OVERVIEW

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 Gauteng; however non-compliances have also been detected in the past in relation to authorisations for the R21 highway upgrading in Gauteng, Mokapane Weighbridge, the N4 ring road in Nelspruit and the N1 highway upgrade in Gauteng. Based on these repeated contraventions the Department will now have to step up its enforcement response as the administrative enforcement tools used in relation to these contraventions do not appear to be effective in raising the level of compliance’ (DEA, National Environmental Compliance and Enforcement Report 2009/10).

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.

COMPLIANCE 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.

Compliance monitoring

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

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

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 and enforcement for the 2009/10 financial year (Source: National Environmental Compliance and Enforcement Report, DEA, 2009/10).

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.

MINING

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.

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.

A number of issues emerge from the analysis that has been presented. These issues reflect both positively and negatively on the state of compliance and enforcement in South Africa and as such, they are presented here as categories of strengths and weaknesses.

STRENGTHS

The following are deemed to be strengths in terms of environmental compliance and enforcement in South Africa currently:

• The regulatory provisions for compliance and enforcement are generally adequate bar the limitations imposed by section 48 of NEMA, which are discussed in more detail in the following section (weaknesses);
• Compliance and enforcement functionality has been implemented and grown to a point where convictions are routinely obtained;
• An annual report is available that summarises the state of environmental compliance and enforcement in South Africa.  The report presents a broad cross-section of important indicators that can be used to track the success of compliance and enforcement over time;
• There are organisational structures in place at national, provincial and to a lesser extent local authority levels which have been specifically established for compliance and enforcement; and,
• There is a spirit of willingness to grow and strengthen the compliance and enforcement function, specifically in terms of support to the implementation of chapter 5 of NEMA, but extended as well to the SEMAs.

WEAKNESSES

The following are deemed to be weaknesses in terms of environmental compliance and enforcement in South Africa currently:

• A significant number of activities that have the potential to impact negatively on the environment are excluded from enforcement actions (prosecution specifically). These activities are precluded by section 48 of the NEMA, which excludes authorities and para-statals,  and by the fact that it seems unlikely that mining decision-making will ever move to the DEA.  The degree to which mining activities will be regulated in terms of their environmental impact, by an independent authority such as the DEA, is still to be seen but it simply has to be better than the DMR;
• The challenge for compliance monitoring is severe and far exceeds the current compliance monitoring capacity. This refers to both the capacity in terms of the number of resources compared to the number of projects and activities that need to be controlled, as well as the capacity to assess and interpret the compliance monitoring information. In general terms it is considered that national DEA is relatively well-organised for compliance monitoring, provincial governments relatively less so and local authorities relatively least so;
• The coordination of the different authority levels is critically important to successful enforcement particularly, but also to compliance monitoring. This coordination is currently challenging and has the effect of protecting the compliance enforcement process;
• For effective enforcement it is essential to obtain high-quality, consistent and defendable information and to ensure that this information is routinely and systematically available. It is considered that the reality of information availability is well removed from this ideal;
• Compliance and enforcement action continues to be affected by political influence, seemingly to the greatest extent at local authority level.  Anecdotal evidence does, however, suggest that the provinces and certainly even the DEA itself are not immune from political interference;
• Compliance and enforcement appears to focus strongly( particularly at provincial level) on the authorisation of listed activities rather than reviewing the performance in respect of the conditions of authorisations.   This is deemed to be a circumstance of pursuing ‘low hanging fruit’ and may be appropriate for the current state of development in terms of compliance and enforcement. However, for compliance and enforcement to live up to its expectation of supporting the NEMA principles, compliance and enforcement needs to dig deeper and be more effective in uncovering environmental transgressions.
• The custodians of activities that have the potential to impact negatively on the environment seem unconcerned about the risk of prosecution and indeed any form of enforcement action. This is in stark contrast to their concern about conducting listed activities (in terms of the EIA regulations) that have not been correctly authorised;
• It is currently extremely difficult for civil society to have any sense of the compliance and enforcement function and whether or not it is being implemented effectively. The Green Scorpion Hotline appears to be one of few mechanisms for reporting suspected illegal transgressions.  Ongoing environmental performance is generally reported much too vaguely than is needed by stakeholders to have a proper understanding of what is and what is not being achieved;
• There are no universally accepted indicators which, together with targets and a baseline could be used to assess environmental performance amongst the range of disparate activities in a consistent and effective manner; and,
• EIA continues to play a disappointing role in promoting the principle of authorising projects provided these projects meet certain conditions during implementation. EIA is rapidly becoming perceived as a mechanism for justifying certain activities rather than for deciding upon their acceptability. The current compliance and enforcement function is too weak to properly give effect to policing the conditions of authorisation, and indeed broader scale environmental legal requirements.

STRATEGY STATEMENTS/ PRINCIPLES

Overview

On the basis of what has been presented above, it is argued here that the implementation of Chapter 5 of NEMA is weighted too heavily towards issuing an authorisation for an activity rather than policing that activity.  The EIA requirements have become heavily bureaucratised demanding major resource inputs from the authorities and thereby potentially limiting the availability of resources for compliance and enforcement actions. This has been compounded by the more recent introductions of the NEM:AQA and the NEM:WA, with both seeming to place additional emphasis on the EIA process rather than necessarily shifting the balance towards compliance and enforcement. Given the uncertainty of impacts during the project concept stage versus the certainty of impacts following project implementation, it is argued that the balance needs to be shifted towards a greater compliance and enforcement focus during project implementation.

The outcomes that needs to be achieved for effective compliance and enforcement are detailed as follows:

• All activities that have the potential to impact on the environment are open to possible prosecution by the environmental authorities, which of necessity includes state departments and para-statals as well as all mining related activities;
• Enforcement functions are tactically and strategically applied to get the greatest potential return in terms of reduced environmental impact;
• Enforcement functions are highly publicised so that they are widely recognised and acknowledged;
• Information on the implementation of the NEMA principles is provided to the authorities systematically, consistently and representatively and in a manner where it is clear where there are transgressions of the law;
• The authorities are equipped to assess the information provided to them quickly and effectively identifying activities that require enforcement action;
• A range of tools are available for planning purposes that are effectively co-ordinated and integrated, and collectively cover a broad range of development planning;
• These tools have the necessary regulatory provision to support the effective use and implementation;
• The tools used for planning are used effectively, not just in making decisions but also in setting clear performance prescriptions, as well as a baseline that can be used to gauge future performance;
• EIA fulfils the roles for which it was originally conceptualized, which is fundamentally decision-making.  Decisions are made quickly and effectively on the basis of EIAs, and the administrative (authority)  process is limited and manageable;
• Information on environmental performance is widely available so that stakeholders (civil society) have a sustained and clear picture of where performance is good and where it is poor and are able to intervene effectively when no action is taken by the authorities;
• Custodians of activities that have the potential to impact negatively on the environment know that if they break the law that they are likely to be caught and punished; and,
• Self-regulation is an established and credible part of the overall compliance and enforcement effort, whereby individual activities recognise and respond to possible legal transgressions themselves without the need for authority enforcement action.

PROPOSALS

The required outcomes as previously detailed are ambitious and will not necessarily be easy to implement. Nevertheless they do provide an overarching set of outcomes which are argued here to be an effective framework for compliance and enforcement. As more immediate short-term outcomes the following specific proposals are presented.

Improve EMPs

A key strategy for improving compliance and enforcement lies in radically improving the structure, content and implementation of Environmental Management Programs (EMPs). It is interesting to note that an EMP is sometimes interpreted to mean Environmental Management Plan. There is a significant difference between a plan and a programme where the plan suggests an intended set of actions whereas a programme implies mechanisms for the implementation of what is in the plan.

An EMP should contain as a minimum the environmental management philosophy that will be implemented during the implementation of the activity in question. This environmental management philosophy should detail how mitigation has been identified, and how it will be implemented and policed on an ongoing basis. The environmental management philosophy must also detail how performance will be reviewed on an ongoing basis and how corrective action will be identified and implemented quickly and effectively.  The environmental management philosophy must also detail how links will be made to construction activities as well as to the design process.

The EMP must clearly demonstrate the links as to how the project will be implemented, and to how environmental management requirements will be linked to the mechanisms for project implementation. It is simply ineffective to have an EMP as a standalone document that must be reviewed and understood (and ostensibly implemented) by the project personnel. It is incumbent on the designer of the EMP to make sure that the requirements stated in the EMP are effectively linked to the mechanisms that will be used to implement the project. For example, large-scale construction projects are typically implemented as a function of so-called ‘engineering packages’. An effective EMP is one in which the environmental management requirements that must be implemented are introduced into the engineering package. In this manner the effective implementation of the engineering package will de facto result in the implementation of the environmental management requirement.

Set performance outcomes (not inputs) and ensure reporting against outcome performance criteria

The overriding requirement in ensuring that EMPs fulfil their potential as an aid to compliance and enforcement is to emphasise, strongly and unambiguously, performance criteria for the activity in question. This performance criteria must be clearly expressed in terms of indicators and targets. To support performance assessments there must be clear mechanisms detailed, that will provide the necessary information against which the targets and indicators can be reviewed on an ongoing basis. If performance criteria is developed effectively then compliance and enforcement functions can focus quickly and effectively on performance relative to the criteria, as opposed to being swamped by the detail of whether mitigation has been implemented or not.

Performance criteria must be focused not just on environmental quality variables such as air or water quality, but must also include measures of implementation.  This is because environmental quality variables reflect only historical performance. Any good management function contains measures of both the performance as well as the implementation of the actions needed to achieve the performance. This means that in the event of environmental quality performance being below expectation, it is immediately clear whether that poor performance is a function of a failure to implement mitigation or a failure of the mitigation itself. It stands to reason that good environmental management should be proactive and focus on the effective implementation of the mitigation deemed best to achieve the performance objectives, not just a blind resolve to implement whatever mitigation has been defined.

Massively improve reporting to the authorities

It is argued here that a considerable performance improvement could be achieved if a commensurate effort went into the development of the EMP and its implementation as currently goes into the development of Scoping and Environmental Impact Reports. EMPs must provide an effective bridge between the impact assessment process and implementation of the activity in question. Performance expectations as well as the performance itself must be readily available on an ongoing basis. Compliance monitoring should be able to be effected without authorities having to visit the site necessarily.  For this to happen there must be a clear prescription in the authorisation as to the reporting requirements expected of the developer/applicant. Enforcement action should be implemented if the reporting requirements are not met. If an effective reporting regime can be implemented that is properly structured from both the sender and receiver's point of view, then any number of projects could be readily and effectively reviewed over a much shorter period of time than is currently the case. In such cases the auditing function must include inter-alia verification of the accuracy of reporting.

If systems were in place as discussed above, this would have the effect of placing a far greater emphasis on the responsibility of the applicant to provide accurate and effective reporting to the authorities. Where that is the case and there is meaningful response to the reporting from the authorities, applicants would be forced to recognise their own non-compliances and to take the necessary action to address those non-compliances without necessarily being instructed to do so by the authorities. Reporting on environmental management performance is not currently effectively driven by EMPs or by the authorities themselves.

De- bureaucratise EIA

It has been presented variously in this report, that EIA has become too many things to too many people. What is expected of EIA goes way beyond what EIA as a mechanism can ever hope to achieve. In addition  to this is the fact that as the sole regulatory process for authorising a whole suite of activities, EIA has become administratively heavy and is now largely a bureaucratic administrative process rather than the effective decision-making process that it should be. Again, as has been argued previously, the various amendments to the EIA regulations have not appeared to materially change the effectiveness of EIA in preventing impacts on the environment or indeed improve decision-making. For example, the opportunity for exemption has been almost eliminated despite the fact that it is well-recognised that there will always be ambiguity in the listed activities and that in some instances a technical definition of an activity forces a full-scale EIA process where nothing more than a basic assessment or even less is really required.

It is considered that one of the reasons for this bureaucratisation of the EIA process is a severe lack of capacity on the part of the authorities. This is not offered as a criticism of the authorities necessarily but rather as a suggestion for better directing the resources that are available to the authorities. A single case officer may receive a multiplicity of applications that have to do with multiple activities and multiple potential impacts on the environment. It is simply unfair to expect of the official to be an expert in each and every one of these cases. As such it is considered that if an effective review process was developed and implemented that was outside the direct responsibility of the authorities,  the authorities could then focus on the decision-making requirements of EIA. This would significantly reduce the workload of the individual case officers and create the space required for continual improvement of the decision-making process.

Improve quality of authorisations

From the discussion with the compliance and enforcement function of the DEA it has also become clear that the quality of the authorisations that are produced by the authorities in many instances are not of sufficient quality. Effective compliance and enforcement requires that these authorisations are carefully and effectively crafted so that they readily lend themselves to the compliance and enforcement function. Again, if the authorities are freed up from the burden of reviewing extensive and often complex EIA's, the time would be better spent in producing more effective authorisations where the conditions of authorisation unambiguously convey compliance requirements in terms of defined performance criteria, the mechanisms for ensuring that the information is routinely and consistently gathered, and finally and most importantly, an effective reporting regime exists between the applicant and the authorities.

Create mechanisms for highlighting political interference

The simplest way of highlighting political interference in preventing enforcement actions is by improving the transparency of the environmental management performance of activities that have the potential to impact negatively on the environment. Currently it is extremely difficult for stakeholders to determine whether individual activities are meeting the conditions of authorization and indeed the law. Were this information to be more readily available, then political interference or intervention to prevent enforcement actions would be much more obvious to civil society. Improving the transparency of environmental management performance would also have the effect of placing additional pressure on the authorities themselves to respond more decisively to poor environmental management performance and possible transgressions of the law.

Create mechanisms for effectively reviewing performance reports and targeting specific compliance monitoring

To ensure that improved transparency and reporting to the authorities results in the necessary enforcement response, mechanisms must be created to allow the authorities to quickly and effectively review and assess the performance reporting, identify specific compliance problems and launch associated enforcement action.

Massively improve provincial and local authority compliance and enforcement capacity

It almost goes without saying that massively improving provincial and local authority compliance and enforcement capacity is an absolute prerequisite for successful compliance and enforcement.  Improving capacity implies both adequate numbers of personnel that can fulfil a compliance and enforcement monitoring function, but also creating the skills and competence needed to source information required for compliance monitoring, assessing and interpreting compliance monitoring information, and deciding on and pursuing the necessary enforcement actions. The greatest challenge here is likely to be at local authority level, where the capacity shortfall is at its most severe.

Create performance expectations for compliance and enforcement

By performance expectations it is implied setting targets for compliance and enforcement.  Such targets would include but not be limited to:

• number of activities targeted for compliance audit;
• number of enforcement actions; and,
• number of convictions as a percentage of enforcement actions.

Provide proper environmental regulation of mining

If the stated purpose of the environmental impact management strategy is the promotion of sustainable development, it is clear that the exclusion of mining and mining related activities significantly detracts from the achievement of that purpose.  It is simply untenable that decision-making on the acceptability of proposed mining activities lies in the hands of a department whose stated purpose is the promotion of mining. It is very difficult to define specific actions that would bring about a renewal of the process of amending the MPRDA and moving decision-making on mining related activities to the DEA. It is clear that this is a complicated and highly politicised arena but that should not allow meek acceptance of the decision by the DMR to renege on the previous commitment to amend the MPRDA.

As a minimum there needs to be a concerted effort within the DEA to at least at a departmental level establish and solidify a desire and commitment to regulate mining.  It is beyond the remit of this report on how to manage the political process so that a decision that is in the best interests of sustainable development be taken. What is argued here is that the process must be started by ensuring that the DEA themselves firmly and unambiguously commit to the importance of themselves  regulating mining at least from environmental impact point of view, as opposed to that being done by the DMR, and then launch the necessary processes to achieve this outcome.

NEMA provides for various ways the State can watch for environmental violations and impose penalties.

But Section 48 of NEMA gives any government office immunity from criminal prosecution for violations of environmental laws.  This includes state-owned companies, such as Eskom, Johannesburg Water, Portnet, PetroSA, that are involved in many activities affecting the environment.

A range of problems are identified for the monitoring and enforcement of environmental authorisations.

Subtheme 4:  Compliance and Enforcement

* Angela Andrews of the Legal Resource Centre compiled this summary of the Specialist Report.
The following constitutes a summary of a report written by consultants to the EIAMS process and does not reflect the views of the Legal Resources Centre.

Original Report by SE Solutions (Pty) Ltd:  Sean O’Beirne

Problem Statement

There is not enough monitoring or enforcement of activities affecting the environment.

Status Quo

NEMA provides for various ways the State can watch for environmental violations and impose penalties, but Section 48 gives any government office immunity from criminal prosecution for violations of environmental laws.  This includes state-owned companies (such as Eskom, Johannesburg Water, PetroSA) that are involved in many activities affecting the environment.

At the DEA, there is a Compliance Monitoring Group that identifies activities in violation of the law and an Enforcement Panel that issues warning letters and decides on prosecution and investigations.  In deciding on the appropriate action, the panel follows clear guidelines and considers factors such as the immediacy of the threat.

Problem Areas

1.   Too much focus on authorisation:  Currently, the EIA process is heavily focused on the beginning stages of a project, when uncertainty about how the project will turn out is greatest.  After the activity is authorised, there is no mechanism for reviewing whether the basis of the authorisation was valid or what to do if the impact on the environment is different from the EIA’s predictions.

2.   EIA has become too bureaucratic:  The EIA has become about ticking boxes rather than quality assessment.

3.   Lack of verification and monitoring:  A project’s actual environmental impacts often do not match up to its estimated impacts in the EIA, and there is no way to address the impacts that have turned out differently from the EIA’s predictions.  In addition, after an activity has been authorised, there is little monitoring to make sure the activity complies with the conditions in the authorisation.  Environmental Monitoring Committees (EMCs) are ineffective.

4. Slow enforcement:  Even where permit or authorisation violations are reported, enforcement is slow and violations often go unpunished.  There is no organized method for responding to violations and beginning enforcement actions.

5.   Lack of coordination among authorities:  There is no method of referring environmental violations to other relevant government departments (for example, referring a contaminated water problem to Department of Water Affairs instead of the DEA).

6.   Ineffective public participation:  Public participation is seen to be merely token after a project has been authorised, even though sometimes there are more opportunities for public input after authorisation than during the EIA.

7.   Vague EMPs:  Environmental management plans (EMPs – plans to make sure an activity complies with environmental laws) do not have clear performance criteria, making it hard to measure violations.  It is also unclear how to implement an EMP, and many developers view the EMP as a guideline rather than as law.

8.   Vague information in general:  The environmental status of activities is reported vaguely, making it difficult for civil society and the public to know if an activity is violating a law or whether it is being adequately monitored.

9.   Lack of clear targets and baselines:  There are no uniform indicators to measure compliance across different activities consistently.

10.  Immunity from prosecution:  Government and state-owned businesses are exempt from prosecution for environmental violations.

11.  Mining outside of DEA’s control:  Mining is regulated by the Department of Minerals, which has an interest in promoting mining.  There is also disagreement over whether certain activities associated with mining need to comply with just the mineral law or with both the mineral law (MPRDA) and the general environmental law (NEMA).

12.  Lack of capacity:  Currently there are not enough resources and expertise to effectively monitor all activities.

13.  Poor quality authorisations:  Authorisations themselves are sometimes vague and contradictory, making it difficult to know how to comply.

Recommended Proposals

1.   Improve EMPs:  EMPs should contain the general environmental management principles for the project and detail how to minimize impacts, how to link the environmental goals to the construction stages of the project, and how to monitor and measure performance.

2.   Set clear performance criteria and baselines:  The focus should be on environmental outcomes, not inputs.  The criteria should measure not just environmental quality but also how effectively environmental management tools were implemented, so that it is clear whether poor performance is due to a bad plan or bad implementation of the plan.

3.   Improve reporting and information flow:  Authorisations should include clear reporting requirements on the developer, with penalties for failing to report adequately.  This puts more responsibility on the developers themselves to identify and fix violations of environmental regulations.

4.   De-bureaucratise EIA:  EIAs should be reviewed by independent experts rather than government officials because government officials often lack the expertise and cannot be expected to become experts on many different environmental topics.  This would allow government officials to focus on making the actual decisions, monitoring the activity, and taking enforcement action.

5.   Improve quality of authorisations:  Project authorisations should include clear performance criteria and reporting requirements.

6.   Increased transparency of environmental management:  Performance criteria should be clearer and readily accessible, so that violations, lack of enforcement, and political interference are much more obvious.

7.   Improve provincial and local capacity:  Both number of staff and skills training for environmental monitoring and enforcement must be increased at the provincial and local levels.

8.    Environmental regulation of mining:  The current situation, where the Department of Minerals is in charge of mining, is unacceptable.  Changing the situation is complicated, highly political, and requires amending existing laws, but the DEA should commit to the view that mining should be regulated from the environmental point of view.

The article lists the problems identified by Sean O'Beirne of SE Solutions in the investigation of monitoring and enforcement.

Generally, the monitoring, reporting and enforcement stages in the management cycle are poorly attended to.  The particular are highlighted here:

•    Impacts of activities on the environment are inadequately identified.  The potential impacts are required to be identified at the stage of the project when uncertainty is high.  
•    There is no mechanism which requires reassessment of impacts or the optimisation of mitigation/rehabilitation as certainty improves.
•    There is no regulatory mechanism for revisiting the impacts that have manifested differently to what was described in the assessment; there is no adaptive measure required for the environmental management programme/plan to respond to different impacts.
•    Public participation is too limited.  In spite of the I&APs and the public having to live with the impacts, there is no mechanism for continued interaction and input (of consequence) after authorisation.
•    Environmental monitoring committees (EMC) are ineffectual because they are poorly attended, authorities have unclear mandates, documentation is not adequately reviewed in preparation, there is no action taken on reported transgressions of the authorisation conditions, the EMP and the law.
•    There is no process or procedure which requires reaction to environmental reporting.
•    It is unclear which agency may take enforcement actions when there is a contravention of an Act or condition of authorisation which is the domain of another agency e.g contravention of Water Act.  
•    Sanction is clumsy, slow and inappropriate to the severity of the infraction.
•    The authorisation makes the assumption that the environment and the context for the activities remain unchanged (i.e. both the diligence of the self-regulation and the receiving environment are assumed to be unchanging)
•    Environmental Management Programmes/Plans are inadequate, with scant attention to how the management and mitigation requirements would be implemented, the criteria for review in changing circumstance, and outcomes are vaguely defined, if at all.
•    The legally enforceable status of the Environmental Management Programmes/Plan is generally disregarded.
•    Environmental reporting records are inadequate to allow infractions to be identified, and legal action to be taken.
•    Developers are constrained in how they respond to environmental changes rather than being tightly bound to specific environmental indicators which monitor a desired outcome.
•    Mining activities will remain materially outside the jurisdiction of the compliance and enforcement functions that are held within the DEA
•    Effective monitoring and enforcement is hampered by the scale and numbers of activities which require compliance and enforcement functions.  
•    Inadequate capacity for compliance and enforcement at provincial government level and also possibly more importantly, at local authority level is obstacle.
•    Authorisations are poorly drafted, lacking clarity and at times having contradictory requirements.  This impedes enforcement.  
•    The function of compliance and enforcement may need to be extended to permits and licences.
•    The process of assessment is reduced to administrative “ticking of boxes” which discredits the overall objective of reducing risks to the development and to the environment.

This is a compilation of the proposals made in the report by SE Solutions: Sean O'Beirne

Stipulate how performance will be reviewed on an ongoing basis

Stipulate how corrective action will be identified and implemented quickly and effectively

Indicate how the project and the EMP will be implemented

Stipulate how environmental management requirements are linked to the project implementation

Place greater emphasis on EMP development, content and implementation

Performance criteria must be clearly expressed in terms of indicators and targets

Clear mechanisms must be detailed in the EMP that will provide the necessary information against which the targets and indicators can be reviewed on an ongoing basis

Performance criteria must be focused not just on environmental quality variables such as air or water quality, but must also include measures of implementation

Environmental management must be proactive and focus on the effective implementation of the mitigation deemed best to achieve the performance objective

Performance expectations as well as the performance itself must be readily available on an ongoing basis. Compliance monitoring should be able to be effected without authorities having to visit the site necessarily

Enforcement action should be implemented if the reporting requirements are not met.

The auditing function must include verification of the accuracy of reporting.

Greater emphasis on the responsibility of the applicant to provide accurate and effective reporting to the authorities

Applicants need to recognise their own non-compliances and to take the necessary action to address those non-compliances

Impact assessment must focus on being an effective decision-making process rather than a bureaucratic administrative process

An effective review process, developed and implemented outside the direct responsibility of the authorities, would allow for more efficient deployment of resources.

Authorisations need to be carefully crafted so that they readily lend themselves to the compliance and enforcement function

Conditions of authorisation must unambiguously convey compliance requirements in terms of defined performance criteria

There needs to be an effective reporting regime between the applicant and the authorities.

Improve the transparency of the environmental management performance of activities that have the potential to impact negatively on the environment

Mechanisms must be created to allow the authorities to quickly and effectively review and assess the performance reporting, identify specific compliance problems and launch associated enforcement action

There needs to be an adequate number of personnel to fulfil a compliance and enforcement monitoring function

Create the skills and competence needed to assess and interprete compliance monitoring information

Create the skills and competence needed to decide on and pursue the necessary enforcement actions.

Targets for compliance and enforcement should include:

• number of activities targeted for compliance audit;
• number of enforcement actions; and,
• number of convictions as a percentage of enforcement actions

DEA themselves firmly and unambiguously commit to the importance of themselves  regulating mining at least from environmental impact point of view, as opposed to that being done by the DMR, and then launch the necessary processes to achieve this outcome