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Exponential rise in environment, waste and water enforcement
Claire Tucker
2010 has seen an exponential increase in the number of directives and compliance notices issued and criminal prosecutions threatened and instituted for environmental and water related crimes.
In the BG environment team we have seen this both from the increasing number of our clients facing enforcement action and from the general atmosphere regarding environmental enforcement in the press.
In the water sector, the Department of Water Affairs (“DWA”) has increasingly taken a “zero tolerance” attitude to water use and operating without a water use license. This has also been in the spot light through numerous parliamentary questions and press reports. We discuss this in the article entitled "Backlog in Water use licensing doesn’t stop enforcement actions by DWA".
In the environmental sector as the brief alongside indicates the National Department of Environment Affairs (“DEA”) has recently embarked on a six month “blitz”. In the article entitled "Actions which the DEA may take as part of the recently announced blitz” we look at the different enforcement actions they could take.
The DEA has also recently taken an increasingly confrontational approach to the long standing dispute with the Department of Mineral Resources regarding who has the authority for listed activities within the mining area. The DEA has recently issued compliance notices to mining companies regarding these activities. In the article entitled "Environmental authorisations required for associated activities in mining permit area” we examine a recent case in the Western Cape which dealt with this issue.
The increasing drive for successful prosecutions means a company cannot believe that an existing good relationship with the DEA or DWA, will shield it from prosecution for a technical transgression. We know of companies with cordial relations with these departments facing prosecution for transgressions despite the fact that the authorities have known of the transgression for some time.
In response to this rise in enforcement action the Bowman Gilfillan environment team has added expertise and experience in criminal defence to meet the needs of our clients facing environmental enforcement action. For more details on our team and for contact details click here.
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Articles
- Actions which the DEA may take as part of the recently announced blitz
Claire Tucker and Wandisile Mandlana
The Green Scorpions' main enforcement powers come from the National Environmental Management Act 107 of 1998 ("NEMA"). The biggest exposure most companies have is from technical non-compliances with conditions imposed in an Environmental Authorisation (often called RoDs) issued in terms of NEMA or similar permit conditions, such as the conditions contained in a Waste Management License issued in terms of the National Environmental Management: Waste Act, 2008 or the earlier permits issued in terms of the Environment Conservation Act, 1989. Read more
- Backlog in Water use licensing doesn't stop enforcement actions by DWA
Wandisile Mandlana and Lerato Lamola
The DWA is coming under increasing pressure to take action against companies operating without a water use license despite the licensing backlog at the DWA. There have been approximately 19 parliamentary questions raised in the last 18 months regarding the number of operations without a water use license and increasingly questions naming specific companies are raised regarding why operations are being allowed to continue operating without a licence.
Read more
- Environmental authorisations required for associated activities in mining permit area
Sandra Gore and Philadelphia Lala
A recent High Court case considered a long standing dispute on whether it is necessary to obtain environmental authorisation for activities associated with mining or prospecting activities, carried out within mining or prospecting areas, and listed as requiring environmental authorisations under NEMA, in addition to the approval of an Environmental Management Programme ("EMP") or Environmental Management Plan ("EMPlan"), granted under Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRDA").
Read more
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| Briefs |
Green Scorpions announce six month blitz:
On 27 September 2010, the DEA announced it is embarking on a national environmental law compliance campaign for six months, in addition to its daily enforcement of environmental laws activities.
During this time the Environmental Management Inspectorate of the DEA, (commonly known as the Green Scorpions) will carry out the compliance assessments throughout the country. During the campaign forty Environmental Authorisations and twenty waste licenses will be inspected.
The stated objective of the campaign is to “improve the general status of compliance within the regulated community through taking proper enforcement actions in the events of non compliance.” |
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Blue Scorpions increasingly prosecute mines:
In September 2010, the Minister of Environment and Water Affairs said that she has warned 30 mines in Mpumalanga, Gauteng, KwaZulu-Natal and the Northern Cape that they are contravening Environmental laws and has laid criminal charges against three of the mines thus far.
Reports have the Blue Scorpions or the enforcement department at the DWA "cracking down" on coal mines in Gauteng and Mpumalanga over their alleged pollution of the water table. They are also alleged to be investigating diamond mines in the Northern Cape province, who stand accused of impeding water courses.
A coordinated investigation by the National Prosecuting Authority (“NPA”) and environmental and water authorities was recently undertaken in Mpumalanga of ten mines in that area, with prosecutions reported to be likely in certain cases.
The Minister of Environment and Water Affairs is frequently asked parliamentary questions regarding transgressions of water legislation by mines in what appears to be a determined campaign by the opposition parties.
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| Team contact details |
Environment, Natural Resources and Climate Change Team at Bowman Gilfillan:
Tel: +27 11 669-9000
Web: www.bowman.co.za
165 West Street, Sandton, Johannesburg
P O Box 785812, Sandton, 2146
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