Environmental Law Enforcement
The Environmental Quality Act 1974 (“EQA”) is the primary legislation which deals with the environmental protection and enforcement in Malaysia.
The Department of Environment (“DOE”) is a government agency responsible for ensuring compliance with the provisions of the EQA and initiating enforcement proceedings in the event of a breach.
Roles of the DOE:
- conduct annual checks on factories which discharge industrial effluents
- obtain a sample of the industrial effluents and test it to ensure the parameters of the effluents comply with the provisions of the EQA and its relevant subsidiary legislation, the Environmental Quality (Industrial Effluent) Regulations 2009 (“Regulation”).
What You Should know?
There is a two-fold consequence of being charged for non-compliance of the EQA that the public should be aware of.
- First, the wrongdoer may be liable for the primary breach of the EQA.
- Second, the wrongdoer may be liable for breach of non-compliance of the notice to remedy the primary breach.
Penalties
The general penalty for breach of any provision of the EQA is a fine not exceeding RM10,000 and/or imprisonment for a period not exceeding 2 years.
A breach of Section 31(2) of the EQA warrants a fine not exceeding RM25,000 and/ or imprisonment for a period not exceeding 2 years.
In addition, the offender shall pay a further fine of RM1,000 per day so long as the offence continues.
Take Note!
Where an offence against the EQA or Regulation has been committed by a company, the director or those acting in such capacity shall be deemed to be guilty of that offence unless he proves that the offence was committed without his consent.
Hence, Directors should be diligent and conscientious in ensuring that the company is managed in accordance with the provisions of the EQA. As mentioned above, a breach of the EQA could be penalised by imprisonment, hence a director of a company may be subject to imprisonment.
Case on Point:
( The Sweet Home Case)
- Annual checks conducted by the DOE on the industrial effluents of the company, Sweet Home Candied Products Sdn Bhd (“Sweet Home”) showed that the industrial effluents contained:
- Biochemical Oxygen Demand of 2300mg/l concentration, which exceeded the 20mg/l limit by 115 times;
- Chemical Oxygen Demand of 5300mg/l concentration, which exceeded the 80mg/l limit by 66 times.
- These concentration levels were too excessive. The DOE also discovered that Sweet Home’s Water Waste Treatment Plant was faulty and unrepaired.
- Legal proceedings were brought against Sweet Home by the DOE for breaching the EQA and the Regulation
- A notice was served on Sweet Home by the DOErequiring it to remedy its breach of the EQA and the Regulations by repairing its Water Waste Treatment Plant, pursuant to Section 31(2) of the EQA
- However, Sweet Home failed to remedy its breach and was subjected to further legal proceedings for the breach of Section 31(2) of the EQA
- The Malaysian Court imposed a fine of RM100,000 for a primary breach and failure to remedy such breach.
Conclusion
Environmental issues should not to be taken lightly as the DOE together with the Malaysian courts are committed to enforce the EQA. Companies are urged to ensure that they have an effective monitoring system of their environmental compliance and cooperate with the DOE in the event of a breach.
