Due to a judgment of the Council of State, the works on the Oosterweel connection came to a standstill this week. In addition, a European veto threatens. Is there still a legal way out for Flanders’ largest construction site?
Council of State on Thursday undermined the technical basis on which Lantis (construction principal of the Oosterweel project) is supporting to excavate and move soil contaminated with PFOS in Zwijndrecht. The ruling had the effect of a legal bomb.
It is remarkable that the Council of State concluded in its extensive 60-page judgment that the ‘largest wharf in Flanders’ has not been correctly demarcated. According to the court, the area of the works – which extends over several kilometers from the 3M sites in Zwijndrecht to Antwerp-Linkeroever and the Scheldt – does not form one work zone, but a whole of three separate construction projects, each of which has been licensed in a different way.
In addition to the Oosterweel works on the Linkeroever and the Scheldt tunnel, there is also the work zone on the sites of the chemical company 3M, where a safety berm is to be built. That client BAM (today Lantis) concluded a settlement with 3M in 2017-2018 to excavate about 135,000 m³ of soil contaminated with PFOS and use it for a verge on the site of the American group, ‘as security against burglary’, found no favor in the eyes of the Council of State.
‘That earth displacement in the work zone cannot legally take place’, the court ruled. And in the blink of an eye, the Council of State canceled the approval that the Grondbank, the soil manager of the Flemish government, recently gave to the technical document that serves as the basis for the works on the Oosterweelwerf.
That judgment also made Lantis’s carefully constructed reasoning – that the PFOS soil to be moved to the 3M site is not ‘landfill’ but ‘construction material’ – collapsed like a house of cards.
At Lantis, experts are questioning the ‘far-reaching consequences’ of the judgment. They point out that the reasoning of the Council of State shows that the term ‘cadastral work zone’ is not clearly defined in the Flemish soil decree. ‘If that reasoning applies to us, then it also applies to many other large construction and infrastructure projects in Flanders.’
She also points out that a European regulation has been in force since 2019 for so-called persistent organic substances (POP), which also includes PFAS-like chemicals. Lantis and the Flemish government ignore the fact that this POP regulation provides very clearly that there is a ban on the application or reuse of soil contaminated with PFOS. Violations are heavily penalized.”
PFOS Commission of Inquiry
Last summer, Larmuseau said he raised this issue before the PFOS Commission of Inquiry in the Flemish Parliament. She then insisted on asking the European Commission a question about this, to be sure that the works on the Oosterweel link are in accordance with the regulation. But that didn’t happen.
Green MP Mieke Schauvliege confirms this. ‘I have urged the members of the inquiry committee to submit the question on three occasions. However, the reasoning was that this did not fit within the Committee’s research framework. In the end, on 7 December, I submitted the question myself from the Green party. We’re waiting for the answer.’
Larmuseau fears that if the reply from the EU Commission shows that the Oosterweel works do not comply with the POP regulation, this will almost certainly be the final blow for the construction project. ‘Even now there is almost no legal way out’, she says. ‘Lantis could isolate the contaminated soil in depots on site pending thorough remediation, or move the soil to licensed landfills for hazardous substances. But it takes years to get the necessary permits for that.’
According to Larmuseau, the only possibility is that the European Commission still offers some leeway. ‘But there too I see few realistic scenarios that could lead to a solution.’
Refs
Het Europese ‘zwaard van Damocles’ boven Oosterweel
Personal Remarks
Lantis (public construction company) may have to explain publicly why they signed a secret deal with 3M.
The legality of this deal should be disputed because it concerns contaminated soil (public health)
The fact that the “Oosterweel” project has been stopped will increase the popular and political pressure on this health scandal. It’s a big deal.
It looks like 3M, Lantis or the Flemish Government will have to deal with the treatment of the PFAS contaminated soils instead of dumping the contaminated soils on the 3M site like initially agreed
Eventually, there may be no other option that to officially accuse 3M of PFAS dumping and making them legally and financially responsible for the treatment of the soils.