It’s been said that South Africa has some of the best environmental legislation in the world … in principle. However, the vagueness in the National Environmental Management: Waste Act, 2008 (Nemwa) in terms of reporting requirements for contamination levels puts industry between a rock and a hard place.
At a recent client workshop on contaminated land, held by global environmental engineering consultancy Golder Associates, Kenneth Cameron, a director at MacRobert Attorneys who heads the Environmental and Mining Division, said, “‘Contamination’ has a very specific definition in the Act. If we lose sight of that definition, we lose sight of what we’re trying to achieve and the risks inherent in reporting.”
‘Contaminated’ in Nemwa Part 8 of Chapter 4 is defined as: … “the presence in or under any land, site, buildings or structures of a substance or micro-organism above the concentration that is normally present in or under that land, which directly or indirectly affects or may affect the quality of soil or the environment adversely”.
Section 36(5) requires an owner of land that is “significantly contaminated”, or the person undertaking “an activity that caused the land to be significantly contaminated” to notify the Minister of Environmental Affairs and the MEC.
However, government doesn’t appear to have given clarity on what either ‘normal concentration’ or ‘significant’ contamination is. Also, there is seemingly no protection afforded to companies that disclose contamination information under Section 36(5).
“Proceed with extreme circumspection – that’s the message,” says Cameron. “When you consider reporting in terms of section 36(5), the governance red flags must go up … and you have to think very carefully about what you want to achieve as opposed to what you may achieve unwittingly.”
He says that effectively, when reporting in terms of section 36(5), you’re declaring that “the contamination on my property or where I operate exceeds the concentration of what would be considered ‘normal’ for that property or operation. In fact, given the wording of the section, you inherently also report that you exceed that mark by a significant margin.”
“What is normal for that area? Would that be a benchmark? What if the baseline value of your property is already high? Or if it’s been elevated since before you started operating?” Cameron asks.
Industrial operations also require any number of environmental authorisations before they may begin operations, which may include water and waste management licences, environmental management programmes among others.
Cameron questions whether elevated levels of contaminants invariably translate to ‘contamination’ as defined. A water use licence for effluent storage, for example, may state the concentrations of contaminants that need to be monitored and includes the limits that must not be exceeded, even some distance from the dam or earth-cell.
“Is that not a localised norm that has been set? Should I now report that I have contaminated land merely because I know there are elevated levels of monitored substances in the surrounding soil, when I’m still in compliance with the norms set by the licence?” he asks.
Norms or normal values for a property are also not necessarily explicit. Would an ‘Industrial 1’ zoning or a mining right not carry an implicit acknowledgement that an undefined quantity of contaminants may infiltrate topsoil on high activity areas? “Is the site norm not established by all these factors?” he asks. “There is to my mind a substantial difference between ‘contamination’ in the ordinary sense, and the ‘significant’ exceeding of ‘normal’ values.”
He suggests companies also consider the criminal, financial and personal liability implications of reporting under section 36(5).
Criminal offenses and extended personal liability
Cameron points out that certain provisions in the National Environmental Management Act 107 of 1998 attach criminal liability to contamination, such as sections 49A(1)(e) and (f). These provisions virtually mirror the definition of ‘contamination’ in the Nemwa.
He adds that reporting under section 36(5) is an apparent acknowledgement of the significant exceeding of whatever could be deemed acceptable for that site. Such a report therefore arguably also alludes to negligence on the part of the operating entity in principle.
It is also important to note that these violations are part of the suite of transgressions in terms of which directors, managers and employees can be held personally liable for the transgression of the operating company.
“The state therefore created an offence, but defined the offence so subjectively and vaguely that it’s most often virtually impossible to determine whether you’ve committed this offence. Then it imposes a requirement to notify the authorities when you’ve committed the offence. This notice not only exposes the company to substantial potential criminal and financial liabilities, but extends those liabilities to its directors, managers and employees in their personal capacity”.
Yet, it is also a criminal violation not to report in terms of section 36(5), “in spite of the Constitutional right against self-incrimination. Therefore, if you elect not to report for fear of unsubstantiated self-incrimination, the company runs the further risk of criminally liability for not doing so in any event, based on the same vague and subjective parameters. This liability risk is likewise also extended to directors, managers and employees in their personal capacity in terms of section 34 of the Nema,” he says.
Subsequent to a notice in terms of section 36(5), the Nemwa provides that the owner or operator is required to have a site assessment conducted “by an independent person, at own cost, and to submit a site assessment report to the Minister or MEC within a period specified in the notice”. Cameron states that this report may subjectively (and possibly incorrectly) come to a conclusion that the site is ‘contaminated’ for purposes of the Nemwa. It becomes virtually impossible to retract an acknowledgement under section 36(5) once a site assessment has been completed.
Under section 40, the ‘contaminated’ property may not be transferred without informing prospective buyers that land is contaminated. One can hardly provide a contamination notification under section 36(5), but fail to notify a potential buyer. Since the obligation to report under section 36(5) falls on both the landowner and the impacting occupant equally, the interplay between landlord and tenant becomes tricky, he says.
If a property is declared a remediation site (a likely consequence of reporting under section 36(5)) the Registrar of Deeds is required to register the property as a remediation site in terms of the Deeds Registries Act. This has substantial implications for the financing industry in respect of secured loans, not to mention instances where the financier also has equity exposure.
Remediation orders must also be executed before property is transferred – as such, any commercial transactions in play are at risk, says Cameron.
Why Part 8 ‘fails’
“In my opinion, Part 8 of the Nemwa is fundamentally flawed,” Cameron says.
“Firstly, it arguably violates the Constitutional right against forced self-incrimination. Other than similar provisions elsewhere, no indemnification is offered in the Nemwa. It simply does not make sense to have to risk compounded criminal sanctions as a direct consequence of assisting the authorities to address environmental issues.”
“Secondly, it fails the test for legality. It is established law that if one cannot determine what, when and how you need to act in terms of legislation with a reasonable degree of certainty, then that legislation could, and should, be set aside. That test is even more pronounced when the provisions carry criminal penalties.
“Environmental legislation is seldom taken on review, because clients want to engage with government in a positive manner. But you can see that in not doing so, we also perpetuate certain risks. In the meantime, we have to deal with the legislation as it stands,” he says.
What is to be done?
“Although dealing with the challenges of Part 8 is not simple”, Cameron says, “I do not propose non-reporting simply because the legislation is vague and confusing. However, proceed with substantial caution and diligence.”
Different owners and industries have different circumstances, risk profiles and risk appetites. As such, there are varying factors to bear in mind when reporting in terms of Section 36(5) is considered. Cameron puts forward the following considerations:
- Understand with “a reasonable degree of certainty what’s going on in the properties in question”;
- Obtain advice on the natural background values inherent to your area or property;
- Whether you’ve exceeded a “norm” and whether that contamination is of legal significance, is a much broader question than can be ascertained by a physical site assessment alone;
- Shareholders and management should be well advised of the potential consequences of both reporting and not reporting. This include criminal implications as well as knock-on personal liability risks in both instances;
- If you suspect that the use of the property in question may fall within the legal norms and boundaries set by authorisations, zoning and other site specific considerations, consider a highly contextualised communication that highlights the conceptual uncertainties of the definition and section 36(5) itself;
- Consider the implications for the occupier or owner and any lease, sale or other legal instrument attached to the use, ownership or financing of the property.
“In any event, obtain legal advice. Be specifically aware that if you obtain legal advice from the relevant authorities, that advice may not protect your company or its directors and managers if it is inaccurate. An environmental specialist that does not appreciate the conceptual and legal challenges of Part 8, will also not do you any favours,” says Cameron.
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Sunday was the first day that water rationing kicked in at a number of municipalities in KwaZulu-Natal in a bid to conserve water resources in the province.
The drought is the worst that has been experienced by the province since 1992, Co-operative Governance and Traditional Affairs MEC Nomusa Dube-Ncube said.
Dube-Ncube last week warned that the province was suffering water shortages and that mandatory water conservation measures would have to be implemented.
eThekwini Municipality (Durban and surrounds); Ilembe (Stanger, Ballito, Ndwedwe); uThungulu (Richards Bay, uMfolozi) and Mtubatuba will be most affected.
In a statement released on Sunday, Dube-Ncube said: “Today some municipalities will commence with radical water rationing programmes as part of managing the available water resources.
“Water rationing means that water production will be reduced and, as a result of this water reduction, less water will be supplied to municipalities. This will have a knock-on effect on consumers who will be given a set of amount of water per day once the water quantum allocated to households is consumed, there will be no water available until the following day when a new amount is allocated.”
The northern areas of eThekwini and the southern areas of Illembe, which are supplied by Hazelmere Dam, are expected to be the worst affected.
Last week Dube-Ncube said Hazelmere Dam had a mere two months supply of water remaining if restrictions were not implemented.
“We require major changes in policy and consumer behaviour to manage the current water crisis in our province. Today, not tomorrow, is the time to begin to change the way we treat water by conserving every drop,” she said.
“Water rationing timetables will be issued on a weekly basis and consumers and municipalities are urged to take note of water allocations available and use water sparingly. The less prudent we are with water, the higher the risk of water shortages we will face,” said Dube-Ncube.
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South Africa is facing water shortages after the worst drought since 1992 cut dam levels by 12 percent from a year earlier as most of the country enters its four-month dry season.
Drought in eastern and central South Africa around the turn of the year has slashed corn and sugar output and may trigger water shortages for homes and businesses. Weaker river flow also threatens water quality. South Africa is the 30th-driest nation on Earth, according to the government, which expects water demand to outstrip supply as early as 2025.
“Water will definitely be at a premium over the next few months,” said Sputnik Ratau, a spokesman for the Department of Water Affairs. Toward the end of the dry season “we will be in an even more dire situation in terms of available water.”
The country’s dams are 79.2 percent full this week, down from 90.1 percent a year earlier, according to data on the DWA’s website. Ratau didn’t know the last time dam levels were lower. Of the seven largest dams in South Africa and neighboring Lesotho, which also supplies water to the continent’s second-biggest economy, four have “low” or “moderately low” reserves, DWA data show.
The drought earlier this year was probably caused by El Nino, a global weather pattern that causes dry conditions in sub-Saharan Africa, according to Anthony Turton, a professor at the Centre for Environmental Management at South Africa’s University of the Free State. Water quality may decline as rivers can’t flush away sewage and dilute toxic discharges from mines, he said.
“The balance of probability suggests that we can anticipate a severe drought in the near future,” Turton said in an e-mail. “Water restrictions are likely to be imposed.”
KwaZulu-Natal, home of most of South Africa’s sugar industry and an important tourist destination, is the worst affected province with dam levels down 17.5 percentage points. Reserves in the North West and Free State provinces are 14.6 and 10.7 percentage points lower than last year respectively, DWA figures show.
Average annual rainfall in South Africa is 495 millimeters, less than half the global average of 1,033 millimeters, according to the World Bank. The country also has high evaporation levels due to its warm, sunny climate.
“South Africa is a water-scarce country and we encourage people to conserve water as much as possible,” Ratau said. “The less prudent we are with water, the higher the risk of shortages this year.”
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Eskom’s electricity woes have hastened the failure of water infrastructure around the country.
For many South Africans, the water crisis is already here. For others, research and projections show, it is only a matter of time – and perhaps not a great deal of time.
Thanks to load-shedding, and a shortage of water when electricity is restricted, the thirsty future could arrive in major urban centres as soon as this summer.
Early last year, four people died in violent protests over a lack of water in the Mothotlung township outside Brits in North West. In the glare of national publicity, water was quickly restored.
But on Monday, almost exactly a year later, taps in the township again ran dry. When the water flowed again on Tuesday, it was brown.
“I am scared to drink water from the tap. I only use it for bathing and washing clothes. I do buy water from the tuck shop when I have money,” said 72-year-old widow Johana Ngwato.
“My daughter is six years old and, whenever she takes the water, she experiences diarrhoea,” said Ngwato’s niece, Baile Masango.
In 2013, a two-week water outage in Grahamstown saw academics, in their formal caps and gowns, march in lockstep on the city council offices, with township residents following, brandishing placards.
Rhodes University, the lifeblood of the town, issued a stark warning that garnered national attention: without water it would have to close its doors.
On Monday night, the water supply went off again without warning in a section of the township overlooking Grahamstown, leaving Tembinkosi Mhlakaza to wonder at what point he should go to fetch water for his grandmother, and how far he would have to go to get it.
“She’s nearly 80,” Mhlakaza said. “Our water went out last night, and it may come on this afternoon. But if it doesn’t, I have to make a plan for her.”
In 2014, the residents of Thlolong outside Kestell in the Free State were promised that a new dam would solve their water woes. On Wednesday, a resident, who did not want to be named for fear of reprisal, said neither the dam nor emergency water supplies were anywhere to be seen.
“We are thirsty. It has been eight years now that we live like this. The tankers that the municipality use to bring us water are not here this week; we didn’t see them last week. We don’t know what we must do now.”
In Johannesburg, some suburbs were warned this week to expect weekend water outages because of scheduled maintenance at a pumping station – the same station that left some of the same suburbs, and some hospitals, without water for days last year. The maintenance plan was later postponed.
These are no longer isolated cases. According to government officials, about a third of all towns are in some form of serious water distress. The department of water considers one in 10 municipal water systems to be totally dysfunctional, and, of those that are working, a quarter experiences regular service disruptions of more than two days at a time.
In provinces such as Mpumalanga, there are more households that have regular water interruptions than those with a steady supply.
In Mothotlung and Grahamstown, the water supply issues can be linked directly to municipal incompetence, a lack of engineering skills and the failure of management. Neither area has a shortage of untreated water, but they are going thirsty because of a lack of maintenance and proper financial administration and planning.
These problems show no signs of abating, as bitter experience shows.
“If you give me the money and people, I can fix it up for good,” said a Grahamstown city engineer, who is not authorised to speak to the media. “Without money and people, I’ll keep it running as long as I can. Just don’t ask me to fix it quickly when it really all breaks down; then you can keep your money.”
In Johannesburg, water shortages in 2014 were caused by electricity failure to a key pumping station, which in turn was linked to cable theft.
With Eskom warning that there will be regular load-shedding for the rest of the summer, and unable to deliver consistent power for several more years, water engineers are trying to work out how to manage shortages.
Meagre reserve margins
In many areas, water systems have either little or very meagre reserve margins. Electricity outages at pumps that move raw water could leave treatment stations without water. And, without treated water to move, pumps responsible for distribution would be idle when they do get electricity.
These two factors – local incompetence and a national electricity shortage – will have the biggest impact on what, if anything, comes out of the taps for the next several years.
But, within the next decade, two other fundamental issues are likely to make themselves felt – problems that no amount of local governing excellence or electricity will solve.
For one, there is simply not enough water left to go around.
“The situation currently in South Africa is that we have 98% of the water in the country being considered fully allocated. This means that my child and your child that is being born tomorrow has 2% of water for use going into the future,” then water minister Edna Molewa said of water usage rights in 2013.
Eskom has a 99.5% assurance of receiving water, meaning the power utility gets water before any other sector of the economy.
The 2030 Water Resources Group, of which the department is a member, has calculated that, by 2030, the demand for water will exceed supply by 17%. In most of South Africa’s catchments, demand is already outstripping supply, and it is only by piping water from places such as Lesotho that there is enough for now.
Climate change projections are that, by mid-century, reduced rainfall could lower the amount of available water by 10%. Rainfall is expected to come in shorter, but more violent, spells. The projections say this will make collection in dams and underground difficult.
Exactly how much water is available is a complex calculation, with many variables and estimates to consider, and it is seasonal, to boot.
In lay terms, the easy water is already being harvested. Major South African rivers have been dammed to maximum capacity – there are nearly 4400 registered dams – and some would argue beyond their capacity; river systems require what is sometimes referred to as an “ecological reserve”, a minimum amount of water to continue functioning and be useful.
Barriers to supply
Water systems that could handle new dams are both far from population centres and limited in their ability to supply water.
“Many parts of the country have either reached or are fast approaching the point at which all of the financially viable freshwater resources are fully utilised and where building new dams will not address the challenges,” the department of water affairs said in its 2013 strategy report.
That leaves South Africa more dependent than ever on water pumped from Lesotho, where a new phase of the Highlands water scheme will come on line in 2020.
But all the run-off from Lesotho must inevitably flow through South Africa to the ocean, making even that water-rich country a finite resource for South Africans.
An increase in global temperatures is expected to increase evaporation from dams, which potentially makes building more an exercise in running on the spot rather than getting ahead.
More groundwater can be exploited, but only by so much. Desalination is possible, but it requires large amounts of electricity and is very expensive.
Little to go around
That all leaves little untreated water to go around, even without the expected increases in municipal use, because of a growing population, agricultural use, which is increasing the amount of land under irrigation and is a mainstay of plans to improve both employment and food security, and industrial use.
“Increases in water supply cannot match the expected increase in demand without additional and far-reaching interventions,” Steve Hedden and Jakkie Cilliers, of the Institute for Security Studies, wrote in a September 2014 paper. “The water crisis cannot be solved through engineering alone.”
The second structural problem is an unfolding ecological disaster, which is making available water more difficult to treat and, eventually and without intervention, will make direct use of untreated water impossible.
“Water ecosystems are not in a healthy state,” according to the department of water affairs’ National Water Resource Strategy 2013. “Of the 233 river ecosystem types, 60% are threatened, with 25% of these critically endangered … Of 792 wetland ecosystems, 65% have been identified as threatened, and 48% as critically endangered.”
The sources of pollution in fresh water include industrial run-off and acid mine drainage, but human waste is a larger and more immediately dangerous component, ironically because of the large amount of water South Africans use.
“Most waste water treatment facilities are under stress because so much more waste water needs to be treated,” said Gunnar Sigge, head of Stellenbosch University’s department of food science and one of those involved in a seminal – and alarming – 2012 study for the Water Research Commission.
“Some of the biggest problems [in the water system] are caused by treatment works that aren’t functioning.”
Jo Barnes, a specialist in community health risks at Stellenbosch, said a chronic lack of investment in treatment plants meant conditions that should not exist, such as diarrhoea, were killing people.
“The whole environment where people live is contaminated. This is a massive, massive problem, but one that people will not talk about. There are just a few angry people trying to raise awareness.”
The 2012 study, carried out in all the provinces and over a three-to-four year period, found that the amount of faecal matter in many water systems made it unsafe for irrigation, because eating raw produce watered with it could cause illness.
Informal settlements both contribute to the pollution and are affected by it, and some draw directly on groundwater. According to the department of human settlements, the number of informal settlements rose from 300 in 1994 to about 2 700 today, housing 1.3-million families.
In Mothotlung, Serube Lukhelo is afraid to give her one-year-old baby water that could cause diarrhoea, so she spends what money she has on bottled water.
In Grahamstown’s Joza location, Nomfundo Bentele is considering putting up a sign at her hair salon to let customers know whether she has water or not.
In Johannesburg residents and hospitals wait to hear when water from their taps will stop running.
Everywhere else the clock is ticking.
Source: Mail & Guardian
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