COMPLIANCE NOTICES COMPLIANCE NOTICES –– A NEW A NEW TOOL IN ENVIRONMENTAL TOOL IN ENVIRONMENTAL

ENFORCEMENTENFORCEMENT

Loretta FerisLoretta Feris

University of PretoriaUniversity of Pretoria

loretta.feris@up.ac.zaloretta.feris@up.ac.za

THE EVOLUTION OF THE EVOLUTION OF ENFORCEMENTENFORCEMENT

1.1. Command & controlCommand & control

2.2. Market based approachesMarket based approaches

3.3. Hybrid Hybrid -- IEMIEM

2 & 3 requires environmentally 2 & 3 requires environmentally sophisticated market placesophisticated market place

Thus: need for command & control Thus: need for command & control remainremain

Command & Control in SACommand & Control in SA

Preference for criminal sanctions, Preference for criminal sanctions, especially in “green enforcement”especially in “green enforcement”oo The “intentional transgressor”The “intentional transgressor”

Administrative remediesAdministrative remediesoo S31AS31A

oo S28S28

NEW ENFORCEMENT NEW ENFORCEMENT MEASURESMEASURES

2005 NEMA Amendment Act promulgated2005 NEMA Amendment Act promulgated

New enforcement section New enforcement section -- new Part 2 new Part 2 inserted into Chapter 7 of NEMAinserted into Chapter 7 of NEMAoo Creation of environmental management Creation of environmental management

inspectorsinspectors

oo Creation of new administrative remedy Creation of new administrative remedy ––compliance noticescompliance notices

EMIsEMIs

Minister/MEC may designateMinister/MEC may designate

Among officials employed by national, provincial Among officials employed by national, provincial or local governmentor local government

Functions:Functions:oo Monitor compliance with legislationMonitor compliance with legislation

oo Enforce legislationEnforce legislation

oo Powers: routine inspections, investigations, stop, Powers: routine inspections, investigations, stop, search, seizure, arrest, admission of guilt fines, s56 search, seizure, arrest, admission of guilt fines, s56 notice, compliance notices notice, compliance notices

COMPLIANCE NOTICECOMPLIANCE NOTICE

Overall aim = bring nonOverall aim = bring non--compliant actors into compliant actors into compliance with specific environmental compliance with specific environmental legislation or with the conditions of any permit, legislation or with the conditions of any permit, license or authorization they may holdlicense or authorization they may holdS31L(1): S31L(1): EMI may issue a compliance notice “if EMI may issue a compliance notice “if there are reasonable grounds for believing that a there are reasonable grounds for believing that a person has not complied with a provision of the person has not complied with a provision of the law for which that inspector has been designated law for which that inspector has been designated …; or with a term or condition of a permit, …; or with a term or condition of a permit, authorisation or other instrument issued in terms authorisation or other instrument issued in terms of such law”of such law”

ADMINISTRATIVE JUSTICE ADMINISTRATIVE JUSTICE REQUIREMENTREQUIREMENT

PrePre--compliance notice compliance notice -- a reasonable a reasonable opportunity to make representations to the opportunity to make representations to the EMI EMI

Unless Unless -- issuing of a preissuing of a pre-- compliance compliance notice will cause a delay resulting in notice will cause a delay resulting in significant and irreversible harm to the significant and irreversible harm to the environmentenvironment

REQUIREMENTSREQUIREMENTS

Compliance notice must set out details of Compliance notice must set out details of conduct constituting nonconduct constituting non--compliancecomplianceAny steps person must take and period Any steps person must take and period within which those steps must be takenwithin which those steps must be takenAny thing which the person may not do, Any thing which the person may not do, and period during which the person may and period during which the person may not do itnot do itProcedure to be followed in lodging an Procedure to be followed in lodging an objection to the compliance notice with the objection to the compliance notice with the Minister or MECMinister or MEC

NONNON--COMPLIANCECOMPLIANCE

NonNon--compliance = offencecompliance = offenceEMI report nonEMI report non--compliance to compliance to Minister/MEC Minister/MEC Revoke/vary the relevant permit, Revoke/vary the relevant permit, authorisation or other instrument which is authorisation or other instrument which is subject of the compliance notice; take subject of the compliance notice; take whatever steps necessary and recover the whatever steps necessary and recover the costs of doing so from the person who costs of doing so from the person who failed to comply; and report the matter to a failed to comply; and report the matter to a Director of Public ProsecutionsDirector of Public Prosecutions

MANDATEMANDATE

NEMANEMA

Specific environmental management act (SEMA)Specific environmental management act (SEMA)oo NEMA Biodiversity Act (NEMBA)NEMA Biodiversity Act (NEMBA)

oo NEMA Protected Areas Act (NEMPA)NEMA Protected Areas Act (NEMPA)

oo NEMA Air Quality Act (NEMAQA) NEMA Air Quality Act (NEMAQA) –– In futureIn future

They may also enforce specific provisions of They may also enforce specific provisions of NEMA or a SEMANEMA or a SEMA

NEMANEMA

S24 S24 –– environmental environmental authorisationsauthorisations

S28 S28 –– duty of careduty of care

S29 S29 –– hazardous workhazardous work

S30 S30 –– emergency incidentsemergency incidents

NEMBANEMBA

Permits: Permits: oo activities re threatened/protected speciesactivities re threatened/protected species

oo Restricted activities re alien/invasive speciesRestricted activities re alien/invasive species

oo bioprospectingbioprospecting

NEMPAA & REGSNEMPAA & REGS

Restricted access to enter, reside or Restricted access to enter, reside or perform activities in protected areasperform activities in protected areas

Restrictions on the operations of aircraftRestrictions on the operations of aircraft

Restrictions on prospecting and miningRestrictions on prospecting and mining

Restrictions on commercial and Restrictions on commercial and community activitiescommunity activities

SOME CHALLENGESSOME CHALLENGES&&

QUESTIONS QUESTIONS

THE CRIMINAL SANCTION THE CRIMINAL SANCTION PREFERENCEPREFERENCE

““Green enforcers” prefer the criminal sanction:Green enforcers” prefer the criminal sanction:oo Act fastAct fast

oo “intention”“intention”

oo Repeat offendersRepeat offenders

CN more appropriate for “brown enforcement”?CN more appropriate for “brown enforcement”?oo “Invested transgressor”“Invested transgressor”

NEMBA & NEMPAA NEMBA & NEMPAA –– more prone to criminal more prone to criminal sanction? sanction?

ACTING BEYOND THE ACTING BEYOND THE LEGISLATIVE MANDATELEGISLATIVE MANDATE

Can EMIs enforce other environmental Can EMIs enforce other environmental legislationlegislation

Mandate limited to NEMA, NEMBA, Mandate limited to NEMA, NEMBA, NEMPAANEMPAA

But S28(4) directive enforced by way of But S28(4) directive enforced by way of compliance notice compliance notice –– reach of 28 = widereach of 28 = wide

S28S28

““Every person who causes, has caused or may Every person who causes, has caused or may cause significant pollution or degradation of the cause significant pollution or degradation of the environment must take reasonable measures to environment must take reasonable measures to prevent such pollution or degradation from prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as occurring, continuing or recurring, or, in so far as such harm to the environment is authorized by such harm to the environment is authorized by law or cannot reasonably be avoided or stopped, law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or to minimise and rectify such pollution or degradation of the environment.”degradation of the environment.”BUT: Permit, license, authorization under BUT: Permit, license, authorization under another act breached? another act breached? –– see 31Lsee 31L

POWER TO ISSUE CNPOWER TO ISSUE CN

Creation of hierarchy:Creation of hierarchy:oo CN can only be issued by grade 1 EMI = CN can only be issued by grade 1 EMI =

administratorsadministrators

oo Monitoring, investigations, inspections = Monitoring, investigations, inspections = grade 2grade 2--44

oo Are administrators appropriate to issue CN Are administrators appropriate to issue CN ––removed from situation?removed from situation?

CONCLUSIONCONCLUSION

EMIs & CN advance enforcement in SAEMIs & CN advance enforcement in SACN adds to existing administrative toolsCN adds to existing administrative toolsAdvantageAdvantageoo Unlike directive Unlike directive -- clearly spelled out procedureclearly spelled out procedureoo Used in range of scenariosUsed in range of scenariosoo PenaltyPenalty

But: But: oo will it be used to enforce NEMBA & NEMPAA, or will it be used to enforce NEMBA & NEMPAA, or

only really effective for NEMAQAonly really effective for NEMAQAoo Uncertainty re scope of mandateUncertainty re scope of mandate