NEPA is powerless in sanctioning for fish kills

NEPA’s power to sanction for fish kills

In recent times, there have been several discharges of pollutants into water bodies such as rivers and the sea with the result being fish kills of varying magnitudes.

The latest was the discharge last year (2023) into the Rio Cobre in which approximately 50 fish were seen floating on the river over the Christmas season. It was discovered that the pollution was due to a malfunctioning National Water Commission (NWC) sewage treatment plant at Charlemont in St. Catherine.

Also, on December 15, the National Environment and Planning Agency’s (NEPA) reported that there was an oil spill in the Bog Walk area for which it identified the source of the leak as a malfunctioning boiler from the old Jamaica Beverage Plant, owned and operated by Trade Winds Citrus Limited.

NEPA also served German Ship Repair Jamaica Limited, the operators of the Kingston Dry Dock in Harbour Head, a notice to suspend their environmental permit under section 11 (1) of the NRCA Act.

Section 11 subsection 1 says in part

“…the Authority may by notice addressed to the person to whom a permit was issued revoke or suspend the permit if it is satisfied that there is a breach of any term or condition subject to which the permit was granted, or if such person fails or neglects to submit to the Authority…any documents, information or assessment required thereunder.”

The Authority has since reinstated the permit following a meeting with its management. NRCA/NEPA says it is satisfied that GSRJ is taking the necessary actions required to comply with the conditions of the Notice of Suspension of Permit served on 15 December, 2023 in order to remedy the breaches identified.

Then there was the fish kill in the Rio Cobre in St. Catherine in August 2022. The spill of caustic effluent by Windalco, caused pollution and a massive fish kill leading to widespread public outrage. Windalco eventually forfeited its 115-million-dollar performance bond.

An environmental performance bond is one of the methods used for accountability. Environmental performance bonds and deposit refund systems are economic instruments that aim to shift responsibility for controlling pollution, monitoring, and enforcement to individual producers and consumers who are charged in advance for the potential damage.

Therefore, in effect, Windalco was fined 115 million Jamaican dollars and would have had to recharge that bond.

Some of the areas for which performance bonds can be used are for compensatory damages, bills for cleaning up oil spills and contaminated land, for collection and treatment of hazardous waste, for reclamation of abandoned land after mining, for reforestation after logging, and for man-made "natural" disasters such as fish kills.

But what are the other powers of the National Environment and Planning Agency (NEPA) and the Natural Resources Conservation Authority (NRCA) to try and prevent such occurrences. The NRCA Act is one of the pieces of legislation governing the National Environment and Planning Agency (NEPA).

According to the NRCA Act in Section 12 subsection 1

……no person shall

(a) discharge on or cause or permit the entry into waters, on the ground or into the ground, of any sewage or trade effluent or any poisonous, noxious or polluting matter; or

(b) construct, reconstruct or alter any works for the discharge of any sewage or trade effluent or any poisonous, noxious or polluting matter,

Except under and in accordance with a licence for the purpose granted by the Authority under this Act.

Section 3 outlines the penalties for the infringement. It says…

Any person who contravenes the provisions of subsection (1) shall be guilty of an offence and shall be liable on summary conviction before a Resident Magistrate [Judge of the Parish Court] to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment, and---

• where a person defaults in the payment of a fine imposed under this subsection, he shall be liable for a term not exceeding one year
• where the offence is a continuing offence, he shall be liable to a further fine not exceeding three thousand dollars for each day on which the offence continues after conviction.”

Among the functions of the Authority are:--

“…to take such steps as are necessary for the effective management of the physical environment of Jamaica so as to ensure the conservation, protection and proper use of its natural resources.”

develop, implement and monitor plans and programmes relating to the management of the environment and the conservation and protection of natural resources;

 construct and maintain buildings and other facilities for public recreational purposes;

The National Environment and Planning Agency (NEPA) is an Executive Agency of the Ministry of Economic Growth and Job Creation. The Agency became operational on April 1, 2001 as a Executive Agency under the Executive Agencies Act.

It was founded to carry out the technical (functional) and administrative mandate of three statutory bodies, the Natural Resources Conservation Authority (NRCA), the Town and Country Planning Authority (TCPA) and the Land Development and Utilisation Commission (LDUC).

NEPA is the lead government agency with the mandate for environmental protection, natural resource management, land use and spatial planning in Jamaica.