24 Jan 2014

Environmental Law Update, The Shifting Sands of Environmental Law,author Melissa Groenink

Practice Area(s): Environmental | Clean Energy |

2013 was quite the year for environmental law.  A number of new laws and draft laws were published, affecting both industry and the public alike.  Progressive as this may be, practically speaking, it is the understanding, implementation and enforcement of new laws which poses the most challenges.  As a result, and taking into account the substantial penalties for non-compliance, 2014 will be an important year for industry and individuals to get to grips with what new environmental obligations have been imposed on them.

The new environmental laws published in 2013 relate to a wide range of aspects and are applicable across most sectors.  Failure to comply will result in substantial penalties, such as imprisonment, fines and shutting down of operations.  The new requirements address,  general environmental obligations, waste and air quality management, as well as in respect of specific industries, such as mining and petroleum development, to name but a few.  Particularly important are new licensing requirements for waste activities and air emissions, as well as waste classification and management provisions.

As late as December, whilst many were enjoying the sunny beaches of Ballito, the government printers were still hard at work.  Long-awaited amendments to the National Environmental Management Act 107 of 1998 (NEMA) came into force on 18 December.  These amendments bring about a number of important changes, particularly in respect of retrospective environmental authorisations and emergency provisions.

The scope of section 24G, a section used extensively to obtain environmental authorisation for NEMA activities illegally commenced without prior authorisation, has been widened to include the illegal commencement of waste activities.  Whilst the application of this section to waste was previously subject to some debate, it has now been clarified that these activities are subject to the section 24G procedure.  The implication of this is that administrative fines of up to R5 million, in addition to any criminal penalties imposed, must be paid before a waste management licence (or an environmental authorisation) may be granted. 

The criminal penalty for the illegal commencement is now R10 million and/or ten years imprisonment for both waste and NEMA listed activities, which will not be negated by retrospective authorisation.  Transgressors could therefore be facing up to R15 million in fines, without taking into account other penalties that may be imposed by the courts.

Other changes have been introduced in respect of emergency incidents.  Their scope, to which various reporting and clean-up obligations apply, has been clarified somewhat, and now refers to any "unexpected, sudden and uncontrolled release … that causes, has caused or may cause significant harm to the environment, human life or property".  However, where construction activities are required in an emergency situation (for example, a situation caused by flooding or similar circumstances), a new procedure provides for the carrying out of a listed activity without first obtaining environmental authorisation.  Although this latter provision has not yet come into effect, once it does, this will provide a more practical mechanism for carrying out emergency work.  The application of these provisions will have to be carefully monitored, to avoid abuse of the emergency authorisation. 

Interestingly, a new power has been granted to the Minister of Water and Environmental Affairs to regulate, prohibit or control the production and trade of products that are considered to have a substantial detrimental effect on the environment.  This may affect both domestic and international trade in certain products, as production or trade could be prohibited entirely, or the mechanisms of the trade may be controlled via regulation.   It will however need to first be established that the product may have a substantial detrimental effect on the environment.   Whilst there are no direct implications of this for the moment, we may see the Minister implementing these restrictions in the near future.  Those involved in the manufacture or trade of hazardous materials should keep a careful eye out for any restriction imposed.

During 2014, we can expect the legislators to continue to legislate and the government printers to continue to print new and crucial environmental law changes.  A number of laws published during 2013 are likely to take effect during 2014, whilst other draft laws will be finalised and brought into force.  These include regulations relating to alien and invasive species (currently the subject of High Court litigation), and new requirements relating to land use and planning permission from local municipalities.  Many will be affected by these changes.

It should not be assumed that these are all just "paper laws" with no implications.  Recent trends, as per the Environmental Compliance and Enforcement Report for 2012/2013, have shown increased numbers of Environmental Management Inspectors (the "Green Scorpions") and facility inspections being carried out.  It is thus essential for industries, developers and individuals to understand the changes applicable to them, and make operational adjustments where necessary.  Non-compliant facilities cannot afford a knock on the door by the Green Scorpions.  Many will simply not be able to withstand the sting. 

Melissa Groenink, Associate

Contact: 031 575 7214 and groenink@wylie.co.za