The National Environment and Planning Agency (NEPA), while stating that it will abide by the decision of the Office of the Director of Public Prosecutions (ODPP) to drop its case against Wisynco Group Limited for supposed environmental breaches, is doggedly insisting that it “did the right thing in laying the charges” against the company.

This after the ODPP, in a second statement to the media on Thursday, detailed what led to its decision as a response to statements in the media by NEPA Chief Executive Officer Leonard Francis regarding collection of samples of water from the Rio Cobre in July 2023 when the Wisynco pipeline leakage was observed.

Chief prosecutor Paula Llewellyn, King’s Counsel, in reviewing the case file, which included the notes of evidence from an officer from NEPA who was the sole individual to give evidence in the matter in 2024 before her office took over in 2025, said, “The evidence given by the said officer in court was quite instructive and critical in our assessment of the material which shaped our stance in offering no further evidence.”

The ODPP then shared, verbatim, what it said was the relevant aspects of the evidence given by the officer, who holds a degree in marine biology and has also done a course in fresh water biology and pollution biology.

According to the DPP, during cross examination, “the officer gave critical evidence that, when reviewed by the ODPP along with the other material on file, saw us being obliged to offer no further evidence against Wisynco as we would not be able to mount a viable prosecution in the matter”.

In one particularly telling admission the officer, when asked whether it was fair to say they did not know the source of any of the observations made on the day in question or the source of what was found, said, “I do not know the source, correct”.

On Thursday, Francis, during a press conference held at NEPA’s Caledonia Avenue Office in the Corporate Area, said, “We do abide by the decision of the DPP because they are the ones that are actually handling the case, they are the ones that usually provide us with the guidance, and they are very experienced in what they are doing,”

He also said that furthermore, the witness admitted that no fish samples were taken, despite saying that there were dead fish observed in some sections of the river. In answer to a suggestion by the attorney conducting the cross examination that there was nothing in her evidence establishing that Wisynco discharged trade effluent in the Rio Cobre as alleged, the officer answered, “Correct.”

However, Francis insisted that NEPA had toed the line.

“So, let me say categorically again, based on what I saw in the news media, the entity did conduct three samples, the entity did follow international procedures in carrying out the investigations, and the entity did serve the necessary instruments and took the necessary court action. We believe that in the interest of the natural environment, in the interest of the people of Jamaica, that wherever we see breaches occurring, depending on the scale and the magnitude, there are different sets of action that can be taken and we will take them as guided by our enforcement, monitoring and compliance manual,” he said.

In a direct response to the ODPP’s declaration that the evidentiary threshold was not met by the investigations NEPA conducted, Francis stated, “We are confident that given the situation and given international best practices and case law, we did do what was necessary. If you think about it — the case itself and how it evolved — the reality is that we did see a broken pipe. We did see fluid from the pipe going into the river and Section 11 of the Wild Life Protection Act says as long as there is a polluting substance going into the river the charges can be laid”.

“…the reality could be that if they were not manufacturing at that time, they could have been washing out the plant and it would have been something else, but that is for a case in court and it is for further discussions. We were confident, based on what we saw and the other senses, that it was indeed trade effluent,” he said further.

“The reality is, as a responsible entity, if we understand the legislation and there is a broken pipe — and we know what the licence stated — what should be in that pipe and based on this one and other evidence we felt strongly that we should have served the warning notice and then, based on the evidence itself, a charge was laid,” Francis told journalists.

“The discharge does not have to cause a fish kill [the legislation] says as long as it flows within the area. The pipe came directly from Wisnyco,” the NEPA boss insisted.

Addressing the contention of the ODPP regarding the area of the river from which the samples were taken and the possibility that the discharge could have come from other entities located there, Francis said, “I will admit that the samples, where there were taken, there could have been interference because there are other plants along the river, but we are not depending on that evidence alone. We are saying there is a pipe and we know, based on the licence, what is supposed to be flowing in that pipe. We have seen the pipe with our own eyes that it is broken and the fluid is coming out of the pipe. Section 11 of the Wild Life Protection Act states that as long as you have caused industrial waste, trade effluent, sewage, noxious or other matter going into the area that’s sufficient reason for a charge”.

However, he said that to make the evidence 100 per cent foolproof it would have been useful if NEPA had got the data from the point where the broken pipe was seen, but that was impossible.

“What I can really say is, there is no way any of us could have gone directly under a pipe that is spewing out a liquid which we are uncertain of but which we have an 80 to 85 per cent probability that it is trade effluent. Go down an area which is very steep, very vegetated, that you have no way of coming back out if you went down there, that has the very strong possibility that there are crocodiles there. It might not be important, but the officers that were there were three females, they also had concerns because that area of Dyke Road is an area you have to be very careful in traversing. But there is no way we could have accessed that site without technology,” he said.

In once again deferring to the State proescutor’s decision he said, “The ODPP have been doing this all their lives so I have no doubt that they did it based on their experience, but my team felt that in the public interest and otherwise, we should have continued, but the DPP is the one handling the case and we have all confidence in the DPP. When we did call the company they did immediately what they had to do, but the reality is that we did serve an enforcement instrument and we did take them to court.”

“We did what was expected of us, the only thing we could be held for is if you are saying we should have reached down in a riverbed we couldn’t get out of, where you might have crocodiles, where a substance is coming down, if it catches you, you are in trouble if it is caustic or otherwise; there is nothing we could have done,” Francis insisted.

“We believe we did the right thing in doing the samples, we believe we did the right thing in telling the company there was a break there, we believe that we did the right thing in laying the charges,” he added.

In the meantime, NEPA said it will be making changes to ensure that a similar situation does not arise in the future.

“Going forward, what we have put on the table is, we are proposing for similar facilities that we need to do more hands-on research and more hands-on investigations within the companies themselves. We are saying, probably within a three-month span we need to test from within the facilities themselves — and not only effluent that goes through their sewage treatment plants. We are also proposing that we could have discussions with the stakeholders and the regulators in looking at the possibilities of administrative penalties once there are any substances being put in any river from whatever breakages or pipelines,” Francis said.

“As you all know, the Wildlife Protection Act and the NRCA Act have been amended to actually increase the penalties for any breaches as well, which is very useful. We are also putting on the table that for all investigations, that the Office of the DPP, in addition to being fully immersed with them, every step of the way our team and the ODPP’s team will work together reviewing the files to ensure that the incidents that have happened will never happen in the future,” he added.

“I must say that we are a learning entity, we apologise for any misconceptions that may have happened out there but we thought it very important to put the facts on the table,” the NEPA boss stated.