Enhesa Enforcement Corner – Issue 5

by Enhesa 16 Mar. 2018

Input from Michael George Pantelides, Deirdre Perquy, Tjeerd Hendel-Blackford, Elaine Ye, Kengo Okuda, Rakibe Külçür, Morgane Horn, Taotao Yue, Reiko Sakai, Jade Kennedy and Rhea Suri

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 recent months…

 

Turkey

Environmental and Product Compliance fines in Turkey increased by 14.5 percent for 2018.

Companies that violate environmental laws face increased fines (up by 14.5 percent) since 1 January 2018. The fines in question are imposed in the event of permit violations, and the violation of regulations related to hazardous waste and hazardous chemicals. The set fines will be in force until the end of 2018. The Ministry of Finance increases the administrative fines every year in accordance with Article 288/B of the Law on Tax.

There are also increased fines for companies that manufacture, import and/or place on the market any product if they violate Law No.4703 on Products and the related legislation.

The law increasing environmental fines can be accessed here, the one on increased fines for product non-compliance here (both in Turkish).

New Zealand

Painting company convicted and required to pay NZD 50,000 (USD $36,075) fine and NZD 20,000 (USD $14,430) costs after victim fell 2.8 meters from a roof with no edge protection through a glass table onto concrete.

The company in question had failed to identify the risk of a fall, failed to put any fall protection in place and did not ensure workers were trained and instructed in working at height. To accompany the case WorkSafe New Zealand also issued a media release on 1 December 2017 aimed at companies that undertake construction activities and other activities involving workers who work at height. Worksafe also announced that it is reviewing a number of relevant guidance documents.

The Worksafe media release regarding working at a height can be found here.

 

Hong Kong

  1. Asphalt plant and building materials company convicted and fined HKD 24,000 (USD $2,549) for carrying out specified processes illegally

Hong Kong Asphalt (Green) Limited located at Lung Kwu Sheung Tan in Tuen Mun violated specified process licence conditions for asphalt production, while Eco Building Material Company Limited at Tuen Mun River Trade Terminal was involved in illegal loading and unloading of cement. They were convicted and fined a total of HKD 24,000 (USD $2,549) for contravening the Air Pollution Control Ordinance (APCO).

More information on this case here.

 

  1. Biodiesel company convicted and fined HKD 10,000 (USD $1,275) for illegal wastewater discharge

ASB Biodiesel in Tseung Kwan O, which illegally discharged wastewater into the communal storm drainage system, was fined HKD10,000 (USD $1,275) for contravening the Water Pollution Control Ordinance (WPCO).

More information on this case here.

 

  1. EPD strictly combats illegal collection, handling, import and export of hazardous electronic waste

An electronic waste (e-waste) collector, a recycling site operator and two traders, who illegally collected, handled and imported and exported hazardous e-waste respectively, were convicted and fined a total of HKD 96,000 (USD $12,240) for contravening the Waste Disposal Ordinance (WDO) and the Waste Disposal (Chemical Waste) (General) Regulation.

More info: http://www.info.gov.hk/gia/general/201801/09/P2018010900522.htm

 

  1. Biodiesel convicted again for discharging sub-standard wastewater into communal sewer

ASB Biodiesel was convicted after again being found to have discharged sub-standard wastewater into a communal sewer. The company was fined HKD 15,000 (USD $1,912) by Kwun Tong Magistrates' Courts today (January 18) for contravening the Water Pollution Control Ordinance (WPCO).

More info: http://www.info.gov.hk/gia/general/201801/18/P2018011800731.htm

 

The Netherlands

  1. Waste Energy Company ordered to pay a fine of EUR 350,000 (USD $430,045) for soil pollution on its own premises. Remediation to cost approx. EUR 15 million (USD $18.4 million).

The company in question, AEB, was found to have breached the Soil Protection Act after AVI soil ash waste was found to have been put into the soil without having taken the necessary measures to prevent environmental pollution. The soil contamination was discovered in March 2014 by the company itself, when it undertook a compulsory soil investigation. AEB reported the pollution to the province, after which a criminal investigation was started. The costs of remediation of the contaminated soil were taken into account when considering the level of fine to impose.

More information on this case can be found here.

 

  1. Biogas leaks and failure to report fire in time resulted in EUR 100,000 (USD $122,879) fine for company processing carcasses etc., into green gas.

The company in question had to pay an initial fine of EUR 75,000 (USD $92,152) following an incident in November 2015 when pressure build up resulted in the roof coming off a “digester” (vergister), causing a large amount of biogas to leak.  The company was ordered to pay an additional fine of EUR 25,000 (USD $30,717) because it did not report a separate fire incident on time. The court ruled that this was a serious negligence, because the government was thereby deprived of the opportunity to make observations in time about the nature and extent of the incident and the potential environmental damage and, if necessary, to take measures.

More information on this case can be found here.

 

  1. Company fined EUR 1.2 million (USD $1.47) for exceeding permitted emissions of ethylene oxide

Deross Holding was convicted for exceeding the permitted emissions of ethylene oxide in Zoetermeer between 2004 and 2009. The court in The Hague also demanded a community service of 100 hours for the two directors of the company (at the time called Sterigenics). The carcinogen ethylene oxide was released into the air in high concentrations between 2004 and 2009 because of a failure of the incinerator at the company. As a result, the unprocessed ethylene oxide left the company for years through a calamity pipe. The afterburner should have reduced the concentration by 99.9 percent.

More info [Dutch]: http://www.telegraaf.nl/nieuws/1572600/forse-boete-geeist-voor-uitstoot-giftige-stof

 

Philippines

Operation of a shopping mall and a call centre run by a U.S. company were suspended following a fire that killed 38 people. Authorities cited failure to fully comply with fire safety requirements for five successive years.

The Philippine Economic Zone Authority (PEZA) suspended the registration of the New City Commercial Center (NCCC) and American company Research Now SSI in Davao for failing to meet certain safety requirements since 2013. Specifically, the Authority cited violations were the non-compliance of annual emergency drills to test the fire safety equipment, response and rescue capability, sprinklers and emergency exits.

DOLE has launched an investigation into the fire, but has not yet presented any findings. However, this incident has put pressure on Congress to adopt wholesale reforms of workplace safety legislation and push for the adoption of a new amendment to the OSH Standards that was proposed in the latter half of 2017.

More information on this case here and here.

 

Australia

Glass-fitting company fined AUD 150,000 (USD $115,672) after worker was seriously injured unloading glass panels.

City Projects Pty Limited was prosecuted after a then 28-year-old male worker was struck by glass panels that were not adequately restrained when being unloaded from crates with a forklift. The company had not provided adequate training.

More info: http://www.safework.nsw.gov.au/news/media-release/worker-seriously-injured-after-company-fails-to-provide-training

 

United Kingdom:

  1. A pest control company was ordered to pay GBP 110,000 (USD $153,351) and one of its directors given a one-year suspended jail sentence for the unsafe storage of unauthorized biocidal products

An investigation by the Health and Safety Executive (HSE) found various biocidal compounds which were not authorized for use improperly stored at the premises of the company in question. In addition, part used canisters of phostoxin (a compound that reacts with moisture in the atmosphere or the soil to produce phosphine, a poisonous gas) were found stored inside a filing cabinet within the workplace.

More information on this case here.

 

  1. Waste recycling company fined GBP 80,000 (USD $111,528) after worker crushed by machinery

A young worker was undertaking routine maintenance work inside a conveyor when he fell approximately four meters to the floor when the machine was switched back on with him inside.

The HSE investigation found that the company had insufficient controls in place for the management of these risks at their premises.

More information on this case here.

 

  1. Concrete supply company is fined GBP 267,000 (USD $37,224) after work suffers serious injuries after falling down an uncovered concrete chute.

A Litecast Limited employee was injured when he lost his footing and fell approximately five meters to the floor through an uncovered concrete chute in the batching area. The HSEinvestigation found that the cover of the concrete chute had been removed, and the company had no systems in place for employees working at height. They were found guilty of breaching Regulation 5 (1) of the Management of Health and Safety at Work Regulations 1999

More information on this case here.

 

  1. Local Council and large waste management company fined GBP 100,000 (USD $139,410) and GBP 250,000 (USD $348,525) respectively after worker crushed.

A workshop cleaner who was known to need additional support at the workplace was struck by a reversing 17 and a half tonne dust cart and suffered serious injuries. The waste company did not take reasonably practicable precautions to ensure the injured party was safe whilst working within their workshop due to a lack of implementation of adequate controls for workplace transport such as use of a banksman. Both defendants also failed to take into account the specific capabilities of this vulnerable worker and to take reasonably practicable steps to ensure the safety of this individual working within a high-risk environment.

More information: http://press.hse.gov.uk/2018/london-council-and-veolia-fined-after-worker-crushed-by-reversing-vehicle/

 

  1. Natural gas storage facility operator fined GBP 300,000 (USD $418,230) after 13 employees and contractors

A fibrous dust was released after workers used a wire brush mounted on an electric drill to remove sealing gasket material from a compressed air distribution system. The dust was tested two days later and found to contain chrysotile (white) asbestos fibers. The HSE found that the company had failed to identify in the risk assessment for this job that there were asbestos gaskets attached to the non-return valve. There were also inadequate records on asbestos presence at the facility and there had not been any asbestos awareness training.

http://press.hse.gov.uk/2018/company-fined-after-employees-exposed-to-asbestos-fibres/

 

Brazil

Companies now face stronger sanctions if they illegally suppress nature in Brazil.

The Brazilian Environmental and Natural Renewable Resources Institute - IBAMA imposes severe sanctions for the illegal suppression of nature. In its combat against the illegal suppression of the Atlantic Forest, IBAMA proceeded to the embargo of 1.225 hectares of Atlantic Forest and the enforcement of 16 infraction notices, totaling BRL 9.4 million (USD $2.87).

More information on this here.

 

China

  1. Shandong: A vehicle manufacturing company has been fined for fraudulent activity with respect to the emission control on cars (similar to VW “dieselgate”)

China’s Ministry of Environmental Protection (MEP) fined two auto companies for failing to meet pollution standards and engaging in emissions fraud. Shandong-based Kama Automobile Manufacturing Ltd was fined 31.74 million yuan (USD $5 million) for exceeding emissions standards in its diesel trucks and for misusing pollution control devices in order to pass inspections. At the same time, Shandong Tangjun Ouling Automobile Co Ltd was fined more than 7 million yuan (USD 1.1 million) after finding that one of their light diesel truck models exceeded emissions standards. The fines consist of confiscated revenues and an additional levy set at twice the value of the substandard vehicles.

More info on this story here.  The official notice of the administrative order can be found here

 

  1. Hebei: Authorities have conducted a series of air emission inspections and fined multiple facilities for excessive emission discharge and failure to have compliant treatment processes for the emissions.

Hebei Provincial Environmental Protection Bureau (EPB) released a report on nine environmental violation cases discovered in the province on 8 January 2018. The violating companies are expected to be fined severely. The violators include facilities that engage in metal refineries, construction activities, steel manufacturing, chemical engineering and glass manufacturing. The facilities were discovered with serious air pollution violating the relevant air emission regulations or standards, such as the absence of air emission treatment, unorganized dust emission, emission without required permits, malfunction of air emission treatment, and fraud/interference with emission data monitoring.

Hebei has conducted a series of inspections in the past several months, especially with respect to air emissions. For instance, Since September 2017, Hebei EPB has carried out four rounds of air emission inspections within the province and 7,332 companies have been discovered to have major or minor non-compliances.

More info on this case here and here.

 

  1. ZHEJIANG: A chemical facility caught for illegally setting up secret pipe to discharge wastewater

A chemical facility located in Jiaxing, Zhejiang was caught by local environmental protection bureau for secretly discharging wastewater containing excessive Chemical Oxygen Demand, ammonia nitrogen, and aniline. To avoid being caught, the facility had established two different wastewater discharge pipes, one of which bypasses pollution monitoring and treatment equipment and discharges untreated wastewater out of the facility. The director, deputy director, and personnel in charge of environmental protection were arrested for criminal offences.

http://www.zjepb.gov.cn/art/2018/1/16/art_1201344_15201596.html

 

  1. JIANGSU: Nine people convicted for polluting the environment in five different cases.

On 11 December 2017, the Court of Jiangsu Kunshan convicted the defendants for violations including, for example, discharging wastewater containing pollutants (such as copper, nickel or chromium) and exceeding emission limits without permit or treatment. The defendants were sentenced to imprisonment and fines to various extents.

http://www.zhongguofazhi.org/content_3290630.html

 

Canada

Company fined CAD 600,000 (USD $458,388) after it was found to have manufactured and sold two commercial laundry detergents which contained concentrations of phosphorus in excess of the allowable limit

The Edmonton company in question pleaded guilty to violating Section 4 of the Concentration of Phosphorus in Certain Cleaning Products Regulations, SOR/89-501. Environment and Climate Change Canada enforcement officers conducted an investigation which revealed that the company manufactured and sold two commercial laundry detergents which contained concentrations of phosphorus in excess of the allowable limit.

More information on this case here..

 

India

Indian coal-mining company potentially facing penalty of USD $3.1 billion for violating environmental laws.

In September 2017 it was announced that Mahanadi Coalfields Limited, a subsidiary of Coal India, faced potential fines of INR 200 billion (USD $3.1 billion) for violating environmental norms. This follows a ruling of the Supreme Court of India prohibiting all mineral production in violation of environmental laws. The court ordered the Indian state of Odisha – where the mines are located – to recover the value of all minerals produced in excess of the caps established in accordance with environmental and forest laws, pollution control rules and mining plans. In 2012 Coal India was also fined INR 13 billion (USD $237 million) for illegal extraction or mining without environmental clearance in Odisha.

 

European Union

European Chemicals Agency (ECHA) announces pilot enforcement to check compliance with the notification and communication obligations of substances in articles under REACH Regulation

Until June 2018, producers, importers and suppliers of articles containing substances of very high concern (SVHC) in a concentration of at least 0.1% weight by weight (w/w), can be subject to an inspection to assess compliance with the notification and communication requirements of the REACH Regulation. Inspections will focus on articles likely to lead to consumers’ exposure to specific SVHC, such as brominated flame retardants, phosphorous flame retardants, phthalates and perfluorinated substances. Among the targeted articles are electrical products, building materials and interior articles.

This follows from a Forum for Exchange of Information on Enforcement (Forum) pilot enforcement project. The Forum’s pilot project follows indications that industry is not complying with its obligations.

More information on the pilot enforcement project can be found here.

 

USA

  1. Swedish manufacturer of outdoor gardening and forestry equipment agrees to pay USD $2.85 million in civil penalties for resolve alleged violations of Clean Air Act.

The company in question Husqvarna, was cited for failure to provide EPA with complete and accurate emissions testing information relating to engines used in handheld lawn, garden and forestry equipment manufactured during the 2011-2013 period.

More information on this case here.

 

  1. Chemical Company given injunctive relief likely to cost USD $94 million to reduce air pollution at two carbon black manufacturing plants in Louisiana and Kansas.

The EPA initiated investigation of the carbon black manufacturing sector in 2007, and of Columbian in 2009. Based upon Columbian’s response to the EPA’s CAA Section 114 information requests and other information obtained during its investigation, the EPA concluded that modifications were performed at its plants that violated the Prevention of Significant Deterioration (PSD) provisions of the CAA. In addition to the injunctive relief, the company, Columbian Chemical Company, also agreed to pay a USD 650,00 civil penalty.

More information on this case here.

 

  1. Proposed penalties totalling USD $161,000 for two companies after five employees fatally injured after release of molten slag at electric power plant

OSHA cited Tampa Electric Co. and Gaffin Industrial Services Inc. after five employees were fatally injured, and one other suffered serious burns. Following an investigation in June 2017 OSHA inspectors determined that the employees were burned when a blockage inside a coal-fired furnace broke free and spewed molten slag into the work area.

Tampa Electric failed to follow energy control procedures while performing maintenance on equipment. Gaffin Industrial Services failed to develop procedures to control hazardous energy. Both companies also failed to provide appropriate personal protective equipment to safeguard employees from burns.

More information on this case here.

 

  1. Proposed penalties of USD $515,000 for vinyl floor manufacturer for machine safety violations after two workers were injured.

OSHA Inspectors cited the company in question for machine safety violations after two separate reports of employee injuries in June 2017. One employee required surgery after his hand was crushed in a tile machine. Less than two weeks later, another employee suffered partial amputations of two fingers while working on a recycle material system. OSHA cited the company for failing to use adequate lockout/tagout procedures and devices to prevent unintentional machine movement, failure to train employees, and exposing employees to fall hazards. The company has been placed in OSHA’s Severe Violator Enforcement Program.

More information on this case here.

 

  1. Winery to pay USD $330,000 civil penalty and USD $300,000 in environmental improvement costs.

Gibson Wine Co. reached an agreement with the DOJ and EPA to resolve federal environmental violations related to an anhydrous ammonia release at its winemaking facility in Sanger, Calif., that led to the death of one of Gibson Wine’s workers, triggered evacuations and required a fire department response. The EPA inspection of January 2013 followed a release of more than 280 pounds of anhydrous ammonia at the facility in September 2012. Gibson Wine were found to have violated the Clean Air Act by failing to identify hazards, design and maintain a safe facility, and minimize the consequences of an accidental release.

 

More info: https://www.epa.gov/newsreleases/us-epa-us-department-justice-finalize-settlement-sanger-calif-winery-over-deadly

 

  1. Coke plant in Pennsylvania reaches agreement to pay USD $1.5 million penalty and USD $2 million in air pollution controls

ArcelorMittal Monessen LLC (AMM) committed alleged Clean Air Act violations related to emissions of particulate and sulfur compound emissions. The settlement also resolves a separate citizens’ suit filed by PennEnvironment, an environmental group that represented residents in the surrounding neighborhood.

 

More info: https://www.epa.gov/newsreleases/settlement-requires-clean-air-act-compliance-arcelormittal-monessen-coke-plant

 

  1. Aircraft manufacturer faces penalties of USD $194,000 for exposing employees to hexavalent chromium

OSHA is citing Spirit Aerosystems Inc. for exposing employees to this known carcinogen. Employees were found to have been exposed to airborne concentrations of hexavalent chromium nearly two times the permissible exposure limit. The company failed to implement sufficient feasible engineering and work practice controls to prevent exposure, conduct monitoring or sampling, provide training, and require employees to properly remove potentially contaminated personal protective equipment and clothing before leaving the sanding area.

More information: https://www.osha.gov/news/newsreleases/region7/01312018

 

  1. Multinational tire manufacturing company faces proposed penalties of USD $70,000 for exposing its employees to burn, hazardous energy, amputation, and caught-in safety hazards

OSHA issued seven serious citations against Goodyear Tire & Rubber Co. after an investigation found that the company failed to provide effective personal protective equipment to employees exposed to burn hazards; did not provide procedures for controlling hazardous energy during equipment maintenance operations; and exposed employees to burns from heated tire treads, and caught-in hazards from unguarded machines.

More information: https://www.osha.gov/news/newsreleases/region4/01242018

 

Japan

  1. Company reaches settlement with bereaved family following suicide related to overwork without any legal disputes:

An employee of an automatic door sale and construction company committed suicide in 2014 because of onset of depression caused by continuous work or overtime, The Higashi Osaka Labor Standards Inspection Office recognized the suicide as a workers’ compensation case. The employee’s overtime work includes, working for 12 days in a row including working midnight shifts for at least three times.

More information [Japanese]:

http://www.sankei.com/west/news/180109/wst1801090038-n1.html

 

  1. The Ministry of Health, Labor and Welfare releases statistics on work-related deaths of foreign technical interns for the first time.

In the three years from 2014 to 2016 there were 22 deaths of interns recorded. The majority were classed as accidental, but one death was from overwork. The death rate of foreign technical interns (外国人実習生) from accidents greatly exceeds the death rate of workers and disasters of all employees in Japan. Statistics show that workplace fatalities for the entire Japanese workforce (169.64 million people) was 1.7 deaths per 100,000 workers, whereas for the foreign technical interns, it was 3.7 deaths per 100,000 workers.

As a side note, these foreign technical internships are a form of practical internship specifically catered towards foreigners (mostly from southeast Asia) where companies can transfer technical knowledge and skills to these interns for a period of up to three years, or even five years for exceptional companies. A new legislation was just implemented in November 2017 to improve the safety and health conditions of these interns. Some critics refer to this as exploiting foreigners for cheap and slavery labor, considering that Japan has a closed door policy of taking in immigrants and refugees.

More information [Japanese]: https://www.nikkei.com/article/DGXMZO25669590U8A110C1CR8000/