Suck it up, we’re going green

2010-02-15 00:00

“IN the past environmental concerns and regulations were seen as the preserve of tree huggers and bunny lovers but this is no longer the case,” says attorney Dean Nortje. “They were seen as the ‘nice to haves’, but those days are over, these are the laws and you need to comply.”

Nortje and his colleague Selvan Subroyen of the Environmental Law Department, SHE Compliance Unit (the SHE stands for safety, health and environment) at Shepstone and Wylie Attorneys, were speaking at a recent Pietermaritzburg Chamber of Commerce seminar on amendments to the National Environmental Management Act (Nema) and issues arising from the Waste Act and the Air Quality Act.

“These environmental laws are here to stay,” says Nortje. “They are increasing and they are more onerous. Literally on a monthly basis new regulations and drafts are being tabled.”

Compliance with these laws is not only good corporate practice, according to Nortje, but it’s cheaper to be green and conforming to the regulations ultimately leads to greater profitability. Compliance also avoids penalties. In the past penalties were little more than a slap on the wrist. “But now the penalties are to be taken seriously,” says Nortje. “For example, a fine of R10 million or a 10-year prison term can be applied for a first offence under the new Waste Act.”

Not only have the penalties increased but the various amendments also target individuals — directors, managers and employees — so offenders can no longer hide behind a faceless company.

Outlining the implications of the 2009 amendments to the National Environmental Management Act of 1998, Subroyen says they “strengthen the trend to greater compliance and greater accountability”. They also plug some of the loopholes in the 1998 act. For example, when the act was used as the basis to order Gencor to clean up an old asbestos mine in the Bareki Tribal Authority in North-West Province, it objected on the grounds that Nema only came into effect in 1999 and therefore the company could not be held responsible for activities prior to that date. “How could [it] be acting unlawfully at a time the act didn’t exist?” said Subroyen. “But that is no longer the case. A retrospectivity clause now says that even if the contamination occurred before 1999 you are liable.”

Another section of the act criminalises certain actions or omissions leading to pollution. The penalties range up to a R1 million fine or one-year imprisonment or both. “It is also now a criminal act to fail to report an incident that could have public-health implications,” says Subroyen. “Failure to do so invites similar penalties.”

How is all this to be enforced? Enter the Green Scorpions. “And they mean business,” says Subroyen. “There are now 650 environmental management inspectors (EMI) and they can pitch at anytime and do as they please.”

Under the amendments to Nema an EMI must produce ID on demand, other than that they are free to act, they can take photographs, conduct an investigation or do an inspection. Nor do they require a warrant. “In the past they may have been asked to get a warrant and in the meantime the company did a quick cleanup,” said Subroyen. “Now they can enter and inspect without a warrant.”

The Nema amendments have also increased the liability of the employer and employees. Individuals can be held directly liable and cannot rely on being bailed out by their company. According to the act, whenever a manager, agent or employee does or omits to do an act on behalf of his employer, the employer shall be guilty of the offence if he did not take reasonable steps to prevent the act or omission in question. Nortje added: “It is no longer a defence to say ‘I did not cause the contamination’.”

Nortje says much of the Waste Act is still in process. “Although the new regulations have yet to be promulagated there will be norms and standards set at a national level,” says Nortje, “and, although there are none yet, perhaps also at provincial and municipal levels.”

The act allows for the appointment of national, provincial and municipal waste management officers responsible for co-ordinating waste management while integrated waste-management plans are to be prepared at national, provincial and municipal levels.

These plans and regulations will largely conform to the three-tier hierarchy of waste management: reduce the amount of waste that is generated; re- use, recycle and recover; treat and dispose of safely.

The responsibily for treatment and disposal now extends from “from cradle to grave,” says Nortje. “You are responsible for it right to the point of its disposal. You can’t blame the contractor who took it away. You must do regular checks of your waste contractors’ permits and licences.”

A list of waste-management activities that have, or are likely to have, a detrimental effect on the environment are to be gazetted in the near future. Any of these activities, together with those published in July 2009, require a licence. Doing so without a licence sees you liable, on first conviction, for a maximum fine of R10 million or maximum prison term of 10 years or both.

Amendments to the National Environmental Management: Air Quality Act will see ambient air quality and emission standards introduced at national, provincial and municipal levels. Once again a set of listed activities will require a licence. Currently, these activities and their associated emission standards are at draft notice stage.

“You need to know and understand how all these environmental laws apply to your company,” says Nortje, “and you need to monitor your company’s compliance. This is not a side issue, this isn’t something that doesn’t come into the boardroom. Noncompliance means your organisation can’t survive.”

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