5.4.1 Environmental Management Inspectorate

5.4.1(1)
The primary arrangements for compliance monitoring and enforcement of environmental legislation such as the Waste Act are provided by an amendment to the National Environmental Management Act, 107 of 1998 (NEMA), which came into effect on 1 May 2005. Chapter 7 of NEMA provides for Environmental Management Inspectors (EMIs) to be designated by the Minister and MECs.

5.4.1(2)
Since EMIs are situated at all three levels of government, the Department has drawn up a guideline to assist in the determination of the compliance monitoring and enforcement roles and responsibilities as set out in the Act. The Environmental Management Inspectorate is not a single enforcement unit and the national inspectorate has no power over provincial and local inspectors. Consequently a code of conduct harmonising their actions and approaches to compliance monitoring and enforcement has been prepared by DEA.

5.4.1(3)
There are several key principles that have been used to inform the allocation of responsibilities.  A primary principle is that an institution cannot police itself.  Other principles include:

• Where the Minister, in terms of the Act, exercises powers to issue orders and conditions, to require information and plans or to make requests, then the national department will undertake the compliance and enforcement activities.
• Where the MEC, in terms of the Act, exercises powers to issue orders and set conditions, to request information and plans, then the provincial department will undertake the compliance and enforcement activities.
• In circumstances where the Act regulates or controls issues that are typically covered by local by-laws and that fall within the competence of local government (e.g. public nuisance/cleansing), these issues will be dealt with by local government.
• Where there are international implications (e.g. transboundary movement of waste) or where a matter traverses provincial/national boundaries, then the national department will be responsible for compliance and enforcement activities.

5.4.1(4)
In relation to compliance and enforcement activities relating to licensing of waste management activities (section 43), the following is the general principle:

• The national department has jurisdiction with respect to hazardous waste facilities.
• The provincial departments have jurisdiction with respect to general waste facilities.

5.4.1(5)
However, where a province has been given the authority to license hazardous waste management facilities, then the provincial authority will assume compliance monitoring and enforcement responsibilities associated with such a licensing function.

5.4.1(6)
The following identifies the roles of the EMIs at each sphere of government:

1. Local EMIs will work in conjunction with provincial and national EMIs to execute compliance activities in respect to waste management licenses (reacting to complaints and conducting routine inspections). In accordance with the principal that an institution cannot police itself, local EMIs are not expected to monitor the municipalities’ compliance.
2. Provincial EMIs will monitor compliance with licenses for which the MEC is the licensing authority.  This will include monitoring compliance by municipalities. It may delegate monitoring activities to EMIs in municipality in which an illegal activity is taking place by a non-municipal entity and monitor compliance with the implementation of the IWMP.
3. National EMIs will monitor compliance with licenses for which the Minister is the licensing authority. This will include monitoring compliance by the province with the provisions of the Act. It may also delegate monitoring activities to EMIs in a province in which an illegal activity is taking place and monitor compliance with the implementation of the provincial IWMP.

5.4(7)
A Memorandum of Understanding will be developed between DEA and Provinces, and between Provinces and the respective municipalities to enable a co-operative working relationship and to facilitate the delegation of compliance monitoring activities from one sphere to another.

5.4.2 Compliance monitoring

5.4.2(1)
The monitoring of compliance with the provisions of the Waste Act, authorisations issued in terms of the Act and other environmental legislation forms the foundation of the system of compliance and enforcement. While EMIs are the primary agents responsible for compliance, the gathering of intelligence relating to non-compliance is the responsibility of all agencies involved in implementation of the Waste Act. The Act does provide specific reporting tools to facilitate monitoring of compliance.

5.4.2(2)
Compliance monitoring will be undertaken on both a reactive and proactive basis. Proactive compliance inspections, also known as strategic compliance and enforcement inspections, involve the prioritization of sites for inspection and physical inspections involving multi-disciplinary task teams. These will be informed by routine inspections and information derived from the reporting mechanisms described above. Reactive compliance inspections and investigations are triggered by reporting of a contravention of the Act.

5.4.2(3)
Information for compliance monitoring will come from the following reporting mechanisms:

1. Annual Performance Reports from each sphere of government, documenting the extent of the implementation of the IWMPs in each financial year. These reports must spell out the level of compliance with the plan and measures taken to secure compliance with waste management standards, and waste management monitoring activities. Furthermore, provinces must report on the extent to which municipalities have complied with the provincial IWMP and the reasons for non-compliance.
2. Reports on implementation of Industry Waste Management Plans as provided by section 30(2)(k) of the Waste Act. The Act provides for the appointment of an independent assessor to verify the achievement of an IndWMP on an annual basis.
3. Reports on compliance with the conditions of waste management licenses in terms of section 51(1)(k) of the Waste Act, including annual compliance reports prepared by independent SANAS-accredited assessors.
4. Annual compliance reports prepared by independent SANAS-accredited assessors on adherence to the norms and standards for activities listed in terms of section 19(3) of the Waste Act, that have been defined as acceptable use and which do not require a license.
5. Information from SAWIS, including information on any failure to fulfil SAWIS reporting requirements to SAWIS.
6. A national waste hotline will be established and promoted. It will be accessible by telephone, via the Internet and by email, and will be available to the general public to report possible illegal and environmentally damaging waste activities. The hotline will be managed by the EMI, and will supplement and reinforce reporting mechanisms available to the public at municipal level and provincial level. Where appropriate, the hotline will take into account the “whistleblower” provisions in NEMA described in Section 3.9 of the NWMS.

5.4.2(4)
Furthermore, waste management officers are empowered to appoint waste management control officers to ensure compliance with licensing terms and conditions and reporting non-compliance. The Act specifies that the “nature and size” of the waste management activity should determine whether a waste management control officer is required. In terms of the nature of the activity, it is in the public’s interest that waste management activities that involve hazardous waste on any significant scale be carefully monitored, and this would relate to most, if not all, licences issued in terms of Category B listed activities and to all facilities that deal with priority wastes.

5.4.3 Addressing non-compliance

5.4.3(1)
When a possible contravention is identified, a waste impact report may be requested. Waste impact reports are a discretionary reporting instrument provided for by section 66 of the Act. Either an EMI or a WMO may request a waste impact report where there is a suspected contravention of the Act, license conditions, or exemption conditions that are likely to be detrimental to health or the environment. The findings of the waste impact report may trigger an enforcement procedure to correct the illegal activity. An enforcement procedure may also be triggered by the findings of the compliance monitoring activities described above, without a waste impact report.

5.4.3(2)
In the event that a contravention is suspected, the enforcement procedure is initiated by the compilation of an audit, which is based on the conditions of the license, NEMA section 28 (duty of care) and NEMA section 30. A waste impact report may fulfil the function of this audit. The procedure followed once a problem has been confirmed by the waste impact report differs for organs of state and the private sector.

5.4.3(3)
In the case of the private sector, once the audit report has been compiled and submitted to the offending party, the latter has 30 days in which to respond verbally. Thereafter an enforcement strategy is prepared, which may either follow a criminal route, or require the preparation of a pre-directive followed by a directive.  If the directive is not complied with, the matter becomes a criminal one.

5.4.3(4)
In the absence of aggravating factors such as clear evidence of bad faith on the part of the offending party, the preferred route is always to achieve compliance rather than pursue prosecution.

5.4.3(5)
Directives take the form of a compliance notice that is issued by the relevant EMI, which has to be done in writing in accordance with a prescribed procedure. NEMA Chapter 7 makes it a criminal offence to fail to comply with a compliance notice.

5.4.3(6)
If a person fails to comply with a compliance notice issued by an EMI, the Minister or relevant MEC may revoke or change that person’s license, take the necessary remedial steps and recover the costs from the offender, and refer the matter to the National Prosecuting Authority for prosecution.

5.4.3(7)
In addition, NEMA Chapter 7 provides that all offences under NEMA or any specific environmental management act are now Schedule 1 offences under the Criminal Procedure Act, 55 of 1977.

5.4.3(8)
The court convicting a person of an offence in terms of NEMA or the Waste Act can withdraw any license or authorisation under NEMA or the Waste Act if the rights under that license have been abused. The courts can also disqualify that person from obtaining a license or other authorisation for up to five years, and notify all other licensing authorities of this disqualification.

5.4.3(9)
With respect to non-compliance by organs of state, the Constitutional provisions for cooperative governance require that every reasonable effort must be made to settle a dispute and all remedies to be applied before a matter is taken to court for resolution. The Constitution also governs the ability of a sphere of government to interfere in the affairs of another sphere of government. A Standard Operating Procedure has been developed consisting of an eleven step process that will eventually culminate in prosecution if the offending practice is not averted. The procedure also allows for the development of an action plan to address the illegal practice.