NETHERLANDS Law and Practice Contributed by: Guido Koop, Jan de Heer and Nanne Kusters, Loyens & Loeff
negatively impact the quality of surface waters. Fur- thermore, it contains the framework for the protection of soil and groundwater quality, including a general duty of care pursuant to which a party causing spills or leakages is, in principle, obliged to remediate any resulting soil and groundwater pollution. Similarly, the EPA contains rules for limiting air and odour emis- sions. The protection of flora, fauna, natural habitats and landscapes flows from EU regulations, the Birds Directive and the Habitats Directive. Where required, these have been codified in the EPA. 3.2 Breaching Protections Please see 4. Environmental Incidents and Permits regarding administrative and criminal enforcement actions available to the regulatory authorities. 4. Environmental Incidents and Permits 4.1 Investigative and Access Powers The power of regulatory authorities is generally gov- erned by the General Administrative Law Act ( Alge- mene wet bestuursrecht ) and in specific legislation where additional powers are granted. Supervisory authorities in the Netherlands have quite extensive investigative and access powers to carry out their tasks, generally including rights to: • access business locations (whether accompanied by the police or not); • obtain business-related data and documents (unless legally privileged); • obtain information, verbally or in writing; and • investigate objects and take samples. Investigations may take place unannounced. Follow- ing an inspection, an inspection report or an official report is usually drafted and sent to the site operator. The use of investigative powers must be proportional to the scope of the alleged violation. When confronted with investigations, there is a legal obligation to co-operate with the relevant authority, provided that the authorities safeguard against self- incrimination in respect of will-dependent material
(such as explanations) if such authority intends to impose a punitive sanction (such as a criminal sanc- tion or administrative fine). The validity/lawfulness of investigative actions can (only) be challenged in pro- ceedings against any actual enforcement measures. 4.2 Environmental Permits/Approvals In general, the environmental regulatory framework – as primarily stipulated in the EPA – will apply to all economical or comparable human activities of any substance that fall within the definition of an environ- mentally harmful activity ( milieubelastende activiteit ), as listed in the Environmental Activities Decree. Addi- tional rules may apply on the local level, although local rules may generally not be more stringent than the applicable national framework under the EPA and the Environmental Activities Decree. Within the categories of activities that are governed by the environmental regulatory framework, only those activities with a more substantial environmen- tal impact are required to operate under an environ- mental permit. The environmental permit for these activities can pertain to commencing a new activity, or to relevant subsequent changes to (parts of) such activities. Where an activity is not subject to a permit requirement, a notification obligation and general rules may still apply; certain local regulations as listed in the zoning plan may also apply. If necessary, an environmental permit to perform a new environmentally harmful activity, or to alter such activities, is applied for by submitting a permit appli- cation to the competent authorities. Under the EPA, most permits are set to be handled within a statutory decision period of eight weeks, which can be extended for a further six weeks. This is, however, not a fatal term. In some cases, the so-called “extended preparatory procedure” applies, which has a statutory decision period of six months. Again, there are no direct legal consequences if the authorities do not comply with this period. Under the regular procedure, the decision will be published, and third parties and/or the applicant can
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