In 1994 the State published internal guidelines for the acquisition and alienation of polluted real property: Policy guidelines in respect of soil pollution at State-owned real property. These guidelines, which were revised in 2000 and apply for all Ministries, governmental bodies and agencies, provide for the following:
Acquisition
Prior to proceeding to an acquisition of real property a preliminary examination must be made in order to establish whether there is a possibility of soil pollution and, if this is the case, a soil survey must be made. Such examination and survey must be carried out in accordance with certain protocols, preferably by a certified bureau. When soil pollution is involved which was caused, wholly or partially, by the polluter after 1 January 1987 , alienation may take place only after a clean up of the soil for the account of the alienator. When it appears that the soil is polluted and the pollution has occurred before 1 January 1987, an application for a 'seriousness and urgency' decision must be made to the relevant authority before an acquisition is made. This is a formal decision given by the Provincial Executive (Board of Deputies) or Municipal Executive (Burgomaster and Aldermen) that there is a serious pollution which urgently requires a clean up. When it is established that a clean up is not urgently required, the possible price-reducing effect of the pollution must be taken into consideration when the amount of the purchase price is determined. Where a clean up of the pollution is urgent, the real property may, in principle, only be acquired by the State after a clean up has taken place for the alienator's account. Derogation may be made from this when the soil will be cleaned up for the State's account within two years from the transfer of title to the real property (in case a prolonged groundwater clean up is required, this will need to have been started within two years). In case the ground clean up will be carried out by the State, the estimated cost arising from the soil pollution and the value reducing effect of any remaining pollution must be taken into consideration when determining the amount of the purchase price. If the balance of the purchase price and the cost is negative, the alienator must make a further payment. Standard provisions are also laid down in the Policy guidelines in respect of the risk of soil pollution which must be included in the notarial instrument for the transfer of title to the real property. These provide amongst other that the alienator will remain liable for undetected pollution during ten years from the transfer.
Alienation
The mirrored converse applies when it is the State which acts as alienator. When the State proceeds to an alienation it must also first examine whether there is a possibility of soil pollution and, when the result of this preliminary investigation gives rise thereto, carry out a soil survey. Pollution caused by the State after 1 January 1987 must be cleaned up first. When a clean up is urgently required, the State must first carry out the clean up unless the acquiror will do so within two years, in which latter case the cost and the value-reducing effect of the remaining pollution must be taken into consideration when determining the purchase price. When the clean up will be carried out by the acquiror himself, the acquiror must give an undertaking to the State to do so and put up a bank guarantee as security for the proper performance.
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