Enhesa Enforcement Corner– Issue 6

by Enhesa 04 May. 2018

Input from Tjeerd Hendel-Blackford, Elaine Ye, Kengo Okuda, Reiko Sakai, Deirdre Perquy, Jade Kennedy, Rhea Suri, Michael George Pantelides, Jimena Murillo Chávarro, Nina Koivula, Taotao Yue

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…

CHINA

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, imported and exported hazardous e-waste respectively, were convicted and fined a total of HKD $96,000 (USD $ 12,229) for contravening the Waste Disposal Ordinance (WDO) and the Waste Disposal (Chemical Waste) (General) Regulation.

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

2. 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 $1,910) by Kwun Tong Magistrates' Courts today (January 18) for contravening the Water Pollution Control Ordinance (WPCO).

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

 

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

A chemical facility located in Jiaxing, Zhejiang was caught by the 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

 

4. 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 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

5. Number of cases where environmental enforcement penalties are imposed doubled in 2017

Statistics from the Ministry show that, from January to November 2017, the total number of cases where environmental enforcement penalties (including continuous daily fines, seizure, production restriction or suspension, administrative custody, and criminal prosecution) are imposed increased 102.4 percent compared to the same period in 2016 (35667 for 2017 compared to 17620 for 2016). The continuous fines on daily basis in the period amount to CNY ¥1,075,400,000 (USD $170 million), representing an increase of 43.4 percent compared to the same period in 2016. There is a sharp increase of cases which lead to administrative custody, which has increased by 139.1 percent (7,827 cases in 2017 compared to 3,274 in 2016)

6. Eight companies were penalized CNY ¥569 million (USD $86 million) for the restoration of the contaminated soil and another CNY ¥6 million to a public welfare fund for environmental damage

The court found that eight Ningxia-based companies dumped unprocessed waste in the Tengger Desert, polluting nearby soil. Their acts were exposed by environmental watchdogs in February 2015. The fine is the highest ever imposed on environmental polluters in China and it is the first-time multiple polluters have been penalized in a single environmental case.

More info: http://www.chinadaily.com.cn/opinion/2017-08/30/content_31304856.htm

 

7. Shandong: Two truck makers were fined at least CNY 38 million (USD $5.84 million) for emissions fraud

The Ministry of Environmental Protection (MEP) fined the Shandong-based Kama Automobile Manufacturing Ltd CNY ¥31.74 million (USD $5 million) for exceeding emissions standards in its diesel trucks and for misusing pollution control devices in order to pass inspections. Shandong Tangjun Ouling Automobile Co Ltd. were also fined in excess of CNY ¥7 million (USD $1 million) after 109 of the company’s light diesel trucks were found to have exceeded emissions standards. The fines include confiscated revenues as well as an additional levy set at twice the value of the substandard vehicles.

More info: https://www.reuters.com/article/us-china-pollution-autos/china-fines-two-truck-makers-for-pollution-emissions-fraud-ministry-idUSKBN1EY0OU

 

8. Wuhan: A company was sentenced to compensate for river water pollution caused by 44 tons of phenol discharged from its inappropriate unloading operation

9.4 times the permitted concentration of volatile phenol was detected in a waterway. This was due to violations of operating procedures, equipment defects and other reasons that led to the direct discharge of 44 tons of phenol from a ship into to the Yangtze River. The water company accordingly petitioned the court to order the investment company to compensate for the economic loss and interest caused by the pollution of the water source.

More info: http://www.chinacourt.org/article/detail/2017/04/id/2829353.shtml [Chinese]

 

Japan

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

An employee of an automatic door sales and construction company took their own life 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 at least three times.

More information [Japanese]:

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

 

 2.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 foreign technical interns recorded. The majority were classified as accidents, 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. In Japan as a whole, the Ministry of Health, Labor and Welfare recorded 2,957 deaths as a result of industrial accidents for the same period. When calculated by the Ministry of Internal Affairs and Communications statistics bureau for the three years of employment, the 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. The Japan Civil Liberties Union analyzes that the higher workplace fatalities for foreign technical interns is due to higher intake by small-to-midsize enterprises where the safety and health awareness is lower.

(New legislation was implemented in November 2017 to improve the safety and health conditions of these interns. Some critics refer to the system of foreign technical internships as exploiting foreigners for cheap labor and slavery, considering that Japan has a closed-door policy of taking in immigrants and refugees.)

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

 

The Netherlands

1. Company fined EUR € 1.2 million (USD $1.4 million) 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 100 community service 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: http://www.telegraaf.nl/nieuws/1572600/forse-boete-geeist-voor-uitstoot-giftige-stof [Dutch]

2. Prison sentences and EUR €750,000 fines for managers of companies for 'beaching ships'.

Six companies that belong to the Seatrade group were prosecuted for violating the European Waste Shipment Regulations, when they carried out the demolition of ships on beaches in India and Turkey. The Public Prosecutor demanded a fine of EUR €750,000 (USD $899,604) against each of the three central companies of the Seatrade group, with fines of EUR €100,000 (USD $119,947) against each of the three companies under which the ships operated. The executives in question were each sentenced to six months in prison, with two months under conditions.

More info: https://legalcounselor.nl/nieuws/gevangenisstraffen-voor-leidinggevenden-ondernemingen-voor-beachen-van-schepen-en-750-000-euro-boetes/

 

Australia

Glass-fitting company fined AUD $150,000 (USD $112,380) 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.

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

 

United Kingdom

1. Local Council and large waste management company fined GBP £100,000 (USD $ 135,990) and GBP £250,000 (USD $ 339,976) respectively after worker crushed.

A workshop cleaner was known to need additional support at the workplace was struck by a reversing 17.5 ton 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/

2. Natural gas storage facility operator fined GBP £300,000 (USD $407,971) after 13 employees and contractors were exposed to asbestos fibers.

Beverley Magistrates’ Court heard that a team of three mechanical maintenance personnel were tasked with the removal of a non-return valve from a compressed air distribution system. Some of the sealing gasket material was difficult to remove so they used a wire brush mounted on an electric drill to remove the gasket material which spread fibers from the gasket around the maintenance workshop onto floors, work benches and clothing.

Two days later another employee of SSE Hornsea Ltd. became suspicious of the fibrous dust, and having reported his concerns, arranged for a sample of the dust to be tested. It was found to contain chrysotile (white) asbestos fibers. The maintenance workshop was later closed to prevent access by employees and contractors.

The Health and Safety Executive (HSE) prosecuting told the court 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. HSE also told the court that records held on site, which could have helped identify the presence of asbestos, were not adequate and that the maintenance team leader involved in this task had not undertaken asbestos awareness training.

SSE Hornsea Ltd. of Inveralmond House, 200 Dunkeld Road, Perth pleaded guilty to breaching Sections 2 (1) and 3(1) of the Health & Safety at Work etc., Act 1974.

The company has been fined GBP £300,000 (USD $407,971) and ordered to pay costs of GBP £12,670.72 (USD $17,230.99)

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

 

3. Steel company fined GBP £1.4 million (USD $1.9 million) after health and safety failings lead to death of worker

A maintenance electrician was killed while inspecting a crane. The HSE investigation found that the employer, Tata Steel, had failed to enforce its own safety procedures, despite having two previous incidents before this death. The HSE investigation also found Tata Steel failed to put in place essential control measures which would have prevented the overhead crane from even being in operation.

More information: http://press.hse.gov.uk/2018/tata-steel-fined-1-4m-after-health-and-safety-failings-lead-to-death-of-worker/

 

United States of America

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

 

2. 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

 

3. 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

 

4. 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

 

5. Minnesota: Major chemicals manufacturer settles eight-year-old case by agreeing to pay USD $850 million to the state for water quality programs

The company in question, 3M, had been charged with damaging the environment by releasing perfluorochemicals (PFCs) into groundwater. 3M also spent more than USD $100 million removing the chemicals from groundwater, putting filters into city water systems and private homes, and paying other cleanup expenses.

More info: https://www.twincities.com/2018/02/20/minnesota-3m-reach-settlement-ending-5-billion-lawsuit/

 

India

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

In September 2017, Mahanadi Coalfields Limited, a subsidiary of Coal India, faces 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.

 

Ireland

Poor environmental compliance at industrial facilities and waste management sites can lead to public listing as a National Enforcement Priority

Since 30 January 2018, the public can access a list of licensed industrial and waste sites that have been categorized as a national priority for enforcement because they have a poor record of complying with environmental regulations, such as the regulations on the emissions limits of odor, noise and dust from the site. As of January 2018, eight sites have been listed based on these criteria, six of which account for more than half of all complaints received in 2017. This announcement does not affect companies directly. However, they should be aware that listing forms part of the Environmental Protection Agency's enforcement actions and can lead to negative publicity.

The National Priority Sites for Enforcement List is available online.

 

Dominican Republic

The Ministry of Environment and Natural Resources orders the temporal closure of a distillery due to lack of compliance with General Law 64-00 on the Environment and Natural Resources

Among others, the facility was polluting the air through its chimney emissions. The facility has been requested to comply with various obligations such as: submitting its biannual environmental compliance report; comply with the norms on emission from fixed sources; adopt measures to treat acid waste wastewater; and to work with authorized waste managers. If the facility does not comply with the aforementioned requirements, the Ministry will order its definitive closure.

More info: http://ambiente.gob.do/medio-ambiente-ordena-cierre-temporal-destileria-la-isabela/

 

Sweden

The Swedish Chemicals Agency has reported sixteen (out of nineteen) audited companies to prosecutors for suspected environmental crimes

The Agency conducted a review of companies reported to prosecutors for shortcomings in the chemical control. The most common deficiency detected was prohibited levels of lead in electronics. The Chemical Inspectorate's controls of previously notified companies were conducted in 2017. In the monitoring project, 261 goods were checked, including consumer electronics, toys and sporting goods. In 61 of the inspected goods, at least one dangerous substance was detected above the limit value in the legislation. This means that nearly a quarter, 23 percent of the goods contained banned chemicals.

More information: https://www.kemi.se/nyheter-fran-kemikalieinspektionen/2018/kemikalieinspektionen-har-anmalt-16-foretag-till-aklagare/ [Swedish]

 

New Zealand

Company ordered to pay NZD $85,000 (USD $59,513) to the family of a worker who died whilst using a potato harvester that did not have effective safety guards and the absence of a lone worker policy

For unstated reasons the court did not impose a fine but said that, if it could have, it would have fined the company NZD $330,000 (USD $231,052). The investigation revealed that the machine was inadequately guarded, that the company had no lone worker policy, and that it did not implement any standard operating procedure for the machine. The court can fine up to NZD $1.5 million (USD $1.05 million) in such circumstances.

More info: https://worksafe.govt.nz/about-us/news-and-media/machines-a-matter-of-life-and-death/