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.