The ‘polluter pays’ principle was introduced by way of an insertion of a new section 79(5) to the Selangor Waters Management Authority Enactment 1999¹ (‘the Enactment’) pursuant to the Selangor Waters Management Authority (Amendment) Enactment (‘the Amending Enactment’)² which came into operation on 2 December 2020.³ The new section 79(5) provides that ‘[i]n addition to the punishment under subsection (4), any person convicted shall pay all expenses incurred by the Authority to remedy or rehabilitate any pollution with regard to the offence under this section.’ (Emphasis added)
 
The Selangor infrastructure and public amenities, agriculture modernisation and agro-based industry committee chairman, Encik Izham Hashim, recently expressed confidence that the Selangor Waters Management Authority will implement the ‘polluter pays’ principle in 2022 to combat pollution of water sources within the State. This was in response to a supplemental question put to Encik Izham during the proceedings in the Selangor State Legislative Assembly on 7 December 2021.⁴
 
In connection with the above, section 79(1) of the Enactment renders it an offence for any person, except in accordance with the terms and conditions of a licence issued under section 79(3), to cause to enter or discharge into any water source any matter that will pollute or cause harm in the manner set out in that subsection, and section 79(4) of the Enactment provides that any person who commits an offence under section 79 shall, upon conviction, be punished with imprisonment for a term not exceeding three years and a fine of not less that RM200,000 and not more than RM1,000.000.⁵
 
The Amending Enactment also expanded on the existing presumption in Section 79(2) of the Enactment which provided that the owner or occupier of the property from which any entry or discharge originates is presumed, unless the contrary is proved, to have discharged or caused it to enter into the water source. This has been expanded to include the ‘owner or the person in charge of the vehicle’ from which the entry or discharge originates as being presumed to have discharged or caused such entry or discharge into the water source.
 
Comments
 
The implementation of the ‘polluter pays’ principle is overdue and will be more than welcomed by long-suffering businesses and residents in the Klang Valley and Selangor who have in recent times been forced to bear with huge inconvenience and financial losses due to the numerous unscheduled water supply disruptions reportedly caused by the irresponsible discharge of pollutants into the rivers supplying water to water treatment plants.
 
It is hoped that the liability deeming provision will be used to aid enforcement and compel owners or occupiers of premises by or near rivers to actively take precautionary steps to prevent discharges or entry into water sources of pollutants from their premises and discourage irresponsible individuals or businesses or transporters of waste from dumping pollutants and waste into the water sources of the State.
 
Alert prepared by To’ Puan Janet Looi (Partner) and Angela Hii (Associate) of the Environment Law Practice Group of Skrine.

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