The environment department has informed the Minister of Home Affairs that Belco has breached the Clean Air Act 1991, and the Regulatory Authority has been instructed to take action.

In a Government Notice posted in the Official Gazette last Friday, Walter Roban, the Minister of Home Affairs and Deputy Premier, said that as a result of a breach, he will direct the Regulatory Authority, regulator of the electricity sector, to “commence appropriate actions”.

Belco said it was unaware of any noncompliance of its obligations under the Act and that it was seeking clarification.

The notice refers to a condition in Belco’s operating licence that refers to emissions considered to be a statutory nuisance under the Public Health Act 1949.

The minister said: “On June 21, I received a letter from the Department of Environment and Natural Resources, in which they have notified me of Belco’s breach of the Clean Air Act 1991, and therefore Belco’s breach of condition 5.4.8 of their operating licence.

“Due to this breach and in accordance with section 7 of the Regulatory Authority Act 2011, and in exercise of my powers under section 8 of the Electricity Act 2016, I hereby direct the Regulatory Authority to commence appropriate actions as allowed by the Electricity Act 2016, Belco’s operating licence, and any other terms or conditions set in the change of ownership, with immediate effect.”

The condition referred to states: “Belco shall ensure that its emissions are not considered a 'Statutory Nuisance' under the Public Health Act 1949. It is noted that under the Public Health Act 1949 statutory nuisances include: any dust, smoke or effluvia caused by any trade, business, manufacture or process and which is prejudicial to the health of, or is offensive to, the inhabitants of the neighbourhood.

“It is noted by DENR that Belco is compliant to the definition of a statutory nuisance, as defined under the Public Health Act, unless the Minister of Health issues an order on Belco to abate the nuisance.”

The sections of the legislation in the government notice refer to the powers of the Minister of Home Affairs to issue directions to the RA “regarding any matter within his authority respecting the electricity sector”.

The Royal Gazette reported last week that the Government had threatened to issue a legally binding emissions control order on Belco requiring it to control emissions from the North Power Station, as per the minutes of the Environmental Authority.

Statutory nuisances can make their way through the courts and result in fines of $2,000 per day.

Emission control orders can result in fines of up to $50,000 per day for noncompliance.

Further abatement enforcement directions are available under both Acts.

A spokesman for the RA told The Royal Gazette yesterday: “On June 30, 2023, the Regulatory Authority of Bermuda received a ministerial direction from the Ministry of Home Affairs.

“The RA has been directed to commence appropriate action, as allowed by the Electricity Act 2016 and Regulatory Authority Act 2011, against Belco for purported Clean Air Act violations. The RA is reviewing the ministerial direction and will provide an update on the matter as soon as it is able to do so.”

A spokesman for Belco said: “On Friday, June 30, Belco became aware of a notice in the Official Gazette issued by Walter Roban, Minister of Home Affairs, concerning a direction given to the Regulatory Authority regarding Belco’s emissions and an alleged breach of the Clean Air Act 1991 and Belco’s operating licence under the Clean Air Act.

“Belco is unaware of any noncompliance with its obligations under the Clean Air Act and therefore wishes to address this matter as expeditiously as possible. Belco is pursuing discussions to seek clarification and will provide assurances of the steps it is taking in relation to its plant emissions.”

The DENR previously told The Royal Gazette that only the Minister of Health [Kim Wilson] has the power to rule emissions a statutory nuisance under the Public Health Act.

A DENR spokesman said in March: “DENR has researched legislative standards in many other developed jurisdictions and cannot find any legislative controls for these types of periodic soot emissions, other than what is used to address ‘nuisances’.”

An initial investigation was launched by the Ministry of Health in February after questions relating to the minister’s powers, sent by this newspaper. In April, Kim Wilson passed the investigation on to the DENR.

Last Monday, a DENR spokesman said: "The ministry is working to address the issue facing many residents, businesses and schools impacted by Belco's emissions. To that end, under Section 12(1)(v) of the Clean Air Act, the DENR continues actively investigating the matter; as such, the ministry cannot comment further until the investigation is complete.”

The section refers to emissions control orders that the ministry said could be enforced in this case in relation to damage to property.

Neighbouring properties have been showered with soot since the commissioning of the NPS in 2020, while high levels of sulphur dioxide have been found in the air near the plant.

Emission control orders may also be issued under the act to deal with contaminants that are likely to be, injurious to life or health.

The ministry did not respond to further questions by press time yesterday.