AVOID ENVIRONMENTAL PROSECUTION

MICHAEL HANDS PATRICK FORBES GARLICKE & BOUSFIELD INC

Avoiding environmental prosecution quite simply entails

ensuring compliance with the environmental legislation.

WHAT IS ENVIRONMENTAL LEGISLATION? NEMA (National Environmental Management Act)

NEMWA:
Waste Act

NEMBA:
Biodiversity Act

NEMAQA:
AQA

NEMPA:

NEM:

Protected Areas ICMA

Also relevant are:

Water Act Forestry Act

Urban Transport Act

National Building Regulations & Building Standards Act SANS 10400X Land Use Management Schemes Hazardous Substances Act

City of Johannesburg v Gauteng Development Tribunal

(Judgment delivered on 18 June 2010)

Le Sueur & Another v Ethekwini Municipality & Others

(Judgment delivered 29 January 2013)

DMOSS overlay control in LUMS

Challenged on constitutional grounds

Dr Debra Roberts: The cost to the City of replacing the natural assets of the environment would be of the order of R2 billion

annually

The court agreed with the argument that planning must

necessarily address environmental issues

Reasons for this:

The Constitution enjoins municipalities to provide a safe and healthy
environment. Ignoring and damaging the natural features of the environment would

endanger the achievement of this objective.

Municipalities would therefore be in breach of their constitutional obligation.

Just as importantly, the NEMA regulations which require environmental

impact assessments to be carried out have progressively been amended to lower the bar.

As a result, many smaller activities and projects, just as inimical to the preservation of important environmental features as many large scale activities

CUMULATIVELY, THESE ACTIVITIES COULD CAUSE AS MUCH POTENTIAL DAMAGE AS A SINGLE LARGE PROJECT

There is an increasing likelihood that land use management schemes will contain environmental requirements that must be complied with

BACK TO NEMA
(1A) (a) (b) (c) (d) (e) The first great commandment: Every applicant must comply with the requirements prescribed in terms of this Act in relation to Steps to be taken before submitting an application, where applicable; Any prescribed report; Any procedure relating to public consultation and information gathering; Any environmental management programme; The submission of an application for an environmental authorisation and any other relevant information; and (f) The undertaking of any specialist report, where applicable.

(Section 24(1A) of NEMA)

Adherence to the requirements of this section will generally keep potential transgressors out of trouble

And the second is like unto it:

(2) The Minister, or an MEC with the concurrence of the Minister, may identify activities which may not commence without environmental authorisation from the competent authority;

(a)

LISTED ACTIVTIES NOTICES 1, 2 & 3

(b)

geographical areas based on environmental attributes, and as specified in spatial development tools adopted in the prescribed manner by the environmental authority, in which specified activities may not commence without environmental authorisation from the competent authority

(c)

geographical areas based on environmental attributes, and specified in spatial development tools adopted in the prescribed manner by the environmental authority, in which specified activities may be excluded from authorisation by the competent authority;

(d) Activities contemplated in paragraphs (a) and (b) that may commence without an environmental authorisation, but that must comply with prescribed norms or standards:

Provided that where an activity falls under the jurisdiction of another

Minster or MEC; a decision in respect of paragraphs (a) and (d) must be taken after consultation with such other Minister or MEC. (Section 21(2) of NEMA)

COMPLIANCE
LISTED ACTIVITIES
Notices 1, 2 & 3 Sustainable Development

GENERAL DUTY
Section 28 NEMA Wider application

CRIMINAL // ADMINISTRATIVE
Sanctions for green and brown offences. Burden of criminal prosecution.
Burden of proof; (beyond reasonable doubt) Evidence; (chain of evidence) Prosecutors; (work load) Magistrates; (training and expertise)

Criminal conviction is after the fact. Criminally prosecuting a corporation.

ENVIRONMENTAL COMPLIANCE
- Directive (command and control approach) - ECA, NEMA, NWA, MPRDA - Not an offence if one did not comply Balance between:
Achieving better environmental performance; and/or Prevention of potential harm

- Compliance Notice (2006 Amendment Act)

Non compliance with a SEMA, permit, authorisation Wider discretion (authorities granted) Direct Offence (stricter measures) Environmental Management Inspectors (EMIs) / Green Scorpions (better application)

Power to Issue Compliance Notice

Sec 31 L (NEMA) (a) if there are reasonable grounds for believing that a person has not complied with a provision of the law for which that inspector has been designated ..;

(b)

or with a term or condition of a permit, authorisation or other

instrument issued in terms of such law.

NEMA Act 107 of 1998

NEMA Section 2 Principles
The Polluter Pays principle 4(p)

Section 28: Duty of care and remediation of Environmental

Damage
Every person who causes, has caused or may cause significant pollution

or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or reoccurring
Before the commencement of the Act (Courts vs Academics) [Gencor vs Chief Bereki 2006(1) SA 432

(T)]

Arises or is likely to arise at a different time from the actual activity that caused the contamination; Arises through an act or activity of a person that results in a change to pre-existing contamination.

Section 28 (2) Owner of land or premises; (successors in title costs) Person in control of land or premises; Person who has right to use premises.
(CONTRACTUAL TERMS AND CONDITIONS)

To whom does this duty extend?

WHAT IS SIGNIFICANT POLLUTION, DEGRADATION

Hichange Investments v Cape Produce Company 2004 (1) All SA 636 The threshold level of significance will not be particularly high (at page 655) Norms and standards being introduced

WHAT ARE REASONABLE MEASURES

Type of activity, harm, measures taken, negligence, efficacy, costs, Section 2 Principles

How far does this duty extend

a) Investigate, assess and evaluate the impact on the environment;
b) Inform and educate employees about the environment risks of their work and the manner in which their tasks must be performed in order to avoid causing significant pollution or degradation; c) Cease, modify or control any act, activity or process causing the pollution or degradation; d) Contain or prevent the movement of pollutants or the cause of the degradation; e) Eliminate any source of the pollution or degradation; or f) Remedy the effects of the pollution or degradation

Rand Carbide Silicon Smelters

Public outcry (environmental hotline) Green Scorpions Inspections (EMIs)
NEM: Air Quality Act : Section 22 Metallugical Processes: Listed Activity

NO LICENCE! NEMA: Sec 28 (Pollution)

Combustion of Coal Smelting of Ores

SIGNIFICANT POLLUTION Compliance Notice

Mapungubwe Vele Colliery World Heritage Site UNESCO

Mining Operations Coal Mining (MPRDA)
Environment NGOs opposition DEA issued compliance notices

Section 24 G Application:
The constructions of roads, The above ground storage of dangerous goods, Activities within the 1:10 floodline of the Limpopo River, The construction of a sludge dam and the installation of a water pipeline network. Interdict Procedures NGOs / Compliance Notice Issued by Dept Env Affairs iro the contraventions of NEMA

Compliance Notice Easier to ask for forgiveness than to ask for permission
Compliance Notice must set out: A.Details of the conduct constituting non compliance; B.Any steps which must be taken and the period within which they must be taken; C.Activities one may not do and duration one may not do it for; D.Procedure for lodging an objection to the notice.
Procedural objections will become more difficult

Section 24 G: (2A) must pay an administrative fine, which may not exceed R1 Million (amendments in the pipeline)

Compliance Notices
Issued by: Environmental Management Inspectors (EMIs) Wide ranging power: reasonable suspicion
Search & seizure; Entering premises; Routine inspections; Questioning persons, Requesting documents.

Not only Listed Activities Inspect all possible sources of pollution/degradation that may exist.

RESPITE
Administrative Justice Requirements PAJA Requirement of Administrative Justice that a pre-compliance notice must be issued. This allows for a period of dialogue with the Department and representations can be made. Environment Management Inspector: Must have a Mandate in terms of the applicable Act given by the Minister/MEC (Grades 1 5) Must be able to produce identification; Objection to the Compliance Notice:
In writing to the Minister/MEC within 30 days (notice and terms thereof still stand) Take decision on review in terms of PAJA FAILURE TO COMPLY WITH NOTICE Sec 31 (N) R5 Million or 10 Years

SANCTIONS RAND Carbide (smelters) : Criminal Conviction

NEM: AQA Fine R2 Million (no licence) NEMA: Fine R1 Million (pollution)
R13 Million spent in upgrades to the Plant to bring it in line with the legislation. This spend will be related to the conditions and requirements set out in the compliance notice.

Vele Colliery:
NEMA Sec 24 G:
Administrative fine of R9.25 Million Potential Criminal charges still under investigation Albi Modise: Spokesperson DEA Green Scorpions are in the process of investigating a number of other large companies

PENALTIES
Sec 24 G (Rectification): 1 Million and/or 1 year (each offence)
Sec 28 (14)(15) (Pollution): 1 Million and/or 1 Year (each offence) Sec 31 N (Compliance Notice): R5 Million or 10 years

Proposed Amendments: 5 Million and/or 5 years (1st offence) 10 Million and/or 10 years (2nd offence)

Recommentations: (soft targets)

Audit Procedures: Safety, Health, Environmental (SHE)
Awareness and Training (emlpoyees workplace) Modify existing processes Cradle to Cradle Regular audit procedures
Suppliers Customers

Employees

Awareness of the Legislation (amendments)

Listiing activities Pollution & Degradation activities

Awareness of the Processes for compliance enforecement Awareness of the Risks (bottom line cost, reputational damages) Contractual terms and conditions: T&Cs
Buying a business; Buying land

SUGGESTIONS
Awareness of the Legislation (amendments)
Listing activities; Pollution & Degradation activities and risks; Legal Assistance

Awareness of the Processes for compliance enforecement your rights Awareness of the Risks (bottom line cost, reputational damage, prosecution) Contractual terms and conditions: T&Cs
Buying a business; Buying / Leasing land and/or premises;

EMI REPORT / STATISTICS

2009-10 Administrative Enforcement and Civil Actions Warning letters written Pre-directives issued Pre-compliances notices issued Directives issued 172 10 R 8, 874, 966 53 827 249 176 60 266 95 49 86 276 49 2010-11 2011-12

Final compliance notices issued

Civil court applications launched S24G administrative fines paid (total amount and number)

126
6 R 8,364,870 58

110
7 R 17,627,233 86

AREA OF COMPLIANCE ENFORCEMENT FOCUS REFINERIES; CEMENT PRODUCTION; FERRO ALLOY, IRON & STEEL; PULP & PAPER; POWER GENERATION; MINING - RELATED ACTIVITIES.

THE WASTE ACT, 2008

business waste means waste that emanates from premises that are used wholly or mainly for commercial, retail, wholesale, entertainment or government administration purposes;

general waste means waste that does not pose an immediate hazard or threat to health or to the environment, and includes
a) Domestic waste;

b)
c) d)

Building and demolition waste;

Business waste; and Inert waste

hazardous waste means any waste that contains organic or inorganic element or compounds that may, owing to the inherent physical, chemical or toxicological characteristics of that waste, have a detrimental impact on health and the environment

waste means any substance, whether or not that substance can be reduced, re-used, recycled and recovered a) b) c) d) That is surplus, unwanted, rejected, discarded, abandoned or disposed of; Which the generator has no further use of for the purposes of production; That must be treated or disposed of; or That is identified as a waste by the Minister by notice in the Gazette

And includes waste generated by the mining, medical or other sector, but -

(i)

A by-product is not considered waste and

(ii) Any portion of waste, once re-used, recycled and recovered, ceases to be waste;

Waste must be treated in accordance with the requirements of the Act and regulations, generally by disposal at a licensed landfill site.
Note that under the Waste Act activities are licensed and are not the subject of environmental authorisations or approvals

NB - that even if you employ a waste disposal contractor to remove your waste, your responsibility does not necessarily end there.

 Ensure that you have an environmentally safe and secure facility for waste storage (temporary) on site
Ensure that your waste removal contractor is properly licensed (audit) Ensure that you contractor is disposing of the waste at a properly licensed disposal site e.g. h:h, H:h, H:H

Section 16
Avoid the generation of waste, alternatively Minimise the generation of waste

Re-use, re-cycle and recover waste

Treat and dispose of waste in an environmentally sound manner Manage waste for the protection of health and the environment Prevent contraventions of the Act Prevent the use of waste for unauthorised purposes

CONTAMINATED LAND
(Section 36) WASTE ACT
36 Identification and notification of investigation areas

(1)

The Minister, or the MEC in respect of an area which affects the relevant province, may, after consultation with the Minister of Water Affairs and Forestry and any other organ of state concerned, by notice in the Gazette, identify as investigation areas -

a)

Land on which high-risk activities have taken place or are taking place that are likely to result in land contamination;
Land that the Minister or MEC, as the case may be, on reasonable grounds believes to be contaminated.

b)

If an investigation area is identified The Minister or MEC may undertake a site assessment

or
May direct the owner to do so

Where land is found to be contaminated, directives can be issued to remedy the situation or in extreme cases the land could be sterilised for future use

These sections are not yet in force but the deadline is looming

Draft regulations stipultaing norms and standards relating to the process for identifying contaminated ground and the powers of the Minister to compel remediation measures have been gazetted for comment

Disposal of waste is multi-faceted

Liquid effluent requires a municipal permit to discharge to sewer or a permit from DWA to discharge to a public stream Liquid effluent may also require partial treatment on site prior to discharge

 Certain types of waste require to be stored in closed containers or silos pending removal from site
A storage depot on site is regarded as a transfer station and needs a waste licence Vehicles use for waste transportation need to be rigorously cleaned and tested for possible contamination

THATS NOT ALL!!!

P.O.C.A.
York Timbers

18

Confiscation orders (1) Whenever a defendant is convicted of an offence the court convicting the defendant may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from

a)That offence; b)Any other offence of which the defendant has been convicted at the same trial; and c)Any criminal activity which the court finds to be sufficiently related to those offences

and, if the court finds that the defendant has so benefited, the court may, in addition to any punishment which it may impose in respect of the offence, make an order against the defendant for the payment to the State of any amount it considers appropriate and the court may make any further orders as it may deem fit to ensure the effectiveness and fairness of that order.

Thank you for your kind attention

M Hands: mhands@gb.co.za P Forbes: pforbes@gb.co.za Tel: 031 570 5300