When the National Environmental Management: Waste Act, 59 of 2008 (“NEMWA”) came into operation, in July 2009, the operation Part 8 of Chapter 4 (the “Contaminated Land Provisions”) was deferred to a later date. In terms of a recent government gazette, [1] the Contaminated Land Provisions will now come into operation on 2 May 2014.

NEMWA provides that “contaminated” in relation to land means:

“the presence in or under any land, site, buildings or structures of a substance or micro-organism above the concentration that is normally present in or under that land, which substance or micro-organism directly or indirectly affects or may affect the quality of soil or the environment adversely”.

The Contaminated Land Provisions apply even if the contamination occurred before the commencement of NEMWA; originated on land that has not been assessed for contamination; arises or is likely to arise at a different time from the actual activity that caused the contamination; or, arises through an act or activity of a person that results in a change to pre-existing contamination.

Among the important consequences of the operation of these provisions are the requirements for notification of contamination; consequences of identification and notification of contaminated land; and, transfer of contaminated land.

1.     Notification of contamination

NEMWA section 36(5) provides that:

“an owner of land that is significantly contaminated, or a person who undertakes an activity that caused the land to be significantly contaminated, must notify the Minister and MEC of that contamination as soon as that person becomes aware, of that contamination”.

In terms of section 67(1)(b) it is an offence to contravene or fail to comply with section 36(5), while section 68(2) provides that a person who is convicted of an offence under section 67(1)(b) is liable to a fine not exceeding R5 million or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment, in addition to any other penalty or award that may be imposed or made in terms of the National Environmental Management Act, 107 of 1998 (“NEMA”). A number of industrial and other sites across the country are likely to fall into the category of significantly contaminated land and, as at 2 May 2014, the obligation to provide notification of such contamination will apply to the owner of such sites or the person undertakes/undertook the activity that caused the contamination.

While it seems clear that there is no positive obligation to assess a site to determine whether the site is contaminated, this lack of a positive assessment obligation would not be a defence in the event that the contamination is an obvious consequence of the activities undertaken at the site. Failure to provide notification in terms of section 36(5) will expose the persons mentioned in that section to the abovementioned NEMWA penalty provisions.

Related to the notification obligation is the obligation on the Minister to keep a register of contaminated land, which includes information on the status of remediation activities on investigation areas and restrictions on use that have been imposed on investigation areas.

2.     Consequences of identification and notification of contaminated land

NEMWA section 36(1) provides that the Minister, or the MEC in respect of an area which affects a province, may, after due consultation, identify as investigation areas:

“…land on which high-risk activities have taken place or are taking place that are likely to result in land contamination; (and/or), land that the Minister or MEC … on reasonable grounds believes to be contaminated.”

In terms of section 36(6), the Minister or MEC may issue a written notice to a particular person identifying land as an investigation area if there are reasonable grounds to believe that the land is or is likely to be contaminated. NEMWA section 37 empowers the Minister or MEC to direct the person who is undertaking or who has undertaken the high-risk activity or the activity that caused or may have caused the contamination of the investigation area to undertake the site assessment at their own cost. The result of the site assessment is to be reported in a Site Assessment Report, the content of which shall include information on whether:

·         the contamination has already impacted on health or the environment;

·         the substances present in or on the land are toxic, persistent or bio-accumulative;

·         the use or proposed use of the land and adjoining land increases or is likely to increase the risk to health or the environment; and,

·         the area should be remediated. [2]

On the basis of the Site Assessment Report, the Minister or MEC may decide that the investigation area is contaminated presents a risk to health or the environment and must be remediated and the cost of complying with the remediation order shall be for the account of the person against whom the order is issued. This is significant because the content of the remediation order and, consequently, the steps that must be taken to remediate the land are not in the control of the person to whom the order is issued.

3.     Transfer of remediation sites

NEMWA section 40(1) provides that no person may transfer contaminated land without informing the person to whom that land is to be transferred that the land is contaminated and, in the case of a remediation site, without notifying the Minister or the MEC and complying with any conditions that are specified by them. These provisions have direct consequences for alienation of land that may be contaminated, including potentially impacting on the right of freedom to contract for the purchase and sale of the land. In the event of non-compliance with the obligation to provide information on contaminated land in the event of transfer of such land, the same penalty provisions as are applicable to non-compliance with section 36(5), discussed above, will apply.

Owners of potentially contaminated land or persons undertaking activities that have the potential to contaminate land are advised to take note of the operation of the Contaminated Land Provisions particularly the issues discussed above.

For more information, please contact:

Andrew Gilder

senior associate environmental ENSafrica

direct: +27 11 269 7790

mobile: +27 82 382 6279

email: [email protected]

James Brand

senior associate environmental ENSafrica

direct: +27 21 410 6548

mobile: +27 79 877 7778

email: [email protected]