PROBLEM IDENTIFICATION

Overview

Chapter 5 of NEMA details the concept of Integrated Environmental Management and focuses on the principle that if activities have the potential to impact negatively on the environment then such activities need to be assessed and authorised (if appropriate) as a function of that assessment.   The Chapter also supports the principle of adequate and appropriate public participation and the coordination of organs of state to achieve this objective.  Chapter 5 has largely but not exhaustively been implemented through the development and implementation of the (Environmental Impact Assessment) EIA regulations.   However, Chapter 5 also uses the term ‘management’ as well as the term ‘decision-making’ and the entire Chapter is premised on the promotion of the environmental management principles presented in Section 2 of the Act.  These latter requirements lead to the questioning of the appropriateness and robustness of EIAs  as the principal mechanism for engagement and decision-making regarding activities that may impact on the environment.

It is not the purpose here to address in any detail the question of the effectiveness and efficiency of the EIA process, but rather to consider the role of compliance and enforcement in giving effect to the overarching objectives of Chapter 5, and in so doing the upholding of the environmental principles presented in Section 2 of the Act.  The implementation of Chapter 5 is presented schematically in Figure 2  [download report to access diagrams] as a function of a typical project implementation curve whereby impact certainty is low during the project concept stage (typically when the EIA gets completed).

Impact certainty increases dramatically following the implementation of the project to a near steady state position as a function of long term operations when there is limited uncertainty of the nature and scale of the impacts. It is argued here that in general the implementation of Chapter 5 is at its most intense at a time when impact certainty is at its lowest, and that uncertainty continues to reduce over time.  Stated differently, once the activity has been authorised there are no Chapter 5 provisions for reviewing the validity of the basis of the authorisation.

Again in general terms the mechanism for compliance and enforcement in terms of implementation of Chapter 5 lies principally in authorisations (of both the EIA and the EMP), with relatively less authority activity during project implementation and operations.  There is an argument to be made that the later compliance and enforcement function will ultimately be driven by the implementation of those functions within the National Waste Act, the National Air Quality Act, the National Biodiversity Act and others.  However, even for this argument, the activities driven by these latter Acts are currently focussed principally on the approval of activities (through the vetting of EIA decisions and through the issuing of permits) with insufficient attention being paid to the requirements for compliance and enforcement.

PROJECT SCALE ISSUES

In order to further elaborate the principal discussed above, a number of large scale projects were reviewed in order to track the degree to which the objectives detailed in Chapter 5 of NEMA were in fact upheld by the implementation of the EIA regulations.  These projects are not named but suffice it is to say that they are all large infrastructure projects with varying degrees of potential impact on the environment.  In all cases the projects were subjected to rigorous and extensive EIA processes  which culminated in the issuing of authorisations to proceed with the activities. In some instances the development of an EMP was detailed as a condition of the authorisation and in some cases the EMP was developed and submitted as part of the EIA in keeping with the current EIA regulations. The following key issues emerged from that review:

Verification of the EIA findings

The EIA processes did not effectively identify all of the impacts associated with the proposed activities.  This was found to be particularly true of the construction and commissioning phases of the projects where impacts were either wholly disregarded or where the impacts were underestimated.  In the case of one of the projects it has subsequently  become clear that the major impacts associated with the project occurred during the construction phase, and yet the construction phase was barely mentioned in the EIA and indeed no construction phase impacts were identified or assessed.  In the case of another project the uniformity and lack of variability in operations was highlighted strongly in the EIA, whilst in practice there is a high level of short term variability in at least the atmospheric emissions performance.  In general atmospheric emissions are higher than what was predicted in the EIA and ambient concentrations of pollutants are also observed to be higher than was predicted at the time of the EIA.  Certain pollutants that were deemed to be insignificant at the time of the EIA are now proving to be more significant and, although they are not resulting in a severe potential impact, the pollutants are a key element of day to day management.

Authorisation fixation

The point to be made here is  that EIA is at best a predictive process and by definition there is inherent uncertainty in prediction.  Studies conducted in Australia revealed that EIA processes there were at best some 65% accurate and at worst there are impacts that manifested after project implementation that were not identified at all (Morrison-Saunders, 1998). There is no regulatory mechanism in South Africa for revisiting the impacts that have manifested differently to what was described in the EIA, because authorisations are for activities.  In this regard, it is instructive to note that one of the projects that was reviewed ran multiple processes to amend the original authorisation yet made virtually no effort to address significant transgressions of the law that were occurring on a daily basis on the construction sites. The message from the project was in incense that the authorisation was what mattered, and that nothing else was important.  Interestingly, on that same project the financiers were also fixated with the authorisation but showed little interest in the environmental management performance during the project.

Limited public participation

In all projects reviewed, public participation was considered to be significantly ‘diluted’ after project implementation (in fact after the projects had been authorised).  The irony of this circumstance was that on at least two of the projects, there was greater opportunity (more frequent) opportunities for public participation than there had been during the EIA.  Stakeholders used these opportunities to raise problems associated with the project that were having a direct impact on them, such as dust and noise, but many stakeholders considered that their further participation was simply token as the ‘decision had already been made’.  Stakeholders also indicated that there was no sense of an authority body to which they could appeal in the event that complaints were not being addressed satisfactorily and that they were ‘limited’ to having the developer deal with their issues (to greater and lesser degrees) which they sometimes found unsatisfactory.  On one of the projects the public meetings was limited to allowing stakeholders to raise issues of concern, with no presentation of environmental management performance such as non-compliances, incidents, environmental quality monitoring and so forth, despite the fact that this was expressly a condition of the authorisation.

Ineffectual EMCs

Environmental monitoring committees (EMC) were established on several of the projects reviewed. On one of the projects the decision was made to limit the EMC to include only the authorities because previous experiences with an EMC that included both authorities and the general public had resulted in frequent ‘in-fighting’ on matters that were not always germane to the project at hand.  The project then had local, provincial and national authority representation on the EMC which met monthly to review the project’s environmental management performance.  There were a number of problems with the operation of the EMC including:

• Poor and irregular (different people attending as representatives) attendance;
• Unclear mandates on the part of the authorities;
• Failure to review documentation that had been made available prior to the meeting; and,
• Failure to take definitive action in response to reported transgressions of the conditions of authorisation, the EMP and the law in general despite these being clearly presented during the EMCs.

Lack of response to reported transgressions

Of the projects reviewed, one project in particular was deemed to have a very good Record of Decision (RoD) with exacting conditions of approval.  One such condition was the requirement to provide a monthly report to the provincial authority that had issued the authorisation.  Detailed monthly reports were submitted to the provincial authority highlighting incidents of transgressions of the law, exceedances of target environmental quality objectives, failure to implement the conditions of authorisation, and others.  No material action was taken by the authorities to address the issues despite the fact that the reports were unambiguously presenting key contraventions of the law. The reports submitted to the authorities are summarised in Figure 3. [download report to view charts]

On another project there were several authority audits during the construction of the project but the findings were often misdirected.  For example, the EMP contained a requirement to spray water three times a day.  Because drought conditions were prevailing a decision was made to stop spraying with water and to use a chemical binder rather that could be used far less frequently.  The authorities ruled that the failure to spray with water constituted a non-compliance despite the reasoning offered for using the binder instead.

Lack of authority coordination

On one of the projects there was a major and sustained discharge of contaminated water into surrounding surface water courses (Figure 4). When presented with this problem the lead agent argued that despite having issued the authorisation they were in no position to take corrective action ‘on behalf of another Department’ (viz. DWA).  There appeared to be no mechanism for passing on possible transgressions to the other relevant departments even if this was their intention.  This raises the issue as to the authority held by a lead agent to take enforcement action on issues that are clearly contraventions of the law but not technically within their mandate. In other words, if a lead agent issues an authorisation, the question is asked whether they are legally in a position to take some form of enforcement action if they identify a contravention of the National Water Act or the NEM:AQA.

Clumsy and slow sanction

In a certain case,  a decision was finally made to sanction a project, but the process for giving effect to that sanction was slow and too laborious to be effective as an enforcement mechanism.  In one instance in particular there was a severe environmental incident that could have been used by the authorities to very effectively set an example through well directed and timeous punitive action.  This ‘punitive action’ finally took the form of a pre-compliance notice which only required the rehabilitation of the affected area.  No further action was taken despite the seriousness of the incident, and the project in question continued to break the law with impunity.  A key concern to emerge from one of the projects reviewed was the apparent power of the provincial government to exercise their discretion as to whether to take action or not.  When challenged on this issue the head of department of the provincial government declared that they were not obligated to take action against reported transgressions.

This differs markedly from the EIA process where there is a clear set of expectations around what is expected of the lead agent with little or no discretionary power to operate outside of the regulations.  There appears to be no systematic process for receiving information on transgressions, and then launching pre-determined enforcement actions systematically and consistently, regardless of the project in question.

Importance of self-regulation

It is clear from all the projects that were reviewed that there is a significant expectation of self-regulation that follows the issuing of an authorisation.

This expectation includes that once activities have been authorised, they will ensure inter alia:

• That their activities remain exactly as authorised;
• That their environmental profile is equivalent or better than what was used in the  EIA;
• That they diligently and robustly implement all the conditions of authorisation;
• That they report all incidents accurately and timeously; and,
• That they effectively report their environmental performance.

Ambiguity of EMPs

Although there have been a number of processes to standardise the approach to and the presentation of the Environmental Impact Report (EIR) there appears to be much greater latitude in what is considered to be acceptable in terms of an EMP.  In the projects that were reviewed the EMPs were found to be generally one dimensional with little attention paid to how the management and mitigation requirements would in fact be implemented.  Very few EMPs deal with design in any meaningful way despite the fact that the environmental performance detailed in the EIA must be carried through to design specifications and criteria.  Only two of the projects reviewed had made provision for review of the environmental design criteria and only one of the projects had this implemented effectively.

EMPs also tend to be vague on outcomes and tend to focus more on the definition of the input measures  than the definition of output or outcome performance.  Objectives, indicators and targets are seldom adequately defined and there appears to be confusion regarding the Environmental Management System (EMS) nomenclature of activities, aspects and impacts.  In general it is considered that the approach to formulating EMPs in South Africa is broad and ill-defined and there appears to be a wide range of approaches that are deemed to be acceptable.  Again it is argued here that this is ironic give the fact that the EMP is the key definition of what will happen in reality on the ground. In respect of compliance and enforcement, the EMP is a critical bridge firstly between the EIA and the implementation of the project, and secondly between the developer and the authority.

There also appears to be little recognition of the legal status of the EMP on the projects reviewed.  Many developers view the EMP as a guideline document rather than one that has legally enforceable provisions.  In circumstances where authority audits are not clearly directed at auditing the EMP and its efficacy, that perception is compounded.  The authorities are also not necessarily at fault here because sometimes the definition of the environmental management philosophy and the process whereby the EMP is meant to be implemented is not entirely clear.  If record keeping in respect of environmental performance is also sub-standard then the authorities have little choice but to try and identify environmental transgressions themselves. If there is a reluctance to take enforcement action against developers for direct contraventions of the law (such as waste water discharge) then the likelihood of authorities taking action against a developer for poor record keeping, or ambiguity regarding the implementation of the EMP, seems remote.

Adaptive environmental management

The principle of adaptive environmental management is well recognised in the literature most especially in the transition from EIA to project implementation. The principle of adaptive environmental management is one in which changing circumstances are carefully monitored and the environmental management response is adapted accordingly.  With the EIA regulations as they are at present, the principle of adaptive environmental management is severely constrained with new authorisations required even for changes that are made to approved EMPs.  In these circumstances, compliance and enforcement becomes more challenging rather than less challenging because of the level of detail that is required to be policed.  What is required is a simplification of authorised activities to fewer but more powerful environmental performance indicators, while allowing a great degree of flexibility regarding how the environmental performance is achieved.

OTHER ISSUES

Mining

For compliance and enforcement, the concern in respect of mining is quite simply that it appears as though mining activities will remain materially outside the jurisdiction of the compliance and enforcement functions that are held within the DEA. Without casting any aspersions on the capabilities of the DMR, it is unlikely that this and an effective compliance and enforcement regime would be brought to bear for the control and prevention of negative impacts on the environment. Again simple logic would dictate that an independent third party with no vested interest in the outcome of a particular activity would be the best way of implementing an effective compliance and enforcement regime. It also has to be said that it is well-recognised that mining is highly politicised and presents the ideal opportunity for growing and sustaining highly profitable businesses. The recently announced plans  by government to establish and operate a state owned mining company presents an alarming spectre  of an operation that would have little difficulty in authorising their activities and would be free to  do as they choose with regard to ‘ignoring’ environmental laws with little if any consequence.

It would be hard to argue that mining in its own right has the single biggest impact on the environment.  It is more likely that due to the spatial extent of agriculture that this activity has the single biggest impact (at national level) on the environment. That notwithstanding, mining has to be a significant detractor to the principles of sustainable development. Indeed it would be very difficult to argue that mining in any way, shape or form could be perceived as resulting in an improvement in environmental quality.  If mining is perceived as a relatively simple way of capitalising on the mineral wealth on offer in South Africa, then it is likely that over the next decade or so there will be and unprecedented proliferation of mining in the country.

Where such mining is allowed to proceed with questionable decision-making on the acceptability or unacceptability of specifically proposed mining activities, together with very limited compliance and enforcement, the threat to environmental quality in South Africa cannot be understated. One does not have to look very far to see the significant negative impacts that we live with today as a function of past, and in some cases present, mining activities.  The contamination of the West Rand's groundwater resource is a case in point. Such impacts are a function of poor regulation and control.  It would be foolish not to learn from mistakes of the past simply for the sake of political expediency.

OBSTACLES TO EFFECTIVE COMPLIANCE AND ENFORCEMENT

From the discussions with the compliance and enforcement personnel at DEA, several obstacles were identified that thwart the continued effectiveness of compliance and enforcement.  These are briefly described in the following section.

The scale of the task

The greatest obstacle is simply the sheer number and scale of activities that require compliance and enforcement functions. What is not directly available in the compliance and enforcement statistics is the number of compliance audits conducted relative to the number of authorisations issued in terms of the EIA regulations.  Statistics on the number of applications received are difficult to come by, but in the presentation of the NEMA EIA regulations which were promulgated in 2006 it was indicated that there were some 44,000 applications between 1997 and 2006. It is also known that there was a significant increase in the number of applications processed by at least the DEA following the implementation of the NEMA regulations. The 2006 NEMA EIA regulations included an increased number of listed activities that required authorization which thereby resulted in a concomitant increase in the number of applications.

Against these sorts of numbers the statistics on compliance and enforcement actions published by the DEA indicates that a relatively small percentage of authorisations were followed up in terms of compliance and enforcement. This should not necessarily be interpreted simply in percentage terms because there is obviously a broad spread of relatively insignificant activities (in terms of impact on the environment) within the vast number of applications. The compliance and enforcement function in DEA have specifically targeted those sectors which are deemed too hold the biggest risk in terms of impact on environment.  As such it would be unfair simply to weigh up the compliance enforcement actions against the number of EIA applications. Nevertheless, the mere number of applications presents a logistical and administrative challenge to compliance and enforcement.

Capacity

The DEA has made significant inroads over the last five years in terms of identifying and training environmental management inspectors (EMIs). Statistics presented in the national compliance and enforcement report show that at the end of the 2009/2010 financial year some 1073 EMIs had been trained and qualified. These qualified EMIs span the five grades of the grading system that is used to qualify EMIs.  The grading is required in turn to align the function of the EMI to the required legislative powers. One of the key challenges remains building adequate capacity for compliance and enforcement at provincial government level and also possibly more importantly, at local authority level.  The capacity requirements at local authority level are also compounded by the regulatory functions expected at local authority level by some of the SEMAs. The NEM:AQA is a case in point where the local authority is required to issue atmospheric emission licenses, for example.

Quality of authorisations

A further obstacle to effective compliance and enforcement is the quality of authorisations (previously known as Records of Decision (RoD)) issued on a number of projects.  In a number of instances compliance and enforcement is actually limited by vague and potentially contradictory conditions.  The compliance and enforcement function at DEA is running a process to provide feedback into the issuing of authorisations, alerting competent authorities to better ways of structuring the conditions of authorization.

Extension of function

Given the remit of this particular exercise focusing as it does on chapter 5 of the NEMA, ‘extension of function’ is possibly beyond the scope of this status quo assessment. However, it is important to note that the compliance and enforcement function that exists within the DEA is principally anchored in NEMA implementation and that ultimately there should be a compliance and enforcement function for each of the branches or agencies that are responsible for issuing permits or licences (waste and air quality management, for example). The requirement to extend the functionality of compliance and enforcement into these permits and licence custodians is obviously a further development requirement that must be fulfilled as a logical follow-on to the promulgation of the foundation legislation.

Bureaucratization of EIA

The effect of the EIA regulations and continued amendments of the same are invoking greater and greater levels of bureaucracy. In recent years EIA has been targeted and criticised as an obstacle to development. Protagonists have argued that EIA gets in the way of economic and social development, and as such is not adding any value to the development challenges faced in South Africa.  These criticisms come with a sense that it is EIA itself that is the obstacle to development. In reality what is argued here is that it is the bureaucracy and the bumbling decision-making that provides the obstacle to development. It is argued that if EIA was an  efficient process it is likely that much of the criticism would fall away.

Industries have cited that one of the biggest risks they face is the uncertainty around decision-making. This uncertainty is not a function of whether the proposed development will be approved or not but rather the time that will be needed to issue the approval. Large capital intensive projects can be seriously negatively impacted upon if the industries have uncertainty regarding key decision-making milestones. If EIA limits development because the development will have an unavoidable and significantly negative impact on the environment, then EIA should fulfil exactly that purpose. If EIA limits development because of protracted and capricious decision-making, which, it is argued here is the case, then the regulations governing how EIA is conducted and how decisions are made in response to those EIA's, has needs to be quickly and seriously revisited.

The bureaucratisation of the EIA regulations is extremely worrying in that the emphasis in conducting EIA's is now perceived as being about “ticking boxes” rather than focusing on the quality objective assessment. It stands to reason that if EIA is seen and perceived to be nothing more than an administrative burden, rather than a process which will serve to reduce risks to the development and to the environment in which the development will be established, then EIA will continue to be discredited.

The effect of the bureaucratisation of the EIA process is also to tie up authority resources that could be better utilised in compliance and enforcement functions.  At the same time, efforts to try and formalise independent reviews as a compulsory part of the EIA process have fallen on deaf ears. These proposals revolve around using experts in a particular domain to review the EIA prior to it being submitted for decision-making. What this would seek to achieve is to take the review function away from the authorities allowing them to focus on the key responsibility which is decision-making.  In addition, if the quality of EIA's continues to be improved then the EIA's will better enable compliance and enforcement during implementation of the activities subject to the EIA.

PRINCIPLES TO BE ESTABLISHED

The simplest way of defining the principles that need to be established to support effective compliance and enforcement is by reference to a model (developed by the DEA) of the integrated environmental management phases.  This model is presented schematically in Figure 5. [donwload report to access diagrams]

A conceptual model

The four phases that are presented in the model equates to the classical Deming cycle of management, namely Plan, Do, Check and Act.  For effective management it is essential that every element of what is planned can be checked in respect of its implementation as well as its efficacy in achieving the overall management objectives. The ‘Act’ component of the Deming cycle refers to action that is taken in response to the information provided through the Checking process. In order for management to be effective, the information provided through the Checking process should be clear, easy to assess, instructive and consistent.

If the information provided through the Checking process upholds these principles then the management responses or interventions will be much more effective than they would be if the information were to be ambiguous and inconsistent.  As such, a key principle of management is that the effectiveness of actions is critically dependent on the quality of the information provided through the Checking process. In a similar vein, the quality of the information provided through the Checking process will be dependent on how well Checking was planned for in the Planning process.  The point to be made here is that none of the four management elements will work well if they have not been properly considered in the other management phases.

What is also critically important is that management must be geared towards outcomes.  At face value this may seem obvious but all too often management energy goes into inputs without any real thought as to the outcome that will be achieved.  As a matter of interest, ISO14001 is becoming discredited by a perception (and indeed possibly more than just perception) that an EMS can be certified as function of the inputs rather than the outcomes. A focus within management on achieving outcomes is known as “objectives based management” and it stand s to reason therefore that such management should be based on objectives-based planning.

Objectives based planning is based on the principle of setting a clear set of objectives all of which reflect a ‘new reality’ or outcome (viz. what the management effort seeks to achieve). The actions defined in the planning process are then the actions required to meet those outcomes.  If the outcomes are clear and well defined then it is relatively straightforward to define the necessary actions for achieving those outcomes. For management purposes where the outcomes can be represented by indicators, such indicators become what is Checked. The setting of targets for each of these indicators then provides an indicative measure of whether the management objectives are being met , and that the targets can be reviewed unambiguously and objectively on an ongoing basis.

At the risk of oversimplifying, the conceptual approach to establishing the principles that should underpin compliance and enforcement within the context of an integrated environmental management strategy is based on the principles outlined above.  Stated differently, what is required is a clear manner of measuring the degree to which the objectives (argued here as being the NEMA principles) are being met or not over time. It has been argued earlier that in general terms the challenge for compliance and enforcement is less about enforcement and more about compliance measurement and monitoring. This is not to say that enforcement cannot be improved (discussed separately) but it is compliance monitoring that requires by far, the more significant improvement. If information was available to the authorities more readily, consistently and meaningfully than it is at present, the authorities could launch appropriate enforcement responses with maximum effectiveness.

In terms of principles, what is required for effective compliance and enforcement is fundamentally a source of information that broadly but effectively characterizes the degree to which the NEMA principles are being achieved or not.  This information can be derived from various sources, including the environmental management performance of the various activities that have been authorized.  If such information were to be available, legal transgressions would immediately be made known to the authorities.  At the same time the authorities must be in a position whereby they can readily make sense of the information, determine the significance of the transgressions and launch in turn, into rapid and effective enforcement responses.  The conceptual model for effective compliance and enforcement, which has been adapted from the DEA model, is shown in Figure 6.  [download report to view diagrams]

For effective compliance and enforcement, the Planning phase requires the detailing of objectives, indicators and targets. In this case the objectives are the NEMA principles for which indicators and targets need to be defined. For each indicator it will also be necessary to define a baseline condition so that progress towards or away from the objective can be assessed on an ongoing basis. The remaining part of the planning process is to define the mechanisms needed to achieve the objectives. A variety of tools could be used for this latter purpose including Strategic Environmental Assessment (SEA), Environmental Management Frameworks (EMFs), EIA and potentially others.

The Doing component of management would see the implementation of the mechanisms previously defined for meeting the overall objectives. The requirements in this management phase are an activity-based environmental management function and provision for adaptive environmental management. As has been argued previously, EIA is a solitary mechanism for achieving implementation of Chapter 5, and provides almost nothing in respect of compliance and enforcement.

The next management component (the Checking component) requires effective monitoring, reporting, verification auditing and compliance monitoring by the authorities.  As discussed in the analysis section of this report an important element of implementation of any authorised activity should be a clear set of reporting requirements. This reporting requirement should be set up in such a way as to provide immediate notification to the authorities of any failures to comply with the legal requirements governing the activities.

The Act component of management requires robust information that clearly indicates transgressions of the law. Again, as has been previously described, the identification of such transgressions would be followed by letters and notices following which the prosecution could be initiated which would hopefully result in conviction.  The Act component of this management model is quite simply enforcement.  The model shows what is required in each other management components for successful compliance and enforcement.