Remediation of the effects of waste and pollution is the final step in implementing the waste hierarchy.  There is a lack of data on the number and extent of contaminated sites spread across the country, due in part to the scale of mining activity in the country, as well as the historical under-regulation of this area. The scope of the contamination problem is widely acknowledged to be significant. 

Prior to the promulgation of Waste Act, remediation of contaminated land was primarily regulated in terms of Section 28 National Environmental Management Act, 1998 (NEMA) and the National Water Act, 1998. Section 28 of NEMA provides measures for the Duty of Care and Remediation of Environmental Damage that include, the requirements expected from the person responsible for the damage:

  1. Investigate, assess and evaluate the impact on the environment.
  2. Inform and educate employees about the environmental risks of their work and the manner in which their tasks must be performed in order to avoid causing significant pollution or degradation of the environment.
  3. Cease, modify or control any act, activity or process causing the pollution or degradation.
  4. Contain or prevent the movement of pollutants or the cause of degradation.
  5. Eliminate any source of the pollution or degradation.
  6. Remedy the effects of the pollution or degradation.

Chapter 3, Part 4 (section 19) of the National Water Act provides for similar measures to be required of any person in control of land where an activity or process is likely to cause pollution of a water resource. The affected Catchment Management Agency is required to enforce these measures.

The provisions in the Waste Act build on the existing legislation by providing a more coherent administrative framework and set of procedures, which are intended to be retrospectively active. The sequence of steps to be taken in relation to contaminated lands, in accordance with the provisions in the Waste Act, is as follows:

  1. Where the Minister, or an MEC, believes contamination of an area of land to have occurred they can designate an investigation area by notice in the Government Gazette. The Minister must do so in consultation with relevant organs of state.
  2. The owner of contaminated land and the person responsible for contaminating it have a duty to inform the Minster or MEC of the contamination.
  3. As a consequence of the notification, the area under investigation will be recorded in a national registry of contaminated lands.
  4. The Minister may direct either the owner of the land, or the person responsible for the contamination of the land to undertake an independent site assessment. Such an assessment must determine:
    1. The nature and extent of contamination, if any;
    2. The implications for land use;
    3. The risk of migration of the contamination from the area; and
    4. The nature and extent of remediation required.
  5. After considering the site assessment report, the Minister may (in consultation with relevant organs of state) issue a remediation order that includes:
    1. Identification of the person responsible for the remediation;
    2. The remediation measures that must be undertaken;
    3. Measures to monitor and manage risk arising from the contamination;
    4. The period within which the measures must be undertaken; and
    5. Possible restrictions on land use.
  6. The registry of contaminated land needs to be updated to reflect:
    1. The status of investigation areas;
    2. Restrictions imposed on investigation areas and contaminated lands; and
    3. The status of remediation activities.

Depending on whether or not the Minister imposes restrictions, land may be transferred after being declared an investigation site, but the disclosure of its status and the notification of the Registrar of Deeds is required.

To give practical effect to the provisions for contaminated lands in the Waste Act, several prerequisites need to be met, including:

  • The register of contaminated lands must be established and linked to the deeds register, before investigation of suspected contaminated lands can take place.
  • Definitions, technical requirements and standards for both the identification and remediation of contaminated lands will be developed – remediation standards will be finalized by March 2010 and gazetted shortly thereafter.
  • Appropriate norms and standards with the respect to the identification of independent persons suitable to perform site assessments will be developed by July 2010 in terms of the regulations described in section 69 (1)(u) and (v) of the Waste Act.
  • Potential issues of jurisdictional conflict will be resolved at an inter-departmental level (both NEMA and the National Water Act contain provisions to address contaminated land) through a coordinating mechanism described in Section 5.8 of this strategy.
  • Guidelines for determining in which instances the provisions for contaminated lands will be exercised by the provinces rather than the Minister will be developed.
  • Sufficient resources must be allocated by DEA to recruit and develop the specialist skills and capacities in government required to manage complex decisions and monitor all the steps in the remediation process. This issue of capacity is addressed in Section 5.7.

Financial institutions that accept land as security against loans are expected to exercise due diligence in terms of their potential liability for any contamination of that land.

DEA will develop regulations for the implementation of the contaminated lands provisions in the Waste Act that will include exemptions from liability for:

  • Government bodies involuntarily acquiring ownership.
  • Owners of sites contaminated only by migration from another site.

Where liability cannot be apportioned, the costs of remediation will fall to the state. It will therefore be necessary for an annual fiscal allocation to be made for land remediation to cover the costs of state initiated site assessments and remediation. To this end, the National Treasury will be consulted in relation to establishing a land remediation fund.

Where liability is identified, failure by a polluter to comply with a remediation order is defined as an offence in terms of Chapter 7 of the Waste Act (Section 67(1)(a), with a penalty of a maximum fine of up to R10,000,000 million  and/or imprisonment for up to 10 years. This penalty is in addition to any penalties that may be imposed for failure to comply with a compliance order issued in terms of NEMA, which provides for a fine of up to R5, 000,000 or imprisonment for up to 10 years. NEMA also includes a whistleblower provision that allows for up to one fourth of any fine for offenses to be paid to a person whose evidence led to the conviction, with the proviso that such a person cannot be a state employee or engaged in the implementation of environmental legislation.