Fundamental Right: ANALYSIS AND QUESTIONS Report of the Earthmoving Commission

19.07.2021 | Fundamental right

After critical analysis, together with independent experts, we maintain our position: the report of the Earthmoving Commission does not provide sufficient guarantees for the public health of local residents and workers.

Read our analysis and additional questions below.

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The biggest pain points in this report are:

1. That the committee confidently advises that the Oosterweel works may proceed, provided that the additional measures imposed in the report are taken, while it repeatedly states that it does not have sufficient information to assess risks to health and the environment (see, for example, p. 4, 12, 16).
2. That the committee does not question the standard of 70 μg/kg ds used, even though that standard has no clear scientific basis and does not take into account (now, just as in 2017) the most recent insights. In 2017, the following was already known: in the Netherlands (Chemours, Dordrecht) contamination with PFOA and PFOS where the maximum standard of 3 μg/kg ds was used. In Bavaria (Germany) PFOS and PFOA contamination also occurred where the standard of 0.1 μg/L leaching was used. Moreover, the assessment of the risks associated with the free use of soils with values up to 70 μg is not conclusive. The Flemish government must intervene to adjust this standard framework.
3. That the position of the workers active on the Lantis site is not included in the report, and no measures are prescribed for monitoring their health status.
4. That the Commission has failed to thoroughly examine the packaging principle. Insufficient evidence is provided that this method is sustainable and offers sufficient guarantees for people and the environment.
5. That the Commission fails to require a containment of pollution and a remediation plan for the polluted area, whether in the short or long term. This despite the risks of non-containment and non-remediation, and the obligations associated with the standstill principle.
6. That a legal analysis is provided, although the committee does not have its own expertise in-house. Consequently, the legal assessment has not been subjected to sufficient opposition. As a result, it ignores various legal considerations regarding the storage of heavily polluted soil.

Dust control

1. Insufficient information — on p. 4 the committee states: “Since there are insufficient measurements available, the real impact of dust on the environment cannot be estimated.” The committee therefore does not know how much dust is generated. That it nevertheless confidently concludes that the work can be continued is incomprehensible. Moreover, too broad conclusions are drawn from a limited number of site visits, e.g. the frequent nature of cleaning methods (p. 1).
   Without knowing the impact of the flying dust, how can advice or conclusions be given that the works are safe?
2. Workers — the position of the workers active on the Lantis site is not included in the report. If the risks for them are taken seriously, monthly blood tests should be taken to see if the PFOS level in their blood increases. After all, they are the critically exposed.
   Why is the situation of the workers not examined in the report?
3. Dust control measures — the commission decides that “the best available techniques for storage and processing of dust-producing substances” are used. However, it is unclear what that means. Moreover, it is unclear how extensively soils are now kept moist, to prevent dust formation. The Flemish government must impose binding measures in this regard.
   What are the binding dust prevention measures that are imposed?
4. Dust measurements — There is a great deal of uncertainty about this measurement campaign. Who will advise on this, who will develop it, who will approve it? Will independent experts be involved? What standards will be used? Is there real-time control?
   Can these questions about the dust measurements be answered by the experts?
5. Transportation — the report is contradictory regarding the transport of PFOS-contaminated soil. On the one hand, it states that no contaminated soil leaves the KWZ (p.5) and that transport through residential areas “must be avoided as much as possible”. Not only is that too weak a statement (such transport is after all inadmissible), but a little later the report speaks about the situation in which “such transport would take place” (p. 4).
   Can this be clarified immediately so that transport through residential areas is ruled out?
6. Covering — the report is very vague on this point. It states: “The most polluted soils are permanently stored as soon as possible with a cover layer, which completely eliminates the risk of blowing away.” It is unclear which soils are involved, as well as what “as soon as possible” implies.
   What binding guidelines are issued by the experts regarding hedging?
7. Supervision — the commission prescribes the active involvement of local residents (p. 4). However, it is primarily the task of the contractor and the government to organise supervision.
   What guarantees are required from Lantis in this regard?

Earthmoving

1. Insufficient information — on p. 16 the committee states: “Based on the current information and within the scope of the committee’s remit, it is currently difficult to determine the quality of the soil present at the locations where soils with a quality between 3 and 70 μg/kg ds are (will be) used for construction purposes.” On p. 12 the committee states: “In addition, the committee recommends providing for monitoring of groundwater and surface water. There is a need for a more extensive monitoring strategy for monitoring groundwater quality in the entire cadastral work zone in order to monitor the effects of the works in the long term and to further manage the risks.”
   That she nevertheless confidently advises that the works can be continued, provided that a few additional measures are taken, is incomprehensible. How does the Earthmoving Commission defend itself in this?
2. Application with soil + 70 μg — infrastructures have already been constructed where soil with + 70 μg was used in the living layer, including the Kluifrotonde.
   How could this happen, given the standards used in the permit? To what extent does this error call into question the assumption that Lantis is meeting its commitments and that the monitoring of the work is sufficiently strict?
3. Standards framework — the Soil Movement Commission does not question the standard of 70 μg/kg ds used, although that standard is based on feasibility rather than a solid scientific basis. Moreover, that standard was already not in accordance with the most recent test values in 2017 (e.g. compared to the standards used in the Netherlands, Dordrecht (3 μg/kg ds) and Germany, Bavaria (0.1 μg/L leaching)), and does not seem to be in accordance with new advice and guidelines from, among others, the Soil Bank and OVAM. The assessment of the risks associated with the use of that soil cannot be verified.
   Why is the standards framework not questioned by the experts? How can the experts guarantee that earthmoving for free use within the KWZ is safe for the environment and public health?
4. Storage of heavily contaminated soil — the storage of heavily polluted soil is permitted, e.g. in various verges (p. 10). Experts dispute whether the storage of this heavily polluted soil is in accordance with legal requirements and has been correctly permitted.
5. Zoning — it is not at all clear what the more detailed zoning approach should look like, although this is a crucial point in light of the standstill principle.
   What principles should be used? Who will evaluate this approach? Who will monitor it?
6. Packing — Major question marks remain regarding the effectiveness and sustainability of packaging and covering of the most heavily contaminated soils.
   Why is no confirmation requested from geotechnical experts for this packaging and covering?
7. Living layer — it is unclear which definition is used to determine whether there is a sufficiently thick and “healthy living layer”. In parliament (16/7) prof. Vrancken seemed to confirm that the percentage of PFOS in that soil cannot be more than 3 μg/kg ds. That guideline needs to be formalized. It is also not defined how the criterion 'Near residential/construction and recreational areas' is filled in. The government needs to formulate careful guidelines on this.
   Why are there no concrete guidelines proposed by the experts? Is a living layer of 70 cm sufficient to guarantee the health of the residents and the environment?
8. Remediation — the Commission fails to request a remediation plan that would guarantee that the entire area around the 3M site can be remediated in the long term. This is despite the risks associated with not remediating the area and the obligations arising from the standstill principle.
   What is a remediation plan? And what is the analysis of the experts concerning the remediation plan?

Legal analysis

1. Relevance — it is unclear what the relevance of the legal analysis is, as it falls outside the strict remit of the Commission (the assessment of health risks). Furthermore, the introduction to the report states that it does not provide legal advice. It seems like a legal presumption that nothing illegal is happening, while environmental experts in the media indicate that there are indeed violations of both national and international environmental law.
2. Origin —there are no lawyers on the committee.
   What is the origin of this argument? Was there sufficient room for legal contradiction in the work?
3. Transparency of government — This report was drawn up on the basis of “our own expertise, exchange of reports and written information with Lantis, an information meeting with those responsible for Lantis, Rots and Rinkonien, and a site visit.”
   Are all documents, reports, calculations and site visit reports that have been drawn up or viewed publicly available?
   Based on the Government Information (Public Access) Act and the Aarhus Convention, the right to environmental information in the event of immediate health risks, these should be made freely accessible (see also Access to information for citizens at the Federal Public Service for Public Health, Food Chain Safety and the Environment).
   How are they made available?