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When disaster strikes from an Environmental Law perspective – an explanation of sections 30 and 30A of NEMA

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When disaster strikes from an Environmental Law perspective – an explanation of sections 30 and 30A of NEMA

23rd April 2020

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Disasters can strike at any given moment and can wreak havoc in their wake. Although the Covid-19 pandemic is not strictly an environmental legal issue, it resulted in President Cyril Ramaphosa declaring a national state of disaster in South Africa in terms of section 27 of the of the Disaster Management Act 57 of 2002 (“DMA”), and it serves to remind us that potentially disastrous situations require swift and decisive action. Legislative measures have been put in place to deal with environmental incidents, emergency situations and disasters in sections 30 and  30A of the National Environmental Management Act 107 of 1998 (“NEMA”).

There are clear distinctions between the applications of these two sections which need to be understood so that the correct responses can be employed in the event of an environmental emergency situation or incident. Quite simply, section 30 provides for the control of incidents and directs the responsible person to inter alia report, take remedial measures and to evaluate the effects of the incident. Section 30A, on the other hand, provides for a person to be issued with a directive permitting them to carry out a listed or specified activity, without obtaining an environmental authorisation, in order to prevent or contain an emergency situation or the effects of the emergency situation.

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There are two crucial differences between sections 30 and 30A of NEMA. These differences inform which of the relevant procedures must be applied in a particular circumstance. Firstly, section 30 deals with incidents whereas section 30A deals with emergency situations. Secondly, in respect of section 30, a positive duty is created whereby a responsible person has the duty to respond to an incident in the prescribed manner. Alternatively, in respect of section 30A, the responsible person is prohibited from carrying out a listed or specified activity that may be applicable to the response measures required to deal with the emergency situation before obtaining a directive from the competent authority to this effect. Each of these differences will be described in more detail below.

Difference 1: incident vs emergency situation

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In terms of section 30, an “incident” is defined as “an unexpected, sudden and uncontrolled release of a hazardous substance, including from a major emission, fire or explosion that causes, has caused or may cause significant harm to the environment, human life or property”. It is important to note that an occurrence is only considered to be a section 30 incident if all of the elements of the definition are present. Examples of events that may be considered as a section 30 incident include the following: an uncontrolled and harmful atmospheric emission, a gas line explosion or an oil spill.

On the other hand, section 30A, defines an “emergency situation”  as “a situation that has arisen suddenly that poses an imminent and serious threat to the environment, human life or property, including a ‘disaster’ as defined in section 1 of the [DMA], but does not include an incident referred to in section 30 of [NEMA]. (own emphasis)

It is notable that the definition of emergency situation specifically excludes a section 30 incident. Therefore, in the context of a section 30 incident where a listed or specified activity is applicable to the response measures, the responsible person must ensure that an environmental authorisation is obtained before commencing with the listed activity. However, in the context of an emergency situation, as was previously stated, the competent authority may issue a directive permitting a person to carry out a listed or specified activity in order to deal with such a situation.

It is also significant to note that the emergency situation definition illustrates the interrelationship between NEMA and the DMA. For instance, in terms of section 55 of the DMA, a local state of disaster was declared in respect of various municipalities in the Western Cape during the drought that occurred in recent years. Therefore, the section 30A procedures were applicable in these circumstances and certain municipalities were provided with section 30A directives to conduct specified or listed activities in order to deal with the water supply shortage emergency situation.

Difference 2: to act or not to act

In terms of the second crucial difference between these sections, the following distinct processes must be followed in each of the relevant scenarios. In respect of section 30 incidents, it is first and foremost relevant to mention that a responsible person must act ‘as soon as reasonably practicable’ after such person gains knowledge of the incident. Therefore, a responsible person need not wait to receive a directive instructing them to act. In actual fact, a responsible person in these circumstances may receive a directive if they do not act in the prescribed manner.  In respect of the prescribed process for section 30 incidents, it is significant to note that the responsible person is obliged to submit an initial report on the health and safety impacts of the incident. The purpose of this report is to alert individuals whose health and safety may be threatened as a result of the incident. Therefore, this report may even take place over the phone, radio, television or email. The responsible person must then conduct containment, clean-up and remediation measures in respect of the incident and assess the immediate and long-term effects of the incident. Thereafter, the responsible person must, within 14 days of the incident, report on the nature of the incident, the substances involved, measures that have been taken to mitigate the effects of the incident, root causes of the incident and measures that have been taken to avoid a recurrence of the incident.

On the other hand, a section 30A directive may be issued by the competent authorities on their own initiative or on the written or oral request of a responsible person. It is significant to note that oral requests can be made where undue delays in submitting a written request would defeat the object of the request. The Section 30A Regulations, published in Government Gazette 38684 under Notice Number 310 of 10 April 2015, set out the procedure that needs to be followed when oral requests are made in terms of section 30A of NEMA. Upon receipt of the oral request for a verbal directive, the competent authority must record, in writing, all of the relevant information. In the event that the competent authority deems it appropriate, a verbal directive in response to the oral request must be issued within six hours of receipt of all of the relevant information. If the verbal directive is issued, written confirmation of the request is to be submitted within twenty-four hours of the request by the person who submitted the request. Subsequently, a site inspection will be conducted by the competent authority. Finally, the verbal directive must be confirmed in writing within seven days of the competent authority issuing the verbal directive.

The Section 30A Regulations also indicate that a directive will not be issued in circumstances where a listed or specified activity has ensued without an environmental authorisation. Therefore, this procedure cannot be used to rectify the unlawful commencement of a listed or specified activity. The section 24G NEMA process must be followed in such circumstances. Furthermore, a section 30A directive will not be issued in response to a section 30 incident. Therefore, the distinction between sections 30 and 30A is crucially important.

Although these sections deal with varying circumstances, they are both aimed at minimising the impacts of events that pose a threat to the environment, human life or property. Therefore, it is important for all role players to fully understand when these procedures are applicable as such events often occur when least expected.

Written by Nicole Kruger, candidate attorney, Warburton Attorneys

 

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