Criminal action over Mercaptan disposal is time-barred, inquiry revealed

A board of inquiry appointed by Finance Minister Tonio Fenech to look into the disposal of mercaptan gas in the limits of Mgarr in 2009, has found Enemalta to be at fault of not properly disposing of 45 gallons of methyl mercaptan.

However, any possible criminal action cannot be taken since it is time-barred.

The inquiry found a breach of the Waste Management (Permit and Control) Regulations that rendered one subject to a fine for a first offence.

"However with no such precedent as far as the Board of Inquiry was aware and subject to there being no such precedent, any offence committed by Enemalta now is barred by a lapse of prescription and thus no further criminal action is warranted," the inquiry said.

Likewise, for the same reason, no criminal action is warranted with regard to offences allegedly committed also under the Waste Management (Activity Registration) Regulations, it added.

Fenech had launched an inquiry after MaltaToday.com.mt revealed Enemalta Corporation had kept an internal investigation under wraps. The investigation, conductedon a case of theft, had inadvertently discovered the cause of an incident three years ago that resulted in a foul smell of gas reported across Malta.

After the report appeared in MaltaToday, editor and journalist Julia Farrugia was asked to take the witness stand on 18 November. The day happened to coincide with the public announcement that former Enemalta CEO Karl Camilleri had resigned.

Various media reports suggested that Camilleri was forced to resign over the mercaptan case, as the burning took place under his administration.

Reacting to the publication of the government inquiry, Farrugia described the findings as "a true case of bad governance".

"It is shameful to say the least, to learn that the authorities are apologetically claiming that the case is time-barred and hence the police cannot take action. Notwithstanding this, nothing stops the government from assuming political responsibility of this whole mess - after all Enemalta is a Government entity," Farrugia said.

Farrugia added that when the illegality took place in 2009, Enemalta had taken the country for a ride: "When reports of foul smell kept pouring in, the corporation launched a public statement claiming that it has launched an investigation to see what caused the foul smell. Do we really need a rocket scientist to realize that whoever authorized the dumping of the Mercaptan, knew perfectly well the details that linked the two episodes together?"

"Today, five months after I was summoned to take the witness stand in this internal enquiry I cannot but express my disappointment over the unacceptable behavior of one of the members serving on this enquiry," Farrugia said.

"This particular gentleman repeatedly forced me to reveal the name of the source/s of my story. Despite the fact of pointing out that he was in breach of the Press Act, he kept insisting on the matter in the most disgusting and arrogant way."

Farrugia added that the questioning went off on a tangent, giving her a clear indication that "the only interest in the questions posed, was to reach out to whoever possibly tipped the journalist, and not to reach out on who was morally, and politically responsible of this illegality."

The government-appointed board of inquiry slammed Enemalta for not only improperly disposing the material, but for also carrying it out without the necessary permits.

While the board insisted that there were no reports of negative health consequences, it warned there were potential serious health effects, however rare the more extreme effects may be, even for cases of inhalation of gases or fumes released by mercaptan.

The board said there had "evidently" been serious shortcomings in decisions and actions by Enemalta at different stages of the disposal.

"However these should not be seen in isolation of the context and circumstances in which they took place," the board said. "While not considered as justification, it is appreciated that there were several factors that may provide a fairer understanding and appreciation of the situations and dilemmas faced by the Enemalta management re this case."

The board of inquiry said Enemalta had found itself in a "perceived emergency situation", to have to dispose of the mercaptan in the summer of 2009. Enemalta, according to the board, was "satisfied" that the destruction was carried out under "as controlled conditions as there could possibly be in the circumstances".

"The burning of mercaptan by Enemalta through its contractor, though carried out with certain safety measures, cannot be deemed to have been done under the controlled conditions as referred to in Material Safety Data Sheets and corresponding standards of repute," the inquiry found out.

"Neither were the disposal and other activities by EneMalta concerning mercaptan undertaken according to all the prevalent local legislation at time."

The board went on to list a number of infringements of the Waste Management Regulations.

The board went on to add that if any Enemalta official is held responsible for committing an offence, that offence is legally deemed to have been done by Enemalta.

"However in this eventuality, any designated official of Enemalta is deemed to be vested with such responsibility on behalf of Enemalta," the board added.

The inquiry suggested that "at its discretion" Enemalta may still opt to initiate disciplinary proceedings against any of its professional and other employees who are covered by the respective collective agreements and were directly involved in the disposal of mercaptan, subject to such disciplinary proceedings not taking into account any alleged "criminal offence" as this has now been barred by prescription. "Consideration of serious offences of the type "gross negligence in performing one's duties", as listed in the stated collective agreements, may be applied," the board suggested.

"The institution of charges with regard to any breaches of the personal engagement contract agreements of any senior management officials directly involved in the decisions and actions related to the mercaptan case is also at the discretion of the Enemalta Board of Directors."

The board concluded that the presence of concentrated ethyl mercaptan at Enemalta was "an unintentional and unique occurrence which is unlikely to happen again to Enemalta, given that now the responsibility for LPG procurement in Malta has been taken over by a private gas operator, albeit the fact that the LPG is still presently being stored at the EneMalta Gas Division site in Qajjenza."