FREE ACCESS TO INFORMATION AND THE LICENSING PROCEDURES FOR INDUSTRIAL PLANTS: THE FLEMISH AND BELGIAN SITUATION

RIK DE BAERE

Lawyer, Bond Beter Leefmilieu - Flanders, Overwinningsstraat 26, 1060 Brussels, Belgium

1 INTRODUCTION

Openness of government and the right to information and involvement of citizens are evidence of the democratic nature of a society. When citizens are given the power to elect their own political representatives, it is essential that these voters are given the opportunity to assess the policies of their delegates.

This primarily implies that government and information should be public and freely accessible.

Various recent national and Flemish legislative initiatives suggest that Belgium, too, will finally see some movement towards meeting the long-standing demand for more openness of

government.

Unlike our West European neighbors, Belgium still lacks national legislation which guarantees general openness of government, let alone the fact that the principle of publicity of information is already implemented. The environmentalist movement in Belgium still comes up against the very strictly interpreted duty of secrecy for public servants.

Recently, though, a number of political initiatives were taken towards more openness:

· The national (federal) Minister of the Interior provided for more openness within his own department, as there was no political consensus for a general arrangement on federal level;

· The national Minister of Employment tried to grant unions access to information on environmental matters inside companies;

· The Flemish Minister of the Interior successfully launched a draft decree for a general arrangement regarding publicity of government information.

It is striking, though, how the politicians and their proposed regulations focus chiefly on the access of private individuals to personal files and documents regarding administrative decisions. The publicity of data which concern the whole population, or at least a large section, is traditionally given less importance.

2 PASSIVE PUBLICITY OF ENVIRONMENTAL INFORMATION

2.1 General environmental information

Yet on 7 June 1990 the European Community adopted a Directive which by the end of

1992 will guarantee free access to environmental information and thereby extends the principle of publicity to information "of public interest".

It is no coincidence that precisely with regard to the environment the EEC is implementing a system of passive publicity (access on request). The environment belongs to every one of us and therefore everyone is entitled to know how his environment is being managed and how the state of the environment is developing. Unlike in most of our neighboring countries, people in Belgium too often have trouble giving legal backing to their demand for access, as they miss (temporarily, we hope) a general legal framework regarding openness of government or specific legal guarantees.

Like in Flanders, the Walloon and Brussels region has implemented the directive whereas nationally the publicity of environmental information is still far off, although the Belgian government has to implement this directive before the beginning of 1993 for their specific competence in the field of environmental policy.

The Flemish government has adopted the European guidelines regarding publicity of environmental data practically word for word in the VLAREM (see below).

Since the beginning of September 1991, every person can, for a nominal fee, request the Flemish provincial councils for all information regarding the state of our environment and all the various activities which either damage or protect it. Theoretically the provincial council will answer within a month if the information is available and for which price this information can be obtained. A month after the payment of the fee the information should be sent to the applicant. In the meantime it has been proved that this laborious and time-consuming procedure (up to 2 months) does not work and that the innumerable and broadly interpretable exceptions do not impede the practical accessibility of information.

Stimulated by the environmentalist movement, there is a growing demand for comprehensible and legally correct information regarding the state of the environment (active publicity), along with simple access to precise test results and licenses (passive publicity).

For this reason, the Flemish environmentalist movement was eager to learn about the first experiences with VLAREM and the publicity of environmental information in Flanders by trying out the legislation with some test-cases. These proved no success. In most of the cases the responsible provincial authority answered much too late and incomplete. Even the minister did not react in time when we did appeal against some of these responses.

This delay is caused by the fact that in most cases the province has to ask herself for the information to other authorities. The formal possibility of direct contact between the public and these authorities would mean an extra gain of time. This does not mean that it remains very useful to organize a central official body for people who do not know where exactly to ask for some information.

2.2 Freedom of environmental information within the company

According to a decree, called Vlarem 11, which is very recently adopted by the Flemish government, workers and their representatives have the possibility to ask for the disclosure of all the information which has to be transferred by the company they work for, to the Flemish environmental administration. This is very interesting specially because the same decree obliges some companies to organize themselves a system of permanent measurement of emissions.

3 ACTIVE PUBLICITY OF ENVIRONMENTAL INFORMATION

It is debatable whether the regulations regarding passive publicity that are contained in the VLAREM will affect the policy of active publicity of the Belgian and Flemish governments.

At least in serious emergency situations, the official measurement data should be communicated as soon as possible to the concerned citizens. The objectionable policy with regard to certain "traditional" environmental problems affecting Flanders during summer shows how the practical implementation of the publicity of environmental information should be followed with the necessary suspicion.

In periods of high ozone concentrations, which constitute a reliable criterion for the general level of air pollution, the Belgian people are only informed as soon as the ozone level reaches 200 micrograM/M3 in several places and for several days. Nevertheless, it is known that children get breathing problems when they have been playing for a few hours in ozone levels of 160 microgram. The authoritative medical magazine "The Lancet" recently reported how asthma patients react more heavily to allergens when exposed to an ozone level of 120 microgram.

The Belgian government should warn asthma patients and their doctors whenever pollution becomes so serious that they might suffer. Whenever there is so much pollution that children should not play outside (for too long), the people ought to know.

There is no point at all in waiting for several days until the pollution has become general before warning the population.

About the salmonella poisoning of the coastal water, too, the Secretary of State for the Environment releases no up-to-date information either, not even if the legal quality standards are exceeded. Independent tests by our Organization and the testing programme of the National Institute for Hygiene and Epidemiology have shown that this summer the water at some of the Belgian beaches did not satisfy the legal standards. Nevertheless, these results, such as the level of salmonella bacteria in the water, are obscured by an overall quality assessment of which the criteria are not at all clear and which does not take account of the standards laid down in the European bathing water directive. Moreover, bathing water which does not satisfy the legal regulations is even officially rated as "good" or "very good".

Since the results of the tests, which should indicate the non-compliance with the standards, are not given wide publicity, the spirit of the Directive regarding the free access to environmental information is not observed either.

To avoid misplaced fear of "unexpert and alarmist" interpretations, the population is often only given a few brief quality assessments or is informed belatedly of the fact that danger levels have been exceeded. Individuals must have the opportunity to compare the available data on the quality of the environment with more precise personal health requirements. Democratic control of the compliance with environmental quality standards is only possible if the relevant up-to-date measuring data are available.

The publication of evaluation reports long after the event does not alter the fact that the population should be informed quickly and completely. As a matter of fact, only in Wallonia does there exist a legal obligation to publish an annual report called "Etat de l'environnement wallon".

In their policy of openness, the authorities should regard the population as an equal interlocutor with the right of involvement and of access to all currently available objective information concerning the state of the environment and of nature.

The aforementioned examples show that in actual practice all legal regulations concerning the passive publicity of environmental information threaten to become pointless without a general change in mentality towards more openness of government. Perhaps the European Community might have to give the Belgian government a little push in the direction of general openness of government. A general European framework for active publicity of environmental information would be even better.

4 OPENNESS AND PARTICIPATION DURING LICENSING PROCEDURES

4.1 Former problems

Under the present division of competence between the national Belgian government and the 3 regions (Flanders, Wallonia and Brussels), the regions have practically full authority with respect to environmental matters since 1980.

On the one hand there are the national regulations which remain in force until such time as they have been replaced by new regional legislation. On the other hand, each region has separate laws and procedures for various environmental matters concerning industrial establishments. So, since 1980 this regional legislation has gradually eroded the old national legislation. That is why in Belgium a highly complex body of laws and divergent licensing procedures has evolved, some of which are very deficient with respect to publicity and involvement.

The national law of 26.03.1971 regarding the protection of the surface water, for instance, has put in place an entirely closed licensing procedure for effluent water, without public investigation and without the opportunity of access to license applications and issued licenses.

The Flemish decree of 02.07.1981 regarding waste management does not provide for public investigation when issuing waste disposal licenses. It is possible, though, to lodge an administrative appeal.

On the other hand, operating licenses that are issued on the basis of a national set of regulations dating from 1946, which only regulate air and noise pollution, are issued after the public had the formal possibility to make remarks or to appeal.

The Flemish region has used its new powers to make some significant improvements to the licensing procedures for nuisance industries.

Beginning of September 1991, a new environmental license legislation became effective in Flanders (Vlaams reglement inzake milieuvergunningen - VLAREM (Flemish Legislation governing Environmental Licenses).

The new global "environmental licenses" incorporate all previous sectorial licenses (operation, discharge of industrial water, waste treatment, storage and disposal of toxic waste). Even the building license cannot be implemented as long as the environmental license has not been issued.

Until lately, separate licenses had to be requested for all these different aspects, such according to separate procedures with very different modalities. This situation continues to exist in Brussels and in Wallonia where such uniformity and improvements regarding publicity and public involvement have not yet been achieved.

4.2 Licensing procedure for a nuisance industry according to VLAREM

The license application is deposited for public at the town hall for a period of 30 days. If necessary, this application is supplemented with an environmental impact assessment or safety report. The environmental impact assessments are drawn up according to the guidelines contained in Directive 85/337/EC which were adopted in a number of provisional implementing orders only as recently as 23 March 1989. For the safety reports, the VLAREM provides for a procedure which is almost identical to that for the environmental impact reports.

Our experience with environmental impact assessment is therefore quite new. However, certain problems are already manifesting themselves. Particularly the limited and belated involvement of the public in the assessment procedure gives rise to misunderstandings and frustration. No public involvement is provided for while the report is being drawn up; third persons only get to see the report when it has been completed. Only during the short term of the public investigation of the global application (30 days) can the report be perused and formally some outdated suggestions or criticism be given.

The applications for the most polluting industrial plants (category 1) are published in 2 newspapers or weeklies. Owners and users of a building within a radius of 100 meters around the perimeters of the sites of the establishments concerned are informed in writing of these applications.

Appeals against the planned establishments can be lodged with the council within the term of the public investigation.

The license is also posted up for 30 days and open for public at the town hall. During these 30 days, a non-suspensive appeal may be lodged with the authorities. After these first thirty days, the old licenses may be consulted at the town hall for at least two days a week. The secret nature of Belgian licenses for the disposal of effluent water thus removed; the same applies for these licenses which were issued before the new legislation came into effect.

The environmental license itself remains public, but the other elements contained in the license application such as opinions and reports (including environmental impact assessments and safety reports) theoretically disappear for good into the archives after the procedure.

The VLAREM has undoubtedly introduced some major improvements to the licensing procedures for nuisance industries. Our first experiences with the new regulations are therefore rather good. Nevertheless a democratic process in the environmental impact and safety assessment are an absolute precondition in order not to create definitive distrust with the Flemish people towards these undoubtedly very useful policy instruments. Here, too, the European Community can play an important role by adjusting the European directive on environmental impact assessment.

A separate European directive containing minimum guidelines for publicity of applications and licenses; opportunities for public involvement and duty of justification and information could certainly be useful to the development of more democratic licensing procedures for industrial plants in European countries and regions where, (like for example in Belgium: Brussels and Wallonia) there is still much scope for improvement in this area.