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Residents may go to court to force action over Belco emissions

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Clearing the air

A lawyer representing residents affected by pollution from Belco has issued a letter to Kim Wilson, the Minister of Health, calling on her to rule excessive emissions from the plant a statutory nuisance.

Mark Pettingill, director of Chancery Legal Ltd, filed a formal complaint yesterday about the emissions on behalf of several clients who have been living with soot fallouts and chemicals in the air, including sulphur dioxide.

Statutory nuisances include dust, smoke or effluvia that is prejudicial to the health of, or is offensive to, the inhabitants of the neighbourhood.

Mark Pettingill, director of Chancery Legal Ltd and former Attorney-General (File photo by Akil Simmons)

Mr Pettingill asked the minister to inform him of her intended action within seven days and said an application for a judicial review would be on the table if the minister does not abide by the law.

He also said that the nuisances were caused by a low-quality fuel – Belco uses heavy fuel oil as a primary fuel – and that steps should be taken to make use of cleaner fuels. The Royal Gazetterecently revealed that a leading British environmental consultancy firm determined that ditching HFO was likely to reduce problem emissions at the Pembroke plant.

Describing the issue of pollution from Belco as a “matter of national concern”, Mr Pettingill wrote: “It is a common sense conclusion that these deposits are impacting on the health and welfare of individuals in the area by polluting the air and water, and also causing regular noxious odours, all of which are offensive to our clients and have been detected as far away as Harbour Road in Paget.

“It is further beyond refute that these nuisances are a result of the burning of low-quality fuel at Belco and the failure to abate emissions properly, and are prejudicial and offensive to the inhabitants, schools and business operations in the area.

“We respectfully make a formal complaint on behalf of the area residents requiring your immediate attention and action.”

Kim Wilson, the Minister of Health, has the power to rule problem emissions from Belco as a statutory nuisance under the Public Health Act 1949 (File photograph)

A ministry spokeswoman told The Royal Gazette last week that the Government was conducting a thorough investigation into the emissions after recent complaints. Complaints have been filed to Belco on emissions since the commissioning of the North Power Station in 2020.

Mr Pettingill highlighted that Belco continued to perpetuate the nuisances and that in considering the Act, the author of the nuisance should be deemed to be not only Belco but also its ultimate parent company Algonquin.

He said that the Canadian company, at the time of its acquisition of the plant, “effectively assured” the Government, regulators and people of Bermuda that it would “commit $300 million to increase the amount of reusable energy to ultimately replace fossil fuels … not just helping the local economy but helping the planet”.

Mr Pettingill continued: “Given the ongoing events, these assertions ring painfully hollow.

“It is entirely understandable why right-thinking people view the current crisis as a large corporate organisation putting profit over Bermudians’ health.

“For reasons that are unknown to us, and despite the vociferous comments of a number of government ministers, the Government has failed to take the action required.”

He submitted that in accordance with section 54 of The Public Health Act, the ministry should have no difficulty in being satisfied over the existence of nuisances which Walter Roban, the Minister of Home Affairs, recently described as “abhorrent”.

He highlighted that Jason Hayward, an area MP for the Progressive Labour Party, called for residents to receive free electricity bills for their troubles.

Mr Pettingill is representing the clean air pressure group Bermuda Clean Air Coalition, Sharon Riviere, Thad Murdoch and Anthony Hayward.

Mr Pettingill’s letter described the situation as “nothing short of an environmental and health emergency”.

He added: “Our clients require you as a matter of urgency and national importance, and in the public interest, to act in accordance with your powers as health minister, and cause there to be served on the authors of the nuisance an order requiring that said nuisance be immediately abated.”

He called for urgent steps be taken to use a cleaner burning fuel so as to mitigate pollutants and for immediate work to begin on the refurbishment, adjustment or maintenance of the current Belco plant to ensure that the nuisance is properly abated in accordance with required legislation.

He continued: “We would respectfully ask that you confirm your intended action to us within seven days, our clients reserve all of their legal rights and options in order to ensure that the aforementioned nuisance is addressed by your ministry and the Government.”

A property on St John’s Road following a soot fallout from Belco last July (File photograph)

When approached by The Royal Gazette, Mr Pettingill said: “Ministers have a duty to follow the law and failure to do so can result in judicial review on application to the Supreme Court."

A spokesman for Belco said: “For the past 115 years, Belco has provided Bermuda with an electric service it can depend on and we remain committed to ensuring our customers have access to reliable, safe electricity. We also take the relationship with our customers and neighbours seriously and continually work with the challenge of operating in a residential neighbourhood.

“We are aware of the impacts the operation of our North Power Station has had on our neighbours and we will not rest until we have solved the issues that have impacted their lives and property. Our team has always been transparent and communicated with the neighbours and we will continue to do so.

“At Belco, we are committed to, and are tirelessly working towards, a sustainable future and we thank all of our customers for their patience while we transition Belco to a sustainable electric utility.”

Denise Riviere, spokeswoman for the Bermuda Clean Air Coalition (Photograph supplied)

Ms Riviere, speaking on behalf of the pressure group BCAC, said: “We are simply appealing to Government to do the right thing by taking a stand on behalf of the people of Bermuda enduring this toxic pollution. We do not live in a third-world country where we should have to fight for clean air and clean water.

“It is disgusting that we are having to beg for our lives, for a descent quality of life and for the preservation of our property in this way. It must stop.

“The community members impacted invite any one from the Government, Regulatory Authority or Belco (Algonquin) to come to our houses and have a drink of tank water, brush their teeth or come take a shower using our tank water, come sleep in our pungent air. Please, enough is enough.”

The Ministry of Health has been approached for comment.

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Published March 09, 2023 at 8:19 am (Updated March 09, 2023 at 7:04 pm)

Residents may go to court to force action over Belco emissions

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