Green Scorpions find Cape Town slow to comply on Milnerton pollution issue
The Green Scorpions’ updated compliance audit of the City of Cape Town’s clean-up of the Milnerton water system found that the City complied with just five of the 16 conditions imposed, with partial compliance on 10 conditions and non-compliance on another one.
Compounding the problem is that the City wants another three years to meet some of the conditions imposed.
The audit addresses the City’s non-compliance with the amended directive the Green Scorpions issued earlier this year, regarding the pollution of the Milnerton Lagoon and Diep River system.
In September 2020, the Green Scorpions, the law enforcement unit of the Western Cape’s Department of Environmental Affairs and Development Planning (DEADP), issued a directive against the City in terms of the National Environmental Management Act, as a result of the ongoing pollution of the water system. The City appealed, and an amended directive was issued in January 2021 which lists various deadlines for compliance on addressing the pollution situation.
On 29 October 2021, the Green Scorpions issued an updated compliance audit in relation to the amended directive. This is a follow-up to the main compliance audit issued in August 2021, which noted that the City complied with six conditions, was partially compliant with eight and non-compliant with two.
“In some respects, the situation appears to have regressed rather than improved, and as much as the City continues to rely on ‘other’ sources of pollution that detract from its ability to comply with the amended Directive, we do not believe that the City is taking necessary and appropriate steps to address these ‘other’ sources of pollution,” says Andrea van Heerden, OUTA Senior Legal Project Manager.
OUTA and the ratepayers’ and residents’ associations in Milnerton welcome the publication of the updated compliance report, which provides the public with an update of the situation.
“While OUTA understands that complex problems take time to fix, this slow rate of compliance provides cause for serious concern. The City also appears to propose moving dates for the completion of necessary infrastructure upgrades as per the amended directive, despite the fact that the dates in the amended directive had been proposed by the City itself. The request by the City to move previously agreed upon completion dates by up to three years is worrying but the insistence by the Green Scorpions that the original timelines are adhered to is reassuring,” says Van Heerden.
Although OUTA is pleased to see the thoroughness of the compliance audit, there still remains a concern around the City being given yet further time to prove its compliance.
“We trust that the City will find ways to meet these timelines as failing to do so could and should invoke the application of severe penalties. Failure to enforce penalties where required would undermine the impact of such directives and breach the trust of the communities depending on the DEADP to hold local government accountable,” says Van Heerden.
The DEADP has asked the City to respond to a number of issues arising from the updated compliance report.
Pollution, compliance and transparency
OUTA has noted with concern a growing tendency by the City and the national Department of Water and Sanitation (DWS) to insist that requests for information and documentation pertaining to the City’s compliance with the directive and its water use licence be submitted to the City and the DWS under the Promotion of Access to Information Act (PAIA).
“This is a disappointing development as the ongoing pollution of the Diep River and Milnerton Lagoon is a matter of significant public importance and the information pertains directly and exclusively to the execution of mandates across the three spheres of government. Such obstructive regulatory hurdles, when dealing only with information pertaining to government compliance, reflect poorly on transparency and accountability,” says Van Heerden.
OUTA in any event intends sourcing copies of the City’s responses to DEADP’s preliminary and updated compliance reports, whether through PAIA or otherwise.
OUTA will determine the way forward after the DEADP issues its final compliance report and will continue to apply pressure in order to obtain the information.
“The compliance audit is very important,” says Van Heerden. “This is the last chance for the City to correct this. If they don’t, then criminal charges can be laid and hefty fines can be levied. So this administrative mechanism of a directive being used is the City’s final chance to rectify this issue or to comply with the conditions imposed by the directive.”
Residents have battled this issue for years. OUTA has been involved for the last two years, working with local community organisations.
“This is a project that shows the power that an engaged civil society can achieve,” says Van Heerden.
“We followed procedures to show we have done everything in our power to put pressure on the authorities, and if they don’t want to lay charges or prosecute, then OUTA will do so.”
The updated compliance assessment
The Green Scorpions assessed the City’s compliance with 16 conditions.
On five of them, the City was found to be compliant. These included:
• Immediately clean up sludge in the Diep River at the final effluent discharge point;
• Having standby generators come online immediately in a power outage;
• Submitting an Estuary Management Plan for the Milnerton Lagoon;
• Submit monthly reports to the DEADP on implementation of the action plan;
• Continue to engage with affected groups and provide them with reports.
There was no compliance with one condition:
• Add an additional water sampling point at the final effluent discharge point, at the point of entry into the Diep River, to show water quality of the final effluent being discharged.
There was partial compliance on the remaining 10 conditions:
• Expedite the investigation into the illicit discharge into the stormwater system and surrounds, and report on proposed actions to prevent this pollution.
• Submit revised pollution incident protocols and contingency plans for Potsdam WWTW, Koeberg and Sanddrift pump stations;
• Update on expediting the upgrade of Potsdam WWTW to limit further pollution (the capacity of the WWTW is being expanded from 47ML to 100ML per day by 2025, but work due to start in June has not yet started);
• Update on expediting the upgrade of the Montague Gardens Bulk Sewer Gravity Reticulation Network (due for completion by June 2025), to prevent network blockages and spills;
• Update on expediting the upgrade of the Du Noon and Doornbach Sewer Gravity Reticulation Network (due for completion by December 2023), to prevent spills;
• Update on expediting the upgrade of Koeberg Road Pump Station (due for completion by 2024);
• Submit the sewer pump station audit report for review;
• Increase the frequency of refuse removal and area cleaning, and the lack of propert waste collection services for backyard dwellings, in Du Noon, Doornbach and Joe Slovo Park;
• Seal off all historical outlets and underground pipes from Potsdam WWTW into the Diep River within 30 days;
• Implement measures to trap all general waste from flowing into the Diep River and Milnerton Lagoon, such as nets at the mouths of stormwater outlets, and clean them regularly.
A soundclip with comment by OUTA’s Andrea van Heerden is here (3:03 minutes).
The Green Scorpions’ first compliance report of 2 August 2021 is here.
The Green Scorpions’ updated compliance report of 29 October 2021 is here.
Further information on OUTA’s work on this issue is here.