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4/08/2011

SUBTHEME 4: COMPLIANCE AND ENFORCEMENT: SE Solutions (Pty) Ltd, Sean O’Beirne

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TABLE OF CONTENTS

ACRONYMS AND ABBREVIATIONS .......................................................................................... 6 1. SUB-THEME 4: COMPLIANCE AND ENFORCEMENT ....................................................... 7

1.1 PROBLEM STATEMENT .............................................................................................. 7 1.2 OBJECTIVE of SUB-THEME 4: ..................................................................................... 7

2. STATUS QUO ...................................................................................................................... 7 2.1 OVERVIEW ................................................................................................................... 7 2.2 THE REGULATORY FRAMEWORK ............................................................................. 8 2.3 COMPLIANCE AND ENFORCEMENT MECHANISMS ............................................... 10

2.3.1 Compliance monitoring ............................................................................................ 10 2.3.2 Support services ...................................................................................................... 10 2.3.3 Enforcement ............................................................................................................. 12 2.3.4 The enforcement panel ............................................................................................ 12 2.3.5 Compliance and enforcement reporting ................................................................... 13

2.4 MINING ........................................................................................................................ 15 2.4.1 The current status of the amendments to the Mineral and Petroleum Resources Development Act (MPRDA) ................................................................................................ 15

3. ANALYSIS .......................................................................................................................... 16 3.1 PROBLEM IDENTIFICATION ...................................................................................... 16

3.1.1 Overview .................................................................................................................. 16 3.2 PROJECT SCALE ISSUES ......................................................................................... 18

3.2.1 Verification of the EIA findings ................................................................................. 18 3.2.2 Authorisation fixation ................................................................................................ 19 3.2.3 Limited public participation ....................................................................................... 19 3.2.4 Ineffectual EMCs ...................................................................................................... 20 3.2.5 Lack of response to reported transgressions ........................................................... 20 3.2.6 Lack of authority coordination .................................................................................. 21 3.2.7 Clumsy and slow sanction ........................................................................................ 21 3.2.8 Importance of self-regulation .................................................................................... 22 3.2.9 Ambiguity of EMPs ................................................................................................... 23 3.2.10 Adaptive environmental management .................................................................. 25

3.3 OTHER ISSUES .......................................................................................................... 25 3.3.1 Mining ...................................................................................................................... 25

3.4 OBSTACLES TO EFFECTIVE COMPLIANCE AND ENFORCEMENT ....................... 26 3.4.1 The scale of the task ................................................................................................ 26 3.4.2 Capacity ................................................................................................................... 27 3.4.3 Quality of authorisations ........................................................................................... 27 3.4.4 Extension of function ................................................................................................ 28 3.4.5 Bureaucratization of EIA .......................................................................................... 28

3.5 PRINCIPLES TO BE ESTABLISHED .......................................................................... 29 3.5.1 A conceptual model ................................................................................................. 29

4. SYNTHESIS ....................................................................................................................... 33

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4.1 STRENGTHS .............................................................................................................. 33 4.2 WEAKNESSES ........................................................................................................... 34 4.3 STRATEGY STATEMENTS/ PRINCIPLES ................................................................. 36

4.3.1 Overview .................................................................................................................. 36 4.4 PROPOSALS .............................................................................................................. 37

4.4.1 Improve EMPs ......................................................................................................... 37 4.4.2 Set performance outcomes (not inputs) and ensure reporting against outcome performance criteria ............................................................................................................ 38 4.4.3 Massively improve reporting to the authorities ......................................................... 39 4.4.4 De- bureaucratise EIA .............................................................................................. 40 4.4.5 Improve quality of authorisations ............................................................................. 40 4.4.6 Create mechanisms for highlighting political interference ........................................ 41 4.4.7 Create mechanisms for effectively reviewing performance reports and targeting specific compliance monitoring ........................................................................................... 41 4.4.8 Massively improve provincial and local authority compliance and enforcement capacity ............................................................................................................................... 41 4.4.9 Create performance expectations for compliance and enforcement ........................ 42 4.4.10 Provide proper environmental regulation of mining .............................................. 42

5. RISKS ................................................................................................................................. 43 6. CONCLUSIONS.................................................................................................................. 43

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LIST OF TABLES

Table 1: Summary of the overall national statistics for compliance and enforcement for the 2009/10 financial year (Source: National Environmental Compliance and Enforcement Report, DEA, 2009/10). ....................................................................... 13

LIST OF FIGURES

Figure 1: Schematic presentation of the compliance and enforcement structure with the Department of Environment Affairs. The function is made up of three inspectorates namely Enforcement, Compliance Monitoring and Support Services each of which is described more fully in the text. ....................................... 11

Figure 2: Schematic presentation of the relationship between the implementation of the requirements of Chapter 5 of NEMA and impact certainty . It is illustrated that the major emphasis of the implementation of Chapter 5 occurs at a time when there is greatest uncertainty regarding impacts. ....................................................... 17

Figure 3: Category 1 and Category 2 incidents on a large scale infrastructure project. Category 1 incidents are sanctions issued by the authorities (pre-compliance and compliance notices) and Category 2 incidents internally identified contraventions of the law that were reported to the authorities. ............................... 22

Figure 4: Measured concentrations of soaps, oils and grease in water discharged from the construction site of a large infrastructure project. The standard is represented by a dark red line highlighting the fact that in one month the limit was exceeded by more than 67 000%. .................................................................... 23

Figure 5: The concept of four discrete but inter-dependent integrated environmental management phases as developed by the DEA. ..................................................... 31

Figure 6: The compliance and enforcement requirements presented as a function of the DEA model (see Figure 5). ....................................................................................... 32

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ACRONYMS AND ABBREVIATIONS

DEA Department of Environmental Affairs

DMR Department of Mineral Resources

DWA Department of Water Affairs

EIA Environmental Impact Assessment

EMC Environmental Management Committee

EMF Environmental Management Framework

EMI Environmental Management Inspectorate

EMP Environmental Management Programme

IEM Integrated Environmental Management

MPRDA Mineral and Petroleum Resources Development Act

NEM:AQA National Environmental Management: Air Quality Act

NEM:WA National Environmental Management: Waste Act

NEMA National Environmental Management Act

PSC Project Steering Committee

RoD Record of Decision

SEA Strategic Environmental Assessment

SEMAS Specific environmental management acts

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1. SUB-THEME 4: COMPLIANCE AND ENFORCEMENT

1.1 PROBLEM STATEMENT

The problem statement on the subtheme was compiled by the Project Steering Committee

(PSC):

Compliance monitoring and enforcement is inadequate

1.2 OBJECTIVE OF SUB-THEME 4:

To ensure that compliance monitoring and enforcement procedures within the

organisational structure of IEM are adequate and effective

Goals:

Goal 1: To provide for more effective and efficient monitoring and enforcement procedures

Goal 2: To provide for more effective and efficient monitoring and enforcement

organisational structures

Goal 3: To provide for more effective and efficient monitoring tools

2. STATUS QUO

2.1 OVERVIEW

In defining the status quo of current compliance and enforcement activities as these relate

to Chapter 5 of NEMA, it is firstly necessary to consider the degree to which the regulatory

framework provides for compliance and enforcement activities, and secondly the degree to

which these activities have been formalized, structured and implemented. In the first part of

this section the regulatory framework as defined by the NEMA the Specific Environmental

Management Acts (SEMAs) and associated regulations are briefly reviewed. Thereafter

the structures and activities that have been implemented by the authorities in order to drive

the compliance and enforcement function are presented.

2.2 THE REGULATORY FRAMEWORK

As part of the status quo review, the NEMA and SEMAs were reviewed with specific focus

on the enforcement provisions contained in those acts. Without exception the acts contain

a range of provisions for effective compliance and enforcement actions. By way of

example, and without repeating all the provisions contained in the act, the NEMA stipulates

compliance monitoring requirements on organs of state and in chapter 7 particularly,

provides a range of regulatory mechanisms that can be used to support compliance and

enforcement, including prosecutions by the state and private prosecutions.

As such, and in general terms, it is argued here that there is adequate regulatory provision

for compliance and enforcement actions. This was confirmed in discussion with personnel

from the compliance and enforcement inspectorates at the DEA who conveyed that they

are not inhibited by weaknesses in the regulatory provisions in respect of compliance and

enforcement, other than in respect of Section 48 of NEMA which requires a separate

discussion here. Section 48 of NEMA is titled ‘State bound’ and reads as follows:

48. This Act [NEMA] is binding on the State except in so far as any criminal liability is

concerned

As such Section 48 precludes enforcement action (prosecution specifically) being taken

against any organisation deemed to be part of the State. That would include provincial

government, local authorities and municipalities. In respect of authority functions there are

a number of circumstances where municipalities for example, failed to take the necessary

remedial action in terms of impact on the environment. This is true especially of

wastewater treatment and the release of raw sewage into surface watercourses, where

municipalities failed to respond to warning letters and pre-compliance and compliance

notices.

What is also important about Section 48 is that it precludes prosecutorial action against

para-statals such as the Central Energy Fund, Transnet, Armscor, Aventura Resorts,

Denel, Eskom, Johannesburg Water, Portnet, Necsa, Safcol, PetroSA, and Transtel (and

others). This does not prevent the issuing of pre-compliance and compliance notices but if

such notices are ignored, then no prosecutorial action can be taken. In the DEA’s annual

compliance and enforcement report, for example, non-compliances by the South African

National Roads Agency Ltd (Sanral) are highlighted.

The report states that ‘the Department is beginning to identify institutions and persons that

continue to contravene environmental legislation despite enforcement actions being taken.

Although Sanral obtains relevant environmental authorisations, officials from the

Department continue to detect non-compliances with the conditions of these authorisations.

The most recent non-compliance was detected in relation to the Central Operation Centre

being constructed along the M1 highway in Gauteng; however non-compliances have also

been detected in the past in relation to authorisations for the R21 highway upgrading in

Gauteng, Mokapane Weighbridge, the N4 ring road in Nelspruit and the N1 highway

upgrade in Gauteng. Based on these repeated contraventions the Department will now

have to step up its enforcement response as the administrative enforcement tools used in

relation to these contraventions do not appear to be effective in raising the level of

compliance’ (DEA, National Environmental Compliance and Enforcement Report 2009/10).

The para-statals listed above obviously constitute a broad range of activities that have the

potential to impact significantly on the environment. The exclusion of these organisations is

therefore an important weakness in the compliance and enforcement function. That

notwithstanding it must also be recognised that the state entities listed above are all under

the jurisdiction of national government for EIA decision-making. This means that there is

generally better attention paid to compliance in terms of the activities of these organisations

than would be the case in respect of provincial jurisdiction which appears to vary

significantly from province to province. This assertion is based on a broad scale

characterization that environmental compliance and enforcement is probably at its

strongest at national level, then at provincial level but with varying levels of effectiveness

from province to province and finally at its weakest at local authority level.

The compliance and enforcement function at DEA conveyed that they are currently busy

with a process to review (and possibly amend) Section 48. If this section can be amended

an important group of activities that have the potential to impact negatively on the

environment can be better regulated through the use of prosecution as an enforcement

action. The fact that the DEA has the desire to launch prosecutions against other state

entities where such entities ignore warning letters and compliance notices is viewed as

extremely encouraging and positive, however it is only the amendment of Section 48 that

will see the desire translate into action.

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2.3 COMPLIANCE AND ENFORCEMENT MECHANISMS

There has not yet been the time to investigate the degree to which individual provinces

have been able to define, structure and populate compliance and enforcement

mechanisms. However, discussions were held with personnel from the compliance and

enforcement function within the DEA to develop an understanding of the approach within

the Department to give effect to a compliance and enforcement function. The compliance

and enforcement function within the DEA currently resides under the Environmental Quality

and Protection Branch of the Department (see Figure 1). The function is made up of three

groupings (inspectorates) namely Compliance Monitoring, Support Services and

Enforcement.

2.3.1 Compliance monitoring

In broad terms the principle is that Compliance Monitoring identifies on an ongoing basis,

activities that are in breach of the law, conditions of authorisation, improperly authorised

activities, and so forth. These various cases are presented to Enforcement who then

issues the necessary warning letters, pre-compliance and compliance notices or indeed

decide on prosecution and the associated criminal investigation. Where Enforcement

responds to legal transgressions that have been identified by Compliance Monitoring this is

known as ‘reactive administrative enforcement’. This differs from ‘strategic’ administrative

enforcement which is describe later in this document.

2.3.2 Support services

Support Services should, in principle, provide a range of crosscutting functions in support of

the other two inspectorates. In reality, Support Services provides support to other functions

within the Department (i.e. outside of Environmental Quality and Protection) and also to

provincial and local authorities as may be required. The DEA is trying to promote the

constitutional obligation for authority functions to be maintained at local, provincial or

national level, as is appropriate. This is important for compliance and enforcement because

it means that the National Department cannot usurp the compliance and enforcement

functions that are the responsibility of provincial or local authorities, regardless of the

capacity of those provincial and local authorities. It is sometimes incorrectly understood, for

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example, that the National Department has authority over provincial and local authorities.

This is not the case at all as the national department has certain defined responsibilities, as

do the provincial and local authorities. Crossing these lines can seriously weaken the

compliance and enforcement function, as compliance notices can be rendered invalid if

issued by the ‘wrong’ authorities, for example.

Figure 1: Schematic presentation of the compliance and enforcement structure

with the Department of Environment Affairs. The function is made up of

three inspectorates namely Enforcement, Compliance Monitoring and

Support Services each of which is described more fully in the text.

In trying to maintain the required authority jurisdictions and responsibilities, compliance and

enforcement actions can become unnecessarily protracted and often extensively delayed

as consensus is sought amongst the different authority levels. In some instances, for

example, an authority may fail to be available for a particular audit. The logistical and

administrative challenges are not insignificant but there have still been a number of

successes where prosecution has been both possible and successful. Ultimately the

provincial and local authority would have to be able to operate independently of the DEA in

effecting compliance and enforcement, and thereby freeing up the DEA to focus on their

core responsibilities.

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2.3.3 Enforcement

Enforcement serves to take the action required to maintain compliance through the issuing

of warning letters, pre-compliance and compliance notices as well launching criminal

investigations that result in prosecution. It is important to note that Enforcement does not

simply wait for Compliance Monitoring to identify activities that require enforcement actions.

Within Enforcement a function known as ‘strategic administrative enforcement’ (mentioned

earlier) has been established where particular sectors such as the metals, cement,

hazardous waste and pulp and paper industries have been targeted, because these sectors

are known to have a significant environmental burdens. Specific activities within these

sectors have been targeted with a variety of campaigns. The campaigns include the

participation of all relevant authority structures which act co-operatively in auditing various

components of the activity in question.

For enforcement to be effective, an established procedure must be followed which includes

the issuing of warning letters, pre-compliance and compliance notices. Personnel from the

inspectorates have emphasised how important it was to maintain these procedures and

suitably recognize the roles of the different authority levels. The recent actions surrounding

the construction of the Pan African Parliament in Midrand provide an important example.

The Pan African Parliament is being built by the Department of Public Works. Following

the issuing of an authorization it was subsequently discovered that the parliament building

was being built in a wetland which had not been recognized in the EIA. Enforcement was

able to stop construction despite the obvious ramifications in terms of schedule and cost for

the Department of Public Works. Remedial action was implemented as far as was possible

and the environmental assessment practitioner responsible for the EIA is currently being

prosecuted. These compliance and enforcement actions would simply not have been

possible without the apposite procedures being followed.

2.3.4 The enforcement panel

The enforcement response is decided by an ’enforcement panel’ who weigh up the

significance and magnitude of the non-compliance in order to make a decision on an

appropriate action. This is not a capricious process but rather one where the dictates of the

Environmental Management Inspector (EMI) Operating Manual present clear enforcement

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guidelines. Many factors are considered in this process such as the immediacy of the threat

posed by the activity and the need to negate that threat quickly. An example of this is a

medical waste industry where illegal dumping of medical waste had to be acted against

robustly, effectively and quickly to discourage further illegal dumping. On this issue it

should be noted that the waste industry in general has been subjected to considerable

compliance and enforcement action, again as a function of the environmental risks of an

industry of this nature.

2.3.5 Compliance and enforcement reporting

A comprehensive range of statistics are importantly and impressively presented in a

National Environmental Compliance and Enforcement Report (the latest of which is

available for the 2009-2010 financial year). The report contains information on the status

and function of EMIs, overall national statistics that are divided between national, provincial

and local authority functions, a description of national institutions, environmental

jurisprudence, legislative developments, industrial compliance and enforcement,

biodiversity enforcement and compliance, National Department complaints and an

emergency incidents register, capacity building for EMI's magistrates and prosecutors and

stakeholder engagement. The key findings from that report are summarised in Table 1.

Table 1: Summary of the overall national statistics for compliance and

enforcement for the 2009/10 financial year (Source: National

Environmental Compliance and Enforcement Report, DEA, 2009/10).

� There has been an 22.9% increase in the number of reported environmental

incidents from 4661 in 2008/9 to 5739 in 2009/10;

� There has been a relative increase in the number of criminal dockets and “J534s”

registered in the past financial years from 1762 in 2007/8, to 2412 in 2008/9 and

2877 in 2009/10;

� There were 282 cases handed to the National Prosecuting Authority (NPA) of

which approximately 35.8% received an nolle prose qui from the NPA.This

percentage is relatively similar for the previous financial years of 100 (2008/9) and

101 (2009/10);

� There has been a general decline in the number of arrests by environmental

management inspectors since 2007/8, dropping from 2614 cases in 2007/8 to 2384

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in 2009/10;

� There has been a dramatic increase in the number of acquittals from 18 in 2008/9

to 1026 in 2009/10;

� The number of convictions has increased from 258 in 2008/9 to 673 in 2009/10

which is 160.9% increase;

� There has been a significant increase in the number of plea bargains from 4 in

2008/9 to 134 in 2009/10;

� The monetary value of admission of guilt fines issued has dramatically increased

from R1,469,899:00 in 2008/9 to R2,509,703:00 in 2009/10, an increase of 61.9%;

� There has been an increase in the number of warning letters, pre-directives, pre-

compliances, final directives and final notices issued, as well as the launch of civil

court applications, increasing from 385 in 2008/9 to 1260 in 2009/10;

� There has been a decline in the total amount paid in respect of section 24G

administrative fines from R15 499 518.19 in 2008/9 to R8 874 966.10 in 2009/10;

and,

� There were 2380 facilities inspected nationwide in the brown and green subsectors.

Marine and Coastal Management reported that 65 567 inspections of vessels and

other marine related activities were conducted.

The summary statistics presented in Table 1 indicate that Compliance and Enforcement is

generally functioning well and has resulted in both compliance notices being issued and in

a number of instances, successful prosecutions. The intention is not to summarise the

entire report here but it is worth noting that there has been a significant number of

compliance monitoring events with many of these resulting in enforcement actions.

Interestingly the report also highlights the number of compliance and enforcement activities

being carried out by the various provincial governments. These various activities are both

impressive and encouraging and present a significantly more positive picture of compliance

and enforcement than was perceived at the start of the process.

What is also worth noting from the report, however, is that a fairly significant component of

the enforcement function (most notably at provincial government level) relates to the

conducting of unauthorised activities and associated 24G rectifications. The question that

has to be asked is what compliance and enforcement actions have taken place in respect

of conditions of an authorisation and general compliance with the law? Almost every

province, for example, cites ‘illegal listed activities’ as the most prevalent crime reported.

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This implies a strong focus on the authorisation requirements of the NEMA as opposed to a

broader more inclusive range of possible transgressions of environmental legal

requirements.

2.4 MINING

2.4.1 The current status of the amendments to the Mineral and Petroleum Resources

Development Act (MPRDA)

A key consideration in this status quo assessment is the current status of mining related

activities and how these are governed by the MPRDA versus how these are governed by

the NEMA. In summary, recent amendments to the NEMA included a number of mining

activities that were listed in terms of the EIA regulations. It was subsequently required for

the MPRDA to be amended. Following the amendment of the MPRDA an 18 month period

would commence during which time the current status would be retained. Following that 18

month period another 18 month period would commence during which time the Minister of

Mineral Resources would be the competent authority (i.e. the Minister of Mineral Resources

would be the decision maker on mining related activities). During that same 18 month

period the Minister of Water and Environmental Affairs would be the arbiter on appeals

against decisions made by the Minister of Mineral Resources. Following the conclusion of

the second 18 month period all mining related activities would be decided on under the

auspices of the NEMA with the Minister of Water and Environmental Affairs being the

competent authority.

The situation at present is that authorisation for mining per se resides with the Department

of Mineral Resources (DMR) and is governed by the requirements of the MPRDA.

However, there are a range of associated activities such as the establishment of access

roads, pipelines and others which are governed by the requirements of the EIA regulations

under NEMA (these activities are included as ‘listed activities’ within the EIA regulations).

This means that any mining activities are likely to have the dual requirements of meeting

both NEMA and MPRDA provisions. The much celebrated Vele Mining (Mapungubwe)

circumstance is a case in point where the mine had a valid authorisation under the

MPRDA, but associated activities that should have been authorised under NEMA were not.

The DMR maintains that a single MPRDA authorisation is sufficient to authorise the entire

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mining operation, which is clearly not the case terms of regulatory requirements.

Frustratingly, some authorities operating under the auspices of the NEMA, are presenting

the same argument and are advising applicants only to obtain an MPRDA authorisation.

The ultimate outcome of this is that there are a number of mining activities that may be

legal in terms of an MPRDA authorisation, but with associated activities that are not

authorised as they should be in terms of the NEMA. It is not entirely clear how many mines

are so authorised but recent media attention (i.e. articles in Die Beeld newspaper) suggests

that this may be well in excess of 100 mining operations.

The required MPRDA amendment is now long overdue. When recently following up the

DEA was advised by the DMR that due to ‘changed circumstances’ the DMR was not

prepared to pursue amendments to the MPRDA. Furthermore the DMR planned over time

to in fact repeal certain parts of the MPRDA to solidify and strengthen the existing

arrangements whereby mining authorisations are issued by the DMR. The circumstance is

obviously disturbing because it is in clear opposition to an important environmental

assessment principle, namely that for an organisation which has a stated purpose for the

promotion of a particular activity, the organisation cannot reasonably be expected to affect

sound decision-making that properly considers the negative implications of that activity.

Simple logic dictates that effective decision-making, that properly weighs up both the

negative consequences as well as the benefits of a proposed activity, should be through an

independent third party (such as the DEA) which has no vested interest in the outcome of

the decision.

3. ANALYSIS

3.1 PROBLEM IDENTIFICATION

3.1.1 Overview

Chapter 5 of NEMA details the concept of Integrated Environmental Management and

focuses on the principle that if activities have the potential to impact negatively on the

environment then such activities need to be assessed and authorised (if appropriate) as a

function of that assessment. The Chapter also supports the principle of adequate and

appropriate public participation and the coordination of organs of state to achieve this

objective. Chapter 5 has largely but not exhaustively been implemented through the

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development and implementation of the (Environmental Impact Assessment) EIA

regulations. However, Chapter 5 also uses the term ‘management’ as well as the term

‘decision-making’ and the entire Chapter is premised on the promotion of the environmental

management principles presented in Section 2 of the Act. These latter requirements lead

to the questioning of the appropriateness and robustness of EIAs as the principal

mechanism for engagement and decision-making regarding activities that may impact on

the environment.

It is not the purpose here to address in any detail the question of the effectiveness and

efficiency of the EIA process, but rather to consider the role of compliance and enforcement

in giving effect to the overarching objectives of Chapter 5, and in so doing the upholding of

the environmental principles presented in Section 2 of the Act. The implementation of

Chapter 5 is presented schematically in Figure 2 as a function of a typical project

implementation curve whereby impact certainty is low during the project concept stage

(typically when the EIA gets completed).

Figure 2: Schematic presentation of the relationship between the implementation of

the requirements of Chapter 5 of NEMA and impact certainty . It is

illustrated that the major emphasis of the implementation of Chapter 5

occurs at a time when there is greatest uncertainty regarding impacts.

Impact certainty increases dramatically following the implementation of the project to a near

steady state position as a function of long term operations when there is limited uncertainty

of the nature and scale of the impacts. It is argued here that in general the implementation

of Chapter 5 is at its most intense at a time when impact certainty is at its lowest, and that

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uncertainty continues to reduce over time. Stated differently, once the activity has been

authorised there are no Chapter 5 provisions for reviewing the validity of the basis of the

authorisation.

Again in general terms the mechanism for compliance and enforcement in terms of

implementation of Chapter 5 lies principally in authorisations (of both the EIA and the

EMP), with relatively less authority activity during project implementation and operations.

There is an argument to be made that the later compliance and enforcement function will

ultimately be driven by the implementation of those functions within the National Waste Act,

the National Air Quality Act, the National Biodiversity Act and others. However, even for

this argument, the activities driven by these latter Acts are currently focussed principally on

the approval of activities (through the vetting of EIA decisions and through the issuing of

permits) with insufficient attention being paid to the requirements for compliance and

enforcement.

3.2 PROJECT SCALE ISSUES

In order to further elaborate the principal discussed above, a number of large scale projects

were reviewed in order to track the degree to which the objectives detailed in Chapter 5 of

NEMA were in fact upheld by the implementation of the EIA regulations. These projects

are not named but suffice it is to say that they are all large infrastructure projects with

varying degrees of potential impact on the environment. In all cases the projects were

subjected to rigorous and extensive EIA processes which culminated in the issuing of

authorisations to proceed with the activities. In some instances the development of an EMP

was detailed as a condition of the authorisation and in some cases the EMP was developed

and submitted as part of the EIA in keeping with the current EIA regulations. The following

key issues emerged from that review:

3.2.1 Verification of the EIA findings

The EIA processes did not effectively identify all of the impacts associated with the

proposed activities. This was found to be particularly true of the construction and

commissioning phases of the projects where impacts were either wholly disregarded or

where the impacts were underestimated. In the case of one of the projects it has

subsequently become clear that the major impacts associated with the project occurred

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during the construction phase, and yet the construction phase was barely mentioned in the

EIA and indeed no construction phase impacts were identified or assessed. In the case of

another project the uniformity and lack of variability in operations was highlighted strongly

in the EIA, whilst in practice there is a high level of short term variability in at least the

atmospheric emissions performance. In general atmospheric emissions are higher than

what was predicted in the EIA and ambient concentrations of pollutants are also observed

to be higher than was predicted at the time of the EIA. Certain pollutants that were deemed

to be insignificant at the time of the EIA are now proving to be more significant and,

although they are not resulting in a severe potential impact, the pollutants are a key

element of day to day management.

3.2.2 Authorisation fixation

The point to be made here is that EIA is at best a predictive process and by definition there

is inherent uncertainty in prediction. Studies conducted in Australia revealed that EIA

processes there were at best some 65% accurate and at worst there are impacts that

manifested after project implementation that were not identified at all (Morrison-Saunders,

1998). There is no regulatory mechanism in South Africa for revisiting the impacts that have

manifested differently to what was described in the EIA, because authorisations are for

activities. In this regard, it is instructive to note that one of the projects that was reviewed

ran multiple processes to amend the original authorisation yet made virtually no effort to

address significant transgressions of the law that were occurring on a daily basis on the

construction sites. The message from the project was in incense that the authorisation was

what mattered, and that nothing else was important. Interestingly, on that same project the

financiers were also fixated with the authorisation but showed little interest in the

environmental management performance during the project.

3.2.3 Limited public participation

In all projects reviewed, public participation was considered to be significantly ‘diluted’ after

project implementation (in fact after the projects had been authorised). The irony of this

circumstance was that on at least two of the projects, there was greater opportunity (more

frequent) opportunities for public participation than there had been during the EIA.

Stakeholders used these opportunities to raise problems associated with the project that

were having a direct impact on them, such as dust and noise, but many stakeholders

��

considered that their further participation was simply token as the ‘decision had already

been made’. Stakeholders also indicated that there was no sense of an authority body to

which they could appeal in the event that complaints were not being addressed

satisfactorily and that they were ‘limited’ to having the developer deal with their issues (to

greater and lesser degrees) which they sometimes found unsatisfactory. On one of the

projects the public meetings was limited to allowing stakeholders to raise issues of concern,

with no presentation of environmental management performance such as non-compliances,

incidents, environmental quality monitoring and so forth, despite the fact that this was

expressly a condition of the authorisation.

3.2.4 Ineffectual EMCs

Environmental monitoring committees (EMC) were established on several of the projects

reviewed. On one of the projects the decision was made to limit the EMC to include only

the authorities because previous experiences with an EMC that included both authorities

and the general public had resulted in frequent ‘in-fighting’ on matters that were not always

germane to the project at hand. The project then had local, provincial and national

authority representation on the EMC which met monthly to review the project’s

environmental management performance. There were a number of problems with the

operation of the EMC including:

� Poor and irregular (different people attending as representatives) attendance;

� Unclear mandates on the part of the authorities;

� Failure to review documentation that had been made available prior to the meeting;

and,

� Failure to take definitive action in response to reported transgressions of the

conditions of authorisation, the EMP and the law in general despite these being clearly

presented during the EMCs.

3.2.5 Lack of response to reported transgressions

Of the projects reviewed, one project in particular was deemed to have a very good Record

of Decision (RoD) with exacting conditions of approval. One such condition was the

requirement to provide a monthly report to the provincial authority that had issued the

authorisation. Detailed monthly reports were submitted to the provincial authority

highlighting incidents of transgressions of the law, exceedances of target environmental

��

quality objectives, failure to implement the conditions of authorisation, and others. No

material action was taken by the authorities to address the issues despite the fact that the

reports were unambiguously presenting key contraventions of the law. The reports

submitted to the authorities are summarised in Figure 3.

On another project there were several authority audits during the construction of the project

but the findings were often misdirected. For example, the EMP contained a requirement to

spray water three times a day. Because drought conditions were prevailing a decision was

made to stop spraying with water and to use a chemical binder rather that could be used far

less frequently. The authorities ruled that the failure to spray with water constituted a non-

compliance despite the reasoning offered for using the binder instead.

3.2.6 Lack of authority coordination

On one of the projects there was a major and sustained discharge of contaminated water

into surrounding surface water courses (Figure 4). When presented with this problem the

lead agent argued that despite having issued the authorisation they were in no position to

take corrective action ‘on behalf of another Department’ (viz. DWA). There appeared to be

no mechanism for passing on possible transgressions to the other relevant departments

even if this was their intention. This raises the issue as to the authority held by a lead

agent to take enforcement action on issues that are clearly contraventions of the law but

not technically within their mandate. In other words, if a lead agent issues an authorisation,

the question is asked whether they are legally in a position to take some form of

enforcement action if they identify a contravention of the National Water Act or the

NEM:AQA.

3.2.7 Clumsy and slow sanction

In a certain case, a decision was finally made to sanction a project, but the process for

giving effect to that sanction was slow and too laborious to be effective as an enforcement

mechanism. In one instance in particular there was a severe environmental incident that

could have been used by the authorities to very effectively set an example through well

directed and timeous punitive action. This ‘punitive action’ finally took the form of a pre-

compliance notice which only required the rehabilitation of the affected area. No further

action was taken despite the seriousness of the incident, and the project in question

��

continued to break the law with impunity. A key concern to emerge from one of the projects

reviewed was the apparent power of the provincial government to exercise their discretion

as to whether to take action or not. When challenged on this issue the head of department

of the provincial government declared that they were not obligated to take action against

reported transgressions.

Figure 3: Category 1 and Category 2 incidents on a large scale infrastructure

project. Category 1 incidents are sanctions issued by the authorities (pre-

compliance and compliance notices) and Category 2 incidents internally

identified contraventions of the law that were reported to the authorities.

This differs markedly from the EIA process where there is a clear set of expectations

around what is expected of the lead agent with little or no discretionary power to operate

outside of the regulations. There appears to be no systematic process for receiving

information on transgressions, and then launching pre-determined enforcement actions

systematically and consistently, regardless of the project in question.

3.2.8 Importance of self-regulation

It is clear from all the projects that were reviewed that there is a significant expectation of

self-regulation that follows the issuing of an authorisation.

0

1

2

3

4

5

6

7

8

Category 1 Category 2

��

Figure 4: Measured concentrations of soaps, oils and grease in water discharged

from the construction site of a large infrastructure project. The standard

is represented by a dark red line highlighting the fact that in one month

the limit was exceeded by more than 67 000%.

This expectation includes that once activities have been authorised, they will ensure inter

alia:

� That their activities remain exactly as authorised;

� That their environmental profile is equivalent or better than what was used in the EIA;

� That they diligently and robustly implement all the conditions of authorisation;

� That they report all incidents accurately and timeously; and,

� That they effectively report their environmental performance.

3.2.9 Ambiguity of EMPs

Although there have been a number of processes to standardise the approach to and the

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presentation of the Environmental Impact Report (EIR) there appears to be much greater

latitude in what is considered to be acceptable in terms of an EMP. In the projects that

were reviewed the EMPs were found to be generally one dimensional with little attention

paid to how the management and mitigation requirements would in fact be implemented.

Very few EMPs deal with design in any meaningful way despite the fact that the

environmental performance detailed in the EIA must be carried through to design

specifications and criteria. Only two of the projects reviewed had made provision for review

of the environmental design criteria and only one of the projects had this implemented

effectively.

EMPs also tend to be vague on outcomes and tend to focus more on the definition of the

input measures than the definition of output or outcome performance. Objectives,

indicators and targets are seldom adequately defined and there appears to be confusion

regarding the Environmental Management System (EMS) nomenclature of activities,

aspects and impacts. In general it is considered that the approach to formulating EMPs in

South Africa is broad and ill-defined and there appears to be a wide range of approaches

that are deemed to be acceptable. Again it is argued here that this is ironic give the fact

that the EMP is the key definition of what will happen in reality on the ground. In respect of

compliance and enforcement, the EMP is a critical bridge firstly between the EIA and the

implementation of the project, and secondly between the developer and the authority.

There also appears to be little recognition of the legal status of the EMP on the projects

reviewed. Many developers view the EMP as a guideline document rather than one that

has legally enforceable provisions. In circumstances where authority audits are not clearly

directed at auditing the EMP and its efficacy, that perception is compounded. The

authorities are also not necessarily at fault here because sometimes the definition of the

environmental management philosophy and the process whereby the EMP is meant to be

implemented is not entirely clear. If record keeping in respect of environmental

performance is also sub-standard then the authorities have little choice but to try and

identify environmental transgressions themselves. If there is a reluctance to take

enforcement action against developers for direct contraventions of the law (such as waste

water discharge) then the likelihood of authorities taking action against a developer for poor

record keeping, or ambiguity regarding the implementation of the EMP, seems remote.

��

3.2.10 Adaptive environmental management

The principle of adaptive environmental management is well recognised in the literature

most especially in the transition from EIA to project implementation. The principle of

adaptive environmental management is one in which changing circumstances are carefully

monitored and the environmental management response is adapted accordingly. With the

EIA regulations as they are at present, the principle of adaptive environmental

management is severely constrained with new authorisations required even for changes

that are made to approved EMPs. In these circumstances, compliance and enforcement

becomes more challenging rather than less challenging because of the level of detail that is

required to be policed. What is required is a simplification of authorised activities to fewer

but more powerful environmental performance indicators, while allowing a great degree of

flexibility regarding how the environmental performance is achieved.

3.3 OTHER ISSUES

3.3.1 Mining

For compliance and enforcement, the concern in respect of mining is quite simply that it

appears as though mining activities will remain materially outside the jurisdiction of the

compliance and enforcement functions that are held within the DEA. Without casting any

aspersions on the capabilities of the DMR, it is unlikely that this and an effective

compliance and enforcement regime would be brought to bear for the control and

prevention of negative impacts on the environment. Again simple logic would dictate that an

independent third party with no vested interest in the outcome of a particular activity would

be the best way of implementing an effective compliance and enforcement regime. It also

has to be said that it is well-recognised that mining is highly politicised and presents the

ideal opportunity for growing and sustaining highly profitable businesses. The recently

announced plans by government to establish and operate a state owned mining company

presents an alarming spectre of an operation that would have little difficulty in authorising

their activities and would be free to do as they choose with regard to ‘ignoring’

environmental laws with little if any consequence.

It would be hard to argue that mining in its own right has the single biggest impact on the

��

environment. It is more likely that due to the spatial extent of agriculture that this activity

has the single biggest impact (at national level) on the environment. That notwithstanding,

mining has to be a significant detractor to the principles of sustainable development. Indeed

it would be very difficult to argue that mining in any way, shape or form could be perceived

as resulting in an improvement in environmental quality. If mining is perceived as a

relatively simple way of capitalising on the mineral wealth on offer in South Africa, then it is

likely that over the next decade or so there will be and unprecedented proliferation of

mining in the country.

Where such mining is allowed to proceed with questionable decision-making on the

acceptability or unacceptability of specifically proposed mining activities, together with very

limited compliance and enforcement, the threat to environmental quality in South Africa

cannot be understated. One does not have to look very far to see the significant negative

impacts that we live with today as a function of past, and in some cases present, mining

activities. The contamination of the West Rand's groundwater resource is a case in point.

Such impacts are a function of poor regulation and control. It would be foolish not to learn

from mistakes of the past simply for the sake of political expediency.

3.4 OBSTACLES TO EFFECTIVE COMPLIANCE AND ENFORCEMENT

From the discussions with the compliance and enforcement personnel at DEA, several

obstacles were identified that thwart the continued effectiveness of compliance and

enforcement. These are briefly described in the following section.

3.4.1 The scale of the task

The greatest obstacle is simply the sheer number and scale of activities that require

compliance and enforcement functions. What is not directly available in the compliance and

enforcement statistics is the number of compliance audits conducted relative to the number

of authorisations issued in terms of the EIA regulations. Statistics on the number of

applications received are difficult to come by, but in the presentation of the NEMA EIA

regulations which were promulgated in 2006 it was indicated that there were some 44,000

applications between 1997 and 2006. It is also known that there was a significant increase

in the number of applications processed by at least the DEA following the implementation

of the NEMA regulations. The 2006 NEMA EIA regulations included an increased number

��

of listed activities that required authorization which thereby resulted in a concomitant

increase in the number of applications.

Against these sorts of numbers the statistics on compliance and enforcement actions

published by the DEA indicates that a relatively small percentage of authorisations were

followed up in terms of compliance and enforcement. This should not necessarily be

interpreted simply in percentage terms because there is obviously a broad spread of

relatively insignificant activities (in terms of impact on the environment) within the vast

number of applications. The compliance and enforcement function in DEA have specifically

targeted those sectors which are deemed too hold the biggest risk in terms of impact on

environment. As such it would be unfair simply to weigh up the compliance enforcement

actions against the number of EIA applications. Nevertheless, the mere number of

applications presents a logistical and administrative challenge to compliance and

enforcement.

3.4.2 Capacity

The DEA has made significant inroads over the last five years in terms of identifying and

training environmental management inspectors (EMIs). Statistics presented in the national

compliance and enforcement report show that at the end of the 2009/2010 financial year

some 1073 EMIs had been trained and qualified. These qualified EMIs span the five grades

of the grading system that is used to qualify EMIs. The grading is required in turn to align

the function of the EMI to the required legislative powers. One of the key challenges

remains building adequate capacity for compliance and enforcement at provincial

government level and also possibly more importantly, at local authority level. The capacity

requirements at local authority level are also compounded by the regulatory functions

expected at local authority level by some of the SEMAs. The NEM:AQA is a case in point

where the local authority is required to issue atmospheric emission licenses, for example.

3.4.3 Quality of authorisations

A further obstacle to effective compliance and enforcement is the quality of authorisations

(previously known as Records of Decision (RoD)) issued on a number of projects. In a

number of instances compliance and enforcement is actually limited by vague and

potentially contradictory conditions. The compliance and enforcement function at DEA is

�

running a process to provide feedback into the issuing of authorisations, alerting competent

authorities to better ways of structuring the conditions of authorization.

3.4.4 Extension of function

Given the remit of this particular exercise focusing as it does on chapter 5 of the NEMA,

‘extension of function’ is possibly beyond the scope of this status quo assessment.

However, it is important to note that the compliance and enforcement function that exists

within the DEA is principally anchored in NEMA implementation and that ultimately there

should be a compliance and enforcement function for each of the branches or agencies

that are responsible for issuing permits or licences (waste and air quality management, for

example). The requirement to extend the functionality of compliance and enforcement into

these permits and licence custodians is obviously a further development requirement that

must be fulfilled as a logical follow-on to the promulgation of the foundation legislation.

3.4.5 Bureaucratization of EIA

The effect of the EIA regulations and continued amendments of the same are invoking

greater and greater levels of bureaucracy. In recent years EIA has been targeted and

criticised as an obstacle to development. Protagonists have argued that EIA gets in the way

of economic and social development, and as such is not adding any value to the

development challenges faced in South Africa. These criticisms come with a sense that it

is EIA itself that is the obstacle to development. In reality what is argued here is that it is the

bureaucracy and the bumbling decision-making that provides the obstacle to development.

It is argued that if EIA was an efficient process it is likely that much of the criticism would

fall away.

Industries have cited that one of the biggest risks they face is the uncertainty around

decision-making. This uncertainty is not a function of whether the proposed development

will be approved or not but rather the time that will be needed to issue the approval. Large

capital intensive projects can be seriously negatively impacted upon if the industries have

uncertainty regarding key decision-making milestones. If EIA limits development because

the development will have an unavoidable and significantly negative impact on the

environment, then EIA should fulfil exactly that purpose. If EIA limits development because

of protracted and capricious decision-making, which, it is argued here is the case, then the

�

regulations governing how EIA is conducted and how decisions are made in response to

those EIA's, has needs to be quickly and seriously revisited.

The bureaucratisation of the EIA regulations is extremely worrying in that the emphasis in

conducting EIA's is now perceived as being about “ticking boxes” rather than focusing on

the quality objective assessment. It stands to reason that if EIA is seen and perceived to be

nothing more than an administrative burden, rather than a process which will serve to

reduce risks to the development and to the environment in which the development will be

established, then EIA will continue to be discredited.

The effect of the bureaucratisation of the EIA process is also to tie up authority resources

that could be better utilised in compliance and enforcement functions. At the same time,

efforts to try and formalise independent reviews as a compulsory part of the EIA process

have fallen on deaf ears. These proposals revolve around using experts in a particular

domain to review the EIA prior to it being submitted for decision-making. What this would

seek to achieve is to take the review function away from the authorities allowing them to

focus on the key responsibility which is decision-making. In addition, if the quality of EIA's

continues to be improved then the EIA's will better enable compliance and enforcement

during implementation of the activities subject to the EIA.

3.5 PRINCIPLES TO BE ESTABLISHED

The simplest way of defining the principles that need to be established to support effective

compliance and enforcement is by reference to a model (developed by the DEA) of the

integrated environmental management phases. This model is presented schematically in

Figure 5.

3.5.1 A conceptual model

The four phases that are presented in the model equates to the classical Deming cycle of

management, namely Plan, Do, Check and Act. For effective management it is essential

that every element of what is planned can be checked in respect of its implementation as

well as its efficacy in achieving the overall management objectives. The ‘Act’ component of

the Deming cycle refers to action that is taken in response to the information provided

through the Checking process. In order for management to be effective, the information

��

provided through the Checking process should be clear, easy to assess, instructive and

consistent.

If the information provided through the Checking process upholds these principles then the

management responses or interventions will be much more effective than they would be if

the information were to be ambiguous and inconsistent. As such, a key principle of

management is that the effectiveness of actions is critically dependent on the quality of the

information provided through the Checking process. In a similar vein, the quality of the

information provided through the Checking process will be dependent on how well

Checking was planned for in the Planning process. The point to be made here is that none

of the four management elements will work well if they have not been properly considered

in the other management phases.

What is also critically important is that management must be geared towards outcomes. At

face value this may seem obvious but all too often management energy goes into inputs

without any real thought as to the outcome that will be achieved. As a matter of interest,

ISO14001 is becoming discredited by a perception (and indeed possibly more than just

perception) that an EMS can be certified as function of the inputs rather than the outcomes.

A focus within management on achieving outcomes is known as “objectives based

management” and it stand s to reason therefore that such management should be based

on objectives-based planning.

Objectives based planning is based on the principle of setting a clear set of objectives all of

which reflect a ‘new reality’ or outcome (viz. what the management effort seeks to achieve).

The actions defined in the planning process are then the actions required to meet those

outcomes. If the outcomes are clear and well defined then it is relatively straightforward to

define the necessary actions for achieving those outcomes. For management purposes

where the outcomes can be represented by indicators, such indicators become what is

Checked. The setting of targets for each of these indicators then provides an indicative

measure of whether the management objectives are being met , and that the targets can be

reviewed unambiguously and objectively on an ongoing basis.

At the risk of oversimplifying, the conceptual approach to establishing the principles that

should underpin compliance and enforcement within the context of an integrated

environmental management strategy is based on the principles outlined above. Stated

��

differently, what is required is a clear manner of measuring the degree to which the

objectives (argued here as being the NEMA principles) are being met or not over time. It

has been argued earlier that in general terms the challenge for compliance and

enforcement is less about enforcement and more about compliance measurement and

monitoring. This is not to say that enforcement cannot be improved (discussed separately)

but it is compliance monitoring that requires by far, the more significant improvement. If

information was available to the authorities more readily, consistently and meaningfully

than it is at present, the authorities could launch appropriate enforcement responses with

maximum effectiveness.

Figure 5: The concept of four discrete but inter-dependent integrated environmental

management phases as developed by the DEA.

In terms of principles, what is required for effective compliance and enforcement is

fundamentally a source of information that broadly but effectively characterizes the degree

to which the NEMA principles are being achieved or not. This information can be derived

from various sources, including the environmental management performance of the various

activities that have been authorized. If such information were to be available, legal

transgressions would immediately be made known to the authorities. At the same time the

authorities must be in a position whereby they can readily make sense of the information,

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determine the significance of the transgressions and launch in turn, into rapid and effective

enforcement responses. The conceptual model for effective compliance and enforcement,

which has been adapted from the DEA model, is shown in Figure 6.

Figure 6: The compliance and enforcement requirements presented as a function of

the DEA model (see Figure 5).

For effective compliance and enforcement, the Planning phase requires the detailing of

objectives, indicators and targets. In this case the objectives are the NEMA principles for

which indicators and targets need to be defined. For each indicator it will also be necessary

to define a baseline condition so that progress towards or away from the objective can be

assessed on an ongoing basis. The remaining part of the planning process is to define the

mechanisms needed to achieve the objectives. A variety of tools could be used for this

latter purpose including Strategic Environmental Assessment (SEA), Environmental

Management Frameworks (EMFs), EIA and potentially others.

The Doing component of management would see the implementation of the mechanisms

previously defined for meeting the overall objectives. The requirements in this management

phase are an activity-based environmental management function and provision for adaptive

environmental management. As has been argued previously, EIA is a solitary mechanism

for achieving implementation of Chapter 5, and provides almost nothing in respect of

��

compliance and enforcement.

The next management component (the Checking component) requires effective monitoring,

reporting, verification auditing and compliance monitoring by the authorities. As discussed

in the analysis section of this report an important element of implementation of any

authorised activity should be a clear set of reporting requirements. This reporting

requirement should be set up in such a way as to provide immediate notification to the

authorities of any failures to comply with the legal requirements governing the activities.

The Act component of management requires robust information that clearly indicates

transgressions of the law. Again, as has been previously described, the identification of

such transgressions would be followed by letters and notices following which the

prosecution could be initiated which would hopefully result in conviction. The Act

component of this management model is quite simply enforcement. The model shows what

is required in each other management components for successful compliance and

enforcement.

4. SYNTHESIS

A number of issues emerge from the analysis that has been presented. These issues

reflect both positively and negatively on the state of compliance and enforcement in South

Africa and as such, they are presented here as categories of strengths and weaknesses.

4.1 STRENGTHS

The following are deemed to be strengths in terms of environmental compliance and

enforcement in South Africa currently:

� The regulatory provisions for compliance and enforcement are generally adequate bar

the limitations imposed by section 48 of NEMA, which are discussed in more detail in

the following section (weaknesses);

� Compliance and enforcement functionality has been implemented and grown to a

point where convictions are routinely obtained;

� An annual report is available that summarises the state of environmental compliance

and enforcement in South Africa. The report presents a broad cross-section of

important indicators that can be used to track the success of compliance and

��

enforcement over time;

� There are organisational structures in place at national, provincial and to a lesser

extent local authority levels which have been specifically established for compliance

and enforcement; and,

� There is a spirit of willingness to grow and strengthen the compliance and

enforcement function, specifically in terms of support to the implementation of chapter

5 of NEMA, but extended as well to the SEMAs.

4.2 WEAKNESSES

The following are deemed to be weaknesses in terms of environmental compliance and

enforcement in South Africa currently:

� A significant number of activities that have the potential to impact negatively on the

environment are excluded from enforcement actions (prosecution specifically). These

activities are precluded by section 48 of the NEMA, which excludes authorities and

para-statals, and by the fact that it seems unlikely that mining decision-making will

ever move to the DEA. The degree to which mining activities will be regulated in terms

of their environmental impact, by an independent authority such as the DEA, is still to

be seen but it simply has to be better than the DMR;

� The challenge for compliance monitoring is severe and far exceeds the current

compliance monitoring capacity. This refers to both the capacity in terms of the

number of resources compared to the number of projects and activities that need to be

controlled, as well as the capacity to assess and interpret the compliance monitoring

information. In general terms it is considered that national DEA is relatively well-

organised for compliance monitoring, provincial governments relatively less so and

local authorities relatively least so;

� The coordination of the different authority levels is critically important to successful

enforcement particularly, but also to compliance monitoring. This coordination is

currently challenging and has the effect of protecting the compliance enforcement

process;

� For effective enforcement it is essential to obtain high-quality, consistent and

defendable information and to ensure that this information is routinely and

systematically available. It is considered that the reality of information availability is

well removed from this ideal;

� Compliance and enforcement action continues to be affected by political influence,

��

seemingly to the greatest extent at local authority level. Anecdotal evidence does,

however, suggest that the provinces and certainly even the DEA itself are not immune

from political interference;

� Compliance and enforcement appears to focus strongly( particularly at provincial level)

on the authorisation of listed activities rather than reviewing the performance in

respect of the conditions of authorisations. This is deemed to be a circumstance of

pursuing ‘low hanging fruit’ and may be appropriate for the current state of

development in terms of compliance and enforcement. However, for compliance and

enforcement to live up to its expectation of supporting the NEMA principles,

compliance and enforcement needs to dig deeper and be more effective in uncovering

environmental transgressions.

� The custodians of activities that have the potential to impact negatively on the

environment seem unconcerned about the risk of prosecution and indeed any form of

enforcement action. This is in stark contrast to their concern about conducting listed

activities (in terms of the EIA regulations) that have not been correctly authorised;

� It is currently extremely difficult for civil society to have any sense of the compliance

and enforcement function and whether or not it is being implemented effectively. The

Green Scorpion Hotline appears to be one of few mechanisms for reporting suspected

illegal transgressions. Ongoing environmental performance is generally reported

much too vaguely than is needed by stakeholders to have a proper understanding of

what is and what is not being achieved;

� There are no universally accepted indicators which, together with targets and a

baseline could be used to assess environmental performance amongst the range of

disparate activities in a consistent and effective manner; and,

� EIA continues to play a disappointing role in promoting the principle of authorising

projects provided these projects meet certain conditions during implementation. EIA is

rapidly becoming perceived as a mechanism for justifying certain activities rather than

for deciding upon their acceptability. The current compliance and enforcement function

is too weak to properly give effect to policing the conditions of authorisation, and

indeed broader scale environmental legal requirements.

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4.3 STRATEGY STATEMENTS/ PRINCIPLES

4.3.1 Overview

On the basis of what has been presented above, it is argued here that the implementation

of Chapter 5 of NEMA is weighted too heavily towards issuing an authorisation for an

activity rather than policing that activity. The EIA requirements have become heavily

bureaucratised demanding major resource inputs from the authorities and thereby

potentially limiting the availability of resources for compliance and enforcement actions.

This has been compounded by the more recent introductions of the NEM:AQA and the

NEM:WA, with both seeming to place additional emphasis on the EIA process rather than

necessarily shifting the balance towards compliance and enforcement. Given the

uncertainty of impacts during the project concept stage versus the certainty of impacts

following project implementation, it is argued that the balance needs to be shifted towards a

greater compliance and enforcement focus during project implementation.

The outcomes that needs to be achieved for effective compliance and enforcement are

detailed as follows:

� All activities that have the potential to impact on the environment are open to possible

prosecution by the environmental authorities, which of necessity includes state

departments and para-statals as well as all mining related activities;

� Enforcement functions are tactically and strategically applied to get the greatest

potential return in terms of reduced environmental impact;

� Enforcement functions are highly publicised so that they are widely recognised and

acknowledged;

� Information on the implementation of the NEMA principles is provided to the

authorities systematically, consistently and representatively and in a manner where it

is clear where there are transgressions of the law;

� The authorities are equipped to assess the information provided to them quickly and

effectively identifying activities that require enforcement action;

� A range of tools are available for planning purposes that are effectively co-ordinated

and integrated, and collectively cover a broad range of development planning;

� These tools have the necessary regulatory provision to support the effective use and

implementation;

� The tools used for planning are used effectively, not just in making decisions but also

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in setting clear performance prescriptions, as well as a baseline that can be used to

gauge future performance;

� EIA fulfils the roles for which it was originally conceptualized, which is fundamentally

decision-making. Decisions are made quickly and effectively on the basis of EIAs, and

the administrative (authority) process is limited and manageable;

� Information on environmental performance is widely available so that stakeholders

(civil society) have a sustained and clear picture of where performance is good and

where it is poor and are able to intervene effectively when no action is taken by the

authorities;

� Custodians of activities that have the potential to impact negatively on the environment

know that if they break the law that they are likely to be caught and punished; and,

� Self-regulation is an established and credible part of the overall compliance and

enforcement effort, whereby individual activities recognise and respond to possible

legal transgressions themselves without the need for authority enforcement action.

4.4 PROPOSALS

The required outcomes as previously detailed are ambitious and will not necessarily be

easy to implement. Nevertheless they do provide an overarching set of outcomes which are

argued here to be an effective framework for compliance and enforcement. As more

immediate short-term outcomes the following specific proposals are presented.

4.4.1 Improve EMPs

A key strategy for improving compliance and enforcement lies in radically improving the

structure, content and implementation of Environmental Management Programs (EMPs). It

is interesting to note that an EMP is sometimes interpreted to mean Environmental

Management Plan. There is a significant difference between a plan and a programme

where the plan suggests an intended set of actions whereas a programme implies

mechanisms for the implementation of what is in the plan.

An EMP should contain as a minimum the environmental management philosophy that will

be implemented during the implementation of the activity in question. This environmental

management philosophy should detail how mitigation has been identified, and how it will be

implemented and policed on an ongoing basis. The environmental management philosophy

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must also detail how performance will be reviewed on an ongoing basis and how corrective

action will be identified and implemented quickly and effectively. The environmental

management philosophy must also detail how links will be made to construction activities

as well as to the design process.

The EMP must clearly demonstrate the links as to how the project will be implemented, and

to how environmental management requirements will be linked to the mechanisms for

project implementation. It is simply ineffective to have an EMP as a standalone document

that must be reviewed and understood (and ostensibly implemented) by the project

personnel. It is incumbent on the designer of the EMP to make sure that the requirements

stated in the EMP are effectively linked to the mechanisms that will be used to implement

the project. For example, large-scale construction projects are typically implemented as a

function of so-called ‘engineering packages’. An effective EMP is one in which the

environmental management requirements that must be implemented are introduced into

the engineering package. In this manner the effective implementation of the engineering

package will de facto result in the implementation of the environmental management

requirement.

4.4.2 Set performance outcomes (not inputs) and ensure reporting against outcome

performance criteria

The overriding requirement in ensuring that EMPs fulfil their potential as an aid to

compliance and enforcement is to emphasise, strongly and unambiguously, performance

criteria for the activity in question. This performance criteria must be clearly expressed in

terms of indicators and targets. To support performance assessments there must be clear

mechanisms detailed, that will provide the necessary information against which the targets

and indicators can be reviewed on an ongoing basis. If performance criteria is developed

effectively then compliance and enforcement functions can focus quickly and effectively on

performance relative to the criteria, as opposed to being swamped by the detail of whether

mitigation has been implemented or not.

Performance criteria must be focused not just on environmental quality variables such as

air or water quality, but must also include measures of implementation. This is because

environmental quality variables reflect only historical performance. Any good management

function contains measures of both the performance as well as the implementation of the

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actions needed to achieve the performance. This means that in the event of environmental

quality performance being below expectation, it is immediately clear whether that poor

performance is a function of a failure to implement mitigation or a failure of the mitigation

itself. It stands to reason that good environmental management should be proactive and

focus on the effective implementation of the mitigation deemed best to achieve the

performance objectives, not just a blind resolve to implement whatever mitigation has been

defined.

4.4.3 Massively improve reporting to the authorities

It is argued here that a considerable performance improvement could be achieved if a

commensurate effort went into the development of the EMP and its implementation as

currently goes into the development of Scoping and Environmental Impact Reports. EMPs

must provide an effective bridge between the impact assessment process and

implementation of the activity in question. Performance expectations as well as the

performance itself must be readily available on an ongoing basis. Compliance monitoring

should be able to be effected without authorities having to visit the site necessarily. For this

to happen there must be a clear prescription in the authorisation as to the reporting

requirements expected of the developer/applicant. Enforcement action should be

implemented if the reporting requirements are not met. If an effective reporting regime can

be implemented that is properly structured from both the sender and receiver's point of

view, then any number of projects could be readily and effectively reviewed over a much

shorter period of time than is currently the case. In such cases the auditing function must

include inter-alia verification of the accuracy of reporting.

If systems were in place as discussed above, this would have the effect of placing a far

greater emphasis on the responsibility of the applicant to provide accurate and effective

reporting to the authorities. Where that is the case and there is meaningful response to the

reporting from the authorities, applicants would be forced to recognise their own non-

compliances and to take the necessary action to address those non-compliances without

necessarily being instructed to do so by the authorities. Reporting on environmental

management performance is not currently effectively driven by EMPs or by the authorities

themselves.

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4.4.4 De- bureaucratise EIA

It has been presented variously in this report, that EIA has become too many things to too

many people. What is expected of EIA goes way beyond what EIA as a mechanism can

ever hope to achieve. In addition to this is the fact that as the sole regulatory process for

authorising a whole suite of activities, EIA has become administratively heavy and is now

largely a bureaucratic administrative process rather than the effective decision-making

process that it should be. Again, as has been argued previously, the various amendments

to the EIA regulations have not appeared to materially change the effectiveness of EIA in

preventing impacts on the environment or indeed improve decision-making. For example,

the opportunity for exemption has been almost eliminated despite the fact that it is well-

recognised that there will always be ambiguity in the listed activities and that in some

instances a technical definition of an activity forces a full-scale EIA process where nothing

more than a basic assessment or even less is really required.

It is considered that one of the reasons for this bureaucratisation of the EIA process is a

severe lack of capacity on the part of the authorities. This is not offered as a criticism of the

authorities necessarily but rather as a suggestion for better directing the resources that are

available to the authorities. A single case officer may receive a multiplicity of applications

that have to do with multiple activities and multiple potential impacts on the environment. It

is simply unfair to expect of the official to be an expert in each and every one of these

cases. As such it is considered that if an effective review process was developed and

implemented that was outside the direct responsibility of the authorities, the authorities

could then focus on the decision-making requirements of EIA. This would significantly

reduce the workload of the individual case officers and create the space required for

continual improvement of the decision-making process.

4.4.5 Improve quality of authorisations

From the discussion with the compliance and enforcement function of the DEA it has also

become clear that the quality of the authorisations that are produced by the authorities in

many instances are not of sufficient quality. Effective compliance and enforcement requires

that these authorisations are carefully and effectively crafted so that they readily lend

themselves to the compliance and enforcement function. Again, if the authorities are freed

up from the burden of reviewing extensive and often complex EIA's, the time would be

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better spent in producing more effective authorisations where the conditions of

authorisation unambiguously convey compliance requirements in terms of defined

performance criteria, the mechanisms for ensuring that the information is routinely and

consistently gathered, and finally and most importantly, an effective reporting regime exists

between the applicant and the authorities.

4.4.6 Create mechanisms for highlighting political interference

The simplest way of highlighting political interference in preventing enforcement actions is

by improving the transparency of the environmental management performance of activities

that have the potential to impact negatively on the environment. Currently it is extremely

difficult for stakeholders to determine whether individual activities are meeting the

conditions of authorization and indeed the law. Were this information to be more readily

available, then political interference or intervention to prevent enforcement actions would

be much more obvious to civil society. Improving the transparency of environmental

management performance would also have the effect of placing additional pressure on the

authorities themselves to respond more decisively to poor environmental management

performance and possible transgressions of the law.

4.4.7 Create mechanisms for effectively reviewing performance reports and targeting

specific compliance monitoring

To ensure that improved transparency and reporting to the authorities results in the

necessary enforcement response, mechanisms must be created to allow the authorities to

quickly and effectively review and assess the performance reporting, identify specific

compliance problems and launch associated enforcement action.

4.4.8 Massively improve provincial and local authority compliance and enforcement

capacity

It almost goes without saying that massively improving provincial and local authority

compliance and enforcement capacity is an absolute prerequisite for successful compliance

and enforcement. Improving capacity implies both adequate numbers of personnel that

can fulfil a compliance and enforcement monitoring function, but also creating the skills and

competence needed to source information required for compliance monitoring, assessing

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and interpreting compliance monitoring information, and deciding on and pursuing the

necessary enforcement actions. The greatest challenge here is likely to be at local authority

level, where the capacity shortfall is at its most severe.

4.4.9 Create performance expectations for compliance and enforcement

By performance expectations it is implied setting targets for compliance and enforcement.

Such targets would include but not be limited to:

� number of activities targeted for compliance audit;

� number of enforcement actions; and,

� number of convictions as a percentage of enforcement actions.

4.4.10 Provide proper environmental regulation of mining

If the stated purpose of the environmental impact management strategy is the promotion of

sustainable development, it is clear that the exclusion of mining and mining related

activities significantly detracts from the achievement of that purpose. It is simply untenable

that decision-making on the acceptability of proposed mining activities lies in the hands of a

department whose stated purpose is the promotion of mining. It is very difficult to define

specific actions that would bring about a renewal of the process of amending the MPRDA

and moving decision-making on mining related activities to the DEA. It is clear that this is a

complicated and highly politicised arena but that should not allow meek acceptance of the

decision by the DMR to renege on the previous commitment to amend the MPRDA.

As a minimum there needs to be a concerted effort within the DEA to at least at a

departmental level establish and solidify a desire and commitment to regulate mining. It is

beyond the remit of this report on how to manage the political process so that a decision

that is in the best interests of sustainable development be taken. What is argued here is

that the process must be started by ensuring that the DEA themselves firmly and

unambiguously commit to the importance of themselves regulating mining at least from

environmental impact point of view, as opposed to that being done by the DMR, and then

launch the necessary processes to achieve this outcome.

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5. RISKS

The following risks may prevent the effective adoption of these proposed strategies:

� The inordinate amount of time taken for effective implementation of the strategies.

The track record in respect of implementing even relatively simple requirements

implies that the interventions will not be effected quickly;

� A greater reliance on self-regulation is unlikely to be well received by civil society who

would probably argue for a stronger policing function;

� The risk of political interference is ever present and, while, the measures proposed

here may help they will not in their own right provide the necessary guarantees that

political interference will be countered;

� The obstacles to overcoming regulation of the mining industry are severe and will

require significant effort to ultimately allow this to happen; and,

� The process of de-bureaucratising the EIA regulations will require changes to the law,

which is always a process fraught with risk.

6. CONCLUSIONS

Compliance and enforcement is a critical component of any management function. For

integrated environmental management the requirements are no less. But the challenge in

terms of achieving compliance and enforcement is considerably more complicated. During

the course of this review a number of positive aspects on the current state of compliance

and enforcement in South Africa have emerged. The most notable of these being the

current structure and function of compliance and enforcement within the National

Department of Environment Affairs. Associated with this compliance and enforcement

function within the DEA is a continued progression towards growing capacity and capability,

not just within the Department but also at provincial and local authority level. In addition,

annual compliance and enforcement statistics are made available in a report that provides

for effective review of the function.

Against this backdrop there is a range of areas which require improvement and in some

cases considerable improvement. These include ensuring that compliance and

enforcement can be brought to bear on all activities that have the potential to impact

negatively on the environment, most notably including the activities of para-statal

companies and mining operations. It has further been presented that, in general terms, the

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wherewithal for effective enforcement exists and that the real challenge lies in a radically

improving compliance monitoring. Effective compliance monitoring means that enforcement

can be applied in a goal directed manner that provides the maximum return for the effort.

The model that has been proposed here for effective compliance monitoring and

enforcement is to adopt the principles of general management, especially those presented

in the so-called Deming cycle of Plan, Do, Check and Act. Checking equates to compliance

monitoring, Acting equates to enforcement, but neither of these will be achieved without

adequate attention to the Planning and Doing components of the management cycle. For

compliance and enforcement to be effective in promoting the NEMA principles, it is

necessary to develop an unambiguous set of indicators with performance targets that can

be sustained and used throughout the management process.