Enhesa Enforcement Corner– Issue 11

by Enhesa 25 Apr. 2019

Input from Tamlyn Jayatilaka, Veronika Krupcikova, Tjeerd Hendel-Blackford, TaoTao Yue, Elaine Ye 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…

Peru

A Peruvian farmer is suing a German company for climate change impacts

A New York Times article focuses on one case related to climate change and how those people impacted are seeking legal redress against the world’s big polluters. We expect to see similar many similar cases in the future.

More information: https://www.nytimes.com/interactive/2019/04/09/magazine/climate-change-peru-law.html?emc=edit_MBE_p_20190411&nl=morning-briefing&nlid=82535262ion%3DlongRead&section=longRead&te=1

 

India

The National Green Tribunal (NGT) fines companies INR 10 million (approx. USD 150,000) each for environmental damage resulting from dumping soil

The NGT fined both Gammon India Limited and the Hindustan Construction Co Ltd for damaging the environment by dumping soil in Chenab and Tawi rivers for construction. The companies were also ordered to furnish a performance guarantee of INR 10 million each to improve the situation within the next three months.

More information: https://www.business-standard.com/article/pti-stories/j-k-highway-ngt-slaps-rs-1-cr-fine-each-on-gammon-india-hindustan-construction-119021301051_1.html

 

European Union

Spain referred to ECJ for failure to protect Wetlands

The Commission recently referred Spain to the EU Court of Justice over its failure to protect Doñana Wetlands – one of the largest and most diverse such areas in Europe – from deterioration, as required by the Water Framework Directive (WFD). Spain is also failing to take adequate steps to prevent the deterioration of protected habitats in these wetlands, in breach of EU nature legislation. One of the reasons behind the issue is that large amounts of water are being diverted for both agriculture and the needs of local tourists; the water table is sinking as a result. This could have a knock-on effect on water law and policy enforcement in Spain.

More information: http://europa.eu/rapid/press-release_IP-19-466_en.htm

Australia

Company and Director fined total of AUD 70,000 (approx. USD 50,000) over an incident in which a worker sustained serious permanent injuries

In February 2016, Sunchaser Enterprises Pty Ltd had been contracted to do trenching works and install supply services such as power and communication cables at a new housing estate in Wundowie. A swivel that attached a cable drum to an excavator failed and the cable drum fell on the worker, seriously injuring him. The equipment Mr. Gorringe used in the suspension was not rated for lifting, and Mr. Gorringe did not hold the relevant High Risk Work License.

Sunchaser failed to provide and maintain a safe workplace and, by that failure, caused serious harm to an employee—the company was fined USD 45,000. Sunchaser was also fined USD 2,000 for permitting an employee to do construction work when he did not hold a Construction Induction Training Certificate (“white card”). Sunchaser Director Andrew Joseph Gorringe was fined USD 22,500 for negligence.

More information: http://www.commerce.wa.gov.au/announcements/company-and-director-fined-over-serious-injuries-worker

Director of Company that illegally stored waste, including asbestos, required to pay fine and costs of more than AUD 58,000 (approx. USD 42,000)

Geoffrey Barrett Rands pleaded guilty after the EPA found illegally stored waste at Newcastle Waste Recycling Pty Ltd’s Tomago waste facility in the aftermath of a fire in 2014. The Court found the storage of about 20,000 cubic metres of construction and demolition waste, brick, concrete, rubble, soil, rubbish, timber and asbestos caused actual harm. The Court also found that a real potential for harm existed.

More information: https://www.epa.nsw.gov.au/news/media-releases/2019/epamedia190320-waste-offence-committed-negligently-costs-director-$58k

Company and Director fined over AUD 220,000 (approx. USD 160,000) for failure to identify height risk, leading to serious accident

MJM Painting Services Pty Ltd and director Miro Maric failed to exercise due diligence to ensure an identified height risk was recorded in weekly risk assessment and safety observation documents (despite being alerted to the risk), which led to a worker sustaining serious injuries.

More information: https://www.caselaw.nsw.gov.au/decision/5cb3e77fe4b02a5a800c012e

Victoria: Company fined AUD 10,000 (approx. USD 7,200) for failure to comply with machine guarding requirements, resulting in serious employee injury

A company in Victoria was fined AUD 10,000 after WorkSafe Victoria found the guarding on one of its cross-cut saws did not comply with the relevant Australian Standard. In August 2017, a K&S Pallets Pty Ltd employee's thumb was severed by the saw's blade when he reached into the outfeed to clear a blockage. K&S failed to notify WorkSafe until the next day, and a subsequent investigation found the incident site had been disturbed. It also found the outfeed guard provided a maximum distance of just 700mm between the operator and the saw's cutting implement, whereas the Australian Standard prescribed a minimum reach distance of 850mm.

Company faces a fine of up to AUD 1.5 million (approx. USD 1 million) after High Court finds that Federal civil aviation laws operate within the framework of WHS legislation and other state, territory and Commonwealth laws

In July 2013, a customer of Outback Ballooning was boarding a hot-air balloons when her scarf was drawn into a freestanding inflation fan, causing fatal neck injuries.

The company was charged with breaching the Northern Territory Work Health and Safety (National Uniform Legislation) Act 2011, but a magistrate found the charges were invalid because ballooning safety was regulated by the Commonwealth Civil Aviation Act 1988.

The High Court found that civil aviation and workplace safety laws "must be read together", given that the national model WHS Act applied to workplaces "which are defined to include aircraft".

More information: Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 (6 February 2019)

Three companies, including two repeat offenders, have been fined total of AUD 190,000 (approx. USD 120,000) for safety breaches involving mobile plant. In two cases, workers had not been harmed

Covino Farms Pty Ltd's Longford was convicted following a forklift accident in which a woman was hit. They did not have a traffic management plan with provisions for physically separating people and mobile plant.

Boland Cranes Pt Ltd was fined AUD 45,000 (approx. USD 31,540) after counterweights fell from a new mobile tower crane being erected at a construction site in North Lakes. No one was injured in the August 2016 incident, but the counterweights punched several holes in a suspended slab and could have caused significant injuries and damage. The Court found that employers must adhere religiously to manufacturers' instructions; this was particularly important in this case because Boland Cranes was using the tower crane for the first time.

Karara Mining Ltd was fined AUD 40,000 (approx. USD 28,000) after a gantry crane struck an elevated work platform (EWP) being used by two electrical workers at a Karara iron ore project in August 2015. The electrical workers escaped injury, but they were in the EWP basket 12 meters above the ground and could have been killed. An investigation found that inadequate communication between work teams, poor risk assessment and hazard identification procedures and the absence of a spotter all contributed to the incident.

 

United Kingdom

GBP 1.4 million (approx. USD 1.8 millioN) fine for food processing company after worker injury

2 Sisters Food Group was sentenced after a worker was injured in 2012 while unblocking a machine on a poultry slaughter line. His body was crushed at chest height against the end of the unit, and he sustained multiple injuries including several fractured ribs, fractures to his back and a punctured lung. An investigation by the Health and Safety Executive (HSE) found the company had failed to identify deficiencies in the guarding on the machine, and the clearing of blockages was usually carried out while the machine was still in operation.

More info: https://press.hse.gov.uk/2019/03/29/south-yorkshire-company-fined-1-4m-after-worker-suffers-serious-crush-injuries/

A train refurbishment company fined GBP 90,000 (approx. USD 116,000) and must pay costs of GBP 45,000 (approx. USD 58,000) after exposing workers to hand arm vibration syndrome (HAVS)

Faiveley Transport Tamworth Limited exposed its workers to uncontrolled and unrestrained exposure to vibrating tools from 2005 to 2015. Company employees used a number of vibrating tools, including sanders and air-fed cutting equipment, to refurbish train doors. An HSE investigation found a failure to consider the risk to both its employees and agency workers of exposure to hand transmitted vibration (HTV) tools over a prolonged period of time. There was no safe system of work including control, monitoring and maintenance measures. In addition, measures to conduct a suitable and sufficient risk assessment of that exposure were not taken, instruction and training on tool use was not provided and the company did not have health surveillance in place.

More information: https://press.hse.gov.uk/2019/03/25/staffordshire-company-fined-after-exposing-worker-to-havs/

Food manufacturing company fined over GBP 1.8 million (USD 2.3 million) after two workers were seriously injured after falling from height

Two workers were investigating a leak from the roof at Karro Foods Ltd, which the workers did not realize contained several roof lights. The workers were walking closely together and both stood on the same roof light which consequently fell through due to the weight. The HSE found the roof was made of asbestos cement and had several roof lights situated along it, but they were not visible due to the build-up of moss and dirt which had accumulated over the years. Employees had also not been made aware of them.

More information: https://press.hse.gov.uk/2019/03/22/yorkshire-company-fined-over-1-8m-after-two-workers-injured-in-fall-from-height/

Car manufacturer fined over GBP 200,000 (approx. USD 2.6 million) for serious safety breaches relating to faulty vehicle lifts

Renault Retail Group UK Limited repeatedly failed to ensure that its vehicle lifting equipment at two locations was maintained in an efficient working order and in good repair, despite warnings to the contrary. This resulted in its workers using faulty vehicle lifts which put technicians in danger.

More information: https://press.hse.gov.uk/2019/02/28/car-manufacturer-prosecuted-for-serious-safety-breaches/

 

USA

Two companies reach settlement for Cleanup of Contaminated Soils and Sediments at North Carolina Superfund Site

The US Environmental Protection Agency (EPA) and Department of Justice announced a settlement with Honeywell International Inc. and International Paper Co. for cleanup of contaminated soils and sediments at the LCP-Holtrachem plant in North Carolina. From 1963 to 2000, the LCP-Holtrachem plant made chemicals such as sodium hydroxide, liquid chlorine, hydrogen gas, liquid bleach and hydrochloric acid using a mercury cell process. Honeywell and International Paper are liable for historic industrial discharges of metals, including mercury, and polychlorinated biphenyls (PCBs) at the site.

Under the proposed settlement, Honeywell and International Paper will address contaminated soils and sediments through a combination of in-situ treatment, on-site storage and off-site treatment and disposal. The two companies will also reimburse the United States for all past and future costs associated with the cleanup. In exchange, the two companies will receive a covenant not to sue and protection from suit by third parties.

More information: https://www.epa.gov/newsreleases/settlement-reached-honeywell-international-inc-and-international-paper-co-cleanup

Cement plant in West Virginia fined more than USD 1.5 million for air pollution

The US EPA and Lehigh Cement Company LLC and Argos USA LLC have settled alleged Clean Air Act violations at a Portland cement manufacturing facility in West Virginia. The current and previous plant owners agreed to pay a USD 1,505,309 penalty related to alleged violations of the plant’s Clean Air Act operating permit and federal restrictions on hazardous air pollutants from Portland cement plants. The violations occurred from 2013 through 2016, spanning a change in the facility’s corporate ownership.

More information: https://www.epa.gov/newsreleases/owners-portland-cement-plant-martinsburg-west-virginia-pay-more-15-million-penalty-air

Tuna processing company in American Samoa fined following violation of 2018 settlement with EPA

StarKist Co. and its subsidiary, Starkist Samoa Co., will be assessed USD 84,500 in penalties for violating the terms of a 2018 settlement with the US EPA designed to remedy deficiencies at their tuna processing facility in American Samoa to achieve environmental compliance. StarKist violated the 2018 settlement on multiple occasions when it made unauthorized discharges from the facility to Pago Pago Harbor, including one incident where StarKist discharged 80,000 gallons of wastewater to the inner harbor. The company also violated the consent decree terms on 27 days when wastewater was routed around one of the required treatment measures to bypass a step in the wastewater treatment process.

Under the 2018 settlement, StarKist paid a USD 6.5 million penalty to resolve violations of federal environmental laws. The company was also required to make upgrades to reduce water pollution and the risk of releases of hazardous substances. In addition, StarKist agreed to provide American Samoa with USD 88,000 in emergency equipment for responding to chemical releases.

More information: https://www.epa.gov/newsreleases/epa-fines-starkist-failing-comply-2018-settlement

Electric car manufacturer reaches settlement with EPA over hazardous waste management violations, required to pay USD 86,000

The US EPA reached a settlement with Tesla Motors Inc. over federal hazardous waste violations at their automobile manufacturing plant in Fremont, California. Under the agreement, Tesla will take specific steps to properly manage hazardous wastes at its factory. Tesla will also purchase USD 55,000 in emergency response equipment for the City of Fremont Fire Department and pay a USD 31,000 penalty.

Inspections found the company: failed to comply with air emissions standards for equipment leaks; failed to comply with management requirements for generators of hazardous wastes and failed to make an adequate hazardous waste determination for certain solid waste generated at the facility.

More information: https://www.epa.gov/newsreleases/us-epa-settles-tesla-over-hazardous-waste-violations-fremont-calif-facility

Plastics manufacturer fined USD 159,000 by OSHA after employee loses four fingers in accident

OSHA cited Heritage Plastics Inc. for exposing employees to amputations at the company’s facility in Picayune, Mississippi. The plastics manufacturer faces USD 159,118 in penalties, including a willful violation that carries the maximum penalty allowed. An employee suffered the amputation of four fingers when the mixing machine from which the employee was removing material unexpectedly started. OSHA inspectors determined that Heritage Plastics failed to require the use of a lockout device and train employees on procedures to control the release of hazardous energy. OSHA also cited the employer for failing to install machine guarding. The inspection is part of OSHA’s National Emphasis Program on Amputations.”

More information: https://www.osha.gov/news/newsreleases/region4/04102019

OSHA proposes fine of over USD 1.3 million for multiple safety violations relating to work inside heat-treating furnaces.

OSHA has proposed penalties of USD 1.3 million against Dowa THT America Inc. – a metal heat treatment company - after the company exposed employees to atmospheric, thermal, electrical, and mechanical hazards as they performed maintenance inside heat-treating furnaces. In addition to the penalties, OSHA placed the company in the Severe Violator Enforcement Program.

OSHA cited the company for 25 willful, serious and other-than-serious violations for hazards related to confined spaces, falls, machine guarding, respiratory protection, chemical exposures and electrical equipment. The company also failed to provide adequate personal protective equipment, and train their employees on hazards in the facility.

More information: https://www.osha.gov/news/newsreleases/region5/03212019

 

China

Jiangsu: Authorities highlight 40 typical environmental law enforcement cases that occurred in 2018

On March 11, 2019, the Jiangsu Administration of Ecology and Environment disclosed 40 typical environmental law enforcement cases in 2018 which involve excessive discharge of air pollutants or wastewater, no or insufficient pollution treatment, or putting polluting equipment into operation without environmental acceptance inspection. Among the cases, it is noticeable that the penalty against a company discharging excessive water pollutants amounts to CNY 3.8 million (approx. USD 570,000), and one case involving falsification of online monitoring data has led to criminal custody of liable persons.

More information: http://hbt.jiangsu.gov.cn/art/2019/3/11/art_2543_8258322.html

Guangdong: Company fined CNY 300,000 (approx. USD 45,000) for failing to properly install and inspect waste gas treatment equipment

In March 2019, a company in Guangdong was penalized for putting the major part of a construction project into operation without completing establishment of waste gas treatment equipment for the paint spray process. The company is subject to a penalty of CNY 300,000 (approx. 44,000), and the main responsible person of the company has to pay a penalty of CNY 80,000 (approx. USD 10,000). According to Chinese environmental law, environmental protection equipment can only be put into operation or use after passing an acceptance inspection.

More information: https://www.kezzmoives.com/news/shownews.php?lang=cn&id=2258

Jiangsu: 17 more suspects were arrested under criminal custody on April 15 for the Jiangsu Xiangshui Explosion

After the explosion took place on March 21l 2019, killing 78 people, the State Council appointed a special investigation group. As of April 15, 26 people have been arrested by the Police. The explosion in eastern Jiangsu province was one of the worst industrial accidents in the country in recent years and led to the closure of the plant. Police have taken "criminal coercive measures" against the 17 suspects. The latest group includes individuals from an unnamed third-party organization, who are accused of falsifying project evaluations, and Jiangsu Tianjiayi Chemical company, the owners of the plant involved in the blast.

More information:: http://www.xinhuanet.com/legal/2019-04/15/c_1124368731.htm and here: http://www.thestandard.com.hk/breaking-news.php?id=126130&sid=3

Shanghai: Company fined for failure to properly dispose of hazardous waste, takes remedial action

In February 2019, the Shanghai Bureau of Ecology and Environment (BEE) found a company failed to properly dispose of activated charcoal generated from its plastic and polymer manufacturing processes. Pursuant to the Article 57 and 75 of the national Solid Waste Pollution Prevention and Control Law, hazardous waste generators are prohibited from transferring hazardous waste to unlicensed waste treatment facilities for waste collection, storage and disposal. Violators are subject to significant fines. In this case, the non-compliant company timely paid off the fines, promptly registered the information of the activated charcoal with the BEE, and contracted a licensed waste treatment facility for disposal. As a result, no additional fines were imposed for generating hazardous waste.

More information [in Chinese]: http://www.sepb.gov.cn/fa/cms/shhj//shhj5066/shhj5315/2019/03/101778.htm

Shandong: Illegal shipments of hazardous waste from Japan to be returned to their origin

In April 2019 in Dalian, Shandong Administration of Customs discovered two consignments of prohibited waste imported from Japan, which contained 26 tons of LLDPE-PA polymer and 67 tons of PETE. According to the Environmental Protection and Management Measures on Wastes that can be used as Raw Materials under Restricted Import Licensing Control of 2017, solid waste listed under the Import Restriction Catalogue of Solid Waste for Raw Materials are banned from importation into China. Customs authorities detected the banned waste from their appearance and smell at the initial inspection, and confirmed the findings based on the Solid Waste Analysis Reports. The consignments are currently impounded by the Customs and are likely to be sent back to Japan. There have been multiple similar violations in different regional Customs. Most banned waste has been sent back to the shipment origins.

More information [in Chinese]: https://www.thepaper.cn/newsDetail_forward_3287769

Henan & Annui: Environmental officials removed from their posts for corruption

In the first quarter of 2019, the deputy directors of two different provincial (Henan and Anhui) bureaus of Ecology and Environment were removed from their official duties for corruption and failure to report companies’ environmental noncompliance found in inspections. The directors were found accepting briberies from local facilities to tip them off regarding scheduled environmental inspections, abuse their power on environmental impact assessment process, or cover for their noncompliant actions. For better government internal discipline and anti-corruption, the onsite investigators of the Central Commission for Discipline Inspection will strengthen their supervision and regular inspections on governmental enforcement and provide a better channel of communication for whistleblowers and other complaints.

More information [in Chinese]: https://www.thepaper.cn/newsDetail_forward_3291611

 

Hong Kong

Electric equipment seller fined HKD 6,500 (approx. USD 900) for failure to comply with obligation to provide free removal service for WEEE disposal

EasyTalk Group Company Limited was convicted and fined HKD 6,500 (approx. USD 830) on five charges of contravening the Product Eco-Responsibility Ordinance (PERO) when selling a television set. Under PERO when distributing regulated electrical equipment (REE), sellers must have an RSP endorsed by the EPD and proactively inform consumers of the sellers' obligation for the provision of a free statutory removal service as well as the relevant removal terms in writing. In addition, sellers must arrange a free removal service for consumers to dispose of the same type of waste equipment and provide a recycling label and a receipt containing the prescribed wording when distributing REE.

More information: https://www.info.gov.hk/gia/general/201903/19/P2019031900519.htm