VZCZCXRO4666
RR RUEHBZ RUEHDU RUEHJO RUEHMR RUEHRN
DE RUEHSA #0628/01 0900701
ZNR UUUUU ZZH
R 310701Z MAR 09
FM AMEMBASSY PRETORIA
TO RUEHC/SECSTATE WASHDC 7937
RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE
INFO RUEHTN/AMCONSUL CAPE TOWN 6700
RUEHDU/AMCONSUL DURBAN 0822
RUEHJO/AMCONSUL JOHANNESBURG 9045

UNCLAS SECTION 01 OF 04 PRETORIA 000628 
 
DEPT FOR OES/PCI, OES/ENV, AND AF/S 
DEPT PASS EPA/OIA, 
 
SIPDIS 
 
E.O. 12958:  N/A 
TAGS: SENV TSPL TBIO EAGR ENRG ECON AMGT APER
SUBJECT: EMBASSY SCIENCE FELLOW PROGRAM 2009 SOUTH AFRICA 
 
Ref: STATE 10843 
 
PRETORIA 00000628  001.2 OF 004 
 
 
¶1. (U) Post submits two proposals for Science Fellows.  Proposal One 
requests a Science Fellow for May 2009.  Proposal Two requests three 
dimensional modeling of the world's largest repository of the 
platium-group elements in the Bushveld complex. 
 
--------------------------------------------- ---- 
Proposal One:  Administrative and Civil Penalties for Environmental 
Violations 
--------------------------------------------- ---- 
A) Topic: Administrative and civil penalties for environmental 
violations 
B) Hosts: Conference Organizer, Environmental Law Association of 
South Africa, Chair: Richard Summers, wsummers@law.co.za, Secretary: 
Anel du Plessis, Anel.DuPlessis@nwu.ac.za. 
 
-- Conference Workshop Co-Host, Melissa Fourie, consultant in 
environmental law, policy and strategy and former Director: 
Enforcement at the South African Department of Environmental Affairs 
and Tourism, mfourie@fastmail.fm, (responsible for this proposal) 
C) Timeframe and length of fellowship: one month during May 2009 
(only three days required in host country) 
D) Additional skills needed:  English language and presentation 
skills. 
E) State whether security clearance is required: No. 
 
-------------------- 
Proposal Description 
-------------------- 
 
¶F. Background information validating the proposal:  In December 
2008, the United States Environmental Protection Agency (EPA), 
supported by the US Department of Justice (DoJ), levied a fine of 
more than $6 million on multinational oil company Exxon Mobil 
because Exxon violated an agreement with the EPA to decrease sulphur 
emissions at four of its refineries.  Exxon not only paid the $6 
million fine, but also came into compliance with EPA standards for 
sulphur emissions.  There was no drawn-out prosecution of Exxon 
Mobil in the criminal courts; EPA did not have to prove a criminal 
offence beyond reasonable doubt.  This was an administrative penalty 
levied by the EPA based on evidence of wrongdoing proved on a 
"burden of persuasion" or "preponderance of the evidence", which 
translates into the South African legal context as a "balance of 
probabilities", the standard of proof in civil matters. 
 
F.1. South African environmental legislation does not provide for 
the levying of administrative penalties for contraventions, whether 
the contravention constitutes a criminal offence or not.  This means 
that the only way to obtain a punitive monetary order, i.e., orders 
to remediate environmental damage, against a violator, is to 
prosecute the offender in a criminal court and to have evidence 
supporting a verdict beyond reasonable doubt.  Should a conviction 
be achieved, the magistrate - who currently receives no standard 
training in environmental law and the impact of environmental crime 
- determines the appropriate fine. 
 
F.1.a. Conducting a full criminal prosecution for each and every 
contravention of environmental legislation or permit places an undue 
burden on the criminal justice system, already overloaded with the 
demands of a high violent crime rate in South Africa.  It also 
causes a low prosecution rate for environmental offences, not only 
because it is difficult to procure a conviction and a meaningful 
sentence, but also because it discourages authorities from 
prosecution in the first place. 
 
F.1.b. Events and collaborations supporting the proposal:   Melissa 
Fourie - former South African Department of Environmental Affairs 
QFourie - former South African Department of Environmental Affairs 
and Tourism (DEAT) Director: Enforcement, now a consultant in 
environmental law, policy and strategy, visited the Washington D.C., 
Philadelphia and Boston offices of the EPA in August 2008. (This 
visit was facilitated by previous collaboration between DEAT and the 
EPA between 2005 and 2008.) Melissa met with a number of EPA 
officials during her visits to gain insight into the EPA's 
administrative and civil penalty system.  Their names are available 
for transmittal, if needed. 
 
F.1.c. On the basis of the information gained, Melissa submitted an 
abstract for a paper to the Environmental Law Association of South 
Africa (ELA), to be presented as part of a specialized workshop on a 
proposed administrative and civil penalties system for environmental 
violations in South Africa.  The national workshop will be held May 
29-30, 2009 near Johannesburg.  The abstract, entitled "How civil 
and administrative penalties can change the face of environmental 
compliance in South Africa", is available for transmittal, if 
desired.  The papers (and the workshop) argue that an administrative 
and civil penalty system for environmental violations, such as the 
 
PRETORIA 00000628  002.2 OF 004 
 
 
system implemented by the EPA, is an effective and feasible way of 
addressing the challenges faced by environmental regulators in South 
Africa. 
 
F.1.d. Legal Structure Supporting the Proposal:  The South African 
Competition Act of 1989 already provides a domestic precedent for an 
administrative penalty system.  The Competition Act provides 
substantial fines on companies who violate South Africa's anti-trust 
legislation. In 2007, the Competition Tribunal levied a fine of 
nearly R700 million ($70 million) on Arcelor Mittal Steel South 
Africa after finding that the company had charged an excessive price 
for its flat steel products.  By contrast, the largest criminal fine 
imposed in a pollution and waste case in South Africa is less than 
R250, 000 ($25,000). 
 
-------------------------- 
Benefits from the Proposal 
-------------------------- 
 
¶2. (U) Benefits of such a proposed administrative/civil penalty 
system, some of which are South Africa specific, include the 
following: 
 
-- The promotion of meaningful, appropriate, transparent and 
consistent monetary penalties for environmental contraventions 
 
-- The dramatic reduction of current reliance on the stretched 
resources of the National Prosecuting Authority and the courts of 
the criminal justice system (and to a lesser but still significant 
degree, the South African Police Services); 
 
-- An increased environmental enforcement success rate by obviating 
the need to prove an environmental contravention beyond reasonable 
doubt. 
 
-- Speedier adjudication of alleged violations. 
 
-- A more effective playing field for all industry players, 
particularly by way of recovering the economic benefit enjoyed by 
operators who choose not to incur the expense of compliance. 
 
--------------------------------------------- ---- 
The Proposal Workshop and the Work of the Science Fellow 
--------------------------------------------- ---- 
 
 
¶3. (U) The ELA Conference scheduled for May 29-30, 2009 presents a 
key opportunity to present the concept of an administrative and 
civil penalty system for environmental violations to a large group 
of environmental lawyers from private practice, civil society and 
government.  A comprehensive presentation or presentations from U.S. 
experts on the operation of the EPA's administrative and civil 
penalty system would go a long way to support the feasibility of 
this proposal. 
 
¶4. (U) Informal responses from key South African officials have been 
positive, and this workshop is the next step in getting the concept 
accepted into the national legal discourse, and hopefully onto the 
legislative reform programs for the Department of Environmental 
Affairs and Tourism and the Department of Water Affairs and Forestry 
after the national elections in April 2009. 
 
--------------------- 
Proposal work program 
--------------------- 
 
¶5. (U) May 2009 - Telephone and email consultations and preparation 
of presentations at the ELA Conference Workshop 
May 28 - Meeting with workshop co-host Melissa Fourie, 
May 29 - 30 - Presentations at the ELA Conference 
The ELA Conference presents a key opportunity to present the concept 
of an administrative and civil penalty system for environmental 
violations to a large group of lawyers from private practice, civil 
society and government.  The Participation by U.S. experts would 
raise the profile of the workshop and the Conference. 
 
 ------------------------------------ 
Q ------------------------------------ 
Areas of scientific expertise needed 
------------------------------------ 
 
¶6. (U) A EPA attorney with extensive experience in the application 
of the EPA's administrative penalty system, expertise in the 
application of the civil penalty system applicable to environmental 
violations.  For example, Jonathan Libber, Senior Staff Attorney in 
the Office of Enforcement and Compliance Assurance, who was 
responsible for the design of the EPA's penalty calculator, could 
make an excellent presentation. 
 
PRETORIA 00000628  003.2 OF 004 
 
 
 
 
---------------------- 
Administrative Support 
---------------------- 
 
¶7. (U) Post will provide administrative support including, housing, 
transportation to and from the place of work around Pretoria and 
Johannesburg, access to an office space and a computer in the 
Embassy. 
--------------- 
RSO Concurrence 
--------------- 
¶8. (U) A country clearance is required for travelling U.S government 
officials. 
------------------- 
Contact Information 
------------------- 
¶9. (U) Point of contact at the Embassy in Ms. Nikki Brajevich, 
Environment, Science and Technology Officer, Tel: 27 12 431 4345, 
Fax: 27 12 342 6163, Email: BrajevichNM2@state.gov, American Embassy 
Pretoria, 877 Pretorius Street, Arcadia, 0083.  The alternative 
point of contact will be FSN Martin Matlebyane, Tel: 27 12 341 4268, 
Fax: 27 12 342 7050, Email: Matlebyamm@state.gov. 
 
--------------------------------------------- --- 
Proposal Two:  Three Dimensional Modeling of the World's Largest 
Repository of the Platium-Group Elements: the Bushveld Complex 
--------------------------------------------- --- 
 
¶10. (U) Subject of the Proposal and General Information 
A) Topic: Three Dimensional Modeling of the World's Largest 
Repository of the Platium-Group Elements: the Bushveld Complex 
B) Hosts: Council for Geoscience of South Africa, University of 
Witswaterand, and industry partners.  Patrick Cole, Manager: 
Geophysics Business Unit 
C) Timeframe and Length of Fellowship:  Two - three months starting 
August 2009 
D) Additional Skills Needed:  English Language and presentation 
skills 
 
-------------------- 
Proposal Description 
--------------------- 
 
¶11. (U) Background Information:  The world's largest deposits of 
platinum, palladium, osmium, rhodium and ruthenium (the 
platinum-group elements or PGE), vast quantities of iron, tin, 
chromium, titanium, and vanadium, as well as gabbro norite that is 
rendered into dimension stone, are all found in the Bushveld Igneous 
Complex, yet little is known about the possible subsurface depth and 
extent of the Complex.  PGE deposits represent a significant portion 
of the exports and revenues-earning minerals critical to the South 
African economy, which in turn is a primary supplier of these 
strategic minerals to the U.S.  Estimating the potential reserves of 
PGE depends on knowledge of the the-dimensional extent and depth of 
the Bushveld Complex.  If the Bushveld is connected laterally, this 
might open important economic opportunities within South Africa for 
companies that have been unable to compete with South Africa's 
established mining companies. 
 
--------------------- 
Proposed Work Program 
--------------------- 
 
¶12. (U) Scope of Work for the Fellowship and Assistance Provided by 
Hosts:  Gravity and magnetic modeling, constrained by geologic 
mapping, drill holes and other geophysical data and physical rock 
properties is the most cost effective means towards producing 
three-dimensional models of the Bushveld Complex.  The Council for 
Geoscience of South Africa, University of Witwatersrand and industry 
partners hold critical data required for modeling.  Partnership with 
a geophysicist from the U.S. Geological Society to provide expertize 
and experience in three-dimensional gravity and magnetic modeling, 
access to a wide array of computer modeling software and knowledge 
of the geology of the Bushveld Complex in the context of mineral 
resources assessments. 
Qresources assessments. 
 
¶13. (U) The Science Fellow will work closely with the scientists at 
the Council for Geoscience and the University of Witwatersrand in 
the project for approximately two to three months starting in August 
¶2009.  The Science Fellow could be located in either Pretoria or 
Johannesburg and would be expected to give talks at universities, 
geophysical associations and government organizations on the project 
as well as geophysical studies in general and on geologic 
interpretation of regional magnetic and gravity data in particular. 
The modeling results of this partnership would be used by both the 
 
PRETORIA 00000628  004.4 OF 004 
 
 
private and public sector in conducting mineral resource 
assessments. 
 
----------------------------------- 
Area of Scientific Expertise Needed 
----------------------------------- 
 
¶14. (U) A scientist with the U.S. Geological Service with expertise 
and experience in three-dimensional gravity and magnetic modeling, 
and access to a wide array of computer modeling software.  Knowledge 
of the geology of the Bushveld Complex in the context of mineral 
resources assessments would be a plus. 
 
---------------------- 
Administrative Support 
---------------------- 
 
¶7. (U) Post will provide administrative support including housing, 
transportation to and from the place of work around Pretoria and 
Johannesburg, and access to an office space and a computer in the 
Embassy. 
--------------- 
RSO Concurrence 
--------------- 
¶8. (U) Country clearance is required for travelling U.S government 
officials. 
------------------- 
Contact Information 
------------------- 
¶9. (U) The Point of contact at the Embassy is Ms. Nikki Brajevich, 
Environment Science and Technology Officer, Tel: 27 12 431 4345, 
Fax: 27 12 342 6163, Email: BrajevichNM2@state.gov, American Embassy 
Pretoria, 877 Pretorius Street, Arcadia, 0083.  The alternative 
point of contact will be FSN Martin Matlebyane, Tel: 27 12 341 4268, 
Fax: 27 12 342 7050, Email: Matlebyamm@state.gov. 
LaLime