High Court scraps Schlumberger’s permit to operate radioactive materials facility at Houston

Schlumberger’s (Guyana) permit to possess, use, and store radioactive materials at its main location at Lot 1, Area X Houston, East Bank Demerara (EBD) was on Friday quashed by High Court Judge Nareshwar Harnanan, who found that the Environmental Protection Agency (EPA) breached its statutory duties when it issued the licence to the company in January of this year.
Justice Harnanan has declared that the decision of the EPA to not conduct an environmental impact assessment (EIA) into the effects of the construction of such a facility prior to the issuance of the permit was not only illegal, ultra vires, unreasonable and irrational, but also was in contravention of the Environmental Protection Act.

In the circumstances, the Judge has also granted an injunction against Schlumberger, commanding it to refrain from continuing activities in the area, unless and until it could obtain a lawful permit. He also awarded costs against the company, but said it is to be assessed before being granted, unless the parties could agree to a sum among themselves.
Danuta and Vanda Radzik and Raphael Singh, who are residents of Houston, EBD, had earlier this year filed legal action against the EPA over its decision to waiver an EIA for the construction of the facility to Schlumberger — one of ExxonMobil’s (Guyana) major subcontractors.
Besides the EPA, these residents, hereinafter referred to as the applicants, had listed the Environmental Protection Board (EPB) and Schlumberger as respondents in the action, filed on their behalf by Attorneys-at-Law Siand Dhurjon, Ronald Burch-Smith and Maylene Alleyne.
The applicants had said that, in April 2021, they discovered that Schlumberger was proposing to construct a storage facility for radioactive substances at its current location, and that the EPA had waived the need for the company to do an impact study for the proposed project.

Contending that the project puts their health and community at significant risk, as the permit contains no provisions that regulate how Schlumberger is to ensure that the facility is safe for the storage and use of radioactive substances, they had asked the court to declare that the EPA’s decision to waive the requirement for an EIA was in breach of its statutory duty; was contrary to natural justice; was arbitrary, ultra vires, and without any legal foundation; and should therefore be quashed.
Given that Houston and the immediate environs include residential areas where hundreds of people live, and the area for the facility is close to schools and places of worship, the applicants had contended that the EPA should have consulted with residents before waiving an EIA for a project of this nature.
The applicants had said that it was not until April 11, 2021 that the EPA had issued a public notice, via the press, which stated that Schlumberger had applied for an environmental authorisation. The notice, which was published in the Guyana Chronicle, they added, further stated: “It has been determined that the proposed project will not significantly affect the environment or human health, and is therefore exempt from the requirement for an Environmental Impact Assessment.”
The notice had also said the public could appeal against the EPA’s decision within 30 days.
“The notice was vague and deficient in detail, and omitted significant relevant details about the nature and scope of the proposed facility. The project summary was effectively concealed from the public, and not made readily available to persons who may have concerns,” the applicants had deposed.
In protesting the EPA’s decisions, they had questioned the basis upon which it concluded that an impact study was not required for the project. The residents’ primary argument had been that radioactive materials should not be used and/or be located close to neighbourhoods, schools, the main highway, or the Demerara River.
Relying on Section 11 of the Environmental Protection Act, the applicants had pointed out that an impact assessment is required for any project that may significantly affect the environment, that such an assessment should be publicised, and that members of the public should be consulted.
The trio had also submitted that the EAB had refused to consider their appeal against the decision to waive the EIA, and had provided legalistic and inadequate reasons for its decision.
While grilling the EPA’s decision, they had submitted that the agency had informed them that it had used a screening tool it had developed, but it had refused to disclose the form and content of this tool, or how it had been applied.
According to these applicants, the EPA has a “track record” of unreasonable and irrational actions regarding applications for EIA relating to the oil and gas industry. Further, the applicants had complained that the EPA lacked resources, and had no interest in regulating radioactive facilities according to international best practices. This, they noted, is critical, given the absence of an adequate national regulatory framework that specifically deals with industrial radioactive sources.
They added that the project is part of the unlawful industrialisation of Houston and its environs.
In the circumstances, they had contended that EPA has a statutory duty to require an EIA for any activity which may cause an adverse effect on the natural environment.
The EIA process, the residents had highlighted, is outlined in the Environmental Protection Act and the Constitution of Guyana, which guarantees environmental rights and democracy, specifically Article 149 (J) of the Constitution, which establishes that “everyone has the right to an environment that is not harmful to his or her health or wellbeing.”
Since the facility had already been constructed at the time of the filing of their application, the applicants had been granted permission by Justice Harnanan to amend their action to target the operation of the facility being used for the storage of radioactive materials.