IN 2013 the Government of Jamaica revolutionised,

to a certain extent at

least, the environmental management of this country by passing the long-awaited Natural Resources Conservation (Wastewater and Sludge) Regulations (“the 2013 Regulations”).

These regulations put into place a more refined permit and licensing system for the regulation of the discharge and use of wastewater and sludge. It does so by directly applying the principle of the ‘polluter pays’ and by carrying out Jamaica’s international obligations under the Protocol Concerning Pollution from Land-Based Sources and Activities under the Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region.

Waste is generated in the normal course of human daily living, such as using the bathroom or washing dishes, or in producing goods and services. It can take the form of liquid waste (eg, dunder), solid waste (eg, scrap metal) and gaseous waste (eg, air emissions from a smoke stack). The rendering of these forms of matter, with as little environmental impact as possible, is the general thrust behind most environmental management/pollution prevention initiatives.

Indeed, it takes up quite a bit of the case files of the country’s main environmental regulator, the National Environment and Planning Agency (NEPA). Statistics from NEPA show that for the year 2012-2013, 82 enforcement actions were taken against various operators and developers of wastewater systems. This number increased to 101 for the year 2013-2014. Clearly, NEPA is taking this issue seriously and there is a special focus on correcting the systemic problems faced by malfunctioning and, in some cases, non-existent wastewater and sewerage systems.

The 2013 Regulations firmly entrench the standards to which developers are to be held and force the developer, for the first time, to maintain a permit and licence to continue the operation of any plant. Further, it provides for a direct and measurable polluter-pays principle with a relatively easy-to-follow formula for calculating the cost to the developer in discharging untreated or improperly treated sewage or trade effluent into the environment.

Under the old regime, the maximum fine remains $50,000, and an additional $3,000 for each continuing day that the discharge occurs. Importantly, however, the 2013 Regulations now provide for recovery, through the Resident Magistrate’s Court, of the fees imposed and calculated using the formula in the Regulations irrespective of the amount of those fees.

Another new feature of the 2013 regulations is the establishment of a legal basis for the issuance of a ‘warning notice’ to an offender. This soft form of enforcement action is favoured by NEPA as a way of formally beginning the enforcement process.

Importantly, the 2013 Regulations allow for a formal regime for the suspension of certain standards and the waiver of fees if the Natural Resources Conservation Authority demands a compliance plan (an environmental management document which provides the roadmap for bringing a non-compliant wastewater system into compliance with environmental standards) which the developer is in compliance with.

Unfortunately, many industries did not prepare themselves properly for this change in the environmental management landscape despite relatively widespread public consultation and were caught flat-footed.

In view of the objectives of the 2013 Regulations, it is likely that NEPA will increase the actions taken against non-compliant sewage and wastewater plants. To avoid the financial consequences and possible enforcement action, which may include prosecution in the criminal courts, developers and operators should seek legal advice to ensure that they are and remain compliant with the regulations.

Robert Collie is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Property Department. Robert may be contacted

via robert.collie@mfg.com.jm

or you can visit the

firm’s website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.