In light of several major industrial incidents over the past decade, the Dutch environmental authorities have become particularly stringent. André Gaastra of Gaastra attorneys at law highlights the increasingly rigorous regulation and enforcement of environmental law in the Netherlands.
Dutch environmental law has been undergoing many changes and will continue to do so in the near future. Following a number of major industrial incidents this past decade, Dutch regulators and enforcement agencies have sharpened their pencils. Prevention of major accidents has an extra dimension in the Netherlands in light of its relatively high population density and, generally speaking, the proximity of residential areas and industrial activity.
Until 2000, there was little enforcement of environmental law. This started mainly with administrative enforcement (orders under threat of penalty). The administrative enforcement of environmental law is focused on remedial action and, in that sense, has proven to be effective. The administrative burden for industrial companies, however, has surpassed the reasonable in some cases. For instance, the statutory obligation to report irregular occurrences has proven to be too strict and has led to submitting numerous senseless reports to the environmental authorities.
In 2005, active criminal enforcement of environmental law was introduced. A special national environmental crime unit was set up with specialised public prosecutors. Initially, their view was that environmental crime should not be dealt with more leniently than other crime, leading to a rather excessive approach including taking directors of large corporations into custody for committing environmental violations. Although this approach has softened somewhat, the special crime unit is still relatively active and criminal enforcement will probably never go away. In 2013, the unit was expanded with the Deprivation of Illegal Gains Department. Today, the unit employs some 350 people including 60 specialised prosecutors.
The Chemie-Pack fire on 5 January 2011 shifted the focus towards the environmental risks associated with large-scale storage of hazardous substances (in packaging). This fire destroyed the entire Netherlands storage facility of Chemie-Pack at Moerdijk and caused significant pollution in the surrounding area (major soil pollution was caused due to the outflow of contaminated extinguishing water). It dominated Netherlands news for days. The company director, the health and safety coordinator and the production manager, who were found culpable of causing fire and violation of the permit conditions, were sentenced to imprisonment for four, three and two years respectively.
On 10 February 2012, the Research Council for Safety (a government agency for investigation of major accidents) published its report. According to the Research Council, the primary causes for the fire were attributable to Chemie-Pack itself. In the Council’s opinion, for example, the personnel had been given insufficient instructions, and too many flammable substances had been stored in one place without necessary measures being taken. However, the enforcement authority – the municipality – was also rebuked. It was accused of having too protracted a permitting trajectory and a lack of decisiveness in enforcement of the permit conditions, in that its actions had been too slow and too accommodating. Furthermore, the Research Council highlighted the fact that enforcement visits had always been announced beforehand. According to the Research Council, well-balanced enforcement consists of unannounced company visits, to prevent the company being “prepared for” visits. Further to this report, as we have seen, supervisory authorities now tend to intervene more quickly and forcefully than in the past in the case of violation of environmental legislation and regulations.
In 2011, this sentiment was reinforced by a judgment of the Court of Appeals of the Hague in another case, demonstrating that a municipality can be held liable (with regards to the insurers) for inadequate enforcement, in this case leading to a fire in a warehouse for hazardous substances. This applied particularly where the municipal inspection authority knew that the fire safety regulations, which should have been safeguarded, had in fact been violated, and that they had been insufficiently enforced. An important limitation of that liability of the municipality under Dutch law is that the violated rule (ie, the permit conditions) must serve the interests (of the insurers) which were damaged. If this “relativity requirement” is not satisfied, the municipality is not liable for unlawful acts.
Early in 2012, the environmental authorities closed down the Odfjell tank storage facility in Rotterdam, referring to the Buncefield Oil Depot Fire which occurred in Hemel Hempstead in 2005. In 2011, some 200 tons of butane was released into the environment and, according to the environmental authorities, no tank inspections had been carried out for years.
These incidents were the overture for a government inspection and enforcement campaign. All permits of major storage facilities were reviewed and permit conditions tightened. Environmental permits were found to be inadequate and many had new conditions attached. In these actions, it came to light that technical knowledge on the side of government was limited, leading to lengthy discussions on the adequacy or inadequacy of the fire safety of tank installations. The technical standards were not altogether useful as a legal standard and were not up to date. The review of the standard for the storage of hazardous substances in packaging was launched in September 2009, and led to a partially revised standard in December 2011. In June 2015, a more fundamental revision was issued for public inspection. The final version is expected to be published in the first quarter of 2016. In December 2011, the technical standard for above-ground storage tanks was revised. Another revision of this standard is also due for 2016.
Policymakers realised that the development of specific knowledge, required by permitting and enforcement agencies to lay down and enforce environmental rules, is lagging behind knowledge in the industries. Their solution was to form regional execution departments (RUDs), to transcend the level of expertise of the municipal and provincial environmental departments. Their objective was to have all regional departments operational on 1 January 2013. The advantages of the expertise in those larger specialised environmental departments are steadily becoming more evident.
Dutch environmental law used to be quite sectoral. On 1 October 2010, part of the government approvals for building and operating a facility under environmental law were integrated in the Environmental and Building Law (General Provisions) Act. Further integration of environmental, building and nature conservation and species protection law is currently in progress. Parliament will probably debate the new Integrated Environment Act in the second half of 2015. It means to integrate 26 laws, all related to the physical environment. The subjects are building and construction, environmental law, water quantity and quality control, spatial planning, monuments care and nature conservation. This new act will comprise the legal framework for the physical environment and the activities that can have an impact on this environment. The most interesting new feature of the act is the integrated environment plan, which will become a municipal by-law replacing the current zoning plans. It will provide not only the basic conditions for building and activities, but also rules on the activities that can have consequences for the physical living environment. For example, the current municipal by-law requires a permit for certain large-scale events, with limited possibility to attach noise conditions to the permit. The new integrated environment plan may provide a future legal basis for such conditions. The government’s intention is to simplify the legal framework of all these aspects. The question is whether that goal will be achieved. After all, the partial integration of permitting procedures in the Environmental and Building Law (General Provisions) Act is generally perceived as complex and this operation will lead to an even larger and more comprehensive legislative product. Enactment is not expected before 2018.
European legislation on the prevention of catastrophic accidents was enacted after the industrial accident in the Italian town of Seveso in 1976. On 1 June 2015, the third revision of the European Seveso Directive (2012/18/EU) on the control of major-accident hazards involving dangerous substances entered into force, amending and subsequently repealing the Seveso II Directive. This directive requires, among others, implementation of a safety management system, drafting a major accident prevention policy, emergency plans and a safety report from facilities using dangerous substances in certain quantities and under certain process conditions. The most important change, as opposed to the Seveso II Directive, is that the distinction between those facilities which are subject to this directive and those which are not will now be made according to the Classification Labelling and Packaging criteria, which are based on the Globally Harmonised System. As a consequence, the thresholds for toxic and flammable substances are lowered, meaning that the number of facilities subject to the directive may well increase. Some new categories (flammable aerosols) with low threshold values have also been added. Further, not only is the volume of flammable substances relevant, but also the process circumstances under which the substances are used (pressure, temperature and special process circumstances).
Enforcement of the Dutch implementation regulations is assigned not only to the environmental authorities, but also to the Safety Districs (former fire brigades) and the Health and Safety Inspectorate, the latter being competent not only to take administrative enforcement measures, but also to impose punitive sanctions.
European Directive 2008/98/EC establishes the legislative framework for the handling of waste in the Community (Waste Framework Directive). It lays down an obligation for the member states to draft waste management plans. The first Dutch national waste management plan was for the period 2002–2012 and entered into force on 3 March 2003. It allocated the responsibilities and competencies that used to be conferred on the provincial authorities up to state level. The Netherlands national waste management plan is a policy document. It standardises the execution of the waste policies, and is used as a reference for decisions on permitting and on the cross-border shipment of waste.
In the first period, the total volume of waste decreased, whereas the gross national product increased. Subsequently, the volume of waste increased for a short period but has been decreasing ever since. The recycling of waste increased and the national recycling targets were reached, partially due to the appointment of the “R1 status” to an increasing number of Netherlands-based waste-to-energy installations. Due to the lack of sufficient processing and combustion capacity, the landfill of combustible waste increased in 2005 and 2006. Since 2007, however, landfill of combustible waste has decreased again due to taking new combustion capacity into operation and increased recycling activities. The Dutch government has lessened its involvement in waste management, to enhance the operation of a free market. This has opened the opportunity for the cross-border shipment of waste for waste-to-energy purposes. It has also caused increasing volumes of waste to be imported and combusted in the Netherlands-based waste-to-energy installations. The second national waste management plan entered into force in January 2015, and focuses on the stimulation of a cradle-to-grave approach. More stringent policies have been adopted to achieve a further reduction in the landfill of waste.
Dutch policy on the development of durable energy and renewables has fluctuated in the past decade. For quite some time, the subsidy schemes were such that investors could not rely on long-term returns on their investments in wind farms. However, national policy is now targeted at a significant increase of wind energy in the Netherlands. In March 2014, there were almost 1,800 wind turbines with a total power of some 2,500 megawatts. The national target for 2020 is 6,000 megawatts, meaning that an additional 3,500 megawatts of wind power should be installed in the coming four to five years. This policy was laid down in the Structural View on Wind Energy on Land, determined by the cabinet in March 2014. In this view, the areas deemed most appropriate for large wind parks (with a minimum capacity of 100 megawatts) are appointed. Legislative action has been taken in order to expedite the permitting process, and, in short, to allow the national government to take over the permitting procedures if necessary.