Sections 106 to 109 of the Environment Act 2000 deal with the urgent end of enforcement, and with the right to have any of it reviewed.
Section 106 — the Emergency Direction
(1) The Director, or an authorised officer, may orally issue an Emergency Direction where he is of the opinion that urgent action is required to prevent or minimise serious or material environmental harm.
(2) It takes effect for a period of 72 hours and, unless earlier confirmed by an Environment Protection Order, it immediately lapses after that period.
(3) An oral Direction shall be reduced to writing and recorded in the Register within 72 hours.
Because it exists for emergencies. An officer at a spill site can direct action immediately, by word, without preparing a document first. The safeguards come afterwards: the Direction must be written up and entered in the Register within 72 hours, and it lapses at 72 hours unless the Director converts it into an Environment Protection Order, which must be in writing and meet the section 101(2) requirements.
Note that an authorised officer may issue one — unlike a Protection Order or a Clean-up Order, which are the Director’s.
A corporation — a fine not exceeding K100,000.00.
A person other than a corporation — a fine not exceeding K50,000.00, or imprisonment for up to two years, or both.
Default penalty: K10,000.00.
An Emergency Direction is also one of the six sources of lawfulness in section 10(1) — harm caused in doing what a Direction permits is not unlawful. And under section 113 a permit holder is not liable to a penalty where he proves he complied with the requirements of an Emergency Direction relating to the acts charged.
Section 108 — notices requiring information
any documents, reports, books, plans, maps or other records (including monitoring records) relating to:
(a) information required to be kept under this Act or the conditions of a permit;
(b) the carrying out of any activity likely to cause material or serious environmental harm;
(c) the presence on, or release of, any contaminant from or at any premises or site; or
(d) the emission of noise.
(a) be in the form fixed in the Operational Procedures; (b) state to whom it is issued; (c) state what information is required; (d) state the time within which it is to be provided; (e) state why it is required; and (f) state the procedure by which review of or appeal from the notice may be made.
Paragraph (f) is notable: the notice must tell the recipient how to challenge it. Under section 108(3) a notice may be given to any person the Director believes on reasonable grounds has knowledge of a matter, or has possession or control of a document — so it reaches consultants, contractors and former employees, not only the operator.
Failing to comply within a reasonable time: a corporation up to K100,000.00; another person up to K50,000.00 or two years’ imprisonment, or both. Default penalty K10,000.00.
Providing false or misleading information in response is a separate offence under section 114, with the same maxima.
Section 109 — the right of review
(1) A person served with (a) an Environment Protection Order; (b) a Clean-up Order; or (c) a notice to provide information under section 108, may apply for review of the decision under section 68 and shall have the right to appeal to the National Court as referred to in section 68(4).
(2) Where an application for review is made, the applicant may apply to the Court for a stay of the operation of the decision under section 69.
So the enforcement instruments are expressly brought within the section 68 review scheme: application to the Environment Council within 21 days, the Director standing aside, and an appeal to the National Court on a question of law within 28 days.
Section 109(1) names Protection Orders, Clean-up Orders and section 108 notices. An Emergency Direction is not included — which follows from its nature: it lasts 72 hours and then lapses unless confirmed by a Protection Order, and the Protection Order is reviewable.
The practical response to an Emergency Direction is to comply, record what was done and why, and address any Protection Order that follows.
Sections 111 to 113 — the defences
It is a defence to any offence against the Act, a mandatory provision of an Environment Policy, or the Regulation, for the person charged to prove that:
(a) the action occurred in an emergency to prevent danger to life or limb — other than an emergency arising from the person’s own negligent act or omission; and
(b) as soon as reasonably practicable afterwards, the person notified the Director in writing of the particulars and the reasons.
The defence is available only if the person notifies the Director in writing of the intention to rely on it within seven days of service of the proceedings (s 111(2)).
Section 111(2) — seven days from service of the proceedings to notify an intention to rely on the general defence.
Section 112 — a person relying on the section 10(2) defence (that the act was lawful and the general environmental duty was complied with) must give written notice to the Director at least 14 days before the hearing, and a failure means the defence shall not be permitted at trial.
Both deadlines are absolute. Diary them the day proceedings are served.
A permit holder is not liable to a penalty for any act causing or likely to cause environmental harm where he proves that he complied with:
(a) the conditions attaching to the permit authorising the acts charged; or
(b) the requirements of any Environment Protection Order, Clean-up Order or Emergency Direction relating to those acts.
Sections 116 and 117 — continuing offences, and intention
Where an offence is committed by reason of a continuing act or omission, the person is liable to the penalty for the offence and an additional penalty for each day the act or omission continues — the amount provided for that offence, or, where none is provided, up to one-fifth of the maximum penalty for each day.
Subject to any express provision to the contrary, it is not necessary to prove any intention or other state of mind to establish an offence against this Act.
Section 110 separately makes it an offence to interfere with monitoring equipment used under the Act or by a permit holder — a fine up to K50,000.00 or two years’ imprisonment, or both. Section 115 sets a general penalty of up to K50,000.00 where no specific penalty is provided.
Practical steps
- Comply with an Emergency Direction at once, and record precisely what was directed, by whom, and when.
- Ask for the written version — it must be reduced to writing and entered in the Register within 72 hours.
- Watch the 72-hour lapse; if it is not confirmed by a Protection Order, it ends.
- Answer a section 108 notice within the stated time, and never with information you know to be false or misleading.
- Read paragraph (f) of the notice — it must state how to seek review.
- Diary 21 days for a section 68 review of an Order or a section 108 notice.
- If prosecuted, diary the defence notices — 7 days under section 111(2), 14 days before the hearing under section 112.
- Keep the compliance evidence; sections 10(2) and 113 both require the defendant to prove compliance.
Sources
- Environment Act 2000 — ss 7, 10, 68, 69, 101–117, 131; Part IX
- Conservation and Environment Protection Authority Act 2014
- Constitution — ss 37, 41, 59
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.