ENVIRONMENT IN FOCUS Understanding and complying with environmental legislation Environmental legislation should be respected and complied with, write Alan Cluett and Colleen Cluett. 34 _ QUARRY SA | MAY/JUNE 2018 E nvironmental legislation in South Africa serves a critical function: to protect the health and well-being of all of us, the current population, future generations and the environment. Therefore, it should be respected and willingly complied with. However, it is often seen as adversarial and is begrudgingly complied with. Part of this attitude may stem from its complexity and the speed of development of new requirements within this branch of legislation. New draft legislation is issued for comment and / or promulgated frequently, making it very difficult for surface mine managers, by themselves, to keep abreast of new requirements, let alone to be able to confirm their compliance with the numerous requirements. In addition, environmental management, as a relatively new field, may be seen as supplementary to our actions and responsibilities rather than something that should be fundamental to our thinking and actions, both at work and at home. In comparison to other legislation, consequences for non-compliance with environmental requirements is significantly more severe, possibly to encourage action where understanding of the reason for implementation is limited. This is especially true in comparison with the penalties for mining-related health and safety, with which most managers are more familiar. However, both environmental and mining health and safety legislation follow the same principles in the event of non- compliance, namely, the same hierarchy of people who will be tested for individual accountability and for prosecution and conviction. Both will commence directly or indirectly with the CEO and senior Alan Cluett management and, possibly, end with the actual responsible individual. Management tested If the CEO has fulfilled their respective duties in this regard, then responsibility will fall on the next identified level - the ‘person in control of the land’, typically the appointed site manager. Again, if they have fulfilled their role then the responsibility will rest with the individual/s directly and indirectly responsible for the non-compliance. Needless to say, that where duties have not been fully executed or the law complied with at any level mentioned above, this may result in joint convictions. This hierarchy of responsible people is not a new development in our legal system but closely follows the responsibility hierarchy set out in the Mine Health and Safety Act, namely the Section 2, the Section 3.1a and 7 and the Section 22a and 22b – the CEO, the person in control of the land and the individual employee respectively. An additional difference in environmental legislation is the severity of the penalties that Colleen Cluett can be applied by the courts in the event of a conviction. Under the Mine Health and Safety Act, 1996, these penalties range from R200 000 or two years for a Section 22 conviction through to R1-million or five years imprisonment for a Section 2, Section 3.1a and Section 7 conviction. It is possible that, where a manager is charged on more than one count, in terms of the MHS Act, for the maximum penalty, if convicted, to exceed R2.2-million. In comparison the penalties prescribed in the various branches of environmental law range up to R10-million, imprisonment for 10 years (15 years in terms of GN 528 of the NEM:Waste Act, 2008) or a combination of a fine and imprisonment. In addition, in all cases where pollution or degradation has occurred, those found guilty in a Court of Law will also be held accountable for the restoration costs for areas affected. The question then becomes, “How do I get to know the applicable law, so I can protect myself?” Well the answer, we believe, is relatively simple despite the complexity of environmental law.