Emergencies: Sections 31, 32 and 33

(b) Remedy or mitigate any pollution caused by its presence.

(c) Issue orders immediately restraining or prohibiting the person concerned from discharging any poisonous, noxious or polluting matter into the stream, well or on land, or from making insanitary use of the stream or well.

The limit, sub-section (2). The power does not include the power to construct any works other than works of a temporary character which are removed on or before the completion of the operations.

That limit is the whole character of the section. It is a power to clean up and to stop, at once, and not a power to build. A Board that wants permanent works uses section 30 or a condition of consent.

And note clause (c). The power to issue an immediate restraining order is a power to act without notice, which is what makes it an emergency provision. The general power to direct, with the safeguards that attach to it, is section 33A.

Section 33: going to a magistrate

When. Where a Board apprehends that the water in a stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in that stream or well, or in any sewer or on any land, or otherwise.

Where. An application to a court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class.

What the court may do. Such order as it deems fit, and where it restrains a person from polluting, it may in that order:

1. direct the person who is likely to cause or has caused the pollution to desist from the action likely to cause it, or to remove the matter from the stream or well; and
2. authorise the Board, if a direction for removal is not complied with, to undertake the removal and disposal of the matter in the manner the court specifies.

Sub-section (4), the money. The Board's expenses in removing or disposing of the matter under that authorisation may be defrayed out of any money obtained by the Board from the disposal, and any balance is recoverable from the person concerned as arrears of land revenue or of public demand.

The detail about defraying the cost from the proceeds of disposal is a small piece of drafting worth noticing: removed matter may have value, and the Act sets it off before the balance is recovered.

Why there are three sections and not one

Because they answer three different questions.

Section 31 is about information, and it runs from the occupier to the Board.

Section 32 is about immediate self-help, and it lets the Board act on its own without going to anybody.

Section 33 is about anticipation, and it exists because sections 24 and 32 both need matter to have entered or to be entering. Where a Board only apprehends that pollution is likely, it has nothing to remove and nothing to restrain under section 32, so it goes to a magistrate for an order to stop the thing before it starts.

A worked example

A tank at a chemical unit ruptures at two in the morning. Several thousand litres of process liquid run across the yard, some into a storm drain and some into the soil.

Section 31. The person in charge must forthwith inform the State Board and the prescribed authorities. The rupture is an accident, the matter is polluting, and it is being discharged onto land and into a sewer. It makes no difference that he hopes to contain it.

Section 32. The Board, taking the view that immediate action is necessary, may remove the matter from the land and dispose of it, may take steps to remedy or mitigate the pollution, and may immediately order the unit to stop discharging. It may not build a permanent interception chamber, because sub-section (2) confines it to temporary works removed on or before completion.

Section 33. Suppose instead that the Board learns that the unit proposes to empty a lagoon into a nullah next week. Nothing has been discharged, so there is nothing to remove under section 32. The Board applies to the Judicial Magistrate of the first class for an order restraining the disposal, and the court may direct the unit to desist and may authorise the Board to remove the material if a removal direction is disobeyed.

And the cost of all this? Under section 33(4) the Board's removal and disposal expenses are met first out of anything realised on disposal, with the balance recoverable as arrears of land revenue. Under section 32 the Act does not spell out recovery, which is one reason a Board that expects a large bill prefers to proceed under section 33 or under section 30.

Distinctions

What it does NOT mean

Section 31 does not apply to an ordinary breach. It is triggered by an accident or other unforeseen act or event.

Section 32 does not authorise construction. Only temporary works removed on or before completion of the operations.

Section 33 does not need pollution to have occurred. Apprehension of likely pollution is the trigger, which is what distinguishes it from everything else in this part of the Act.

Section 33 does not go to any magistrate. The court must be not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class.

Quick revision

• 31: on an accident or other unforeseen act or event causing an actual or likely discharge of poisonous, noxious or polluting matter into a stream, well, sewer or land, the person in charge must forthwith inform the Board and the prescribed authorities. A local authority running a sewerage system is under the same duty.
• 32: on matter being present or having entered, and the Board being of opinion that immediate action is necessary, it may remove and dispose, remedy or mitigate, and immediately restrain or prohibit discharge or insanitary use. No permanent works, only temporary ones removed on completion.
• 33: on apprehended pollution, application to a court not inferior to a Metropolitan Magistrate or a Judicial Magistrate of the first class; the court may direct the person to desist or remove, and authorise the Board to remove on default. Expenses met from the proceeds of disposal, balance recoverable as arrears of land revenue.

Test yourself

1. What triggers the duty to inform under section 31, and who owes it? An accident or other unforeseen act or event at a place where an industry, operation or process or a treatment and disposal system is carried on, as a result of which poisonous, noxious or polluting matter is being discharged, or is likely to be discharged, into a stream, well or sewer or on land. The duty is on the person in charge of the place, and by sub-section (2) it applies equally to a local authority operating a sewerage system or sewage works.

2. What may a Board not do under section 32, and why does the limit matter? It may not construct works other than works of a temporary character which are removed on or before the completion of the operations. The limit matters because it fixes the character of the section: it is an emergency power to clean up, mitigate and stop, exercisable at once and without notice, and not a power to build permanent infrastructure at the polluter's expense. For that the Board uses a consent condition and section 30.

3. Why does the Act need section 33 when it has section 32? Because section 32 requires the matter to be present in, or to have entered, the stream, well or land, so there must already be something to remove or to remedy. Section 33 operates where the Board merely apprehends that the water is likely to be polluted by reason of a disposal or likely disposal. There is nothing to remove, so instead of acting itself the Board applies to a magistrate for an order restraining the person before the disposal happens.

4. Who pays for a removal carried out under a section 33 authorisation? The person concerned, but not directly at first. Under sub-section (4) the Board's expenses in removing or disposing of the matter may be defrayed out of any money obtained by the Board from the disposal, and any balance outstanding is recoverable from the person concerned as arrears of land revenue or of public demand.