When it comes to the environment, the compliance aspects can be overwhelming. Many believe a few policies, procedures and forms will be enough, but many companies have seen that it is not that simple.
The environment is more than just air, water and ground., fauna and flora or the “animate environment”. It is also the “inanimate environment” or the aesthetic environment.
The South African Constitution gives everyone the right to an environment that is not harmful to their health and well-being and to have this environment protected for the benefit of present and future generations through reasonable legislative and other measures.
While the legislative means is quite obvious, the “other measures” is somewhat more complex, but in essence it means approaching the Courts to enforce a specific right which is infringed.
While there may not be any legislation prohibiting you from painting your house with “bright orange night glow” paint, there would be an infringement of the right of your neighbour to live in an aesthetically pleasing environment.
The same applies for business activities and operations.
In a case where a member of the public suffers damage to health or well-being, the courts can be approached to intervene, and if it can be proven that a company is in breach of any of it’s environmental legal duties the courts will side with the plaintiff.
How to get on the right side of environmental compliance.
“The first point of departure is to identify your own exposure by getting an Environmental legal compliance assessment done.” says Louis Fourie, an Environmental Lawyer at Higgs Attorneys.
“To ensure that the environmental compliance is maintained on a site and environmental legislation is adhered to, we independently assess the overall compliance of a client’s business against the requirements of the applicable environmental acts, regulations and municipal by-laws. This is then followed by a detailed audit report which we presented to the company’s directors in which we set out any non-compliances. We also provide recommendations on best management practices and rectifying any identified non-conformances to ensure future legislative compliance.” he explains.
Environmental authorisation, licenses and permits
The application for and maintenance of waste management, water-use and atmospheric emission licenses as well as various other waste related permits and registrations is not negotiable to do business in South Africa. According to Fourie, these include, amongst others:
- Norms and Standards registration of a waste storage facility where the facility has the capacity to store 80 cubic metres of hazardous and 100 cubic metres of general waste (including scrap metals);
- Norms and Standards registration of a facility where general waste is sorted, bailed, shredded, grinded and crushed;
- Application for waste service delivery and transportation permits in terms of municipal by-laws;
- Various other registrations and applications required in terms of environmental legislation.
Waste Management Plans, legal registers and environmental training
Waste is a general environmental issue which has been growing in support in Social Media. From air pollution to plastic dumped at sea and the global warming/ climate change debate, many activist groups have emerged over the past decades. Some of these groups are not scared to “name and shame”, sharing videos on social media of pollution and other contraventions. Some of these videos goes viral in hours, damaging the reputation of the exposed business in the process.
Fourie recommends that “each and every company should take action before this happens. Once your reputation is tarnished, it will cost a lot more to repair it than to start off on the right foot. ”
“We provide companies with a site specific waste management plan(WMP) which serves as a written record of environmental requirements, goals and accomplishments. The WMP can be forwarded to prospective and current clients as proof of their commitment to ensuring an environment free of pollution and degradation.”
We also compile legal registers for our clients, setting out all legislation applicable to a company as well as providing training to employees on environmental legislation in South Africa as required by section 28 of National Environmental Management Act.
Know your “EC” status
Companies need to know what to expect, in order to manage their risks. And the process used to determine this is called an Environmental due diligence assessment.
According to Fourie, the aim of an Environmental Due Diligence Assessment is “to identify the actual and potential extent of environmental liabilities and risks associated when a company and/or property is bought and/or sold. This has become crucially important in an era where large scale land contamination, and the rehabilitation or clean-up costs associated therewith contributes significantly to the determination of the sales price.”
From the above it should be evident that environmental compliance is indirectly link to competitiveness. Spending too much on remediating environmental non-compliance could price a company out of the market; resulting in pretty much its own demise.
Compliance is key – get assistance
Establishment of procedures and policies designed to ensure that your company functions within the confinements of laws, regulations and standards is the key driver of compliance. And it can be done effectively when you have an environmental legal specialist on your team. But compliance also goes a bit further than just the environmental side of it.
Fourie said “We offer other services as well, including annual maintenance and record keeping, annual returns and notices, guiding and advising the board on changes in legislation, ensuring annual general meetings complies with Companies act, reporting on compliance with the company MOI and rules. We even allow our clients the use of our office as registered office as well as director’s disclosures.
Corporate Governance and KING IV
Compliance with all business-applicable provisions as incorporated in the King Report on Corporate Governance includes a review of legal and regulatory developments affecting the company. Fourie said they provide a number of services that is aimed at Good Corporate Governance, including:
- Meeting management assistance,
- Governance opinions and advice,
- Board evaluations,
- administration of directors’ and employees share participation schemes,
- policies and practice with regards to corporate social responsibility and
- the overseeing of meeting attendance and voting processes.
There is no need for South African companies to walk in the dark. With the right people on your team it is just a walk in the park.