NETHERLANDS Law and Practice Contributed by: Guido Koop, Jan de Heer and Nanne Kusters, Loyens & Loeff
12.3 Determining Liability In cases of multiple polluters, liability will have to be assessed on a case-by-case basis. The general duty of care in respect of soil and groundwater applies in any event: whichever party directly caused contami- nation can be held responsible for soil contamination, and so can all parties that are competent and capable to prevent or mitigate a violation of the general duty of care. Depending on the actual circumstances of the matter, polluters might be held jointly liable, or such liability might be attributed on a pro rata basis if their respective contributions to pollution can be substanti- ated. 12.4 Proceedings Against Polluters Interested parties may request enforcement from the competent authorities if they suspect soil contamina- tion. Upon such enforcement request, the competent authority will need to investigate whether contamina- tion has taken place. Under civil law, it may be possible to claim damages from another party on the basis of tort. 12.5 Investigating Environmental Accidents Investigations by the competent authorities can take place ex officio, may follow from self-reporting (pursu- ant to an incident), or may take place pursuant to an enforcement request by a third party. 13. Climate Change and Emissions Trading 13.1 Key Policies, Principles and Laws The Netherlands is a member of multiple international treaties regarding climate change, including the Cli- mate Agreement as presented at the Paris Climate Conference in 2015. The key policies in the Nether- lands regarding climate change mainly derive from the objectives set out in the Paris Climate Agreement, including the goal to keep anthropogenic global warm- ing below 2˚C. With respect thereto, the key national policy aims to reduce the use of energy sources in general (for instance, by making certain energy-saving measures mandatory) and to promote the use of ener- gy derived from renewable energy resources instead of from fossil resources.
parties do not affect the parties’ liability vis-à-vis regu- latory authorities.
12. Contaminated Land 12.1 Key Laws Governing Contaminated Land The EPA is the main Act governing Dutch soil and groundwater protection. However, the preceding legal framework will remain relevant during the transition to the new framework. Under the EPA and preceding soil protection legisla- tion, the contaminator can be held responsible for the remediation of a contamination. In cases where the contamination was caused prior to 1987, remediation is only required in the event of severe and urgent con- tamination. New contaminations as of 1 January 2024 will be fully governed by the EPA. Remediation has to be notified to the competent authority. In the case of substantial remediation works, the competent authority has to approve the remedia- tion plan, the evaluation report and, if applicable, the aftercare plan. The competent authority has the pos- sibility of imposing remediation orders (depending on the type, size and urgency of the remediation). Co- ordinated approaches are also possible when a con- tamination covers a wider area (with multiple owners). In relation to soil/groundwater contamination of cer- tain industrial sites requiring remediation, the owner as such can be held responsible (at the discretion of the competent authority) for the remediation, as an alternative to the actual polluter. In practice, however, authorities will only go after the owner if the actual polluter is no longer in sight. 12.2 Clearing Contaminated Land Please see 12.1 Key Laws Governing Contaminated Land . Although it is possible to contractually allocate the responsibility for remediation of contaminated land to another party, such contractual allocation pursuant to a contract does not achieve the same effect under administrative law.
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