Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The Centre for Environmental Rights welcomes the release of the eighth annual National Environmental Compliance and Enforcement Report (NECER) by the Department of Environmental Affairs (DEA) on 2 November 2015.

The NECER contains the environmental compliance and enforcement results for the year ending 31 March 2015 achieved by the DEA, 9 provincial environmental departments, 5 provincial parks authorities, SANParks and the Isimangaliso Wetland Park Authority.

While the Report covers compliance and enforcement of all environmental laws, the Centre for Environmental Rights responds primarily to compliance of industrial facilities. Our comments are informed by our report Full Disclosure: The Truth About Corporate Environmental Compliance in South Africa, published in September 2015.

The NECER 2014/15 acknowledges that Environmental Management Inspectors (EMIs, or Green Scorpions) are not always able to take prompt enforcement action pursuant to inspections – a longstanding criticism of the work of the Inspectorate. However, the Report is also sharply critical of companies and facilities that use claims of job creation and economic development to hide their failure to comply with environmental laws. The Report says:

“While it is recognised that these facilities contribute significantly to job creation and economic development, the nature and scope of their non-compliances tends to show that many of them often fail to reach the benchmark of sustainability required…These facilities need to move away from the often short-sighted approach where profits are elevated above all else and begin to explore ways to implement a sustainable triple bottom line approach; taking heed of environmental considerations and recognising the associated long term benefits”. (p. 3)

These comments also provide a glimpse into the challenging political environment in which EMIs conduct environmental compliance monitoring and enforcement.

1. Compliance inspections

Despite the increase in number of EMIs in 2014/15 (see 5. below), there has only been a miniscule (1.3%) increase in facilities inspected by EMIs (2889 facilities were inspected in 2014/15). Moreover, the 36% decrease in proactive inspections (inspections undertaken at authorities’ own initiative, usually as part of a strategic schedule), coupled with a more than 50% decrease in reactive inspections (inspections undertaken in response to an incident or complaint), is deeply concerning, and no explanation is given for this drastic change in compliance monitoring activity.

Moreover, the Report records a significant decrease in inspection reports finalised, from 2271 in 2013/14 to 1610 in 2014/15. The delay in finalising inspection reports was already apparent in the review of the NECERs (2008-2014) conducted by the CER as part of the assessments undertaken in preparing the CER’s recent report Full Disclosure. The impacts of these statistics are exacerbated by the fact that the Report notes a 41.5% increase in non-compliances detected during inspections – while this figure could reflect greater effectiveness in detection of violations, it could potentially also indicate a trend of worsening compliance amongst companies, which is inevitably exacerbated by delays in finalisation of inspection reports.

2. Administrative enforcement, and compliance by negotiation

While we are disappointed to see that the number of notices and directives issued in response to suspected violations increased by only 2.8% to 729 in 2014/15, the 60% increase in so-called “warning letters” issued is of greater concern. The Report itself ascribes this to a “tendency to use less formal enforcement mechanisms to achieve compliance”. In Full Disclosure, the CER highlighted the problem of these “less formal enforcement mechanisms” that create the pervasive impression amongst regulated companies that legal compliance is a matter of negotiation with authorities. This approach also undermines the deterrent effect of decisive enforcement action with punitive consequences (in other words, it does not discourage other companies from committing similar violations).

3. The Section 24G loophole

The Report notes that there was a 13% decrease in the value of so-called section 24G fines paid by companies. A section 24G fine is a fine payable by companies that have unlawfully commenced with listed activities without applying for authorisation (a criminal offence).

The CER has for many years argued that this provision in the National Environmental Management Act undermines compliance by allowing companies to avoid the costs of proper environmental impact assessments and to buy themselves out of criminal prosecution. These objections continue to be evidenced by our work for communities and civil society organisations, and also by Full Disclosure. The fact that these fines generated more than R14 million in ring-fenced, unallocated funds for EMIs also has the potential to incentivise departments to accept s24G applications and grant authorisations which otherwise should not be granted.

4. Criminal enforcement and the need for administrative penalties

We welcome the 8.5% increase in the number of criminal dockets registered. However, the 33% decrease in the number of criminal dockets handed to the National Prosecution Authority (from 379 last year to 253 this year) is deeply concerning, particularly because criminal enforcement is the primary tool available to EMIs to punish those who break environmental laws.

The report acknowledges that “there is room for improvement in the finalisation of investigations and subsequent convictions, bearing in mind that the criminal procedure process does take an extended period of time…”. In response to the challenges of criminal prosecution and the long delays in getting convictions (often with sentences that do not reflect the severity of the offence), the CER has for several years campaigned for the introduction of administrative penalties for environmental violations. We argue that administrative penalties – now common in laws like the Competition Act, the Companies Act, the Tax Administration Act and the Employment Equity Act – can be imposed more speedily, and since administrative penalties tend to be much higher than criminal fines, can ensure that penalties reflect the real cost of environmental violations to society (including health impacts of poor air, water and soil quality) and act as a proper deterrent.

We call on the Minister of Environmental Affairs to provide all necessary support for her Department’s development of administrative penalties for environmental violations.

5. Overall capacity

We are pleased to see that the total number of EMI has increased by almost 20% – there are now almost 2300 EMIs across the country. Having said that, most of these EMIs (1300 out of 2300) are field rangers in national and provincial parks, with a much smaller number available to do compliance monitoring and enforcement of pollution, waste, marine & coastal and biodiversity matters.

We welcome the fact that local authority EMIs have increased from 42 to 180 – this is particularly important considering that functions like air quality monitoring and enforcement are the responsibility of local government, who are the first port of call for local communities affected by poor air quality. In December 2014, the CER wrote to various MECs to encourage the designation of local authority EMIs.

The Report singles out a number of institutions with compliance and enforcement capacity constraints. A notable example is the Mpumalanga Department of Agriculture and Rural Development and Land Administration (DARDLEA), which only has 14 EMIs (contrast this with the Western Cape department which has 72 EMIs, and the Eastern Cape department with 52 EMIs). In 2014/15, DARDLEA registered only one criminal docket, despite reporting 62 non-compliance detected during compliance inspections. The CER has for some years contended that environmental compliance monitoring and enforcement in Mpumalanga province – dominated by coal mining and coal fired power generation and the devastating environmental impacts that result from these activities – is woefully inadequate. This Report gives some insight as to why that is.

6. Full Disclosure

The following companies appear in the 2014/2015 NECER in relation to compliance inspections and/or enforcement action in the industrial sector. Where these companies feature in the CER’s Full Disclosure report, we provide the link to the applicable section of the Full Disclosure webpage:

• AMSA, Vereeniging
• Hernic Ferrochrome
• AMSA, Newcastle Works
• BHP Billiton Metalloys
• Vanchem Vanadium Waste
• Vanchem Vanadium Products
• Evraz Highveld Steel
• Assmang, Cato Ridge
• Samancor Ferrometals
• Cape Gate Vanderbijl and Cullinan
• Sasol Secunda
• Eskom Matimba
• Eskom Grootvlei
• Goswell Landfill
• EnviroServ
• Sappi Saiccor (this facility does not feature in FD, but the company does)
• Calsiment
• King Shaka International Airport
• Chamdor Meat Packers (Pty) Ltd
• Mogale Alloys
• Glencore Lion Smelter Operations
• Polokwane Smelters
• Xstrata Wonderkop
• Samancor Tubatse Ferro Chrome
• Exxaro Base Metals: Zincor
• Transalloys

7. Elephant in the room: Where are DWS and DMR’s compliance and enforcement reports?

In South Africa, compliance and enforcement of the National Water Act are the mandate of the Department of Water & Sanitation (the so-called “Blue Scorpions”); and compliance and enforcement of environmental laws by mines are the mandate of the Department of Mineral Resources. Despite the EMIs publishing annual compliance and enforcement reports since 2007-8, neither the DMR nor the DWS has ever published compliance monitoring and enforcement results.

Earlier this year, the DWS undertook to publish its own compliance monitoring and enforcement report in October 2015, and the DMR undertook to incorporate its compliance monitoring and enforcement results into the NECER. Neither department has as of yet upheld these commitments.

As emphasised in our Full Disclosure report, the failure by these Departments to publicise their compliance monitoring and enforcement data makes it easy for companies with enormous detrimental impacts on the environment to hide the status of their often dismal environmental compliance. These impacts have devastating consequences for local communities living around mines and industrial facilities.

We call on the Minister of Water & Sanitation (who frequently emphasises the importance of enforcement) and the Minister of Mineral Resources to fulfill their promises and share their compliance and enforcement activities and results with all South Africans.

About the Centre for Environmental Rights (CER)

The Centre for Environmental rights is a non-profit environmental rights law clinic that helps communities to defend their Constitutional right to a healthy environment. Its attorneys apply the law to strengthen the voices of communities affected by environmental injustice, pollution and mining, and to hold both companies and the state to account for environmental degradation. The CER advocates and litigates for transparency, accountability and compliance with environmental laws.

Media Queries:

• Melissa Fourie, Executive Director, Centre for Environmental Rights [email protected] or 072 306 8888
• Tracey Davies, Head: Corporate Accountability & Transparency, Centre for Environmental Rights [email protected] or 071 600 0383