NEMLA 4 ENFORCEMENT RELATED AMENDMENTS Legal Authorisations ,Compliance and Enforcement “The secret of change is to focus all of your energy, not on fighting the old, but on building the new” Socrates

Context to Compliance and Enforcement Amendments What about compliance and enforcement input into law reform? EMI

NEMLA – compliance and enforcement Improve the compliance and enforcement powers of Environmental Management Inspectors; Align the powers, duties and training of EMIs with Environmental Mineral and Petroleum Inspectors ito One Environmental System; Widen the scope of persons able to apply for a S24G application; Empower the MEC to designate EMIs to undertake compliance and enforcement ito provincial legislation; Expand certain enforcement powers to local authority level e.g. section 28 directive to the municipal manager. Linked in the growth in EMI capacity; Clarify that an appeal does not automatically suspend a directive/notice; Amendment to delegation clauses to facilitate a) designation and b) issuance of directives.

SECTION 24G SUCCESSORS Currently there is no avenue for someone who did not with commence the activity but who later took it over to come into compliance  would have to demolish the structure (EIA) or cease the activity (WM) Amendment will change this. The aim of S24G is to bring greater number of persons into the regulatory framework; The person will still be subject to an admin fine  Can raise this in their motivation for a reduced fine but the person should, in most cases, have conducted a due diligence.

SECTION 24G SUCCESSORS (1A) An application in terms of subsection (1) may also be submitted by a person in control of, or successor in title to, land on which a person─ (a) has commenced with a listed or specified activity without an environmental authorisation in contravention of section 24F(1); has commenced, undertaken or conducted a waste management activity without a waste management licence in terms of section 20(b) of the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008). If such a person makes such application they are also subject to a mandatory administrative fine.

SECTION 28 DUTY OF CARE Local authorities Currently s28 directives can be issued only by: the Director-General the Director-General of the Department responsible for mineral resources a provincial head of department Proposed inclusion of a municipal manager  creates consistency and supports the eventual repeal of ECA section 31A. Consistent with the growth of EMIs at local authority level (343 in 56 local authorities) [Consequential amendment: appeal the directive to the municipal council]  

SECTION 28 DUTY OF CARE paja The DG, the DG responsible for mineral resources, a provincial head of department or a manager of a municipality may [after having given adequate opportunity to affected persons to inform him or her of their relevant interests] direct any person who is causing, has caused or may cause significant pollution or degradation of the environment to, and any other person to whom the duty of care applies to─ Currently ambiguous in respect of who must be given notice  Any affected person (i.e. neighbours) or just the person who will be issued the directive. Amendment aimed at clarifying in accordance with PAJA.  

SECTION 28 DUTY OF CARE paja (4A) Before issuing a directive contemplated in subsection (4) the Director-General, Director-General of the Department responsible for Mineral Resources, provincial head of department or municipal manager must give advanced notice in writing of his or her intention to issue the directive and provide the person with a reasonable opportunity to make representations in writing. (4B) Provided that the Director-General, Director General of the Department responsible for Mineral Resources or a provincial head of department may , if urgent action is necessary for the protection of the environment, issue such directive, and give the person on whom the directive was issued an opportunity to make representations as soon as thereafter is reasonable.

JOINT AND SEVERAL LIABILITY: COST RECOVERY SECTION 28 DUTY OF CARE JOINT AND SEVERAL LIABILITY: COST RECOVERY The Director-General, the Director-General of the department responsible for mineral resources or provincial head of department may in respect of the recovery of costs under subsection (8) [claim proportionally from any person who benefited from the measures undertaken under subsection (7)] claim─ jointly and severally from the persons specified in subsection (8); and proportionally from any other person who benefited from the measures undertaken under subsection (7).

JOINT AND SEVERAL LIABILITY: COST RECOVERY SECTION 28 DUTY OF CARE JOINT AND SEVERAL LIABILITY: COST RECOVERY If more than one person is liable under subsection (8) the Director- General, the Director-General of the department responsible for mineral resources, provincial head of department or a municipal manager of a municipality may, at the request of any person to whom a directive under subsection (4) has been issued, and after providing other persons referred to in subsection (8) with an opportunity to be heard, apportion the liability, but the apportionment does not relieve any of them of their joint and several liability for the full amount of costs. Similar to the wording in National Water Act Easier for the authorities as we do not have to prove the proportionality requirement and can claim for anyone who benefitted.

SECTION 31BB Designation of empis The section enables the Minister of mineral resources to designate EMRIs from within DMR. Proposed amendment: will enable the Minister to designate officials from DMR and any other organ of state (by agreement) Reason: want to designate members of the Petroleum Agency Name change: environmental mineral and petroleum inspectors (EMPIs)

PROVINCIAL ALIGNMENT EMIs are currently only empowered to monitor and enforce NEMA and the SEMAs. This means that several pieces of closely related environmental legislation fall outside of the EMI mandate, the most notable of which are arguably the provincial conservation Ordinances and Decrees and certain of the multinational environmental agreements (MEAs). The split in powers or division between SEMAs and non-SEMAs is often artificial – especially where EMIs are responsible for enforcing the non-SEMA legislation too. The situation has several consequences in practice and creates some unnecessary obstacles for EMIs.

PROVINCIAL ALIGNMENT concurrent 31D. Mandates (1) When designating a person as an environmental management inspector, the Minister, the Minister responsible for water affairs or MEC, as the case may be, must, subject to subsection (2), determine whether the person concerned is designated for the enforcement of - (a) this Act; (b) a specific environmental management Act; (c) specific provisions of this Act or a specific environmental management Act; (d) this Act and all specific environmental management Acts; [or] (e) any provincial Act that substantively deals with environmental management; or (f) any combination of those Acts or provisions of those Acts. 2) An MEC may designate a person as an environmental management inspector for the enforcement of only those provisions of this Act, [or] any specific environmental management Act or a provincial Act that substantively deals with environmental management-   concurrent

emi code of conduct 31E. Prescribed Standards The Minister may prescribe a Code of Conduct applicable to all designated environmental management inspectors and environmental mineral and petroleum inspectors. Purpose: Will enable WGIV to collaborate with HR and draft a code of conduct which will bind the entire inspectorate (local, provincial, national, DMR & DWS).  guidance on how to conduct oneself as an EMI/EMRI from uniform to withdrawal of designation. Promote good conduct and consistency across the spheres of government.

COMPLY SUBSTANTIALLY WITH Present: Section 31L Compliance Notices and Section 31H(1)(b) written notices must be in the form set out in the EMI Regulations Proposed amendment: this has been amended to “comply substantially with” Purpose: to allow for variation in drafting style

OBJECTIONS TO COMPLIANCE NOTICES Section 31M has been amended so that if: DMR issued the CN  the objection is to the Min responsible for mineral resources DWS issued the CN  the objection is to the Min responsible for water & sanitation Municipal manager issued the CN  the objection is to the municipal council

SEIZED LIVE SPECIMENS Section 34E (1) Pending the institution of any criminal proceedings in terms of this Act or a specific environmental management Act or the resolution of such proceedings, a live specimen that has been seized in terms of t his Part may [must] be deposited with a suitable institution, rescue centre or facility which is able and willing to house and properly care for it. (2) For the purposes of this Chapter seized live specimens may be disposed of in terms of section 30(a) of the Criminal Procedure Act, 1977."

SEIZED LIVE SPECIMENS Purpose: Section 30(a) CPA: If a perishable article is seized, the official (EMI) may dispose of it in a manner as the circumstances may require. Therefore provides an EMI with a discretion. No longer is the only option to deposited the seized specimen at a suitable institution, rescue centre or facility which is able and willing to house and properly care for it. WGIV Project to develop a guideline to assist EMIs in exercising their discretion.

GENERAL Throughout NEMA the word “request” has been replaced with the word “instruction”. Non-compliance with an instruction of an EMI / EMRI is an offence. Duties and powers of EMIs are made equally applicable to EMPIs. Purpose: Clarity: “instruction” is mandatory while “request” is arguably not.

DELEGATION Section 42 The power to delegate has been included for the municipal manager and Minister of water & sanitation. Important for local authorities because the power to issue a section 28 directive may be delegated by the municipal manager. Important for DWS in terms of designation of EMIs.

APPEALS Not in accordance with the preventative/precautionary principles for directive to be suspended upon the submission of an appeal – environment should be protected pending the outcome of the appeal. However, the appellant may still apply, on good cause shown, why the directive should be suspended. 43. Appeals (7) An appeal under this section suspends an environmental authorisation, exemption, [directive], or any other decision made in terms of this Act or any other specific environmental management Act, or any provision or condition attached thereto; except for a directive, or other administrative enforcement notice issued in terms of this Act or any other specific environmental management Act.

APPEALS 43. Appeals (9) Notwithstanding subsection (7), pending the finalisation of the appeal and on good cause shown the Minister, Minister responsible for mineral resources, or the MEC, as the case may be, may, on application, direct that: the environmental authorisation, exemption, or any other decision made in terms of this Act or any other specific environmental management Act, or any provision or condition attached thereto may either wholly or in part, not be suspended; or   the directive or other administrative enforcement notice issued in terms of this Act or any other specific environmental management Act or part thereof be suspended. Purpose: At present - any part or provision of the directive may be suspended but only strictly in exceptional circumstances where there is an imminent threat to human health or the environment. Ability seriously to undermine enforcement action.

OFFENCES Section 89 of NEMPAA  Although there is a prohibition on conducting restricted activities in an MPA, no offence was included. This error has been rectified. (Section 49A).

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