POND ISLAND--St. Maarten residents Barbara Cannegieter and Camiel Koster and law firm Bergman Zwanikken Snow Essed (BZSE) filed a petition Friday for an injunction against Country St. Maarten, the Ministry of Public Housing, Spatial Planning, Environment and Infrastructure VROMI and current management company of the landfill Robelto and Son B.V. in Sucker Garden.
Plaintiffs request that the Court order government and the dump operator to take effective measures to prevent the emission of smoke, gases and stench at the landfill within three months following a Court ruling.
They also request that the Court order government to have an official institution such as the Netherlands Institute for Public Health and the Environment RIVM in Bilthoven, the Netherlands, conduct measurements of the toxic fumes.
The plaintiffs base their claim on legal protection they may invoke under environmental laws which are anchored in the Civil Code. Furthermore, they argue that government and the dump operator can be held liable based on “tort” or an “unlawful act”.
Article 5:37 of the Civil Code is at the core of the dispute, as this article stipulates that the owner of a parcel of land may not cause hindrance such as, but not limited to noise, smoke, gases, stench and tremors in a tortious manner to the owners of other parcels of land.
“It is a fact that the dump does emit stench, smoke and gases continuously. Since the winds in St. Maarten are mostly from an Easterly direction, the plaintiffs who work and live west of the dump suffer weekly and sometimes daily, depending on the winds,” plaintiffs said in a press release.
Cannegieter (76) lives at Sugar Hill Drive in Dutch Cul de Sac, less than two kilometres from the dump. Koster lives in Beacon Hill, which is at a distance of seven kilometres as the crow flies. He works as an attorney at BZSE law office in Belair, which is about two kilometres West of the dump. Both claim they suffer regularly from dumpsite emissions.
They complain not only of a foul smell, but also of stinging eyes. Sometimes the smoke affects throats, lungs and nasal cavities. This sometimes leads to coughing, especially among persons who are vulnerable to irritated bronchi, such as Koster. “It has even happened that employees of BZSE went home due to the inconvenience,” plaintiffs said.
Cannegieter suffered the same physical complaints and also has headaches, particularly when the dump is on fire again.
In St. Maarten almost all waste is being dumped “freely and uncoordinated” at the landfill. This includes not only household waste, but also appliances, vehicles, chemical waste and batteries.
According to plaintiffs, government has not developed any “serious” plans or policies to tackle the problems with waste.
“The uncoordinated dumping of waste has led to a gigantic waste mountain. In this mountain all kinds of chemical processes arise which lead to a now continuous emission of stench, gases and smoke. With some regularity, fires emerge on the waste mountain. The government and fire brigade of St. Maarten then advise its citizens to close windows and doors,” they stated in their petition to the Court.
Cannegieter, Koster and BZSE hold Country St. Maarten and Robelto and Son liable, as these had failed to take any visible action to prevent or reduce the inconvenience, even though it is stated in Article 22 of the Constitution that “the government’s constant concern is directed at the habitability of the country and the protection and improvement of the living environment.”
According to plaintiffs, Country St. Maarten is in violation of its constitutional obligation to promote public health and liability of the country. It knowingly allows the dump to be operated without the required permits and allows all types of waste, allegedly even from abroad, to be discharged on the dump.
On April 16, Koster filed a request, based on the Open Government Law (Landsverordening Openbaarheid van Bestuur, (LOB)), for a copy of the agreement between Country St. Maarten and the dump operator. He also requested access to all reports and policies relating to the dump.
The Minister declined to respond to the request, as inspection of the requested documents may frustrate the investigation initiated by the Prosecutor’s Office, he stated in a letter of August 9.
Four days later, the Prosecutor said in an email message that the information requested by Koster “cannot interfere in any way with the interests of investigation or prosecution. I am, therefore, of the opinion that disclosure of the requested information could not be refused on the ground that disclosure could damage the interests of investigation and prosecution.
“Finally, I note that the Minister of VROMI has not contacted the Prosecutor’s Office in order to discuss your client’s LOB request or to hear our position in this respect. The same applies to his civil servants: there is no one in government who has approached the OM [Prosecutor’s Office – Ed.] to discuss your request. I also note that the Minister of VROMI and his officials are not familiar with details of the investigation.”
Failure to take action
According to the three plaintiffs, government has failed to take any visible action to prevent or reduce the inconvenience, whereas it is “a fact” that the dump is located on a parcel of land that belongs to government and for which Country St. Maarten and the minister are legally responsible.
“Furthermore, it is an uncontested fact that the dump emits odours, fumes and gases every day and that the dump is on fire several times a month, when the nuisance becomes much worse. During a fire, Koster, even seven kilometres downwind in Beacon Hill, closes windows and doors because he fears the health of his pregnant wife, their unborn child and his two young children of two and four years old,” it is stated in the petition.
According to the High Court, the answer to the question whether the infliction of nuisances is unlawful depends on the nature, severity and duration of the nuisance and the damage caused thereby in connection with the further circumstances of the case under the local conditions.
The plaintiffs claim the nuisance is virtually continuous. Only if the wind does not come from the East, the residents of Belair and Sugar Hill Estate have no, or at least fewer problems with gases, odours and smoke. The nuisance is also serious. The long-term health effects are unknown, but it is considered “plausible” that these will not be positive.
“After all, on the dump, electronic, chemical and other hazardous waste is also discharged, burned and spread over the island in smoke, gases and stench,” they said.
Plaintiffs demand that government take all necessary measures to prevent the emission of smoke and odour as soon as possible, but in any event within three months of a judgment.
“The government has been arguing for years that it is working on a solution to the problem, so it will undoubtedly have already figured out which solutions exist for the short term,” they said in considering a period of three months “reasonable.”
They also request the appointment of an institution of repute, such as RIVM, to establish the exact levels of gas, smoke and odour emissions and to provide plaintiffs with an “integral and uncensured” copy of the report.
In case of non-compliance, the Judge is requested to attach to the verdict daily penalties of US $5,000, with a maximum of $1 million. It is not yet known when the case will be heard, presumably next month, plaintiffs said.