REMEDIATION OF CONTAMINATED LAND:

SOUTH AFRICA LEGAL PERSPECTIVE

Mpho Tshitangoni

Director: Land Remediation

National Department of Environmental Affairs

PRESENTATION OUTLINE

Republic of South Africa

Legislative Background

Remediation prior to the Waste Act

Framework for Remediation of Contaminated Land

N&S for remediation & Soil Quality

Remediation in terms of Part 8 of the Waste Act

Operational Documents

Conclusion

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MAP OF THE REPUBLIC OF SOUTH AFRICA

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REPUBLIC OF SOUTH AFRICA

• Size: a total land area around 1.2-million

square kilometres, measures some 1 600km

from north to south, and roughly the same

from east to west.

• Coastline: long coastline stretching more than

2 500 km

• Population: Estimated at 50.5 million

• Industries: Mining, Agriculture, Manufacturing,

Steel, Petroleum

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LEGISLATIVE BACKGROUND

ECA, 1989

NEMA & NWA 1998

NEMWA, 2008

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FMCL,

2010

N&S,

2013

Constitution, 1996

NWMS, 2011

LEGISLATIVE BACKGROUND • Environment Conservation Act, 1989: RSA fist environmental focused

law. To provide for effective protection and controlled utilization of the environment and for matters incidental thereto

• RSA Constitution Bill of Rights states that ‘Everyone has a right to an environment that is not harmful to their health and well being’

• National Environmental Management Act (NEMA) (1998)- framework legislation for environmental management

• National Water Act (NWA) (1998) – Section 19 deals with the prevention and remedying effects of pollution

• National Environmental Management: Waste Act (2008) – Except Section 28(7) (a), Part 8 of the Act (Sections 35 – 41) and Section 46 Remediation of contaminated land is a Category A listed activity for now. With enactment of Part 8 classification and remediation will follow processes outlined in the Act.

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• Framework in the management of contaminated Land (2010) -provides decision‐support measures for the management of contaminated land in South Africa, and are based on nationally consistent methods and numerical values for the assessment of contaminated land that protect human health and the environment. The framework have been presented and reviewed by a wide range of governmental, industry and civic stakeholders.

• National Waste Management Strategy (2011): Advocates a systematic and hierarchical approach in waste management, covering aspects of waste avoidance, reduction, re-use, recycling, recovery and safe disposal as a last resort.

• National Norms and Standards for the Remediation of Contaminated land and Soil Quality (2013):

The purpose of these norms and standards is to ─

(a) provide for a uniform national approach to determine the contamination status of an investigation area;

(b) limit uncertainties about the most appropriate criteria and method to apply in the assessment of contaminated land; and

(c) provide minimum standards for assessing necessary environmental protection measures for remediation activities.

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LEGISLATIVE BACKGROUND CONT….

REMEDIATION PRIOR THE WASTE ACT

• Mainly voluntary applications by polluters

• Remediation of contaminated was informed by a need to protect water resources

• Directives issued by the Department of Water Affairs

• Private affair between the Regulator and Polluter

• Set authorization requirements and conditions

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FRAMEWORK FOR REMEDIATION OF CONTAMINATED LAND

The Framework consists of the following components:

Protocol for Site Risk Assessment

Reporting Norms and Standards for Contaminated Land

The Derivation and Use of Soil Screening Values

Application of Site Specific Risk Assessment

Quality Control and Quality Assurance of Field Sampling and Laboratory Analysis

Based on source-pathway-receptor model (but not linked)

1 km radius for ground water users, but also covers off site contamination

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NORMS & STANDARDS FOR REMEDIATION AND SOIL QUALITY

• These norms and standards must be used for the screening of a site after

a site assessment report is required as a result of declaration of an

investigation area as contemplated in section 36 of the National

Environmental Management Act, 2008 (Act No. 59 of 2008)

• Has Table 1 (Soil Screening Values for Metals and Organics) and 2

(Soil Screening Values for Anions)

• Where a contaminant is not listed in Table 1 or Table 2, values which are

scientifically validated for the contaminants of interest may be used

• The Soil Screening Values in Table 1 and Table 2 must not be seen as

I. absolute minimum values; or

II. default remediation values.

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REMEDIATION IN TERMS OF THE PART 8 OF THE WASTE ACT

• Identifies the status and risk of contaminated sites and provides a legal mechanism for remediation activities to be instigated and controlled

• The Minister may declare investigation areas- where high risk activities have been undertaken or suspected

• Development of contaminated land register

• Linked to Polluter Pays principle

• The site owner will be ordered to undertake a site assessment

• Where contaminated occurred- remediate at own cost

• Government will need to remediate contaminated land in areas where the polluter cannot be traced - Funding might be challenge

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OPERATIONAL DOCUMENT

• SOP with DWA on remediation

• Guidelines (Dummy and Authorities)

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CONCLUSION

• SA has successfully promulgated legislation to deal

with remediation of contaminated land

• Polluters will have to remediate at own cost

• Legislation provides a system for identification,

assessment and remediation of contaminated land

• Promote transparency in remediation

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NDO LIVHUWA