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Contaminated Land

by Diana Wylie

The National Environmental Management: Waste Act, 59 of 2008 (“NEMWA” or “the Act”) contains onerous and some would say ambitious provisions in chapter 4 regarding contaminated land.  These sections of NEMWA did not come into force when the rest of the Act did in July 2009.

Part of the reason for the delay was the fact that so much background work was required as the Act seeks to create a register of contaminated land and place a duty on the owner of contaminated land to inform both the authorities and prospective buyers if they are aware of contamination (even if it occurred before 2008).

Part 8 of Chapter 4 or the Contaminated Land provisions of NEMWA came into force on 2 May 2014 according to notice 26 published in Gazette 37547 on 11 April 2014, but there is still uncertainty regarding enforcement as definitions are broad and some regulations remain in draft form.

The NEMWA definition for “contaminated” in relation to land refers to a concentration that affects the quality of the soil:

“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”.

Notice 33 of 2 May 2014 contains the National Norms and Standards for the remediation of contaminated land and soil quality provides guidance on how the owners of land measure tainted soil.  The list of contaminants that are measured is not exhaustive and the depth of scrutiny required is not clear.

Draft standards that were previously published have not been drastically amended and the final standards contain parameters and screening values for four categories of land use, namely all land-uses protective of the water resource, informal residential, standard residential and commercial industrial.

The notice provides that for areas that have already been identified as contaminated:

  • Those who have received instructions via a directive or a compliance notice issued in terms of any legislation before the coming into effect of the regulations should continue to comply with those instructions; and
  • The conditions of a waste management licence applicable to remediation efforts remain in force.

 

A copy of the document is available here.

The requirements to register the status of contaminated land will affect not only property owners but also neighbours, banking institutions and the Deeds Registry Office.  The 2012 draft Regulations on Site Assessments and Reports have not been updated to reflect the change in status of chapter 4 of NEMWA and we can expect more changes before the 2015 deadline for planned compliance.

20 May, 2014

**Please note that these comments are summarised, may not be applicable to your particular situation and do not constitute legal advice. Please consult your legal professional should you wish to obtain a formal legal opinion.**