By Claire Tucker Thursday, May 29, 2014

The long-delayed contaminated land provisions in Part 8 of Chapter 4 of the National Environmental Management: Waste Act (59/2008) came into effect on May 2 2014.

While the act came into force on July 1 2009, the contaminated land provisions have been dormant for almost five years. Allied with the commencement of contaminated land provisions, the final norms and standards for the remediation of contaminated land and soil quality were published on May 2 2014.

In addition, the remediation of contaminated land was removed as a listed activity from Category A of the Waste Management Activities List.(3) This update looks at the implications of the commencement of the contaminated land provisions – particularly the implications for the transfer of contaminated land.

Contaminated land framework

The act includes a broad definition of 'contaminated' and includes the presence of a substance or microorganism above its standard level of concentration which may adversely affect, directly or indirectly, the quality of the environment. The contaminated land provisions create a number of concerns for landowners as they require the owner of land that is considered to be significantly contaminated, or a party which undertakes an activity that caused the land to be significantly contaminated, to notify the relevant authority of the contamination as soon as it becomes aware of it.

Failure to do so may result in either a fine of up to R5 million or imprisonment for up to five years, or both. This penalty may be imposed in addition to any other penalty under the National Environmental Management Act (107/1998). Although the contaminated land provisions are similar to the duty of care sections in the National Environmental Management Act and the National Water Act, they create a new form of liability for landowners akin to strict liability.

These provisions will also alienate the land, as no person may transfer contaminated land without informing the transferee that the land is contaminated. If the site is in the process of remediation, the relevant authority must be notified and only conditions specified by it must be complied with before such transfer takes place. While commentators have long noted that the provisions are vague and fall significantly short of what a potentially effective regime should include, the provisions must now be interpreted in conjunction with the norms and standards. These provide for a uniform national approach to:

  • determine the contamination status of an investigation area;
  • limit uncertainties about the most appropriate criteria and method to apply in the assessment of contaminated land; and
  • provide minimum standards for assessing necessary environmental protection measures for remediation activities.

Draft regulations were previously published (although were not finalised) to regulate the contents of a site assessment report as considered in Section 37 of the Waste Act and the parties which may conduct such assessments.

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