NEPA insists it had enough evidence to bring case against Wisynco

Jamaica's environmental regulator has defended its decision to file a criminal charge against manufacturing and distribution giant Wisynco Limited in connection with a 2023 pollution incident at a St Catherine river.

At the same time the National Environment and Planning Agency (NEPA) says it respects the decision taken by the Office of the Director of Public Prosecutions (ODPP) to end the trial.

The trial, which commenced on October 8 last year in the St Catherine Parish Court, ended on Monday after prosecutors told the presiding judge that they would offer no further evidence against Wisynco.

Attorneys at the NEPA, acting on a fiat from the ODPP, had filed a charge against the manufacturing and distribution giant for breaching section 11 of the Wildlife Protection Act, which prohibits the depositing of trade effluent, industrial waste, sewage, noxious or polluting matter in any harbour, river, stream, canal, lagoon, or estuary containing fish.

It followed a report received on July 18, 2023, of a pipeline leakage that caused officers from the NEPA to visit the Rio Cobre in the vicinity of Dyke Road, where they reportedly observed that “fluid was gushing from the pipeline into the river”, according to the ODPP.

The pipeline was used to connect the two sides of the Wisynco plant, the ODPP noted, citing a report by the NEPA.

However, Director of Public Prosecutions Paula Llewellyn, in a public statement on Tuesday, said a review of the case file prepared by the NEPA revealed that a number of critical evidentiary “ingredients” were missing.

She revealed, as an example, that no samples of water were taken by the NEPA from the area beneath where the fluid was seen gushing into the river for testing to determine whether it fell within the definition of trade effluent, industrial waste, sewage, noxious or polluting matter.

But Leonard Francis, chief executive officer of the NEPA, took a different view, telling journalists on Thursday that his understanding is that the law requires the agency to show that a substance was discharged in water containing fish.

“So, one, we have proven that there was fish in the river because we have the photographs and we saw the fish. Two, was there a substance from the pipe going into the river and the answer is yes,” he said during a press conference at the agency’s St Andrew offices.

Francis said licences issued to Wisynco by the NEPA “state specifically what would have been in the pipe”.

“We were confident, based on what we saw…that it was, indeed, trade effluent,” he charged.

“We did see a broken pipe, we did see fluid from the pipe going into the river and section 11 of the Wild Life Protection Act says that as long as there is a polluting substance going into the river the charges can be laid," he said.

Kimberley Myrie Essor, Director for Legal and Enforcement at the NEPA, said the ODPP was not consulted before the charge was laid because at the time the regulatory body had a fiat from the prosecutorial authority.

“The practice at the time when the agency was in possession of the fiat is that summonses would be drafted and charges laid in the various parish courts,” Myrie Essor told journalists during the press conference.

“The agency, based on the evidence that it had, felt strongly that this was a case that should be brought before the court and that is what it did.”

- Livern Barrett

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