In a rare move, the Flemish Environmental Inspectorate of the Department of Environment together with the Flemish Agency for Health and Safety issued an administrative safety order to compel temporary cessation of all production processes of 3M Company’s industrial facility in Zwijndrecht, near Antwerp, Belgium, that emit polyfluoroalkyl substances (PFAS) into environment (air, soil or water). This emergency order was issued after serum blood tests showed significantly elevated PFAS levels in more than half of the approximately 800 residents it tested who live within three kilometers of the 3M facility. The Ministry issued the order to mitigate the alleged toxic emissions and to protect the impacted Flemish community.
3M responded to the order by filing an emergency petition with the Council of State, the highest administrative court in Belgium, seeking the immediate suspension of the Order, arguing it:
- Would cause irreparable harm to 3M and their clients in various industries
- Would cause irreparable harm to 3M’s reputation
- Would have a major economic impact, in Belgium and globally, in lost revenues and employee turnover
- Wrongly suggests that 3M production processes “endangers people and the environment.”
Counsel for the Ministry, joined by intervening parties, the Municipality of Zwijndrecht and the Province of Antwerp, argued that 3M’s persistent refusal, or inability to provide data requested by the Administration, violates applicable regulations; that the emergency Order is justified to safeguard the public from a serious threat to public health; that lost profits do not constitute irreparable harm; and that any damage to 3M’s reputation is not caused by the order, but by the pollution it caused and the blood test results of the neighboring community residents.
In a Nov. 5, 2021, written decision, the Council of State determined that 3M failed to provide convincing evidence, through concrete, specific and verifiable information, that the financial and operational disadvantage it claims cannot be remedied, and that financial and economic disadvantages do not justify urgency, much less extreme urgency, warranting suspending the emergency Order. While stating that “it is understood that the contested decision will not do the applicant’s reputation any good,” the Council held that 3M failed to demonstrate that it was put in a “harmful position that is intolerable” or that a reversal of the order would alone “remedy the moral disadvantage that would clear its name again.”
PFAS, referred to as “forever chemicals,” are a class of highly toxic substances which are persistent in humans, livestock, aquatic life and the environment. PFAS were first developed in the 1950s and used to provide the non-stick coating on cookware, water-repellent clothing, stain-resistant fabrics and carpets, firefighting foams, and other products. Environmental regulatory agencies, as well as organizations concerned with human health and safety, both in the US and Europe, have established that these chemicals are highly toxic and hazardous to the environment and human health.
The emergency Order occurred less than two months after the Flemish Region served a Notice of Default against 3M Belgium and 3M Company alleging the company violated the nation’s Environmental Act and possibly international laws by discharging PFAS and causing extensive environmental contamination. 3M Belgium had until Oct. 1, 2021 to present a plan that outlined and guaranteed how it would timely address the alleged violations raised by the Flemish Ministry or face further legal action in both Belgium and the United States. In its response dated Sept. 30, 2021, 3M maintained that the injunction contained factually and/or legally incorrect statements, but expressed a willingness to take actions to reduce emissions.
In addition to civil and administrative proceedings, 3M Belgium is the subject of a criminal investigation regarding its disposal of toxic PFAS-containing chemical waste. The company continued to emit hazardous PFAS chemicals long after claiming it shut down production of the toxin in 2002. The Flemish Ministry alleges that these air emissions and waste discharges to soil and water contaminated the Flemish Region and other surrounding areas with toxic chemicals.
Kanner & Whiteley, LLC works with Belgian law firms Verbist & Vanlerberghe Omega Law and Dewallens & Partners and the American law firm of Motley Rice LLC to represent the Flemish Ministry for legal matters in the U.S. and consults on the environmental matters in Belgium.