Question No 477
Ms AT Lovemore (Democratic Alliance) to ask the minister of Water and Environmental Affairs:
Whether, her department has required the oil tank farm at the Port Elizabeth harbour in terms of section 28 of the National Environmental Management Act, Act 107 of 1998, to take any measures to rectify and/or prevent water and land pollution; if not, why not; if so, (a) what are the details of her department’s requirements and (b) what action will be taken by her department in the event of non-compliance with the requirements?
Reply:
After reviewing the information gathered during and subsequent to the compliance inspection undertaken by environmental management inspectors at Port Elizabeth harbour on 3 October 2008, my department had reasonable grounds to believe that potential pollution of surface water, groundwater, soil and the marine environment had occurred and is still occurring as a result of the tank farm.
In light of the above, my department determined that various tenants at the tank farm, if not all, are responsible for the environmental degradation currently occurring at the Port Elizabeth harbour and that these tenants have breached the duty of care provided for in terms of Section 28(1) of the National Environmental Management Act, 1998 (hereinafter referred to as ‘NEMA’) and failed to take reasonable measures to address these issues as required.
This duty of care obliges every person who causes, has caused or may cause significant environmental pollution or degradation to take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such degradation. Section 31A(1) of the Environment Conservation Act, 1989 (hereinafter referred to as ‘ECA’) provides that directives may be issued under circumstances where a person performs any activity or fails to perform any activity as a result of which the environment is or may be seriously damaged, endangered or detrimentally affected.
Subsequent to the above, my department issued Shell South Africa (Pty) Ltd with a pre-directive in terms of Section 28 of the NEMA, as well as Section 31A(1) of the ECA, as Shell is responsible for the management of the tank farm and for pollution and clean-up operations associated therewith. This pre-directive instructed Shell to provide reasons why a directive should not be issued requiring Shell to undertake certain measures to manage the impacts of the tank farm. My department has recently received the requested representations from Shell and is in the process of scrutinising the information contained therein, in order to determine whether or not a final directive should be issued.
a. Should a decision be made that a final directive should be issued, the directive would refer to both short and long-term steps and measures to clean up, recover and mitigate the impacts of the contamination in the harbour waters as well as to require further investigation, evaluation and assessment of the impacts of the tank farm on the surrounding environment (including the watercourse and marine environment, as well as on any surface water, groundwater and soil).
b. As stated above, the pre-directive afforded Shell an opportunity to make representations as to why my department should not issue it with a final directive, which is in line with the requirements for administrative justice. My department has recently received said representations, as well as additional information and an informed decision will be made as to whether or not to issue such a directive in order to ensure that the parties implement the measures and instructions within specific timeframes. At this stage, it is therefore premature to inform you on what steps my department will take.
Issued by: Ministry of Water and Environmental Affairs
10 July 2009
