Aanpak van verontreinigd grondwater op gebiedsniveau. Een onderzoek naar flexibiliteit bij de uitvoering van de Wet bodembescherming ten behoeve van een integrale gebiedsgerichte aanpak van de verontreiniging van het diepere grondwater

Abstract

This PhD thesis discusses the question to what extent the Soil Protection Act (SPA) offers space for an integrated approach for deeper groundwater in addition alongside aspects of the soil quality other aspects can be referenced to the use, development or the management of soil in the decision-making. To assess this question, demands are made on the flexibility of the law and the possibility to make integral considerations. Due to this, a freedom of choice is available but this is not without limitations. The space that exists must remain inside the lines that are imposed in this regard in a democratic constitutional state. The legal tenability of the integrated approach is based on European law and legal principles. The SPA contains conditions that especially are useful to produce a case-to-case based area approach of the contamination of the deeper groundwater. These are: a phased remediation (article 38 clause 3 SPA), partial remediation (article 40 SPA), and a cluster approach (article 42 SPA). The use of these instruments is limited because the law prescribes in which specific cases they can be used. Moreover, the case-to-case approach in the SPA is not flexible enough for a broad application concerning the contamination of the deeper groundwater on an area scale. The biggest obstacle for an integrated approach is the absence of the possibility of a wide consideration of interests. In addition to the specific general interest of the protection of the soil, other relevant aspects for an integrated area oriented approach of the contamination of the deeper groundwater and private interests that do not correspond, can not be involved. After implementation of the regulation concerning an area oriented approach in paragraph 3b of chapter IV of the SPA, the possibilities for the approach of the contamination of the deeper groundwater on area scale are increased considerably. The case criterion (gevalscriterium) is partly abandoned, but not all obstacles are hereby solved. The limited consideration of interests remains problematic with the exception of the indication of an area. Therefore, the assessment of the control plan (beheerplan) does not allow room for a wide administrative consideration of interests. In an area oriented approach that is based on the SPA, problems with European regulation (Water Framework Directive, Groundwater Directive) can be negated. This might change if the extent of the polluted area increases significantly in comparison with what can be achieved through a stable end-point remediation (stabiele, milieuhygiënische, aanvaardbare eindsituatie). Moreover, the relation with environmental law principles is a point of particular interest. Because uncertain risks play an important role in an integrated area oriented approach of the deeper groundwater, there is a correlation with the precautionary principle (voorzorgsbeginsel). Additionally the polluter pays principle is a weak element .