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AP&S attorneys provide a full range of time-sensitive legal services to individuals, insurers and companies – from Fortune 500 corporations to small employers throughout New England. Our experience encompasses defense and indemnity issues relating to construction claims, advertising injuries, environmental contamination, asbestos and other hazardous substances. We also offer experienced guidance and representation in professional liability defense, directors and officers’ liability, first-party property, homeowners, products, and specialty lines.
We advise clients on insurance coverage and bad faith claims for insurers, both admitted and surplus lines carriers, and provide coverage opinions on a variety of policies and issues, including questions pertaining to employee fidelity bonds, disability insurance, life insurance, environmental claims and construction defects.
As experienced litigators in state and federal courts, our attorneys have been nationally recognized as lead counsel in groundbreaking decisions of the appellate courts of Rhode Island, Massachusetts and New Hampshire, as well as the U.S. Court of Appeals for the First Circuit. We have successfully argued appellate cases concerning such issues as trigger of coverage, setoff for non-settling excess insurers, the sudden and accidental exception to pollution exclusion clauses, and employer immunity under workers’ compensation acts.
We work closely with our clients’ risk managers with respect to obtaining both appropriate insurance and the benefits thereunder. We also advise on selecting coverage and special endorsements suited to the particular circumstances of each undertaking, regularly dealing with issues of notice, adjustment of claims and coverage questions.
Perhaps most importantly, we recognize that litigation is not always the best option for our clients. Consequently, we’re always sensitive to other solutions, including mediation and arbitration and we often guide our clients through alternative dispute resolution processes.
Professional, directors’ and officers’ liability.
Raffone v. Home Depot U.S.A., Inc., et al. (Conn. Super. Ct. 2015): AP&S obtained summary judgment on behalf of Home Depot U.S.A., Inc. The plaintiff alleged numerous claims against Home Depot and its employee, including false imprisonment and excessive force, after being detained and arrested for shoplifting. The Connecticut Superior Court granted summary judgment on all claims in favor of Home Depot and the employee.
Herchen v. Home Depot U.S.A., Inc. (R.I. Super. Ct. 2012): After a one-week jury trial, AP&S obtained a defense verdict on behalf of Home Depot U.S.A., Inc. The plaintiff alleged that a large stack of heavy lumber fell onto his arm, causing a permanent nerve injury. The jury found in favor of AP&S’s client, concluding that it was not negligent. Plaintiff sought several hundred thousand dollars in damages.
Figueroa v. J. C. Penney Corporation, Inc., et al. (R.I. Super. Ct. 2012): Plaintiff alleged injuries from a slip and fall outside of a JCPenney store. Shortly after the case was filed, AP&S successfully tendered JCPenney’s defense and indemnity to the owner of the mall where the incident occurred.
DeBenedetto v. One Offshore Road Condominium Association, et al. (R.I. Super. Ct. 2012): AP&S represented a condominium association against claims of nuisance, trespass and negligence in relation to how the condominium association handled its trash. Shortly after the case was filed, the Court held a non-jury trial on plaintiffs’ claims for injunctive relief, and granted AP&S’ motion for judgment on partial findings, thereby denying plaintiffs any injunctive relief. Plaintiffs agreed to dismiss the case with prejudice upon the execution of mutual releases.
Riggs v. Alexandre Construction (Mass. Super. Ct. 2007): In a three-week jury trial, AP&S defended a general contractor in a case where an ironworker fell 26 feet and sustained serious injuries. Plaintiff demanded $2 million. AP&S obtained a defense verdict.
Bik v. Del Wes (Mass. Super. Ct. 2001): In a 3-week jury trial, AP&S defended a manufacturer in a products-liability case. The plaintiff alleged permanent disability and incurred approximately $600,000 in medical expenses. AP&S obtained a defense verdict. The case was listed as one of the year’s “Top 10 Defense Verdicts” by Massachusetts Lawyers Weekly.
Kelly v. O.E. Plus Ltd., 69 Mass. App. Ct. 1105 (2007), review denied 449 Mass. 1109 (2007): AP&S represented a distributor of alternators in a double wrongful death lawsuit arising from a motor vehicle accident and obtained summary judgment on the basis of lack of foreseeability. The plaintiffs appealed and the appeals court upheld the trial court’s decision.
Susan D’Esposito v. Michaels Stores, Inc. (2013): AP&S provided coverage opinion to a primary CGL insurer regarding Coverage B, personal and advertising injury liability coverage, for a new statutory claim in Massachusetts for the unlawful collection of consumers’ zip code information in connection with credit card transactions.
William Demmons v. Safety National Casualty Corporation (2013): AP&S represented an excess reinsurer in a declaratory judgment action involving novel questions concerning the interpretation of a workers’ compensation excess reinsurance policy.
Charlotte Frey v. Reina Dastous (2012): AP&S advised a medical malpractice insurer with respect to its rights and obligations under an excess liability insurance policy issued to a hospital for a medical malpractice action brought against two certified nurse midwives and a registered nurse who were employed by the hospital. The nurse midwives were not included in the list of scheduled insureds under the policy, which raised a number of complicated insurance coverage and formation issues. The case was settled before trial.
Michael Aleo v. SLB Toys USA, Inc. (2013): AP&S advised a primary liability insurer with respect to its rights and obligations in this wrongful-death case resulting from the use of an inflatable slide next to an in-ground swimming pool. The case raised a number of coverage issues involving the rights and obligations between a primary and excess insurer.
George B.H. Macomber Co. v. Acadia Ins. Co. (2012): AP&S represented a primary insurer in a declaratory judgment action filed by a general contractor in connection with multiple underlying actions arising from the collapse of a mast-climbing platform at a construction project at an Emerson College dormitory building in downtown Boston. The case involved intervening on behalf of the insurer in the underlying consolidated cases before trial to present special questions to the jury to ensure a determination of factual questions relevant to coverage issues.
Travelers Insurance Co. v. Providence Washington Insurance Co. (D.R.I. 2010): In this insurance coverage dispute, AP&S represented Providence Washington Insurance Co. with regard to a claim for contribution brought by one of New England Container Co.’s other insurers.
Emhart Industries v. New England Container Co., Traveler’s Insurance Co. and Providence Washington Insurance Co. (D.R.I. 2006): AP&S represented Providence Washington Insurance Co., the insurer for New England Container Company in a CERCLA Superfund environmental remediation case. The plaintiff sought indemnification and/or contribution from New England Container Company and its insurers for any cleanup costs that may be apportioned to it.
United States Fire Ins. v. Peerless Inc. Co. (Mass. Super. Ct. 2005): AP&S represented United States Fire Insurance Company in an equitable contribution action in Massachusetts Superior Court, seeking contribution from Peerless Insurance Company for its share of an underlying verdict of approximately $1.75 million against their mutual insured in a construction defect action. We defeated a motion to dismiss and later a motion for summary judgment, each of which resulted in a significant trial court decision regarding the rights and defenses in a claim for equitable contribution among co-insurers. The case settled after the defendant’s motion for summary judgment was denied.
Geoffrey W. Millsom and Brenna A. Force, Social Media in Litigation, MetLife Auto & Home 2015 House Counsel Conference, May 7, 2015.
Nicole J. Benjamin, Premises Liability Update, Rhode Island Bar Association Title Standards and Practices Committee, December 2013.
John A. Tarantino, Insurance Coverage and Practice Symposium, New York, December 2006.

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What is regulated by the General Data Protection Regulation?
What does the Austrian Data Protection Act regulate?
What does the term “controller” mean?
What does the term “processor” mean?
Where can you find further information on data protection?
For what purposes and on what legal bases does processing of personal data take place?
Who is the Data Protection Officer in the finance department?
To whom are personal data disclosed?
How long are personal data going to be stored?
Is there any automated decision-making, e.g. profiling?
What happens when you visit our websites?
Which security standards is the data processing subject to?
How can you submit your application?
How will your application be answered?
Which redress do you have?
Protection and privacy of personal data is a matter of great importance for the Federal Ministry of Finance (BMF) and all competent bodies of the finance department responsible for data protection. We take care to process all personal data in accordance with all applicable European and Austrian statutory provisions, and we take our responsibility very seriously.
We want you to know for what purposes and on what legal bases we collect personal data, and how we process these data. We also want to inform you about your rights in data protection matters and the contact persons available for you in this respect.
As changes to the Data Protection Statement may become necessary over the course of time, we encourage you to revisit the same from time to time.
Data protection is a fundamental right enshrined in the Charter of Fundamental Rights of the European Union and in § 1 of the DSG (Austrian Data Protection Act). From 25 May 2018 on, the General Data Protection Regulation (GDPR) is in force in the European Union. At the same time, the new Austrian Data Protection Act (Datenschutzgesetz, DSG) enters into force in Austria.
The GDPR is a regulation of the European Union and is directly effective in every Member State, thus including Austria. The GDPR comprises rules on the processing of personal data, such as the principles of processing, the rights of the data subjects and the responsibilities of the controllers and processors.
The DSG is an Austrian law and comprises provisions supplementing the GDPR and stipulations for the implementation of Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the processing of personal data by competent authorities for purposes of the prevention, detection, investigation or prosecution of criminal offenses or the execution of criminal penalties, including protection from and prevention of threats to public safety, as well as for purposes of national security, intelligence and military intrusion prevention.
Personal data are any information that relates to an identified or identifiable natural person (“data subject”). A natural person is deemed identifiable if he or she can be identified directly or indirectly, for example by means of a name or an identification number (e.g. tax identification number, social security number and account number).
For further information, please see Article 4 (1) of the GDPR.
The term “processing” means any process involving personal data that is carried out with or without the aid of automated procedures. These include, for example, collecting, recording, organising, sorting, storing, adapting or modifying, reading out, querying, using, divulging through transmission, dissemination or any other form of disclosure, matching or merging, restricting, deleting or destroying personal data.
For further information, please see Article 4 (2) of the GDPR.
The term “controller” means the person or entity, public authority, agency or other body that, alone or in cooperation with others, decides on the purposes and means of processing personal data.
For further information, please see Article 4 (7) of the GDPR.
The term “processor” means a person or entity, public authority, agency or other body that processes personal data on behalf of the controller.
For further information, please see Article 4 (8) of the GDPR.
The full text of the GDPR can be found on EUR-Lex at eur-lex.europa.eu. The full text of the DSG (in German) and the full text of the Austrian Code of Fiscal Offences (Finanzstrafgesetz) (in German) in the version of 25 May 2018 can be found in the legal information system of the Federal government at http://www.ris.bka.gv.at/. For more information on data protection, please see also the website of the Austrian Data Protection Authority at http://www.dsb.gv.at/.
The task fulfilment of the organisational units of the finance department is based on legal foundations, i.e. on national laws and regulations as well as on directly applicable regulations of the European Union. Our basic task is to ensure the financial interests of the Republic of Austria and the European Union, and thus in particular to collect federally levied charges and contributions, and to grant family allowances and other benefits.
The Federal Fiscal Court is responsible for deciding on complaints pursuant to Art. 130 I 1 to 3 of the B-VG (Federal Constitutional Law), especially in legal matters of public tax affairs, insofar as these are provided by tax offices, customs offices, the Federal Ministry of Finance and the Municipal Authority of the City of Vienna.
Please note that the following purposes, legal bases and processing modalities are a general listing. For individual and detailed information about your personal data, you have the right to information. The person to contact for this purpose is listed in the Data Protection Rights section.
We process personal data in the context and for the purpose of fulfilling our statutory duties.
Where we fulfil our statutory duties and the processing of personal data is required for the fulfilment of these duties, this is done on the basis of the exercise of duties in the public interest or the exercise of official authority within the meaning of Article 6 (1) (e) of the GDPR and § 38 of the DSG.
Where we are under legal obligation to process personal data, such as statutory documentation and retention obligations, this is done on the basis of the fulfilment of a legal provision within the meaning of Article 6 (1) (c) of the GDPR.
The legal bases and legal framework conditions arise from numerous laws and regulations, such as the Austrian Federal Constitutional Law, the Austrian Federal Ministries Act of 1986, the Austrian Federal Tax Code, the Austrian Code of Fiscal Offences, the Austrian Code of Criminal Procedure, the Austrian Customs Law Implementation Act, the Austrian Tax Administration Organisation Act of 2010, the Ordinance of the Federal Minister of Finance on Implementation of the Tax Administration Organisation Act of 2010, the Austrian Federal Finance Court Act, the Austrian Accounts Register and Account Inspection Act, the EU Convention on Mutual Assistance in Criminal Matters, the Austrian Common Reporting Standard Act, the Austrian Transfer Pricing Documentation Act, the Austrian Family Assistance Equalisation Fund Act of 1967, the Austrian Civil Servants Act of 1979, the Austrian Contract Employees Act of 1948, the Austrian Federal Budget Act of 2013, the Austrian Federal Budget Ordinance of 2013, the Austrian Gambling Act, the Austrian Transparency Database Act of 2012, the General Data Protection Regulation, the Austrian Data Protection Act, the Austrian Information Security Act, the FinanzOnline Ordinance of 2006, the Austrian Cash Register Security Ordinance and the Austrian e-Invoicing Ordinance.
Where processing of personal data is required for the conclusion of contracts, such as in contracts with suppliers and service providers, this takes place on the basis of the fulfilment of the contract or the performance of pre-contractual measures within the meaning of Article 6 (1) (b) of the GDPR.
Furthermore, in certain cases, we process personal data on the basis of the consent of the data subject within the meaning of Article 6 (1) (a) of the GDPR, e.g. when ordering publications and forms, or when registering for newsletters and events. The scope and content of the processing always result from the respective consent. In these cases, there is no obligation for the provision of personal data, and of course there is the right to revoke the consent at any time. However, the revocation does not affect the legality of the processing done until revocation. In addition, we cannot process your request further in case of revocation.
For the processing of personal data for purposes of the tax and customs administration of the Federal government and for purposes of preventing, investigating, detecting or prosecuting financial offenses as well as for the execution of financial penalties, responsibility rests with the competent and locally responsible tax or financial penal authorities. As a rule, these are the tax offices for the tax administration and the customs offices for the customs administration. The Federal Ministry of Finance is responsible for managing the affairs of the supreme Federal administration in accordance with the Federal Ministries Act of 1986.
The Federal Fiscal Court is responsible for the processing of personal data in the fulfilment of the tasks entrusted to it; these are primarily complaint proceedings concerning financial and customs offices.
As part of the processing of personal data in the grant procedure, the Federal Ministry of Finance shares responsibility with the Federal Chancellery.
The Federal Ministry of Finance is responsible for the processing of personal data for the purpose of communication and IT coordination.
Questions and concerns in data protection matters can be addressed to the heads of the respectively competent body responsible for the processing of your personal data, or to the Data Protection Officer of the Ministry of Finance, to the extent that the judicial activities of the Federal Fiscal Court are not affected.
The contact details of the Federal Ministry of Finance can be found at http://www.bmf.gv.at/ in the “Contact” section. The contact details of the tax offices and customs offices are likewise to be found at http://www.bmf.gv.at/ in the province-specific overviews under the heading “Offices and Authorities” (in German). The contact details of the Federal Fiscal Court can be found at www.bfg.gv.at in the “Contact” section. For the contact details of other jointly responsible bodies, please refer to the respective linked websites.
The data protection officer of the Federal Ministry of Finance acts as the data protection officer for the entire finance department and is available to answer questions on data protection matters.
In the field of activity of thethe Federal Fiscal Court, we process on the one hand the data provided by the tax and customs administration of the Federal government, the Municipal Authority of the City of Vienna or the Federal Ministry of Finance on the occasion of a complaint submission, as well as further information required for complaint proceedings.
We collect special categories of personal data, also known as sensitive data, if this is necessary for the procedure, and the legal basis for this is available. For example, we need information about the religious denomination to account for church tax payments.
Most of the personal data we process are collected directly from the data subject concerned, e.g. through tax and customs procedures or through business relationships. In addition, we collect personal data from third parties, especially if this is legally required.
Furthermore, we receive tax-relevant information from other authorities or through inter-governmental information exchange, in particular in the context of mutual assistance requests and automatic exchange of information. In the Transparency Database, we store data on benefits received, which are communicated by the providing bodies or with regard to which there is the possibility of querying. We also process publicly available information, such as online and offline media, public registers or public announcements.
As a matter of principle, we disclose personal data only if the transfer of certain data is legally required, e.g. within the scope of legal information obligations, in compliance with the respective legal requirements, or if you have consented to the disclosure.
We store personal data as long as necessary for the fulfilment of the respective processing purposes. The measures for this are the statutory retention obligations and limitation periods.
The periods for retention or deletion, respectively, arise from the applicable statutory provisions, such as from the Federal Tax Code, the Austrian Code of Fiscal Offences, and the Federal Budget Act.
As a matter of principle, we take legally binding decisions on the basis of automated processing of personal data only if this is legally required, such as in the case of automated employee tax assessment pursuant to § 41 of the Austrian Income Tax Act of 1988.
When you visit our websites, your IP address, date and time of the retrieval, connection information (destination address, files accessed, amounts of data transferred and status) as well as information about the operating system and the web browser are stored in a log file for a limited time. Collection of these data is indispensable for the operation of the web pages, in particular to ensure stability and security.
In addition, we use a web analysis service on our websites, whereby we anonymise IP addresses immediately. The analysis serves exclusively for optimisation of our web offer.
We process personal data with utmost care and have taken extensive technical and organisational security measures to ensure that the applicable data protection regulations are observed and complied with by all responsible bodies as well as by the processors contractually commissioned by us.
This applies in particular to the protection of personal data against unauthorised or unlawful processing, accidental or unlawful destruction, loss or alteration, unauthorised disclosure or unauthorised access to personal data that are transmitted, stored or otherwise processed. The security measures are state-of-the-art and include, among other things, use of advanced security technologies and encryption techniques, physical access controls and anti-intrusion measures.
Data protection and information security were given high priority by us even before 25 May 2018. For this reason, as early as 2008 we implemented an Information Security Management System (ISMS) that is certified according to the international security standard ISO 27001 and reviewed annually. This made us the first Federal Ministry in Europe to have obtained such certification. Among other things, the ISMS ensures that existing risks are systematically identified, assessed and addressed by appropriate measures. It also ensures that the effectiveness of the measures is regularly reviewed, assessed and evaluated.
The GDPR and the DSG also regulate the data protection rights of the data subjects, i.e. the persons whose personal data are being processed. The legal rights of the data subjects are directed against the controller, that is, against the competent body responsible for the data processing.
the right to information whether personal data concerning you are being processed and what their contents are, as well as the right to rectification or completion as well as to erasure of your personal data, to restriction of the processing, to objection to processing and to data portability, provided the legal requirements exist.
The respective legal requirements as well as any exceptions from and limitations to these rights result from Articles 12 to 22 of the GDPR and from §§ 42 to 45 of the DSG, as well as from the statutory provisions that underlie the respective data processing. Pursuant to § 48f of the Austrian Federal Tax Code (Bundesabgabenordnung, BAO) and § 57b of the Austrian Code of Fiscal Offences (Finanzstrafgesetz, FinStrG), for personal data processed on the basis of the BAO or the FinStrG and contained in a file, the right to information is based exclusively on § 90 of the BAO or § 79 of the FinStrG (access to records). Access to records permits you to demand access and receipt of a copy of your files (or parts thereof) whose knowledge is necessary to safeguard your rights and enable you to fulfil your obligations in the context of fiscal and financial criminal proceedings. Further specific data protection regulations or restrictions result in particular from §§ 48d to 48i of the BAO and §§ 57c and 57d of the FinStrG.
In cases where there are legal exceptions or limitations to these rights, we may not, or only partially, comply with your application. If legally permissible, we will inform you in this case of the reason for the refusal or restriction.
Please write your application as specifically as possible. Only in this way can we process it efficiently and quickly. Please also note that in the area of application of the Austrian Federal Tax Code (Bundesabgabenordnung, BAO), requests for information pursuant to § 48f of the BAO must specify which information or processing operations the request for information relates to.
Insofar as the request for information relates to personal data contained in a file, pursuant to § 48f II of the BAO the access procedure of the BAO applies. Electronic application is therefore possible only via FinanzOnline. In the cases of § 48g I of the BAO, for the right of correction according to Art. 16 of the GDPR the procedure according to the regulations of the BAO is likewise to be carried out.
Please understand that in cases of doubt we may have to request further information about your identity. This is solely for the protection of your personal data and intended to ensure that only you yourself receive information about your personal data.
We will provide you with the relevant information about the measures as soon as possible, but no later than within one month of receipt of your application.
Please note that this period may be extended for a further two months, if this is necessitated by the complexity or number of applications. However, we will inform you of any extension of the deadline and the reasons for this within one month of receipt of your application.
Personal data are a matter of trust. As an unencrypted email unfortunately cannot be considered secure and resembles more a postcard than a letter, we may never send you the answer to your request by email. You will therefore receive the answer by letter mail (RSa) or in tax matters possibly by means of the FinanzOnline Databox.
If you have any questions, suggestions or complaints in data protection matters, please contact the BMF Data Protection Officer.
If you feel that the processing of your personal data by us violates data protection regulations, or your data protection rights have otherwise been violated, you can lodge a complaint with the competent supervisory authority. In Austria, this is the Österreichische Datenschutzbehörde (Austrian Data Protection Authority).
If you believe that the Federal Fiscal Court has violated your rights under the General Data Protection Regulation in the exercise of its jurisdictive competence, you may file a complaint with the Federal Fiscal Court in writing or by fax.


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On November 8, 2018, the Supreme Court of Canada (“SCC”) reversed the Federal Court of Appeal decision in Callidus Capital Corporation v. Canada, 2018 SCC 47.
The SCC held that GST/HST deemed trusts become ineffective, as of the date of a tax debtor’s bankruptcy, against a secured creditor who received, prior to that date, proceeds from the assets of such tax debtor that were deemed to be held in trust for the Crown.
The Callidus decision has been warmly received by secured creditors as well as insolvency and commodity tax practitioners, as it has been perceived as re-establishing confidence in the secured-financing business sector.
However, as suggested by another recent ruling of the Federal Court, Canada v. Toronto-Dominion Bank, a GST/HST deemed trust will likely remain effective in cases where a bankruptcy has not intervened between the secured creditor’s receipt of proceeds from a tax debtor’s sale of assets and the Crown’s enforcement action with respect to those proceeds.
It remains to be seen how the SCC ruling in Callidus will impact, from a practical standpoint, the strategies implemented by secured lenders and tax authorities alike in the context of a tax debtor’s insolvency.
In a unanimous decision delivered from the bench, the SCC recently reversed the decision of the Federal Court of Appeal (“FCA”) in Canada v. Callidus Capital Corporation. The SCC agreed with the dissenting judge on the FCA panel that the original ruling of the Federal Court (“FC”), dating from 2015, was correct.
The Crown holds an absolute priority with respect to proceeds remitted to a secured creditor from a tax debtor’s assets, which proceeds are deemed to be held in trust under section 222 of the ETA prior to such tax debtor’s bankruptcy. Although the ETA is clear that this deemed trust does not survive bankruptcy, this was likely the first time that any tribunal had to apply that rule in a situation where proceeds from the sale of a tax debtor’s assets (deemed to be held in trust) were actually remitted to a secured creditor and then claimed in that creditor’s hands by the Crown pre-bankruptcy but where the Crown did not, and was arguably unable to, bring an enforcement action until after the tax debtor’s bankruptcy.
Between 2010 and 2013, Cheese Factory Road Holdings Inc. (“Cheese Factory”), which, in spite of its name, carried on business as a real estate investment company, collected $177,299.70 in GST/HST that, contrary to law, it failed to remit to the Receiver General for Canada. Pursuant to subsection 222(1) of the ETA, the amounts thus collected were deemed to be held in trust for Her Majesty.
Meanwhile, Cheese Factory had obtained a secured credit facility from a major chartered bank (the “Bank”). In December 2011, the Bank assigned its interest in Cheese Factory’s indebtedness to Callidus Capital Corporation (“Callidus”). As it was then in default under the Bank’s credit facility, Cheese Factory entered into a forbearance agreement with Callidus that required it to market some of its real estate property and turn over any net proceeds to Callidus. On April 5, 2012, Cheese Factory succeeded in selling one of its properties for $790,000 and duly remitted the net proceeds to Callidus four days later in partial repayment of its outstanding indebtedness.
Just a few days earlier, on April 2, 2012, the Crown sent a letter to Callidus claiming $90,844.33 in respect of unremitted GST/HST pursuant to the deemed trust provided for under subsection 222(3) of the ETA. The Crown requested that all proceeds received by Callidus from Cheese Factory’s asset sale be paid to the Receiver General for Canada up to the amount of the deemed trust - a demand Callidus appears to have ignored. More than 7 months later, in November 2013, Cheese Factory made an assignment in bankruptcy under the Bankruptcy and Insolvency Act (“BIA”), at Callidus’ request. Shortly thereafter, the Crown officially commenced proceedings against Callidus by filing a statement of claim in the FC.
The FC held that the bankruptcy of Cheese Factory had rendered the deemed trusts under subsections 222(1) and 222(3) of the ETA ineffective. In reaching its conclusion, the FC relied on subsection 222(1.1) of the ETA, which provides that the deemed trust under subsection 222(1) is extinguished upon bankruptcy of the tax debtor. The FC noted that subsections 67(2) and 67(3) of the BIA work in conjunction with this provision by reinforcing with strong language that the deemed trust does not survive following bankruptcy unless the amounts deducted are considered source deductions. The FC also relied on the SCC decision in Century Services Inc. v. Canada (Attorney General), in which the SCC stated that subsection 67(3) of the BIA “expressly provide[s] that deemed trusts for source deductions remain effective in insolvency” and that Parliament has therefore “clearly carved out exceptions from the general rule that deemed trusts are ineffective in bankruptcy”. According to the FC, the absence of a BIA carve-out for deemed trusts for sales taxes must be understood as indicating Parliament’s intention that any such trust should lapse upon the commencement of insolvency proceedings.
Justice Pelletier’s dissent opened the door for an appeal to the SCC. The SCC did not issue any substantial reasons of its own. Rather, in a ruling delivered from the bench, it adopted the dissenting reasons of Justice Pelletier and reversed the decision of the FCA’s majority, reinstating the decision of the FC. In so doing, the SCC made it clear that deemed trusts under subsections 222(1) and (3) of the ETA become ineffective as of the date of the tax debtor’s bankruptcy against a secured creditor who received proceeds from the assets of such tax debtor that were deemed to be held in trust for the Crown, even where the proceeds were received by the secured creditor prior to bankruptcy.
The SCC’s ruling clarifies the applicable state of the law as regards a subsection 222(3) ETA deemed trust in the context of a tax debtor’s bankruptcy. It should be noted, however, that in the absence of a bankruptcy, the result may be quite different.
In Canada v. Toronto-Dominion Bank (May 25, 2018), the FC recently ruled in favour of the Crown, which in that case was pursuing a bank for payments received from a bank customer who had sold his house and used the proceeds to repay his personal line of credit and mortgage. The bank did not enforce its security against its customer and the security registered by the bank against his house was discharged without the customer going bankrupt. At the time of repayment, the bank did not know that the customer’s landscaping business owed an unremitted GST debt to the Crown. On receiving a demand letter from the tax authorities asking it for $67,854 out of the proceeds of the sale of the house to cover its customer’s unremitted GST debt, the bank declined to pay.
The FC was unmoved by the bank’s argument that it was an innocent “bona fide purchaser for value” (any such status being irrelevant in light of the statutory language) and rejected its argument that the reference to “proceeds” in subsection 222(3) of the ETA refers only to the proceeds of a sale initiated by the party from whom payment is being sought (the bank, in this case), rather than to the proceeds of a voluntary sale by the tax debtor. The FC accordingly ruled that the debtor’s house fell under the purview of the section 222 ETA deemed trust and that any proceeds derived from its sale were to be paid in priority to the Crown in accordance with sections 222 of the ETA and 227 of the Income Tax Act. To the extent that they had been paid instead to a secured creditor, such as the bank, such proceeds could be recovered directly from said secured creditor by the Crown. It is noteworthy that subsection 222(4) of the ETA excludes "prescribed security interests" from the deemed trust mechanism. The prescribed security interest exclusion allows for a certain portion of a mortgage or hypothec to be excluded from the deemed trust, provided it was registered before the time an amount is deemed under section 222 of the ETA to be held in trust by the person. However, in Canada v. Toronto-Dominion Bank, the bank did not have a “prescribed security interest” because its security had been registered after the GST amounts had been collected by the bank customer.
It remains to be seen how the SCC ruling in Callidus will impact not only the strategies implemented by secured lenders in insolvency, but also by tax authorities themselves, as the latter may have an added incentive to rely on collection tools to seek payment of all unremitted sales taxes from third parties related to the tax debtor before a bankruptcy occurs.

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Bruno Prior and the team at Forever Fuels have produced a preliminary list of health and safety issues that all within the pellet industry should be concerned about.
This detailed and considered list should be used as the starting point for the industry to work together to address these urgent health and safety issues.
Gexcon have carried out DSEAR Risk Assessments for us and Bristol Ports, and advised that fines should not be stored loose. They must be contained at all times, for example in bins or bags, to avoid the risk that they are disturbed in the presence of an ignition source (e.g. a vehicle). Without containment, even a small initial explosion could result in a more serious secondary event as the fines are thrown up by the initial explosion into a concentration in air that is itself explosive.
So far as I know, most of the Harrison/Andritz loading-out systems that became ubiquitous in our market are simply dropping their fines on the floor. The same applies to most other systems that we have seen. We aren’t aware of most of the systems used by the smaller operators who have entered the market in the past two years. This could well be a widespread risk.
For some bizarre reason, version 3 of the ENplus Handbook removed the requirement for a visual inspection of the pellets at loading, but it retained the requirement to measure the temperature, and to take samples. It did not require the samples to be taken from across the flow (i.e. from the head of the conveyor in most cases), as it should have done. But one of the ENplus auditors has rightly been insisting that this technique, which is the only reasonable way to get a representative sample, is used at the sites they inspect. At many sites, therefore, people are having to work at heights with their hands. I cannot think of a practical way that someone could take a temperature reading or a sample from a ladder and maintain the required three points of contact.
It is sometimes necessary to access the top of a truck for other reasons. In the case of tankers, it may be necessary to do maintenance work such as replacing the air lines. Tippers may need access for maintenance such as clearing product that has gathered on the body and inspecting/freeing the sheet. Most vehicles provide a ladder on the body, and some provide a walkway. However, our advice is that the collapsible barriers on these walkways are not normally sufficient to guarantee that a fall would be prevented, and they are normally only on one side anyway. The ladders on the truck are not suitable for any work, other than simply ascending or descending.
1. A harness and inertia reel. The positioning would be important. In our experience, the drivers loathe the discomfort and limitations on movement that these create, and probably don’t use them whenever they are not being watched by management. But they would be an acceptable option where there was a suitable plan in place to ensure that they were used.
2. A gantry. This should provide a stable and level platform from which people could work securely. I think you have something like this at Rugeley, and we have it on all our depots, and steps to secure working platforms at the ports. I am not aware of anything like it on other people’s systems. One suspects some combination occurs of avoiding working at height (meaning that the testing and inspection will not be carried out as well as it should be) and taking risks when there is no avoiding working at height.
The primary risk of an explosion in a pellet store is where dust has settled and is then thrown up in the presence of a source of ignition. One aspect of reducing this risk is to remove the sources of ignition (see below), but it is almost impossible to guarantee that there will never be sources of ignition. For instance, every vehicle that operates in a shed is probably a source of ignition.
It is important, therefore, to prevent the dangerous build-up of dust. Dust will inevitably be generated and thrown up by handling, both when loading into the shed and when loading out.
On loading in, there is little that can be done to prevent a cloud of dust in the shed that will settle on any horizontal surfaces. This therefore has to be managed by a strict cleaning regime to remove dust from all those surfaces after it has settled. Accessibility (e.g. to the top and back of any rocket wall behind the new pile of pellets) is an issue that has to be considered carefully. But if the pellets are transported by sea, at least this only needs doing occasionally.
1. Where the pellets are picked up by the front-loader.
2. Where the pellets fall into the body of a tipper (in a tanker, a reasonably close fit between the chute and the hatch should minimise the escape of dust from the truck).
The hooding of the hopper, screen and conveyors does not remove the dust. It contains it, but unless the contained dust is dealt with, that can make matters worse as containment is one of the other factors required for a dust explosion. But at least it has localised the problem. A cleaning regime will be needed to remove the dust often enough that it never gathers in significant volumes. ATEX-compliant cleaning equipment will be required.
Cleaning the contained areas within a handling system is not a simple job. Some parts will be difficult to access safely (see Working at Heights above), the hoods may not be simple to remove, and the process may cost significant operational time when you would rather be loading trucks. And cleaning the wider areas could also involve a significant amount of labour if the pellets are dusty and the system is not sufficiently contained (e.g. if tippers are used).
For this reason, a cleaning regime is likely to slip (assuming the operator had implemented an appropriate regime in the first place), unless there is frequent policing by management and external assessors. One option to mitigate the requirements, and therefore make it more likely that a safe routine will be workable and implemented, is Local Exhaust Ventilation (LEV, aka suction) on the enclosed areas of the handling system. We implemented this in our depots, but from what we have seen elsewhere, it is not common. The LEV would have to be implemented to a suitable safety standard (not just ATEX, but suitable explosion panels and clearance). That is a significant cost. The industry needs to consider whether it will mandate LEV on handling systems as an option that materially reduces the risk of explosion from predictable human fallibility.
All equipment should be suitably rated for the relevant ATEX zone. But as mentioned above, the chances are slim that all vehicles that operate in the store will be suitably ATEX-rated. And risks may also occur in fixed equipment that might not present an obvious risk, such as the rollers on conveyors. It may be necessary to monitor the bearing temperatures on rollers and motors. A detailed risk assessment by a suitably-qualified professional is required.
Handling equipment should be driven by electrical motors, which can be equipped to a suitable ATEX standard, rather than by a reciprocating engine. If a suitable electricity supply is not available, a generator should be located in a non-explosive zone. There is no good reason for using a reciprocating engine within an explosion-risk zone (e.g. inside a pellet storage shed), particularly one built in to the handling system. It creates a source of ignition close to the highest-risk areas, and could be avoided by the measures described above. It is theoretically possible for a reciprocating engine to be ATEX rated, but the cost is prohibitive and we have never seen it implemented in practice.
The level of Personal Protective Equipment required in the store will vary under different conditions.
When pellets are being handled, a mask and goggles will be required, but not all masks and goggles are suitable. Paper masks will not give a close enough fit for anything but the thinnest of dusty atmospheres. In the heaviest of dusty atmospheres, such as those that occur when multiple loads are being tipped into a shed (e.g. when a ship is discharging), forced-air, fully-enclosed breathing apparatus should be used to prevent harmful impacts from sustained periods of operation in that atmosphere.
High-visibility clothing and protective footwear are required when vehicles are operating in the store. Head protection may be required. The type of head protection (helmet or bump cap) will depend on the nature of the work going on in the shed, i.e. is there a risk of falling objects?
The risk of carbon-monoxide poisoning in a large, well-ventilated space like most sheds is minimal. Nevertheless, carbon monoxide should be monitored for other purposes (see below). If the store is a confined space (e.g. a silo) then the appropriate care (see HSE regulations and guidance) should be taken for confined spaces and toxic atmospheres if it is necessary to enter the storage space.
Only suitably-qualified personnel should operate equipment, including specialist vehicles such as front-loaders/telehandlers. Access to areas where equipment is operating (and particularly where vehicles are moving) should be managed by procedures that ensure that operators are aware of the presence of pedestrians, and pedestrians are aware of where they are permitted to go.
Lone-working procedures should be implemented if someone may be alone in the store for any sustained period of time.
Suitable guarding should protect operators and visitors from any moving equipment, and suitable rails should protect them from any fall hazards. These need to be maintained in good condition and checked regularly.
• “Fresh” (i.e. recently-produced) pellets that have not been allowed to cool sufficiently.
The causes are sufficiently uncertain that the risk cannot be eliminated by minimising the above factors, and there are knowledge problems that would make it difficult to say for sure that these factors had been minimised. It is therefore necessary to monitor static piles of pellets for signs of self-heating or off-gassing, to the extent that is feasible.
Wood is an excellent thermal insulator. Hot spots may therefore not be detected if the temperature readings do not hit the exact spot.
Self-heating releases water vapour. This travels upwards and condenses on the pellets above the hot spot. Those pellets (a) disintegrate from the moisture, (b) release their own heat and water vapour, and (c) are heated by the hot spot below. Hot spots often create their own cavern within which the process accelerates. This may inhibit detection as the heat and gases may be contained.
For these reasons, one should not over-estimate the certainty with which self-heating and off-gassing can be detected. Risk assessments of any activities around a static pile of pellets should allow for the possibility that there is undetected thermal activity within the pile.
Nevertheless, one should do what one can to detect these factors. Self-heating is normally a slow process, so if it is detected early enough (while temperatures are low enough that they are not dangerous), it can be resolved as easily as by moving the affected area. If temperatures get beyond low levels, then moving the pile may have the opposite result – allowing oxygen to the hot areas may encourage a fire or even an explosion if there are unsafe dust concentrations in the area.
Temperatures may be variable and localised, so it should not be assumed that a temperature reading indicates the maximum temperature in the area. Anything above ambient is cause for concern. It is hard to think of a good reason why the temperature in a pile of wood pellets should exceed 40°C, so we have set that as our trigger level.
Where we store pellets in static piles, we ensure that the pile is monitored weekly. Readings are taken in a grid across the pile. A temperature probe is inserted as far as possible into the pile to take a temperature reading. As the probe is withdrawn, we take a carbon monoxide (CO) reading from the point where the probe is removed, in the hope that the probe has created a pathway for any gases collecting within the pile.
It is important to be realistic how limited this is. The temperature probe is only around 1.2 metres long. A longer probe would not help, because there is a limit to how far one can manually push a probe into a pile of pellets. If the pile is 6 metres deep, there is a high probability that a temperature probe will not get close enough to a hot spot to detect it. CO is probably a marginally better indicator, because the gas will be looking for pathways to escape and should therefore be less localised, but there is no certainty that the gas will escape in the areas where the monitoring is carried out.
Visual inspections may supplement this monitoring regime. If degradation is observed, this should be investigated to see if the cause is external (e.g. condensation dripping from the roof or even high atmospheric humidity at ports) or internal (e.g. evaporation from a hot spot).
To be realistic, none of this can provide a guarantee that an undetected hot-spot will not develop. The best defences are procedural and logistical.
Because self-heating is normally a slow process, if the turnover of product is rapid, it is unlikely that there will be enough time for self-heating to become a problem. If stock is stored in smaller volumes, not only does this make detection more likely (because there is less chance that a hot spot is buried at a distance that cannot be reached by monitoring equipment), but also the turnover is likely to be rapid, and the consequences of any undetected self-heating will be less severe because of the smaller volume of combustible material.
Purchase contracts from manufacturers should specify a minimum period for homogenisation before shipping, for quality as well as safety reasons. We suggest around 3 weeks minimum. Manufacturers prefer to ship some fresh pellets, because they would otherwise have to deal with the storage and cash-flow implications, but shipping fresh pellets is thought to be one of the most significant factors in the risk of self-heating and off-gassing. It is also a factor in higher degradation in transit, as the durability tends to increase gradually over the first few weeks after manufacture. Higher degradation means more fines and dust, and the associated risks and impacts.
Care should be taken to implement a First-In-First-Out stock-management regime, so that residual stock is not repeatedly left at the back of the store.
Wood pellets may have a high angle of repose if they contain sufficient fine particles. That may result in a steep slope on the face of a pile of pellets. Care should be taken that people cannot be trapped if a steep slope of pellets collapses.
On at least two occasions, we have discovered smoldering in a customer’s pellet store when we have opened the access hatch prior to delivery. Fortunately, the ability to check inside the store before delivery meant that the driver was able to notify the authorities and abort the delivery without exacerbating the situation by attempting a delivery.
There are many other reasons why an access hatch is required for quality reasons, but this is a critical safety point that should not be ignored simply because most pellet stores do not have an access hatch that can easily be opened for inspection (i.e. one that conforms with the industry’s Pellet Storage Guidelines).
Bioenergy 2020 have done tests on various factors that might act as a source of ignition inside a store that might cause an explosion. Many of the suspected risks are negligible. For instance, they discovered that the energy is insufficient for ignition in the sparks created by a piece of metal that is accidentally entrained in the pellets being fired down the delivery pipe and striking a metal wall opposite the outlet of the pipe. Likewise, the static charges generated by an un-earthed delivery pipe are unlikely to ignite an explosion, partly because the energy is insufficient and partly because of the cage effect. The most credible source of ignition, in their experiments, was if pellets are smoldering in the store.
To be clear, it is not expected that the dust entrained in the delivery air will be sufficiently dense to be at explosive concentrations. But dust that has settled on horizontal surfaces in the store and not been cleaned off, can be disturbed by the blown delivery, and the concentrations of disturbed dust could interact with a smoldering source of ignition to cause an explosion.
Even if an explosion is not caused, smoldering is likely eventually to lead to a fire, with serious consequences for the building in which the fuel-store is located. Inspection inside the store prior to delivery is an important opportunity to identify and address this risk.
There should be no excuse for pellet silos not to have an access hatch that can be opened easily at all fill levels, such as the design illustrated in the Pellet Storage Guidelines. It is an indictment of the UK’s biomass equipment industry that very few pellet stores in the UK are so equipped. The Guidelines have been available for years that advise that this feature should be included.
The Guidelines have historically differentiated between off-the-shelf and bespoke stores in this regard. They suggest that the requirement for an access hatch applies only to bespoke stores. That is an inexplicable error. The risk is the same whether the store is off-the-shelf or bespoke. If anything, the inclusion of a suitable access hatch should be easier for off-the-shelf units, as they can be mass-produced to a standard design, and they are manufactured by organisations who should not claim ignorance as an excuse.
One partial exception could be for fabric silos. Some fabric-silo manufacturers include large zipped flaps for access. But these can only be opened when the store is almost empty. It is impossible to close them if they are opened with a significant weight of material in the store. It is difficult to think of a practical way that a fabric silo could be equipped with an access hatch that could be opened easily at all fill levels.
However, some manufacturers of fabric silos include a porthole for viewing inside. Viewing ports in most stores are ineffective, as there is no light in the store, so typically all that can be seen is a reflection. This is usually compounded by a layer of dust on the inside (the port is often made of perspex, which becomes charged during a delivery and attracts the airborne dust). They are also often located at a level where they are obstructed by pellets until the store is nearly empty. However, fabric silos are typically translucent and therefore allow some light into the store. And being flexible, it is possible to shake the area of the viewing port to loosen a coating of dust. A viewing port near the top of the store might be an acceptable alternative to an access hatch for this purpose for a fabric silo (although a zipped hatch should still be incorporated for other purposes, such as cleaning).
For all other types of store, a proper (i.e. easy-opening at all levels) access hatch is probably eminently practical to install if it is built (and costed) into the design, and a viewing port will not be a satisfactory alternative for the reasons explained above. Sadly, proper access hatches are rarely encountered in British pellet stores.
The UKPC should agree a common warning to all pellet users, which each distributor will send to their customers, notifying them that their store should be equipped with a proper access hatch that accords with the Storage Guidelines (with the possible exception mentioned above). They will be asked to confirm that their store has such an access hatch or will be retro-fitted with one prior to their next delivery, and notified that suppliers will abort their deliveries if they find that the store is not properly equipped. If they are tempted to find a supplier who will work round this requirement, it should be clear that both the supplier and the customer will be liable in the event of any harm occurring, and the supplier will be expelled from the UKPC if identified.
The driver must stand by the back of the truck during a delivery. If there is no line of sight from where the driver will stand to the connectors, it is possible for the connectors to detach themselves during a delivery without the driver knowing. Besides the mess and waste, the pipe may wave in a whiptail pattern that may be dangerous to people in the area, both from contact with the pipe and through the impact of pellets sprayed in their direction.
Where line of sight is not possible, the customer may provide a spotter to stand at a point where both the driver and the connectors are visible, to warn if this occurs.
It is common enough for pellet-delivery drivers to experience back problems requiring medical attention that this should be a concern for the industry. The flexible delivery pipes are heavy and unwieldy. When they are being manhandled into position, they can at least be supported in a reasonably upright posture.
The greater risk of injury arises when the permanent connectors are above an acceptable level. If they are above shoulder height but within reach, the driver will be tempted to try to attach them above his head. The combination of an upwards stretching posture with a heavy, resistant load (i.e. thick rubber wanting to spring straight) and the leverage required to make a secure connection with a Storz or Camlock connector, creates an excessive risk of damage to the driver’s back.
If the connectors are higher still (or indeed if they are above shoulder height and the driver recognises the risk to their back and refuses to stretch), a platform will be required to reach the connectors safely. This is often missing, and the customer will try to improvise something, such as bales of straw or hay. Improvised solutions are not a suitably safe platform.
Neither is a ladder a safe way to reach the connectors. It is impossible to maintain three points of contact on the ladder whilst attaching the connectors, and the leverage required to make the connections may threaten the stability of the ladder.
If the connectors are not at a suitable height from the ground, a proper platform is required, with fall-prevention barriers and a stable, high-friction surface. The access to the platform should be safe for someone carrying a heavy pipe. That would normally preclude a ladder, but a ladder could be acceptable if an assistant is provided to pass the pipe up to the operator on the platform.
It is common for connectors to be in the range 1.8 – 2.4 metres above the ground, because they are a simple straight, horizontal length of pipe into the top of the store, and that is a common height for pellet stores. The problem could easily be avoided with a 90° sweeping bend and a length of vertical pipe to bring the connectors down to a comfortable level (1.2 – 1.5 metres above the floor is ideal). This is often omitted to save a modest amount of cost.
In general, it is normally more sensible to bring the connectors down to a safe level from the floor than to install a platform to provide access to connectors at a higher level.
There is also a risk of injury (not to mention a risk that delivery will be impossible) if the connectors are too low and facing downwards. Delivery pipes can only be bent in very wide radius arcs. The lower a downward-facing connector, the narrower the arc that is needed to make the connection. It requires considerable force to try to bend the pipes in a narrower arc. The driver will be bent over, applying force in one direction to bend the pipe, whilst applying forces in other directions to make the connections. Injury is likely to ensue.
Outwards-facing connectors may safely be positioned anywhere from close to ground level (allowing clearance for making the connections) to shoulder height. But outwards-facing connectors have quality implications, because of the risk that condensation will pool in a horizontal section of pipe.
Downwards-facing connectors are better, but if so, they should be positioned between 1.2 and 1.5 metres above the ground (or the platform) to avoid the problems described above.
There is little virtue in connectors at an angle between vertical and horizontal. The cost of providing the extra bend is not justified by safety or quality benefits.
In the boiler manuals that we have seen, the majority of manufacturers instruct that the boiler should be turned off before the fuel is delivered. We requested importers and installers to inform us if their makes of boiler needed to be turned off, but got a limited response, the “ostrich” being the dominant position in the biomass equipment world. Of the limited responses, again the majority confirmed that the boilers should be turned off.
We understand that one reason for this is the risk of gas-back or burn-back if a negative pressure is generated in the store due to active venting. Our attention was drawn to this when we experienced a case of burn-back into the fuel-transport system to a boiler, which was blamed by the installer on exactly this factor. This is therefore a material safety issue, as this presents risks of carbon monoxide poisoning, asphyxiation, explosion and fire.
Different makes of boiler instruct different lead times between the boiler being turned off and the system being ready for a fuel delivery.
Fuel suppliers cannot be responsible for turning off the boiler. In many cases, they do not have access to the boiler. They will certainly not be trained in the operating techniques for all types of boiler that they may encounter. And if the manufacturer recommends a significant lead time between turning off and delivering the fuel, the fuel supplier cannot be expected to sit around waiting for the boiler to cool down, even assuming that the other obstacles were overcome.
It must be the responsibility of the owner/operator of the boiler to turn it off in advance of the truck’s arrival. Ignorance is not an excuse: not for the owner/operator to claim that they didn’t realise that it needed to be turned off, and not for the fuel supplier to claim that they didn’t know whether it was turned off. The former has a responsibility to ensure safe operation by following the instructions in the boiler manual. The latter has a responsibility to ensure the safety of their employees and customers by refusing to deliver unless it is known either that the boiler is turned off, or that the boiler does not need to be turned off according to the manufacturer or installer.
Forever Fuels advised other members of the UKPC of this issue two years ago, and offered to the UKPC a chit that customers could print out, sign and leave for drivers if they will not be present at the time of the delivery. The chit confirms that one of the above two conditions (off, or doesn’t need to be off) applies. Drivers should collect this chit and attach it to their delivery paperwork, to record that the delivery has been made safely. If there is no chit, drivers should abort the delivery.
For those with a boiler that does not need to be turned off, it should be acceptable for a customer to confirm this in writing to each fuel supplier that they use. The supplier would record this on the customer’s account details, and on the delivery note for each delivery, so the driver knows that no chit is required.
In practice, few of Forever Fuels’ competitors have implemented this system, as confirmed by a show of hands at the recent UKPC Conference. That makes it almost impossible to enforce, because customers will simply switch to a supplier that is ignoring their duty of care if a prudent supplier attempts to enforce this condition.
After two years of doing nothing, it is essential that the UKPC act to require all members to implement this system, to counteract the current race to the bottom. It cannot be addressed by voluntary action, as two years’ experience has shown that too many players default in this prisoners’ dilemma.
The UK version of the ENplus Handbook stipulates that a store should be cleaned whichever is the sooner of every other year or every fifth delivery. It is not specific about how a store should be cleaned. In particular, it should be clear that all perched dust must be removed, to address the explosion risk.
We hear of companies offering manual clean-outs (e.g. a man with a shovel and a vacuum cleaner), and have seen the odd example. Typically, an operative enters the silo to clean it out. In the pictures we saw, the operative did not have the proper PPE. If their employer was that lax, it begs the question of whether they had suitable CO detection equipment, an ATEX-compliant vacuum cleaner, and whether they were qualified in confined-spaces operation.
The confined spaces regulations dictate that this is a two-person job, with the second person stationed outside the confined space to raise the alert if there is a problem inside the store. A risk assessment should have identified a safe method of extraction if the operator inside the store is incapacitated. It is doubtful whether companies who can’t even supply the appropriate PPE are complying with requirements like these.
There should be lock-off systems on the boiler and any ancillary equipment (most significantly, any moving parts in the store such as a sweeping arm) to ensure that the equipment remains off the whole time that someone is operating inside the store.
The Storage Guidelines also include a design for a sticker that warns of the various hazards that may be encountered. The sticker should be placed in a visible location near to the access hatch (visible when the hatch is open and closed). Most boiler manufacturers provide one of these stickers with the manuals for their equipment. Yet the sticker is often not visible at many sites.
The ironic, saving grace is that many (but not all) of the hazards relate to entry into the store, and most stores are not designed to allow practical entry. However, this creates significant risks (as explained above) to set against the avoided risks of entry. Pellet stores unfortunately cannot be a black box in which the internal operations are hidden and irrelevant to users. They must be properly equipped for access, and users must therefore be properly educated and warned about the risks and safe operating techniques.
Earthing of the permanent pipes and the ability to earth the fuel-supplier’s equipment are two of the few safety measures that (in our experience) are honoured more in the observance than the breach. The rare cases of unearthed permanent piping (e.g. occasional use of plastic piping) should be eliminated.
The debate over whether pressure relief panels should be incorporated into pellet stores has concluded with the victory of the camp that opposed them. They pointed out that such panels were ineffective to release the explosive force in only one direction unless the store was constructed to withstand much greater forces than was common. This would add dramatically to the weight and cost of the store, and render many installations impractical. There was also a question of the space into which the panels should release the pressure. The panels should be facing a long empty space. In most indoor installations, this would not be available.
Pressure relief panels are still sometimes found on large, external, cylindrical silos (animal-feed-style). They may be set on a hair-trigger pressure that can be triggered by sudden differentials in the delivery pressure. They are normally inaccessible, requiring a cherry-picker to access for repairs. The parts may not be easily available, so the blown panel may not be replaced for several days. Often positioned on the top of the silo, they provide (once blown) a point of ingress for rain, which can create disastrous consequences for the contents of the silo. The points in the previous paragraph about the structural integrity of the silo in the event of a dust explosion are particularly applicable to the geometry and construction of this type of silo. On balance, the harm from these pressure-relief panels probably exceeds any benefit.
One of the most common safety hazards that our drivers encounter is an “obstacle course” between their parking place and the connectors. They are often expected to negotiate walls, fences, hedges, steep banks, etc.
Flexible pipes are difficult enough objects to carry on firm, level ground. A clear route with no slip or trip hazards must be provided between the truck’s parking space and the connectors.
Conversely, operators must carry and use trip-hazard warning-signs wherever the delivery pipes cross public rights of way (e.g. pavements).
Trucks are sometimes expected to park on the pavement in urban environments. This creates a hazard for people with disabilities using the pavement. A proper parking space off the pavement must be provided for the truck. We have ended up in dispute with one customer who we refused to deliver to, because the only way to deliver to his location on a one-way street was to park on the pavement and yet still partially block the road (e.g. to larger vehicles such as fire engines, particularly if other vehicles were also parked in the road). Sadly, the customer has used the fact that other fuel suppliers have been willing to ignore this hazard as grounds to attack us.
Hazards that we have experienced on the delivery-pipe route include attack by guard dog, and a garden so liberally strewn with dog faeces that it was impossible to lay the pipes down without covering them in excrement. The driver cannot avoid contact with the faeces, with the associated health risks, when he packs the pipes away. Customers should provide secure and sanitary access to their connectors.
Suction is required for the majority of pellet stores. In order to achieve the benefit expected from that suction (avoiding pressurisation of the store, and some dust removal), the suction fan should have a higher nominal flow rate than the blower. That requires a very substantial suction fan. Proper suction fans are heavy pieces of equipment. There is typically restricted access to the storage compartment in which they are carried. The access to the storage compartment may force the driver to lift the heavy fan in a bending position. This posture creates a material risk of a back injury.
Manufacturers of pellet delivery vehicles should provide a suitable method for drivers to lift the suction fan out of and into the storage compartment without straining. We have been in discussion with Feldbinder on this subject for some time, but to my knowledge, it has not been resolved yet.
An inadequate, lightweight fan with an insufficient flow-rate, though common, is not a solution to this problem. Pressurisation of the silo creates its own risks, in terms of damage to the containment and escape of dust into the surrounding area, where it may create a fire, explosion or health risk. In the worst case, if the structural integrity of the store is damaged, it may collapse, spilling the contents over whoever is in the immediate vicinity (although, to be fair, the main factors in occurrences like this are more often poor design and the horizontal forces from the pellets).
It is not uncommon to find standard light fittings in bespoke pellet stores. All electrical fittings inside a pellet store should be ATEX rated for at least Zone 22. A risk assessment should be conducted to assess the appropriate zoning for the installation.
In March 2013, we decided to reduce the size of our pallets from 1 tonne (of product, i.e. probably around 1030kg allowing for the pallet and film) to 875 kg. A principal reason was that we were concerned about the stability of the 1-tonne pallet. This left us at a significant disadvantage, because the fixed costs amount to around one-quarter of the cost of the pallet, so this left us with a materially higher cost per unit than competitors who continued to supply 1-tonne pallets. One thing we learnt quickly is that safety will not be driven by customer demand!
Barber has a driver off on long-term sick, potentially unable to return to work, as a consequence of this. The firm’s insurer has put aside £295,000 to deal with the personal injury action under way.
• “There is increasing concern among hauliers, legal professionals and networks about the inherent danger of delivering heavy pallets to far-from-ideal locations, often to customers oblivious to that risk”.
• The proportion of deliveries to home addresses, where conditions are often far from ideal and customers have high expectations and little understanding of the challenges and responsibilities, had increased significantly, to around 20% of the total.
• Driver injuries as a result of heavy pallets were increasing.
• The weight limit commonly applied in Europe for tail-lift deliveries was 500kg.
• 750kg was widely believed to be an appropriate limit in the UK.
• The HSE would have to be involved in setting new rules if they were to be made to stick, but the HSE was not rising to the needs of the industry.
• A customer had been killed in 2013 when a tail-lift delivery went wrong. The pallet did not “breach the maximum load capabilities of the tail lift”, but there is often “confusion over distribution of loads on tail lifts” and “lowering of the weight for tail lifts to 750kg may act as a useful cushion for operators and drivers to avoid leaving them on the edge of failure if they get load distribution wrong”.
The Association of Pallet Networks welcomed the move too and told CM it was working with the HSE on a sector-wide code of practice.
In September 2015, the Fortec network decided to join Palletline in implementing a 750kg limit from 1 October 2015. A third network (Pallex) indicated privately to us that they expected to implement the 750kg limit around spring 2016, and expected that the whole pallet haulage industry would be going the same way.
We switched our production to 750kg pallets in October 2015, in recognition that this was a justified safety measure (“you don’t compete on safety”, as someone said at the UKPC Conference), and in anticipation that the rule would be adopted across the board before too long. We had significant stock of 875kg pallets, so we offered both products through the winter of 2015/16, with a view to exhausting the 875kg stock by spring 2016 and switching exclusively to 750kg pallets.
Although work on a code of practice was already under way in March 2015 between the industry and the HSE, nothing materialised. In the absence of regulatory constraints to ensure a level playing field, in January 2016, the Palletways network confirmed that it would be placing commerciality ahead of safety. Although the reporting on Palletline’s decision indicated that the majority of networks agreed with them in principle, most networks took the same approach as Palletways in practice. Pallex did not join Palletline and Fortec in applying this limit in spring 2016, as they had indicated they would.
Early in 2016, in the absence of any news of progress on the issue, we contacted the HSE to find out what action was being taken to ensure a level playing field for safety. After two weeks of silence, not knowing whether the enquiry had been received, let alone whether it was being addressed, I wrote to their Chief Executive to bring the issue to his attention.
As I understand, RHA members expressed concerns regarding pallet weights during single driver deliveries using a tail lift. As a result the RHA sought to establish a working group which would develop guidance in this area which included a recommendation for a maximum pallet weight. HSE agreed to be part of the working group. RHA have contacted other stakeholders and are currently reviewing whether this work can be included as part of other work re: deliveries which is already underway.
The description is as though the efforts were at an early stage, although the HSE was said in the report a year earlier to already have been cooperating with the APN on a code of practice, and the effort was in response to a death 18 months before that (and in fact, there had been others before that of which the HSE must have been aware).
In November 2016, a pallet delivery driver was crushed to death by a pallet falling off a tail-lift at a location close to our head office. Learning of this in the local papers, I was prompted to have another go at pressing for action. I hoped people might see the seriousness of the lack of action.
As part of that effort, I brought this issue to the attention of the UKPC, with a proposal that the industry should implement its own weight limit, even if the HSE and RHA were dragging their feet on proper regulation. Some members of the UKPC board were opposed, and the proposal was not adopted.
• the HSE, RHA, APN and other industry and regulatory bodies were close to issuing new rules to clarify what was appropriate.
Indeed, communications with the HSE made it clear that they had made no meaningful progress on the working group established to develop a code of practice, and did not intend to force the issue. In fact, the working group did not appear to have met for the previous two years. And the HSE took the view that any tightening of the rules would only happen by consensus of all the stakeholders, including some groups who had a very peripheral interest, such as the British Retail Consortium. The HSE and the RHA would commit only to further discussions in response to pressure from us.
Without any prospect of a level playing field, we resigned ourselves that nothing could be done for the foreseeable future, and that we would therefore have to raise our pallet weight to be more competitive, in an industry that was relaxed about the safety implications of this issue. Not wanting to abandon safety concerns completely, we compromised on 875kg to still be more stable than the 1-tonne pallets but more competitive than the 750kg pallets.
In June 2017, our haulier (part of the Pallex network) notified us that the rules were about to be changed, and a 750kg limit would be introduced. Once again, this has failed to materialise, and most of the networks continue to deliver 1-tonne pallets.
I am disturbed by the widespread apathy on this issue. Anyone who has spoken to pallet delivery drivers, and more reputable operators, knows that this is an issue of great concern to them, and that risks and minor incidents are more frequent than the major incidents that receive some brief attention before the issue is swept under the carpet again. No excuse will be justifiable if someone is killed or injured by a 1-tonne pallet of wood pellets. This is a known issue over which the stakeholders have prevaricated for years, for no better reason than a small commercial advantage. It will not do to respond to a future incident by saying that we will now look at the measures to prevent it happening again, as though it was something that had not been considered until that point. The industry is consciously choosing to put people at risk, and must take the consequences should this choice result in serious harm.
The HSE provides guidance about lifting heights and weights. See “Manual Handling at Work” (http://www.hse.gov.uk/pubns/indg143.pdf) Figure 1, p.8. For most bag-fed pellet boilers, it will be necessary to lift above “elbow height” in order to pour the pellets into the hopper. “Shoulder height” should be adequate in most cases (if the hopper is higher than shoulder height, the user cannot inspect inside to see the fill level). Assuming the user is sensible enough to lift the bags close to the body, which enables heavier weights to be lifted safely, the guidance recommends a maximum of 20 kg for men and 13 kg for women.
It is impossible for vendors to know whether a man or woman will be filling the hopper. They should not sell a product that risks injury to half the population. That suggests that bags should be no bigger than 13 kg.
Unfortunately, it is common to see 15 kg bags offered, and occasionally even bigger sizes. The UKPC should at the least recommend that its members should draw customers’ attention to the guidance and weight limits, and it should consider an advisory maximum bag-size of 13 kg.
15 kg bags are also often offered for bedding. The nature of bedding is that it will normally be spread on the ground and will not normally need to be lifted to shoulder height. There is a reasonable case that 15 kg bags are not a H&S hazard where the pellets are used for bedding, rather than for energy.
If 15 kg bags are available for bedding, customers may choose to use them for energy as well (if they ignore the tax incentives). So long as they have been advised on the safe lifting weights, and recommended the appropriate product for their use, that is up to them. The fact that some may choose to use 15 kg bags for energy does not undermine the importance of advising customers of the safety implications of that choice.

matches: UKPC UKPC UKPC UKPC UKPC UKPC UKPC UKPC UKPC


In a decision dated September 5, 2018, the U.S. Court of Appeals for the Eleventh Circuit held that the due process rights of the defendant tobacco manufacturers were not violated by the district court’s application of collateral estoppel based on a jury’s findings in a previous class action against the defendants. See Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342 (11th Cir. 2018). Searcy was an action by the daughter of a cigarette smoker against tobacco companies for negligence, strict liability, concealment, and conspiracy to conceal arising from the death of her mother. The plaintiff alleged that her mother’s illnesses were caused by her addiction to cigarettes manufactured by the defendants. Following trial, the district court entered judgment in favor of the plaintiff for $1 million in compensatory damages and $1.67 million in punitive damages.
The United States Court of Appeals for the Eighth Circuit recently held that evidence of other incidents involving unintended acceleration of the defendant automobile manufacturer’s vehicles was admissible in a products liability action brought by family members of persons killed in an unintended acceleration event. See Adams v. Toyota Motor Corp., 867 F.3d 903 (8th Cir. 2017).
The driver of a 1996 Toyota Camry alleged that he was unable to stop his vehicle after exiting an interstate highway, despite attempts to apply the brakes. While traveling at approximately 75 miles per hour, his vehicle collided with a car stopped at a red light. There were numerous fatalities and other severe injuries from the incident.
New York's highest court recently addressed the issue of whether an automobile manufacturer could be held strictly liable for a mechanic's malignant mesothelioma allegedly caused by the mechanic's exposure to asbestos while replacing asbestos-containing brakes, clutches, and engine parts in the manufacturer's automobiles. See Finerty v. Abex Corp., 2016 N.Y. slip op. 03411, 2016 WL 1735804 (N.Y. May 3, 2016). The plaintiff claimed that he was exposed to asbestos during the 1970s and 1980s while working on engine parts in tractors and passenger vehicles manufactured by the defendant, Ford Motor Company. The plaintiff was later diagnosed with peritoneal mesothelioma. The plaintiff sued Ford and others alleging strict products liability under theories of defective design and failure to warn.
The New York Court of Appeals concluded that Ford could not be held liable under the plaintiff's theories. At the threshold, the court noted that a manufacturer of defective products which places those products into the stream of commerce may be held strictly liable for injuries caused by its products, since it is the manufacturer alone who (a) can fairly be said to know and to understand when a product is suitably designed and safely made for its intended purpose, and (b) has the practical opportunity to produce safe products. The court observed that product sellers are subject to strict liability with respect to allegedly defective products because they may be said to have assumed a special responsibility to the public, which has come to expect them to stand behind their products.
The Supreme Court of South Carolina recently addressed the issue of who is a product "user" for purposes of holding the manufacturer liable for injuries under the theory of strict liability. See Lawing v. Univar, USA, Inc., No. 2013-002464, 2015 WL 7756860 (S.C. Dec. 2, 2015) (not yet released for publication). The plaintiff in Lawing was a maintenance mechanic in a factory that refined metals. The plaintiff was injured when some bags of sodium bromate, an oxidizer, caught fire when the plaintiff and other workers were using oxyacetylene torches near the bags. The plaintiff alleged that the manufacturer of the sodium bromate was strictly liable for failing to warn users of the dangers posed by the product. The manufacturer argued that it could not be held strictly liable to the plaintiff, because the plaintiff was not a "user" of the product.
The South Carolina Supreme Court, as a matter of first impression, held that the plaintiff was a "user" of the product, even though he did not actually handle the bags of sodium bromate. The court noted that South Carolina's strict liability statute, S.C. Code Ann. § 15-73-10, has adopted the Official Comments to section 402A of the Restatement (Second) of Torts, from which the statute was derived. Official Comment l to section 402A provides that a "user" includes those who are utilizing a product for purposes of doing work upon it. The court rejected as overbroad the court of appeals' definition of a "user" as anyone who could foreseeably come into contact with the dangerous nature of a product, in that such a definition would allow a mere bystander to recover in strict liability, a proposition that the South Carolina Supreme Court had previously rejected. Rather, according to the court, the determination of who constitutes a user requires a case-by-case analysis.
The Virginia Supreme Court recently addressed the issue of the admissibility of expert testimony in a products liability case and ruled such testimony inadmissible under the circumstances presented. See Hyundai Motor Co. v. Duncan, ___ Va. ___, 766 S.E.2d 893 (2015). In Duncan, a driver was severely injured when he lost control of his car and ultimately struck a tree. Although the vehicle was equipped with a side airbag system, the airbag did not deploy. The circuit court entered judgment on a jury verdict for the plaintiff guardian/conservator.


text:
1. Light Rail Transit v. Venus Jr.
of the Board of Immigration Appeals.
Before NIEMEYER, KING, and AGEE, Circuit Judges.
the opinion, in which Judge King and Judge Agee joined.
Acting Assistant Attorney General, Civil Division, Carl H.
Adjustment and Central American Relief Act ("NACARA").
to him, in violation of his due process rights.
the BIAs application of the modified categorical approach.
retroactive. Accordingly, we deny his petitions for review.
protected status based on an ongoing civil war in El Salvador.
this conviction is a two-page document that served as a warrant for his arrest and recorded the disposition of the charge.
was sentenced to one years imprisonment, suspended.
or paroled . . . is inadmissible").
from removal, this time under 203 of NACARA, Pub. L.
INA, is ineligible for its discretionary relief. Id.
assault and battery, his conviction did not constitute an "aggravated felony." At that time, the term "aggravated felony"
assault and battery was one year. See 8 U.S.C.
322(a), Pub. L. No. 104-208, 110 Stat. 3009, 3009-627, 3009629 (1996) (codified at 8 U.S.C. 1101(a)(43)(F) (2006)).
[IIRIRA], regardless of when the conviction occurred."
IIRIRA 321(c) (emphasis added); see also id. 322(c).
punishable by imprisonment for at least five years.
like you would take your child by the arm across the street."
there were no injuries. I did not do anything violent at all."
ruling, Mondragn filed his second petition for review.
Both petitions for review are now before us.
would not have precluded him from cancellation of removal."
what the law is and to conform their conduct accordingly."
Like the St. Cyr respondent, at the time Mr. Mondragn entered his guilty plea, it would not have rendered him ineligible for relief from deportation.
reliance on the lawprinciples that serve as a bedrock of the United States judicial system and foundational precepts of the rule of law.
States illegally and is therefore removable. See 8 U.S.C.
"shall" be paroled if certain conditions are satisfied.
class of aliens ineligible for this relief"); Huicochea-Gomez v.
(1981) (quoting Leis v. Flynt, 439 U.S. 438, 444 n.5 (1979)).
rational basis for doing so. See, e.g., Gen. Motors Corp. v.
233, 235-36 (6th Cir. 1996) (same).
Lopez-Elias v. Reno, 209 F.3d 788, 793 n.12 (5th Cir. 2000).
Congress leaves the issue of retroactivity unresolved.
to withdraw that discretion was not retroactively applicable.
the power to enact laws with retrospective effect").
Here, we do not face the situation presented in St. Cyr.
in the face of this unambiguous provision.
the course of that conviction).
delay and protraction of federal sentencing process."
similar limitation in habeas proceedings challenging a sentencing enhancement. See Daniels v. United States, 532 U.S.
apply Custis to the immigration context. See, e.g., Drakes v.
1330 (11th Cir. 2005) (same).
prior conviction under the Custis line of cases applies here.
statute, we reject his Sixth Amendment challenge.
application of the revised definition of "aggravated felony"
a modified categorical approach, which limited its consideration to the record of conviction.
to present evidence on his own behalf. See 8 U.S.C.
We begin with an understanding of the statutory context.
from removal rests on the alien seeking the relief. 8 U.S.C.
for special rule cancellation of removal, the applicant . . .
imprisonment of at least one year. See 8 U.S.C.
capable of causing physical pain or injury to another person,"
conviction whether the conviction was for a crime of violence.
insufficient to meet an aliens burden of demonstrating eligibility for cancellation of removal. See Salem, 647 F.3d at 116.
presented only an inconclusive record of conviction, his petition for discretionary relief should likewise fail.
always been taught to respect people older than me.
pulled him away from my car door so I could get in.
him, there were no injuries.
turns on the fact of conviction and the elements of the crime.
enhance a sentence based on a prior conviction. See Taylor v.
did something similar. It gave effectineligibility for discretionary reliefto convictions that fell within the same category, "violent crimes." See NACARA 203; 8 C.F.R.
fact of conviction and the elements of the crime.
U.S. at 601. The plain language of the "aggravated felony"
of a factual approach" that would go behind the conviction.
unreliable and time-consuming wastes of judicial resources.
United States v. Spence, 661 F.3d 194, 198 (4th Cir. 2011).
correct in applying it here.
relief, not the conduct of conviction.
587 F.3d 219, 223 (4th Cir. 2009)).
what are known as Shepard documents. See Shepard v.
and therefore did not fall within the class of evidence protected by 8 U.S.C. 1229a(b)(4).
Supreme Courts decision in Nijhawan v. Holder, 557 U.S.
a crime of violence, the focus remains on the fact of conviction and the elements of the crime.
afforded by NACARA. The burden rests on him, and unfortunately, he was unable to meet it.
Notice: Alaska Native claims selection: NIMA Corp.

matches: v. v. v. v. v. v. v. v. v. v. v.


Repealed by 1951 c 139 § 69; and repealed by 1953 c 232 § 5.
71.04.270 Deportation of aliens — Return of residents.
Repealed by 1959 c 28 § 72.98.040. Later enactment, see RCW 72.25.010.
71.04.280 Return of nonresidents — Reciprocity — Expense — Resident of this state defined.
Repealed by 1959 c 28 § 72.98.040. Later enactment, see RCW 72.25.020.
71.04.290 Assistance — Payment of expenses.
Repealed by 1959 c 28 § 72.98.040. Later enactment, see RCW 72.25.030.
71.04.300 Bringing committed person into state without permission — Penalty.
Repealed by 1959 c 28 § 72.98.040. Later enactment, see RCW 72.25.040.