Bill to create new Department of Environmental Protection finally introduced

Would see Port Director as trustee of the Cleanup Fund

The Togiola Administration’s bill to create a new Department of Environmental Protection (or DEP), by law, has some lawmakers saying because of the FY 2013 budget review, it may never be fully reviewed.

The new DEP would replace the current American Samoa Environmental Protection Agency, which was established by executive order some 20 years ago, was introduced in both the Senate and House before lawmakers went into their one-week recess.

The proposal was sent to the Fono in February this year, with the governor saying that the proposed legislation will give the new department “authority to regulate environmental matters with the least amount of disturbance to current operational methods”.

It’s unclear why it took so long for the Fono leaders to introduce the measure in both chambers, but the proposal arrived in the Fono at a time when lawmakers were dealing with other issues such as LBJ hospital funding.

Lawmakers reconvene next Monday after another mid session recess — this time for one week — and their priority is the final budget for the new fiscal year 2013 — which needs to be passed by the Fono and signed into law by the governor before midnight of Sept. 30, as the new fiscal year begins Oct. 1.

The second recess by the Fono was to save session days while awaiting submission of the budget. Budget and Planning Office director Malemo Tausaga said it should be sent to lawmakers by the third week of this month.

With the budget a pressing issue, some lawmakers say they may never get a chance to fully review the DEP measure before the 32nd Legislature officially ends late next month, or the first week of October.



The 53-page English version of the bill states the purpose of DEP “is to protect human health, the environment, and natural resources — air, water, and land — upon which all life depends.”

DEP will be headed by a director appointed by the governor for a term of four years, and shall serve until his successor is appointed. The director may be reappointed for subsequent 4-year terms.

Not stated in this provision is whether or not the director of DEP is subject to Fono confirmation and this is something that lawmakers plan to find out from the administration, if this bill does come up for a hearing.

One of the proposed changes deals with  “Title 20, Chapter 02 - Marine Inspection, Certification, License” of the American Samoa Code Annotated for Section  20.1118 titled “Executive Secretary of the Environmental Quality Commission”.

The bill’s amendments will dissolve the “Executive Secretary of the Environmental Quality Commission” and replace it with the Port Administration director, as trustee of the Cleanup Fund, which is money collected at Port in the form of fines, outlined in local law.

The Cleanup Fund, established in the Treasury Department, shall be used for the purpose of cleaning up discharges in the waters of American Samoa that are violations of local laws.

If signed into law, the Port director (no longer the  Executive Secretary of the Environmental Quality Commission as Trustee of the Fund) is empowered to direct the cleanup of sludge, oil refuse, fuel oil, or any product which may cause contamination of the waters of American Samoa.

Another important change in the bill would revise the “American Samoa Pesticide Act of 1979”, which currently gives the Department of Agriculture director the authority to enforce this Act. Under the proposed amendment, the enforcement authority will rest with the director of DEP or those persons the director designates to act within his capacity under this act.

The DEP director — under another proposed amendment — can issue citations for violations of this law. Several technical changes and new proposed amendments are also included in the bill for the Pesticide Act pertaining to application for certificates.

Other amendments would give the DEP director powers and duties on provisions of the Pesticide Act, for example, the DEP director would have the power to ban the importation of fungicides, herbicides and insecticides if he finds they constitute a danger to the people, animals and crops in the territory.

The Agriculture Department director will maintain the responsibility of purchasing, stocking, and selling of fungicide, herbicide and insecticide distributed by the government, but shall be in accordance with this Act.

Another proposed amendment will give the DEP director, or his designee, authority to protect the health of those who use the public water system, water bottling facility, bottled water or water dispensing machines. Health Department director currently oversees many of these responsibilities.

DEP officials, under this legislation, would be authorized to enter and inspect public water systems, water bottling facilities or water dispensing machines, and to take samples of water or other liquids for analyses during business hours.

Other major points on the legislation:

•         Codifies environmental protection as it is currently practiced by properly allocating authority for many functions to the new department. Among those functions are sanitation inspections, drinking water monitoring, septic tank regulation and pesticide enforcement, which are currently assigned to other agencies by statute;

•         Establishes a procedure for the judicial review of emergency and non-emergency orders issued by the new department’s director;

•         Creates the office of the environmental prosecutor to ensure environmental protection remains a priority in the territory.

•         Codifies a citizen suit provision that has already been recognized by the High Court;

•         Empowers the new department to create citation programs for enforcement of its law and regulations, giving credibility to its power and creating revenue for the general fund;

•         Allows American Samoa to continue to secure grant funding from USEPA.

The governor says this legislation will secure DEP’s position as the primary environmental authority in American Samoa by codifying its status through legislation, which will also ensure that ASG and DEP have the proper tools to implement a sustainable environmental policy “for the betterment of future generations.”


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