Administmtive Law

FiliDg Attorney: Mucdle Fenlinand FEM 1979013

JD. SeDier & Co.
Attorneys-at-Law & Notaries Public
129/131 Aberaomby saeet
Port of Spain
Tel: 623-4283
FlIX: 62+6314

nnail: [email protected]
Sad_ Co_d: Deborah Peake S.C.GODl982015
Abercromby Court
86 Abercromby Street
Port of Spain
Tel: 623-5053
Fax: 623-3617
.-mail: dprakesc@&mail·com
J.aior ee...-eb KawyD GuGa GAKl993013
CadisIe Ownbers
64 Abetttomby Stteet
Port of Spain
Tel: 625:6700.0<1
J~62S- 67Q~ . .~
<.~tP"'ja@tsttnS'ttt ;.
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REPUBUC OF TRINIDAD AND TOBAGO
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IN THE COURT OF APPEAL '?

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Civil Appeal No. 155 of2009

CV 2007-02263

ENVIRONMENTAL MANAGEMENT AUTHORITY

Appellant/Defendant

PEOPLE UNITED RESPECTING ENVIRONMENT

Respondent/Oattnant

I, LEROY MAYERS, of No. 11 Medford Lane Belmont in the Island of Trinidad,

Accountant, make oath and says as follows:-
 1. The facts and matters deposed herein are true and correct and within my
personal knowledge except where stated to be on information and belief in
which case I verily believe the same to be true.

2 I am the Chairman of Alutrint Limited, the Interested Party herein. I have

held this position since 12th February, 2007. As Chairman, I preside over a
Board of Directors charged with the resPOnsibility of, inter alia, supervising
and implementing financial matters, obtaining finance, ensuring compliance of
approved business plans as well as entry into commercial and contractual
obligations. As a Board member I take part in decisions regarding the
management of the Company.

3. I am. also a member of the Board of Directors of the National Energy

Corporation of Trinidad and Tobago Limited ("NEC"), a wholly owned
Govemment state enterprise, whose mandate includes the construction,
operation and management of industrial estates, ports and marine
infrastructure that serve the country's enetgy industry. I have been a Director
of NEC since 3m May, 2004. As a Board member, I take part in decisions
regarding the management of the Company. The NEC is owner and landlord
of the Union Industrial Estate ('CUIEj situated in La Brea.

4. I am also a member of the Board of Directors of Trinidad Generation

Unlimited ["TG-V'1 since 29th July 2oo8.TGU is a joint venture between the
Govemment of the Republic of Trinidad and Tobago ("GORIT') and the
Canadian-based power-generating co1pOtation, AES. TGU which is 90%
owned by GORTI is responsible for the construction of a 720 Megawatts
C'MW") power plant at UIE. As a Board member I take part in decisions
regarding the management of the Company.
 5. I am also Permanent Secretary in the :Ministry of Energy and Energy
Industries. I have held this position since 9th August 2004. In this capacity I
have custody of and· access to all files, records and documents belonging to or
pertaining to the Ministry. As Permanent Secretary, I am responsible for the
administration and 'IIlanagement of the Ministry. The state enterprise
companies of Alutrint, NEC and TGU fall under the purview of the Ministry.
I am the Accounting Officer in the said Ministry.

6. I am duly authorized to make this affidavit on behalf of Alutrint Limited

("Alutrint"). Alutrint has an interest in the decision of the Environmental
Management Authority r'EMA'')Wi.ted 2nd April, 2007 to grant to the NEC, a
Certificate of Environmental Oeaance r~CEC'') in respect of the
constnl:ction of an aluminium smelter at Union Village, La Brea.

7. That CEC wa$ transferred to Alutrint on 12th March, 2008. The decision to
grant the CEC was the subject of an application for leave to apply for judicial
review filed by the Respondent, Peoples United Respecting Environment
("the Respondent'') and another organization, Rights Action Group on 29th
June, 2007. The application of Rights Action Group was stayed. The
application for judicial review was heard before Madam Justice Mira Dean-
Armorer over the period .6th October, 2008 through 1st December, 2008 and a
decision on the applicatipn was rendered on 16th June, 2009.

if

9. The application for the CEC was first made to the EMf\
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by Jhe· NEt .. mQt:e
than 4 years ago, on 24th April, 2005. ,,".
10. The application process took just short of 2 years as the EMA required to be
satisfied that the aluminium smelter was environmentally safe and that the
application complied with the provisions of the Environmental Management
A~ Chap. 35:05 ('the EM Act") and the applicable laws including the
provisions relating to the preparation and submission of an environmental
impact assessment and public participation in the process. There were
numerous requests by theEMA for further infoanation~ documentation and
consultations with the publi~ all of which were complied with. The EMA
held not one but two public ·comment periods as well as a public hearing.

11. FolloWing the ·very lengthy and expensive application process~ the CEC was
finaBygranted by the EMA on 2 April, 2007~as aforesaid.
12 Thus more than 4 years after the application was first made for the CEC and
more than 2 years after the CEC was granted, the decision to grant the CEC
has been quashed by the order which is the subject of the appeal herein.

13. In the judgment~ the learned Judge rejected the majority of the grounds of
challenge advanced by the Respondent but ruled in favour of the Respondent
on 3 issues·that is~(i) alleged failure of the EMA to have regard to cumulative
impactor the three related projects: the power plant, the alumininm complex
and the port facility; (n) alleged failure of the EMA to insist that the
information sought by the condition in the CEC relating to spent pot lining
was resolved before th~ grant of the CEC; and (in) the proximity of the ~t
and second public con~nJ.ltationmeetings held by the developer.

14. The construction of me aluminium smelter is an essential part of a larger

project for the development of facilities and related services at VIE. In
addition to the aluminium smelter itself, there is at present under construction
 a port facility at Brighton, La Brea and a conveyor from the port to the
aIumtnium smelter. The CEC for this project was granted by the EMA on 1>C'-'k
13th June, 2008. Additionally, a power plant is being constructed at the VIE 'jj, (,:"'-l<,y
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for VS$708 Million. The CEC for this project was granted by the EMA on ~~c~~t__
16th October, 2008. Together, the overall project is budgeted to cost US$I,4
Billion: To date, over~~ has been ,expended th~ inE~ding. iii' ~1k

-
sums expended on the establishment of the alnmiP1um-sm€lt&.-_ SfX

15.The port facility is required to support the construction and operation of the
aluminiilin smelter, as'wen as to support the conveyor system. It includes a
quay front with a maximum length of 200 metres and an initial dredge depth
of 12.8 metres (to accommodate ore carries of up to 30,000 dead weight
tonnage), a 15 metre wide concrete waterfront quay deck, a paved yard/wharf
to acconuJlodate a 40 tonne ail mounted vacuum ship un-loader cane, a set
of Cl"1a.nerails
to accommodate two (2) 1,000 tons/hour mobile alumina un-
loaders and a flat Iaid-down area close to the ship's berth for metal and general
container storage and to accommodate a dock-side conveyor installation
feeding a 45,000 tons alumina silo and an 18,000 tons petroleum coke silo.

16.Additionally, a naturalgas~fired power plant running in combined cycle mode

and having a capacity of 720 mega watts is under construction at VIE. This
poWer plattt will. serve the requirements of the aluminiilin smelter of
approximately 240 mega watts, with the remaining 480 mega watts being
transmitted to theT& TEC grid to satisfy projected increa:~>melectriciffc-,\
demand To date US$420 Million has been expendrff!~llt1ectioll' ~th th; .. "
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power plattt. ~, ,,'

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17. Alutrint is a joint venture between the Minister of Ilinance as Corp9~tion

Sole and Sural Barbados Limited with a share owners~~~~~~tY(60)1>ercent
 and forty (40) percent respectively. The estimated cost of the aluminium
smelter project and ancillaty works is approximately US$540 Million and to
date the sum of approximately US$64 Million has been directly invested by
Shareholders. Of this over US$48 Million has been invested since the award
of the mc in April 2007.
18. Subsequent to th-~issue .Q!.!!Ieg.C on 2nd April, 2001and pursuant thereto
the following major activities were undertaken:

f·_Ongoi!;1s construction of the power plant pursuant to conttact awarded

byTGU.
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r\G: h; \:x.{JJj ~ g. Fip.a1 nege;~ of a Power Purchase Agreement among TGU,
Alutrlnt
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~&TEC.
.S~»f Uuid Lease ~ent for the Alutrint project site between
NEC_~. d Alutrint. \S'i-\\ ~Sv...h,Q-- '-'r;C'<i.~
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,u'+h .-;\-,"__
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~of a Gas Sale Contract between AIutrint and the National Gas \
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Co mpany \... . /. \c::...~,-
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/ j. Final ~~J5 of a Pier User's Agreement between NEC and ~,
r,ct \'",c\.w . \ Alutrint for use of Pier Facilities at Brighton, La Brea. ~~<~h,:\
.. ,iJ ( k. Final ne of a Water ~Iy Agreement between A1utrint and ,u. ~'<kC'"
;?;,::'--VO\c5. ~VJ:-I' i):(~\ the W~..ter and Sewerage Authonty of Tnnidad and Tobago ('WASA J.
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? ~ 1 SatiLfact0!Y.~~P~Q!lJ~~ons prescnbed by the me.

, ;.' m. Expansion of workforce by reCf1.!itmentof skilled employees in
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'.Janticipation of imminent and aggressive start of constnI~ti~~.
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19."rn relation to the cost of the aluminium smelter project, US$400 ~fillion is f'I
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being financed under a loan arrangement with the EXIM Bank of China. rJ:;" "'
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Agreements to secure this funding have been duly executed An Agreement
for Buyer's Credit in the amount of USS300 Million was signed on 25thJune,
2008. Also, a Concessionary Loan Agreement in the amount of US$100
Million was signed by GORTf on 19th May, 2009. GORTI through the
Ministry of Finaneeantidpated its first draw down of the Concessionary Loan
in the amount of US$85.5 Million by 30thJune, 2009. In satisfaction of other
conditions precedent presaibed by the Concessionary Loan Agreement
GORTf has already committed to pay the EXIM Bank of China the sum of
US$1.5 Mi1Iionfor Commitment and Management Fees as well as US$17.56
Million for loan finance insmance in &vour of SINOSURE of China.
However, .the EXIM Bank requires a valid CEC as one of its conditions
precedent to obtaining funds under the loan. Accordingly, ~ely Hyipt of
major project funding at concess~
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rates.has ~.j~dized
•. ·._. _,"' _"

20. Also, under the Concessionary Loan Agreement Alutrint is obligated to

furnish a signed Land Lease for the project ~ a natural Gas Sales Conttact, a
Port and Harbour FacilitiesAgreement, a Power Supply Agreement and Water
Supply Agreements duly executed by all parties. In pursuance of these
obligations, Alutrint entered into a Land Lease Agreement with the NEC on
15thJune, 2009 and a Gas Sales Conttact with the National Gas ~any on
- -~ . ,.

15thJune, 2009. Alutrint was expected to sign bY.,-40thJune, 2p09-.a,Water

Supply Agreement with WASA and a Pier U~~;'Agr~eni with. the 'NEF-
 Arrangements for the execution of these agreements have been overtaken by
the judgment delivered on 16th June, 2009.

21. Under the Land Lease Agreement deposed above, Alutrint is committed to
pay NEC the sum of US$I.7 Million as a premium fee, US$I.9 Million in
annual rental charge and USS95.2 Thousand in annual service charge. Having
duly paid these sums, the judgment deprives Alutrint of the fun .use of the site
as all activities faIlingunder the purview of the CEC now require to be halted.

22. As deposed in paragraph 18 (c) hereof, Alutrint has engaged CMEC as its
EPC Contractor. On~trint and CMEC entered into a
Contract for the conduct of Dynamic Compaction, Piling and Foundation
Works at a cost ofUS$27 Million. CMEC has been paidUSS123 Million.

\ ~. On 20"'. December, ~t and CME..C .nego..

ria.red a Tum Key EPC
~ Contract. for design, construction and commissioning of the Alutrint
Complex. Due to the delay in obtaining theCECcombined with effects of
global inflation, a subs t contract was renegotiated for a contract price of
US$414 Million on 0 ber, 20()8. The new EPC conttact stipulates an
advance payment of 103.5 Million. CMEC has already been paid by
Alutrint the sum of US$18 Million under this new conmet Alutrint is
~mmitted to pay CMECin ea.rlyJuly 2009, a further USS8.5.5Million, which
funding is to be derived from the EXIM Bank of China loan facility (see
paragraph 18 (b) above). It was an..ticipatedthat the ContIactor would have
received its Notice To Procee<l with permanent Works under the EPC
Contract by mid July 2009. This start date is critical to the project achieving its
---_._._.---_.----_ _-
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----
cOJQpl¢on date of 31 August, 2011.
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24. Based on the 9Mlt;ractschedule, CMEC has already on site a work force of
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approximate\)' 2O(Ypersons from China. Ongoing works include the erection
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8
 of a temporary work. camp for the EPC Contractor, access roads on site,
erection of the owner's field office, and erection of two batch plants for
concrete mixing, pile testing and dynamic compaction. The decision to quash
the CEC has resulted in the halting of works pursuant to the CEC on site.
CMEC has advised that it will incur losses of about US$3 Million for each
month that there····isno"progress with the construction. On 21st June, 2009,
CMEC.•further· advised Alutrintthat soil compaction works already in train, if
left·incomplete, \Villpose ;I.' significant environmental risk of undrained, loose
soil··being.driven into the Vessigny River asa result of the tainy.·season
cOttiliJ.enceinent.The unattended prOject site left open to the. environmental
elements would undO months of worksaheady completed. A true copy of the
letter dated 21st June, 2009 is tlowproduced shown to me annexed hereto and
~ "1M2". CMEChas further advised of an inunediate requirement for
payment by Alutrint of US$16 Million pritDarilj to secure aggregate from a
Canadian supplier for the scheduled site works. If this paymettt· is delayed,
there is the risk of significant schedule delay because of winter conditions
preventing the shipment from departing from Canada

~,

~;As deposed in paragraph 15 hereof, as part of the overall larger project ,

GORTf through the NBC has embarked on the construction of a port
marine tenninal (including docking 'and storage facilities) to facilitate the
import of raw materials and export ofou1put products for shipment during
operation ·of the smelter. NBC· has ettgaged various Contractors at a contract
price of US$166 Million for Works conn~!h land reclamation, port,
dock, storage and handling facilities.TOdat~~'MiJlion has been spent in
works in these areas and the works are4()O.Iocomplete. As a consequence gL.r-""c
the jUdgment, there is a serious risk of the port beingltf.t.idle,~pi~ .' ";
of these works. Further, the anticipated user fees 4gJt"~;i;l;i.~~·'NEC<·;
~. "-.,:.:-T}-~~'>~' .. ,;.
negotiated in the Pier User's Agreement (see paragraph\18 "())a1?qre)\~nOt '"
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 materialize if the smelter is not commissioned into operation on time or at all.
This·will result in a loss of revenue for NEe.

26. A reliable source of electric power is essential to the smelting process. In order
to facilitate a reliable electricity supply, GORTI through TGU, commenced
construction at DIE in January 2009 of a natuml gas fired power plant running
in combined cydemode andhaviog a capacity of 720 Megawatts (MW).
AlutrintWas granted a CEC (No. 2085/2007) on 16thOctober, 2008 for the
construction and operation of this plant. That CEe was transferred to TGU
on 19thJanuary, 2009. The cost of the TGU project is US$708 Million. About
US$150 Million of this amount is committed to General Electric for turbines
in or about September 2009. To date, and in connection with the construction
and operati9n-.of this: plant, GORTI has expended approximately US$400
Million. Further, MAN Ferros~ the EPC contractor for this plant, has
already receivedovet 50% of the contract cost. Other costs incw:red by TGU
to date in connection with the construction and operation of this plant
amount to about US$20 Million.

27. In this connection, Alutrint and T&TEC as joint buyers are scheduled to sign
a Power Purchase Agreement ("PPA") in July, 2009 with TGU. Completion
of the power plant is targeted for July 2011 to coincide with the completion
and operationalization: of the aluminium smelter. Under the PPA, a take or
pay amngement for the supply of electricity is in effect. Even if the smelter is
not operationalized .in July 2011. when the power plant starts outputting
electricity, Alutrint and T&TEC will still have to pay for the electricity the
plant generates. It is therefore absolutely critical that the smelter be
operational by July 2011. Alutrint's &ilure to achieve its scheduled completion
will result in the imposition of monthly penalties if power is not taken as from
l::'..~\
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October 2011~ Should the smelter not be completed on time, T&TEC will not
be in a position to use the 240 MW dedicated to Alutrint.

28. Further yet, if the aluminium smelter is not commissioned by the projected
completion date, Alutrint will suffer significant losses of revenues, estimated at
US$8.6 Million per month.

29. In 'addition, the investments made in training' and tooling persons in the La
Brea and surrounding communities for employment in the aluminium smelter
and at the port and the pipe conveyor projects will be wasted and the
expectations of hundreds of'citizens· for emplQY!!!entwiD. be ~ted. A
-
TIll,OOO,OOO.OO subscription for annual membership with the National
Energy Skills Centre (~'NESC") was paid by Alutrint. These actions were
undert3.ken to develop and implement various skalltraining programmes for
the construction, production, operation and maintenance areas of the
aluminium smelter. These programmes have progressed successfully, with
Alutrint-sponsored training opportunities being offered to the people of La
Brea and surrounding areas. Alutrint has also facilitated the establishment of
the fust NESC training compound for I.a Brea. To date, through YITEP and
NESC, over 290 residents of, the La Brea area and its environs have been
tDinedin areas including'include carbon steel welding, construction electrical,
computer literacy, plumbipg and masonry, lawn and landscaping.

30. The direct, long-term employment to be generated by the overall project is

projected to be 1,200. It is anticipated that over 3,000 indirect employment
jobs will be created in areas such as transportation, machine shops, fabrica~~
shops, motor repair and electrical/rewind Shops,~dus~"ijb~;~,:';d~i:t
'f ~~'i·-~-:':._: ".':. ~ -;.>; :;; "<'. )

supplies, port, security, office and safety supplies; Ji;;,tOri;u, ¥~~p~food;,

services, maintenance services, furnace re-factory \~ent ~~~~ t!U!I)others.~;
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 An of these job opportunities wiD.be los~ and this loss will have the single
largest negative financial impact on the La Brea community in modem history.

31. The jeopardization of the aluminium smelter project creates the potential for

the disappearance of a number of attnbutes/advantages which would

otherw1se be of value to Trinidad and Tobago namely~the development of the
technical skills of citizens through extensive mining programmes to be carried
out with load training providers, as wen as at the smelter in.China, and also at
Sutal's rod and cable plant in Venezuela and Italy; and the provision of 5,000
mtpa of aluminium of new independent and entrepreneurial downstream
industries, which will.create additional employment and technologies; Trinidad
and Tobago will be established as an important transformation centre for
aluminium; Trinidad and Tobago will benefit from more than $300 Million a
year of high tech· and high value added exports; Trinidad and Tobago will be
established.as a world leader technology provider by entering into dynamic
industrial sectors such as cables and wires in Latin American markets and
automotive parts in North American markets.

32 Sutal and/or any joint-venturer~ as the 40% shareholder and downstream

specialist will likely abandon the construction of the aluminium smelter
project, due to ,the· substantial delay in its construction over the years
occasion.ed ·firsdy by the lengthy CRC 3pplication process and now the
judgment under appeal which comes 2 years after the CEC was finally gcmted,
and· the loss in commercial viability of the enterprise due to delayed revenue

33. In the premises, Alutrint is gravely prejudiced by the judgment under appeal
coming as it does at this stage in the life of the project and its catastrophic
impact on not only the construction of the aluminium smelter but the other
 related projects on which millions of dollars have already been expended to
date and are committed to be spent, binding contracts have been entered into
which impact on the international reputations and credibility of not only
Alutrint but the other state enterprises and by extension GORTf and a
substantial number of persons have been employed on the basis of the CEC
which has been in force for more than 2 years. Further, any delays which
result in failure to continue the works in a timely manner so as to achieve the
scheduled completion date will result in significant financial losses not only to
Aluttint but to GORTI and the other state enterprises referred to above.
Aluttint therefore urgendy seeks the orders of this Honourable Court as set
out in the application filed herein.

Swom to at 143 Abercromby Street)

Port-of-Spain this 7lh day of July )
~9. )