CONTAMINATED LAND - LEGAL CONSIDERATIONS
Pollution prevention and remediation in South Africa is regulated mainly through three sets of legislation, which places the responsibility on property owners, leaseholder, occupiers to prevent pollution and contamination and in instances where it occur to remediate.
- National Environmental Management Act, 107 of 1998
- National Environmental Management: Waste Act, 58 of 2009
- National Water Act
National Environmental Management Act, 107 of 1998
The National Environmental Management Act, 107 of 1998 (NEMA) is the framework legislation in South Africa, aimed at the protection of the environment. The principles under which environmental management have to be undertaken are included under Section 2 of NEMA and includes:
Section 2 (4)(a)(ii): “That pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied;”
Section 2 (4)(a)(vii): that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions;”
Section 2 (4)(a)(viii): that negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented are minimised and remedied.
Section 2 (4)(p): “The cost of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment.”
Section 24 of the Act, makes provision for government to hold polluters criminally and administratively responsible for acts which may cause detrimental impacts to the environment. Failure to adhere to the “duty of care” principle can lead to a fine not exceeding R 10 million or imprisonment not exceeding 10 years or both.
In terms of Section 24N(8) Directors of a company or members of a closed corporation are jointly and severally liable for any negative impact on the environment, whether advertently or inadvertently caused, including damage degradation or pollution.
Section 24G makes provision for an application for rectification of unlawful activities.
Section 28 of NEMA furthermore places the onus on a property owner or user to remedy any pollution: ‘’Every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.’’
For Phase 1 due diligence or site assessments there are no permit or license requirements. This only becomes applicable once alternatives are assessed for implementation during Phase 2 site assessments.
National Environmental Management: Waste Act, 58 of 2009
The provision for contaminated land given in Chapter 4: Part 8 of the National Environmental Management: Waste Act, 58 of 2009 (NEMWA) and came into effect on 2 May 2014. It places an onus on companies conducting high risk activities to investigate whether their land is contaminated. A draft list of high risk activities was published in 2010 and includes underground storage tanks (USTs).
The definition for “contamination” (which is retrospective in its definition, referring to anything occurring before the commencement of the Act (i.e. pre-2009)) is “the presence in or under any land, site, buildings or structures of a substance or micro-organism above the concentration that is normally present in or under that land, which substance or micro-organism directly or indirectly affects or may affect the quality of soil or the environment adversely.
If the land is significantly contaminated the land owner/causer must notify the Minister and Member of Executive Council (MEC). “Significant” is not defined in NEMWA but we are of the opinion that contamination can be regarded as significant if there is a risk of harm to health or the environment. However, the definition remains subjective and there are currently no precedents in terms of Chapter 4 of NEMWA given its recent enactment, so it is likely that some discussion and negotiation with authorities will be required.
In our general experience with the South African regulators, it may be prudent to established a clear way forward in terms of identifying and mitigating potential risk to human health and environment before notifying the regulatory authorities. Additional investigation of soil and groundwater impacts would be required during phase 2 to obtain data that can be compared to “The Norms and Standards for the Remediation of Contaminated Land and Soil Quality (DEA, 2014)” for soil screening and the best available international screening values (e.g. DIV, USEPA) for groundwater to evaluate the current status of the site with respect to contamination. Once a more comprehensive understanding of the site is obtained, a decision in regard to future interaction with the regulators can be taken.
It should be noted that there are significant punitive measures in place for neglecting to maintain a “duty of care” towards the environment under NEMWA for failing to notify the authorities (a fine of up to R5 million and potential criminal prosecution), or for failing to conduct a site assessment if there are reasonable grounds to believe that the land is likely to be contaminated (a fine up to R10 million and potential criminal prosecution).
National Water Act
The primary function of the National Water Act (NWA) (Act No. 36 of 1998) is to control, manage and protect South Africa’s water resources. Water resource is defined in Section 1 of the Act as including a watercourse, surface water, estuary or aquifer. Section 19 and Section 20 of the Act deal with pollution avoidance and remediation. Accordingly, it is the responsibility of an owner of land, a person in control of land or a person who occupies or uses land, to take all reasonable measures to prevent the pollution of a water resource from occurring, continuing or recurring. The Act does not define “reasonable measures” but suggests that these may include measures to:
- cease, modify and control any act causing pollution;
- to comply with any prescribed waste standard or management practice;
- contain or prevent the movement of pollutants;
- eliminate any source of pollution;
- remedy the effects of pollution;
- remedy the effects of any disturbance to the bed and banks of a watercourse.
If the measures are not taken, the Department of Water Affairs and Forestry (DWAF) may intervene and undertake what is necessary to prevent pollution or remedy its effects and may recover all reasonable costs jointly or severally from the following persons:
- anyone responsible for, or who directly or indirectly contributed to the pollution, or potential pollution;
- the owner of the land at the time when the pollution or potential pollution occurred;
- anyone in control of land or with the right to use the land at the time when the activity or process was undertaken or the situation came about;
- anyone who benefited from the measures undertaken by the authorities to prevent of clean-up the harm, to the extent of such benefit;
- anyone who negligently failed to prevent the activity or process from being undertaken.
One of the criticisms of the NWA is the lack of clarity regarding “pollution”, as dealt with in Section 19 and an “emergency incident”, which is defined in Section 20 as including any occurrence in which a substance:
- pollutes or has the potential to pollute a water resource;
- has, or is likely to have a detrimental effect on a water resource.
The incident must be reported by a responsible person or any other person involved in the incident, as soon as reasonably practicable, to DWAF, the South African Police Service or relevant fire departments, or the relevant catchment management agency. The responsible person is subsequently required to:
- take all reasonable measures to contain and minimise the effects of the incident;
- undertake clean-up procedures;
- remedy the effects of the incident;
- take such measures as the catchment management agency may verbally or in writing direct within the time specified.