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Remediation blame game a possibility with Waste Act provisions

GARYN RAPSON
Contaminated Land Provisions in the National Environmental Management: Waste Act No 59 of 2008 will open the door for court battles to determine who will be held liable for the remediation

GARYN RAPSON Contaminated Land Provisions in the National Environmental Management: Waste Act No 59 of 2008 will open the door for court battles to determine who will be held liable for the remediation

25th July 2014

By: Sashnee Moodley

Senior Deputy Editor Polity and Multimedia

  

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The uncertainties around the remediation of affected areas as addressed in the Contaminated Land Provisions in the National Environmental Management: Waste Act No 59 of 2008 will possibly spark litigation and disputes between landowners and businesses, contractors and mining houses operating on that land.

This was according to legal services firm Webber Wentzel senior associate Garyn Rapson who says the provisions will open the door for court battles to determine who will be held liable for the remediation.

The provisions came into effect in May, after an almost five-year delay and aim to facilitate the issuing of remediation orders, by government directive, to clean up land that is considered contaminated. However, Rapson says it is unclear in the Waste Act which party would be named in the remediation order.

“In terms of general environmental manage-ment principles, owners of polluted land and polluters are typically held responsible for remedying any contamination they cause. Unfortunately, the Waste Act does not provide any clear answer or criteria as to how the government may assign responsibility for the remediation of land contamination,” he explains.

He assumes the landowner or person under-taking the contaminating activity will be held responsible for remediation, but cautions that landowners should notify any new buyers of any potentially contaminated land, as they are legally obliged to do so.

As for when clarity will be given around the uncertainty of the provisions, Rapson says time will tell, as the practicalities need to be perfected.

Practicalities

“There is no indication that the law is going to change. But we will have to wait and see the practicalities of how it will be implemented,” he advises.

Although the Waste Act envisages that histori-cal contamination will be remedied, it will be interesting to see if government directs historical landowners or polluters to remediate, he notes.

Webber Wentzel is examining other environ-mental cases and international cases to obtain a sense of how South African courts will deal with this.

Rapson adds that the biggest challenge in the Act is the practical implementation, which he believes will take a few months to get right.

Also, while the Waste Act has huge potential, it is a large administrative exercise for authorities, and he adds that it will only be effective if authorities increase its capacity to deal with the various administrations that are associated with this law.

“For example, thousands of landowners could notify the authorities that their land is contamin-ated. If declared as investigation sites, reports will be produced to measure the extent of the contamination. “This will result in thousands of reports and the capacity of authorities to read and consider all these reports will come into question,” he suggests.

A similar law is in place in the UK and com-panies have been created to perform desktop assessments of a piece of land to establish if it is potentially contaminated, based on the history of activities on the site.

These companies provide a high level assessment and Rapson predicts that similar assessments are likely to become the norm in South African property transactions, as they give the buyer a level of comfort as to the value of the asset they are acquiring.

“I have had engagements with a UK company that is aware of the new law in force in South Africa, and which hopes to roll out a similar programme in South Africa and is currently working closely with relevant stakeholders,” he reveals.

Meanwhile, Rapson reveals that numerous parties have submitted comments to the legis- lature regarding the uncertainty around remedi- ating contaminated land. Particularly banking institutes that were concerned about the provisions, lobbied to be exempt, as they use properties or land as a security over a bond that they provide. If the land is declared contaminated, it reduces the value of the land and it impacts on the security that the banks hold.

Edited by Martin Zhuwakinyu
Creamer Media Senior Deputy Editor

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