On January 5 2011 a devastating fire started on the Chemie-Pack site, located on a large industrial park in Moerdijk, 35 kilometres south of Rotterdam. The company itself – a packer, filler and labeller of hazardous chemicals, including pesticides – was completely destroyed. Two neighbouring companies were also destroyed and several others incurred severe damage. The fire went as high as 40 metres and could be seen for some 25 miles around; motorways and railroads were blocked off and it took the firefighters more than 30 hours to control the fire. No people were injured.
Chemie-Pack, a family business for more than 60 years, had permission to store 4,000 tons of hazardous chemicals, including pesticides. The disaster resulted in 35,000 square metres of contaminated water and 1,800 tons of contaminated soil. It must be assumed, therefore, that all 4,000 tons of chemicals were released into the environment.
'Stronger regulations' and 'stronger enforcement' are still the buzzwords in discussions about the safety of the chemical industry, 26 years after the Bhopal disaster killed 2,259 people when 40 tons of toxic methyl isocyanate gas leaked from a pesticide plant in India. Later, the disaster in Seveso, Italy led to the EU Seveso I and II Directives (last revision 91/692/EC), a redraft of which was proposed last year. It must be assumed that regulations such as the Seveso Directives have had a positive effect. In the Netherlands, the Seveso Directives resulted in the Major Accidents Decree, which presently applies to 416 companies. After the Moerdijk fire, however, it emerged that the government agencies have no data on 30 companies with regard to inspection and monitoring. In total, more than 300 companies were non-compliant, 71 of which were non-compliant in a serious manner, and 25 of which pose an imminent threat to safety.
The fire and its aftermath have raised some interesting legal issues. First, the Ministry of the Environment refused to make public the list of non-compliant major accident companies. it reasoned that making the names public would have added no value to improving compliance. Should the companies refuse to comply, the ministry may later be willing to make the names public in order to 'name and shame' them. The question is whether the refusal to make the names of the non-compliant companies public violates the Aarhus Convention, as implemented in the Freedom of Information Act. The most likely answer is yes, as the exemption that usually applies to making information public does not apply when environmental information is concerned. Currently, all non-compliant companies in the Netherlands have had their permits amended ex officio.
Another interesting topic related to public access to information has arisen with regard to Chemie-Pack's insurance policy. The government has asked the company to make available its insurance policy in order to determine whether there is adequate coverage for the €11 million to €16 million that has been spent in order to remediate the water and soil. The company itself had previously refused to remediate and also refused to pay the remediation costs. It also refuses to make public its insurance policy. The government has started court proceedings against this refusal, and must make a pre-judgment attachment on the insurance money. Responsibility for remediation costs after fire-fighting operations is a well-known issue in Dutch environmental litigation, which has yet to be completely settled. It is argued that fighting fires is a government duty under public law in a similar way to, for example, traffic management. This is why companies sometimes refuse to take financial responsibility for remediation costs after fires. The pre-judgment attachment on the insurance money is also interesting as the bankruptcy of Chemie-Pack is imminent, given that the total damage caused by the fire is estimated to exceed €40 million. The Water Board estimates its costs to be €11 million to €16 million, while the Moerdijk Port Authority claims to have incurred costs of €3 million to €5 million.
Finally, Chemie-Pack's shareholders are involved with regard to paying back a loan of €1.5 million. Thus, this is unlikely to be the last court case arising from the fire.
For further information on this topic please contact Norbert de Munnik at NautaDutilh by telephone (+31 10 224 0000), fax (+31 10 414 8444) or email ([email protected]).