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Federated States of Micronesia Environmental Protection Act Enforcement [Title 25 Chapter 7]

CODE OF THE FEDERATED STATES OF MICRONESIA

[1999 FSM Code Annotated]

TITLE 25 - ENVIRONMENTAL PROTECTION

CHAPTER 7

Enforcement

Sections:

§ 701. Cooperative agreements.
§ 702. Environmental impact statements.
§ 703. Right of entry.
§ 704. Violation - Enforcement action.
§ 705. Administrative procedure applicable.
§ 706. Judicial review.
§ 707. False statements.
§ 708. Transition.

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§ 701. Cooperative agreements.

(1) The Board is authorized to enter into written cooperative agreements with the States or State agencies for the purpose of:

(a) collecting data and any information relative to identifying the local needs with respect to controlling, protecting, and enhancing the environmental quality of the State;

(b) acting as an agent of the Board in implementing programs at the State level;

(c) providing funds from the Board for the purpose of implementing environmental protection program activities within each State;

(d) conducting investigations, making studies, reviewing local grievances, and making recommendations as needed to the Board; and

(e) performing any other activities within the jurisdiction of the Board.

(2) Such function or functions delegated to the States pursuant to Subsection (1) of this Section may be reassumed and performed by the Board if such delegation will result in the actual termination of any financial grant received by the Board. Notice of such reassumption shall be by written notice to each State or State agency involved.

Source: PL 3-83 § 12.

Annotations

It is by no means clear that Secretary would be permitted to, as a matter of law, delegate his permit-granting authority under EPA regulations to some other person or official. Damarlane v PTA, 5 FSM Intrm 1, 6 (Pon 1991).

Bare conclusory statement by government that Secretary had delegated permit-granting authority to the State of Pohnpei without any indication as to how the delegation was accomplished is insufficient to establish that lawful delegation had occurred. Damarlane v PTA, 5 FSM Intrm 1, 7 (Pon 1991)

§ 702. Environmental impact statements.

(1) The National Government and its agencies shall submit an environmental impact statement to the Board, in accordance with regulations established by the Board, prior to taking any major action significantly affecting the quality of the human environment. This requirement shall apply to any such action funded in any part by the National Government or its agencies; provided, that in such case the recipient of the funds may be required to submit the environmental impact statement as a condition to its receipt of funds.

(2) The environmental impact statement required by Subsection (1) of this Section shall be a public document, and shall include a detailed statement on:

(a) the environmental impact of the proposed action;

(b) any adverse environmental effects which cannot be avoided should the proposal be implemented;

(c) the alternatives to the proposed action;

(d) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and

(e) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Source: PL 3-83 § 13.

§ 703. Right of entry.

Whenever it is necessary for the purposes of this Subtitle, the Board, or any member, agent, or employee when duly authorized by the Board or by Court order, may, at reasonable times, enter any establishment or upon any property.

Source: PL 3-83 § 14.

§ 704. Violation - Enforcement action.

Any person who violates any provision of this Subtitle, or any permit, regulation, standard, or order issued or promulgated under this Subtitle, shall be subject to enforcement action by the Board. Such enforcement action may include, but is not limited to:

(1) an order to cease and desist from the violation, or to comply within a specific time period;

(2) an order to clean up or abate the effects of any pollutant;

(3) the imposition of a civil penalty up to $10,000 for each day of the violation. Penalties collected under this Subsection shall be paid to the Treasury of the Federated States of Micronesia for credit to the General Fund of the Federated States of Micronesia;

(4) a civil action commenced in the Trial Division of the Federated States of Micronesia Supreme Court to enjoin the violation;

(5) a civil action for damages commenced in the Trial Division of the Federated States of Micronesia Supreme Court. Such action may be in addition to any civil penalties imposed hereunder. In determining such damages, the Court shall take into consideration all relevant circumstances, including, but not limited to, the extent of harm caused by the violation, the nature and persistence of the violation, the length of time over which the violation occurred, and corrective action, if any, taken by the violator. Damages collected under this Subsection shall be paid to the Treasury of the Federated States of Micronesia for credit to the General Fund of the Federated States of Micronesia; and

(6) conducting a public hearing to determine the authenticity of the facts upon which the alleged violation is based, adequate notice of which and opportunity to appear and be heard at which shall be afforded to all interested persons.

Source: PL 3-83 § 15.

Annotations

Acts that do not provide for a private citizen's cause of action for monetary damages cannot be used to create a duty for the breach of which damages may be awarded. Pohnpei v M/V Miyo Maru No. 11, 8 FSM Intrm 281, 292 (Pon 1998).

Claims for damages for violation of the FSM Environmental Protection Act and for damage based on an alleged property interest in the reef and lagoon adjoining plaintiffs' land will be dismissed for failure to state a claim for which relief may be granted. Damarlane v FSM, 8 FSM Intrm 119, 121 (Pon 1997).

The FSM Environmental Protection Act does not provide for a citizen's claim for damages. Damarlane v FSM, 8 FSM Intrm 119, 121 (Pon 1997).

§ 705. Administrative procedure applicable.

The provisions of Sections 704 and 707 of this Chapter shall be interpreted consistently with the provisions of any law concerning administrative procedure which is or may hereafter become Federated States of Micronesia law. In the event of conflict between the two, the provisions of the latter shall supersede and be controlling.

Source: PL 3-83 § 16.

§ 706. Judicial review.

(1) Any person who is or will be adversely affected by the enforcement of any standard, policy, regulation, permit, order, or penalty of the Board and who alleges its invalidity may file a petition for a declaratory judgment thereon in the Trial Division of the Federated States of Micronesia Supreme Court.

(2) The Court shall declare the standard, policy, regulation, permit, order, or penalty invalid if it finds that it exceeds the statutory authority of the Board, or that it is arbitrary and capricious.

Source: PL 3-83 § 17.

Annotations

Court found as a matter of law, under circumstances of case, that issuance by National Government officials of a permit authorizing earthmoving by a State agency, without holding a hearing and based simply upon the application filed by the State agency and the minutes prepared by State officials, was arbitrary and capricious. Damarlane v PTA, 5 FSM Intrm 1, 8 (Pon 1991)

§ 707. False statements.

Any person who knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under this Subtitle, or by any permit, regulation, or order issued under this Subtitle, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this Subtitle or by any permit, regulation, or any order issued under this Subtitle, is guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than $10,000, or by imprisonment for not more than 6 months, or by both.

Source: PL 3-83 § 18.

§ 708. Transition.

In order to ensure continued compliance with the requirements of the Trust Territory Environmental Quality Protection Act (Subtitle 1 Chapters 1 through 5 of Title 25 of the Code of the Federated States of Micronesia) and all regulations adopted pursuant thereto, said act and regulations shall remain in effect and shall control in the event of any conflict with this Subtitle, except as follows:

(1) The Trust Territory Environmental Protection Board (TTEPB) may delegate through memorandum of understanding any of its functions to the Board consistent with the requirements of the applicable United States law upon a finding by the TTEPB that such delegation will not jeopardize any grant of financial assistance. Such delegated function or functions may be reassumed and performed by the TTEPB, pursuant to written notice to the Board, if such delegation will result in the actual termination of any financial grant;

(2) Chapter 4 of Title 25 of this Code is repealed in its entirety with respect to the National Government of the Federated States of Micronesia. The District Advisory Board of each State, created pursuant to Chapter 4 of Title 25 of the Code of the Federated States of Micronesia, shall remain unaffected by this repeal or the repeal under Subsection (3) of this Section. Each District Advisory Board is within the jurisdiction and control of its respective State. This Subtitle shall not be construed to prevent a State legislature from creating a State board or other agency for the purpose of assuming the functions of the existing District Advisory Board;

(3) The remainder of Subtitle 1 of Title 25 of the Code of the Federated States of Micronesia shall be repealed in its entirety upon:

(a) the amendment of Secretarial Order No. 3039, Section 3(a)(3), to permit the Federated States of Micronesia to become a direct grantee of funds available under applicable United States law; and

(b) the amendment of applicable United States law to permit the Federated States of Micronesia to become a direct grantee;

(4) Upon repeal under Subsection (3) of this Section, all regulations adopted pursuant to Title 25 of this Code shall continue to remain in effect until amended or repealed. All references in said regulations to officials, boards, and agencies of the Trust Territory Government shall refer to the functionally equivalent official, board, or agency of the National Government;

(5) Upon repeal under Subsection (3) of this Section, valid permits and certificates issued for activities within the Federated States of Micronesia pursuant to Title 25 of this Code shall continue to remain in effect in accordance with the terms and conditions thereof until amended, suspended, or revoked pursuant to law.

Source: PL 3-53 § 19.

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