Enhesa Enforcement Corner– Issue 8

by Enhesa 27 Sep. 2018

Input from Tjeerd Hendel-Blackford, Taotao Yue, Karolina Wrzecionkowska, Caitlin O’Sullivan, Elizabeth Bootz, Hannah Solomon, Danyelle Barron, James Olaleye, Michael Pantelides and Deirdre Perquy

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…

 

China

Guangdong: 34 people indicted within five days of two accidents following gas leaks at Guangdong Steel Company

A criminal case was opened following two accidents that happened at a steel company in Guangdong respectively on February 5th and 9th 2018, caused by a gas leak. It resulted in the death of eight employees and injured thirteen employees. As a result of the accidents, the company's EHS deputy manager may face a criminal penalty and the board director and general manager may face administrative penalties.

More information [in Chinese]: http://www.sohu.com/a/233756908_100116740

 

Beijing: Steel structure engineering company fined CNY 890,000¥ (approx. USD $131,000) in first public interest air pollution case

On June 5, 2018, the Beijing Court of Justice made a judicial decision in the first public interest case relating to air pollution in the city. This lawsuit was initiated by the prosecutor against a steel structure engineering company. The company was sued for not adopting measures to reduce waste gas emissions in the process of spray painting. The court decided that the company must pay over CNY 890,000¥ (approx. USD $131,174) for its damage to the ecological environment, apologize in the media and refrain from engaging in operations involving spray painting.

More information [in Chinese]: http://www.xinhuanet.com/2018-06/07/c_1122948795.htm

 

Ningxia Hui: Regional government publicizes typical environmental enforcement cases

A water treatment company was found guilty for illegally tampering with online COD monitoring data; a criminal case is on-going. They were fined CNY 80,000¥ (approx. USD $11,610) and also required to immediately correct the illegal acts.

  • Another water treatment company was subject a CNY 100,000¥ (approx. USD $14,513) fine and responsible persons were jailed for seven days for secretly installing wastewater discharge pipes.
  • Two responsible persons of a recycling company are in custody for illegally disposing of used lead-acid batteries and discharging battery liquid into the environment. They are awaiting trial for environmental crimes.
  • Two pharmaceutical companies were fined over CNY 8 million¥ (approx. $1.16 million) for emitting odor and ammonia that exceed the national standard. The government also placed restrictions on their operation and production.

More information {in Chinese]: http://www.nxnews.net/sz/nxdj/201806/t20180608_4520491.html

 

Jiangsu: Company fined CNY 300,000¥ (approx. USD $44,000) for spray painting plastic products in the open air

Two persons were placed under administrative detention pending trial. According to air pollution prevention and control law, spray painting must be conducted in enclosed environment and any generated waste gas must be treated before being emitted to the environment.

More information [in Chinese]: http://www.sohu.com/a/238941716_656705

 

Company Director in custody for wastewater discharge violations.

A leading coatings manufacturer in China (Dewei Coatins) was held responsible for contracting an unqualified third-party to treat wastewater. The contractor had no license to treat or dispose of wastewater and was discharging wastewater directly into the environment.

More information [in Chinese]: http://t.cj.sina.com.cn/articles/view/6460670237/18116011d0010097u1?cre=tianyi&mod=pcpager_fintoutiao&loc=7&r=9&doct=0&rfunc=100&tj=none&tr=9

 

Suzhou: Chemical company fined for incorrect storage of hazardous chemicals

In July 2018, Suzhou Worksafe imposed a fine of CNY 53,750¥ (approx. USD $7,800) on Enhanry (a company manufacturing chemicals such as adhesives, coatings and sealants) for violating Decree 591. In a recent work safety investigation, the company was found to not be storing hazardous chemicals in a special warehouse. This contravenes article 24 (1) of the Regulations on the Control over Safety of Hazardous Chemicals (decree 591).

More information: https://chemlinked.com/news/chemical-news/company-got-administrative-penalty-violating-decree-591

 

Zhejiang: In the first half of 2018, environmental authorities imposed fines totaling CNY 34.56 million¥

Municipal and district environmental protection departments filed 687 administrative punishment cases during the first six months of the year. A total of six suspected environmental pollution crimes were transferred to the public security organs, 13 were criminally detained, 18 cases of administrative detention environmental violations were transferred and 15 were administratively detained. A total of 38 cases were seized and 11 production orders were stopped. The majority of environmental violations related to unapproved construction, untested/incorrect use of air pollution control facilities and wastewater exceeding discharge limits.

More information [in Chinese]: http://green.zjol.com.cn/201807/t20180705_7700366.shtml

 

UNItED STATES OF AMERICA

Georgia: Automotive parts manufacturer to pay EPA USD $377,900 to settle alleged RCRA violations

The U.S. Environmental Protection Agency (EPA) recently settled with a company over alleged violations of the Resource Conservation and Recovery Act (RCRA). The company will be required to pay a USD $377,900 civil penalty and will undertake a supplemental environmental project that will cost over USD $2.7 million. The alleged violations include failing to comply with the air emissions requirements under RCRA. In May of 2016, EPA and the State of Georgia conducted a RCRA Compliance Evaluation at the facility. During the evaluation, EPA found numerous hazardous waste generator violations including:

  • RCRA Organic Air Emission violations;
  • failure to conduct inspections;
  • failure to provide required training to employees and
  • failure to establish and maintain emergency preparedness and prevention procedures.

More information: https://www.epa.gov/newsreleases/epa-reaches-agreement-decostar-industries-inc-carrollton-georgia-reduce-hazardous-air

 

EPA and DOJ settle with chemical manufacturing company for CAA violations to prevent future accidental chemical releases

The U.S. Environmental Protection Agency (EPA) recently settled with a Georgia chemical manufacturing company that failed to properly identify, prevent and minimize the hazards associated with accidental releases of hazardous substances. The company will pay USD $400,000 in civil penalties; the company could pay approximately USD $3 million in compliance costsfor violating the General Duty Clause (GDC) of the Clean Air Act (CAA). The GDC under Section 112(r)(1) of the CAA applies to owners and operators of stationary sources that produce, process, handle, or store any extremely hazardous substances.

More information: https://www.epa.gov/newsreleases/justice-department-and-epa-enter-settlement-mfg-chemical-llc-prevent-future-accidental

 

EPA reaches settlements with two California plastics manufacturers over Clean Water Act violations

EPA recently reached settlements with two California companies who failed to prevent the plastic materials they manage from entering local waterways. Combined, the companies will pay more than USD $35,000 in penalties and will take steps to prevent plastic materials from reaching California waterways. Additionally, both companies will take steps to prevent the plastic materials they manage from washing into local waterways.

Both companies were inspected by EPA in 2016, in coordination with the Regional Water Quality Control Board. During the inspections, EPA found inadequate containment measures that allowed plastic materials, including plastic pellets called "nurdles," to enter waterways surrounding Compton and City of Industry, respectively. "Nurdles" are plastic beads about 1/5-inch in diameter that are widely used in manufacturing.

More information: https://www.epa.gov/newsreleases/us-epa-requires-two-los-angeles-area-plastics-manufacturers-protect-local-waterways

 

EPA settles with California refinery over hazardous waste and risk management plan violations

The U.S. Environmental Protection Agency (EPA) recently reached a settlement with a company in California regarding several violations, including noncompliance with hazardous waste requirements and RMP requirements. This settlement sets an example of the importance of risk management, determining whether waste is hazardous and managing hazardous waste. Under the settlement, the company is required to pay USD 142,664 in civil penalties and spend an estimated USD $220,300 on making improvements to its facility. During inspections from 2014 to 2016, EPA found several violations: 

  • failure to immediately notify the appropriate federal, state and local emergency planning and response agencies immediately after an accidental release in December 2013;
  • failure to determine if waste generated at the facility was hazardous;
  • failure to follow proper procedures for managing hazardous waste;
  • failure to comply with Spill Prevention, Control, and Countermeasure [SPCC] rule requirements, such as using proper containers for fuel storage and
  • failure to comply with RMP rule requirements, such as accurately reporting an accidental release worst-case scenario.

More information: https://www.epa.gov/newsreleases/us-epa-requires-bay-area-refinery-improve-waste-management-pay-penalty

 

DOJ charges ex-CEO of VW with conspiracy to violate the Clean Air Act [ID 70537]

On May 3 2018, the U.S. Environmental Protection Agency (EPA) announced that a federal grand jury had issued a superseding indictment to hold a former chairman of the management board of Volkswagen AG (VW) liable for conspiracy and wire fraud. The EPA had earlier discovered that the cars contained software that circumvents the EPA's emissions standards for certain air pollutants, such as nitrogen oxides. In addition, the former chairman continued making false representations after he was informed. The indictment signals an attempt to hold both the corporation and its officers liable for violations of environmental laws. This indictment is the 9th individual against whom U.S. authorities have brought criminal charges in connection to VW's diesel emissions scandal.

More information: https://www.justice.gov/opa/pr/former-ceo-volkswagen-ag-charged-conspiracy-and-wire-fraud-diesel-emissions-scandal

 

A Wisconsin facility got cited for excess lead exposure

The U.S. Occupation Safety and Health Administration (OSHA) cited a Milwaukee battery manufacturer for exposing employees to excess quantities of lead. The citations included two repeated offenses and six serious violations. The proposed penalties totaled almost USD $150,000. For many of the violations, OSHA had previously cited the company for similar violations in 2010. OSHA enforces the federal requirements against private employers in Wisconsin because the state does not have an approved OSHA program. The specific citations include:

  • exposing employees to airborne lead levels 11 times the permissible exposure limit (PEL);
  • failing to implement an effective lead management program;
  • failing to implement sufficient controls to prevent exposure;
  • not monitoring ventilation for the presence of lead;
  • not posting warning signs in work areas that exceeded the PEL;
  • failing to provide respiratory protection to employees and
  • not installing machine guarding or guard floor holes.

More information: https://www.osha.gov/news/newsreleases/region5/05182018

 

Chemical company pays USD $3.1 million civil penalty for its role in a 2014 release of about 24,000 lbs of methyl mercaptan that killed four workers

DuPont agreed to pay a USD $3.1 million civil penalty following the incident at the firm’s La Porte, Texas chemical manufacturing plant. Following investigations by the EPA, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and the U.S. Chemical Safety Board (CSB), the Lannate production facility was closed by the company. Investigators identified 22 possible violation of the Clean Air Act’s Risk Management Program at the La Porte plant, including mechanical integrity violations and failure to implement safe work practices.

More information: https://www.powderbulksolids.com/news/DuPont-Reaches-3M-Settlement-with-EPA-for-2014-Incident-07-26-2018

 

United Kingdom

Law firm study identifies increase in average fines for environmental prosecutions from GBP £23,731 in 2013/2014 to GBP £147,575 in 2017/2018

More information: https://www.insurancebusinessmag.com/uk/news/environmental/environment-agency-ups-game-against-offenders-106872.aspx

 

Oil & Gas operator fined GBP £60,000 for offshore accident involving gas cylinder striking worker

Shell UK was recently fined for health and safety breaches after a technician was struck by a cylinder and left severely injured on the Brent Delta offshore installation. In November 2014, technicians were required to replace a gas cylinder within a system used to extinguish fires. A series of events resulted in both a cylinder and valve becoming projectiles which struck and severely injuring a technician.

The HSE investigation found that the company failed to take suitable and sufficient steps to ensure risks associated with handling of pressurized cylinders were eliminated. The company also failed to remove pressurized cylinders which were not suitable for use in a safe and secure manner and also failed to ensure the provision of appropriate information and instruction in respect of the handling and use of energized gas cylinders.

More information: http://press.hse.gov.uk/2018/12487/

 

Manufacturing company fined GBP £145,000 after two employees working with flammable substances in a spray booth were killed by an explosion.

In July 2015, flammable vapor generated whilst cleaning or flushing a paint spray gun was ignited by one of the various sources of ignition which were present at the scene. An explosion occurred, killing two workers. The HSE investigation found the immediate cause of the explosion to be the inconsistent and incomplete approach to health and safety by the company, Harford Attachments Ltd. and its employees. This resulted in the lack of suitable control measures; specifically, a suitable and sufficient safe system of work for the activities in the spray booth.

More information: http://press.hse.gov.uk/2018/manufacturer-fined-after-two-killed-by-spray-booth-explosion/

 

Canada

Two recent appeal cases reaffirm stiff penalties for occupational health and safety violations

The results of the appeal cases, both of which involved fatalities, indicate that health and safety enforcement authorities across Canada are becoming more aggressive in their enforcement of the legislation when workers are critically or fatally injured.

More information: https://www.fasken.com/en/knowledgehub/2018/05/two-ohs-appeal-decisions-to-be-aware-of

 

ALBERTA: Building materials company charged with occupational health and safety violations in relation to failure to ensure the health and safety of workers, which resulted in two fatalities.

In July 2018, the Alberta government laid eight charges against a building materials company for failing to comply with provincial occupational health and safety (OHS) legislation. The alleged offence took place on July 25, 2016 in La Glace in Alberta. Two workers were operating a recycler machine conducting road resurfacing activities on a secondary highway. The machine was not equipped with a rollover protective structure. The machine rolled over into a ditch adjacent to the road;the two workers suffered fatal injuries as a result. The case is ongoing.

More information: https://www.alberta.ca/charges-under-ohs-legislation.aspx

 

New Zealand

Possible Corporate Manslaughter law under review again by New Zealand Government

More information: https://www.hrmonline.co.nz/news/back-from-the-dead-corporate-manslaughter-is-back-on-the-table-252422.aspx

 

Belgium

Pharmacist fined EUR 6,000 following death of trainee in elevator that did not meet safety standards.

In August 2016 a 23-year-old trainee had to move a waste container with a passenger elevator. However, the elevator was old and did not comply with the mandatory safety standards. The elevator was not secured with a caged door or electric curtain. The container got stuck and the trainee was crushed.

The pharmacist did not comply with the requirements of the Codex on wellbeing at work and has been sentenced to involuntary assault and injuries resulting in death. The pharmacist did not do the mandatory risk analysis and did not put the elevator out of order, as was prescribed by the certification report.

More information: https://www.vrt.be/vrtnws/nl/2018/06/27/apothekeres-veroordeeld-voor-dodelijk-ongeval-stagaire-veilige/