Enhesa Enforcement Corner– Issue 10

by Enhesa 06 Mar. 2019

Input from Taotao Yue, Tanya Abrahamian, Rakibe Külçür, Michael Pantelides, Tjeerd Hendel-Blackford 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 the past couple of months…

 

India

MUMBAI: Authorities urged to set up “green police force” to combat and prosecute increasing environmental crimes.

Three environmentally-focused activist groups have appealed to officials to set up an environmental policy force. The plea follows a series of violations of Bombay high court orders, several incidents of damage and destruction to mangroves and forest fires. The activist organizations are demanding that the green police be trained in environmental laws and be familiar with various court and NGT rulings.

More information can be found here.

CHENNAI: The Central Pollution Control Board (CPCB) forces a petrochemical company to shut down one of its two plants.

The CPCB served the company a showcase notice on December 17, 2018 for abnormal levels in the treated effluent water discharged by the plant. Manali Petrochemicals Limited disclosed to the Bombay Stock Exchange that it received a notice from CPCB under Section 5 of the Environmental Protection Act, 1985 seeking to stop operations of the plant in question. CPCB officials inspected the plant on November 8, 2018 and found the biological oxygen demand level (the minimum requirement of oxygen in water for aquatic animals to survive) in treated effluent water to be 114mg/litre against the permissible limit of 100mg/litre.

More information can be found here.

DELHI: Government authority fines State authority for failing to control noise pollution.

The National Green Tribunal fined the Delhi government ₹5 lakh (approx. USD $7,000) for its failure to curb noise pollution in West Delhi and not complying with an existing order. Four months prior, the National Green Tribunal had issued an order and none of its requirements (e.g. the setting up of a dedicated 24-hour helpline nor a public redress mechanism) were complied with.

More information can be found here.

 

European Union

Environmental NGO and local residents take case to European Court of Justice (ECJ) to defend the rights of citizens to clean air.

The Brussels Court of First Instance has asked the ECJ for further clarification before making a final decision on whether the existing air quality plan for Brussels complies with minimum legal requirements. ECJ clarification is sought on how authorities should assess compliance with air quality limits; relevant authorities are only obliged to adopt an air quality where limits are exceeded. The ECJ’s response will clarify whether levels of air pollution are illegal in Brussels and whether the regional government should adopt a new air quality plan. The ECJ has also been asked to examine whether citizens can challenge the failure of authorities to properly monitor air quality and whether a national court can order a monitoring station to be installed in the most polluted areas of a city.

More information can be found here.

 

Turkey

Annual environmental and product safety fines increase by up to 23.7 percent.

Since January 1, 2019, companies whose operations may be in violation of the Environmental Law will face increased fines (by up to 23.73 percent). The fines in question are imposed in the event of permit violations and violations of regulations related to hazardous waste and hazardous chemicals. The set fines will be in force until the end of 2019. The Ministry of Finance increases the administrative fines every year in accordance with Article 288/B of the Law on Tax.

In addition, from the same date, companies that manufacture, import and/or place on the market any product must pay increased administrative fines if they violate Law No.4703 on Products safety and related legislation. The fines related to products are established by Article 12 of the Law.

Law No.2872 on Environment, the Notification on the Administrative Fines Imposed in Accordance with the Environmental Law 2019/1 and Law No.4703 on the Preparation and Implementation of Technical Legislation Relating to Products O.J.24459 of 2001 are accessible online in Turkish.

USA

EPA Announces 2018 Annual Environmental Enforcement Results.

Achievements highlighted in the report include the following:

  • Commitments to treat, minimize or properly dispose of an estimated 540 million pounds of waste.
  • Commitments to reduce, treat or eliminate 268 million pounds of pollution (air, toxics and water).
  • Commitments to clean up over 244 million cubic yards of contaminated soil and water.
  • Prevention of the illegal importation of approximately 2,200 vehicles and engines that fail to comply with EPA emissions standards.
  • Reduction of exposure to lead through 140 enforcement actions impacting lead paint against renovation contractors, landlords, property managers, realtors and others.
  • Investment of nearly USD $4 billion in actions and equipment that achieve compliance with the law and control pollution.
  • Cleanups and redevelopment at over 150 sites through use of Superfund enforcement tools.
  • A total of 73 years of incarceration for individual criminal defendants.

More information can be found here.

It is worth noting that the number of Federal inspections and enforcement actions have receded under the Trump administration. More information can be found here and here.

Global automotive manufacturer required to pay approx. USD $500 million in settlement of claims of cheating emission tests and failing to disclose unlawful defeat devices

A large auto manufacturer (Fiat Chrysler) will have to pay a civil penalty of USD $305 million to settle claims of cheating emission tests and failing to disclose unlawful defeat devices. In addition, the company will implement a program to mitigate excess pollution from these vehicles, implement a recall program to repair more than 100,000 non-compliant diesel vehicles sold or leased in the United States and offer an extended warranty on repaired vehicles. The recall and federal mitigation programs will cost the company up to USD $185 million. In a separate settlement with the State of California, the company will pay an additional USD $19 million to mitigate excess emissions from more than 13,000 of the non-compliant vehicles in California. In a separate administrative agreement with the United States Customs and Border Protection, the company will pay a USD $6 million civil penalty to resolve allegations of illegally importing 1,700 non-compliant vehicles.

More information can be found here.

 Global parcel distribution company cited, faces USD $200,000 in fines for repeatedly putting workers at risk by obstructing exit routes.

OSHA has cited UPS for repeatedly putting workers at risk by obstructing exit routes at its Sharonville, Ohio, distribution center. The company faces a proposed fine of USD $208,603. Amongst observations made by OSHA, a roller extension unloader device was permanently located and attached to a belt conveyor limiting the access route, management allowed packages to accumulate in aisles and some access routes were reduced to just seven inches.

More information can be found here.

Autoparts distributor faces USD $133,000 in penalties for exposing employees to fire, electrical shock and struck-by hazards.

OSHA has cited Parts Authority LLC for exposing employees to fire, electrical shock and struck-by hazards. The company faces a proposed fine of USD 133,406. OSHA inspectors identified that the company was exposing employees to smoke and fire hazards by allowing obstructed and unlit exit signs; exposing employees to struck-by hazards from damaged storage rack supports and shelves; failing to train employees to recognize chemical hazards and failing to maintain safety data sheets on chemical hazards. The company has 15 business days from receipt of the citations and proposed penalties to comply, request an informal conference with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission.

More information can be found here.

Hazardous waste treatment company will need to pay approx. USD $1.5 million for hazardous air pollution

EPA reached proposed settlement with Tradebe Treatment and Recycling Northeast, LLC that resolves alleged violations of the Resource Conservation and Recovery Act (RCRA) and the Clean Air Act (CAA) at two company sites in Connecticut. The EPA estimates that Tradebe will spend at least USD $920,000 to comply with the compliance and pollution control system installation requirements the proposed settlement. Tradebe will also pay a USD $525,000 civil penalty.

More information can be found here.

 EPA announces settlements with seven companies across four states for violations of chemical accident prevention and reporting requirements.

All the cases in question concerned the (unsafe) anhydrous ammonia in refrigeration and cooling units. Collectively, the companies in question have to spend more than USD $750,000 to comply with the laws and will pay more than USD $580,000 in penalties to settle the alleged violations.

More information can be found here.

United Kingdom

Two companies to pay over GBP £130,000 (approx. USD $172,000) in fines and costs following worker fatality during lifting operation.

A metal worker was killed by a walkway falling onto him. The Health and Safety Executive (HSE) investigation found that Cumbria Design Scaffold Ltd had failed to properly plan the lifting operation. The company failed to recognize the risks involved, implement a safe system of work for what was a complex lifting operation and supervise the lifting operation. The investigation also found that Larkin Eng Services Ltd had failed in its duty to ensure the safety of the victim, who had only been working for the company a week.

More information can be found here.

Company fined GBP £400,000 (approx. USD $527,000) after drum explosion resulting in worker losing leg.

Rygor Commercials Limited were fined after an agency worker lost his leg from the knee down after an oil drum he was cutting exploded. The worker was using oxy-acetylene gas cutting equipment to cut up empty oil drums. As the flame from the gas cutting equipment came into contact with the drum, the flammable vapors inside the drum ignited and the drum exploded. The HSE investigation found that the company failed to provide a safe system of work to dispose of the stockpile of empty oil drums. The risk of fire and explosion from flammable vapor residues in the empty drums was not identified and safer disposal options were not secured. The investigation also found the company failed to provide adequate instruction, supervision and training on the risks associated with the use of oxy-acetylene gas equipment.

More information can be found here.

Waste company fined GBP £1 million (approx. USD $133 million), and GBP £300,000 (approx. USD $399,000) costs, after worker killed by a refuse collection vehicle.

An employee suffered fatal injuries when he was run over by a reversing refuse collection vehicle. The HSE investigation found that multiple vehicles, including RCVs and articulated lorries, were maneuvering around the yard with no specific controls. The company failed to adequately assess the risks involved in the yard and did not implement industry recognized control measures to protect employees.

More information can be found here.

Fraudulent e-waste recycler received record jail sentence.

The Director of TLC Recycling in Leeds was sentenced to seven years and six months in jail, a record for an environmental crime, and faces the seizure of GBP £2.2 million (approx. USD $2.9 million) under the Proceeds of Crime Act.

The Director had falsified paperwork to make it seem like he had collected and recycled a large amount of electrical waste in order to claim GBP £2.2 million (approx. USD $2.9 million) through producer compliance schemes.

More information can be found here.

 

Sri Lanka

Cases filed against 366 illegal producers of polythene, polythene marketers and restaurant owners who made use of illegal polythene products.

The Central Environmental Authority (CEA) confirmed that it had arrested and filed cases against 366 illegal producers of polythene, polythene marketers and restaurant owners who made use of illegal polythene products. Among those arrested, 350 are restaurant owners and 16 are polythene producers.

More information can be found here.

 

Hong Kong

First batch of convictions secured under Product Eco-Responsibility Ordinance with four REE sellers fined.

Four computer sellers were fined a total of HKD $10,000 (approx. USD $1,300) for contravening the Product Eco-Responsibility Ordinance (PERO). These are the first four regulated electrical equipment (REE) sellers to be successfully prosecuted by the Environmental Protection Department (EPD) for contravening the PERO after relevant clauses of the Producer Responsibility Scheme on Waste Electrical and Electronic Equipment came into effect on August 1, 2018. Four additional sellers suspected of violating the PERO are scheduled for hearing in March.

More information can be found here.

Recycling company convicted and fined HKD $19,000 (approx. USD $2,400) for contravening the Waste Disposal (Chemical Waste) (General) Regulation.

A recycling site failed to store chemical waste properly and was convicted and fined. The EPD conducted a surprise inspection in August 2018 and found that the recycling site did not properly handle waste printed circuit boards (PCBs), which are classified as chemical waste. After investigation and evidence collection, it was confirmed that the site used non-compliant containers and failed to properly seal chemical waste. The chemical waste containers were not labelled and were stored in an improper place without displaying a warning sign.

More information can be found here.

New Zealand

Transport company fined NZD $250,000 (approx. USD $171,000) following forklift accident.

A transport company was fined NZD $250,000 (approx. USD $171,000) when a worker suffered back injuries after the freight cage he was working in fell from the forklift tines. This was a repeat incident. WorkSafe NZ explained that the freight cage was not in compliance with safety standards, and that the safety systems in place were not being implemented in practice. Damages of NZD $20,000 (approx. USD $14,000) were ordered.

More information can be found here.

Transport company required to pay NZD $175,000 (approx. USD $120,000) following forklift accident.

Another transport company was fined NZD $70,000 (approx. USD $48,000) and required to pay damages of NZD $105,000 (approx. USD $72,000) after an 18-year-old worker died. According to WorkSafe NZ, the worker was crushed by a swinglift while unloading shipping containers from a truck. The worker had received no training on the safe operation of the swinglift, there were no safe work practices and safety standards were not complied with. The maximum fine for such breaches is NZD $1,500,000 (approx. USD $1,030,000).

More information can be found here.

WorkSafe reminds companies to check and maintain safety critical equipment following an incident involving broken handrails.

WorkSafe made an announcement reminding companies to check and maintain safety critical equipment. The announcement was made after the death of a worker who fell from a handrail when the wire rope parted. WorkSafe requests that companies ensure that the use of handrail systems is:

  • Based on sound risk assessments
  • Properly designed for the risks they are protecting against
  • Constructed so they can be easily maintained and inspected
  • Regularly inspected and replaced/repaired when needed

WorkSafe also recommends seeking advice on the life expectancy of handrails from competent persons.

More information can be found here.

Mineral pellet manufacturer to pay NZD $85,000 (approx. USD $58,000) for failing to manage dust exposure.

A manufacturer of mineral pellets has recently been prosecuted for breaching its health and safety duties to manage the risk of dust exposure. Of the materials used to make the pellets, 85 percent were a substance hazardous to health—64 percent of those were toxic substances. The use of a hammer mill, a pelletiser and Bobcat put six workers at risk of exposure to this hazardous and toxic dust. The fine was reduced from NZD $400,000 (approx. USD $103,000) to NZD $70,000 (approx. USD $48,000). The court also ordered NZD $5,000 (approx. USD $3,400) each for three of the workers, for emotional harm.

More information can be found here.

China

JIANGSU: Three chemical companies must make public apologies for soil contamination during 2006-2009 and pay the legal expenses of two NGOs amounting to CNY ¥460,000 (approx. USD $69,000).

The lawsuit was brought by two NGOs in April 2016, demanding the three chemical companies in question to remove contaminants or pay for remediation. The plaintiffs lost the lawsuit in the first instance, largely due to lack of regulation on historical soil contamination, and then appealed to the provincial Supreme Court. The finding on appeal is acclaimed as a good start for the implementation of Soil Pollution Prevention and Control Law which entered into force on January 1, 2019. The new law establishes the ‘polluter pays’ principle, requiring companies which cause soil contamination to be liable for soil pollution risk control and remediation.

More information can be found here and here.

JIANGXI: Wastewater treatment facility fined CNY ¥2.4 million (approx. USD $360,000) for discharging wastewater exceeding applicable emission limits.

The Environmental Authority found the excessive wastewater discharge during an on-site inspection in March 2018 and ordered the facility to rectify. A revisit to the facility in April 2018 showed continuous excessive wastewater discharge. The facility was therefore subject to the punitive fine calculated on a daily basis.

More information can be found here.