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PART IX - COMPLIANCE AND ENFORCEMENT

Inspectors

60. (1) The Board may designate in writing any employee of the Authority, Public Officer or official of a local authority, either by name or ex-officio, as an inspector for the purpose of this Act.

(2) The Board may, with the consent of the Attorney General, designate an inspector as a senior inspector.

Powers of inspectors

61. (1) An inspector, including a senior inspector, may, for the purposes of this Act, without a warrant or court order, at any reasonable time and with any reasonable assistance:

a. enter into or upon any building, vehicle, aircraft, vessel, land, waters, or other place, other than place actually used as a dwelling;

b. stop any vehicle or vessel that the inspector reasonably believes-

i. being operated in contravention of this Act;

ii. discharging or has discharged a contaminant in contravention of this Act; or

iii. licensed or is required to be licensed under this Act;

c. take samples;

d. take photographs and videos;

e. record or copy any information by any method;

f. require the production of any document, record or other thing that is required to be kept under this Act, and any other document that is related to the purposes of the inspection and remove it for the purpose of making copies or extracts, provided that nothing shall be removed without providing a receipt;

g. inspect, seize and take copies of any documents which may constitute evidence of the commission of an offence under this Act;

h. make reasonable inquiries of any person, orally or in writing;

i. seize any vessel, vehicle, aircraft or equipment that the inspector has reasonable grounds to believe has been used in the commission of an offence under this Act; and

j. remove any waste or other substance or thing deposited or discharged in contravention of this Act.

(3) An inspector acting under subsection (1) shall, upon demand of an occupant, show the inspector's identification card and badge and shall explain the purpose of the inspection.

(4) Any person who is asked by an inspector taking action under subsection (1) to do any thing that is necessary in order to enable the inspector to carry out that action, shall immediately comply with the request.

Powers of senior inspectors

62. (1) Without prejudice to the right, under this Act, the regulations or any other law, of any other person to do so, a senior inspector may lay charges for contravening of this Act or the regulations.

(2) A senior inspector may prosecute any charge laid under this Act or the regulations, or may obtain the assistance of any other person to do so.

(3) A senior inspector may apply to a magistrate for a warrant to enter and search premises accompanied by a member of the police.

(4) A senior inspector who applies for a warrant shall, after making reasonable enquiries, disclose in the application:

a. details of every other application which the inspector knows to have been made within the previous 20 days in respect of the same place or vehicle;

b. the offence or offences alleged in each previous application; and

c. the result of every such application.

Prevention Order

63. (1) Where the Director has reasonable grounds to believe that a person is or will be conducting an activity, or is or will be in possession or control of a substance or thing that may result in an adverse effect, the Director may serve a prevention order on that person.

(2) A prevention order may require that person:

a. to create a written emergency response plan that is adequate to reduce or eliminate the risk;

b. to provide a copy of that plan to the Director;

c. to have any necessary equipment, facilities and trained personnel available to deal with the risk;

d. upon an identified event or set of circumstances occurring, to implement the plan; and

e. to take whatever other measures may be necessary to ensure that any emergency can be effectively responded to.

(3) Any person on whom a prevention order is served shall comply with the requirements of the order by the date or dates specified in the order and if no date is specified, the person must comply with the order immediately.

(4) A person who contravenes subsection(3) commits an offence and shall, on conviction, be liable to a fine not exceeding E50,000.00 or to imprisonment to a term not exceeding one year and where the person failed to comply with a requirement specified in the prevention order within the time specified, to a further fine not exceeding E500.00 for every day or part of a day after the date specified in the order during which the offence continued.

(5) Any person on whom a prevention order has been served may apply to the Minister for a review in accordance with section 82.

Protection Order

64. (1) If the Director has reasonable grounds to believe that an activity is resulting in or is likely to result in, an adverse effect, the Director may serve a Protection Order on:

a. the owner, manager or person in control of the premises, vehicle, vessel, aircraft or equipment where the activity is occurring or will occur;

b. any person who caused or permitted the activity.

(2) A Protection Order may require the person on whom it is served to take any measures that will assist in avoiding, remedying or mitigating the adverse effects and without limiting the generality of the foregoing, to take any measures:

a. to stop the activity that is resulting is likely to result in, an adverse effect;

b. to control the activity;

c. to assess the actual or anticipated extent of the adverse effect;

d. to remedy any adverse effects caused by the activity; and/or

e. to prevent a recurrence of the activity or the adverse effect.

(3) Any person on whom a Protection Order is served shall comply with the requirements of the order by the date or dates specified in the order and if no date is specified, the person must comply with the order immediately.

(4) A person who contravenes subsection (3) commits an offence and shall, on conviction, be liable to imprisonment to a term not exceeding one year or to a fine not exceeding E50,000.00 and where the person failed to comply with a requirement specified in the protection order within the time specified, to a further fine not exceeding E500.00 for every day or part of a day after the date specified in the order during which the offence continued.

(5) Any person on whom a Protection Order has been served may apply to the Minister for a review in accordance with section 82.

Emergency Protection Order

65. (1) Any Inspector who observes the discharge of a contaminant into the environment in an amount, concentration or manner that constitutes a risk to human health or property, or that causes or has the potential to cause adverse effects, may serve an emergency protection order on:

a. the owner, manager or person in control of the premises, vehicle, vessel, aircraft or equipment from which the discharge was or is being made;

b. any person who, at the time the discharge occurred, was the owner, manager or person in control of the premises, vehicle, vessel, aircraft or equipment from which the discharge was made; or

c. any person who caused or permitted the discharge.

(3) An emergency protection order may require the person on whom it is served to take any measures that will assist in reducing or eliminating the risk or harm and without limiting the generality of the foregoing, to take any measures-

a. to stop the discharge;

b. to control the discharge;

c. to clean up or remove the contaminant or other substance from any place; and/or

d. to prevent a recurrence of the discharge.

(4) Any person on whom an emergency protection order is served shall comply with the requirements of the order by the date or dates specified in the order and if no date is specified, the person must comply with the order immediately.

(5) A person who contravenes sub-section (4) commits an offence and shall, on conviction, be liable to imprisonment to a term not exceeding one year or to a fine not exceeding E50,000.00 and if the person failed to comply with a requirement specified in the order within the time specified, to a further fine not exceeding E500.00 for every day or part of a day after the date specified in the order during which the offence continued.

(6) Any person on whom an emergency protection order has been served may apply to the Minister for a review in accordance with section 82.

Compliance Order

66. (1) Where the Director has reason to believe that any condition of a licence issued under this Act has been breached, the Director may serve a Compliance Order on the licence holder requiring that person to remedy the breach within a reasonable period stipulated in the order.

(2) The Compliance Order may:

a. suspend the licence with immediate effect if the Director considers that this is necessary to prevent or mitigate an imminent risk of significant adverse effects to the environment or to human health occurring; and

b. require the licence holder to take specified measures to prevent or abate any adverse effect.

(3) Where the licence holder fails to comply with the Compliance Order the Authority may:

a. take the necessary steps to remedy the breach and recover the cost from the licence holder in accordance with section 67;

b. alter the conditions of the licence; and/or

c. revoke the licence.

(4) Any person on whom a Compliance Order is served shall comply with the requirements of the order by the date or dates specified in the order and if no date is specified, the person must comply with the order immediately.

(5) A person who contravenes subsection (4) commits an offence and shall, on conviction, be liable, to imprisonment to a term not exceeding one year or to a fine not exceeding E50,000.00 and if the person failed to comply with a requirement specified in the compliance order within the time specified, to a further fine not exceeding E500.00 for every day or part of a day after the date specified in the order during which the offence continued.

(6) Any person on whom a Compliance Order has been served may apply to the Minister for a review in accordance with section 82.

Cost Orders

67. (1) Where any person fails to comply with a requirement in an order, licence or approval issued under this Act, the Director may cause the required measures to be taken and may issue a Cost Order requiring that person to reimburse the Authority for the cost of taking the measures.

(2) Any person to whom a cost order has been issued may, within 20 days of the order being served, apply for a review of the order in accordance with section 82.

(3) If no application for the review of a Cost Order is made within the period mentioned in subsection (2), the Cost Order may be enforced as if it were an order of court.

Offences

68. It is an offence for any person:

a. to intentionally to obstruct an inspector in the exercise or performance of powers or duties under this Act;

b. to intentionally or negligently to make a statement that is false or misleading in a material particular, where the statement is made-

i. in response to a requirement to furnish information under this Act; or

ii. for the purpose of obtaining the granting or variation of a licence, permit or consent under this Act;

c. to intentionally to make a false entry in any record or document required to be kept or completed under this Act;

d. to falsely pretend to be an inspector;

e. to contravene this Act or to breach the conditions of a licence, approval or order issued or made under this Act.

Liability of managers of bodies corporate

69. (1) Where a body corporate commits an offence under this Act, every director or partner and any other person concerned in the management of the body corporate commits the offence unless that person proves that:

a. the offence was committed without his or her consent or connivance; and

b. the person exercised all such diligence to prevent the commission of the offence as ought to have been exercised by that person having regard to the nature of his or her functions in that capacity and to all the circumstances.

(2) Every director or partner and any other person concerned in the management of, a body corporate to which a licence or order has been issued under this Act shall take all reasonable steps to prevent the body corporate from contravening or failing to comply with the licence or order.

(3) A person who contravenes sub-section (2) commits an offence and shall, on conviction, be liable to imprisonment to a term not exceeding one year or to a fine not exceeding E50,000.00 or to both.

(4) Nothing in this section detracts from the liability or responsibility attached to any person under any other Act or law.

Defences

70. (1) Except as otherwise specified in this Act, in any prosecution under this Act it is a defence for the person charged to prove that they took all reasonable precautions and exercised all such diligence to prevent the commission of the offence as ought to have been exercised by that person having regard to all the circumstance.

(2) It is not a defence to a charge under this Act that the defendant was rendered unable to comply by an act or omission of the defendant that would have constituted a contravention of this Act.

Continuing offences and penalties

71. (1) Except as otherwise specified in this Act or the regulations, every person who is convicted of an offence that is a continuing one, shall in addition to the penalty prescribed for the offence, be liable upon conviction to a further fine for each day or part of a day on which the offence continues, which:

a. in the case of an individual, shall not exceed E100.00 per day on a first conviction, and not more than E500.00 per day on each subsequent conviction; and

b. in the case of a legal person, shall not exceed E5,000.00 per day on a first conviction, and not more than E10,000.00 per day on each subsequent conviction.

(2) Every natural person convicted of a contravention of section 34 or section 41(1) is liable upon conviction, for each day or part of a day on which the offence occurs or continues, to a fine of not exceeding E500.00 on a first conviction, and not less than E100.00, and not more than E20,000.00, or to a term of imprisonment of not more than two years, or to both, on each subsequent conviction.

(3) Every body corporate convicted of a contravention of section 34 or section 41(1) is liable upon conviction, for each day or part of a day on which the offence occurs or continues, to a fine of not exceeding E10,000.00 on a first conviction, and not less than E1,000.00 and not exceeding E50,000.00, and to winding up, or to both, on each subsequent conviction.

(4) A person who is found guilty of an offence under this Act for which no other penalty is provided shall, on conviction, be liable to imprisonment to a term not exceeding six months or to a fine not exceeding E25,000.00 or to both.

Deprivation of monetary benefits

72. Any court that convicts a person of an offence under this Act shall summarily and without pleadings inquire into the monetary benefit acquired or saved by the person as a result of the commission of the offence, and may, in addition to any other penalty imposed, impose a fine in an amount equal to court's estimation of that monetary benefit, despite any maximum penalty elsewhere provided.

Costs of investigations and prosecution

73. Upon the application of the prosecutor, any court that convicts a person of an offence under this Act shall summarily and without pleadings inquire into the costs of investigating and prosecuting the offence, and may in addition to any other penalty imposed, order the person convicted to pay an amount equal to that cost to the person(s) who incurred the costs, despite any maximum penalty elsewhere provided.

Suspension and revocation of licences

74. Any court that convicts a person of an offence under this Act may suspend, revoke or amend any licence issued to that person under this Act.

Protection, repair and costs orders

75. Any court that convicts a person of an offence under this Act may, in addition to any other penalty imposed:

a. order the person to take and pay for measures to avoid, remedy or mitigate any adverse effects arising from or likely to arise from the offence; and

b. if the person fails to comply with an order under paragraph (a), may issue an order allowing the Director to take those measures, and requiring the person to pay the Director's costs of so doing.

Fixed penalties

76. (1) The Minister may by regulation prescribe those offences against this Act in respect of which alleged offenders may pay a fine prescribed in the regulation instead of being tried by a court for the offence, provided that the maximum fine which may be prescribed for any one offence shall not exceed:

a. E100.00 if the alleged offender is required to pay the fine immediately in order to avoid prosecution;

b. E200.00 if the alleged offender is a natural person; or

c. E5,000.00 if the alleged offender is legal person.

(2) An inspector who has reason to believe that a person has committed an offence prescribed under subsection (1) may, at or about the time that the alleged offence is believed to have been committed, give an Infringement Notice to the alleged offender.

(3) An Infringement Notice shall be in the prescribed form and shall in every case:

a. contain a description of the alleged offence;

b. state that if the alleged offender does not wish to be charged and tried by a court, the amount of money specified in the notice as being the modified penalty for the offence may be paid either-

i. to the authorised Public Officer identified in the notice within 28 days after the giving of the notice; or

ii. in the case of an offence in respect of which an on the spot fine is prescribed, to the Inspector.

(4) An authorised Public Officer may, in a particular case, extend the period of 28 days for payment of the modified penalty and may do so whether or not that period has elapsed.

(5) If the modified penalty specified in the Infringement Notice is paid within 28 days or such further time as is allowed and the notice is not withdrawn, the bringing of proceedings and the imposition of penalties are prevented to the same extent as they would be if the alleged offender had been convicted by a court of, and punished for, the alleged offences.

(6) Any person who receives payment of a modified penalty, including an on the spot fine, shall give an official receipt for the money to the person who makes the payment.

(7) The Director may, whether or not the modified penalty has been paid, withdraw the Infringement Notice by sending to the alleged offender a notice of withdrawal in the prescribed form.

(8) If an Infringement Notice is withdrawn after payment of the modified penalty, the amount shall be refunded.

(9) Payment of a modified penalty is not to be regarded as an admission for the purpose of any civil or criminal proceedings.

(10) The Director may appoint any Public Officer other than an inspector to be an authorised person for the purposes of this section.

Presumptions

77. (1) For the purposes of this Act, an adverse effect is deemed to have been caused by an act or omission if it is possible that the effect could have resulted from the act or omission, if it was reasonably foreseeable that the effect could have resulted from the act or omission, and if there was no other plausible cause for the effect.

(2) For the purposes of this Act, any act or thing done or omitted to be done by a director, officer, employee or agent of a body corporate in the course of exercising their powers, functions or duties is deemed to be an act or thing done or omitted to be done by the body corporate.

Documentary evidence

78. In any proceedings under this Act or the regulations, an official document that purports to be signed by the Minister, the Director or an Environment Officer or Inspector shall be received in evidence as proof, in the absence of evidence to the contrary, of the facts stated in the document without proof of the signature or position of the person appearing to have signed the document.

Civil damages

79. (1) The Minister may, without prejudice to any other legal action, institute an action for damages caused to the environment.

(2) In any such action, damages shall be payable to the Environment Fund.

(3) Where damages cannot be quantified precisely, the competent civil court may liquidate such damages.

Financial assurance

80. (1) The Minister may make regulations:

a. defining and classifying guarantees, bonds, letters of credit and other types of financial assurance;

b. requiring from any person to whom a licence, order or approval is issued or has been issued the provision of financial assurance;

c. enabling the Authority or its delegate to use funds from financial assurance mechanisms to carry out actions specified in any licence or order, and to take such steps as are necessary to carry out those actions, and defining the circumstance in which the Authority may do so;

d. regulating the holding, transfer, reduction and release of financial assurance;

e. prescribing penalties and allowing the revocation of licences for the failure to provide financial assurance when required; and

f. otherwise allowing for and regulating the use of financial assurance for the purpose of protecting the environment.

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