Current events PFAS

What is PFAS?

PFAS is a collective name for a large number of poly- and perfluoroalkyl substances. Well-known examples of PFAS are PFOA, PFOS and GenX substances. PFAS have useful properties, which is why the substances are used in a multitude of products. Among other things, the substances are water, grease and dirt repellent.

In March 2019, the National Institute for Public Health and the Environment (RIVM) mapped the risk limits of PFOA, PFOS and GenX for soil and groundwater on behalf of the Ministry of Infrastructure and Water Management. This showed that PFAS can have negative effects on the environment and health. It is now known that the substances are in the soil almost everywhere in the Netherlands. The substances enter the soil through emissions from factories that make or process the substances or through the use of PFAS-containing products, such as fire extinguishing foam and pizza boxes.

Until recently, PFAS was a "non-standardized substance. Consequently, an intervention value was lacking. Because the risks of PFAS have only recently been mapped and it appears that the toxic substances are highly polluting and undegradable, there was reason for the Minister of Infrastructure and Water Management, Veldhoven, to establish, in consultation with decentralized authorities, a temporary handling framework for the reuse of PFAS-containing soil and dredged material.

Temporary national action framework

For the application of soil and dredged material on land soil, application standards depend on the type of substance and the soil function class (agriculture/nature, residential and industrial). Initially, the state secretary set the national standard for PFOA, PFOS and GenX in agriculture and nature at 0.1 micrograms per kilogram. As a result, contaminated soil containing more than 0.1 micrograms per kilogram of PFAS was not allowed to be resisted. Because that standard was quickly violated, it led to stagnation of construction and dredging activities.

On November 29, 2019, that national standard was expanded by the cabinet to 0.8 micrograms per kilogram of soil for PFOA and other PFAS and 0.9 micrograms per kilogram of soil for PFOS. The broadening of the standard is based on calculations and research by RIVM. Since there is still uncertainty about the concrete public health hazards of PFAS, it remains to be seen whether this standard will remain in place over time.

Currently, research would be conducted by RIVM on the mobility, leaching, bioaccumulation and behavior of PFAS in groundwater. As this blog is published, however, RIVM has its hands (more than) full with the containment of coronavirus. According to the February 13 progress letter from the Minister of the Environment and Housing, a draft version of the final action framework was expected to follow before the end of this year (of course, given current events, it remains to be seen whether this is feasible). Further work is also underway, among other things, on a general methodology for dealing with non-standardized substances in soil.

However, municipalities and water authorities do not rely solely on the temporary national standard. There is room for local governments to establish local maximum values (LMW) for PFAS substances by means of (adapting) a soil quality map. With this, the national government is anticipating the introduction of the Environment Act.

Current and future options for establishing local soil policy

i.Soil Protection Act and Soil Quality Decree.

Rules for dealing with contaminated soil, groundwater and dredged material are laid down in the Soil Protection Act (Wbb). The Wbb regulates the decontamination and reuse of contaminated soil. The Soil Quality Decree (Bbk) lays down rules on the application and reuse of building materials, soil and dredged material. These regulations can also be used for new non-standardized substances.

As addressed above, local governments can establish their own LMW that are more lenient or stricter than the national framework for action. This is subject to a number of conditions:

• Establishing LMW can only be done for areas of diffusely elevated concentration;
• The area-specific soil quality is mapped by means of a soil quality map. A soil quality map is a decision of general scope to which the uniform public preparation procedure in Section 3.4 of the General Administrative Law Act applies and, pursuant to Article 47 of the Bbk, is an obligatory part of establishing area-specific policy with LMW.
• The standstill principle must be safeguarded. That is, no contaminated soil should be moved to cleaner soil.
• When establishing LMW, the fulfillment of the duty of care for new cases of contamination - enshrined in Article 13 of the Wbb - and leaching to groundwater must be taken into account.
• In principle, reuse is possible only for soil originating from the company's own management area.

To speed up the adoption of soil quality maps by municipalities and water authorities, the Minister of Infrastructure and Water Management initiated an amendment to the Bbk on November 29, 2019. The amendment aims to enable a shorter procedure for establishing a soil management memorandum and soil quality map, in the sense that the uniform public preparation procedure is no longer mandatory in all cases.

ii.Environmental Law

The temporary national PFAS action framework is separate from the Environment Act and has no successor in it. With the advent of the Environment Act, the central government aims to decentralize responsibilities for soil management. The starting point is that municipalities and provinces will be given the tasks and powers for soil. In addition, the municipality will have the authority to set additional rules for the use of soil where necessary, and the municipality will be responsible for enforcing those rules. The current soil laws and regulations will be repealed. It will be replaced by the Soil Supplement Act and the Soil Supplement Decree, which will be part of the Environment Act. On February 18, 2020, the Soil Supplement Act bill was adopted by the first chamber.

The Soil Supplement Act has no specific provisions for soil contamination from (as yet) unknown substances entering groundwater, such as PFAS. Under the Environment Act, the province will have the task of the quality of groundwater bodies, including soil contaminants present in them. The Province's task will then remain the same as it currently has under the Water Act. Furthermore, the municipality can take measures to improve local groundwater quality.

In the Environment Act, area-specific policy can only be pursued through tailor-made rules, which can be included as far as municipalities are concerned in the environmental vision and the environmental plan, and as far as provinces are concerned in an environmental regulation. Through these instruments, a balance can be struck between risks and socially desirable activities.

Lock

That PFAS has received due attention recently is understandable. After all, it is a serious national problem now that the use of soil containing low levels of PFAS has been significantly restricted. However, provinces and municipalities can respond to this by already getting started on developing local PFAS policies by drafting LMW. These policies can then be incorporated into the Environment Act. Municipalities and provinces would therefore do well to make a start on this now.

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