In defining the status quo of current compliance and enforcement activities as these relate to Chapter 5 of NEMA, it is firstly necessary to consider the degree to which the regulatory framework provides for compliance and enforcement activities, and secondly the degree to which these activities have been formalized, structured and implemented. In the first part of this section the regulatory framework as defined by the NEMA the Specific Environmental Management Acts (SEMAs) and associated regulations are briefly reviewed. Thereafter the structures and activities that have been implemented by the authorities in order to drive the compliance and enforcement function are presented.
THE REGULATORY FRAMEWORK
As part of the status quo review, the NEMA and SEMAs were reviewed with specific focus on the enforcement provisions contained in those acts. Without exception the acts contain a range of provisions for effective compliance and enforcement actions. By way of example, and without repeating all the provisions contained in the act, the NEMA stipulates compliance monitoring requirements on organs of state and in chapter 7 particularly, provides a range of regulatory mechanisms that can be used to support compliance and enforcement, including prosecutions by the state and private prosecutions.
As such, and in general terms, it is argued here that there is adequate regulatory provision for compliance and enforcement actions. This was confirmed in discussion with personnel from the compliance and enforcement inspectorates at the DEA who conveyed that they are not inhibited by weaknesses in the regulatory provisions in respect of compliance and enforcement, other than in respect of Section 48 of NEMA which requires a separate discussion here. Section 48 of NEMA is titled ‘State bound’ and reads as follows:
48. This Act [NEMA] is binding on the State except in so far as any criminal liability is concerned
As such Section 48 precludes enforcement action (prosecution specifically) being taken against any organisation deemed to be part of the State. That would include provincial government, local authorities and municipalities. In respect of authority functions there are a number of circumstances where municipalities for example, failed to take the necessary remedial action in terms of impact on the environment. This is true especially of wastewater treatment and the release of raw sewage into surface watercourses, where municipalities failed to respond to warning letters and pre-compliance and compliance notices.
What is also important about Section 48 is that it precludes prosecutorial action against parastatals such as the Central Energy Fund, Transnet, Armscor, Aventura Resorts, Denel, Eskom, Johannesburg Water, Portnet, Necsa, Safcol, PetroSA, and Transtel (and others). This does not prevent the issuing of pre-compliance and compliance notices but if such notices are ignored, then no prosecutorial action can be taken. In the DEA’s annual compliance and enforcement report, for example, non-compliances by the South African National Roads Agency Ltd (Sanral) are highlighted.
The report states that ‘the Department is beginning to identify institutions and persons that continue to contravene environmental legislation despite enforcement actions being taken. Although Sanral obtains relevant environmental authorisations, officials from the Department continue to detect non-compliances with the conditions of these authorisations. The most recent non-compliance was detected in relation to the Central Operation Centre being constructed along the M1 highway in
The para-statals listed above obviously constitute a broad range of activities that have the potential to impact significantly on the environment. The exclusion of these organisations is therefore an important weakness in the compliance and enforcement function. That notwithstanding it must also be recognised that the state entities listed above are all under the jurisdiction of national government for EIA decision-making. This means that there is generally better attention paid to compliance in terms of the activities of these organisations than would be the case in respect of provincial jurisdiction which appears to vary significantly from province to province. This assertion is based on a broad scale characterization that environmental compliance and enforcement is probably at its strongest at national level, then at provincial level but with varying levels of effectiveness from province to province and finally at its weakest at local authority level.
The compliance and enforcement function at DEA conveyed that they are currently busy with a process to review (and possibly amend) Section 48. If this section can be amended an important group of activities that have the potential to impact negatively on the environment can be better regulated through the use of prosecution as an enforcement action. The fact that the DEA has the desire to launch prosecutions against other state entities where such entities ignore warning letters and compliance notices is viewed as extremely encouraging and positive, however it is only the amendment of Section 48 that will see the desire translate into action.
AND ENFORCEMENT MECHANISMS
There has not yet been the time to investigate the degree to which individual provinces have been able to define, structure and populate compliance and enforcement mechanisms. However, discussions were held with personnel from the compliance and enforcement function within the DEA to develop an understanding of the approach within the Department to give effect to a compliance and enforcement function. The compliance and enforcement function within the DEA currently resides under the Environmental Quality and Protection Branch of the Department . The function is made up of three groupings (inspectorates) namely Compliance Monitoring, Support Services and Enforcement.
In broad terms the principle is that Compliance Monitoring identifies on an ongoing basis, activities that are in breach of the law, conditions of authorisation, improperly authorised activities, and so forth. These various cases are presented to Enforcement who then issues the necessary warning letters, pre-compliance and compliance notices or indeed decide on prosecution and the associated criminal investigation. Where Enforcement responds to legal transgressions that have been identified by Compliance Monitoring this is known as ‘reactive administrative enforcement’. This differs from ‘strategic’ administrative enforcement which is describe later in this document.
Support Services should, in principle, provide a range of crosscutting functions in support of the other two inspectorates. In reality, Support Services provides support to other functions within the Department (i.e. outside of Environmental Quality and Protection) and also to provincial and local authorities as may be required. The DEA is trying to promote the constitutional obligation for authority functions to be maintained at local, provincial or national level, as is appropriate. This is important for compliance and enforcement because it means that the National Department cannot usurp the compliance and enforcement functions that are the responsibility of provincial or local authorities, regardless of the capacity of those provincial and local authorities. It is sometimes incorrectly understood, for example, that the National Department has authority over provincial and local authorities. This is not the case at all as the national department has certain defined responsibilities, as do the provincial and local authorities. Crossing these lines can seriously weaken the compliance and enforcement function, as compliance notices can be rendered invalid if issued by the ‘wrong’ authorities, for example.
In trying to maintain the required authority jurisdictions and responsibilities, compliance and enforcement actions can become unnecessarily protracted and often extensively delayed as consensus is sought amongst the different authority levels. In some instances, for example, an authority may fail to be available for a particular audit. The logistical and administrative challenges are not insignificant but there have still been a number of successes where prosecution has been both possible and successful. Ultimately the provincial and local authority would have to be able to operate independently of the DEA in effecting compliance and enforcement, and thereby freeing up the DEA to focus on their core responsibilities.
Enforcement serves to take the action required to maintain compliance through the issuing of warning letters, pre-compliance and compliance notices as well launching criminal investigations that result in prosecution. It is important to note that Enforcement does not simply wait for Compliance Monitoring to identify activities that require enforcement actions. Within Enforcement a function known as ‘strategic administrative enforcement’ (mentioned earlier) has been established where particular sectors such as the metals, cement, hazardous waste and pulp and paper industries have been targeted, because these sectors are known to have a significant environmental burdens. Specific activities within these sectors have been targeted with a variety of campaigns. The campaigns include the participation of all relevant authority structures which act co-operatively in auditing various components of the activity in question.
For enforcement to be effective, an established procedure must be followed which includes the issuing of warning letters, pre-compliance and compliance notices. Personnel from the inspectorates have emphasised how important it was to maintain these procedures and suitably recognize the roles of the different authority levels. The recent actions surrounding the construction of the Pan African Parliament in Midrand provide an important example. The Pan African Parliament is being built by the Department of Public Works. Following the issuing of an authorization it was subsequently discovered that the parliament building was being built in a wetland which had not been recognized in the EIA. Enforcement was able to stop construction despite the obvious ramifications in terms of schedule and cost for the Department of Public Works. Remedial action was implemented as far as was possible and the environmental assessment practitioner responsible for the EIA is currently being prosecuted. These compliance and enforcement actions would simply not have been possible without the apposite procedures being followed.
The enforcement panel
The enforcement response is decided by an ’enforcement panel’ who weigh up the significance and magnitude of the non-compliance in order to make a decision on an appropriate action. This is not a capricious process but rather one where the dictates of the Environmental Management Inspector (EMI) Operating Manual present clear enforcement guidelines. Many factors are considered in this process such as the immediacy of the threat posed by the activity and the need to negate that threat quickly. An example of this is a medical waste industry where illegal dumping of medical waste had to be acted against robustly, effectively and quickly to discourage further illegal dumping. On this issue it should be noted that the waste industry in general has been subjected to considerable compliance and enforcement action, again as a function of the environmental risks of an industry of this nature.
Compliance and enforcement reporting
A comprehensive range of statistics are importantly and impressively presented in a National Environmental Compliance and Enforcement Report (the latest of which is available for the 2009-2010 financial year). The report contains information on the status and function of EMIs, overall national statistics that are divided between national, provincial and local authority functions, a description of national institutions, environmental jurisprudence, legislative developments, industrial compliance and enforcement, biodiversity enforcement and compliance, National Department complaints and an emergency incidents register, capacity building for EMI's magistrates and prosecutors and stakeholder engagement. The key findings from that report are summarised in Table 1.
Table 1: Summary of the overall national statistics for compliance
The summary statistics presented in Table 1 indicate that Compliance and Enforcement is generally functioning well and has resulted in both compliance notices being issued and in a number of instances, successful prosecutions. The intention is not to summarise the entire report here but it is worth noting that there has been a significant number of compliance monitoring events with many of these resulting in enforcement actions. Interestingly the report also highlights the number of compliance and enforcement activities being carried out by the various provincial governments. These various activities are both impressive and encouraging and present a significantly more positive picture of compliance and enforcement than was perceived at the start of the process.
What is also worth noting from the report, however, is that a fairly significant component of the enforcement function (most notably at provincial government level) relates to the conducting of unauthorised activities and associated 24G rectifications. The question that has to be asked is what compliance and enforcement actions have taken place in respect of conditions of an authorisation and general compliance with the law? Almost every province, for example, cites ‘illegal listed activities’ as the most prevalent crime reported. This implies a strong focus on the authorisation requirements of the NEMA as opposed to a broader more inclusive range of possible transgressions of environmental legal requirements.
The current status of the amendments to the Mineral and Petroleum Resources Development Act (MPRDA)
A key consideration in this status quo assessment is the current status of mining related activities and how these are governed by the MPRDA versus how these are governed by the NEMA. In summary, recent amendments to the NEMA included a number of mining activities that were listed in terms of the EIA regulations. It was subsequently required for the MPRDA to be amended. Following the amendment of the MPRDA an 18 month period would commence during which time the current status would be retained. Following that 18 month period another 18 month period would commence during which time the Minister of Mineral Resources would be the competent authority (i.e. the Minister of Mineral Resources would be the decision maker on mining related activities). During that same 18 month period the Minister of Water and Environmental Affairs would be the arbiter on appeals against decisions made by the Minister of Mineral Resources. Following the conclusion of the second 18 month period all mining related activities would be decided on under the auspices of the NEMA with the Minister of Water and Environmental Affairs being the competent authority.
The situation at present is that authorisation for mining per se resides with the Department of Mineral Resources (DMR) and is governed by the requirements of the MPRDA. However, there are a range of associated activities such as the establishment of access roads, pipelines and others which are governed by the requirements of the EIA regulations under NEMA (these activities are included as ‘listed activities’ within the EIA regulations). This means that any mining activities are likely to have the dual requirements of meeting both NEMA and MPRDA provisions. The much celebrated Vele Mining (Mapungubwe) circumstance is a case in point where the mine had a valid authorisation under the MPRDA, but associated activities that should have been authorised under NEMA were not.
The DMR maintains that a single MPRDA authorisation is sufficient to authorise the entire mining operation, which is clearly not the case terms of regulatory requirements. Frustratingly, some authorities operating under the auspices of the NEMA, are presenting the same argument and are advising applicants only to obtain an MPRDA authorisation. The ultimate outcome of this is that there are a number of mining activities that may be legal in terms of an MPRDA authorisation, but with associated activities that are not authorised as they should be in terms of the NEMA. It is not entirely clear how many mines are so authorised but recent media attention (i.e. articles in Die Beeld newspaper) suggests that this may be well in excess of 100 mining operations.
The required MPRDA amendment is now long overdue. When recently following up the DEA was advised by the DMR that due to ‘changed circumstances’ the DMR was not prepared to pursue amendments to the MPRDA. Furthermore the DMR planned over time to in fact repeal certain parts of the MPRDA to solidify and strengthen the existing arrangements whereby mining authorisations are issued by the DMR. The circumstance is obviously disturbing because it is in clear opposition to an important environmental assessment principle, namely that for an organisation which has a stated purpose for the promotion of a particular activity, the organisation cannot reasonably be expected to affect sound decision-making that properly considers the negative implications of that activity. Simple logic dictates that effective decision-making, that properly weighs up both the negative consequences as well as the benefits of a proposed activity, should be through an independent third party (such as the DEA) which has no vested interest in the outcome of the decision.