CLEAN UP AND RESTORATION PRESENTATION BY: TAN SRI AHMAD MAAROP FEDERAL COURT JUDGE 1 Outline • MAJOR LEGISLATIONS • CLEAN UP AND RESTORATION • CASES • STATISTICS2 • CONCLUSION

2 MAJOR LEGISLATIONS

ENVIRONMENT QUALITY ACT 1974

NATIONAL FORESTRY ACT 1984

International Trade in Endangered Species Act 2008

3 SENTENCING AND COMPENSATION IN ENVIRONMENTAL CASES

1) REMEDIES AVAILABLE IN CIVIL CASES: - Damages - Injunction

2) CRIMINAL SANCTION FOR ENVIRONMENTAL OFFENCES: (Conventional sanctions) - Monetary fines [sec.18(2) of EQA] - Jail Sentences [sec.22(3) of EQA] - Death Penalty [sec.121 of Water Industry Services Act 2006]

4 - Fines, damages or even death penalty cannot remedy ALTERNATIVE the harm caused to the ORDERS: environment. - Damaged environment CLEAN UP needs very long period of & time for restoration and rehabilitation. RESTORATION - The fines collected solely, can never meet the clean-up and restoration costs.

5 SPECIFIC SANCTION

Power to Prohibition require occupier Recovery of to install, costs and Order operate, repair, expenses etc

6 Prohibition Order vEQA 1974 introduce specific measures aimed at restoring the environment after environmental harm: Prohibition Order. vSec. 31A of EQA 1974 the Director General (DG) may issue a prohibition order to the owner of any industrial plant to prevent its continued operation and release of environmentally hazardous substance, pollutants or wastes either absolutely or conditionally, or for such period he may direct, or until requirements to make remedy as directed by him have been complied with. vThe penalty: is a fine not exceeding RM50,000, imprisonment for a period not exceeding two years, or both. 7 Power to require occupier to install, operate, repair, etc. [Sec.31 of EQA] Where any environmentally hazardous substances or pollutants or wastes are being emitted from any vehicle, ship, premises or aircraft, the DG may by notice in writing require the owner or occupier of the vehicle, ship or premises, or aircraft, to:

(a) install and operate any control equipment; (b) repair, alter or replace any equipment; (c) erect or increase the height of any chimney; (d) measure, analyse, record and report any environmentally hazardous substances; (e) conduct a study on any environmental risk; (f) install, maintain and operate monitoring programme at the expense of the owner; (g) adopt any measure to reduce, mitigate, disperse, remove, eliminate, destroy or dispose of pollution

8 Recovery of costs and expenses [sec.47 of EQA] qAimed at cleaning up the polluted environment and also to recover the costs of the cleaning qSec.47 of the EQA provides that where any segment of the Environment is polluted by any person in contravention of this Act, the DG may take such action as is necessary (includes clean up) the pollution and may recover all costs incurred. qSection 47(2) empowers the DG to issue a certificate that it is of the DG’s opinion that the person named in the certificate is responsible for such pollution, which shall be prima facie for the purposes of any proceedings

under this section 9 PP v. COCOLIN INDUSTRIES SDN BHD [2008] 8 CLJ 116 Ø The respondent was charged under s. 31(1) of the EQA 1974 - punishable under s. 31(3) of the same.

Ø A notice dated 11.10.2001 was issued under s. 31 of EQA 1974 to instruct the respondent to install and operate controlled equipment to reduce water pollution from the premise within three months from said letter. Ø the respondent had not installed controlled equipment to reduce the water pollution. Ø The Sessions Court acquitted and discharged the respondent at the close of the prosecution's case. The prosecution then appealed against the decision of the Sessions Judge Ø The set aside the judgment of the Sessions Court and allowed the appeal. 10 v. Synenviro Sendirian Berhad Bharu High Court Suit No. MTJB.21NCVC-8-04/2014 • Synenviro Sdn Bhd ('Synenviro') was charged with accepting scheduled waste, in the absence of any written approval from the DG of Environmental, an offence under s.34B(1)(b) of the EQA 1974 and punishable under s. 34B(4) of the same Act. • The sessions court judge imposed a fine of RM50,000 on Synenviro Import Unit. • The prosecution appealed against the decision. Synenviro cross appealed against the conviction and sentence. According to the prosecution, the fine of RM5, 000 was not adequate. On 27.6.2011, the High Court dismissed the appeal by the prosecution. However, the High Court allowed the cross appeal by Synenviro and Synenviro was acquitted and discharged

11 Government of Malaysia v. Synenviro Sendirian Berhad • Later the Prosecution appealed to the Court of Appeal against the decision of the High Court. On 26.6.2012, the Court of Appeal allowed the prosecution appeal and affirmed the decision of the Session Court. • Subsequently, Department of Environmental filed an action claiming for the sum incurred (the sum of RM1,624,285.02) in carrying out all the work in disposing the waste in the container at Pasir Gudang Customs Import Unit (under Section 47(2) of the EQA 1974) . • On 27.5.2015 a settlement agreement was recorded before the High Court. Synenviro agree to pay the sum of RM1, 624,285.02 as full and final settlement.

12 Statistic: Prohibition Orders issued under Sec. 31A of EQA 1974 from January 2013 to November 2015 No Parties Type of Industries Date of Effective date of offences Prohibition Orders PTS Poultry Processing (Bp) Sdn. 1. Bhd. , Batu Pahat,Johor Foods 16/07/2014 15/08/2014 Project of Agriculture (202.343 2. hectare), in Gua Musang, Agriculture 17/02/2014 16/07/2014 . by Liquid Gold Sdn Bhd Mining Activities by Manganese 3. Milik Yakin in Gua Mining 10/04/2014 08/07/2014 Musang ,Kelantan PULAI MINING SDN. BHD. 4. Gua Musang, Kelantan Mining 20/08/2013 23/01/2014 Project of Agriculture in Gua 5. Musang, Kelantan by Tetuan Agriculture 22/08/2013 15/01/2014 Multi-System Sdn Bhd Proposed Integrated Shrimp 6. Aquaculture Park (iSHARP) in Shrimp Aquaculture 28/05/2013 15/07/2013 Setiu, Project of Agriculture in Gua 7. Musang, Kelantan by TJ Natural Agriculture 10/04/2013 13/05/2013 Agro Farm (M) Sdn Bhd 13 Statistic: Claims under section 47 of the EQA 1974 (marine pollution due to oil spill) No. Vessels Date of Location Incidents (in Sum incidents brief) claimed (RM) 1. MV S.A 17.2.2007 Tanjung Collision with 824,833.72 Helderberg, Piai, Johor MT Ocean Belgium Sapphire 2. MT 18.8.2009 Port Collision with 26,899.39 Formosaproduct Dickson MV Ostende Brick, Liberia Max 3. MV Xin Dong 8.8.2009 Pulau Lima, Grounded 626,236.77 Guan 3, China Kota Tinggi Vessel

4. MT Bunga 25.5.2010 Selat Johor Collision with 2,297,653.4 Kelana 3, MV Waily 2 Malaysia 5. MV Xin Yi 7.7.2010 Pulau Detained for 99,557.25 Lumut causing water pollution 6. MT Bunga Alpina 8.10.2012 Labuan A fire on board the tanker Still while loading pending14 methanol This image cannot currently be displayed.

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