Enhesa Enforcement Corner– Issue 7

by Enhesa 20 Jun. 2018

Input from Deirdre Perquy, Karolina Wrzecionkowska, Nina Koivula, Sunita Paudyal, Michael Pantelides, Veronika Krupcikova, Riccardo Zorgno, Gabriela Troncoso Alarcón, Gillian Wener, Wassila Nabourema, Ana Gomes dos Santos and Tjeerd Hendel-Blackford.

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…

USA

The Court of Appeals rejects applications to rethink confirmation of an $81 million Clean Water Act penalty against an oil & gas company.

The Fifth Circuit appeals court affirmed an $81 million civil Clean Water Act penalty against Citgo Petroleum Corp. Citgo had appealed against the level of the fine (as had the EPA). The original penalty was imposed for un-permitted wastewater discharges from the Citgo plant in Lake Charles, Louisiana when a severe rainstorm caused two storage tanks to fail and over two million gallons of oil to be discharged into local waterways. Subsequently the case revolved around the size of the penalty imposed.

Click here for more information.

 

Portugal

Portuguese Environment Agency orders closure of an industrial facility drying and extracting olive oil for three years and imposes EUR €300,000 (approx. USD $348,456) fine.

This action results from five non-compliance processes due to non-authorized wastewater discharges into the “Ribeira do Lucriz”, a tributary of the Tagus river. The company operating the facility in question was found guilty of seven extremely severe administrative environmental offenses including the discharging of wastewater into water resources without a valid license and the discharging of ash and untreated wastewater into the water resources. This is an unusual case for Portugal. Please note that the company can appeal this decision (to a Court) and that the judge can decide to review the sanctions (as a rule, judges reduce fines by at least 50 percent; it is also very likely that the Court will revoke the decision to close the facility).

Click here for more information.

 

Canada

In Alberta, an Environmental Protection Order was issued in relation to a historic release from the site of a former service station, requires numerous actions form current and previous owners.

On 28 February 2018, Sears Canada Inc. and Concord North Hill GP Ltd. were issued an Environmental Protection Order by Alberta Environment and Parks in relation to historic soil and groundwater contamination. The order was issued on under the Environmental Protection and Enhancement Act E-12 R.S.A. 2000. Under the terms of the order, the two companies are directed to recommence soil vapor monitoring and groundwater sampling and monitoring and submit a remediation action plan. The soil contamination occurred back in the late 1970s/early 1980s. The order was issued due to several data gaps in the information regarding contamination both on the land and off site which required additional work.

The text of the Environmental Protection Order is available online.

 

The Netherlands

1. Companies and director found guilty for their role in fatal workplace accident, fines up to EUR €40,000 (approx. USD $46,460).

The accident in question occurred in Tilburg on 14 June 2016 when a 25-year-old man was killed when he became trapped in a pit that collapsed and buried him. Research showed that the sand pit was not propped up according to the regulations. During the course of the case, it appeared that no clear safety plan had been drawn up for the work. The District Court in Den Bosch ruled that the two companies and the director did not comply with the Working Conditions Act (Arbeidsomstandighedenwet) and were proven to be guilty of the death. The contractor was fined EUR 40,000 (approx. USD $46,460) of which EUR 10,000 (approx. USD $11,617) under conditions. The executive company, was also fined EUR 40,000 (approx. USD $464,686), half of which was under conditions. The director of that company also received a conditional fine of EUR 10,000 (approx. USD $11,617).

Click here for more information [in Dutch].

 

2. Two cleaners received up to EUR €6,000 (approx. USD $6,969) compensation after they suffered eye damage as a result of occupational exposure to UV light.

The cleaners had to clean extraction hoods (dampkappen) in a professional kitchen in Amsterdam, without the employer telling them that these hoods worked with ultraviolet light to kill bacteria and remove odors. The invisible UV light was on all the time, causing the men to burn their faces and necks. They also suffered from irritated, burning eyes and their corneas were damaged.

Click here for more information [in Dutch].  

 

3. Two companies fined EUR €250,000 (about USD $290,380) and EUR €150,000 (about USD $174,228) respectively for non-compliance with EHS laws, dating back to 2012.

Organon and MSD were fined following a large number of violations (and a long delay in rectifying these once identified) of regulations regarding the handling of hazardous substances. The companies, among other things, did not comply with all the requirements in their environmental permit. The loading and unloading of lorries did not always happen according to the rules. Furthermore, fire safety certificate was missing from the installation and the warning lamp of a building with an ammonia installation was insufficiently visible.

Click here for more information [in Dutch].  

 

4. Twelve-month suspended jail sentence and 240-hours of community service for company owner and EUR €100,000 (approx. USD $116,152) fine following three deaths in manure silo accident.

The Public Prosecutor’s Office is demanding higher penalties in the appeals court concerning the so-called “manure silo case” in Makkinga, the Netherlands. Three people passed away on 19 June 2013 due to a work place accident in a silo. A fourth person survived, but is scarred for life. The victims suffocated due to toxic gases in the silo. More stringent penalties are being requested following a failure to take the necessary precautions.

Click here for more information [in Dutch]. 

 

Italy

Company owner receives one-year prison sentence for failure to carry out his duties in relation to health & safety, following a serious accident.

The Court of Cassation (in judgement n. 6121/2018) confirmed an employer’s 12-month prison sentence for culpable injuries related to a serious accident (hot steam accident causing sick leave exceeding 40 days). In particular the court found that regarding risk assessment, employers must analyze with the maximum accuracy, according to their experience and the best technique available, any risk factor present onsite. This must be done by considering each task or duty performed and consists in drafting and updating periodically the risk assessment document. In this document, among others, the person in charge must list all precautionary measures and personal protective equipment adopted for preserving workers' health and safety. Regarding the workers' responsibility for accidents, employers cannot justify the accident with the worker's fault, even in co-responsibility, since the employer's first duty is to ensure the fulfillment of health and safety provisions.

Click here for more information [in Italian]. 

 

Mexico

1. In Baja California, company operations were temporarily shut down due to noncompliance with hazardous waste handling laws.

The Federal Attorney General of Environmental Protection (PROFEPA) shut down the site of the company “SINIL INDUSTRY S.A. DE C.V.” after it was found that hazardous waste was not properly stored (the hazardous waste was stored outside the temporary storage and it was outdoors and directly on the soil). According to the PROFEPA, the company also did not hold the authorization for collection and storage of hazardous waste generated from another company; did not have an up-to-date logbook with information on the generation of hazardous waste; the storage area did not comply with the construction requirements; and there was no notice indicating the hazard of the hazardous waste stored, etc. The company will remain closed until it complies with the requirements established for the temporary storage areas for hazardous waste established in the Regulation of the General Law for the Prevention and Comprehensive Waste Management and carries out the classification, identification and packaging of hazardous waste.

Click here for more information [in Spanish]. 

 

2. In Jalisco, PROFEPA announced it has conducted 943 environmental inspections of facilities carrying out activities under federal jurisdiction since 2013.

Of the 943 inspections carried out, around 50 were related to wastewater discharges. As a result of the 943 inspections, PROFEPA took actions to shut down 22 facilities and imposed fines for a total amount of Mex$ 21.77 million (approx. USD $1,060,296)

Click here for more information [in Spanish]. 

 

 United Kingdom 

An United Kingdom Company fined GBP £850,000 (approx. USD $1,125,332) after a worker fell from a ladder sustaining a fracture to his lower leg.

Safestyle UK were found guilty after an investigation by the Health and Safety Executive (HSE) found the company’s system for planning work at height was inadequate in that it failed to ensure that work was carried out in a safe manner. Windows were found to be not routinely installed from the inside and ladders were used in a way that constituted serious risk. Additionally, there was no system of monitoring or supervision in place and operatives were left to their own devices.

Click here for more information. 

 

Finland

Judgment given in the biggest environmental degradation case in Finnish history as a mining company CEO receives six-month suspended jail sentence and company fined EUR €500,000 (approx. USD $580,855).

In March 2018, the former CEO of a Finnish mining company was sentenced by the Court of Appeals in Rovaniemi to six months of conditional imprisonment for aggravated environmental damage. In particular, the crimes involved the leakage of a sludge (a by-product of the metal recovery plant) into the nearby water bodies from the gypsum basin and the unlawfully high concentrations of sodium, sulphate and manganese in the wastewater released from the facility. The company and its former executives had been charged with a string of criminal negligence offences due to some of the most serious environmental disasters in Finnish history. The judgment is not final and can still be appealed. However, it represents an important precedent in a country where the courts have traditionally been slow in reacting to environmental crimes.

Click here and here for more information [in Finnish]. 

 

Zambia

ZEMA arrests company managers and confiscates equipment following failure to comply with wastewater discharge requirements.

On 15 February 2018, the Zambia Environmental Management Authority (ZEMA) arrested two managers of Silverest Garden Housing Company (a Chinese-owned property management company) for unlawful discharge of pollutants into the environment and failure to comply. Prior to the arrest, ZEMA issued an enforcement order to the managers of the offending company and was assured by the management that the company was in the process of implementing a long-term solution to stop the sewer discharge. However, ZEMA was tipped-off by the community that the company was continuing to illegally discharge sewer into the stream. ZEMA was forced to take action against the company by arresting the two managers and confiscating the pump that was being used to discharge the effluent into the stream.

Click here for more information. 

 

Ghana

Environmental Protection Agency (EPA) shuts down tomato manufacturing company for failure to control air emission and noise pollution emanating from its operation.

Facilities undertaking activities causing environmental pollution, and fail to comply with existing environmental protection measures face stiff penalties including a complete shut-down of all operations. This follows from a recent decision from the Environmental Protection Agency (EPA) to shut down Happy Sunshine Company (a tomato manufacturing company) for failure to control air emission and noise pollution emanating from its operations. On 8 January 2018, the Minister of Environment, Science, Technology and Innovation (MESTI), Professor Frimpong Boateng, announced plans to meet with managers of the offending facility to discuss the company's ongoing failure to address EPA's directives and assist them in meeting their obligations. Prior to the meeting, in November 2017, the Happy Sunshine Company was fined GH 15,000 (approx. USD $2,756) and ordered to halt any form of production. However, the management of the tomato factory violated the order and resumed full production in complete infraction of EPA directives, forcing the Minister to order the complete shutdown of the company.

Click here for more information. 

 

New Zealand

1. Tortilla Factory found liable for NZD $52,300 in damages after serious injury.

In November 2016 a worker in a tortilla factory caught his glove on a tortilla oven, drawing his hand into the oven causing serious harm. For unstated reasons, no fine was imposed but the court said that if one was payable it would have been an amount of NZD $337,500. The reasons were that the company did not have an adequate health and safety system, did not carry out a risk assessment of the relevant machinery, did not provide suitable guarding, and did not ensure the worker was adequately trained. Further, the factory workers were not made aware of an appropriate emergency system. A WorkSafe executive stated that “Tortillas getting jammed was a known issue but there was no safe system in place for managing the problem”.

Click here for more information.  

 

2. Company makes numerous commitments to WorkSafe to make sustainable and long-term health and safety improvements, following serious accident.

In July 2016, a worker was working on a cardboard baler, bundling waste card together in wire, when his hand tangled in the wire and he lost his ring and little fingers. Even though he was wearing a glove, he also suffered skin removal on his hand. The company made amends to the victim, provided training to workers on the risk assessment of machinery, and funded numerous initiatives on machinery safety for industry workers. In accepting the undertaking, WorkSafe considered that the incident was serious, but that the mitigation and remedial action taken and planned was serious and that the activities stated in the enforceable undertaking will provide long-term sustainable health and safety improvements in the workplace, industry, and community.

 

India

1. In Uttarakhand, Environment Protection and Pollution Control Board (UEPPCB) issues show cause notices to 62 industrial units and ordered inspection of 24 others for not installing Effluent Treatment Plants (ETPs).

The crackdown on the industries has come in the wake of a Supreme Court directive which asked pollution control boards in the states to ensure that industrial units have functional ETPs on their premises. On 23 February 2018, in an attempt to curb industrial effluents from being released untreated into water bodies and prevent pollution, the Supreme Court directed all industrial units to ensure that they have their primary effluent treatment plants (ETPs) up and running in three months or have their power connections cut off to ensure compliance. They would then have to prove to the respective state pollution control boards that they have resolved the problem before being allowed to resume operations. The bench also ordered that industrial areas should have their common ETPs in place within three years. The state pollution control boards and environment secretaries would ensure this and the regional benches of the National Green Tribunal (NGT) would monitor the progress.

Click here for more information. 

 

2. In Maharashtra, National Green Tribunal (NGT) orders immediate closure of 350 polluting industries until further notice.

The closures impact facilities in Navi Mumbai’s “Taloja MIDC” area. The NGT’s principal bench in Delhi also imposed an additional penalty on the the Taloja Maharashtra Industrial Development Corporation (MIDC) Common Effluent Treatment Plant (CETP) for failing to contain pollution of the river. Taloja, the most-polluting CETP in the state, has been categorised as a non-performing plant by the Maharashtra Pollution Control Board (MPCB). It has been recording very high levels of BOD (Biochemical oxygen demand) and COD (Chemical Oxygen Demand), which are wastewater quality indicators. In fact, the BOD and COD levels recorded were over ten times the permissible limits. Incidentally, according to a recent Central Pollution Control Board study, Maharashtra has the most polluted rivers in the country.

Click here for more information.