THE company behind the proposed Energy-from-Waste Plant at Vuda Point will argue that the Director of Environment wrongly interpreted the law by refusing to consider additional information submitted during the Environmental Impact Assessment process, appeal documents obtained by The Fiji Times reveal.
The appeal comes before the Environment Tribunal today.
In the first ground of appeal before the Environment Tribunal, Next Generation Holdings (Fiji) Pte Limited claims the Director misdirected herself in law by concluding that information submitted after the EIA report could not address deficiencies identified during the review.
The appeal argues the Environment Management Act and EIA Regulations specifically allow the processing authority to request further information, documents and amendments throughout the assessment process.
“The Respondent misdirected herself in law… by treating herself as legally unable to seek, receive or consider further information at the EIA review stage.”
The company says the Director incorrectly relied on the view that information provided after submission “cannot cure material omissions.”
According to the appeal, the legislation is designed to give proponents an opportunity to amend and supplement reports before a final decision is made.
Next Generation Holdings says the Director of Environment wrongly concluded that several issues identified in the Environmental Impact Assessment could not be addressed through approval conditions.
The second ground of appeal argues the Environment Management Act provides broad powers to impose conditions covering monitoring, environmental safeguards, waste disposal and operational requirements.
“There is nothing in the Act… which prohibits certain matters from being the subject of conditions of approval.”
The company argues issues relating to human health, coastal hazards, logistics, social impacts and public consultation could all have been managed through conditions attached to an approval.
It says the Director wrongly assumed these matters automatically prevented approval.
The company has also accused the Director of Environment of failing to consider information submitted after a review meeting with the Technical Review Committee.
According to the appeal, a meeting was held on 26 May during which numerous technical questions were raised.
The company says it submitted written responses on 31 May.
“The Respondent erred by failing to consider this material.”
The appeal argues no evidence has been produced showing the additional information was considered before the decision rejecting the proposal was issued.
Next Generation Holdings says it was denied procedural fairness throughout the EIA assessment.
The fourth ground of appeal alleges the company was not given enough time to respond to technical questions and was never provided with detailed agendas before review meetings.
The appeal also claims important material relied upon in the decision was never disclosed.
These included individual assessment reports, information relating to a proposed tourism development and correspondence involving the Tui Vuda.
“By failing to make these adverse materials available… the Appellant was denied the opportunity to meaningfully respond.”
The company says this amounted to a denial of natural justice.
The company also argues the Department of Environment made several factual errors when assessing the proposal.
Among the issues challenged are findings relating to water demand, waste bunker design and environmental safeguards.
The appeal says the Department incorrectly assessed the project’s water requirements by assuming it would use wet-cooling technology.
“This was a material error of fact.”
The company maintains many of the Department’s conclusions were based on misunderstandings of the technology proposed.
The sixth ground of appeal argues that legal, procedural and factual errors materially affected the final decision.
The company says had the correct process been followed, the Director may have reached a different conclusion.
“Had the administrative errors not occurred… an entirely different decision on the merits would have been arrived at.”
The appeal says the Director wrongly identified sections of the EIA as incomplete and failed to allow the company to respond before rejecting the application.
In its final ground of appeal, Next Generation Holdings argues the Energy-from-Waste project is in the public interest and should receive approval.
The company says the development would divert combustible waste away from landfills, reduce Fiji’s dependence on imported fuel and provide a reliable source of electricity.
It also argues the project would create jobs, stimulate economic growth and provide long-term benefits for local communities.
“The proposal is meritorious and the EIA Report should be approved, subject to conditions.”
The company is asking the Environment Tribunal to overturn the Director’s decision and approve the project, or alternatively return the matter to the Department of Environment for reconsideration through a fresh review process.
