Environmental Protection (Amendment) Act, 2009 (No. 5 of 2009)

No. Environmental Protection No. 5 of2009 I assent, (SIR COLVILLEN. YOUNG) Governor -General 20th April, 2009. 41 AN ACT to amend the Environmental Protection Act, Chapter 328 of the Laws of Belize, Revised Edition 2000-2003, to provide for greater environmental control and managementofthe petroleum industry; to make improved provisions for the protection of the Belize Barrier Reef System; to establish an environmental management fund; to provide for Gut of-court settlement in appropriate cases; to provide for the issue ofviolation tiekets for pollution offences; and to provide for matters connected therewith or incidental thereto. (Gazetted 25th April, 2009.) BE 1TENACTED, by and with the advice and consent of the House ofRepresentatives and the Sell ate ofBelize and by the authority of the same, as follows: 1. This Act may be cited as the ENVIRONMENTAL PROTECTION (AMENDMENT) ACT, 2009. Short title. 42 Environmental Protection [No.5 CAP. 328 Amendment of section 2. and shall be read and construed as one with the Environmental Protection Act, which is hereinafter referred to as the principal Act. 2. Section 2 of the principal Act is hereby amended hy adding the following definitions in their proper alphabetical order. "Petroleum" means the crude oil removed from the earth and the oils derived from tar, sands, shale and coal; "petroleumoils" inclndes the following: (a) crnde oil, (b) liqnefied petroleum gas, (c) aviation gasoline, (d) gasoline-type jet fuel, (e) kerosene-type jet fuel, (f) motor spirit, ( g ) kerosenes, ( Iz) light virgin naphtha, (i) gas diesel oil, (j) light fuel oil, (k) medium fuel oil, (I) heavy fuel oil; "petroleum refinery" means any facility engaged in producinggasoline, kerosene, diesel and otherdistillate fuel oils, residual fuel oils, lubricants, or otherproducts throughdistillationofpetrolemnorreformingofunfinished petroleum derivatives; "petroleumrefmery complex" means afacility engaged in producing gasoline, kerosene, diesel and otherdistillate fuel oils, residual fuel oils, lubricants, or otherproducts through distillation ofpetroleum orthroughre-distillation, cracking, rearrangement or reforming of unfinished petroleumderivatives; "petroleumwater" means produced water and/or water contaminated with petroleum oils or hydrocarbons; No.5J Environmental Protection "produced water" means water originating from the natural oil reservoir that is separated from the oil and gas in the productionfacility; "refinery process unit" means any segment of the petroleum refinery in which a specific processing operation is conducted; 43 "process gas" means any gas generated by a petroleum refinery process unit,except fuel gas and process upset gas as defined in this section; "process upset gas" means any gas generated by a petroleum refinery process unit as a result ofstart-up, shutdown, upset or malfunction; "Belize Barrier ReefSystem" means allthatareabetween geographical coordinates UTM 412 384 E, 2009 873 Nand 361402 E, 1777501 N, in NAD 27 Zone 16, comprising ofcorals, coral reefs, atolls, islands, sea grass beds, mangroves and other associated critical habitats and their inhabitants; "BTEX"meansBenzene,toluene, ethylbenezene,xylene; "combustionplant" means any technical apparatus in which fuelsare oxidized inorderto usethe heat generated; "critical habitat" means a physical space with characteristics and/or features known to be necessary for the natural existence ofa given species or species and may exist independently or as part of a larger ecosystem; "critical load" means a quantitative estimate ofexposure to one or more pollntants, below which significant harmful effects on sensitive elements oftheenvironment do not occur according to current knowledge; 44 Environmental Protection [No.5 "CN codes" means Combined Nomenclature referring to customs tariffnumbers; "diesel fuels", i.e. gas oils falling within CN codes 271 0 0066 and used for self-propelling vehicles are excluded from this definition. Fuels innon-road mobilemachinery and agricultural tractors are also excluded from this definition; "environmental damage" means any injury, harm, break, scratch, ateration, spoil, impairment, mutilation or destructionto the natural environment that reduces or threatens its ability to maintainthe processes essential to life and/or which reduces its aesthetic appeal; "fuel gas" means any gas which is generated by a petroleum refinery process unit and which is combusted, includingany gaseous mixtureofnatural gas and fuel gas which is combusted; "gas oil"means: any petroleum derived liquid fuel falling within CN code 2710 00 67 to 2710 00 68, or any petroleum derived liquid fuel which, by reason ofits distillation limits, falls within the category ofmiddle distillates intended for use as fuel and ofwhich at least 85% by volume (including losses) distils at 350°C by the ASTM D86method; "heavy fuel oil" means: any petroleum derived liquid fuel falling within CN code 2710 00 71 to 2710 00 78, or any petroleum derived liquid fuel, otherthan gas oil as defined under this act, which, byreason of its distillation limits, falls within the category of No. 5/ Environmental Protection heavy oils intended for use as fuel andofwhich less than 65% byvolume(including losses) distils at 250°C by the ASTM D86 method. If the distillation cannotbe determined by the ASTM D86 method, the petroleum products is likewise categorized as heavy fuel oils; 45 "ASTM method" means the methods laid down by the American SocietyforTesting and Materials in the 1976 edition ofstandard definitions and specifications for petroleum and lubricating products; "significant coral formations" means any aggregate or group ofcorals that form part ofthe BelizeBarrierReef System. 3. Section 5 of the principal Act is hereby amended by adding immediately after subsection(6) the following new subsections: "(7) A designated officer may carry out periodic inspections of all establishments which manufacture, produce as by-products, import, export, store, sell, distribute or use any substances that are likely to have a significant impact on the environment, to ensure that the provisions ofthis Act or any regulations made thereunder are complied with. (8) A designated officer shall carry out such other inspectionsorinvestigationsas may be necessary to ensure that the provisions ofthis Act, or any regulationmade thereunder, are complied with, (9) A designated officer maytemporarily seize any plant, equipment, substances, boat, vehicle, or any other thing or item which he believes has been used in the commission of an offence against this Act or any regulations made thereunder. Amendment of section 5. 46 Environmental Protection [No.5 Amendment of section 8. Repeat nnd replacement of section 9. (10) Neither the Chief Environmental Officer, designated officer, nor any person acting under adirection given by the ChiefEnvironmental Officer or assisting the ChiefEnvironmental Officer, shall be personally liable for any loss or damage suffered by any person, directly or indirectly, in consequence ofanything done in good faith under this Act." 4. Section 8 ofthe principal Act is hereby amended by adding the following new subsection (4) immediately after subsection(3): "(4) Any person, installation, factory or plant that contravenes this section commits an offence and shall be liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment." 5. Section 9 of the principal Act is hereby repealed and replaced by the following: "ncstrtcuon 00 9.(1) No person, installation,factory or combustion the use of quullty plant shall, unless specificallypermitted by the of petroleum 0;". Department, combust any petroleum or petroleum oils withasulfurcontent ofmore than 2.00% by mass: Provided that if the air quality standards for sulfurdioxidelaiddowninanyrelevantlegislative provision are respected and the emissions do not contribute to critical loads being exceeded, the Department may authorise heavy fuel oils with a sulfur content ofbetween 1.00% and 3.00% by mass to be used. (2) Any person, installation, factory or combustion plant that contravenes this section commits an No.5J Environmental Protection offence and shall be liable on summary conviction to a fine of not less than twenty thousand dollars andnot exceedingfiftythousand dollars or to imprisonment for a term not exceeding two years, or to both such fine and imprisonment. 11 47 6. Section 10 ofthe principal Act is amended by adding immediatelyafter subsection (2) the following newsubsections» "(3) Any person, installation, factory or plant involved in the processing of petroleum, be it a petroleum refinery complex or a refineryprocess unit, shall be considered as handling ahazardous substance and shall be required to maintain the highest level of environmental health and safety standards. (4) All waste containing petroleum, petroleum oils or distillates shall be considered as hazardous wastes. (5) The operators ofany petroleum refinery, petroleum refinery complex, orrefineryprocess unit shall only be permitted to establish or operate iftheir refined products destined for local consumption has a sulfur content of2.00 % by mass or less. (6) The operators ofany petroleum refinery, petroleum refinery complex, or refinery process unit shall only be permitted to establish or operate iftheir refined products destined for local consumption has a BTEX content of0.5 mg/l or less. (7) Any person, installation, factory or plant involvedintheexploration,production, or processing ofpetroleum, be it a petroleum refinery complex or a refinery process unit, shall dispose of petroleum water by deep well injection subsequent to pretreat mentto prescribed national levels." Amendment of section 10. 48 Environmental Protection [No.5 Addition of new section IIA. Amendment of section 20. Repent and r-eplu cc mcnt of section 22. 7. The principal Act is amended by adding immediately after section 11, the following: "Rep ur-tl ng IIA. (l)A person who inadvertently or Requirements. accidentally causes anact ofpollution ofanyaspect ofthe environment shall without delay report such pollution to the Department and the police. (2) The police shall submit a report to the Department on any report received under subsection (l) and take reasonable steps to protectthe public. (3) Any person who fails to make a report required under this sectionshall be guilty ofan offence and liable on summary conviction to a fine ofnot less than five thousand dollars and not exceeding twenty five thousand dollars or imprisonment for aperiod not exceeding six months orboth. (4) Anyperson who is required to give a report under this section, in giving such a report, makes a statementwhich is false or misleading in any material particular is guilty of an offence and is liable on summary convictiontoa finenotlessthan five thousand dollars and not exceeding twenty-five thousand dollars or to imprisonment for a period not exceeding six months or both." 8. Section 20 ofthe principal Act is hereby amended by repealing snbsection (7) thereof and replacing the same by the following: "(7) A decision by the Department to approve an environmental impact assessment may be subject to the signingofan Environmental Compliance Plan, the paymentofan environmental monitoring fee, the posting of guarantees or performance bonds, and such otherconditions as may be reasonably required for environmental purposes." 9. Section 22 ofthe principal Act is repealed and replaced with the following: No.5] Environmental Protection 22. Everyperson who fails to carry out an environmental impact assessment or any conditions imposed by the Department or fails to execute its Environmental Compliance Plan as required under this Act or any regulation made thereunder, commits an offence and shall be liable on summary convictionto afine ofnot less than fifty thousand dollars and not exceedingone hundred thousand dollars or to imprisonment for a term not exceeding two years or to both such fine and imprisonment." 49 "Penalty for non· compttance with the EtA process. 10.Theprincipal Actis amendedbythe addition immediately after section 23 ofthe new section 23A as follows: "R"l"irem~l for- 23A. (1) Where the Department has lfmitedlevel d . dthatanroi . . envlrunmentnl etermme lataproject, programme or acuvity may study. nothave asignificant impact on the environment but may have some negative impact that need to be properly studied and assessed, the Department may require that a limited level environmental study be carried out by a suitably qualified person who shall submit such study to the Department for its approval. (2) Every person who fails to carry out a limited level environmental study or any conditions imposed by the Department or fails to execute its Environmental Compliance Plan as required under this Act or anyregnlations made thereunder, commits an offence and shall be liable on summary conviction to a fine ofnot less than twenty thousand dollars and not exceeding fifty thousand dollars or to imprison ment for a term not exceeding two years or to both suchfine andimprisonment." 11. Section 27 of the principal Act is amended by the addition immediately after suhsection (2) ofanew subsection (3) as follows: "(3) In the event ofa conviction, the court may award any amount not exceeding one-quarter ofthe Addition of new section 23A. Amendment of section 27. 50 Environmental Protection [No.5 Amendment or section 29. fine imposed for an environmental offence to the person who supplied such information that led to the conviction ofthe offender." 12. Section 29 ofthe principal Act is hereby amended as follows: (i) in subsection (1) (a), by substituting the words "negligently or carelessly" for the words "intentionally orrecklessly" occurringtherein; (ii) by repealing subsection (2) thereof; (iii) by addingthe followingnew subsections (2) to (6) immediately after subsection (1): "(2) Subject to subsection (3), every person who causes or permits any damage to critical habitats declared by the Department, or to any other part ofthe environment, commits an offence and is liable on summary conviction to afine ofnot less than fifty thousand dollars and not exceeding two hundred thousand dollars, or to imprisonment for a term not exceeding two years or to both such fine and imprisonment (3) Every personwho causes or permits any damage to the BelizeBarrierReefSystem or any significant coral formation commits an offence and shall be liable on summary convictionto afmeofnot less than five thousand dollars and not exceeding twenty five thousand dollars per square meter ofdamage. (4) Any person who causes or permits any damage in the manner specified under this section shall promptly report such damage to the Department. (5) Any person who fails to make a No.5J Environmental Protection report required underthis sectionshall he guilty ofan offence and shaIl be liable on summary convictionto afine ofnot less than five thousand dollars and not exceeding tenthousand dollars orto imprisonment for a period not exceeding one yearorto bothsuch fine and imprisonment. (6) Anyperson who is required to give a report under this section, makes, in giving such a report, a statement which is false or misleading in any materialparticular is guiltyof an offence and is liable onsummary conviction to a fine ofnot less than five thousand dollars andnot exceeding twenty five thousand dollars orto imprisonment for a period not exceeding two years or to hoth such fine and imprison. ment," 51 13. Section 330ftheprincipalAct is hereby amended by repealing suhsection (3) thereof. 14. Section 45(2) of the principal Act is amended hy adding immediately after paragraph (q) the following, and hy renumbering the existing paragraph (r) as paragraph (aa): "(r} the issuance ofpermits to construct and operate landfills; (5) the licensing ofstorage depots where containers can be deposited; (t) the licensing ofthe processing ofrecyclables; (II) the licensing of other solid waste processing facilities; (v) such measures as are necessary to ensure that activities in the maritime zone are so conducted as not to cause damage by pollution to the Amendment of section 33. Amendment of section 45. 52 Environmental Protection (No.5 naturalenvironment; (w) the control and prevention of pollution from vessels, crafts, and other engines used in the maritime zone; (x) the control and prevention ofpollution from installation devices used in the exploration or exploitation ofthe natural resources of the sea-bed and subsoil ofthe maritime zone; tv) the control and prevention ofpollution ofthe maritime environment from land-based sources, including rivers, estuaries, pipelines,and outfall structures; (z) the control and prevention ofpollution ofthe marineenvironmentarisingfromorinconnection with seabed activities and from artificial islands, installationsandstructuresin themaritime zone." Addition of new section 15. The principalAct is amended by inserting inunediately aftersection45, the following: "Consultation with the Department. 45A. Any person, body or agency having authority over any matter in respect of which the Departmenthas functions to perform pursuant to this Act shallnot, whetherprovisionallyorfinally, approve or determine such matter until the Department has been consulted and approval received thereon. 45B. This Act shall bind the State." 16. The principal Actis amended by inserting immediately after section 59 the following: Act to bind the Stille. Addition of new section 60. 60. Whenever the provisions ofthis Act or any Regulations made are in conflictwith or inconsistent No.5J "Act to prevail in case of conflict. Environmental Protection withthe provisions ofany otherAct, regulations, rules relatingto pollution, environmental irnpactassessment orthetreatmentofwaste, the provisions ofthis Act and the Regulations made hereunder shall prevail." 53 17. The principal Actis hereby amended by the addition immediately after Part X, ofParts XI, XII, XIII and XIV as follows: "PartXI Environmental Manaeement Fund 61. There shallbe establishedan Environmental Management Fund (in this Act hereinafterreferred to as "the Fund"). 62. The objects ofthe Fund shall be to assist the Department: Addition of Parts XI, XII, XIII and XIV. Environmental Management Fund. Object of the (a) to cover all costs associated with the response Fund. and clean-up ofoil spills and other chemicals spills; (b) to carry out programmes to prevent and reduce pollution; (c) to provide support for laboratory analysis of samplescollectedfor environmentalmonitoring; (d) to support its environmental monitoring and enforcement programs; (e) to promote environmental public awareness and research; (f) to encourage local environmental initiatives; (g) to publish reports and publications on the environment; 54 Environmental Protection [No.5 Management of Fund. (11) to promote, support and encourage activities relating to protection and management ofthe environment; and (i) toplanandimplementotherinitiativesimportant for the effective and efficientmanagement of our natural and environmental resources. 63.(1) The Fund shaIl be administered by a Board which shall consist of. (a) the ChiefExecutive Officer responsible for the Ministry of Environment who shall be the Chairman ofthe Board; (b) the Financial Secretary, or his nominee; (c) the ChiefEnvironmental Officer; (d) the ChiefExecutive Officerresponsible for the MinistryofEconomic Development; and (e) anon-governmental organizationnominatedby the Department. (2) The Board shaIl: (a) furnish to the Minister such information with respect to the discharge ofits functions as the Ministermayrequire; (b) regulate its meetings and proceedings in such manner as it thinks fit. (3) Meetings ofthe Board may be convened by the Chairman or by any two Board members. (4) The ChiefEnvironmental Officer shall be the Secretary ofthe Board. No.5J Environmental Protection 55 (5) The ChiefEnvironmental Officer shall submit an annual budget for the approval ofthe Board. (6) The moneys oftheFund shall not be offset against the Department's allocation approved by the Govemment. (7) The Board shall prepare a statement ofaccounts of the Fund in respect ofeach financial year. 64.(1) The Board shall keep proper accounts and other records in relation to its business and shall prepare annually a statementofaccounts being in aform whichshall conform to the best commercial and accounting standards. (2) The accounts ofthe Board shall be audited annually by an independent auditor appointed each year by the Board with the approval ofthe Minister. 65. Within six months afterthe end ofthe each financial year, the Board shall cause to be made and shall submit to the Minister: (a) a statement ofits accounts audited in accordance with section 64(2); and (b) a report dealing generally withthe proceedings and policies ofthe Board during that financial year. 66.( 1) The Board shall open and maintain at such bank, as may be approved by the Minister, an account for the Fund. (2) All money forming part ofthe Fundshall, as soon as practicable after it is received, be paid into the Fund. (3) No money shall be paid out ofthe account ofthe Fund except with any general or special directions ofthe Board. Accounts and audit. Annual report. Fund account. 56 Environmental Protection [No.5 Rules in respect of the Fund. Income of the Fund. (4) The account ofthe Fund may only be operated on by cheque or other negotiable instrument signed by amember ofthe Board who is authorized by the Board to sign cheques drawn on the account, and countersigned by any other member ofthe Board who is authorized to sign such cheques. (5) Moneys ofthe Fund shall be expended only to meet the objectives and purposes authorized under this Act. 67. The Board may with the approval ofthe Minister make such rules as itthinks fit for the purposes ofthe Fund. 68. The Fund shall consist of: (a) such sums received from the required one tenth ofone percent (1/10 ofl %) ofgross revenue from all petroleum production in Belize, contained in all production sharing agreements (PSAs) and as required by Regulation 15 ofthe PetroleumRegulations; s.r, 112/92. (b) such sums as may be received for the purposes of'the Fund byway ofvoluntary contributions ordonations; (c) SUChSunlS asare paidforfees, licenses, penalties or approvals under this Act or any Regulations made thereunder; (d) twenty percentum ofall revenues derived from the implementation ofsections 3 and 7 (f) ofthe Environmental Tax Act; CAP. 64:01. (e) such sums as may be received for the sale of Department's publications, or library fees etc; No.5J Environmental Protection (f) such sums as may be received from littering violation tickets issued outside city or town limits, and from any similarticketing system; (g) twenty per centum ofall revenues derived from the implementationofsection 21 (a) and (b) and section 33 ofthe Protected Areas Conservation Trust Act; (h} such sums asmaybe appropriatedby Parliament for the purposes ofthe Fund; and (i) any othermoney lawfullycontributed, donated or paid into the Fund from any other source. PartXII Out-of-CourtSettlemeuts 57 CAP. 218. 69.(1) Where an offence under this Act or any regulations made thereunder has been committed and it appears to the ChiefEnvironmental Officer that having regard to the nature of the evidence and all other circumstances, it would be reason able and expedient to make an out-of-court settlement, he may, after seeking legal advice and with the prior approval ofthe Minister, make a settlement in lieu ofcommencingor continuing court proceedings, and in every suchcase the amountto be paid under the settlement shall also include all reasonable expenses the Government may have incurred in the seizure, storage, maintenance orremoval ofany article seized in connection with the offence. (2) In any proceedings brought against a person in respect ofan alleged offence under this Act or any regulations made thereunder, it shall be a defence for such person to prove that he has already paid the agreed amount under an out-of court settlement in respect ofsuch offence. Out-or-court settlements. 58 Environmental Protection [No.5 Tickets. (3)The ChiefEnvironmental Officer shall submit to the ChiefExecutive Officer ofthe Ministryquarterly reports 0 f all offences in respect ofwhich out-of-court settlements were made under subsection (I). PartXIII Tickets 70. (l) The Ministermay make regulations forthe issuance of Violation Tickets for pollution offences and all matters connected therewith or incidental thereto, andwithout prejudice to the generality ofthe foregoing, suchregulations may provide for all or any ofthe followingmatters: (a) the form ofthe Violation Ticket; (b) persons by whom a Violation Ticket may be issued; (c) the place orplaces where the fine stated on the Violation Ticket may be paid; (d) the time for paying such fines; (e) the penalty for failure to pay such fine within the time specified; (f) the procedure forrequesting a court hearing by a person who has been issued with a Violation Ticket. (2) Where an act constitutes an offence bothforthe purpose of the regulations made under subsection (l) above and the Summary Jurisdiction (Littering Offences) (Violation Tickets) Regulations, the offender shallbe liable No.5J Environmental Protection 59 Sub. Legs. 2003 edn CAP, 98 Flnnnein l ussura nc e, Permit to operate lu udf'ills , to be charged and prosecuted only under one of the said regulations. PART XIV Financial Assurance, etc. 71. The Department may impose financial assurances, performance bonds or guarantees as a condition for the grant ofenvironmental clearance, licenses, permits or otherwise under the provisions of this Act or any regulations made thereunder. PART XV Landfills and Waste Disposal Facilities 72.(1) No person shall construct, operate or manage a landfill or hazardous waste disposal facility without a permit from the Department. (2) A deep well injection site / facility for the purpose of disposal of hazardous wastes shall be considered as a hazardous waste disposal facility. (3) No person shall construct, operate or manage an incinerator orco-generationfacility that utilizes refuse derived fuel as its source offuel without a permit from the Department. (4) The Department may issue a permit subject to conditions including a requirement for a performance bond or guarantee." Printed ill Belize by the Government Printer