Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

also why the government has excluded water extraction and groundwater protection areas from the
scope of the plan area of the Draft MSL (for the plan-EIA), although the deeper soil is not excluded
hereof. 185 Also, it should be mentioned that bore free zones are not excluded a priori.
4.6.3 Soil
The Wet bodembescherming (Soil Protection Act), also called Wbb, regulates the protection of the
soil. This includes the arrangement of the sanitation of polluted soil and groundwater. The Wbb
lays down a duty of care on anyone that operates in or on the soil who could have reasonably
known that due to those operations the soil could be polluted or harmed. That person is obliged to
take all measures needed that could be reasonably expected from him to prevent the pollution or
harm. If the pollution or harm has already occurred, that person should limit the pollution or harm
and the direct consequences thereof. This duty of care applies to the operations as referred to in
the Articles 6 to 11 Wbb. This includes inter alia operations where substances that can
contaminate or impair the soil are placed in the soil (so as to leave it there), operations where
substances which may pollute the soil are added to the soil in order to affect the structure or quality
of the soil, where operations are performed or materials are used which can contaminate or affect
the soil, etc. However, it only applies to cases of contamination before 1987. 186 The duty of care
does not only apply to the direct causer of the contamination, but also to those who are competent
and actually capable of preventing or limiting the offender of the duty of care. The competent
authority for the application of the duty of care is the Provincial Executive (Art. 88 Wbb).
Supervision and enforcement of the duty of care is done by B&W, the Provincial Executive and the
Minister of I and M (Art. 95 Wbb). One who performs operations as referred to in Articles 6 to 11
Wbb and notices a contamination or degradation of the soil thereby, makes a notification to the
Provincial Executive (Art. 27 Wbb). If one wants to start to sanitation of the polluted soil, he must
make a notification of that intention (Art. 28 Wbb).
In July 2009, the 'Convenant bodemontwikkelingsbeleid en aanpak spoedlocaties' ('Covenant soil
development and tackling urgent sites') was adopted. Here, it is (inter alia) decided that the policy
on soil sanitation must be integrated into a regional approach. This policy decision was
implemented in the Wbb on 1 July 2012. 187 The Covenant also states that there should be a basic
registration system for soil (BRO). This register will be applicable from 1 January 2015. The
Convenant also mentions that the obligations from the Water Directives (European Framework
Directive Water and the Groundwater Directive) should be the pre-conditions when developing new
policy.
4.6.4 Storage of waste
The deposit and storage of waste is regulated in Chapter 10 of the Wet milieubeheer. The national
policy on the handling of waste is set out in the Landelijk afvalbeheerplan 2009-2021 (National
waste management plan 2009-2021). Here it is explicated that the storage of waste in the soil
includes the storage of waste by recovery, deposition or injection. For the deposition of waste
applies currently a 'moratorium'. After all, the deposition of waste goes against the intended
purpose of the soil.
What could be important for shale gas activities is the injection of waste in the soil. There is only
permission granted for this to mine establishment for the production of oil, gas and salt if it
concerns the recycling of waste streams that arise during the production process. 188
185
Draft MSL (2014), p. 16 and p. 18.
186
http://www.infomil.nl/onderwerpen/klimaat-lucht/handboek-water/wetgeving/wet-bodembescherming-0/zorgplicht/
187
H.E. Woldendorp (2012), part 2, pp. 4-8.
188
H.E. Woldendorp (2012), part 1, p. 11.
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