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IS YOUR LAND GREEN OR BROWN
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ENVIRONMENTAL MANAGEMENT AND REHABILITATION OBLIGATIONS IN SOUTH AFRICAN LAW RELATED TO THE CONDITION OF LAND AND PROPERTIES UNDER YOUR CONTROL "The contamination of land and our scarce water resources may well have serious environmental, health and economic implications for the land owner, occupier, manager and user, not to mention the polluter". This is the view of Ritchie Morris, an environmental hydrogeologist with over 15 years of experience in the assessment and management of environmental concerns impacting land and water in the southern African region. Terry Winstanley, an environmental lawyer of 10 years standing, notes that, "in the context of this article, this message is particularly relevant to the property manager who, depending on the contract with the land owner, may be equally responsible for the state of the land in terms of national legislation". This article explains responsibilities that lie with the owner, occupier, user or person in control of land in terms of the National Water Act (NWA) (No.36 of 1998) and the National Environmental Management Act (NEMA) (No. 107 of 1998). Case studies are referred to and suggestions are made on a few practical approaches to ensuring that the integrity and value of one's land is maintained and that unforeseen liabilities will not materialise. The establishment of a democracy in South Africa has seen the introduction of new and better legislation to protect our natural resources, including land and water. However, the situation is such that not everyone is familiar with this legislation, particularly the practical issues around what should be done to protect the value of land and our water resources, both surface and groundwater. Consequently, land owners, users, managers and even the regulatory authorities, especially at the local government level, are not au fait with who is responsible for what in terms of both national legislation and local government requirements. This is particularly so when land is leased, sub-leased, sold or acquired and developed. The primary statutes regulating the remediation of environmental damage are NEMA, and in a reciprocal and complimentary manner, the NWA. NEMA provides that every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent that pollution or degradation from occurring, continuing or recurring (section 28). Insofar as the harm to the environment is concerned, every person who causes it must take reasonable measures to minimise and rectify the pollution or degradation. The NWA contains very similar provisions to those in NEMA. It provides as follows (in section 19): A owner of land, a person in control of land or a person who occupies or uses the land on which-
Both NEMA and the NWA give examples of reasonable measures that could be required in order to fulfil the duty of care. Case studies have shown that the regulators are not prepared to accept ignorance of the condition of the land as an excuse for a dirty site, nor would that be legally competent in most cases, since the law imposes strict (no fault) liability in some of the circumstances discussed below. Under NEMA and the NWA, in the event that a person who has received a directive to prevent or remediate pollution fails to comply, the Director-General or provincial Head of Department or the Catchment Management Agency may take reasonable measures to remedy the situation and then recover all costs incurred as a result of it acting, from any or all of the following persons-
Essentially what the above is saying is, 'íf you are instructed to clean-up your land or land which you previously owned, controlled or occupied and don't do so, the regulators can take the steps presented, and you are liable for the costs'. How your environmental Rands are spent is then out of your control. Terry Winstanley, explains further, "if more than one person is liable for these costs, the regulatory authority must, at the request of any of those persons, and after giving the others an opportunity to be heard, apportion the liability, but the apportionment does not relieve any of them of their liability for the full amount of the cost." The implications of the "reasonable measures" provisions for the land owner/manager/user are wide-ranging. As a party that either owns, or has the right to use or control the site under review, the land owner/manager/user could potentially incur liability for at least a proportion of the costs of rehabilitating pollution on the site if ordered to do so. The land owner/manager/user's defence to such a claim would be that it took reasonable measures to prevent the pollution. Unless it does so it will be unlikely to succeed in this defence. Terry explains that, "It is important to recognise that both NEMA and the National Water Act are retrospective in effect, that is they apply even though the polluting activity occurred before the Acts came into force. Because of this, any acquisitions of property which may have been polluted in the past should be carefully considered before they are purchased or leased". Ritchie notes a case where a small industrial site in an older part of Cape Town was being used for a components recycling operation. The site was being let by a property management company to the lessee on behalf of the owner. The owner never visited the site nor had any knowledge of the nature of the operation occurring on the site. A 'downstream audit' of the site by the industry group whose containers pass through the site revealed an extremely degraded condition of the land and high potential for impact of the shallow groundwater in the area. Stormwater discharge to street gutter revealed contaminants exceeding local municipal effluent guidelines. The situation was brought to the attention of the property manager who informed the owner. The occupier's lawyer issued a letter to the effect that they would not accommodate any further industry inspection at the site. Shortly thereafter, the occupier closed the business, moved off the site and started a new operation in another part of Cape Town. No detailed assessment of the condition of the land has occurred other than some cosmetic surface clean-up having taken place. Coincidently, the occupier had health problems synonymous with the types of chlorinated compounds being removed from the containers handled at his site. In all likelihood, the property management company would be equally liable for the current condition of this site. Ritchie makes an important statement for the property manager when he notes that, "it is not always the large national or international company that is the culprit when it comes to land and water degradation, but rather the many smaller operators who do not have the knowledge or resources to manage contamination". Whether a small or large company, there are several tools in the environmental management box that can be used to reduce the potential for impact and place responsibility on whichever party required. Ritchie mentions the following, environmental due diligence audits - especially those undertaken at the property acquisition phase, annual liability assessments, ad hoc inspections, preliminary screening assessments and detailed site assessments which would involve intrusive work requiring sampling and analysis. Whatever, the case, it is possible to adapt an assessment methodology for the situation needs. Ritchie notes a useful tool that can be incorporated into the property manager's portfolio of services, this being the concept of 'Environmental Hazard Ranking', which enables the property manager to build-up a database of areas of ranked risk in terms of potential environmental liability. In addition, it is also possible to rank one area or property type against another. Both Ritchie and Terry conclude that 'by sitting tight and doing nothing, a company with environmental liabilities may be the target that the regulators decide to shoot next'. They highlight from experience that it is far more cost effective for companies to be proactive when it comes to management of contaminated land than to be reactive. Many incentives exist to manage the environmental condition of land. Besides the legal requirement, ethically and most importantly, it is merely DOING THE RIGHT THING TO REDUCE LONG-TERM COST. Ritchie runs a specialist environmental consultancy, Morris Environmental & Groundwater Alliances (MEGA), Tel +27 021 790 5793 or info@megateam.co.za & www.megateam.co.za. Terry practices in the firm Winstanley, Smith and Cullinan Inc., Tel +27 021 462 3688 or win@law.co.za |
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ENVIRONMENTAL RESPONSIBLITIES IN TERMS OF CONTAMINATION AND THE REHABILITATION OF LAND: OBLIGATIONS IN SOUTH AFRICAN LAW. The primary statute regulating the remediation of environmental damage is the National Environmental Management Act (NEMA) (Act 107 of 1998). It provides that every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent that pollution or degradation from occurring, continuing or recurring (section 28). Insofar as the harm to the environment is authorized by law or cannot reasonably be avoided or stopped, every person who causes it must take reasonable measures to minimize and rectify the pollution or degradation. Without limiting the duty of care, NEMA identifies particular persons on whom the Act imposes an obligation to take reasonable measures. They include an owner of land or premises, a person in control of land or premises or a person who has the right to use the land or premises on which or in which -
NEMA gives examples of reasonable measures that could be required in order to fulfill the duty of care. These include measures to investigate, assess and evaluate the impact on the environment, and ceasing, modifying or controlling any act, activity or process causing the pollution or degradation. NEMA provides further that the Director-General or the head of provincial Department responsible for the environment may, after consulting any other organ of State concerned and having given an opportunity to affected persons to inform him or her of their relevant interests, direct any person who fails to take the measures required under the general duty of care, to-investigate, evaluate and assess the impact of specific activities and report thereon;
In the event that a person who has received a directive fails to comply, the Director-General or provincial Head of Department may take reasonable measures to remedy the situation and then recover all costs incurred as a result of it acting, from any or all of the following persons-
Costs may also be recovered proportionally from any other person who benefited from the rehabilitation measures undertaken by the Director-General. The implication of these provisions for (the land owner/manager/user, etc) is that they could in law either be required to clean up the effects of the polluting activities, or this could be done by the authority with jurisdiction and the costs could be recovered from (the land owner/manager/user, etc) (or its shareholder because of the wide manner in which NEMA casts the net of liability). Environmental rehabilitation obligations under the applicable water law The National Water Act (Act 36 of 1998) contains very similar provisions to those in NEMA. It provides as follows (in section 19): "(1) A owner of land, a person in control of land or a person who occupies or uses the land on which-
(2) The measures referred to in sub-section (1) may include measures to:
A catchment management agency (which is one of the institutions established under the National Water Act) has similar powers to those of the Director-General or a provincial Head of Department acting under NEMA. The agency may give specific instructions to ensure that any person who failed to take the measures required under sub-section (1), remedies that situation. In the event that the catchment management agency remediates the situation itself, it may recover all costs incurred as a result of it acting, jointly and severally, from the following persons:
If more than one person is liable for these costs, the catchment management agency must, at the request of any of those persons, and after given the others an opportunity to be heard, apportion the liability, but the apportionment does not relieve any of them of their joint and several liability for the full amount of the cost." The implications of the "reasonable measures" provisions for (the land owner/manager/user, etc) are wide-ranging. As a party that either owns, or has the right to use or control the sites under review, (the land owner/manager/user, etc) could potentially incur liability for at least a proportion of the costs of rehabilitating pollution on the site is ordered to do so. (The land owner/manager/ user’s, etc) defense to such a claim would be that it took reasonable measures to prevent the pollution. Unless it does so as a matter of urgency, it will be unlikely to succeed in this defense. It is important to recognise that both NEMA and the National Water Act are retrospective in effect, that is they apply even though the polluting activity commended or occurred before the Act came into force. In which case, any new acquisitions of property, which may have been impacted in the past should be carefully considered before they are agreed to. |
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| GROUNDWATER PROTECTION
"Pollution of our scarce groundwater resources may have serious environmental, health and economic implications for both the groundwater user and the polluter". This is the view of Mr Ritchie Morris, an environmental hydrogeologist who specialises in industrial contamination. With a national population growth rate in the region of 2.8% and the predication that the population will double in 30 years, South Africa has little option but to ensure the effective use of all available water supplies. Traditionally, groundwater has formed the main source of supply to the agricultural community, rural village and towns, e.g. those in the Karoo. In recent years, however, groundwater has become increasingly important as a sole or supplementary source of supply to many larger towns and coastal holiday developments. Synonymous with most developing countries, it can be expected that groundwater will continue to be increasingly used, since it is often the cheapest and safest source of potable water supply. However, also synonymous with most developing countries are the needs for improvement in sanitation, waste and effluent treatment and disposal. Mr Morris warns that many towns, especially the smaller coastal holiday resorts, which rely on groundwater as their sole source of supply and which are becoming increasingly inhabited by permanent and retired residents, may potentially be sitting on a time-bomb as far as the threat of groundwater pollution is concerned. He cites common sources of groundwater pollution as being from:
Contamination of an aquifer, as a result of seepage from any of the above, will impair its usefulness as either an existing or potential source of domestic supply. Similarly, incorrect and over-pumping of a coastal aquifer may cause the intrusion of saline groundwater, thus also rendering it useless as a source of domestic supply, albeit on a less permanent basis. The Department of Water Affairs and Forestry (DWA&F) estimate that over 400 towns use groundwater for domestic purposes. The loss of domestic supply due to groundwater pollution would have severe economic, social and health implications for many of these towns as new or alternative sources of supply would have to be developed. Morris warns that just because an existing supply is not polluted, does not mean that it would not be polluted in the future, for existing pollution in the form of a contaminant front (or plume) may not have had time to migrate to reach the point of extraction (i.e. borehole, spring or well field). Experience in the United States, where approximately half of the population is dependant on groundwater for its drinking water supplies, has shown that cleanup of groundwater pollution is virtually impossible, besides which it is extremely costly and takes time. Clearly then, "prevention is better than cure" and therefore, all groundwater users, whether they be individual farms using a single borehole, or municipalities operating a larger well field, should have a groundwater operating and management procedure in place. Morris stresses however, that for the "prevention syndrome" to be accepted and adopted by industry and the public at large, greater emphasis needs to be placed on education rather than on ineffective and costly remedial actions. In adopting the prevention approach it is important that developers and town planners address groundwater pollution problems in the early planning stages i.e. existing and potential supply aquifers should be identified and categorized according to aquifer protection needs before land is zoned or allocated for a particular use. In the past, inadequate consideration has been given to aquifer protection when carrying out urban planning. Fortunately both the Water Research Commission and the DWA&F have identified groundwater pollution problems as a priority issue and programmes have recently been initiated to address these problems. Hopefully these will be accompanied by more stringent and clearly defined legislation and policing. Furthermore, should "The Polluter Pays" policy be adopted in this country, as is likely, then those industries and organisations which are guilty of allowing pollutants to seep into underlying aquifers may find themselves having to spend huge sums of money on remedial measures. Again, in economic terms, experience elsewhere in the world has shown that "prevention is far cheaper than cure". Morris points out however that the introduction of new legislation and more stringent pollution control standards on their own will be ineffective if not applied in an appropriate manner. "More importantly", he states, "is the need for pro-active support from the groundwater academic and professional fraternity who should initiate education programmes to all sectors of the community ranging from industry to the person in the street or on the farm". Education and awareness he feels, can play an important role as a preventative measure, e.g. the back yard mechanic must know why he should not discard his old engine oil into the drain or a hole in the garden. He needs to be told the consequences of this, both economic and physical, not just that he mustn't do it. Industry can play an important role in two ways, firstly, by setting the example and conforming to prescribed standards, and secondly, through internal training and educating of employees as to the need for groundwater protection. This is especially relevant where both the industry and the community rely on groundwater as a source of supply e.g. Atlantis. Environmental awareness training could form an important component of industry's responsibility in terms of the Skills Development Act. Central government and local authorities on the other hand have an important role to play in policing and ensuring that offenders are brought to book, "But", points out Morris, "their task will be a continual problem, requiring large financing for sufficient inspectors, not to mention the legal cost of bringing offenders to book". The adaption of several acronyms, previously mentioned, into one which is relevant to both economics and groundwater protection, and which is most applicable to the task at hand, would be: "Educate to prevent, is a better cure than, remediate with money ill-spent". (Click here to view a scan of the actual article - 298kb) |
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| PROTECT SURFACE
AND GROUNDWATER VOLUNTARY CLEANUP OF CONTAMINATED SITES SAVES MONEY By Ritchie Morris, Environmental Hydrogeologist. Any company, property owner, site user or occupier of land that is contaminated holds liability in terms of South African national environmental legislation, especially where there is potential for water - both surface and groundwater, to be polluted. This liability could affect not only the directors of the company, who could be prosecuted in their personal capacity, but could also seriously affect the company's bottom line and the financial return to shareholders. By sitting tight and doing nothing, a company with environmental liabilities may become the target regulators decide to shoot. "It is far more cost effective for companies to be proactive when it comes to management of contaminated sites than to be reactive", so says Ritchie Morris, an environmental hydrogeologist who specializes in industrial contamination, environmental liability and merger and acquisition environmental audits. Morris explains that within the new national legislation, such as the Water Act (Act 36 of 1998) and the New Environmental Management Act (Act 107 of 1998), should a company responsible for contamination not take the necessary steps to correct the situation so that there is no unacceptable environmental degradation, then the regulatory authorities may appoint an independent group to clean-up the site. The costs for cleanup will be recovered from the persons (company) or group of persons responsible for causing the problem in the first place. Essentially this means that the ball is taken out of the hands of the company and they loose control over how their "environmental Rands" are spent. Voluntary cleanup can pay, even if a company doesn't philosophically believe it's the right thing to do. Morris explains that, "voluntary cleanup adds shareholder value". Not knowing the scale of the potential environmental liability and the risks associated, such as financial, human health, safety, etc, means that companies do not have control over their bottom line and profit projections. Waiting for regulators to pounce and possibly take over a contamination management programme would cost five to fifteen times as much as voluntary cleanups today. Calculation has factored in inflation, increased transaction and paperwork, negotiations and legal fees typical of an enforcement-led process. Voluntary cleanups enable a company to prioritise environmental issues following an environmental hazard assessment and risk based approach. "The list of incentives for companies to get going on voluntary cleanups is long," explains Morris. "This includes: speed, cost, freeing idle assets, controlling the process, getting rid of worrisome liabilities and most importantly, doing the right thing". |
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