Wednesday, August 27, 2008

Crackdown on open burning after environs laws are amended - Star

Aug 27, 2008 By LIM CHIA YING

THE Selangor government will start cracking down on the culprits responsible for open burning and illegal dumping as soon as the environmental laws are amended to provide for heavier penalties.

While the amendments are being drafted by the state authorities, lawyer Derek Fernandez, an expert on local government and environmental matters, has submitted some proposals to state environmental committee chairman Elizabeth Wong.

The amendments, once in force, should be able to effectively deal with the problems of open burning and illegal dumping of waste.

Fernandez said pending an amendment to the Environmental Quality Act 1974 to put more substantial and specific provisions with effective penalties and enforcement power, he had proposed various methods for the state to effectively deal with the problem.

“First, I’ve proposed that the state evoke the National Land Code to forfeit the land, even if it’s a private land, because illegal dumping constitutes a breach of condition of land,” he said.

“For example, if an agriculture land is used as a dumping ground instead of farming, the state could evoke the procedure of forfeiture and serve notice on the landowner,” Fernandez said.

Secondly, he said, the local authorities could also execute powers in relation to public nuisance and protection of health under the Local Government Act 1976 Section 72.

“The local council’s power includes sealing the land, barring access to the land and imposing fines and other enforcement actions on the owner,” he said.

“The local authorities must also have full power to deal with health threat and to take necessary steps to preserve and promote public health and prevent or remedy any nuisance or condition likely to be dangerous to public health,” Fernandez said.

He said the proposed forfeiture was an effective method to seal off the scene of environmental violation and legally seize the land.

“Residents who experience asthma attack can take legal action against the landowners by filing a suit for public or private nuisance in court for compensation,” Fernandez said.

Recently, the Subang Jaya Municipal Council (MPSJ) closed an illegal dumpsite in Bukit Lanchong near Putra Heights and will be sealing the road leading into the site.

For years, the Putra Heights residents had been putting up with hazardous smoke from the burning activities and foul stench at the site as a result of the garbage burning.

The MPSJ finally sealed the vacant land, and will be taking action soon against its three owners for illegal dumping activities. So far, the owners have been fined RM25,000 each.

Fernandez said the environmental laws pertaining to open burning had been in the books since 1965, but no stern action had been taken against such culprits, some of whom deliberately burn openly.

“There has been a lack of use of existing laws to combat serious threat against public health,” he said.

Fernandez said an effective solution would be for the Federal Government to arm the Department of Environment (DoE) with sufficient legislative powers by way of effective amendment of the environmental laws to deal with dumping and burning.

“One way is to make an offender of open burning and illegal dumping a strict liability offender, which means that the landowner has to be liable unless he or she can show they have taken reasonable steps to prevent their land from being misused,” he said.

“If the offence is strict liability, then the owner should be accorded a defence if he had no knowledge of the activities and has taken reasonable steps like cutting grass, fencing up the site, yet unable to prevent trespassing from happening,” Fernandez said.

“In cases where burning is done with intention, then mandatory jail terms must be imposed on top of fines together with compensation for affected residents,” he said.

Fernandez added that to avoid the issue of locating owners, service of documents of last known address or by way of advertisement in the newspapers should be made legally sufficient based on particulars of the land title.

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