Navigating investigations by the Environmental Management Inspectorate

Every year, during November, we see unplanned inspections by the Environmental Management Inspectorate (“EMI”) followed by the issuing of compliance notices under the National Environmental Management Act, 1998 (“NEMA”), the National Water Act, 1998 (“NWA”) and other specific environmental legislation. As a result, we thought it prudent to send a brief reminder of the EMI’s powers and your rights if an inspection occurs. In addition, we have included checklists that you may wish to follow in preparation and during an inspection as well as if any compliance notices are issued.

EMIs and their powers

EMIs may investigate any act or omission in respect of which there is a reasonable suspicion that might constitute an offence or breach of environmental law or a breach of a term or condition of a permit or authorisation. Individual inspectors are appointed to investigate breaches of specific legislation and they must operate within their mandate.

NEMA authorises EMIs to:

Conduct inspections at reasonable times and without a warrant. These inspections can be conducted in respect of any building, land or premises, vehicle, vessel, aircraft, pack-animal, container, bag, box or item to confirm compliance with legislation, permit, authorisation or other instrument. The only time EMIs require a warrant is if they plan to inspect a residential premises. However, even in these circumstances they can conduct the inspection without a warrant if they have reasonable grounds to believe that a warrant would be issued and the delay in obtaining the warrant would defeat the object of the inspection because, for example, evidence would be destroyed. During these inspections, an EMI may seize any item that may be used as evidence in the prosecution of the offence.
Question any person in respect of an act or omission of which there is a reasonable suspicion that there has been a breach of law, permit, authorisation or other instrument. If the person being questioned refuses to answer any question put to him / her by the EMI, the EMI may issue that person with a written notice instructing him/her to answer specific questions either orally or in writing, either alone or in the presence of a witness and may require that the questions are answered under oath. The recipient of this notice is required to answer all the questions put to him or her truthfully and to the best of his/her ability even if this amounts to self-incrimination. Any such self-incrimination cannot be used against that person in the prosecution of an offence.
Inspect or question any person regarding documents/ electronic records relating to an offence or breach of law, permit, authorisation or other instrument unless such document or record is legally privileged. The EMI may make copies or take extracts of such documents / records. If this occurs, the EMI is required to provide you with a receipt for the documents / records taken and will be returned such person after a reasonable period or at the end of criminal proceedings. If the documents / records are not on-site or available, the EMI can instruct that such documents / records are delivered to a specified place.
Inspect, question a person about and remove any specimen, article, substance or other item which, on reasonable suspicion, may have been used in committing an offence or breaching the law or a permit, authorisation or other instrument. Where such specimen, article, substance or other item is seized, a receipt must be issued and the specimen, article, substance or other item returned after a reasonable time or at the end of any criminal proceedings.
Arrest persons without a warrant if the person commits or attempts to commit an offence in the presence of an EMI or wilfully obstructs the EMI from performing his / her duties. The EMI may also call upon any person who is reasonably suspected of having committed an offence and who may be able to give evidence regarding the offence to furnish his / her personal details, failing which the EMI may arrest him / her. In addition, EMIs may make application to a magistrate or justice of the peace for a warrant of arrest where a person has committed an offence.
Issue compliance notices instructing the recipient to do or refrain from doing specific actions within a specified period.

EMI Inspection Checklist

Event	Action Item	Comment
Before EMI arrives on site	Ensure all permits, reports and other documents are up to date and easily accessible. Brief staff.	All relevant information should be stored in an easily accessible place and be up-to-date. Any permits that must be displayed, must be displayed in a prominent place. All legally privileged information must be stored together and clearly marked / identified as legally privileged.
EMI arrives on site	Confirm that the EMI is at the correct venue. Contact legal. Request EMI identity card and make a copy. Inspect warrant (if applicable). Appoint minute taker Appoint person(s) to shadow each inspector. Request if staff can be briefed prior to inspection (if inspection unannounced).	Confirm that the EMI is planning to inspect your business and not another business or operation. Contact your in-house or external legal counsel. Ask the EMI if they are will to wait until your legal counsel arrives. The EMI does not need to agree to this request. Each EMI is required to carry an identity card which sets out his/her details and the legislation which they are designated to enforce. If there is a warrant check: if the warrant is valid (i.e. has not expired); that it relates to the correct premises or if it only relates to a portion of the premises; who is authorised to conduct the investigation; if there are limitations regarding the way the search can be conducted. Based on the outcome of this investigation, you will be entitled to refuse or limit access to the premises. Appoint someone to minute all meetings, interviews or discussions with the EMIs. Appoint persons to shadow each of the EMIs if they simultaneously investigate different parts of the facility. Ask the EMI if you may meet with your employees to run through this checklist and assign responsibilities before the investigation begins.
EMI wants to interview persons	Persons must not be obstructive. Answer factual questions. Ask that substantive questions are answered in writing.	It is an offence to obstruct EMIs in their investigations. Therefore, persons cannot refuse to be interviewed or to respond to questions. Legal counsel should preferably be present for any interview. Questions which warrant a factual response should be answered. For example, the name of the plant manager or the location of compliance reports. Questions which require substantive responses should not be answered during interviews. In these cases, the person being interviewed or legal counsel should request that the EMI issue a notice in terms of section 31H(1)(b) of NEMA setting out the questions that must be answered. The interviewee, in conjunction with legal counsel, can prepare a formal response to these questions, preferably in writing.
EMI copies or extract document or seizes items	Make duplicate copies of all documents seized. Take photographs. Obtain receipts for original documents / items. Obtain samples.	If the EMI makes copies or extract of any documents or records, the person shadowing the EMI should ensure that a duplicate copy of the document / record is made for the company. If the EMI takes photographs on site, the person shadowing the EMI should take photographs of the same aspects. If an original document or item is seized which cannot be copied, the EMI is required to issue a receipt. The person shadowing the EMI must ensure that the receipt of issued and it clearly describes the item that has been seized. For example, the receipt must include identification number or marks such as serial numbers, VIN numbers etc. If samples are collected, the person shadowing the EMI must, if possible, also collect a sample.
Close out meeting and follow up actions	This meeting must be minuted.	All the information collected form EMIs’ visits should be collated, indexed and reviewed by the technical and legal teams to identify any potential non-compliance with NEMA, specific environmental management Act or any permit, licence, authorisation or other instrument for which a compliance notice may be issued. This will enable proactive remedial measures be taken in advance of a potential compliance notice. If any non-compliance is noted from this information, it is necessary to assess (1) if there is other information which the EMI may not have seen which demonstrates that the non-compliance has since been rectified or remedied; (2) if remedial action is required, a documented plan of action should be established and steps taken to implement those measures; and (3) any other information that may be relevant. For example, information which demonstrates that the environmental impact of ceasing operations would be more detrimental to the environment than breaching the emission level contained in a permit.

Pre-compliance notices

Following the investigation the EMI may issue a Notice of Intention to Issue a Compliance Notice (“pre-compliance notice”) inviting the recipient to provide information and reasons why a final compliance notice should not be issued. The pre-compliance notice must set out inter alia the nature and extent of the alleged non-compliance(s) and the period within which the recipient must respond to the pre-compliance notice.

Some companies have policies and procedures regulating the receipt of compliance notice and/or administrative notices. These procedures should be followed. However, if there are no such procedures or policies, the following must be borne in mind:

A pre-compliance notice generally requires that the recipient responds in a very short period. It is therefore necessary to involve the key internal stakeholders as soon as possible to consider the veracity and accuracy of the claims in the pre-compliance notice and the measures that can / will be adopted. The key stakeholders may include management, the person or team responsible for compliance / implementing the necessary actions, the sustainability lead, legal and possibly stakeholder relations if there is reputational risk.
A pre-compliance notice is an opportunity to provide reasons what a final compliance notice should not be issued. This important because final compliance notices could instruct the business to cease operations. As a result, the response to a pre-compliance notice is an opportunity to:
- Correct any errors or misconceptions that the EMIs may have in respect of the operations and alleged non-compliances. Additional information, reports investigations, studies or other documents may be submitted in support of the response.
- Set out the corrective measures that have been implemented or will be implemented to ensure that the operations comply with relevant laws or authorisations. This may include:
  - the appointment of consultants / experts to investigate the nature and extent of the impact and advise on mitigation measures that are required;
  - immediate, medium term and long-term actions that will be undertaken; and
  - budget and monies set aside to fulfil the necessary mitigation measures.
- Consider the extent to which any actions proposed by the EMI are unfeasible or provide alternative options.
- Demonstrate that procedures have been put in place to ensure that similar non-compliances will not be repeated.
Although a comprehensive response to a pre-compliance notice is important, recipients must be careful not to disclose information that may either result in confidential information being disclosed in the public domain or may result in reports / information being the subject of information requests under the Promotion of Access to Information Act. Parties should also be careful not to incriminate themselves.

Based on the information contained in the response, the EMI may decide whether to grant a final compliance notice.

Pre-compliance notice checklist

Event	Action	Comment
Receive pre-compliance notice	Immediately notify relevant persons including: Environmental compliance manager; Internal / external legal counsel; Relevant technical experts; Management.
Review compliance notice	Identify period within which to respond; Identify any typographical or other errors in the notice; Identify each alleged non-compliance and the EMUs’ reasons for this conclusion; Collate information which demonstrates that the recipient if complying with environmental laws / permit conditions.	It is possible to request: the EMI to amend the pre-compliance notice to afford the recipient additional time in which to respond; clarification or correction of any errors in the pre-compliance notice.
Meeting	Hold a meeting with management, legal and technical teams and develop a strategy to remedy any non-compliances and respond to issues raised in the pre-compliance notice.	This meeting should be conducted as soon as possible to discuss each alleged non-compliance and the information required to formulate a response. Develop a strategy on the steps that must be taken to remedy any non-compliances including: appointment of environmental assessment practitioners; apportionment of monies; interim measures that can be implemented to contain impacts; a timeline of each milestone.
Prepare and submit a response	Draft response to pre-compliance notice and submit to the EMI within the prescribed period.	The response should: identify errors, inconsistencies or uncertainties insofar as this has not already been done; address each alleged non-compliance proving that the non-compliance has been remedied or the measures that are underway or will be implemented; identify the monies spent or set aside to remedy any non-compliance; set out the period within which the measures will be completed; identify the measures that have been implemented to ensure that the non-compliance is not repeated; attach any relevant additional information. If the draft response has not been prepared by legal counsel, we recommend that this is done. Other stakeholders should also input into the response before it is sent to the EMI.

There is generally no specified period within which the EMI will respond on a pre-compliance notice. In fact, if the EMI is satisfied with the response, no further correspondence will be received from the EMI. After submitting the response, the recipient should begin to prepare for a final compliance notice and possibly lodging an objection. This may involve collating the necessary documents and preparing a framework objection.

Compliance notices

When a compliance notice is issued, the recipient is obliged to comply with its terms within the periods specified. It is possible to object to a compliance notice, however, lodging an objection alone will not suspend the compliance notice. The competent authority, however, can agree to suspend the compliance notice pending the finalisation of the objection. However, until the suspension is granted, the recipient will be obliged to implement the compliance notice at pain of prosecution. It is therefore necessary to act quickly, particularly if you want to lodge an objection and a request to suspend the compliance notice. As an interim measure, the recipient could ask the EMI to extend the period within some or all the requirements must be fulfilled. The EMI is empowered to amend these timeframes.

Compliance Notice Checklist

Event	Action	Comment
Receive compliance notice	Immediately notify relevant persons including: Environmental compliance manager; Internal / external legal counsel; Relevant technical experts; Management.
Meeting	Hold a meeting with management, legal and technical teams to discuss: the measures contained in the compliance notice and recipient’s ability to comply with them; develop a strategy; identify errors that need to be corrected; decide if an objection will be submitted; allocation of responsibilities.	This meeting should be conducted as soon as possible to discuss each the compliance notice and obligations contained therein. Consider if the recipient plans to submit an objection and a request for suspension of the compliance notice pending the submission. Errors should be pointed out to the EMI along with a request for the errors to be correct. Requests for an extension of compliance periods may be necessary irrespective of whether an objection will be submitted.
Requestion suspension of compliance notice	Lodging an objection does not suspend a compliance notice.	A request can be submitted to the competent authority requesting that the compliance is suspended pending the finalisation of the objection. This request can be submitted simultaneously with the objection or beforehand. Pending the decision on the suspension, the recipient is obliged to comply with the compliance notice. The competent authority may decide to grant the suspension on “good cause” being demonstrated. The legislation does not regulate when a decision must be taken on a suspension request. As a result, we suggest including a date in the request by when this decision must be made. The competent authority must be afforded a reasonable time within which to make a decision but given that the recipient is required to comply with the terms of the compliance notice pending this decision, we suggest making this period reasonably short.
Follow up	Regularly follow up regarding the suspension decision.	If the competent authority has not made a decision regarding the suspension of the compliance notice, the competent authority should be placed on terms of make a decision, failing which an application can be made to court to review the competent authority’s failure to make a decision and to request an interdict to suspend the compliance notice pending the suspension decision.
Consideration of errors	Review the compliance notice for errors	If there are any errors in the compliance notice (particularly critical ones), we recommend notifying the EMI of the errors and requesting that the errors be remedied in terms of section 47A of the NEMA. If the compliance notice is suspended pending an objection, these errors could be addressed in the objection.
Compile objection	Draft objection to compliance notice	It is recommended that legal counsel draft the objection. The objection should address each condition of the compliance notice to which the recipient is objecting. Where a condition is not opposed, this should be stated. In support for an objection, the recipient can include additional information to justify any allegations. The objection does not necessarily need to request that a condition is removed. The objection could merely seek to amend the nature and extent of the remedial measures. The objection must clear set out the requested outcome of the objection. The objection must be submitted within 30 days of the recipient receiving the compliance notice.
Review	Challenge the refusal of the objection and/or failure to decide the objection	The NEMA does not prescribe the period within which the objection must be finalised. The recipient should regularly follow up with the competent authority and if necessary, after a reasonable time, place the competent authority on terms to make a decision, failing which the recipient can launch a review application. If the objection is refused, the recipient may also decide to review the decision. A review application does not suspend the recipient’s obligation to comply with the compliance notice. As a result, the recipient will also need to apply for an interdict suspending the compliance notice pending the outcome of the review.

Compliance notices can have a serious impact on operations. In extreme cases, operations can be shut down. It is important to treat the investigations and pre-compliance notices seriously and responsibly to avoid significant financial and reputational risks.

We assist our clients through all phases of compliance notices. Helping them to implement good practices and procedures before investigations are conducted as well as helping them to navigate both pre-compliance notices and final compliance notices. If you have any question or need assistance, please do not hesitate to reach out to a member of our team.