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ITEM / REGULATION ENVIRONMENTAL QUALITY ACT 1974

EXPLANATORY NOTES

ENVIRONMENTAL QUALITY (CONTROL OF SUSPENDED SOLIDS) REGULATIONS 20XX

In exercise of powers conferred by Section 24, 25, 29 and 51 of the Environmental Quality Act 1974, the Minister, after consultation with the Environmental Quality Council, makes the following regulations:

Citation

These regulations are made based on the current provisions in the EQA 1974. The regulations are not intended to control the implementation of the development itself, but designed to control the pollutant (TSS) released as a result of earth disturbances into Malaysian waters. TSS has been identified as a major pollutant that has caused detrimental impacts on rivers.

1. These regulations may be cited as the Environmental Quality (Control of Suspended Solids) Regulations 2011

Interpretation

2. (1)

In these Regulations-

“accelerated erosion” means the removal of the surface of the land through the combined action of human activities and the natural processes, at a rate greater than what would occur because of the natural process alone.

Note : These definitions are subject to discussion with stakeholders and approval by the AG Chambers

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“agricultural operation” means the management and use of farming resources for production of crops, livestock, or poultry, or for equine activity. “best management practices” means activities, facilities, measures, planning or procedures used to minimize accelerated erosion and sedimentation and manage stormwater to protect and maintain the quality of soil or inland or Malaysian waters and the existing and designated uses of waters before, during, and after earth disturbance activities. “boundary of premise” means the line indicating the specific limit of a premise “development activities” means any activity involving soil disturbing activities including construction works, agricultural activities, logging or mining “construction works” has the same meaning assigned to it in the Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 (Act 520). “earth disturbance activity” mean a construction or other human activity which disturbs the surface of the land, including land clearing and grubbing, grading, excavations, embankments, land development, agricultural plowing or tilling, operation of animal heavy use areas, timber harvesting activities, road maintenance activities, oil and gas activities, well drilling, mineral extraction, and the moving, depositing, stockpiling, or storing of soil, rock or earth materials. “erosion” means the natural process by which the surface of the land is worn away by water, wind or chemical action.

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“erosion and sediment control plan” means a site-specific plan consisting of both drawings and a narrative that identifies best management practices to minimize accelerated erosion and sedimentation before, during and after earth disturbance activities “gully erosion” means erosion that has produced a scoured out area that is not crossable with tillage or grading equipment. “post-construction stormwater management plan” – A site specific plan identifying stormwater management BMPs that improve water quality as well as reduce stormwater volume and rate. “sediment” means soils or other materials transported by surface water as a product of erosion. “suspended solids” means solids of organic and inorganic origin present in liquid discharge measured by filtration followed by drying at 105 0 C “rill erosion” means visible scouring on the landscape when sheet flows begin to concentrate on the land surface. “sheet erosion” means the uniform movement of a thin layer of soil across an expanse of land devoid of vegetative cover (3) “final stabilization for logging activitities means that all soil disturbing activities have been completed and remedial action has been implemented based on the Guidance Document on BMPs for logging activities.

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LAMPIRAN 1 - DRAFT1 OCTOBER 2012 Application

3.

These Regulations shall apply to(a) (b)

These regulations will cover all development both EIA, and non EIA projects; as non EIA projects any development activity; or have impact on the any premises which has the still potential to cause accelerated environment during the land clearing and development phase. erosion. The regulations also attempt to cover existing premises or sites that are left without any care or mitigation; and cause erosion and sedimentation to happen.

Prohibition against causing a premise to This is to ensure that the owner must care for his site and prevent become an accelerated erosion source accelerated erosion from 4. No person shall cause his premises to happening. (e.g: the highway owner or operator must inspect the be a source of accelerated erosion. highway route regularly and take necessary action to prevent erosion from happening (e.g making sure slopes are not exposed and stabilised). If signs of erosion is observed (e.g presence of rills or gully, the owner must take remedial action). Evidence of erosion 5. The occurrence of accelerated erosion at any premises shall be established by: (a) a statement by an expert in the field of erosion and sediment control stating that accelerated erosion has occurred or is occurring at the premises; or (b) an analysis of a minimum of three samples of discharge from the premises where the results of the analysis show that all the samples do not 4 The expert must be competent, and certified by the DG of Environment or body recognised by the DG of Environment. The method of measurement and analysis will be described in the Guidance Document for Measurement and Analysis of

LAMPIRAN 1 - DRAFT1 OCTOBER 2012 comply with the acceptable stipulated in regulation 13; or limits as Suspended Solids and Turbidity published by DOE (using standard method in lab or insitu measurement).

(c) photographs taken at the Under the existing legal system, premises indicating the occurrence or photographic evidence has been accepted to prove that violation presence of sheet, gully or rill erosion. has occurred.

(d) a justified complaint from the public that erosion has occurred on the Subject to investigation by trained premises and has impacted a private or officers or experts using methods described in (a), (b) and (c). public property.

Directive to take the necessary measures 6. (1) The Director General may issue a directive to an owner or occupier of any premises to take the necessary measures including the installation of best management practices (BMPs) to mitigate, minimize or control the accelerated erosion from his premises. (2) The owner or occupier shall comply with the directive referred to in subregulation 6(1) Submission of Notice of Intent (NOI) 7. (1) No person shall, without prior submission of the Notice of Intent to the Director General, conduct any development activity, (2) The Notice of Intent to the Director General referred to in subregulation (1) shall be in the form as specified in the First Schedule. This regulation will enable the DG to issue directive to owner or occupier to undertake mitigation measures.

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(3) The submission of Notice of Intent shall be made by the occupier or owner of the premises to the Director General within 14 days before the commencement of the development activity on the premises.

(4) The submission of the Notice of Intent for any development of 10 ha or more In short, the requirements are as shall be accompanied by an erosion and follows: sediment control plan prepared by a competent person. Preparation and submission of erosion and sediment control plan (ESCP) 8. (1) The erosion and sediment control plan (ESCP) shall be prepared by a competent person in accordance with the specifications specified in the Guidance Document on the Preparation and Submission of Erosion and Sediment Control Plan issued by the Department of Environment (i) Submission of NOI is compulsory for all development. (ii) Preparation of ESCP by a competent person is required for project of 1 ha or more (This is in line with the current DID’s requirement. For projects of less than 1 ha, mitigation measures must still be implemented, but there is no requirement for competent person for ESCP preparation). (iii) Only projects of 10 ha or more, are required to submit ESCP together with NOI to DOE. The preparation shall be based on Guidance Documents from DOE, as well as other related documents such as the MSMA 2nd Edition by DID. The DG will establish a certification scheme to certify competent persons. The DG may also recognise other equivalent certification programmes.

(2) A competent person shall be any person who has been certified by the Director General or body recognised by the Director General that he is duly qualified to prepare the erosion and sediment control plan.

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Since 2007, DID and DOE have conducted several training courses /certification programes such as the Certified Professional in Erosion and Sediment Control (CPESC). DOE will continue to conduct this training course as part of the capacity building for consultants and its own officers. The Malaysian Stormwater Organisastion (MSO) has started conducting the CPESC and CESSWI training for professionals. MSO is also in the process of preparing the Malaysian Version of CPESC and CESSWI.

Implementation of erosion and sediment control plan (ESCP) 9. (1) The owner or occupier of any The property owner or occupier must implement the ESCP and premises shall ensure that– update whenever necessary (a) the erosion and sediment control plan (ESCP) is strictly implemented; (b) the best management practices are installed, operated, inspected, monitored and maintained in accordance with acceptable practices as specified in the Guidance Document on Installation, Inspection and Maintenance of Best Management Practices issued by the Department of Environment. (c) The erosion and sediment control plan is updated .

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Compliance with the Notice of Intent (NOI) This regulation summarizes the responsibilities of the owner and 10. (1) The owner or occupier occupier. shall(a) comply with the specifications described in the Notice of Intent; (b) display the Notice of Intent in a conspicuous position at the premise. (c) Submit the Notice of Termination as specified in the Second Schedule after the site has achieve final stabilisation Submit Notice of Abandonment and implement the Abandonment Plan as specified in the Third Schedule, if the development activity is to be abandoned.

(c)

(2) The owner or occupier of development activities of 10 Only developments of 10 ha or ha or more shall submitmore are required to submit Work Progress Report & Compliance (a) Work Progress Report Report; and; (b) Compliance Report, prepared in accordance to the requirement specified in the Guidance Document for ESC Online Reporting published by Department of Environment, 8

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(3) If the owner authorizes, permits or requests any another person to undertake any action on his behalf relating to the development activity, the owner shall take all reasonable steps to ensure–

(a) that the other person is informed in writing of any requirements under these Regulations; and (b) that the other person complies with such requirements.

If development is carried out by another party, the developer must inform them of their responsibilities; and they shall comply with the same requirements.

Changes of owner or occupier and continuance of existing Notice of Intent

11. (i) Any changes of ownership or Changes of owner or occupier occupation of the premises, the original (such as contractor) must be owner of the premises shall notify to the notified to the DG of Environment Director General within 14 days prior to the changes in accordance with the format specified in the First Schedule (ii) When a person becomes the owner or occupier of the activity in succession to another person who holds on the Notice of Intent, the requirements shall be binding on the new person and shall be observed by him as specified in the Notice of Intent. The Notice of Intent shall be amended by the person to include subsequent changes to the ownership or activity

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General requirements for small scale For developments of 1 ha or less, development activities covering area one an ESCP shall still be prepared hectares or less based on the Guidance Document for Small Scale 12. The owner or occupier of premises Development Activities which conducts any development activity covering an area of less than 1 hectares shall comply with the general requirements on the best management practices to control erosion and sediment as specified in the Guidance Document on Best Management Practices for Small Scale Development Activities issued by the Department of Environment and any other requirements specified by the Director General. Environmental Officer 13. (1) The owner or occupier of premises of 10 ha or more shall employ an Environmental Officer to supervise the development activity including the operation and maintenance of the best management practices on his premises. (2) The Environmental Officer shall be a competent person who has been certified by the Director General that he is duly qualified to supervise the activities on the premises and perform duties as specified under the Fourth Schedule. (3) The owner or occupier of any premises shall ensure that an Environmental Officer is on duty at all times after work has commenced on the premises and Notice of Termination has not yet been submitted to the Director General.

Developers for developments of 10 ha or more shall employ a competent Environmental Officer (EO) to be responsible for the environmental aspects of the project. The EO must be certified under a certification programme by DOE; or body recognised by DOE. Since 2010, DOE has introduced the Certified Erosion, Sediment and Stormwater Inspector Programme (CESSWI). A number of DOE officers and independent auditors (registered with DOE) have been certified. The training now are currently conducted by the Malaysian Stormwater Organisation (MSO). ‘On duty’ means he must be available at any time, should there be any environmental emergency on site (e.g BMP not functioning

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LAMPIRAN 1 - DRAFT1 OCTOBER 2012 etc) Acceptable conditions of discharge 14. (1) Any discharge from any point at the boundary of the premises onto or into any soil, or into any in land waters or Malaysian waters shall comply with the limits specified in the Fifth Schedule. (2) In this regulation “boundary of the premises” means the line indicating the specific limit of a premise Discharge point (s) must be identified and marked on the ESCP, however, under normal condition, the stormwater could also leave the site anywhere. In this case, any stormwater/ discharge leaving the boundary of the site must also comply with the limit. (Note : therefore ESCP shall incorporate perimeter control). are

Method of analysis and sampling of The parameters involved specified in Schedule 5. discharge

16. (1) The Environmental Officer may (i) TSS carry out an in-situ or ex-situ analysis of discharge using any instruments or methods (ii) Turbidity (NTU) approved by the Director General The DOE has conducted a (2) An analysis of discharge stakeholder consultation meeting released onto or into any soil, or into any in with the Department of Agriculture, of Forestry, land waters or Malaysian waters shall be Department carried out in accordance with any of the Department of Irrigation and Drainage and Department of methods approved by the Director General Mining and Geoscience on the 17th of March 2011. The relevant (3) In this regulationagencies were requested to consult their stakeholders and suggest appropriate discharge (a) “in-situ analysis” means the limits for their own sectoral analysis conducted on a discharge sample activities. The limits proposed must that has not been removed from its location be based on the BAT and Best or conducted at the site where sample was Practices available internationally. (Note : DID has suggested that the taken; discharge limit shall be based on the quality of the receiving river)> Attached in Schedule 5 is the limit (b) “ex-situ analysis” means the proposed by DOE. analysis conducted on a discharge sample that has been removed from its location and The draft has also been presented conducted at the different site from the site to the Environmental Quality Council in 2011 and comments where the sample was taken. have been noted and incorporated / explained in this amended draft. 11

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Monitoring of discharge 17. (1) An owner or occupier of a The method for analysis will be development of 10 ha or more that specified by the DG in a Guidance discharges onto or into any soil or into any Document inland waters or Malaysian waters at his own expense shall – (a) sample, analyze and monitor Developments of 10 ha or more suspended solids and turbidity and other are required to conduct and submit parameters according to the specifications monitoring reports. and procedures as specified in the Guidance Document on Discharge Monitoring from Development Sites issued by the Department of Environment. (b) provide the necessary instruments for sampling, analysis and monitoring as required in subregulaton 17(a)

Point of discharge 18. The owner or occupier of premises shall indicate clearly the point of discharge from his premises on the erosion and sediment control plan. Any accidental discharge, spillage or overflow must be reported to DOE, and remedial action must be done. DOE may specify or may undertake the remedial action and recover the cost from owner or occupier (in line with Sect 47, Environmental Quality Act 1974 ).

Accidental discharge, spillage or over flow 19. (1) The event of any accidental discharge, spillage or overflow from the premises that is in violation with the acceptable conditions of discharge as specified in regulation 14, the owner or occupier shall record and notify the Director General of Environment within not more than 60 minutes from the time of the knowledge of 12

LAMPIRAN 1 - DRAFT1 OCTOBER 2012 occurrence of the accidental discharge, spillage or overflow. (2) An owner or occupier shall, to every reasonable extent take remedial action to rectify the accidental discharge, spillage or overflow problem in a manner that satisfies the Director General. (3) The Director General may specify the manner in which the remedial action shall be made and the owner or occupier shall comply with such specification. (4) Where the Director General undertakes the remedial action, he shall determine the full costs and expenses incurred and may recover such costs and expenses from the owner or occupier of the premises in accordance with the provisions of section 47 of the Act.

Responsibility for environmental complaints and damages to the public or surrounding community

20. (1) The owner or occupier premises shall be responsible(a)

(b)

of The regulation specifies the responsibilities of owner or occupier on environmental related for any environmental complaint and damages such as complaints from the public flash flood, landslides etc. arising from the development activity for any environmental damages resulting from the activity on his premises that affect public health, safety or welfare, or the Compensation – in line with environment including any Section 46 E and 47 of beneficial use of the Environmental Quality Act 1974 environment

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(2) In the event of any damage or loss due to accidental discharge, spillage, over flow, landslide or flood due to the activity on his premises, to the public or the surrounding .community, the Director General shall assess the damage or lost, and the owner or occupier shall pay the compensation as directed by the Director General.

Maintenance of records 21. (1) An owner or occupier of a premises undertaking a development of 10 ha or more shall maintain records of the following in accordance with specifications in the Guidance Document on Record Keeping Requirements for Development Sites issued by the Department of Environment : The owner or occupier for development of 10 ha or more must keep relevant records. The requirement will be specified as part of the tasks of the Environmental Officer.

(a) the operation, inspection, maintenance and monitoring of all best management practices. (b) the monitoring data which includes the discharge quantity and quality (c) rainfall data.

(2) The records maintained under subregulation (1) shall be made available for inspection by any authorized officer.

Personnel training 22. (1) An owner or occupier of the a 14

LAMPIRAN 1 - DRAFT1 OCTOBER 2012 premises undertaking a development activity of 10 ha or more shall (a) ensure that his employees Personnel training requirements attend training on environmental for developments of 10 ha or more requirements, best practices on soil erosion . and sediment control including the management, operation, inspection, maintenance and monitoring of best management practices. (b) ensure that the training for his employees include retraining on updates for new, revised and existing requirements and procedures; and (c) maintain records of employee training as required in subregulations (a) and (b) which shall be made available for inspection by any authorized officer.

Provision for inspection 23. An owner or occupier of a development of 10 ha or more who discharges onto or into any soil, or into any inland waters or Malaysian waters shall, in connection with the discharge, provide safe access and install vertical level markers, inspection chambers, sampling equipment, monitoring equipment, measuring and recording equipment.

Owner or occupier to render assistance during inspection Owner or occupier must prepare 24. An owner or occupier of a premises relevant equipment for sampling shall provide the Director General or any and inspection and must render authorized officer every reasonable assistance. assistance and facility available at the premises, including labour, equipment, appliances and instruments that the Director 15

LAMPIRAN 1 - DRAFT1 OCTOBER 2012 General or authorized officer may require for the purpose of taking any action. Notice of Termination 25. (1) Upon reaching the final stabilization, the owner or occupier of the premises shall submit a Notice of Termination. A site must reach its final stabilization stage before the owner or occupier can terminate the development. A Notice of Termination (NOT) must be sent to (2) In this regulation, “final DOE prior to termination. stabilization” for all development except logging means that all soil All development must fulfil the disturbing activities at the criteria for ‘final stabilization’ development site have been except for logging activities. DOE completed and that a uniform will look at the existing Dept of vegetative cover with a density of at Forestry’s guidelines and Best least 70% has been established on all Management Practices in logging. unpaved areas and areas not covered The relevant guidelines can be by permanent structures, or adopted with or without equivalent permanent stabilization adjustment. measures. in

Compliance with specifications guidance documents 26.

(1) The owner or occupier of premises shall comply with all the standards, specifications, procedures and requirements stipulated in the guidance documents specified in these Regulations.

All related guidance documents specified in the regulations will have legal standing. DOE will refer to all existing guidance documents by other agencies. DOE may also develop new guidance documents if necessary.

(2) Noncompliance with any standards, specifications, procedure and requirements referred to in subregulation (1) constitutes an offence under these Regulations.

Prohibition order 27. (1) The DG can issue prohibition order The Director General may by under several circumstances. 16

LAMPIRAN 1 - DRAFT1 OCTOBER 2012 notice in writing issue an order prohibiting the development to continue its activity ifOne of the issues that we faced today, are erosion and (a) the development is carried out sedimentation problems from without submission of the abandoned sites. Notice of Intent to the Director General. Under this regulation, a site must (b) there is evidence of non be stabilised (final stabilization) compliance with the before the development can be specifications as specified in abandoned. Notice of intent (c) in the opinion of Director A Notice of Abandonment must be General or authorized officer the sent to DOE prior to Abandonment development is being carried together with an Abandonment out in a manner likely to cause Plan prepared and certified by a pollution or environmental competent person (who can be damage from the organisation itself). (d) justified public complaint that the premises has caused Another competent person who pollution to the surrounding area has no connection with the project can verify that the site has reached final stabilization. This must be done, before the owner or occupier either absolutely or conditionally, or for such leaves the site. a period as he may direct or until requirements to make remedy as directed by the Director General have been complied with.

(2) For the purpose of subregulation (1), a copy of the Director General’s prohibition order shall be posted in a conspicuous place in the vicinity of the premises to which the said prohibition order refers, and no person shall continue any activity on the premises until the prohibition order is withdrawn.

Development Abandonment

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28. (1) An owner or occupier who wishes to abandon any development shall submit a Notice of Abandonment together with an Abandonment Plan as specified in the Sixth Schedule at least 30 days prior to the abandonment date. (2) The Abandonment Plan shall be certified by a competent person prior to submission to Department of Environment.. An owner or occupier must implement the Abandonment Plan an ensure that final stabilisation is achieved. The stabilised site must be inspected and verified by a third party competent person as specified in the Notice of Abandonment. The inspection result shall be sent to DOE by the competent person directly.

The DG may implement the Abandonment Plan or remedial action ; and will recover the cost from owner

(3)

(4)

(5) In the case where a site is abandoned without proper implementation of Abandonment Plan or final stabilization, the Director General may undertake the remedial action and he shall determine the full costs and expenses incurred and may recover such costs and expenses from the owner or occupier of the premises in accordance with the provisions of section 47 of the Act.

Penalty Maximum penalty – RM 500,000 or 29. Any person who contravenes these 5 years jail. Regulations shall be guilty of an offence and shall be liable to a fine not exceeding five 18

LAMPIRAN 1 - DRAFT1 OCTOBER 2012 hundred thousand Ringgit or imprisonment for a period of five years or both.

Compoundable offences

30. All offences under these Regulations All offences are compoundable may be compounded by the Director and will follow the current General under section 45(1) of the Act compounding procedures. This is to enable us to take action immediately on any incompliance without having to take them to court. Compounding procedures 31. The compounding of any of the offences under these Regulations shall be in accordance with the procedure prescribed in the Environmental Quality (Compounding of Offences) Rules, 1978. Delegation of Powers 32. The Director General of Environmental Quality may delegate his powers under Section 49 of the Environmental Quality Act 1974 to the officers specified in the Sixth Schedule for the purpose of enforcing any provisions under these Regulations. The DG may delegate his power for the following officers : (i) Department of Forestry (ii) Department of Mining and Geosciences (iii) Department of Irrigation and Drainage To avoid conflict of interest, the Department delegated will not do any enforcement on their ‘own projects’ (e.g DID will not do any enforcement on dam construction, where they are also the Project Proponent). In this case, the enforcement will be done by DOE. 19