Environmental considerations for surviving Covid-19

​​The Covid-19 pandemic is having a devastating impact on businesses and economies across the globe.  Life as we know it has been fundamentally changed and companies have been forced to overhaul their business models in a desperate attempt to survive the crisis.

While the pandemic has created a myriad of uncertainties, it is abundantly clear that the concept of 'business-as-usual' is an aspiration that may never materialise in the way that we know it.  This is the start of a new era, and the time has come for business to adapt or die.  To quote Charles Darwin, "it is not the strongest of the species that survives, nor the most intelligent, but the one that is most adaptable to change".

The national lockdown required industry to implement an array of measures within a very short period of time to help flatten the curve.  The choices that businesses have and will continue to make as part of their strategies to adapt in this rapidly evolving environment will ultimately mean the difference between the survival or ultimate extinction of a business.

The Department of Mineral Resources and Energy recently issued mandatory 'Guidelines for a Mandatory Code of Practice on the Mitigation and Management of Covid-19' which seek, among other things, to assist employers in establishing and maintaining a Covid-19 prevention, mitigation and management programme at mines (our client alert on these Guidelines is available here).  Although a number of directions have been published by the Department of Environment, Forestry and Fisheries, similar guidance in respect of environmental matters has not yet been released.

The purpose of this alert is to provide practical assistance on environmental compliance to ensure the continued survival of your business during life after lockdown.

What you need to know

1. Understand the directions and how they impact your business

A number of directions have been published which may impact your business as far as environmental matters are concerned.  These are briefly summarised here.  Certain of the directions provide for deemed extensions of authorisations and licences that have or will lapse under the various levels of the national lockdown.

Other directions, such as those which affect the processing of licence applications or appeals, will likely cause delays in obtaining the required licence or the challenging of a particular decision.  This may have a knock-on effect and result in costly consequences for a business, even under the less restrictive Alert Level 3. This would no doubt be the case if, for example, a required approval is not in place in order to commence with intended operations by a specific date.  In addition, frustrated applicants and appellants alike are not likely to be successful in obtaining recourse from courts which would ordinarily be available during these unprecedented times.

2. Avoid non-compliance with environmental laws and approvals

Despite the difficulties faced by many industries as a result of Covid-19, this does not entitle a permit or licence holder to take a compliance holiday.  Although extensions in relation to the lapsing of exemptions, validity periods of environmental authorisations and the reporting of Greenhouse Gas emissions have been allowed, no relaxations have been permitted yet when it comes to general compliance with environmental laws or permits. This position is supported by the directions published by the Minister of Environment, Forestry and Fisheries in relation to the biodiversity sector, which classified compliance and enforcement services by Environmental Management Inspectors and other inspection personnel as 'essential services'.

Careful consideration must, therefore, be given to the measures that businesses have taken so far and intend to take as the lockdown eases, to ensure that environmental obligations are not breached.  Failure to do so will expose your business to the risk of administrative and or criminal enforcement action, as well as the payment of significant fines.  In certain circumstances, non-compliance with environmental obligations could result in the revocation of a licence which could be key to the continued operation of a facility.  To avoid these risks, ensure that an environmental compliance assessment is undertaken to establish whether any of the response measures that have been or are intended to be taken are not in conflict with applicable environmental laws or the conditions of environmental permit and licence conditions.

If non-compliance with environmental permits or laws has taken place, then ensure that appropriate action is taken: (i) document the non-compliance; (ii) ensure that steps have been taken to address the non-compliance and minimise risk to the environment to the extent possible under lockdown.  The steps taken must constitute 'reasonable measures' for purposes of complying with environmental duty of care obligations; (iii) record the reasons for the non-compliance, in particular whether the non-compliance was associated with or caused by the Covid-19 related restrictions imposed under the varying levels of lockdown; and (iv) notify authorities where necessary and also consider voluntary notification in other instances.  Taking pro-active steps and self-reporting demonstrates good faith and may have a positive influence on how the relevant competent authority will respond to environmental non-compliance.

3. Ascertain whether there were or will be changes in the generation of waste

Businesses must consider waste management and disposal obligations in respect of new, excess or increased waste products that may be generated during and after the lockdown.  Directions that were published by the Minister of Health, Dr Zweli Mkhize, on 8 April 2020 (as amended), require, among other things, that all waste from quarantine facilities must be isolated and classified as high-risk medical waste and incinerated at an approved waste site (Health Directions).

On 23 April 2020, Dr Mkhize issued directions requiring that mines must make provision for quarantine facilities for employees showing signs of Covid-19.  These operations would therefore be required to comply with the Health Directions and all other applicable legislation that regulates health care risk waste (HCRW).  Mines must ensure that waste management service providers who are appropriately authorised to manage HCRW have been appointed and that the waste management facility where the HCRW is intended to be incinerated has the necessary waste management licence and air emissions licence in place.  Failure to comply with applicable legislation, such as the National Environmental Management: Waste Act 59 of 2008, with regards to the management of HCRW could result in criminal and/or administrative enforcement action being taken, as well as the imposition of significant fines.

Businesses should ensure they have a plan B in place to ensure that alternative waste service providers and disposal facilities are available should problems be experienced with the collection of waste.  Delays in the recycling sector have already been experienced as a result of the operating capacity of recycling facilities previously being limited to 50%. Pre-empting these kinds of scenarios is necessary to prevent quantities of stored waste potentially resulting in a breach of permit conditions or other legal requirements.

The operators of incinerators should further review their licence conditions to ascertain what is permitted to be burnt on site and possibly apply for an amendment to include HCRW generated by their operation.

4. Assess supply chain readiness and whether possible additional permits may be required

The Health Directions provide that equipment used in a quarantine facility must be sterilised before the equipment may be used again.  This is in addition to the mandatory start-up procedure in a mine's Code of Practice for cleaning and industrial sanitising of surfaces with which employees come into contact. The Minister of Employment and Labour has also issued directions under the Occupational Health and Safety Act, 1993 which are relevant to other sectors and prescribe various measures pertaining to the use of sanitisers and disinfectants, among other things.

Complying with these obligations will require additional products and chemicals to be used, stored and handled on site.  Thought should be given to supply chain readiness to ensure that the required chemicals and sanitisers (which are required to have an alcohol content of at least 70%) do not run out, as well as whether or not additional permits will be required for the storage of additional chemicals on site.

5. Ramping up water, sanitation and hygiene practices

According to the World Health Organisation, good water, sanitation and hygiene services serve as barriers to human-to-human transmission of Covid-19.  Thought must be given to scaling up hygiene controls and effective sanitation in the workplace to better manage the spread of the virus.  Existing permits and licences should be examined to ensure that they cater for expanded water, sanitation and hygiene services at an operation.  The need for additional permits or for the amendment of existing permits should be determined.

Managing regulatory compliance is a challenge for any business during this time.  Let us support you in ensuring that your business is able to successfully adapt to Covid-19.  As a first step, please download our 'COVID-19 Survival Checklist' here.