By Dimitri Quist and Enrico Lammers

The Environment Act: a transformation in environmental regulation

In November 2023, we attended a networking meeting on chemical recycling of plastics. In addition to presentations on research in this field and technology, a lawyer spoke about related legislation. Because, as often happens, development is ahead of legislation. Is plastic waste or a raw material?

The discussion being held is when to treat a substance as waste and when not. When a waste is no longer labeled as waste, it is given end-of-waste status and different rules apply as for waste.

As a matter of course, the environmental law came up in this lawyer's presentation. This environmental law went into effect January of this year and combines a number of other laws. In the context of "we can't make it more fun but we can make it more difficult," it was explained with the necessary cynicism that the scope of this new law was such that printing it out was not an option. In this blog, we want to make an attempt to summarize the changes from the BRZO legislation so that you know in outline what has changed.

The Environment Act brings new opportunities, but requires a thorough understanding of the new structure

BRZO and the Environment Act

The introduction of the Environment Act as of January 2024 marks a significant shift in how businesses deal with environmental legislation. With a focus on decentralization, the new legislation integrates a patchwork of rules into one coherent system, with the goal of simplifying regulations and making room for local nuances. However, as an old Dutch proverb says, "New brooms sweep clean, but the old ones know every nook and cranny." The same applies to the Environment Act; it brings new opportunities, but requires a thorough understanding of the new structure.

For companies covered by major accidents decree (BRZO), it is essential to understand how the new legislation affects current practices. Although the core obligations remain largely unchanged, the Environment Act introduces new terminology and adjustments to the reporting process. BRZO-companies now become "Seveso establishments," named after the Italian town hit by a chemical disaster in 1976. This name change reflects the connection to the European Seveso Directive, which aims to protect both people and the environment from industrial accidents.

The New Normal: Environmentally Harmful Activity (MBA)

At the heart of the Environment Act is the concept of "environmentally harmful activity" (MBA). This replaces the old 'establishment' concept and creates a direct link to the physical impact of an activity. The legislation requires companies to identify these MBAs and take appropriate measures to prevent and mitigate environmental impacts.

The Environment Act defines an environmentally harmful activity as:

'an activity that may cause adverse effects on the environment, other than a discharge activity to a surface water body or a discharge activity to a purification plant or a water abstraction activity.'

The government regulations for environmentally harmful activities are contained in the Bal (Decree on activities in the living environment). For environmentally harmful activities not designated in the Bal, no general government rules apply. For these activities, decentralized authorities can set rules, for example in the environmental plan.

Chemical Recycling: Waste or Resource?

One sector closely following developments around the Environment Act is the chemical recycling industry. Processing plastic waste into new raw materials through processes such as pyrolysis and gasification is central to the transition to a circular economy. The classification of plastic as waste or raw material has significant implications for the regulatory and economic value chain of recycled products. In the context of chemical recycling, it is essential to understand the placement of recycled molecules in the plastic value chain. As illustrated in a recent publication by CE Delft, the route these molecules take affects their market value and the regulatory status of the output of the recycling process.

Source: "Impacts of allocation rules on chemical recycling," CE Delft, May 2023 Publication code: 23.230135.075

Participation and Transparency: The Digital System for Environmental Law (DSO)

A key element of the new law is the Digital Environmental Law System (DSO), which helps businesses and citizens identify applicable regulations. This system aims to make the complex web of regulations more accessible and transparent, a digital guide through the labyrinth of local and national regulations.

The gains are:

  • Better basis for integrated decision-making under the Environment Act
  • Greater ease of use
  • Greater understanding of environmental law
  • Faster and better decision-making
  • Better legal tenability of decisions
  • Less research needed in new initiatives

The Specific Duty of Care: Own Responsibility

The Environment Act also introduces a "specific duty of care," which encourages companies to independently determine and implement environmental measures. This gives companies more flexibility, but it also introduces a degree of uncertainty. It requires an active and thoughtful approach to ensure that business activities do not cause unacceptable impacts on the living environment.

Despite the changes, the goal of BRZO and the new Environment Act remains consistent: to ensure safety and protect the environment. This requires close cooperation between companies, regulators and other stakeholders. Enforcement of the law remains a crucial element, requiring companies to remain proactive in complying with the rules.

Conclusion: A New Era of Environmental Regulation

The Environment Act opens a new chapter for environmental regulation in the Netherlands. Companies, especially those in the chemical recycling and BRZO sectors, must adapt to this new reality. With the focus on decentralization, responsibility and participation, it is crucial that companies prepare for the changes, update their processes and align their environmental policies with the new requirements. By doing so, they will not only comply with the law, but also contribute to a more sustainable future.

Do you have an opinion on this? Leave a comment in the comment box or Tip then the editor, and we can write a blog about it or respond to it and we can all learn something from it.
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