Caroline Raine discusses the cost of non-compliance in the supply and transport of chemicals and dangerous goods.
Chemicals and dangerous goods are heavily regulated as they are hazardous to work with and dangerous to transport. The Chemicals Regulation considered in this article relate to the supply and transport of chemicals in order to ensure that people, the environment and property are protected. With the first two, people and the environment being the main focus.
Regulations are in place to be adhered to, they are legally binding requirements and yet many companies do not fully comply with them. All companies have a legal, moral and financial obligation to comply and when they don’t they are quite rightly punished. This punishment can be in the form of an improvement or prohibition notice, a fine or in the most severe cases, imprisonment. Of course, companies that do not comply and have things go wrong can also be punished indirectly; for example, through loss of business, reputation, increased insurance costs, increase in staff time to rectify. So, the key message is by getting it right it will save time, effort and money in the long run.
To put some of the figures and consequences into perspective, let’s consider some recent accidents and incidents that were as a result of non-compliance with the relevant regulations that resulted in fines.
Transport — prohibition notices
The Health and Safety Executive (HSE) published the Carriage of Dangerous Goods — Prohibition Notices issued by Police or Driver and Vehicle Standards Agency (DVSA) or Department for Transport on its website. All the notices issued from 2005 to 2017 are listed online and the notices from 2018 will be listed soon, in fact January to April 2018 are already published. This article does not go into these notices in detail; they will be covered in a separate article.
$289 million awarded to terminally ill groundsman
Perhaps one of the largest sums of money to be awarded following chemical exposures was awarded to a terminally ill groundsman. In a landmark verdict against the company Monsanto, producers of the weedkiller Roundup were ordered to pay the man $289 million in damages.
Dewayne Johnson, a 46-year-old who worked as a groundsman for a school district in California, won the settlement after the jury found the weedkiller Roundup played a significant role in causing his non-Hodgkin’s lymphoma cancer and awarded the terminally ill groundskeeper damages of $289 million. The unprecedented verdict delivered by the San Francisco, California jury will have implications for more than 4000 similar cases already lodged in the USA alleging a glyphosate link to the blood cancer non-Hodgkin’s lymphoma.
The weedkiller is made up of a chemical known as glyphosate and is sold in over 160 countries around the world but in 2015 the World Health Organization (WHO) concluded that the chemical is “probably carcinogenic to humans”.
£10k fine for dumping asbestos
Three men were ordered to pay over £10,000 for illegally landfilling waste after being successfully prosecuted by the Environment Agency. David and Alan Bradley, joint owners of Hardwicke Hall Manor Hotel in East Durham were fined £3855 and £971 respectively while the haulier, Alan Waggott of Howden-le-Wear was fined £6007, after pleading guilty to various environmental offences at Newton Aycliffe Magistrates’ Court.
It is illegal to dispose of waste by landfilling without an environmental permit and Hardwicke Hall Manor Hotel had no such authorisations.
Shell UK fined 60k after full gas cylinder valve shears
Shell UK was fined after it failed to take suitable and sufficient steps to ensure risks associated with handling of pressurised cylinders were eliminated and which ended up being projectiles and causing injury to a worker.
An investigation by the HSE found the company also failed to remove pressurised cylinders which were not suitable for use in a safe and secure manner and failed to ensure the provision of appropriate information and instruction in respect of the handling and use of energised gas cylinders.
Shell UK Ltd of Shell Centre, London, pleaded guilty at Aberdeen Sheriff Court to breaching s.3(1) of the Health and Safety at Work, etc Act 1974 and was fined £60,000.
Small company fined 4.5k after failing to comply with enforcement notice
Franklin Joseph of Kempston was fined £180 and ordered to pay costs of £4500 after failing to comply with an enforcement notice. Joseph had been spraying flammable liquids in an area with electrical equipment. The terms of the notice, issued by the HSE, were explained to Mr Joseph, who needed to have an electrician check the system to ensure it was safe to use near flammable liquids. He failed to comply with this notice within the specified period despite being given an extension and receiving advice from the HSE inspector.
HGV driver banned from professional driving
In a hurry to get home for a staff party an Immingham HGV driver left a hazardous waste spill from his vehicle unattended. Simon Carrington, driver for Barrow-on-Humber-based S J Barrick, fled the scene after spilling at least 200 litres of acetic anhydride on an access road in Barry, South Wales in April 2016. The chemicals can cause health issues if ingested, inhaled or if it comes into contact with the skin.
The driver did not take any of the steps expected of an experienced ADR-certified driver faced with any spill of a hazardous substance. The driver’s misconduct had been so serious that, on balance, despite his otherwise good history as a driver and evidence during a conduct hearing in Leeds, his professional driving licence had to be revoked and a disqualification order made.
The review of the CCTV footage showed that when the spill occurred, Mr Carrington was close to the Dow Corning chemical site in Barry, South Wales, which had a trained and equipped emergency response team. Mr Carrington did not alert Dow Corning to the spill, in fact he drove away leaving the spill unattended (after taking the hazardous materials warning signs off the vehicle).
Mr Carrington said he stopped the vehicle on an access road after leaving the Dow Corning chemical site to open the side discharge valve and top lid to prepare the tanker to be cleaned at the nearby tank wash. He subsequently realised that some 260kg of acetic anhydride had been left in the tanker and noticed a discharge from the side valve.
Carrington was fined £1840 with £956 in costs and a £170 victim surcharge at Cardiff Magistrates’ Court in January 2017.
Hydrochloric acid kills fish in watercourse resulting in 80k fine
Firth Rixson Metals Ltd was prosecuted by the Environment Agency after a member of the public reported a pollution incident in April 2015. They were fined £80,000 after pleading guilty to breaching the Environmental Permitting (England and Wales) Regulations 2010 after over 600 litres of a solution of hydrochloric acid (HCl) and caustic soda polluted a nearby watercourse.
Investigating officers found almost 200 dead brown trout within a 500m stretch of the Shelf Brook and the fins and eyes of the fish were noted to have a burnt appearance. Samples taken from the brook and a drain leading from the Firth Rixson Metals site into the brook were found to contain a highly alkaline liquid, made up of various metals, at elevated levels.
This article shows just a selection of the recent cases that have resulted in fines and/or prosecutions.
For smaller companies, the cost of the fine is a considerable deterrent.
For larger companies who can afford the fines, the real deterrent is bad publicity.
Getting things right in the first instance is imperative in order to avoid future costs.
The costs discussed in this article only consider the fines and court costs; they do not consider the cost of legal fees and staff time, which will be considerably higher.
The regulations are in place to ensure safety and so it is of utmost importance that companies comply to ensure we are safe not only in our work, but our every day lives.
Last reviewed 20 September 2018