots, etc. a(1)

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due to exceptional natural phenomena a(2) caused by oil tankers a(3) due to nuclear accidents and risks a(4) and

a(5) caused by military operations a(6) due to activities for protecting against natural disasters a(7) environmental damage to protected species and natural habitats, resulting from activities permitted under the 1998 Nature Conservancy Act or in accordance with the Flora and Fauna Act.

b

damage resulting from an event that occurred too long ago c The subsections of Section 17.8 are explained below. Subsection a(1): If the damage results from an act of war, hostilities, civil war or a riot, Section 17.2 of the Wm rules out the existence of liability. Subsection a(2): If the damage is caused by a natural phenomenon that is exceptional, inescapable and inevitable, Section 17.2 of the Wm rules out the existence of liability. Liability does exist, however, for damage caused by lightning, a normal storm, heavy rain, etc., but not in the case of a massive flood for example. Subsection a(3): The Conventions (and future amendments to them) are: - the International Convention on Civil Liability for Oil Pollution Damage of 27 November

1992 (Bulletin of Treaties 1994, 229); and - the International Convention on the Establishment of an International Fund for

Compensation for Oil Pollution Damage of 27 November 1992 (Bulletin of Treaties 1994, 228).

These two Conventions are implemented via the Liability of Oil Tankers Act and the Oil Tankers Compensation Fund Act respectively. Environmental damage that is within the scope of either of the above Conventions is outside the scope of Part 17.2 of the Wm. The other three Conventions referred to in Annex IV are not in force in the Netherlands. The exception in Section 17.8(a)(3) can therefore only apply to oil tankers. The above-mentioned Conventions are not available in electronic form. Example If environmental damage results from fuel oil leaking out of an ocean-going vessel moored at the Port of Rotterdam, the damage is outside the scope of Part 17.2 of the Wm. This is because, irrespective of the vessel’s flag state, if an ocean-going vessel loses oil within Dutch territorial waters, the damage falls under the Liability of Oil Tankers Act and hence under the International Convention on Civil Liability for Oil Pollution Damage of 27 November 1992 (Bulletin of Treaties 1994, 229). As a result, the damage is outside the scope of both the Environmental Liability Directive and Part 17.2 of the Wm.

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Subsection a(4): The Convention referred to here governs all types of nuclear energy use. In the Netherlands, it is implemented via the Nuclear Energy Act. The Convention is not available in electronic form. Environmental damage that is within the scope of this Convention is outside the scope of Part 17.2 of the Wm. Example If environmental damage results from a nuclear power plant emitting a very large amount of radiation, the damage is outside the scope of Part 17.2 of the Wm. Subsection a(5): Environmental damage that is within the scope of any of the Conventions referred to in Annex V is outside the scope of Part 17.2 of the Wm. This applies to the following Conventions (which all relate to nuclear accidents and risks): - Paris Convention on Nuclear Third Party Liability of 29 July 1960 (Bulletin of Treaties

1964, 175). In the Netherlands, this Convention is implemented via the Nuclear Accidents Liability Act.

- Brussels Convention of 31 January 1963 supplementing the Paris Convention (Bulletin of Treaties 1964, 176).

- Vienna Convention on Civil Liability for Nuclear Damage of 21 May 1963 (Bulletin of Treaties 1964, 177).

- Common Protocol of 21 September 1988 on the application of the Vienna Convention and the Paris Convention (Bulletin of Treaties 1992, 57).

- Brussels Convention of 17 December 1971 relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material (Bulletin of Treaties 1974, 199).

Annex V also refers to the Convention on Supplementary Compensation for Nuclear Damage. As this Convention has not yet come into force, damage incidents that it covers are still within the scope of Part 17.2 of the Wm. The above-mentioned Conventions are not available in electronic form. Moreover, the Convention on Supplementary Compensation for nuclear damage is not even published in the Netherlands. Example If environmental damage results from a vessel carrying nuclear waste sinking and locally polluting the seabed, the Brussels Convention of 17 December 1971 relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material applies (Bulletin of Treaties 1974, 199) applies. Accordingly, the environmental damage is outside the scope of Part 17.2 of the Wm. Subsection a(6): No liability under Part 17.2 if the activity is primarily for the purpose of national defence or international security. Example An explosion at an arsenal belonging to the Ministry of Defence is outside the scope of

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Part 17.2 of the Wm. Subsection a(7): an activity whose sole purpose is for protection against natural disasters is outside the scope of Part 17.2 of the Wm. Example If environmental damage results from the construction of an emergency dike, the damage is outside the scope of Part 17.2 of the Wm. Subsection b: If the damage resulted from actions in conformity with a permit issued under the 1998 Nature Conservancy Act or the Flora and Fauna Act, no liability arises pursuant to Part 17.2 of the Wm. The issue of whether the actions were in conformity with these Acts can be best resolved by the competent authority concerned. This exception provision applies only in the case of environmental damage to protected species and natural habitats, and not to damage to water or soil. Subsection c: There is no liability under Part 17.2 if the emission or event causing the damage (or its threat) occurred:

1º. before 30 April 2007; 2º. after 30 April 2007, provided the damage is the result of a specific activity that

began and ended before this date; or 3º. more than 30 years ago.

Regarding 1º, liability arises only for damage or its threat if the corresponding event occurred on or after 30 April 2007. If the event occurred before 30 April 2007, but the damage did not appear until after this date, the damage and its threat are both outside the scope of Part 17.2 of the Wm. Regarding 2º, if the emission or event causing the environmental damage occurred after 30 April 2007, but the damage is the result of an activity that began and ended before 30 April 2007, no liability arises under Part 17.2 of the Wm. Regarding 3º, an additional exception exists in that there is no liability under Part 17.2 for damage that occurred more than 30 years in the past. This exception is not relevant yet, but will be as from 30 April 2037, because events from before 30 April 2007 resulting in environmental damage are excluded by the operation of subsection c(1).

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Chapter 2, Damage thresholds This chapter deals with the three damage thresholds that are relevant for determining whether an occurrence of environmental damage falls under Part 17.2 of the Wm. The following are considered sequentially: - - threshold for damage to water - threshold for damage to protected species and natural habitats I. Threshold for damage to soil General The Soil Protection Act has been in force in the Netherlands since 1987. Pursuant to Section 13 of this Act (duty of care provisions), anyone who knows or might reasonably have suspected that his actions can pollute or harm the soil is obliged to take all measures that can reasonably be demanded of him to prevent the pollution or harm, or, if the pollution or harm occurs, to limit the pollution or harm and the direct effects and reverse them as much as possible. Section 30 and the sections following, regulate the individual’s powers in the event of serious pollution of or harm to soil resulting from unusual occurrences. In contrast to the Environmental Liability Directive, the duty of care and the regulation for unusual occurrences are not limited to professional or operational activities. In the case of damage to soil, the Directive applies only if and insofar as the pollution or harm poses a significant risk of adverse effects on human health. Less serious and other effects fall under the Environmental Management Act (inside an establishment) or the Soil Protection Act (outside an establishment). The duty of care under the Soil Protection Act extends further than that under the Directive. With the former, all pollution and harmful effects must be reversed as much as possible, i.e., not only if and insofar as there is a significant risk in relation to human health. In the case of environmental damage from soil pollution due to the direct or indirect addition of materials, preparations, organisms or microorganisms onto, into or under the soil, the Directive states that environmental liability arises if the addition entails a significant risk of adverse effects on human health. To decide whether there is a “significant risk”, the definition used is based on existing standards and concepts in the government’s soil policy. The intervention value in the soil policy is a generally used risk limit. In relation to the Environmental Liability Directive, the proposal is to adopt this intervention value. It is relevant here to base it on an intervention for human risks, in other words the risks for human health. There is no threshold value for genetically modified organisms (GMOs). A preventive approach is taken by assessing whether activities involving the use of GMOs are permitted. This ensures that environmental damage from GMOs is virtually impossible. The permit for their use entails an assessment obligation. So far, this has not led to any problems.

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Measurement The damage threshold needs to be seen as an aid for competent authorities in situations where they have to decide whether a “significant risk” exists. They decide in a given situation whether there is an adequate basis for identifying a significant risk. It should be noted that this issue will not arise often as the instruments of the Soil Protection Act provide more possibilities and, hence, the regulations deriving from the Directive will not generally need to be applied. To be kept in mind is the obligation to report threats of damage immediately and recover costs in every case (as well as informing the Ministry of Housing, Spatial Planning and the Environment). Some situations involving a significant risk might therefore give rise to additional obligations. Human intervention value The intervention value employed as a benchmark for determining the need for soil decontamination is derived from a human toxicological and/or an ecotoxicological criterion. The two criteria are the concentration levels of substances in the soil, above which human risk and ecological risk respectively can arise. For each substance, the stricter of the two criteria is the standard for the soil intervention value. Concentrations below the intervention values are therefore considered acceptable. The ecological criterion is usually the standard, as soil life organisms are in direct contact with the soil, whereas human exposure to soil pollution is mostly indirect. As a rule, therefore, the human intervention value is often much higher than the soil intervention value. Intervention values are derived for soil as well as groundwater. The human intervention value is set for standard soil. An actual health risk in a particular location if the human intervention value is exceeded depends on the specific conditions there. It is possible to test whether a risk to humans exists under the given conditions by using the decontamination criterion module from the risk toolbox. With this module, it can be determined whether there are risks to humans under the specific local conditions. If such risks are present, damage exists. For non-carcinogenic substances, the acceptable risk level is the maximum tolerable risk (MTR) level, that is, the level below which there is no effect on human health. For carcinogens, such a level cannot be defined. Instead, the criterion used is 1 tumour in 10,000 people having lifelong exposure. Table 1 is a list of substances with their human toxicological risk criteria. By way of illustration, the background values, soil intervention values and indicative levels are also given. The values shown apply to standard soil. Table 1 Soil human risk limit as a fraction of the soil intervention value.

Background value

Soil interven-tion value (IV)

IV indica-tive level (IL)

Soil human risk limit

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Substance mg/kg ds mg/kg ds mg/kg ds 1. Metals antimony (Sb) arsenic (As) barium (Ba) beryllium (Be) Boron (B) cadmium (Cd) chromium (Cr) cobalt (Co) copper (Cu) mercury (Hg) lead (Pb) molybdenum (Mo) nickel (Ni) selenium (Se) tellurium (Te) (might be deleted) thallium (TI) tin (Sn) vanadium (V) silver (Ag) (might be deleted) zinc (Zn)

0.8 20

190 1.5

0.6 55 15 40

0.15 50

0.03 30 4 6

0.75 6.5 80 2

140

15 76

920 30 7

13 180 190 190 36

530 190 95

100

15 900 250 15

720

IL a

IL IL IL IL IL IL

15.7 576

9340 233

1000 28

2760 43

8600 210 622

1310 1470 235 588 118

324000 1000 282

46100 2. Other inorganic substances bromide cyanide (free) cyanide (total) (pH<5) cyanide (total) (pH>=5) fluoride thiocyanates (sum) sulphate

3

5.5 5.5

6

to be filled in

650 50

20

- 0.04

- - - - -

3. Aromatic substances benzene ethylbenzene toluene xylene (sum) styrene (vinylbenzene) phenol cresolene (sum of o-cresol, m-cresol and p-cresol) dodecylbenzene aromatic solvents

0.025 0.03 0.03

0.075 0.05 0.25 0.1

0.05 0.3

1 110 32 17 86 14 13

1000 200

IL IL

1.1 111 32

156 472 390 365

1010 1450

4. Polycyclic aromatic hydrocarbons (PAHs)

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PAHs total (sum 10) Naphthalene Anthracene Phenanthrene Fluoranthene Benzo[a]anthracene Chrysene Benzo[a]pyrene Benzo[ghi]perylene Benzo[k]fluoranthene Indeno[1,2,3-cd]pyrene

1.5 40 TU 870

25500 23000 30300 3000

32000 280

19200 3200 3200

5. Chlorinated hydrocarbons a. Volatile chlorinated hydrocarbons

monochlorethene (vinyl chloride) dichloromethane 1,1-dichloroethane 1,2-dichloroethane 1,1-dichloroethene 1,2-dichloroethene (sum cis and trans) cis-1,2-dichloroethene trans-1,2-dichloroethene dichloropropanes trichloromethane (chloroform) 1,1,1-trichloroethane 1,1,2-trichloroethane trichloroethene (Tri) tetrachloromethane (Tetra) tetrachloroethene (Per)

0.1 0.1

0.02 0.02 0.04 0.05

0.15 0.03

0.035 0.25 0.05 0.05 0.15

0.1 4

15 6.4 0.3

1 0.5

1 2

5.6 15 10 2.5 0.7 8.8

d

b b

0.0022 68 15 6.4

0.22 0.51 0.51 0.81 1.8 5.6 15 8.4 10 0.7 8.8

b. chlorobenzenes trichlorobenzenes (might be deleted) tetrachlorobenzenes (might be deleted) pentachlorobenzene (might be deleted) hexachlorobenzene (might be deleted) chlorobenzenes (sum) (might be deleted)

to be filled in to be filled in to be filled in to be filled in to be filled in

11 2.2 6.7

2

d d d d

40 7.5 6.7 2.7

-

c. chlorophenols trichlorophenols (might be deleted) tetrachlorophenols (might be deleted) chlorophenols (sum) (might be deleted) pentachlorophenol

to be filled in to be filled in to be filled in to be filled in

22 21

12

d d

d

231 172

- 20

d. polychlorinated biphenyls (PCBs) PCBs (sum 7) 0.02 1 TU e. other chloride hydrocarbons

39

monochloroanilines (sum) (might be deleted) dichloroanilines (sum) (might be deleted) trichloroanilines (sum) (might be deleted) tetrachloroanilines (sum) (might be deleted) pentachloroanilines (sum) (might be deleted) chloroanilines (sum) EOX (might be deleted) dioxin chloronaphthalene (sum, α, β)

0.25

0.95 0.00005

0.006

46

50 10 30

10

n/a

0.00036 23

IL IL IL

IL

17.8

- - -

-

- -

0.00036 29

6. Biocides a. organochlorine biocides

chlordane DDT DDE DDD drins (sum) a-endosulphan γ-HCH (lindane) HCH compounds (sum) heptachlorine heptachlorine epoxide (sum) hexachlorobutadine (might be deleted) biocides containing organochlorine

0.002 0.2 0.1

0.02 0.015

0.0009 0.003 0.01

0.0007 0.002

- 0.4

4 1

1.3 34

0.14 4

1.2 no sum 2

4 4

5.8 31 17 42

no sum 2470

1.3 no sum

1.5 0.9

- -

b. organic phosphoric pesticides azinfos-methyl 0.005 2 IL 25.9 c. organotin biocides organotin compounds tributyltin oxide triphenyltin comp.

2.5 2.5 5 5

a a

2.5 21.5 110

d. chlorophenoxy acetic acid herbicides

MCPA (methyl chlorophenoxy acetic acid)

0.07 4 3.59

e other biocides atrazine carbaryl carbofuran maneb (might be deleted) 4-chloromethylphenols 4-chloro-2-methylphenol 4-chloro-3-methylphenol biocides not containing chlorine

0.0045 0.02 0.02

- 0.05

0.07

0.71 0.5

0.02 22 15 15 15

IL c c

18 107 5.7

32100 39 39

589 -

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7. Other substances asbestos cyclohexanone phthalates (sum) mineral oil pyridine tetrahydrofuran tetrahydrothiophene tribromethane (bromoform) ethylene glycol diethylene glycol acrylonitrile formaldehyde isopropanol (2-propanol) methanol butanol (1-butanol) 1,2-butyl acetate ethyl acetate methyl-tert-butyl ether (MTBE) methy lethyl ketone

- 2 -

190 0.15 0.45 0.15 0.03

5 8 2

0.3 0.75

3 2 2 2

0.025 2

100 150 60

5000 11 7

8.8 75

100 270 0.1 0.1 220 30 30

200 75

100 35

IL IL IL IL IL IL IL IL IL IL

100 214

no sum per fraction

11 7

234 74.7 209

122000 0.09 0.08 714 164 103 469 546 221 23.1

NB For the risk limits in bold font, the human risk limit is under the intervention value. The soil intervention value (IV) shown in the table is derived from multiple sources. The first source is the soil IV laid down by Ministerial Decree of 15 September 2006. The second source is IV at the indicative level (IL) from Annex 2 to the Decree. The third source is the IV proposed in Kreule P, Swartjes FA. 1998, Kreule et al. 1995, and Swartjes et al. 2004. The soil human risk limits shown in table 1 are derived from Lijzen et al. 2001 and the third source. a: Van den Berg, 1994. b: Kreule et al. 1995. c: Kreule et al. 1998. d: Ministerial Decree of 15 September 2006. IL Indicative level from Ministerial Decree of 15 September 2006; provides an indication of the status of the value. Only the most significant substances are shown in the list. In the case of non-standardised substances, it has to be reconsidered whether they are toxic for humans. If toxicity data are available for such a substance, but no measurements, recourse will have to be made to the EU Substance List. II. Threshold for damage to water In Article 2(1)(b), the Directive specifies damage to water as “… any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or

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ecological potential, as defined in Directive 2000/60/EC, of the waters concerned, with the exception of adverse effects where Article 4(7) of that Directive applies.”. Directive 2000/60/EC is known as the Water Framework Directive, or WFD for short. The Bill implementing the Directive has adopted this definition. Given the above description of damage to water, when deciding whether this has occurred within the meaning of the Directive, several questions need answering: 1. What was the ecological, chemical and/or quantitative status of the water (before the

damage occurred)? 2. Is there an adverse affect on this status? 3. If so, is it significant? Question 1: What was the actual status of the surface water before the damage occurred? To determine the ecological, chemical and/or quantitative status of the water concerned, the provisions of the WFD are relevant. The objective of the WFD regarding bodies of surface water is to achieve a healthy water status. In the case of a surface body of water, its status is good if the water is chemically as well as ecologically in order. The EU Member States are committed to take measures for achieving this healthy condition in 2015 at the latest. Until then, deterioration of the status has to be prevented. For assessing the chemical and ecological conditions of surface bodies of water, the WFD uses a system of status classes. Deterioration is said to occur if a body of water has its status class reduced. Although a reduction in quality not leading to a lower class is undesirable in relation to achieving the objectives, it does not violate the principle of no deterioration. NB: Underlying the Dutch legislation for implementing the objectives of the WFD is the assumption that they apply only to surface waters, which are designated as bodies of water by WFD. Relatively small waters, such as polder canals, are often not designated as bodies of water. The Environmental Liability Directive refers to “damage … of the waters concerned …” and not to damage to bodies of water. Moreover, the associated definition is not limited to waters designated as bodies of water, but it does embody the idea of “status” from the WFD. When applying the Environmental Liability Directive, it is therefore recommended to ascertain the status before the damage occurred, based on the monitoring or experience data available from the water board concerned. The WFD recognises two classes for the chemical status of water: good and poor. A body of water is in a good condition chemically only if all substances subject to an EU standard for environmental quality meet these standards. Currently, these are only the substances covered by the Subsidiary Directives of Directive 2006/11/EC (formerly Directive 76/464/EEC). The priority hazardous substances specified in the WFD will be added to the new Hazardous Substance Subsidiary Directive once this has been adopted. If one substance fails to meet its standard, the body of water concerned is deemed no longer in a chemically good condition. (In ordinary language, this is the “one out, all out” approach.) For the ecological status, there are five classes: high, good, moderate, poor and bad. A body of water’s ecological status is determined using biological parameters. These include the

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condition of the fish, plants and algae; physical-chemical parameters, such as oxygen content; saline content and the presence of nutrients; and hydromorphological parameters, such as water flow, depth and connections to bodies of groundwater. The natural status of the type of body of water concerned functions as a reference in this context. Annex V to the WFD specifies parameters for the status classes “high”, “good” and “moderate” to be applied without restriction for natural bodies of water. The WFD does not specify parameters for the status classes “poor” and “bad”. Bodies of water that have been subject to irreversible human intervention or created by human activities are designated respectively as heavily modified and artificial. For these bodies of water, the objectives are a good ecological potential. Ultimately, the definition of “good ecological potential” derives from the meaning of “good ecological status”. In this context, the potential takes into account the ecological possibilities, given the irreversible changes to a body of water. Accordingly, the parameters in Annex V to the WFD do not apply one-to-one to artificial and heavily modified bodies of water. The status, which for most waters will serve as the starting point for assessing whether there is a significant adverse impact on them, will only be formally established when the river basin management plans are adopted in 2009. Mandatory components of these plans are descriptions of the current status of the surface bodies of water. For incidents arising before the adoption, decisions will have to be made based on feasible estimates of the initial status. To this end, the data available from the relevant water board on the qualitative, quantitative and ecological status of the surface water can be utilised. Examples of such data are the measurements from the monitoring programme being conducted in the framework of the WFD, and data from recent inspections of a nearby monitoring station. To be determined next is what the data reveals about the status of the water, i.e., what its status class is. This requires use of the status class boundaries described above. When describing the chemical status, the considerations below apply. In conformity with the WFD, the environmental quality standards for various substances are a key factor. Until standards that comply with the methods of the WFD have been adopted, the quality standards in place pursuant to Guideline 2006/11/EC can be employed. This guideline applies to the pollution from certain hazardous substances that are discharged into the aquatic environment of the European Community. The standards as they apply to Dutch surface waters are detailed in the Ministerial Regulations on the Environmental Quality Requirements for Hazardous Substances in Surface Waters (Government Gazette 247, 22 December 2004). It is likely that these Regulations will remain in force for some time, especially since adoption of a Hazardous Substance Subsidiary Directive has still not taken place. In addition, the objectives of the EU Regulations governing drinking water, swimming water, and shellfish water, as well as the Birds Directive and the Habitats Directive, remain undiminished. Where these objectives are stricter than the ones derived from the WFD, they take precedence. Accordingly, they must also be taken into account when assessing the actual status of a surface water body. Question 2: Is there an adverse affect on the status of the water? Many activities can have an adverse affect on the status of the water.

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Among them are: 1. discharging substances into surface water as part of normal operations; 2. discharging substances onto or into the soil as part of normal operations, with the risk

that they will seep into the groundwater; 3. discharging substances directly into groundwater as part of normal operations; 4. discharging substances into surface water, soil or groundwater as referred in 1 to 3,

but outside of normal operations, for example, the result of an accident, prohibited activities, etc.;

5. extracting water from surface water or groundwater; or discharging water into surface water or groundwater;

6. other invasive activities that can affect the water system, such as disturbing the course of a river or stream, drilling through layers of soil that could result in the unwanted mixing of groundwater.

A significant number of these activities (most of those referred to in 1, 2, 3 and 5 for example) are subject to preventive environmental and water regulations. Their potential effects were tested in advance and found acceptable. This does not apply to some of the activities (in particular, those referred to in 4, and a number of those referred to in 6). The degree of adverse impact depends on a variety of factors. Decisive among them are possibly: - the magnitude of the activity or event; - the duration of the activity or event; - the extent and quality (status) of the water being affected by the activity or event; - the speed, application and scope of control measures for limiting damage. As well as the actual status, the desired status of the water in question is also relevant for deciding whether there are any adverse effects. This can be an issue, for example, where a project is underway to achieve the desired water quality, and an activity or event is an obstacle to further progress. Question 3: If there is an adverse effect, is it significant? The factors mentioned in this context will largely determine whether there will be a significant adverse effect. As the combination of factors is decisive, the question can only be answered locally. A number of general observations can be made, however: 1. Regarding normal activities in surface water, the depositing of substances on or in

soil, and the extraction or discharge of water, permission is necessary under the environmental or water regulations. The permission depends on the type and extent of the individual activity. It may be granted individually in the form of a licence or exemption under the Pollution of Surface Waters Act, Soil Protection Act or Environmental Management Act, or derive from general rules based on these Acts. As part of the preliminaries for licences, exemptions and general rules, the possible adverse effect on the water concerned ought to be assessed. For discharging, if the assessment has been carried out, the adverse effect found acceptable, and the operator

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keeps to the rules, it can generally be assumed that the activity will not cause a significantly adverse effect.

2. If an activity involving a body of water affects it in such a way that it has to be

transferred to a lower WFD status class, this is generally designated as a significant adverse effect. In WFD terminology, this is referred to as “deterioration”. In assessing whether deterioration has occurred, one of the approaches available comprises the methods for granting licences and for enforcement established for the WFD by the Dutch national platform for water management. This was done under the terms of the Pollution of Surface Waters Act (a Dutch version of which can be downloaded from www.helpdeskwater.nl). The factors below are important in this connection. Deterioration of very short duration, for example, does not necessarily have an adverse effect on water status. This would be the case if the damage were to the surface water, which has a more lasting character. If the water system soon recovers naturally, no significantly adverse effect has arisen.

3. The magnitude of an event and that of the water concerned have to be considered

jointly. It should be clear that, although a particular activity or event might not have a significant effect on a large body of surface water, its effect on a small body could indeed be significant. When considering this point, a possible approach is to use the methods developed by the Commission for Integrated Water Management (currently the Dutch national platform for water management) for the injection test (the Commission’s report “Emissie-immissie, prioritering van bronnen en de immissietoets”, published in June 2000). An injection test is developed in the report and proposed as part of the processes for granting permits and drawing up general rules. When evaluating the acceptability of discharges, the following conditions define the framework for the test, with each condition having to be satisfied: I. The discharge must not contribute significantly to the failure to achieve the

quality objective for the water system (comprising water and water soil) where the discharging takes place. A significant contribution is defined as an increase in the concentration of the substance in the receiving water system of 10% or more of the MTR.

II. Within the mixing zone, the discharge must not have acute toxic effects on water organisms. The serious-risk level for surface water is to be used as the criterion for this purpose.

III. Within the mixing zone, the discharge must not have acute toxic effects on water organisms that live in sediment. The intervention value (or if this does not exist, the serious-risk level) for sediment is to be used as the criterion for this purpose.

The above conditions apply to point sources, including sewage treatment plants, and diffuse sources alike. The application of condition 1 of the injection test to diffuse sources depends on how the emissions from the diffuse sources are regulated. Naturally, it is not so that a discharge that exceeds the above limits will always cause a significantly adverse effect. When assessing whether there is actually significant damage from a discharge, an option is to take the same approach as used for the injection test. In that case, a direct discharge causes significant damage if:

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I. The discharge alone is the cause of the failure to achieve the quality objective for the water system (comprising water and water soil) into where the discharging takes place.

II. Outside the mixing zone, the discharge has acute toxic effects on water organisms. The serious-risk level for surface water is to be used as the criterion for this purpose.

III. Outside the mixing zone, the discharge has acute toxic effects on water organisms that live in sediment. The intervention value (or if this does not exist, the serious-risk level) for sediment is to be used as the criterion for this purpose.

4. The injection test methods described in 3 take no account of the time factor. If a

discharge lasts only a short time, it is perfectly possible that the water suffers damage, without this damage being assessed as significant. The duration of an event and the associated injection effect jointly determine whether the corresponding damage is significant. The shorter an event lasts, the higher the injection effect absorbable by water without suffering significant damage. If a discharge lasts a long time, a low injection effect can result in significant damage.

III. Threshold for damage to protected species and natural habitats To determine whether there is environmental damage to nature within the meaning of Part 17.5 of the Wm (to protected species and natural habitats in other words), the competent authority concerned must first verify that the definition of such damage as given in Section 17.6(1) is met. The rules on environmental liability in Part 17.1 of the Wm do not apply to all cases of damage to nature. They apply only if: - there is damage to protected species and natural habitats (Step 1); - there is damage compared with the baseline condition (Step 2); - a type of damage is arising or is threatening to arise (Step 3); - there is damage compared with the favourable conservation status for the species and

habitats in question (Step 4); and - the adverse effect is significant (Step 5). These steps have to be followed to determine whether there is damage to nature (steps 1 to 4) and whether the damage threshold has been breached (step 5). The damage threshold has been breached if the adverse effect is significant. This has to be assessed using the criteria in Annex I to EC’s Environmental Liability Directive. Given the definition of environmental damage and the aforementioned criteria, no fixed values can be specified in advance for establishing the existence of damage or for the damage threshold, as they depend on the specific circumstances of each case. The steps are outlined below, including the information a competent authority can employ during its deliberations (based on the information available at the time these guidelines were written).

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DAMAGE TO NATURE Step 1 Which protected species and natural habitats? Section 17.6(1) of the Wm defines the terms as follows:

Section 17.6(1) of the Wm a. protected species: species referred to in Article 2(3)(a) of the EC Directive on Environmental

Liability; b. natural habitats: habitats of the species referred to in Article 2(3)(b) of the EC Directive on

Environmental Liability. This concerns, therefore, the species and habitats governed by operation of the Environmental Liability Directive. These are: a) the species referred to in Article 4(2) of the Birds Directive (Directive 79/409/EEC)

(migratory birds of which at least 1% of the migratory population remains in the Netherlands) and Annex I (threatened species of birds to all intents and purposes);

b) the species mentioned in Annex II to the Habitats Directive (Directive 92/43/EEC); c) the species named in Annex IV to the Habitats Directive; d) the natural habitats named in Annex I to the Habitats Directive; e) the habitats of the species named in a and b; f) the breeding sites and resting places of the species named in Annex IV to the Habitats

Directive. Accordingly, the rules for environmental liability apply if the damage is to the species or habitats mentioned above. The habitats can be the areas designated as Natura 2000 areas (category d), or the habitats of the species in categories a and b (category e). They can also be the breeding sites and resting places in category f, which may or may not be located in a Natura 2000 area. Hence, the rules for environmental liability can apply to damage occurring anywhere in the Netherlands. Only the above-mentioned species and habitats are considered here. The Netherlands does not use the option afforded by the Directive to designate additional species as falling under the scope of environmental liability. Locations of the species The species referred to in categories a, b and c are specified on the website http://www2.minlnv.nl/thema/groen/ffwet/soorten/intro.htm. Click “Zoeken op wetgeving en beleid” [Search laws and policies] and then “Vogelrichtlijn” [Birds Directive] (subjects: “Geregeld voorkomende trekvogels” [Common migratory birds] and “Soort van Bijlage I” [Species named in Annex I]) or “Habitatrichtlijn” [Habitats Directive] (subjects: “Soort van Bijlage II” [Species named in Annex II] and “Soort van Bijlage IV” [Species named in Annex IV]). A species might not appear on the list, but is to be found in the Netherlands. In such cases, consult:

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- amendments to the draft designation orders pursuant to Section 10a of the 1998 Nature Conservancy Act. (Amendments now included in the draft orders do not appear in the above-mentioned list; the migratory birds mentioned correspond to those in the designation orders currently in force);

- the EU list of species at http://europa.eu/scadplus/leg/nl/lvb/l28046.htm and http://europa.eu/scadplus/leg/nl/lvb/l28076.htm.

Locations of the habitats The habitats referred to in category d are specified in the designation orders. They were not included for the preparation of these guidelines. The designated areas are listed in Natura 2000 Objectives, pages 167 to 169, and elsewhere. The Dutch version of the document is available at http://www2.minlnv.nl/thema/groen/natuur/natura2000_2006/natura_2000_doelendocument.pdf. The locations of the habitats referred to in categories e and f are not centrally registered. Depending on the situation, a list needs to be drawn up of the documentation available on the subject.

Step 2 Baseline condition Definition of “baseline condition”: the status that would have existed at the time of the damage if the damage had not occurred, of the protected species, natural habitats and ecosystem functions, derived from the best available information. What information is already available for determining the baseline condition? Information on the actual or target status of the protected species, natural habitats and ecosystem functions can be derived from the information being collected for the designation of Natura 2000 areas pursuant to Section 10a of the 1998 Nature Conservancy Act. The objectives for the conservation status of each area are described in the designation orders. The document Natura 2000 Objectives can also be consulted by clicking its link given above. This contains information from consultative sessions with experts and managers of sites, as well as the available data and expert judgments used in setting the area-specific conservation goals for the distinct bird and animal species of other taxonomical groups and habitat types. Information on the current status is incorporated in the objectives. The designation orders might contain the best information available for deriving the baseline condition. It is also possible that better quality information is available that is more recent. In every case, the best available information is to be used. What information is becoming available? Under the 1998 Nature Conservancy Act, a management plan will have to be prepared for each of the 162 Natura 2000 areas within three years of being designated as such an area. A management plan is to contain the conservation goals specified by time, place and extent. Every such plan has to contain a description of the current situation and the trends in nature values for the Natura 2000 area concerned. The description will be the most accurate one for deriving the baseline condition. This applies to the bird species and habitat varieties specified

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in the Directives, as well as to species habitats and habitat types. In 2010, the baseline condition for every area in question has to be clear. Understand that this does not mean the aggregate status per species or habitat type in the Netherlands, but the individual status for each of the 162 different areas. Damage to other than Natura 2000 areas Regarding damage in areas other then Natura 2000 ones (category e and f habitats), it will be more difficult to obtain information from which to establish or derive the baseline condition. Area boundaries A key factor in determining baseline conditions involves area boundaries. Setting the boundaries for an area is not part of its designation as a Natura 2000 area. It might also be necessary to establish the baseline condition for a subdivision of a designated area. For example, many species have different habitats in each area, so that damage to a forest should not be imputed to a species of bird that can hatch its eggs in a forest, but does so in the heathland of the area concerned. Moreover, the specific circumstances of a particular area where the damage occurs can determine whether there is a significant adverse effect. Accordingly, area boundaries are also an issue for step 5, which deals with the damage threshold. Step 3 Damage Damage is a measurable adverse change in a natural resource or measurable impairment of an ecosystem function, the damage occurring directly or indirectly. Natural resources are protected species, natural habitats, water and soil. The change has to be adverse. It is necessary to determine whether the new situation that has arisen or threatens to arise because of the damage is worse than the baseline condition. Damage to nature always involves a change in a protected species, or change and impairment of the natural habitats. In assessing the situation, it has to be clear that the reduction in the number of birds of the species concerned is attributable to the cause of the damage in question. An approach that can make distinctions is required, one that takes into account natural fluctuations and other factors. It has to be demonstrated that the adverse change in the natural resource resulted from the incident under investigation. An adverse effect also arises if the adverse change in the species population or habitat impairs the ecosystem concerned. An ecosystem refers to the function that the protected species and habitats fulfil for other natural resources or the human population. An adverse effect is more than the direct or indirect occurrence of the adverse change in the natural resources and impairment of the ecosystem. It has to be seen in wide context. Not only are the immediate adverse effects on a species or habitat relevant, but also the long-term effects and the effect that certain species and habitats (including their functions) can have on other species and habitats.

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Measurable A prerequisite is that the adverse change has to be quantifiable. It can be assumed that a competent authority can take measures only insofar as effects can be quantified. If an effect cannot be quantified, it cannot be adverse and hence no environmental damage can be established. Consequently, the rules for environmental liability cannot be applied, even if the probability of damage is very high. The quantifying must employ the best available techniques. Step 4 Favourable conservation status Of necessity, damage to nature has implications for achieving or maintaining the favourable conservation status of protected species or natural habitats. Article 2(4) of EC’s Environmental Liability Directive defines what is understood by “favourable conservation status”. This is almost identical to the one in the Habitats Directive, which is included in the 1998 Nature Conservancy Act. Habitat The conservation status of a natural habitat refers to the sum of the influences acting on that natural habitat and its typical species that may have long-term implications for its natural range, structure and functions, or for the long-term survival of these species within the European territory of the Member States to which the Treaty establishing the European Community applies, the territory of a Member State, or the natural range of the habitat. The conservation status of a natural habitat is deemed favourable if: - its natural range and the area it covers within that range are stable or increasing; and - the specific structure and functions necessary for its long-term maintenance exist and are

likely to continue to exist for the foreseeable future; and - the conservation status of its typical species is favourable, as defined below. Species The conservation status of a species refers to the sum of the influences acting on that species that may have long-term implications for the range and abundance of its populations within the European territory of the Member States to which the Treaty establishing the European Community applies, the territory of a Member State, or the natural range of the species. The conservation status of a species is deemed favourable if: - population dynamics data on the species concerned indicate that it is still a viable

component of the natural habitats where it exists, and is likely to remain so for the long term; and

- the natural range of the species is neither shrinking nor is likely to do so in the foreseeable future; and

- there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis.

What information is already available to define the favourable conservation status?

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The objectives for the conservation status of the Natura 2000 areas concerned are described in the designation orders. The document Natura 2000 Objectives can also be consulted. Based on the above-mentioned information, the favourable conservation status can be defined for these areas. What information is becoming available? Under the 1998 Nature Conservancy Act, a management plan will have to be prepared for all Natura 2000 areas within three years of being designated as such an area. A management plan is to contain the conservation goals specified by time, place and extent. It will provide the most accurate description for deriving the favourable conservation status. This applies to the bird species and habitat varieties specified in the Directives, as well as to species habitats and habitat types. Understand that this does not mean the aggregate status per species or habitat type in the Netherlands, but the individual status for each of the 162 different areas. Favourable conservation status in other than Natura 2000 areas For areas that are not Natura 2000 ones, it will be more difficult to obtain information from which to establish the favourable conservation status. It might be possible to derive the status from exemptions granted under the Flora and Fauna Act. If the favourable conservation status cannot be established, then the competent authority concerned cannot determine whether there is any environmental damage or take any measures. DAMAGE THRESHOLD Step 5 Significant adverse effects according to Annex I to the Environmental Liability Directive The damage threshold is not reached until the adverse effect is significant compared with the baseline condition. Annex I to the Environmental Liability Directive provides criteria for determining whether an adverse effect is significant. Whether damage that has adverse effects on the achievement or maintenance of the favourable conservation status is significant is determined from the following: - the conservation status at the time the damage occurred; - the functions resulting from the perceived value of the protected species and natural

habitats; - the capacity of protected species and natural habitats for natural regeneration. Whether the baseline condition has undergone significant adverse changes is determined from measurable data such as: - the number of individuals, their population density or the area they cover; - the roles of the individuals or that of the damaged area in relation to the species or to the

habitat conservation, the rarity of the species or habitat, at local, regional, national or higher levels;

- the species' reproductive capacity, its viability or the habitat's capacity for natural regeneration;

- the capacity for recovery through natural dynamics only if stricter protection measures are implemented.

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It is important to remember that the above list is not exhaustive. Other factors can also come into play, and the competent authority has to consider each case separately. Damage with a proven effect on human health is deemed significant damage. The following need not be classified as significant damage: - adverse variations that are smaller than the normal average variations for the species or

habitat in question; - adverse variations due to natural causes or resulting from the normal management of

areas as: o recorded in habitat files or documents setting out the objectives; o carried out previously by owners or operators;

- damage to species or habitats from which it is known they will recover within a short time and without intervention to:

o the baseline condition, or o a status which leads, solely by virtue of the dynamics of the species or habitat

concerned, to a condition deemed equivalent or superior to the baseline condition. Application of the criteria in Annex I to the Environmental Liability Directive The Directive provides instructions to the Member States on how significance has to be determined. The criteria should not be considered as necessary or exclusive, with the Directive allowing Member States some latitude in how to apply them. No further detailing is given in the Wm, so competent authorities will have to use the criteria in Annex 1 as they are. Capacity for natural regeneration A key factor is the capacity for natural regeneration, which figures in determining whether damage is significant. This always means that, if the species and habitats concerned recover in a short time, there is no significant adverse effect. No fixed definition exists of “in a short time”, but the various factors mentioned in the Directive can help. No compulsion is attached to the Directive to give weight to these factors. An important one in every situation, however, is recognition of the natural ecological processes. Other aspects can also be taken into consideration when deciding what should be regarded as “in a short time”. Some examples are the functions resulting from the perceived value of the protected species and natural habitats, and the roles of the individuals or that of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat at local, regional, national or higher levels. Location of capacity for natural regeneration The capacity for natural regeneration will always have to be assessed case-by-case. All information in the designation orders and management plans on this subject must be taken into consideration. This also applies to other potential sources of information. Area boundaries The criteria defining the damage threshold indicate how to mark off the area within which the environmental damage has to be assessed. For example: - the area covered;

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- the roles of the individuals or that of the damaged area in relation to the species or to the habitat conservation, the rarity of the species or habitat at local, regional, national or higher levels; and

- the functions resulting from the perceived value of the protected species and natural habitats. A local adverse effect can therefore be significant, even though there is no impairment of the favourable conservation status nationally.

Function resulting from perceived value The role of a function resulting from perceived value is not the clearest of criteria. Practical examples will be needed to help fill in the details. A possible approach is to use this criterion in combination with the roles of the individuals or that of the damaged area, and the rarity of the species at local, regional, national or higher levels. To this end, reference points will exist in the management plans. Relationship to the 1998 Nature Conservancy Act and the Flora and Fauna Act Under the 1998 Nature Conservancy Act, a permit can be granted for intended operations that, given the conservation goals, quality of the natural habitats and the species habitats, could have an adverse or impairment effect. In this context, the activity in question will have to be assessed for significant consequences. The Flora and Fauna Act imposes a general duty of care for protected species, as well as several specific prohibitions, such as the ban on the killing, transporting and trade in such species. An exemption can be granted from the above obligation, on condition that the intended activity must not result in any substantial influence on the protected species in question. For assessing the damage threshold in the context of environmental liability, there is no direct relationship with the evaluation of the reasons stated in the 1998 Nature Conservancy Act and the Flora and Fauna Act for granting a permit or exemption. The concept of significant adverse effect from the perspective of environmental liability has a different character from that of significant consequence in the 1998 Nature Conservancy Act and that of substantial influence in the Flora and Fauna Act. It is therefore important to assess the significance of an adverse effect in the context of environmental liability. This demands a customised approach. A competent authority might be able to utilise assessments concerning significant consequence or substantial influence when processing an application for a permit or exemption under the 1998 Nature Conservancy Act or the Flora and Fauna Act, but will need to exercise extreme cautions if it does. The different natures of the concepts in these Acts have to be expressly taken into account. An aspect that makes this clear in the case of the concept of significant consequence is that the consequence relates to the conservation objective and not to the baseline condition. Impeding improvement is considered damage from the standpoint of the Nature Conservancy Act, but not as regards environmental liability. One reason for the concept of substantial influence being different in character from that of significant adverse effect is because it only exists if the species in question cannot survive. This concept is more severe than the concept of significantly adverse effect.

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Chapter 3 Procedures and legal protection 3.1 Introduction The components of the action plan for competent authorities can be rulings as well as actions themselves. As soon as a decision for a competent authority can be classed as a ruling, the procedure requirements of the Awb for the preparation of the decision apply and the entity performing the activity that caused the environmental damage (or its imminent threat) (the “perpetrator”) as well as third-party interests have the right to legal protection. This chapter assumes that a competent authority follows the standard (i.e. simplified) procedure for preparing rulings, as set out in Chapter 4 of the Awb. A competent authority has the right to order that the public preparation procedure of Part 3.4 of the Awb applies if it deems this procedure necessary (Section 10(1) of Book 3 of the Awb). This point is not handled further in these guidelines. 3.2 When is a ruling applicable? Section 3 of Book 1 of the Awb includes a definition of the term “ruling”. As regards this chapter, a key condition for issuing a ruling is that it has to concern a legal act under public law. There has to be a point at which something is ascertained judicially – establishing a fact is not enough in this context. Each of the seven following decision points from the action plan conforms to the definition of a ruling within the meaning of the Awb:

1. Decision on the request of a third party regarding measures. This relates to step 4: making a decision at the request of a third party for preventive or remedial measures to be taken (Section 17.15(1)).

2. Ordering preventive measures to be taken. This relates to step 6: ordering preventive measures to be taken in view of impending environmental damage (Section 17.12(4)).

3. Ordering further measures to be taken. This also relates to step 6: ordering all feasible measures to be taken in the case of environmental damage that has already occurred (Section 17.13(5)).

4. Competent authority deciding to take measures itself. This can take place at steps 6 and 9. At step 6, it involves a competent authority taking preventive measures in view of impending environmental damage and other measures in the case of environmental damage that has occurred (Sections 17.10 and 17.14(2)). At step 9, it involves the competent authority taking supplementary measures (Sections 17.10 and 17.14(2)).

5. Step 8: Approving proposed remedial measures and deciding which ones must be taken. This relates to step 8: deciding on remedial measures proposed by the perpetrator (Section 17.14(3)).

6. Designating the environmental damage to be remedied first. This relates to steps 6, 8 and 9. At step 6, it concerns setting the priority for environmental damage that has

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occurred; at step 8, it concerns approving proposed measures; at step 9, it concerns the competent authority taking remedial measures itself (Section 17.14(4)).

7. Waiving the right to recover costs and setting the amount of costs to recover. This is part of step 10 and concerns the recovery of costs incurred by the competent authority from the perpetrator (Section 17.16).

If the competent authority wishes to make one of the above decisions, it has to do so in the form of a ruling. 3.3 Procedure Preparatory procedure In broad terms, the legally required preparatory procedure is as follows: - If a request to make a decision is received, i.e. an application within the meaning of the

Awb, requirements apply to the request (for example, the provision of sufficient data). - Interested parties must be given the opportunity to be heard. - The decision must be announced and disclosed. - The competent authority has the right to direct that the decision takes effect immediately. Appendix B sets out the exact procedural requirements for each of the above seven ruling scenarios. Objections and appeals The perpetrator or another interested party can lodge an objection with the competent authority that made the decision (Section 3 of Book 6 in conjunction with Section 1 of Book 7 of the Awb). The objection has to be lodged within six weeks of the day on which the decision was announced (Section 7 of Book 6 in conjunction with Section 8 of Book 6 of the Awb). During this period, the interested party concerned can also apply to the President of the Administrative Law Division of the Council of State for a preliminary injunction (Section 20.3 of the Wm), assuming the party has actually lodged an objection. An interested party can lodge an appeal with the Administrative Law Division of the Council of State (Section 20.1 of the Wm) within six weeks of the decision being announced (Section 7 of Book 6 in conjunction with Section 8 of Book 6 of the Awb). During this period, the interested party concerned can also apply to the President of the Administrative Law Division of the Council of State for a preliminary injunction (Section 20.3 of the Wm), assuming the party has actually lodged an appeal.

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Chapter 4 Cost recovery 4.1 Introduction The entity performing the activity that caused the environmental damage (or its imminent threat) (the “perpetrator”) is liable for the environmental damage and hence also for the costs of the measures taken. In the first instance, the perpetrator must take the necessary measures. If this entity does not take them or have them taken, the competent authority can order it to do so. If the perpetrator still fails to take action, the competent authority can take the necessary measures itself or engage someone to take them. Apart from this, a competent authority can itself take measures at any time, including, for example, if the perpetrator takes measures, but they are inadequate. In principle, if the competent authority incurs costs, it must recover them from the perpetrator, the process being regulated by Section 17.16 of the Wm. The costs are those of the measures plus any additional ones. Some examples of additional costs are appraisal costs, administrative, legal and enforcement expenses, the costs of data collection and other general expenses, and costs relating to monitoring supervision (see Section 17.6(1) of the Wm for the definition of costs). Cost recovery in the case of environmental liability within the meaning of Section 17.16 of the Wm is different from cost recovery following enforcement of an administrative order under Section 25 of Book 5 of the Awb. Environmental liability is not within the scope of this Section of the Awb. In practice, enforcement of an administrative order to compel compliance with the provisions of Part 17.2 of the Wm is also not an obvious approach, as Part 17.2 has the legal mechanism to do this. However, Section 26 of Book 5 of the Awb has been declared applicable by analogy; a competent authority can now collect costs by means of a writ (see Section 17.16(2) of the Wm). 4.2 Block diagram of cost recovery The basic premise is that the competent authority has to recover all costs from the perpetrator. Section 17.16 of the Wm sets out the circumstances under which a competent authority must forgo the recovery of costs, and those in which it can choose to forgo recovering all or some of them. The diagram below summarises the alternatives. Basic rule: recover all costs

Compulsory waiving of cost recovery (exceptions I, II and III)

I. Environmental damage caused by a third party despite security measures being in place (see I of subchapter 4.3)

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II. Environmental damage resulting from a compulsory task or instruction (see II of subchapter 4.3) III. Competent authority waits too long to recover costs (see III of subchapter 4.3)

Permitted waiving of cost recovery (exceptions IV and V)

IV. Expenses involved in recovering costs exceed the amount to be claimed (see IV of subchapter 4.4) V. Reasonableness test (authorisation defence and state-of-the-art defence) is fully or partially withstood (see V of subchapter 4.4)

4.3 Compulsory waiving of cost recovery In certain cases, the competent authority has to waive the recovery of costs. Accordingly, it is not permitted to recover part of the costs of the measures concerned. I. Environmental damage caused by a third party despite security measures being in place The competent authority must waive the recovery of costs if a third party causes environmental damage despite the operator having standard security measures in place (Section 17.16(1)(a)). The environmental damage therefore originates with the operator, but results from the action of a third party. Under Section 17.2, only the operator can be held liable, not the third party. Example: The owner of an installation notices that it is discharging unintentionally. This appears to be the result of vandalism, despite the necessary security measures being in place (such as a locked fence around the installation). The third party might have performed the action accidentally or deliberately (as arson, vandalism or the like). The operator has to prove that it took appropriate security measures. II. Environmental damage resulting from a compulsory task or instruction The competent authority does not have the right to recover the costs if the environmental damage results from the perpetrator having performed a task or instruction on the orders of an administrative body (Section 17.16(1)(b)). The perpetrator has to prove that the environmental damage is a consequence of performing the task or instruction. Example: A regulation other than one in Part 17.2 of the Wm obliges a company to perform a certain activity that causes an undesirable emission and hence environmental damage. The competent authority designated under Part 17.2 of the Wm immediately takes the

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necessary measures to eliminate the environmental damage. This authority has no right to recover the incurred costs from the company.

However, if the compulsory order or instruction is issued in respect of an earlier emission or event resulting from an action by the perpetrator, this entity will have to bear the costs. Example: Owing to an emission by a company, an imminent threat of environmental damage has arisen. The competent authority designated under Part 17.2 of the Wm orders the company’s operator to take measures to prevent actual environmental damage. The measures prescribed are inadequate and environmental damage occurs. The competent authority immediately takes the measures necessary for remedying the damage. This authority has an obligation to recover the incurred costs from the operator. III. Competent authority waits too long to recover costs If a competent authority takes preventive or remedial measures itself, it has a five-year period after completion of the measures in which to recover the costs, i.e. to issue a ruling for recovering them. This authority has to recover the costs within five years, otherwise it forfeits the right to recover them (Section 17.7 of the Wm). If the identity of the perpetrator is known, the period of five years commences on the day the preventive or remedial measures taken by the competent authority are completed. Example: - Environmental damage was caused on 1 July 2007 - Competent authority completes measures on 15 July 2007 The authority has to issue a ruling before 15 July 2012 for recovery of the costs. Occasionally it is not clear who the perpetrator is. In such a situation, the limitation period does not commence until the competent authority knows the identity of the perpetrator. The competent authority concerned also has the right to decide not to recover the costs if the perpetrator’s identity cannot be established (Section 17.16(3)(b)). Example: - Environmental damaged was caused on 1 July 2007 and the entity that performed the corresponding activity is unknown - Competent authority completes measures on 15 July 2007 - The perpetrator’s identity is discovered on 1 May 2014 The competent authority has to issue a ruling before 1 May 2019 for recovery of the costs. Environmental damage (or its threat) resulting from an event or emission that occurred more than 30 years ago is outside the scope of Part 17.2 of the Wm (specifically, Section 17.8(c)(3)). Obviously, the costs cannot therefore be recovered under Section 17.16 of the Wm, as the 30-year period commences on the day of the event of emission.

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4.4 Permitted waiving of cost recovery In certain cases, a competent authority has the right to waive the recovery of costs. IV. Expenses involved in recovering costs exceed the amount to be claimed A competent authority has the right to waive the recovery of costs if the recovery expenses (and additional costs) exceed the amount to be claimed (Section 17.16(3)(a)). Partial waiving of cost recovery is not permitted. The principle is “all or nothing”. Despite the recovery expenses being greater than the amount to be claimed, the competent authority in question still needs to weigh up the pros and cons of recovering the costs. Because of the learning and precedent effects, it might, for example, nevertheless opt for cost recovery. Apart from recovery expenses exceeding the costs of preventive or remedial measures, reasons for forgoing cost recovery include the incident concerned being relatively unimportant or the perpetrator acting in good faith, with repetition of the incident not considered likely. V. Reasonableness test is withstood The law includes a provision covering exceptional circumstances under which recovery of costs would result in an obviously unreasonable situation. This is the reasonableness test of Section 17.16(4) of the Wm: “insofar as these costs should not reasonably be borne in full or in part by the entity performing the activity”. This reasonableness test applies only to activities conducted in conformity with permits (“authorisation defence”) and activities not deemed harmful at the time they were performed, based on the scientific and technological understanding existing then (“state-of-the-art defence”).

- Authorisation defence A competent authority can waive cost recovery fully or partially if the activity, emission or event that caused the environmental damage was explicitly allowed at the time by the permit concerned, the perpetrator acted in accordance with the permit, and there was no question of negligence. Merely holding a permit is not sufficient for a plea of authorisation defence to be successful. In practice, the permit needs to be one referred to in Annex III to the Environmental Liability Directive. In any case, it cannot be a permit under the 1998 Nature Conservancy Act, as Part 17.2 of the Wm does not apply anyway in this situation (Section 17.8 preamble and Section 17.8(b)). - State-of-the-art defence A competent authority can waive cost recovery fully or partially if the activity, emission or event that caused the environmental damage was not deemed harmful at the time and there was no question of negligence. The issue here is the objective level of science and technology when the activity, emission or event that caused the damage occurred.

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In every case, burden of proof is with the perpetrator. This entity has to prove it was not at fault or negligent and is invoking the authorisation defence or the state-of-the-art defence with good reason. A few more special conditions apply to the reasonableness test:

• The reasonableness test can also be applied for the competent authority to waive recovery of part of the costs. This does not apply to the exceptions of I to IV, which only allow recovery of all costs to be waived.

• In contrast to the exceptions of I to IV, the reasonableness test applies only to the costs of remedial measures, and not to those of preventive ones. All other costs, such as additional costs (administrative and legal fees for example) are also outside the domain of the test.

As regards environmental liability, the reasonableness test supplement the regulations laid down in the Awb for enforcing an administrative order (Section 25 of Book 5 of the Awb). Just as for an administrative order, a competent authority dealing with environment liability will have to decide whether it wants (and has the right) to waive recovery of all or part of the costs.

• According to established case law34 on administrative orders, recovery of costs is the rule and case law is conservative in granting exceptions to it.

o In the case of environmental liability, a competent authority has even less latitude as regards waiving the recovery of costs. This is because of the way Section 17.16(4) of the Wm is formulated, which permits the waiving of cost recovery only under highly specific circumstances.

• In the case of administrative orders, a major consideration for waiving the right to recover costs is non-culpability in combination with a strongly involved public interest in having the offence in question cancelled35.

o For environmental damage, the requirement of non-culpability is included in Section 17.16(4) of the Wm. Moreover, the reasonableness test is only expected to be relevant in practice as regards actual or impending environmental damage due to activities specified in Annex III. For other activities that come within the scope of Part 17.2 of the Wm because of actual or impending damage to protected species or natural habitats, the existence of fault or negligence is a condition (Section 17.7 of the Wm). In a case where a plea of authorisation defence or state-of-the-art defence is successful, there is probably no question of fault or negligence within the meaning of Section 17.7 of the Wm, and Part 17.2 is not applicable at all.

o As far as the public interest is concerned, this will likely not be allowed as a factor in deciding whether to waive recovery of costs in cases of environmental liability. It could be argued that in such cases the public interest is always served by the remedying of the damage. It would conflict with the Environmental Liability Directive to allow the perpetrator to use the public

34 See for example 16 May 2000, E03.98.0798, General Administrative Law Reports 2000, 334. 35 See Kakkerlakkenjurisprudentie [cockroach court case] (Netherlands Supreme Court 3 April 1981, Netherlands Law Reports NJ 1981/504 and General Administrative Law Reports 1981/380, ABRvS 23 August 1993, 1984/17). See ABRvS 31 July 1995, G03.92.0676, General Administrative Law Reports 1997, 16.

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interest in its defence, as this violates the polluter pays principle and burdens the government with the costs.

• Case law shows36 that, following enforcement of an administrative order, the amount of the costs can also be a factor in their recovery.

o As regards environmental liability, this would go against the rationale of the Directive, as this specifically ensures that the polluter bears all the costs. This means that, in the Dutch system, the size of the costs cannot be a differentiating criterion for environmental damage. Accordingly, the fact that the size of the costs has financial implications, entails the risk of insolvency and possible loss of employment must not figure in the deliberations.

Example of authorisation defence Owing to excessive rain, a drainage system covered by a permit overflows. The municipal authority as drainage system manager is not acting unlawfully and is not culpable because of the overflowing. In a situation such as this, the competent authority – the water quality board – decides, based on the outcome of the reasonableness test, to waive recovery of the costs. In case law on cost recovery through the enforcement of an administrative order, the fact that a local authority was carrying out one of its public duties is cited as a key factor for a board’s deliberations. What has to be avoided is a municipal authority performing its statutory duties with restraint because it fears being held liable for costs. Example of authorisation defence In its application for an environmental permit, an operator has proposed the use of a certain type of filter. The permit, however, prescribes the use of another type, which causes environmental damage. This damage would not have resulted from the type of filter proposed, at any rate, the damage would not have been so severe. In a situation such as this, the competent authority can decide, based on the outcome of the reasonableness test, to waive recovery of all or part of the costs. The operator did not act unlawfully. Moreover, the cause of the damage was entirely outside its control. Example of authorisation defence An operator holds a permit under the Pollution of Surface Waters Act for discharging certain substances into surface water. By mistake, other substances are discharged into the water, causing environmental damage. If the operator claims it bears no liability by virtue of Part 17.2 because of the permit for discharging substances, this defence will not succeed. The reason is that the operator violated the terms of the permit with the discharge in question. It is not the intention with Part 17.2 of the Wm to thwart existing case law on cost recovery for pollution from contaminated fire-extinguishing water. The point here is that the public interest demands an operator immediately calls on the fire brigade to help deal with a disaster, without having to worry about possible claims for costs.

36 See ABRvS 31 July 1995, G03.92.0676, General Administrative Law Reports 1997, 16.

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Chapter 5 Notification of environmental damage For each case of environmental damage and liability, the competent authority needs to provide the Minister of Housing, Spatial Planning and the Environment with the required data (Section 17.18 of the Wm). The Minister needs the information for the mandatory reporting to the European Commission. By 30 April 2013 at the latest, the Netherlands has to submit a one-off report to the Commission. This obligation on the Netherlands (and the other Member States) is defined in Article 18 of the Environmental Liability Directive. The above reporting obligation applies as from the date on which the Directive came into force, i.e. 30 April 2007. Clearly, if multiple bodies are competent authorities for the same instance of environmental damage, the body acting as coordinator fills out the notification form. For each case of environmental damage or the imminent threat of such damage, the competent authority in question has to provide the Minister with as much of the following information as is known:

a. geographical location of the environmental damage; b. contact data of the competent authority (or coordinating authority) that filled out the

damage report; this means the name, postal address and email address of the relevant department in the organisation concerned;

c. details of the perpetrator of the environmental damage: the natural or legal person that can be designated as “the entity carrying out the activity” within the meaning of Part 17.2 of the Wm;

d. the activity classification code of the perpetrator (based on the NACE codes of Regulation 3037/90/EEC; see http://europa.eu.int/eur-lex/lex/Notice.do?val=160394:cs&lang=nl&list=160395:cs,160394:cs,160393:cs,&pos=2&page=1&nbl=3&pgs=10&hwords= );

e. type of environmental damage (to soil, water, protected species and/or natural habitats)

f. the date on which the damage occurred and/or the date on which it came to light; g. the date on which the competent authority’s actions mandated or authorised by

Part 17.2 of the Wm commenced; h. appeal procedures if any and the results of them, including the nature of the appellants

and plaintiffs (the parties liable or interested third parties); i. the result of the remedial process; j. the date on which the competent authority’s actions mandated or authorised by

Part 17.2 of the Wm ended.

The above list is derived from Annex VI (first part) to the Directive. The competent authority concerned supplies the details as soon as it knows them, which often requires several notifications in practice. For example, the type of environmental damage will be communicated before the result of the remedial process.

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Competent authorities are requested to provide an update on cases of environmental damage, at least once a year before 1 February, assuming there is new information. They must send the update electronically using this form.

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Chapter 6 Competent authority, coordination and the powers of demand of the Minister of Housing, Spatial Planning and the Environment 6.1 Competent authority Sections 17.9(1) to 17.9(4) of the Wm define the competent authority as regards the provisions of Part 17.2. The regulations of Section 17.9 can be divided into cases where the environmental damage results from an activity performed inside an establishment recognised under the Wm and cases where the same activity is performed outside such an establishment. This emphatically does not concern where the environmental damage itself occurs. Both situations are discussed below. At the end of this subchapter is an overview of the various cases. Situation I: the environmental damage results from an activity performed inside an establishment recognised under the Wm Principal rule: In the case of environmental damage resulting from an activity performed inside an establishment recognised under the Wm, the competent authority is either the administrative body authorised to grant the establishment a permit under Section 8.1 of the Wm, or the administrative body that received a notification pursuant to Section 8.41 (an Order in Council notification). This is usually the council of the municipality where the establishment is located (Section 8.2 of the Wm), unless otherwise specified in the Environmental Management Installations and Permit Order, which often designates the Provincial Executive, or occasionally a Minister (Housing, Spatial Planning and the Environment, Economic Affairs, or Transport, Public Works and Water Management) as the competent authority. Section 8.2(3) also designates the Minister of Economic Affairs as the competent authority for mining works. There is only one administrative body designated as a competent authority for environmental damage caused by activities inside an establishment. This administrative body is then the competent authority for all environmental damage: to soil, water, protected species and natural habitats, both inside and outside the establishment concerned. Exceptions: - If the environmental damage is mainly to water, the competent authority is the

administrator that manages the waters affected. For national waters, this is the Minister of Transport, Public Works and Water Management; for regional waters, the particular water authority. They are accordingly the competent authorities for all environmental damage under this heading, irrespective of where it occurs.

- If the cause of the environmental damage is an activity involving genetically modified organisms (GMOs), the Minister of Housing, Spatial Planning and the Environment is the competent authority. The Minister is accordingly the competent authority for all environmental damage under this heading, irrespective of where it occurs.

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Situation II: the environmental damage results from an activity performed outside an establishment recognised under the Wm For environmental damage caused by an activity outside an establishment recognised under the Wm, the choice of competent authority depends on the type of damage. As a single activity can result in several types of environmental damage, several competent authorities could be involved. It is also possible for there to be several competent authorities for one type of environmental damage if the damage extends over a large area. The competent authorities for the different types of environmental damage (or the threat of damage) are as follows: - Soil: Provincial Executives, municipal councils of municipalities as designated by

Section 88 of the Soil Protection Act and the associated Order in Council, executive boards of regional public bodies, Minister of Housing, Spatial Planning and the Environment, Minister of Public Works and Water Management, water authorities, and in the case of environmental damage to water soil, the particular water authority or the Minister of Public Works and Water Management. The competent authority in any given case is determined in accordance with Sections 95(3) and 95(4) of the Soil Protection Act.

- Protected species: Minister of Agriculture, Nature and Food Quality; - Natural habitats: Provincial Executives or the Minister of Agriculture, Nature and Food

Quality. The competent authority in any given case is determined in accordance with Sections 16, 19d or 57 of the 1998 Nature Conservancy Act;

- Water: water boards (Minister of Transport, Public Works and Water Management or water authority concerned).

There is one exception to the above scheme: if the activity causing the environmental damage (or the threat of such damage) involves GMOs, the competent authority is the Minister of Housing, Spatial Planning and the Environment, irrespective of the type of environmental damage in question. Overview Activities inside an establishment recognised under the Wm: Wm competent authority unless:

- damage is mainly to water: competent authority is water board; - damage is caused by an activity involving GMOs: competent authority is

Minister of Housing, Spatial Planning and the Environment. Activities outside an establishment recognised under the Wm: possibly several competent authorities:

- damage to soil: competent authority in accordance with Soil Protection Act; - damage to protected species: competent authority is Minister of Agriculture,

Nature and Food Quality; - damage to natural habitats: competent authority in accordance with 1998 Nature

Conservancy Act; - damage to water: competent authority is water board,

unless the activity causing the damage involves GMOs, in which case

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competent authority is Minister of Housing, Spatial Planning and the Environment for all damage.

6.2 Coordination If an activity performed outside an establishment recognised under the Wm results in several types of environmental damage, multiple competent authorities could be involved, each for its related environmental sector. An example is a leaking tank lorry from which liquid is flowing into the soil as well as into the surface water. It is also possible for there to be several competent authorities for one type of environmental damage, if the damage extends over a large area, in two municipalities for example. Pursuant to Part 17.2 of the Wm, if environmental damage is caused by an activity performed inside an establishment recognised under this Act, there is always only one administrative body designated as the competent authority. In such cases, coordination is never necessary between administrative bodies so designated. However, coordination might be necessary with administrative bodies whose powers derive from other legislation. If several administrative bodies are designated as competent authorities, Sections 17.9(5) and 17.9(6) of the Wm require them to coordinate their actions. Moreover, this requirement applies not only to administrative bodies designated as competent authorities under Part 17.2, but also to administrative bodies so designated for the environmental damage in question under any other legislation. The competent authority responsible for the coordination manages all activities required by virtue of Part 17.2 of the Wm. The type of coordination mandated by law is set out below: - The administrative bodies agree among themselves which of them is to take responsibility

for the coordination. It is therefore obligatory to designate a single coordinator to manage their actions.

- Timely consultation takes place among the administrative bodies to ensure the best possible coordination of the decisions and measures they take.

- Handling approval of the remedial measures proposed by the entity performing the activity that caused the environmental damage (or the imminent threat of damage) is coordinated.

- Handling requests from third parties or other administrative bodies for measures to be taken is coordinated.

In addition to these statutory rules, competent authorities can consider applying the following procedures to the coordination: - Factors that can influence the decision as to which administrative body should be the

coordinator include which one has the most interest in the environmental damage being prevented or remedied, and which one has the knowledge, equipment, time and manpower to remedy the environmental damage (or have it remedied).

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- All actions concerning a case of environmental damage to be reported by the administrative bodies involved to the coordinator.

- The administrative bodies to consult each other very frequently about the progress of their actions.

A final point worth making is that many cases will entail coordination of all actions needing to be carried out in the interest of external safety and the accompanying regulations (such as the Severe Accident Risk Order). Clearly, coordination of the actions required under Part 17.2 of the Wm and coordination of those required because of external safety should not be done independently of each other. 6.3 Powers of demand of the Minister of Housing, Spatial Planning and the Environment The previous paragraphs dealt with who has to do what. If the coordination is not effective, however, or the competent authority fails to take action in time, the Minister of Housing, Spatial Planning and the Environment has the power to force the competent authority to take action, or take measures himself. Within the remit of the Minister of Housing, Spatial Planning and the Environment is the right to demand that the competent authority in question (municipal council, provincial executive or water authority): - determines who is performing the activity resulting in the actual or impending

environmental damage; - orders the entity performing the activity to take measures; - takes a decision on a request for approval of possible remedial measures; - decides whether to take measures itself if it is not possible to establish the identity of the

entity performing the activity concerned. The Minister will not make such a demand quickly if the competent authority takes the initiative. Moreover, the Minister has to discuss the matter in advance with the administrative body concerned (Section 17.15(2) of the Wm in conjunction with Section 18.8b(1)) unless urgency dictates otherwise. If this administrative body does not fully comply with the Minister’s demand, or not at all, the Minister can take measures himself for which the administrative body will have to bear the costs (Section 17.15(2) of the Wm in conjunction with Section 18.8a(2)).

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Chapter 7 Enforcement 7.1 Enforcement of administrative law Section 18.2g of the Wm obliges competent authorities to ensure enforcement of the provisions prescribed by or pursuant to Part 17.2 of the Wm. A competent authority can only do this, however, if there is an offence. In practice, a competent authority will then specifically impose a penalty payment order (Section 32 of Book 5 of the Awb). There will often be little reason to enforce an administrative order as Part 17.2 of Wm actually covers this. And in any case, a competent authority can always take preventive, control and remedial measures itself, so that the issue of an offence need not arise. A penalty order can be imposed in the following situations (provided an offence has been committed of course): - if the perpetrator provides no information even though the competent authority has

imposed an obligation on it to do so (Section 17.10(1)(a) of the Wm); - if the perpetrator provides no additional information even though the competent authority

has imposed an obligation on it to do so (Section 17.10(1)(b) of the Wm); - if the perpetrator fails to take the necessary preventive or remedial measures that the

competent authority has imposed an obligation on it to take (Section 17.10(1)(c) of the Wm);

- if the perpetrator fails to comply with instructions from the competent authority (Section 17.10(1)(d) of the Wm);

- if the perpetrator fails to immediately take the necessary preventive measures on its own initiative when there is an imminent threat of environmental damage (Section 17.12(1) of the Wm);

- if the perpetrator fails to provide any information to the competent authority when there is an imminent threat of environmental damage or fails to provide the authority with additional information (Section 17.12(2) of the Wm);

- if the perpetrator fails on its own initiative to take all feasible measures to keep the environmental damage under control, limit its effect, remove it or manage it in some other way (Section 17.13(1) of the Wm);

- if the perpetrator fails on its own initiative to provide the competent authority with any information in the event of environmental damage occurring (Section 17.13(2) of the Wm);

- if the perpetrator fails to submit a list of remedial measures to the competent authority (Section 17.13(6) of the Wm);

- if the perpetrator fails to keep to the agreed order for taking the remedial measures (Section 17.14(4) of the Wm);

- if the perpetrator fails to disclose the extent of the environmental damage (Section 17.14(3) of the Wm);

- if the legal owner of a property involved does not permit the measures concerned to be taken (Section 17.11 of the Wm).

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Chapter 3 describes the procedure the competent authority needs to follow for imposing a penalty order and what the options are regarding legal protection. 7.2 Enforcement of criminal law Apart from enforcement of administrative law, enforcement of criminal law is a possibility. Procedures and legal protection apply in this case, too. Sections 1a(1) and 1a(2) of the Economic Offences Act (EOA) define which offences are economic ones. If an economic offence is committed deliberately it is a crime, otherwise it is a misdemeanour (Section 2(1)) of the EOA). Section 6 of this Act sets out the highest prison sentence and category of fine that can be imposed. Section 23(4) of the Netherlands Penal Code specifies the size of the fines. The table below sets this out in detail. Action Section of

Wm Section of EOA

Punishment Misdemeanour Crime

Legal owner of property refuses to permit measures to be taken.

17.11

Section 1a(2)

detention not exceeding six months, community service or fine of € 16,750 *

imprisonment not exceeding two years, community service or fine of € 16,750 *

Perpetrator fails to inform competent authority about impending environmental damage as quickly as possible and/or fails to provide additional information.

17.12(2)

Perpetrator fails to inform competent authority about environmental damage as quickly as possible.

17.13(2)

Perpetrator fails to submit list of remedial measures to competent authority.

17.13(6)

Perpetrator fails to take preventive measures immediately against impending environmental damage.

17.12(1) 1a(1)

detention not exceeding one year, community service or fine of € 16,750 *

imprisonment not exceeding six years, community service or fine of € 67,000 * Perpetrator fails to take every

feasible measure to keep the environmental damage under control, limit its impact, etc.

17.13(1)

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* Additional punishments can also be imposed, such as a temporary shutdown of the guilty party’s operation where the economic offence was committed, or publication of the court’s judgement. These guidelines do not cover the procedures and legal protection for criminal cases. 7.3 National punishment strategy A decision model has been developed especially for situations where it has to be determined whether action under administrative law is required, under criminal law, or under both regimes. The model defines a national punishment strategy for the enforcement of environmental law, and can be downloaded from http://www.lim-info.nl/aspx/get.aspx?xdl=/views/lim/xdl/page&VarIdt=49&SitIdt=116&ItmIdt=31746&popup=popupextra. Most provinces have adapted the national strategy to create provincial punishment strategies or enforcement strategies, the majority including agreements on the exchange of information. The essence of the agreements is to consider primarily the serious of an offence and to set the severity of the punishment in line with this. In situations where multiple authorised bodies are or could be dealing with an offence, it is important to make proper agreements up front about which competent authority is going to act as leading or coordinating competent authority. Insofar as agreements might still be outstanding, the obvious solution is to make them during the regular administrative coordination meetings organised by the Provincial Executive in accordance with Section 18.3b of the Wm. Refer to chapter 6 for the issue of which body is the competent authority for enforcement and which is the coordinator for enforcement cases.

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Chapter 8 Relationship to other regulations If Part 17.2 of the Wm does not apply, a competent authority can take action in the event of actual or impending environmental damage, based on other regulations. It is also possible that other regulations apply at the same time as Part 17.2, so that an overlap exists. Section 17.9(7) of the Wm is decisive in such situations. This Section lays down that the administrative body involved with a case of environmental damage has the right to use all powers available from other regulations, provided no conflict arises with Part 17.2. In other words, Part 17.2 of the Wm takes precedence. This chapter discusses the regulations that might apply alongside or instead of Part 17.2. The table below is a list of the relevant regulations. Following this, is a discussion of each in some detail. At the end of the chapter, there is an example situation.

Damage threshold exceeded: Part 17.2 of the Wm and Acts listed all apply, unless they conflict.

Damage threshold of Part 17.2 of the Wm

Damage under the threshold: Part 17.2 does not apply, but the following might: - Part 17.1 of the Wm: measures for damage caused by an establishment recognised under

the Wm - Soil Protection Act: prevention and remedying of damage to soil - Pollution of Surface Waters Act (later the Water Act): possible permit regulations in

cases of unusual occurrences - Water Act: compulsory adoption of disaster plan - 1998 Nature Conservancy Act and Flora and Fauna Act: permit and prohibitions - Civil Code: legal action to claim damages by private individuals and others - Financial Security (Environmental Management) Decree: obligation in permit to

provide financial security - Serious Accidents Act: disaster plan, division of tasks, powers and responsibilities in the

event of a disaster - Risks (Serious Accidents) Decree: obligations for government and industry regarding

procedures for guaranteeing safety - External Safety (Establishments) Decree: risk standards for external safety

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Part 17.1 of the Wm Part 17.1 of the Wm states that unusual incidents inside an establishment have to be reported and that the operator of the establishment has to take measures to prevent, limit and remedy damage. If the owner fails to take measures in the event of an unusual incident, the competent authority can proceed to apply the law, for example, by enforcing an administrative order. In principle, the competent authority has to recover the costs from the perpetrator. Part 17.2 of the Wm confers more powers on a competent authority than Part 17.1 does. Moreover, Part 17.1 relates only to environmental damage from unusual incidents inside an establishment and confers powers only on the competent authority designated under the Wm. For as long as it remains unclear whether the damage threshold has been breached due to an incident inside an establishment, it is also unclear whether there is only an unusual incident within the meaning of Section 17.1 of the Wm, or also actual environmental damage or the imminent threat of such damage within the meaning of Section 17.2. Until there is clarity, the unusual regulation of Part 17.1 applies and the competent authority can use it as the basis for further action. As soon there is environmental damage (or its imminent threat), the competent authority needs to base further action on Part 17.2 as well. Soil Protection Act The provisions for the prevention and remedying of damage to the soil are contained in the Soil Protection Act37. Since 1987, the duty of care under this Act has applied to everyone who knows or might reasonably have suspected that his actions can pollute or degrade the soil. Persons whom this concerns are obliged to take all measures that can reasonably be demanded of them to prevent the pollution or degrading, or, if the pollution or degrading occurs, to limit the pollution or degrading and the direct effects, and reverse them as much as possible. If the pollution or degrading is the result of an unusual incident, measures must be taken immediately in accordance with Sections 30 to 35 of the Soil Protection Act. The powers for recovering costs are regulated by Section 75 of this Act. Part 17.2 of the Wm and the Soil Protection Act overlap considerably. One of the differences is that, in contrast to the Soil Protection Act, Part 17.2 includes, among other provisions, compulsory cost recovery. Another is that the Soil Protection Act mandates a wider duty of care, not limited to professional or operational activities. Pollution of Surface Waters Act Under the Pollution of Surface Waters Act, it is forbidden to discharge waste substances, or polluting or hazardous substances into surface water without a permit. The permit can include the condition that, in the event of an unusual incident, provisional measures have to be taken, such as temporary suspension of the discharging at a sewage treatment plant. Compliance can

37 In the case of actual or impending damage to soil inside an establishment recognised under the Wm, action can also be taken by virtue of the Wm permit. Such permits as a rule contain conditions applying to activities inside the establishment that entail the risk of soil pollution. In principle, the operator of the establishment will have to remedy all pollution that arises during the term of the permit. The competent authority concerned can initiate enforcement if the operator of the establishment fails to comply with the conditions of the Wm permit. If the permit does not regulate this, the duty of care provisions can be applied (Section 13 of the Soil Protection Act).

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be enforced by the competent authority concerned by issuing a penalty payment order or administrative order. In principle, the competent authority has to recover the costs from the perpetrator. Part 17.2 of the Wm and the Pollution of Surface Waters Act partially overlap. For example, the discharging of drain overflows is prohibited under the Pollution of Surface Waters Act, and if the damage threshold is breached, the discharging is within the scope of Part 17.2 of the Wm as well. Part 17.2 of the Wm confers more powers on a competent authority than the Pollution of Surface Waters Act does. The Pollution of Surface Waters Act will be replaced by the Water Act. Discharging into surface water without a water permit is forbidden by the Water Act. Conditions can be attached to a water permit. These include providing financial security to cover the liability for damage resulting from the adverse effects on a water system attributable to the use of the permit. Certain discharges will no longer require a permit, as they are regulated by the Activities Decree. 1998 Nature Conservancy Act and the Flora and Fauna Act The 1998 Nature Conservancy Act regulates the conservation of the types of area specified in the Habitats Directive and the Birds Directive, as well as the conservation of protected natural monuments. Without a permit or in violation of a permit’s conditions, it is forbidden to carry out projects or other activities that could impair the quality of the natural habitats of species in an area, or disturb species for which the area is designated. The Flora and Fauna Act regulates the protection of plants and animal species. They include a number of prohibitions (on picking, killing, etc.), although exemptions can be granted from them. In the event of actual or impending environmental damage, a competent authority can proceed to enforce an administrative order or impose a penalty payment order. Part 17.2 of the Wm confers more powers on a competent authority than the 1998 Nature Conservancy Act and the Flora and Fauna Act do. It does not apply, however, to environmental damage for which a permit, exemption or dispensation has been granted under the aforementioned Acts (Section 17.8 preamble and Section 17.8(b) of the Wm). Civil Code The Civil Code includes a general liability regulation for damage resulting from unlawful acts, and a few specific provisions applying to environmental liability. Under this legislation, it is possible to recover the cost of damage to private individuals resulting from environmental damage or its imminent threat, such as physical injury, damage to private property or financial loss. A competent authority can invoke the Civil Code for damage outside the scope of Part 17.2 of the Wm, for example, where the damage threshold is not breached, so that there is no environmental damage within the meaning of Part 17.2. Private individuals can also invoke the Civil Code, Part 17.2 giving them no right to compensation. Financial Security (Environmental Management) Decree Based on the Financial Security (Environmental Management) Decree, a competent authority can attach conditions to a permit issued under the Wm, mandating the provision of financial security as a way of ensuring compliance with the terms of the permit. Such conditions relate to the storage of waste substances or the management of waste following the termination of activities in an establishment.

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The Decree is limited to establishments in category 28 of the Environmental Management Installations and Permit Order (Inrichtingen- en vergunningenbesluit milieubeheer) and other establishments with a storage capacity exceeding 10 m3 for hazardous waste. A further condition is that the cost of managing this waste has to be more than € 10,000. Serious Accidents Act The Serious Accidents Act regulates the tasks, powers and responsibilities when dealing with disasters. A large number of the tasks have been delegated by the Dutch government to the municipal authorities, as regulated by this Act. The Act sets out the tasks the municipal authorities have, the preparations they are to make, and the command structure in the event of a disaster or major accident. Section 3 of the Act stipulates that the council of each municipality must adopt a disaster plan that forms the basis for combating all disasters that might occur in the municipality. The disaster plan defines the actions to be taken, as well as who is to carry them out and how this is to be done. Included in each plan are the tasks of the emergency services that are closely involved the most. Risks (Serious Accidents) Decree The Risks (Serious Accidents) Decree of 1999 specifies the requirements for the safety policies of companies that handle waste on a large scale. Its purpose is to prevent and limit accidents with hazardous substances. To this end, the obligations of companies include having a safety policy and a safety management system. Some companies must also prepare safety reports for submission to the government. Government bodies, too, have obligations based on the Decree. Using the information supplied by companies, they have to: - ascertain whether a major accident at a company could impact neighbouring companies

(risk of the domino effect); - assess the acceptability of the risks of major accidents involving hazardous substances; - ensure that spatial planning in practice keeps the risks for neighbouring areas within

acceptable limits; - prepare disaster plans for companies that have an obligation to submit safety reports. External Safety (Establishments) Decree The External Safety (Establishments) Decree specifies risk standards for external safety for companies that keep hazardous substances on their premises. Its purpose is to guarantee private individuals and population groupings a minimum level of protection against accidents involving hazardous substances. To this end, the Decree obliges competent bodies under the Wm and the Spatial Planning Act to ensure the separation – in their respective municipalities or provinces – of vulnerable objects and high-risk companies. The Decree also imposes a restriction on the total number of people living in the direct vicinity of a high-risk company. Municipal and provincial authorities must observe the standards in the Decree when preparing zoning plans and when processing applications for environmental permits. Disaster regulations based on the Water Act The draft parliamentary bill for the Water Act includes the obligation to prepare a disaster plan. The explanatory memorandum to the bill set this out as follows: “A disaster plan is a type of organisational overview and a warning and action list for reacting to disasters relating

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to the water system. It assists the manager and those responsible for dealing with disasters and for the associated coordination. It is conceivable for the content of a disaster plan to depend on the type and size of the water system to be managed. A disaster plan needs to e comprehensive, covering all types of threat to the water system concerned that its manager is aware of, if possible including the relationships between the various types of threat.” Example of overlap An unusual incident occurs inside an establishment, resulting in damage to the soil. The damage exceeds the damage threshold. The various competent authorities involved can take action based on different regulations:

• Part 17.2 of the Wm • Part 17.1 of the Wm • violation of the conditions in the Wm permit; • duty of care in the Soil Protection Act (as catch-all).

In this example, cost recovery has to be: • partly in accordance with Part 17.2 of the Wm (for the damage exceeding the

threshold); • the rest in accordance with the Soil Protection Act, Part 17.1 of the Wm, or the Wm

permit. The natural or legal person held liable will have to be clearly informed regarding which costs are being recovered by which authority and on which legal basis.

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Appendix A. Links Click here for the text of Part 17.2 of the Wm. Click here for the text of the Explanatory Memorandum to the draft parliamentary bill. Click here for Directive 2004/35/CE of the European Parliament and the Council of Europe of 21 April 2004 on environmental liability relating to the prevention and remedying of environmental damage.

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Appendix B. Procedures The procedures for the seven rulings referred to in chapter 3 are described below. They are derived from the Awb and supplemented with provisions from Part 17.2 of the Wm. The rulings in question are: Each of the seven following decision points from the action plan conforms to the definition of a ruling within the meaning of the Awb:

1. Deciding on the request from a third party regarding measures. This relates to step 4: making a decision at the request of a third party for preventive or remedial measures to be taken (Section 17.15(1)).

2. Ordering preventive measures to be taken. This relates to step 6: ordering preventive measures to be taken in view of impending environmental damage (Section 17.12(4)).

3. Ordering further measures to be taken. This also relates to step 6: ordering all feasible measures to be taken in the case of environmental damage that has already occurred (Section 17.13(5)).

4. Competent authority deciding to take measures itself. This can take place at steps 6 and 9. At step 6, it involves a competent authority taking preventive measures in view of impending environmental damage and other measures in the case of environmental damage that has occurred (Sections 17.10 and 17.14(2)). At step 9, it involves the competent authority taking supplementary measures (Sections 17.10 and 17.14(2)).

5. Approving proposed remedial measures and deciding which ones must be taken. This relates to step 8: deciding on remedial measures proposed by the perpetrator (Section 17.14(3)).

6. Designating the environmental damage to be remedied first. This relates to steps 6, 8 and 9. At step 6, it concerns setting the priority for environmental damage that has occurred; at step 8, it concerns approving proposed measures; at step 9, it concerns the competent authority taking remedial measures itself (Section 17.14(4)).

7. Waiving the right to recover costs and setting the amount of costs to recover. This is part of step 10 and concerns the recovery of costs incurred by the competent authority from the perpetrator (Section 17.16).

1. Deciding on the request from a third party regarding measures (step 4): Such a request constitutes an application within the meaning of the Awb (Section 3 of Book 1 of the Awb). The request has to be signed and include at least (Section 2(1) of Book 4 of the Awb): 1. name and address of the applicant; 2. date of signing; 3. the ruling requested. All information and documents that are needed for making a decision on the application and reasonable for the applicant to obtain have to be submitted with the application (Section 2(2) of Book 4 of the Awb).

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An administrative body only has an obligation to send the applicant a confirmation of receipt for requests submitted electronically (Section 3a of Book 4 of the Awb); this is also advisable, however, for requests submitted on paper. If the administrative body receiving the application is not the correct competent authority, it must forward the request to the correct one (Section 3 of Book 2 of the Awb). A competent authority can refuse to consider a request if, for example, it does not include sufficient information (Section 5 of Book 4 of the Awb). If a competent authority refuses to consider a request for this reason, it must give the requester the opportunity to send more information within an agreed time limit (Section 5 of Book 4 of the Awb). If the competent authority in such a case decides not to consider the request, it must inform the requester accordingly within four weeks of the request being completed or after the agreed time limit has expired and no more information has been sent (Section 5(4) of Book 4 of the Awb). Before a competent authority makes its decision, it must offer the interested parties (including the entity performing the activity that caused the environmental damage (or the imminent threat of the damage) (the perpetrator) the opportunity to be heard (Section 8 of Book 4 of the Awb), unless urgency dictates otherwise (Section 11 of Book 4 of the Awb). The grounds for a ruling can be given up to a week after the ruling itself, if issuing it is too urgent to wait for the grounds.38 A competent authority has to make its decision within a reasonable time (Section 13 of Book 4 of the Awb). A competent authority’s decision is therefore either to issue a ruling demanding that the perpetrator takes preventive or additional measures, or to reject the request of the third party (and accordingly not demand that any measures be taken). The decision must be communicated by mail or hand delivery to the interested parties for whom it is intended (Section 41 of Book 3 of the Awb). These always include the requester, the perpetrator if possible, and any third party that has to allow certain activities to be carried out on its property. In all cases, the competent authority has to communicate its decision to those parties who expressed their opinions, one of them therefore being the perpetrator (Section 43 of Book 3 of the Awb). The message states when and how the decision was announced (Section 43(2) of Book 3 of the Awb) and, regarding an appeal, by whom, by when and with which administrative body it can be lodged (Section 45 of Book 3 of the Awb). The announcement of the decision states by whom, by when and with which body an appeal can be lodged (Section 45 of Book 3 of the Awb). The obligation to give grounds for a decision (Section 46 of Book 3 of the Awb) entails a competent authority having to include in it consideration of the opinions expressed. The grounds can be omitted entirely if it can reasonably be assumed that there is no need to include them in the decision. However, if an interested party asks within a reasonable time what the grounds are, they will be communicated to this party as quickly as possible (Section 48 of Book 3 of the Awb). 2. Ordering preventive measures to be taken (step 6) 38 Section 47 of Book 3 of the Awb.

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Before a competent authority makes its decision, it must offer the interested parties (including the perpetrator) the opportunity to express their opinions and enable the relevant administrative bodies and government agencies to give their advice (Section 17.12(5) of the Wm in conjunction with Sections 8 and 11 of Book 4 of the Awb). The competent authority in a particular case can omit this if the urgency of the situation is too great. The grounds for a ruling can also be given up to a week after the ruling itself, if issuing it is too urgent to wait for the grounds39. For its decision, a competent authority has to factor in the views expressed and take into account the advice given (Section 17.12(6) of the Wm). To re-emphasize the point, a competent authority must issue its ruling in writing (Section 17.10(3) of the Wm; this also follows from Section 3 of Book 1 of the Awb). The ruling includes the names of the persons who gave their advice. Alternatively, this information can be provided in an annex to the ruling (Section 8 of Book 3 of the Awb). To underpin a decision or part of one, it is sufficient to refer to advice given, provided the advice includes the grounds and was or is acknowledged (Section 49 of Book 3 of the Awb). The obligation to give grounds for a decision (Section 46 of Book 3 of the Awb) also entails a competent authority having to include in it consideration of the opinions expressed. The grounds can be omitted entirely if it can reasonably be assumed that there is no need to include them in the decision. However, if an interested party asks within a reasonable time what the grounds are, they will be communicated to this party as quickly as possible (Section 48 of Book 3 of the Awb). If an administrative body makes a decision that differs from advice in accordance with a statutory regulation (see above), the reason for the deviation must be included in the grounds for the decision (Section 50 of Book 3 of the Awb). The decision must be communicated by mail or hand delivery to the interested parties for whom it is intended (Section 41 of Book 3 of the Awb), which always includes the perpetrator. In all cases, the competent authority has to communicate its decision to those parties who expressed their opinions (Section 43 of Book 3 of the Awb) and to the administrative bodies and government agencies that are in a position to give advice (Section 17.10(3) of the Wm in conjunction with Section 17.12(6)). The message states when and how the decision was announced (Section 43(2) of Book 3 of the Awb) and, regarding an appeal, by whom, by when and with which administrative body it can be lodged (Section 45 of Book 3 of the Awb). 3. Ordering further measures to be taken (step 6) Before a competent authority makes its decision, it must offer the interested parties (including (the perpetrator) the opportunity to express their opinions and enable the usual administrative bodies and government agencies to give their advice (Section 17.13(5) of the Wm in conjunction with Sections 8 and 11 of Book 4 of the Awb). The competent authority in a particular case can omit this if the urgency of the situation is too great. The grounds for a ruling can also be given up to a week after the ruling itself, if issuing it is too urgent to wait for the grounds (Section 47 of Book 3 of the Awb)40.

39 Section 47 of Book 3 of the Awb. 40 Section 47 of Book 3 of the Awb.

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For its decision, a competent authority has to factor in the views expressed and take into account the advice given (Section 17.13(6) of the Wm). To re-emphasize the point, a competent authority must issue its ruling in writing (Section 17.10(3) of the Wm; this also follows from Section 3 of Book 1 of the Awb). The ruling includes the names of the persons who gave their advice. Alternatively, this information can be provided in an annex to the ruling (Section 8 of Book 3 of the Awb). To underpin a decision or part of one, it is sufficient to refer to advice given, provided the advice includes the grounds and was or is acknowledged (Section 49 of Book 3 of the Awb). The obligation to give grounds for a decision (Section 46 of Book 3 of the Awb) also entails a competent authority having to include in it consideration of the opinions expressed. The grounds can be omitted entirely if it can reasonably be assumed that there is no need to include them in the decision. However, if an interested party asks within a reasonable time what the grounds are, they will be communicated to this party as quickly as possible (Section 48 of Book 3 of the Awb). If an administrative body makes a decision that differs from advice in accordance with a statutory regulation (see above), the reason for the deviation must be included in the grounds for the decision (Section 50 of Book 3 of the Awb). The decision must be communicated by mail or hand delivery to the interested parties for whom it is intended (Section 41 of Book 3 of the Awb), which always includes the perpetrator. In any event, the competent authority has to communicate its decision to those parties who expressed their opinions (Section 43 of Book 3 of the Awb) and to the administrative bodies and government agencies that are in a position to give advice (Section 17.10(3) of the Wm in conjunction with Section 17.13(5)). The message states when and how the decision was announced (Section 43(2) of Book 3 of the Awb) and, regarding an appeal, by whom, by when and with which administrative body it can be lodged (Section 45 of Book 3 of the Awb). 4. Competent authority deciding to take preventive, further or additional measures itself, or to have them taken (steps 6 and 9) Before a competent authority makes its decision, it must offer the interested parties (including the perpetrator) the opportunity to express their opinions and enable the usual administrative bodies and government agencies to give their advice (Section 17.10(3) of the Wm in conjunction with Sections 17.14(2) and 17.14(6) and with Sections 8 and 11 of Book 4 of the Awb). The competent authority in a particular case can omit this if the urgency of the situation is too great. The grounds for a ruling can be given up to a week after the ruling itself, if issuing it is too urgent to wait for the grounds41. For its decision, a competent authority has to factor in the views expressed and take into account the advice given (Section 17.14(5) of the Wm). A competent authority must take into account the nature, extent and severity of the environmental damage, and the risk of danger to human health and natural regeneration (Section 17.14(5) of the Wm). To re-emphasize the point, a competent authority must issue its ruling in writing (Section 17.10(3) of the Wm; this also follows from Section 3 of Book 1 of the Awb). A competent 41 Section 47 of Book 3 of the Awb.

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authority has to communicate its decision to the administrative bodies and government agencies that are in a position to give advice (Section 17.10(3) of the Wm in conjunction with Sections 17.14(2) and 17.14(6)). A ruling includes the names of the persons who gave their advice. Alternatively, this information can be provided in an annex to the ruling (Section 8 of Book 3 of the Awb). To underpin a decision or part of one, it is sufficient to refer to advice given, provided the advice includes the grounds and was or is acknowledged (Section 49 of Book 3 of the Awb). The obligation to give grounds for a decision (Section 46 of Book 3 of the Awb) also entails a competent authority having to include in it consideration of the opinions expressed. The grounds can be omitted entirely if it can reasonably be assumed that there is no need to include them in the decision. However, if an interested party asks within a reasonable time what the grounds are, they will be communicated to this party as quickly as possible (Section 48 of Book 3 of the Awb). If an administrative body makes a decision that differs from advice in accordance with a statutory regulation (see above), the reason for the deviation must be included in the grounds for the decision (Section 50 of Book 3 of the Awb). The decision must be communicated by mail or hand delivery to the interested parties for whom it is intended (Section 41 of Book 3 of the Awb), which always includes the perpetrator. A competent authority must also communicate its decision to those parties who expressed their opinions (Section 43 of Book 3 of the Awb) and to the administrative bodies and government agencies that are in a position to give advice (Section 17.14(5) of the Wm). The message states when and how the decision was announced (Section 43(2) of Book 3 of the Awb) and, regarding an appeal, by whom, by when and with which administrative body it can be lodged (Section 45 of Book 3 of the Awb). 5. Approving proposed remedial measures and deciding which ones must be taken (step 8) Before a competent authority makes its decision, it must offer the interested parties (including the perpetrator) the opportunity to express their opinions and enable the usual administrative bodies and government agencies to give their advice (Section 17.10(3) of the Wm in conjunction with Sections 17.14(2) and 17.14(6) and with Sections 8 and 11 of Book 4 of the Awb). The competent authority in a particular case can omit this if the urgency of the situation is too great. The grounds for a ruling can be given up to a week after the ruling itself, if issuing it is too urgent to wait for the grounds42. For its decision, a competent authority has to factor in the views expressed and take into account the advice given (Section 17.14(5) of the Wm). A competent authority must take into account the nature, extent and severity of the environmental damage, and the risk of danger to human health and natural regeneration (Section 17.14(5) of the Wm). To re-emphasize the point, a competent authority must issue its ruling in writing (Section 17.10(3) of the Wm; this also follows from Section 3 of Book 1 of the Awb). A competent 42 Section 47 of Book 3 of the Awb.

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authority has to communicate its decision to the administrative bodies and government agencies that are in a position to give advice (Section 17.14(5) of the Wm). A ruling includes the names of the persons who gave their advice. Alternatively, this information can be provided in an annex to the ruling (Section 8 of Book 3 of the Awb). To underpin a decision or part of one, it is sufficient to refer to advice given, provided the advice includes the grounds and was or is acknowledged (Section 49 of Book 3 of the Awb). The obligation to give grounds for a decision (Section 46 of Book 3 of the Awb) also entails a competent authority having to include in it consideration of the opinions expressed. The grounds can be omitted entirely if it can reasonably be assumed that there is no need to include them in the decision. However, if an interested party asks within a reasonable time what the grounds are, they will be communicated to this party as quickly as possible (Section 48 of Book 3 of the Awb). If an administrative body makes a decision that differs from advice in accordance with a statutory regulation (see above), the reason for the deviation must be included in the grounds for the decision (Section 50 of Book 3 of the Awb). The decision must be communicated by mail or hand delivery to the interested parties for whom it is intended (Section 41 of Book 3 of the Awb), which always includes the perpetrator. In all cases, a competent authority must also communicate its decision to those parties who expressed their opinions (Section 43 of Book 3 of the Awb) and to the administrative bodies and government agencies that are in a position to give advice (Section 17.14(5) of the Wm). The message states when and how the decision was announced (Section 43(2) of Book 3 of the Awb) and, regarding an appeal, by whom, by when and with which administrative body it can be lodged (Section 45 of Book 3 of the Awb). 6. Designating the environmental damage to be remedied first (steps 6, 8 and 9) Before a competent authority makes its decision, it must offer the interested parties (including the perpetrator) the opportunity to express their opinions and enable the usual administrative bodies and government agencies to give their advice (Section 17.14(5) of the Wm in conjunction with Sections 8 and 11 of Book 4 of the Awb). The competent authority in a particular case can omit this if the urgency of the situation is too great. The grounds for a ruling can be given up to a week after the ruling itself, if issuing it is too urgent to wait for the grounds43. For its decision, a competent authority has to factor in the views expressed and take into account the advice given (Section 17.14(5) of the Wm). A competent authority must take into account the nature, extent and severity of the environmental damage, and the risk of danger to human health and natural regeneration (Section 17.14(5) of the Wm). A ruling includes the names of the persons who gave their advice. Alternatively, this information can be provided in an annex to the ruling (Section 8 of Book 3 of the Awb). To underpin a decision or part of one, it is sufficient to refer to advice given, provided the advice 43 Section 47 of Book 3 of the Awb.

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includes the grounds and was or is acknowledged (Section 49 of Book 3 of the Awb). The obligation to give grounds for a decision (Section 46 of Book 3 of the Awb) also entails a competent authority having to include in it consideration of the opinions expressed. The grounds can be omitted entirely if it can reasonably be assumed that there is no need to include them in the decision. However, if an interested party asks within a reasonable time what the grounds are, they will be communicated to this party as quickly as possible (Section 48 of Book 3 of the Awb). If an administrative body makes a decision that differs from advice in accordance with a statutory regulation (see above), the reason for the deviation must be included in the grounds for the decision (Section 50 of Book 3 of the Awb). The decision must be communicated by mail or hand delivery to the interested parties for whom it is intended (Section 41 of Book 3 of the Awb), which always includes the perpetrator. In all cases, a competent authority must also communicate its decision to those parties who expressed their opinions (Section 43 of Book 3 of the Awb) and to the administrative bodies and government agencies that are in a position to give advice (Section 17.14(5) of the Wm). The message states when and how the decision was announced (Section 43(2) of Book 3 of the Awb) and, regarding an appeal, by whom, by when and with which administrative body it can be lodged (Section 45 of Book 3 of the Awb). 7. Waiving the right to recover costs and setting the amount of costs to recover (step 10) Before a competent authority makes its decision, it must offer the interested parties (including the entity performing the activity that caused the threat of the damage) the opportunity to be heard (Section 8 of Book 4 of the Awb), unless urgency dictates otherwise for example (Section 11 of Book 4 of the Awb). The grounds for a ruling can be given up to a week after the ruling itself, if issuing it is too urgent to wait for the grounds44. A competent authority has to make its decision within a reasonable time (Section 13 of Book 4 of the Awb). The decision must be communicated by mail or hand delivery to the interested parties for whom it is intended (Section 41 of Book 3 of the Awb), which always includes the perpetrator. The competent authority must also communicate its decision to those parties who expressed their opinions (Section 43 of Book 3 of the Awb). The message states when and how the decision was announced (Section 43(2) of Book 3 of the Awb) and, regarding an appeal, by whom, by when and with which administrative body it can be lodged (Section 45 of Book 3 of the Awb). The announcement of the decision states by whom, by when and with which administrative body an appeal can be lodged (Section 45 of Book 3 of the Awb). The obligation to give grounds for a decision (Section 46 of Book 3 of the Awb) entails a competent authority having to include in it consideration of the opinions expressed. The grounds can be omitted entirely if it can reasonably be assumed that there is no need to include them in the decision. However, if an interested party asks within a reasonable time what the grounds are, they will be communicated to this party as quickly as possible (Section 48 of Book 3 of the Awb).

44 Section 47 of Book 3 of the Awb.

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A competent authority can recover the costs by means of a writ. For more information on cost recovery, refer to chapter 4. Involvement of other bodies The parties to each of the rulings must include the bodies referred to in Section 17.2(3) of the Wm. Effective date Each of the rulings comes into effect on the day following that on which the six-week period for lodging an objection expires (Section 20.3 of the Wm in conjunction with Section 7 of Book 6 of the Awb). However, if during this six-week period a notice of objection is lodged and an application is made for a preliminary injunction to the President of the Administrative Law Division of the Council of State, the ruling concerned comes into effect later: - If the President suspends a ruling, it cannot come into effect until the merits of the case

have been assessed. - If the President does not suspend a ruling, it comes into effect, but can still be nullified

during the assessment of the merits of the case. NB A competent authority has the right to direct that its decision takes effect immediately if it considers that necessary (Section 20.5 of the Wm).