The Department of Environmental Affairs (DEA) reports that it is gearing up for the implementation of the new National Environmental Management: Air Quality Act. The department had hoped the Act would have been in force by September, but it has been delayed to early next year. However, certain sections of the Act are now in force, such as those provisions relating to offensive odours.

The new National Environmental Management: Waste Act came into force on July 3, 2009. Amendments to the National Envi- ronmental Management Act have also come in force and significantly strengthen com- pliance and enforcement of various pieces of environmental legislation, including the increase in penalties for those who do not comply with specific environmental acts.

The national environmental management inspectorate (EMI), commonly known as the Green Scorpions, was established in 2005 to police compliance with environmental legislation through criminal prosecution, administrative enforcement and increased penalties.

“With the recent amendments, the penalties have increased significantly for noncompliance with the old Atmospheric Pollution Prevention Act of 1965. Previously, the maximum penalty was R500, while current maximum penalties range between R5-million and R10-million,” says DEA director for enforcement: pollution and waste Frances Craigie.

The EMI compliance monitoring and enforcement units operate as a network on national, provincial and local levels as there is an environmental mandate at all three spheres of government.

The DEA has experienced varying reactions from companies as a result of these compliance monitoring and enforcement activities. Craigie explains that, while certain sectors are positive about the legislation and commit to compliance, particularly from a corporate governance perspective, other companies can make money by not complying. DEA chief director of regulatory services Sonnyboy Bapela says that for fairness and balance, enforcement action must be taken consistently against those failing to comply with the legislation.

Craigie says that, although the significant number of noncompliances in the iron and steel, cement, pulp and paper and oil refinery industries have been discouraging, it was expected, in a way.

“Until 2006, there was not really a body dedicated to undertaking effective compliance and enforcement. This changed with the amendment to the legislation and the creation of the EMI structure. Now comprehensive baseline inspections are done, after which a report outlining the company’s environmental noncompliance is handed over. The company is then provided with an opportunity to respond, which often sets out steps the company intends to take to come into compliance. Depending on the nature of the noncompli- ances, either enforcement action will need to be taken or another inspection will be done to check if the company has met its commitments. If not, enforcement steps will follow,” says Craigie.

Further, she points out that the DEA will provide advice to companies that do not know what is expected of them through various support structures. However, the DEA will not hesitate to take the necessary enforcement action, including the shutting down of operations of a company that negatively impact on the environment.

“In the past, some companies would take chances, often playing authorities off against each other. Now, an integrated compliance audit with the various authorities present, including the national body, is conducted,” Craigie asserts.

She adds that the initial action taken in rela- tion to a complaint will depend on how issues are referred to the deparment. If it is clear from the initial complaint that criminal activity has taken place, an investigation can be initiated immediately. However, if the means of trespassing is unclear, a compliance inspection first has to be conducted by the inspectors.

“It should be noted that where complaints are received by the national department and the matter falls within the mandate of either the provincial or local sphere of government or another national department, then a referral is initiated to the relevant institution,” she says.

Challenges Restrain the DEA from Enforcing Legislation

The DEA reports that outdated legislation, inadequate criminal prosecution of environmental cases and the lack of capacity and resources are challenges that hinder the enforcement of environmental protection.

Craigie says that effective enforcement under the old Atmospheric Pollution Prevention Act of 1965 poses a significant challenge to the DEA, as there are not many criminal offences stipulated in the Act. Further, many of the permits issued in terms of the Act were vague and unenforceable. For this reason, the air quality unit has been undertaking a review of the permits with the aim of setting more effective and legally enforceable conditions.

A significant challenge currently, reports the department, is also in relation to obtaining meaningful outcomes in relation to criminal cases. Craigie explains that there are often signi- ficant delays in these cases and the verdicts are usually monetary penalties rather than imprisonment.

“Criminals do not feel the might of the law. Upon completion of the DEA’s investigation, the case is given over to the national prosecuting authority. The delay in the prosecuting system, as well as the fact that many prosecutors are not knowledgeable or experienced in environmental legislation, results in significant delays and few success stories,” she says.

Bapela says Minister of Justice Jeff Radebe and Water and Environmental Affairs Minister Buyelwa Sonjica discussed the re-establishment of environmental courts, which closed in 2007, on September 9.

Capacity in terms of a shortage of expertise and skills is a crippling challenge faced by the DEA. Craigie explains that, while there are about 1 000 EMIs, about 80% are working within the different national parks.

Bapela adds that, although some officials have been trained and designated to undertake enforcement and compliance monitoring of environmental legislation, not all of these officials are dedicated to this function.

Another challenge is the availability of resources. While the training of people in environmental law is critical for the enforcement of environmental protection legislation, other more technical skills are also required. Budgetary limitations impact on the level of skill and experience that the DEA is able to attract and employ.

“The government is in competition with the private sector for skilled individuals. It is difficult for the DEA to attract the range of skills that are needed within the budget that it has available,” Craigie points out.

Bapela says that training of environmental management inspectors is now outsourced to the University of South Africa, the University of Pretoria and the Cape Peninsula University of Technology.

Companies also face challenges in trying to comply with legislation. Old companies have outdated technology, which may often not support installation of environmental protection equipment. In cases where companies cannot afford new technology, the company still has to comply with minimum standards and requirements set out in legislation.

Craigie asserts that a good balance must be found between compromise and compliance. While socioeconomic issues, such as job losses following the closure of a noncompliant company, must be considered, environmental issues cannot be side-lined. Bapela adds that the environment must be protected, but preferably not at the cost of people’s jobs, houses or education.

“Compliance with environmental legislation is not negotiable. Companies have the choice to go beyond the legislation and adhere to international best practice, but have no choice in terms of whether to adhere to South African legislation,” says Craigie.

While South Africa is still lagging behind First World countries in the enforcement of environmental legislation, the country is ahead in Africa.

“The DEA has the basics in place and is busy with implementation. We first need to reduce pollution and then moni- tor it in future. Although the department recognises the magnitude of the challenge, we want to tackle it,” she says.

In future, the possibility of incentives will be considered after companies are in compliance with environmental legislation. However, Craigie says that a system to ensure punishment for noncompliance first needs to be in place before rewards can be considered.