Friday, March 30, 2007


By Claire Tucker

The most significant aspect of the Waste Bill released in January this year by the Department of Environmental Affairs and Tourism is the proposal to include a retrospective contaminated land provision.

At this point the proposed section on contaminated land is vague and has potentially very far reaching consequences for the acquisition and disposal of land in South Africa.

The provisions contained in part 8 of Chapter 3 of the Bill are said to apply even if the contamination occurred:

· Before the commencement of the Act;

· Originated on land which is not subject to an investigation in terms of the Act ;

· Arises at a different time from the actual activity that causes the contamination; or

· Arises through an act or activity of a person that results in a change to pre-existing contamination.

It further states that "contamination" refers to the presence of a significant risk of harm whether or not that risk eventuated prior to the commencement of the Act.

Retrospective effect
Since the commencement of the National Environmental Management Act, 1998 there has been a debate about retrospectively in respect of environmental pollution caused before such pollution was specifically regulated and who is responsible for remediating such contamination. In 2005 a judge in the TPD (Chief Pule Shadrack VII Bareki v Gencor TPD Case Number 19895/2003) ruled that NEMA does not apply retrospectively and a company which did not commit any recent act of contamination could not be held liable for this contamination.

The Waste Bill appears to be a reaction to this judgement and to the general view certainly within commercial circles while we as a society should regulate pollution going forward retrospective legislation should be avoided. The reasons for this are as follows:

· The objective of regulation is to cause people to act in a particular way, by penalising past behaviour that was not unlawful when it was undertaken this objective cannot be realised;
· Punishing present occupiers for contamination that they were not responsible for also does not have the effect of moderating polluting behaviour;
· Land that was contaminated before there was legislation preventing this should be remediate by the State, possibly through funds from a "Super fund" into which present day industrial and commercial operators contribute and present occupiers cannot simply be held liable for the actions of predecessors.

The mechanisms for dealing with contaminated land
The Waste Bill allows the Minister or relevant MEC to identify "investigation areas" on which high risk activities have previously taken place or which the Minister or MEC simply suspects could be contaminated. Subsection 42(1) appears to suggest this must be by notice in the gazette and must be preceded by a consultative process, however subsection 42(6) states notwithstanding (1) a notice may simply be issued to a person in respect of specific land indicating that he or she suspects the land is contaminated and is to be managed as an investigation area.

If land is identified as an investigation area the owner, a person who undertook or undertakes a high risk activity on the land which may have caused the pollution must conduct a site assessment of the land. Guidelines for the investigation will be published but this is a very extensive assessment examining substances present, exposure pathways, uses of the land and risky uses, migration of substances etc.

The test for whether the contamination poses a significant risk of harm is confusing at present: "the land may be regarded as being contaminated at any particular time if the harm could come into existence only in certain circumstances and those circumstances do not exist at that time, where those circumstances are reasonably foreseeable and consistent with the approved use of the land at that time."

Section 45 allows the Minister or MEC to issue remediation orders but is silent regarding who the Minister can issue the remediation order to. The Waste Bill simply states that the order must describe "the person who is responsible for undertaking the remediation". It does not set out the manner in which such a determination should be made. This is a significant gap in the legislation which must be clarified. If the clause is not intended to disrupt the common law in so far as liability is concerned and so an order cannot be made against a person who did not cause the pollution or contamination this should be clearly stated. If an order is to be issued to a person who is not the present owner of the land this would obviously cause significant disruption to present day activities on the land, the manner in which such conflict would be dealt with is not state in the Bill.

Restrictions on transferring contaminated land
Significantly the owner of land that is subject to a remediation order may not transfer the land without the Minister’s permission and such permission may only be granted if he or she is satisfied that the person to whom the land will be transferred "is willing and able to undertake any remediation that is required within an acceptable period". This seems to assume it would be the owner carrying out the remediation in the first place.

There are significant gaps in Part 8 of Chapter 3 as it is presently drafted the most obvious one being there is no provision for the State to step in and remediate if the person who caused the pollution is no longer in business, has died etc, or in the event that the remediation order is not complied with. This defeats the objective of getting contaminated land dealt with as quickly as possible.

In addition, it is simply unfair to deem present day occupiers to the liable for pollution which they did not cause - a private individual who innocently acquires contaminated land could be bankrupted by being required to produce an investigation report which could cost anything from R50 000-R100 000 and upwards let alone complying with a contamination order. Part 8 risks creating pockets of contaminated land that cannot be sold and cannot be remediated as there is no surviving entity which is able to afford the remediation costs and the State is not empowered to step in.

The more sensible way of dealing with land contaminated before the Waste Bill commences is for the State to decontaminate possibly with contribution from those who presently undertake high risk activities or some form of insurance scheme. The retrospectivity provisions should accordingly be removed.

If Part 8 enters into law comes in it will obviously have a big impact on the due diligence investigation required before a sale of business is undertaken. Members of the public have until 13 April to comment on the Waste Bill. For more information contact the Bowman Gilfillan environmental practice area.