Enhesa Enforcement Corner – Issue 9

by Enhesa 27 Dec. 2018

Input from Caitlin Sullivan, Karolina Wrzecionkowska, Serena Anand, Elizabeth Bootz, Hannah Solomon, James Olaleye, Tanya Abrahamian, Sunita Paudyal, Edith Nagy, Rakibe Külçür, Rhea Suri, Tjeerd Hendel-Blackford, Ana Gomes dos Santos, Nina Koivula and Gabriela Troncoso Alarcón

Enhesa keeps an eye on key regulatory enforcement actions around the globe. Here are just some examples of the many enforcement cases around the world in the past couple of months…

India

DELHI: Facilities operating in unauthorized areas and causing environmental pollution face shut down

In two separate media reports, the Delhi Government announced its decision to shut down over 6,000 facilities that are still undertaking industrial activities in unauthorized or residential areas.

In the first media report of September 16, 2018, the Delhi Pollution Control Committee (DPCC) ordered local authorities to immediately shut down more than 199 illegally operating factories. The enforcement case was launched following a complaint lodged by the public against illegally operating facilities.

Under the Master Plan for Delhi 2021, facilities are allowed to operate only in designated areas. These facilities were found not only violating the Master Plan for Delhi 2021, but also discharging/emitting environmental pollution in excess of prescribed limits. The DPCC also pointed out that these facilities were also operating without obtaining mandatory consent form the DPCC.

In a second media report of October 12, 2018, it was reported that over 6,000 facilities would be shut down by December 11, 2018. The decision came after the High Court raised concerns regarding still allowing these facilities to operate in residential/unauthorized areas despite a 2004 Court’s Order mandating the Delhi Government to move these illegal activities from residential areas to areas approved for industrial activities.

The Delhi Government has submitted an action plan to the Court and assured the Court that illegally operating facilities will be shut down by December 11, 2018.

More information is accessible here and here.

 

HARYANA: Facilities operating without consent may soon face stiff penalties—including prosecution

According to a media article published on September 12, 2018, facilities illegally operating without proper consent and causing water pollution may soon face stiff penalties. The National Green Tribunal (NGT) has ordered Regulatory Authorities to undertake inspection of such facilities so further action can be taken. Authorities are also ordered to prepare an action plan within 2 weeks and submit a report to NGT within 3 months once the inspection is completed.

Previous inspection also revealed that these facilities were illegally dumping untreated effluent in the nature and causing water pollution.

Under the National Tribunal Act 2010, facilities non-compliant with the NGT Order will face penalties with imprisonment up to 3 years, a fine up to INR 250,000,000 (Approx. USD 3.8 million) or both.

More information can be found here.

 

Supreme Court finds that Environmental Clearance cannot be retrospective.

On November 12, 2018 the Indian Supreme Court examined the case of a mining company that carried out illegal mining activities (beyond the conditions of its mining lease). The Court found the company guilty of illegal mining and rejected submissions from the mining company that environmental clearance (permit) should be retrospective and only start from the date of their mining license renewal. The court found that any illegal mining done prior to obtaining the environmental clearance will attract a penalty.

More information can be found here.

 

Mexico

BAJA CALIFORNIA SUR: Definitive shut down and fine of MXP 2,579,200 (approx. USD 140,000) for a mining company

The Federal Attorney General of Environmental Protection (Procuraduría Federal de Protección al Ambiente – PROFEPA) fined a mining company for not complying with the environmental legislation and the terms and conditions established in the Environmental Impact Authorization (Autorización de Impacto Ambiental). The terms related to the operation and maintenance project of a metallurgical plant in Baja California Sur. According to the PROFEPA, the company also did not have authorization to manage hazardous waste—an authorization of the Environmental Risk Study (Estudio de Riesgo Ambiental)—since the company uses Sodium cyanide, nor a Wildlife Management Plan approved by Secretariat of Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales - SEMARNAT). Additionally, the company was sanctioned with the withdrawal of their mining concession granted by the SEMARNAT and the definitive shutdown of the site.

More information about this issue can be found here.

 

QUINTANA ROO: Temporary shutdown of land-clearing activity without authorization for change of land use

The Federal Attorney General of Environmental Protection (Procuraduría Federal de Protección al Ambiente – PROFEPA) shut down a site in which land clearing activities were being carried out without authorization for the change of land use in forested areas.

The area was being cleared for the construction of a commercial area. Those responsible could face fines ranging from from MXP 100 to 20,000 (approx. USD 790) in addition to being required to carry out restoration of the affected area.

More information about this can be found here.

Azerbaijan

Company fined for emitting black soot into the air following failure of boiler.

On November 5, 2018, the Ministry of Ecology’s of Azerbaijan published on its website that a company that emitted black soot into the air was fined AZM 800 (Approx. USD 470). No additional information was provided. The fine is very low compared to other jurisdictions, but it does indicate a move towards enforcement.

The story can be accessed here.

 

Turkey

Increase in fines for non-compliance with driving or vehicle safety laws

As of October 26, 2018, administrative fines have been increased and tightened for driver and vehicle safety. Law No.7148 (Karayolları Trafik Kanunu ile Bazı Kanunlarda Değişiklik Yapılması Hakkında Kanun) was published to amend Law No.2918 on Traffic, which ensures road traffic safety. Amongst amended provisions are the following:

  • Vehicles designated for scrap (end-of life vehicles) must not be driven on roads. Otherwise drivers of these vehicles will have to pay TRY 2000 (approx. USD 377) and the car will be seized by the authorities.
  • The Law introduces a 3-day driving ban for drivers that run a red light three times in one year. Drivers who are banned from driving twice or more in a year will have to pass a psychiatric medical test to be reissued with a driving license.
  • The Law also increases administrative fines. For example, the fine for owners of vehicles that do not undergo periodic inspections (araç muayene) is raised to TRY 235 (approx. USD 44) and using mobile phones and communication equipment while driving is set at TRY 235 (approx. USD 44). Using car horns and indicators where these are not required can result in a fine of TRY 1,002 (approx. USD 189).

Law No.7148 to amend Law on Traffic and Other Laws of 26 October 2018 is available online in Turkish

 

USA

EPA settles with company for USD 2.95 million for alleged violations of chemical accident prevention requirements; is also required to spend USD 150 million on safety improvements.

On October 24, 2018, the U.S. Environmental Protection Agency (EPA) and the Mississippi Department of Environmental Quality (MDEQ) announced a settlement agreement with an energy and petroleum company for alleged violations to the EPA's chemical accideokant prevention requirements. Under the settlement, the company will pay a USD 2.95 million civil penalty. In addition to this civil penalty, the company must spend approximately USD 150 million to make safety improvements at all of its domestic refineries and must implement supplemental environmental projects (SEPs) worth at least USD 10 million USD to help the communities surrounding its facilities in California, Mississippi, Utah, and Hawaii.

The EPA's investigation into the company began after a fire at a facility released high-temperature hydrocarbons into the atmosphere in August 2012. During the EPA's investigation, the company experienced accidental releases of regulated chemicals from two of its other refineries, one of which occurred in Mississippi.

For more information, see the settlement agreement online.

 Solvent recycling and storage facility to pay USD 120,000 penalty for alleged RCRA violations; must also purchase emergency response equipment for USD 353,000.

The U.S. Environmental Protection Agency (EPA) recently reached a settlement with a fuel blending, solvent recycling and re-packaging distribution and storage company regarding several violations of the Resource Conservation and Recovery Act (RCRA)—including non-compliance with hazardous waste management requirements. In addition to fines and equipment purchase, the company must implement corrective action and provide a copy of an audit of hazardous air emissions at its facility to the EPA. This settlement sets an example of the importance of properly managing hazardous waste. During inspections in 2015, EPA found several violations, including failure to:

- make a hazardous waste determination for certain solid waste generated

- maintain and inspect secondary containment areas to prevent leaks and spills

- regularly inspect its hazardous waste operations area to detect discharges

- inspect and properly maintain its closed ventilation monitoring systems

- properly manage ignitable hazardous waste in certain areas of the facility

- maintain adequate operating records

- obtain the proper permit to store and treat hazardous waste for longer than 90 days

More information on the settlement can be found in the EPA News Releases, while information on the RCRA requirements are available online.

 

EPA fines manufacturer of products that defeat emission controls USD 300,00, in addition to an estimated USD 6.5 million in compliance costs.

On September 24, 2018, the U.S. Environmental Protection Agency (EPA) reached a proposed settlement with a company manufacturing and selling aftermarket products which bypassed, defeated and rendered inoperative emissions controls installed on motor vehicles or motor vehicle engines. The compliance terms of the proposed consent decree will cost the company approximately USD 6.5 million. Additionally, the company will pay a USD 300,000 civil penalty.

The proposed consent decree arises after the company manufactured and sold custom tuning software and products designed to access and overwrite the original vehicle manufacturer’s processes. The proposed consent decree is subject to a 30-day public period and final court approval. The consent decree will be lodged in the U.S. District Court of the District of Columbia. The notice of lodging of the proposed consent decree can be found in the 27 September 2018 Federal Register.

 

 EPA and DOJ settle with agricultural processing company for CWA violations to prevent and prepare for future accidental oil spills.

On August 20, 2018, the U.S. Environmental Protection Agency (EPA) reached a proposed settlement with a company owning eight agricultural processing facilities in Iowa and Minnesota that failed to maintain a Facility Response Plan (FRP) and comply with the Spill Prevention, Control, and Countermeasure (SPCC) rule of the Clean Water Act (CWA). The compliance terms of the proposed consent decree will cost the company approximately USD 200,000. Additionally, the company will pay a USD 500,000 civil penalty.

To bring the company into compliance, the company is ordered to work with the EPA and contract with a third party to conduct compliance audits. Additionally, the company has agreed to install and maintain a monitoring system that will provide safeguards at the facilities. These safeguards include real-time continuous monitoring of high and low tank levels, audible alarms and cutoff switches that de-energize equipment from pumping further oil into tanks when high levels are reached.

More information is available on EPA’s website.

 

TEXAS: CEO and plant manager indicted in connection with chemical plant fire following Hurricane Harvey flooding.

On August 3, 2018, two senior staff members were indicted in connection with fires that occurred at a chemical plant in Crosby, Texas caused by flooding from Hurricane Harvey. The CEO of the company and the plant manager of the facility were both charged with recklessly releasing chemicals into the air. The charge for violating the Texas Water Code carries a fine of up to 1 million USD and 5 years imprisonment.

The facility had implemented multiple layers of protection from its hurricane preparedness plan to ensure that organic peroxides were kept cold. However, these layers of protection all failed when extensive flooding from Harvey caused the facility to lose power, backup power, and the critical and temporary refrigeration systems. Over the course of several days and three fires, organic peroxide in excess of 350,000 pounds combusted, requiring more than 200 residents living within a 1.5-mile radius of the facility to be evacuated for over a week.

The U.S. Chemical Safety and Hazard Investigation Board (CSB) investigation report stated that although the facility followed all precautions in its written hurricane preparedness plan to prepare for the storm, the facility's process hazard analysis (PHA) failed to adequately consider flood risks. Even if the facility's PHA had analyzed flood risks, CSB found that existing industry guidance is insufficient to prevent an incident like the fires at the facility.

For more information on CSB's guidance for facilities on how to assess and prevent risks and hazards from extreme weather events, see the full investigation report. More information on the indictment of the 2 company officials can be found here.

 

OHIO: Manufacturer cited by OSHA for exposing employees to excessive noise, faces USD 331,490 in penalties.

On August 2, 2018, the Occupational Safety and Health Administration (OSHA) announced that it had cited a company for exposing its employees to excessive noise. In response to a complaint, OSHA conducted an inspection of the facility in question. 12 employees’ audiograms indicated mild to moderate hearing loss at the manufacturing plant. OSHA also found that the company had failed to:

  • Implement an audiometric testing program to monitor employee hearing loss
  • Implement controls to reduce noise levels
  • Use machine guards
  • Provide adequate respiratory protection
  • Remove damaged forklifts from use
  • Train workers on hazardous communication
  • Store flammable materials properly

Notice of the citation is available in the OSHA News Release - Region 5 new release.

 IOWA: Underground Storage Tank (UST) owner fined USD 7,000 for failing to complete annual site monitoring.

On August 2, 2018, the Iowa Department of Natural Resources (DNR) released an Administrative Order citing an installer of Underground Storage Tanks (USTs) for causing soil contamination after failing to conduct annual soil sampling and failing to provide annual site monitoring reports (SMR) to the DNR pursuant to the state's requirements.

The DNR cited the installer of two USTs for violations related to soil and groundwater contamination exacerbated by the violating party's failure to submit to DNR the required monitoring reports. Because the owner of the USTs did not monitor soil and groundwater and file a site monitoring report (SMR) between 2014 and 2017 though the property was designated as high risk, the DNR found that the party was in violation and ordered that the party submit a SMR to the DNR within 60 days of the August 2, 2018 order being signed. DNR imposed sanctions of USD 7,000 in administrative penalties and required that the violating party enter into a contract with a Certified Groundwater Professional (CGP) within 30 days of the order to complete the required SMRs.

The Iowa DNR Administrative Order of the Violation can be found here.

 

 EPA settles with surface coatings manufacturer for RCRA violations, company must pay USD 77,093 and correct all federal and state violations.

The EPA reached a settlement with a Vermont company regarding violations of the Resource Conservation and Recovery Act (RCRA); EPA inspectors found that the company was storing numerous drums of hazardous waste for more than 180 days without a license, and storing incompatible hazardous wastes without segregating them.

More information on this here.

Canada

ONTARIO: Company fined CAD 325,000 (approx. USD 210,400) and required to pay 25 percent victim fine surcharge in relation to a worker fatality after steel casing rolled while being moved by a forklift.

On October 17, 2018, a heavy civil construction company was charged with occupational health and safety violations in relation to a worker fatality after steel casing rolled while being moved by a forklift. Following a trial, the company was fined CAD 325,000 (approx. USD 210,400) and had a 25 percent victim fine surcharge imposed as required by the Provincial Offences Act.

More information on this enforcement action is available online.

 

United Kingdom

 Clinical waste operator breaches environmental permits, criminal investigation launched.

The Environment Agency (EA) of England and Wales found Healthcare Environmental Services was in breach of its environmental permits at four sites (out of six in total) which deal with clinical waste. Those sites had more waste present on site than their permit allowed and were found storing waste inappropriately. The EA has already taken a number of measures to bring their sites back into compliance, but they have repeatedly breached permits and continued to operate unlawfully. As a result, in addition to the enforcement activity to clear the sites, the EA has launched a criminal investigation.

More information on this case here.

 

Facility management company fined GBP 93,000 (approx. USD 103,300). with GBP 32,000 (approx. USD 35,500) costs, following safety failings at laboratory.

The company in question was contracted to the site and was responsible for delivery of maintenance activities for many of the mechanical and electrical systems required for containment and control of high hazard biological agents in microbiological containment laboratories. A mains power outage resulted in a number of safety system failings.

An investigation by the Health and Safety Executive (HSE) found a number of failings of the contractor in relation to the maintenance activities undertaken on standby generators that could have resulted in employees being exposed to a risk of harm from biological agents.

More information on this case here.

Portugal

An importer and the retailer of a hazardous cleaning product found liable for damage caused to a user, as it was placed on the market without a label containing the required information and a safety data sheet

Manufacturers, importers and retailers of defective products can be held liable for any damaged caused by their use. In a recent case, the Appeal Court of Coimbra deemed the importer and the retailer of a hazardous cleaning product liable for damage caused to its user, as it was placed on the market without a label containing the required information and a safety data sheet.

The Court concluded that the defendants are liable for the damage caused by the product they imported and supplied to the appellant, as it is not safe for its intended use.

The Judgment of the Appeal Court of Coimbra of 18 September 2018 in process 2411/10.4TBVIS.C1 is available online in Portuguese.

 

Finland

Company fined for work safety offense after not restricting access to the hazardous part of work machinery

Through its ruling of October 15, 2018, the Ostrobothnia District Court sentenced a company to a corporate fine (yhteisösakko) of EUR 1000 (approx. USD 900) and the production manager of the company to 20 income-based day-fines (päiväsakko) for a crime against occupational health and safety (työturvallisuusrikos). The sentencing followed a workplace accident which took place in July 2016 in Kruunupyy.

The injured employee was working as an operator of one of the company’s plastic-welding machines. When the accident took place, two piles of paper plates had gotten too close to each other. The employee tried to remove one of the piles without shutting down the machine but was not able to pull out their hand out of the way before the impulse heat sealer was pressed down.

The District Court found that the measures taken following the risk assessment were insufficient; the plastic-welding machine did not have the protection necessary for preventing access to the moving parts of the machine and its hazardous zone. According to the Court, the production manager should have taken measures to eliminate the identified hazard

The press release of the Regional State Administrative Agency on the judgment is available online in Finnish.

 

China

JIANGSU: Chemical company must pay CNY 54.83 million (approx. USD 8.05 million) as a result of environmental damage it caused by polluting water bodies.

In August 2018, the Taizhou Intermediate People's Court in Jiangsu province ruled on Monday that Haide Chemical Technology Co Ltd must pay 54.83 million yuan ( USD 8.05 million) to Jiangsu provincial government for the environmental damage it caused by polluting water bodies.

More information on this case can be found here.

 FUJIAN: Seven arrested and charged with negligence following chemical spill.

In November 2018, seven people, including three employees of the Fujian Donggang Petrochemical Company and four workers on the concerned chemical tanker, were arrested for negligence resulting in a massive chemical spill on November 4. The spill occurred as a toxic substance called C9 aromatic hydrocarbon was being transferred onto a chemical tanker ship at a petrochemical wharf in the Quangang district of the port city of Quanzhou. During the transferring process, an old tube connecting the vessel to the wharf broke, spilling out 6.9 tons of the chemical into the water.

More information on this case can be found here.