dea - compliance and enforcement se solutions 8 … · 2014-11-12 · nem:aqa national...
TRANSCRIPT
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TABLE OF CONTENTS
ACRONYMS AND ABBREVIATIONS .......................................................................................... 6 1. SUB-THEME 4: COMPLIANCE AND ENFORCEMENT ....................................................... 7
1.1 PROBLEM STATEMENT .............................................................................................. 7 1.2 OBJECTIVE of SUB-THEME 4: ..................................................................................... 7
2. STATUS QUO ...................................................................................................................... 7 2.1 OVERVIEW ................................................................................................................... 7 2.2 THE REGULATORY FRAMEWORK ............................................................................. 8 2.3 COMPLIANCE AND ENFORCEMENT MECHANISMS ............................................... 10
2.3.1 Compliance monitoring ............................................................................................ 10 2.3.2 Support services ...................................................................................................... 10 2.3.3 Enforcement ............................................................................................................. 12 2.3.4 The enforcement panel ............................................................................................ 12 2.3.5 Compliance and enforcement reporting ................................................................... 13
2.4 MINING ........................................................................................................................ 15 2.4.1 The current status of the amendments to the Mineral and Petroleum Resources Development Act (MPRDA) ................................................................................................ 15
3. ANALYSIS .......................................................................................................................... 16 3.1 PROBLEM IDENTIFICATION ...................................................................................... 16
3.1.1 Overview .................................................................................................................. 16 3.2 PROJECT SCALE ISSUES ......................................................................................... 18
3.2.1 Verification of the EIA findings ................................................................................. 18 3.2.2 Authorisation fixation ................................................................................................ 19 3.2.3 Limited public participation ....................................................................................... 19 3.2.4 Ineffectual EMCs ...................................................................................................... 20 3.2.5 Lack of response to reported transgressions ........................................................... 20 3.2.6 Lack of authority coordination .................................................................................. 21 3.2.7 Clumsy and slow sanction ........................................................................................ 21 3.2.8 Importance of self-regulation .................................................................................... 22 3.2.9 Ambiguity of EMPs ................................................................................................... 23 3.2.10 Adaptive environmental management .................................................................. 25
3.3 OTHER ISSUES .......................................................................................................... 25 3.3.1 Mining ...................................................................................................................... 25
3.4 OBSTACLES TO EFFECTIVE COMPLIANCE AND ENFORCEMENT ....................... 26 3.4.1 The scale of the task ................................................................................................ 26 3.4.2 Capacity ................................................................................................................... 27 3.4.3 Quality of authorisations ........................................................................................... 27 3.4.4 Extension of function ................................................................................................ 28 3.4.5 Bureaucratization of EIA .......................................................................................... 28
3.5 PRINCIPLES TO BE ESTABLISHED .......................................................................... 29 3.5.1 A conceptual model ................................................................................................. 29
4. SYNTHESIS ....................................................................................................................... 33
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4.1 STRENGTHS .............................................................................................................. 33 4.2 WEAKNESSES ........................................................................................................... 34 4.3 STRATEGY STATEMENTS/ PRINCIPLES ................................................................. 36
4.3.1 Overview .................................................................................................................. 36 4.4 PROPOSALS .............................................................................................................. 37
4.4.1 Improve EMPs ......................................................................................................... 37 4.4.2 Set performance outcomes (not inputs) and ensure reporting against outcome performance criteria ............................................................................................................ 38 4.4.3 Massively improve reporting to the authorities ......................................................... 39 4.4.4 De- bureaucratise EIA .............................................................................................. 40 4.4.5 Improve quality of authorisations ............................................................................. 40 4.4.6 Create mechanisms for highlighting political interference ........................................ 41 4.4.7 Create mechanisms for effectively reviewing performance reports and targeting specific compliance monitoring ........................................................................................... 41 4.4.8 Massively improve provincial and local authority compliance and enforcement capacity ............................................................................................................................... 41 4.4.9 Create performance expectations for compliance and enforcement ........................ 42 4.4.10 Provide proper environmental regulation of mining .............................................. 42
5. RISKS ................................................................................................................................. 43 6. CONCLUSIONS.................................................................................................................. 43
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LIST OF TABLES
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). ....................................................................... 13
LIST OF FIGURES
Figure 1: Schematic presentation of the compliance and enforcement structure with the Department of Environment Affairs. The function is made up of three inspectorates namely Enforcement, Compliance Monitoring and Support Services each of which is described more fully in the text. ....................................... 11
Figure 2: Schematic presentation of the relationship between the implementation of the requirements of Chapter 5 of NEMA and impact certainty . It is illustrated that the major emphasis of the implementation of Chapter 5 occurs at a time when there is greatest uncertainty regarding impacts. ....................................................... 17
Figure 3: Category 1 and Category 2 incidents on a large scale infrastructure project. Category 1 incidents are sanctions issued by the authorities (pre-compliance and compliance notices) and Category 2 incidents internally identified contraventions of the law that were reported to the authorities. ............................... 22
Figure 4: Measured concentrations of soaps, oils and grease in water discharged from the construction site of a large infrastructure project. The standard is represented by a dark red line highlighting the fact that in one month the limit was exceeded by more than 67 000%. .................................................................... 23
Figure 5: The concept of four discrete but inter-dependent integrated environmental management phases as developed by the DEA. ..................................................... 31
Figure 6: The compliance and enforcement requirements presented as a function of the DEA model (see Figure 5). ....................................................................................... 32
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ACRONYMS AND ABBREVIATIONS
DEA Department of Environmental Affairs
DMR Department of Mineral Resources
DWA Department of Water Affairs
EIA Environmental Impact Assessment
EMC Environmental Management Committee
EMF Environmental Management Framework
EMI Environmental Management Inspectorate
EMP Environmental Management Programme
IEM Integrated Environmental Management
MPRDA Mineral and Petroleum Resources Development Act
NEM:AQA National Environmental Management: Air Quality Act
NEM:WA National Environmental Management: Waste Act
NEMA National Environmental Management Act
PSC Project Steering Committee
RoD Record of Decision
SEA Strategic Environmental Assessment
SEMAS Specific environmental management acts
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1. SUB-THEME 4: COMPLIANCE AND ENFORCEMENT
1.1 PROBLEM STATEMENT
The problem statement on the subtheme was compiled by the Project Steering Committee
(PSC):
Compliance monitoring and enforcement is inadequate
1.2 OBJECTIVE OF SUB-THEME 4:
To ensure that compliance monitoring and enforcement procedures within the
organisational structure of IEM are adequate and effective
Goals:
Goal 1: To provide for more effective and efficient monitoring and enforcement procedures
Goal 2: To provide for more effective and efficient monitoring and enforcement
organisational structures
Goal 3: To provide for more effective and efficient monitoring tools
2. STATUS QUO
2.1 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.
2.2 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
para-statals 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.
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2.3 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 (see Figure 1). The function is made up of three
groupings (inspectorates) namely Compliance Monitoring, Support Services and
Enforcement.
2.3.1 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.
2.3.2 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
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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.
Figure 1: Schematic presentation of the compliance and enforcement structure
with the Department of Environment Affairs. The function is made up of
three inspectorates namely Enforcement, Compliance Monitoring and
Support Services each of which is described more fully in the text.
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.
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2.3.3 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.
2.3.4 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
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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.
2.3.5 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).
� There has been an 22.9% increase in the number of reported environmental
incidents from 4661 in 2008/9 to 5739 in 2009/10;
� There has been a relative increase in the number of criminal dockets and “J534s”
registered in the past financial years from 1762 in 2007/8, to 2412 in 2008/9 and
2877 in 2009/10;
� There were 282 cases handed to the National Prosecuting Authority (NPA) of
which approximately 35.8% received an nolle prose qui from the NPA.This
percentage is relatively similar for the previous financial years of 100 (2008/9) and
101 (2009/10);
� There has been a general decline in the number of arrests by environmental
management inspectors since 2007/8, dropping from 2614 cases in 2007/8 to 2384
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in 2009/10;
� There has been a dramatic increase in the number of acquittals from 18 in 2008/9
to 1026 in 2009/10;
� The number of convictions has increased from 258 in 2008/9 to 673 in 2009/10
which is 160.9% increase;
� There has been a significant increase in the number of plea bargains from 4 in
2008/9 to 134 in 2009/10;
� The monetary value of admission of guilt fines issued has dramatically increased
from R1,469,899:00 in 2008/9 to R2,509,703:00 in 2009/10, an increase of 61.9%;
� There has been an increase in the number of warning letters, pre-directives, pre-
compliances, final directives and final notices issued, as well as the launch of civil
court applications, increasing from 385 in 2008/9 to 1260 in 2009/10;
� There has been a decline in the total amount paid in respect of section 24G
administrative fines from R15 499 518.19 in 2008/9 to R8 874 966.10 in 2009/10;
and,
� There were 2380 facilities inspected nationwide in the brown and green subsectors.
Marine and Coastal Management reported that 65 567 inspections of vessels and
other marine related activities were conducted.
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.
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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.
2.4 MINING
2.4.1 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
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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.
3. ANALYSIS
3.1 PROBLEM IDENTIFICATION
3.1.1 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
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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 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).
Figure 2: Schematic presentation of the relationship between the implementation of
the requirements of Chapter 5 of NEMA and impact certainty . It is
illustrated that the major emphasis of the implementation of Chapter 5
occurs at a time when there is greatest uncertainty regarding impacts.
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
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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.
3.2 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:
3.2.1 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
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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.
3.2.2 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.
3.2.3 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.
3.2.4 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.
3.2.5 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.
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.
3.2.6 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.
3.2.7 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.
Figure 3: Category 1 and Category 2 incidents on a large scale infrastructure
project. Category 1 incidents are sanctions issued by the authorities (pre-
compliance and compliance notices) and Category 2 incidents internally
identified contraventions of the law that were reported to the authorities.
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.
3.2.8 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.
0
1
2
3
4
5
6
7
8
Category 1 Category 2
��
Figure 4: Measured concentrations of soaps, oils and grease in water discharged
from the construction site of a large infrastructure project. The standard
is represented by a dark red line highlighting the fact that in one month
the limit was exceeded by more than 67 000%.
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.
3.2.9 Ambiguity of EMPs
Although there have been a number of processes to standardise the approach to and the
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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.
��
3.2.10 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.
3.3 OTHER ISSUES
3.3.1 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.
3.4 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.
3.4.1 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.
3.4.2 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.
3.4.3 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.
3.4.4 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.
3.4.5 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.
3.5 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.
3.5.1 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.
Figure 5: The concept of four discrete but inter-dependent integrated environmental
management phases as developed by the DEA.
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,
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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.
Figure 6: The compliance and enforcement requirements presented as a function of
the DEA model (see Figure 5).
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.
4. SYNTHESIS
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.
4.1 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.
4.2 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.
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4.3 STRATEGY STATEMENTS/ PRINCIPLES
4.3.1 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
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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.
4.4 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.
4.4.1 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
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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.
4.4.2 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
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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.
4.4.3 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.
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4.4.4 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.
4.4.5 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
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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.
4.4.6 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.
4.4.7 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.
4.4.8 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
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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.
4.4.9 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.
4.4.10 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.
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5. RISKS
The following risks may prevent the effective adoption of these proposed strategies:
� The inordinate amount of time taken for effective implementation of the strategies.
The track record in respect of implementing even relatively simple requirements
implies that the interventions will not be effected quickly;
� A greater reliance on self-regulation is unlikely to be well received by civil society who
would probably argue for a stronger policing function;
� The risk of political interference is ever present and, while, the measures proposed
here may help they will not in their own right provide the necessary guarantees that
political interference will be countered;
� The obstacles to overcoming regulation of the mining industry are severe and will
require significant effort to ultimately allow this to happen; and,
� The process of de-bureaucratising the EIA regulations will require changes to the law,
which is always a process fraught with risk.
6. CONCLUSIONS
Compliance and enforcement is a critical component of any management function. For
integrated environmental management the requirements are no less. But the challenge in
terms of achieving compliance and enforcement is considerably more complicated. During
the course of this review a number of positive aspects on the current state of compliance
and enforcement in South Africa have emerged. The most notable of these being the
current structure and function of compliance and enforcement within the National
Department of Environment Affairs. Associated with this compliance and enforcement
function within the DEA is a continued progression towards growing capacity and capability,
not just within the Department but also at provincial and local authority level. In addition,
annual compliance and enforcement statistics are made available in a report that provides
for effective review of the function.
Against this backdrop there is a range of areas which require improvement and in some
cases considerable improvement. These include ensuring that compliance and
enforcement can be brought to bear on all activities that have the potential to impact
negatively on the environment, most notably including the activities of para-statal
companies and mining operations. It has further been presented that, in general terms, the
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wherewithal for effective enforcement exists and that the real challenge lies in a radically
improving compliance monitoring. Effective compliance monitoring means that enforcement
can be applied in a goal directed manner that provides the maximum return for the effort.
The model that has been proposed here for effective compliance monitoring and
enforcement is to adopt the principles of general management, especially those presented
in the so-called Deming cycle of Plan, Do, Check and Act. Checking equates to compliance
monitoring, Acting equates to enforcement, but neither of these will be achieved without
adequate attention to the Planning and Doing components of the management cycle. For
compliance and enforcement to be effective in promoting the NEMA principles, it is
necessary to develop an unambiguous set of indicators with performance targets that can
be sustained and used throughout the management process.