The holders of waste discharge permits are subject to obligations stemming from the permit, and to obligations of general import laid down in the legislation. In addition, the general public is also subject to certain basic obligations, most notably, that of refraining from discharging waste into a freshwater body, on the ground or under the ground, or from carrying on given activities or processes, unless a permit has first been obtained from the concerned government department or agency. While spontaneous compliance with these obligations is to be expected of the majority of the citizenry in general and of the holders of waste discharge or other comparable permits in particular, it is standard practice for legislation to deter non-compliance by declaring generic or specific violations an offence, and subjecting these to penalties. These include fines and imprisonment and, under the appropriate circumstances, non-conventional measures such as suspension or cancellation of a permit. Also, a special use of fines is made in connection with water pollution control offences, consisting of fining an illegal discharge on a daily basis for as long as the illegal discharge continues. The role of subsidiary legislation is this regard is prominent, as it may spell out which violation attracts what kind and level of penalty. Offences and attendant penalties can be generically directed at any deviation from the precepts of the law (I), or be fine-tuned to address specific breaches in connection with specific legal precepts (II).
As already explained in Chapter I, offences and penalties are an integral part of law enforcement. In addition, law enforcement involves, in the specific case of water pollution control legislation, authority for the government to enter and inspect private property, to take from it samples of the thing under investigation - e.g., an effluent, the soil -, to install monitoring equipment on the said property, to examine records which must be kept by law (III, IV and VII) and to direct a polluter to take action (VIII). As an adjunct to these powers, the property owner may be required to render active assistance in the exercise of law enforcement authority (V), or simply not to hinder the exercise of such authority (VI). An express grant of law enforcement authority and powers is generally found in principal legislation, but it is not uncommon to find such powers restated or elaborated on in subordinate legislation.
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I - ST LUCIA - Public Health (Water Quality Control) Regulations, 1978 13. Any person failing to comply with these Regulations or with any notice served thereunder shall be guilty of an offence and on summary conviction shall be liable to a fine not exceeding two hundred and fifty dollars or to a term of imprisonment not exceeding three months, and in addition in the case of a continuous offence to a fine not exceeding fifty dollars for each day the offence continues after a conviction is first obtained. II - KENYA - Water (General) Rules 75. The Water Apportionment Board shall have authority to determine whether or not any sawdust, tailings, gravel, refuse, sewage, effluent from any works or any other material or substance of any kind being put, or proposed to be put, into any body of water or watercourse is prejudicing or will prejudice the beneficial use for any purpose of the water of such body of water or watercourse, or is impeding or interfering or may impede or interfere, with the natural flow of any body of water, and the Board may at any time and from time to time order any person not to put any such thing into or adjacent to such body of water or watercourse, and further may order the removal of any such matter from, or from any site adjacent to, any body of water or watercourse, and any person who refuses to obey such order shall be guilty of an offence. 77. Any person who deposits, or who causes or allows to be deposited, into any body of water or any tributary thereof, any sawdust, any vegetable or mineral refuse, the effluent from a sheep or cattle dip, factory, premises or work, any sewage or sewage effluent or any other matter or thing of any kind which is harmful to the fish, fish life, the fry or ova of fish, or fish food contained in such body of water shall be guilty of an offence. III - KENYA - Water (General) Rules 79. (1) A fish warden, an assistant fish warden or any person authorized by a fish warden may enter upon any land or premises for the purpose of inspecting bodies of water or tributaries thereof, or for the purpose of preventing or detecting an offence under these Rules or for the purpose of collecting fish or taking samples of any matter or thing which is being deposited, or which it is proposed to deposit, into any body of water or any tributary thereof, and he may interfere summarily to prevent the deposit into any such body of water or tributary thereof of any matter or thing which is harmful to the fish, fish life, the fry or ova of fish or fish food in such body of water. IV - MALAWI - Water Resources (Water Pollution Control) Regulations, 1978 12.... (2) Any person authorized by the Board may, at any time and without prior notice to any person, enter upon any land for the purpose of testing, or taking samples of, the waste or effluent capable of being discharged by means of the works erected pursuant to paragraph (b) of sub-regulation (1), but no compensation shall be payable by such authorized person or the Board to any person in respect of any damage done to such land by reason of such entry. V - MALAYSIA - Environmental Quality (Sewage and Industrial Effluents) Regulations, 1979 20. An occupier of any premises shall provide the Director-General or any other officer duly authorised in writing by him every reasonable assistance or facility available at premises, including labour, equipment, appliances, and instruments that he may require for the purpose of taking any action that he is empowered by section 38 of the Act to take respect of the premises. VI - KENYA - Water (General) Rules 79. ... (2) Any person who wilfully obstructs or hinders a fish warden, an assistant fish warden or any person authorized by a fish warden in the execution of his powers under this rule shall be guilty of an offence. ... VII- UGANDA - The Water (Waste Discharge) Regulations, 1998 17. Sampling of effluent and waste water analysis (1) An environment inspector designated under section 80 or an analyst designated under subsection (1) of section 84 of the National Environment Statute, 1995 may at any reasonable time enter any premises and take samples, analyse and examine materials used in the activity for which a discharge permit was applied. (2) An analyst designated under subregulation (I) shall comply with the guidelines issued under these regulations. VIII - UNITED KINGDOM - Water Resources Act, 1991 161A. Notices requiring persons to carry out anti-pollution works and operations (1) Subject to the following provisions of this section, where it appears to the Agency that any poisonous, noxious or polluting matter or any solid waste matter is likely to enter, or to be or to have been present in, any controlled waters, the Agency shall be entitled to serve a works notice on any person who, as the case may be, --
(2) For the purposes of this section, a "works notice" is a notice requiring the person on whom it is served to carry out such of the following works or operations as may be specified in the notice. ... (3) A works notice -
(4) Before serving a works notice on any person, the Agency shall reasonably endeavour to consult that person concerning the works or operations which are to be specified in the notice. ... 161B. Grant of, and compensation for, rights of entry etc. (1) A works notice may require a person to carry out works or operations in relation to any land or waters notwithstanding that he is not entitled to carry out those works or operations. (2) Any person whose consent is required before any works or operations required by a works notice may be carried out shall grant, or join in granting, such rights in relation to any land or waters as will enable the person on whom the works notice is served to comply with any requirements imposed by the works notice. 161D. Consequences of not complying with a works notice (1) If a person on whom the Agency serves a works notice fails to comply with any of the requirements of the notice, he shall be guilty of an offence. (2) A person who commits an offence under subsection (1) above shall be liable -
(3) If a person on whom a works notice has been served fails to comply with any of the requirements of the notice, the Agency may do what that person was required to do and may recover from him any costs or expenses reasonably incurred by the Agency in doing it. (4) If the Agency is of the opinion that proceedings for an offence under subsection (1) above would afford an ineffectual remedy against a person who has failed to comply with the requirements of a works notice, the Agency may take proceedings in the High Court for the purpose of securing compliance with the notice. (5) In this section "works notice" means a works notice under section 161A above. UNITED KINGDOM - The Anti-Pollution Works Regulations (England and Wales), 1999 2. Content of works notices A works notice shall-
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