Integrated Coastal Management Amd Bill [B8-2013]; Protected Areas Amd Bill [B28-2013]; Weather Services Amd Bill [B28-2013]; National Environm. Management Laws Third Amd Bill [B26-2013]; Air Quality Amd Bill [B27-2013]; Benguela Current Convention

Water and Sanitation

08 October 2013
Chairperson: Mr J de Lange (ANC)
Share this page:

Meeting Summary

The Committee considered the National Environmental Management: Integrated Coastal Management Bill. While Members congratulated the Department of Environmental Affairs on the changes made since the previous day, they still requested some minor changes in the clauses regarding land reclamation, the National Coastal Committee and the inception date of the Act. The Departments still had to draft the required resolution on mining in coastal areas. Members agreed that the Chairperson be mandated to review the incorporation of the requested changes before forwarding the Bill to the State Law Advisor.

The Committee considered the National Environmental Management: Protected Areas Amendment Bill. Some minor wording changes were requested and the Department was instructed to review the clause dealing with provisions for land owned by national parks and private citizens. Members agreed that the Chairperson should review the changes made by the Department and then send the Bill for further processing.

The Committee was told that the new Annex VI to the treaty on Antarctica would have to be ratified. An amendment was needed to South Africa’s Antarctic Treaties Act. The Committee disputed the need to include every word of the annex in the Act. The important question to be addressed was that of liability. The Department was instructed to draft a resolution on which parts of the Treaty should be included in the Act. The whole Act should be redrafted. Members were instructed to obtain a mandate from their parties on the Treaty.

The Committee had earlier raised an issue on the rectification of the Benguela Current Convention. It was agreed that this matter fell within the domain of the Department of International Relations and Cooperation.

The Committee considered the South African Weather Services Amendment Bill. Most of the requested changes had been incorporated, and one clause in particular was described as an example to government on good legislation. Members discussed the question of norms and standards. The Bill must state that the appointment process for a Chief Executive Officer would be fair and transparent. There must also be a qualifier that the Chief Executive Officer should perform his or her duties adequately as well as diligently. Any inquiry into his or her conduct should be done within sixty days. The Department had added a sub-clause to allow for the removal of the Chief Executive Officer on medical grounds. Members instructed the Department to include provision for an appeal in such an event.

Members were told that the National Environmental Management Laws Third Amendment Bill would create the office of environmental inspectors. The consultation period on the Bill had been reduced to thirty days. There was a separate regime for the issuing of environmental and atmospheric licences. Municipalities were generally responsible for the latter, and this created difficulties in co-ordinating the licences. The atmospheric licence should be introduced within sixty days, and Members felt that some intervention from national level should be possible if the municipality failed to do this. Members felt that the definition of mining and adjacent areas were too vague. Unconstitutional decisions might be taken by national government in the adjacent areas. Attention was also needed to off shore mining and exploration.

The Committee considered the National Environmental Management: Air Quality Amendment Bill. Members requested a clearer definition of 'commissioning'. They insisted that the National Air Quality Advisory Committee should be formalised. At present an environmental plan had to be provided within six months after commissioning, and the Department wished to extend this to 24 months. Members objected strongly, as industries could then pollute the atmosphere for two years. They ruled that the Bill continue to provide for six months only, but with the possibility of the Minister extending the period.

Members discussed issues arising from section 24G of the National Environmental Management Act. This only made provision for administrative action at national and provincial level. There should be provision for municipalities to determine fines for transgressions regarding atmospheric emissions. Some overlaps were noted, and the Department was instructed to consult with the Centre for Environmental Rights to see if their concerns had been addressed. The Department wished to see greenhouse gases declared a pollutant, and was instructed to prepare a resolution in this regard.

Members were concerned that the role of provinces in environmental issues was being underplayed The Minister was being overwhelmed. Municipalities should remain as competent authorities for atmospheric emission licences, as some had both the competence and derived revenue from licences. There should be provision for consultation in the granting of licences. A copy of the application should be available for public scrutiny.

The issue of provisional atmospheric licences was discussed in depth. At present a full licence would be granted after an industry had demonstrated full compliance for six months. Members rejected a proposal that the validity of a provisional licence be extended from one to two years, but a one-year extension could be granted by the Minister if the industry showed good cause. The definition of a fit and proper person was discussed and wording changes proposed. Reports on atmospheric emissions should be aligned with the Department of Energy.

The Chairperson was mandated to review the changes requested and forward the Bill for further processing. The Bills and the treaties must be ready for Members to take them to their respective caucuses at the first opportunity.
 

Meeting report

National Environmental Management: Integrated Coastal Management Amendment Bill
The Chairperson requested that the Department of Environmental Affairs (DEA) produce the required resolution within the forthcoming days. He led the Committee through considering the latest proposed amendments to the National Environmental Management: Integrated Coastal Management (ICM) Amendment Bill.

Clause 6
The Chairperson asked the State Law Advisers (SLA) if they were happy with the wording of clause 6, which was an interpretation clause. Transnet had raised concerns over the question of ownership of sea space. He noted that the various SLAs present were satisfied with the wording.

Clause 7
The Chairperson noted that the proposed subsection 7A (2) had been moved to later in the section. A provision had been added for the disclosure of funding for such a reclamation project. A sixty-day period had been included. He asked for a wording change to make it clear that the Minister was in charge of the process.

Ms M Wenger (DA) asked if the pre-approval by Parliament would not be sufficient authorisation for a project to proceed.

The Chairperson said that pre-approval and ratification by Parliament was for the case where the land would be privately owned. Parliament might feel the need to call public hearings on the issue. The Minister would still make the final decision.

Ms Radia Razack, DEA Director: Law Reform, asked if land reclaimed in terms of this section should not become coastal public property.

The Chairperson agreed. The clause should be drafted with the aid of the SLA. With some slight wording changes he was happy with the clause.

The Chairperson said that minerals had now been removed from public property. That was good.

Ms Razack said that the contents of section 87 would be moved to section 22.

The Chairperson said that this meant that section 87 could then be deleted.

Clause 21
The Chairperson said that clause 21 would amend section 36 of the Act, dealing with the National Coastal Committee (NCC). There was a brief discussion on the membership of the NCC.

Mr F Rodgers (DA) pointed out a discrepancy in that the Minister 'may' appoint a chair to the NCC but 'must' appoint the members.

The Chairperson agreed. In both cases this should be 'must'.

Ms Razack asked about provision for alternate members of the NCC.

The Chairperson noted that there was a sub-clause to cover this. While it might not be necessary to remove a member of a voluntary organisation from office, there was provision for this.

Clause 32
The Chairperson noted the satisfaction of Members with the changes made.

Clause 36
The Chairperson noted the satisfaction of Members with the changes made.

Clause 50
The Chairperson noted that there must still be consultation with the provinces on the question of existing leases, or rights to, coastal public property.

Clause 51
Ms Razack pointed out the changes made to address child and women-headed households.

Clause 54
Ms Razack said that section 101 would be amended to provide for the commencement of the Bill once enacted. The process should not take more than six months after publication. The Act could also come into force on publication, or by a proclamation from the President.

The Chairperson directed DEA to make the changes made. He requested the Committee to give him a mandate to check the changes. Once he approved the changes, the Bill should be prepared as an Act, indicating additions and deletions. Then it could go to the SLA.

Mr Theo Hercules, SLA, said that the SLA would approve the A List (Portfolio Committee amendments) and then forward it to the printers.

The Chairperson congratulated the DEA team on some excellent work. Members indicated their agreement with the proposal he had made.

National Environmental Management: Protected Areas Amendment Bill
Clause 1
The Chairperson asked Members to consider the National Environmental Management: Protected Areas Amendment Bill. He queried the punctuation of the definition of 'fish' but accepted the argument put forward by DEA.

Clause 2
The Chairperson had consulted with Dr Watts. He proposed that the wording of section 2 (d) be changed to 'representative and diverse network'. There was still uncertainty over the meaning of 'representative' in this context, but there was no harm in having an extra word for clarity.

Clause 5
The Chairperson noted that the proposed changes to the new section 22A had been made.

Ms Razack said that a punctuation change proposed by the Western Cape had been accepted.

Clause 7
Ms Razack said that section 21 would be included in the list of sections cited in section 31 of the Act.

Clause 10
Ms Razack said that only a national organ of state could be conferred powers in a national park. This was an amendment to section 38.

The Chairperson said that if this was the case, there was no need to include the reference to a 'suitable person'. The whole of section 38 (a) could then be removed.

Ms Razack said that DEA also had to consider world heritage sites and other areas in which protected areas could occur.
 
The Chairperson asked if a marine protected area was different to a protected area. He agreed that (aA) and (aB) should remain as the two exceptions. He asked if this provision was only for privately owned areas. He asked if all state land should be subject to the request for protected area status.

Adv Herman Smuts, SLA, said that all protected environments were privately owned.

The Chairperson said that the definition did not make it clear that this only applied to privately owned land. It was now becoming difficult to interpret this clause He asked DEA to reconsider the wording of the clause, and noted the agreement of Members.

Clause 12
The Chairperson noted that an amendment proposed by the Centre for Environmental Rights (CER) to the new section 48A had been accepted.

Mr Rodgers made a point on semantics.

The Chairperson was satisfied with the current wording. He asked the DEA team and the SLA to review the wording of the Bill.

Clause 14
The Chairperson said that the SLA had advised him that the table was part of the original Act.

Clause 15
The Chairperson noted that the proposal from the KwaZulu-Natal (KZN) provincial government had been included. He asked for the Committee's approval for him to revise the changes requested. The same procedure would be followed as with the ICM Amendment Bill.

Annex VI to the Antarctic Treaty
Mr Henry Valentine, DEA Director: Antarctica & Islands, said that once the Annex was ratified the Act would have to be amended, specifically section 3(1).

The Chairperson disliked the practice of including treaties in a schedule. Each treaty should be linked to a law of its own.

Mr Valentine said that Schedule 1 of the Act would have to be amended. The Protocol had only contained five annexes at the time of being concluded, and the sixth would now have to be added.

Mr Valentine said that Schedule 2 contained the penalties. Those penalties related to Annex VI would need to be included. Regulations would have to be drafted.

The Chairperson said that only those parts of the treaty that were relevant to national law should be included in the legislation.

Ms Noluthando Mpikashe, SLA, said that the SLA who had dealt with this treaty was based in Pretoria.

The Chairperson said that every word in the Annex would now be part of national law. He would have thought that only those three obligations placed on South Africa as a member state should be part of the law; the rest could be in regulations. Following the approach currently being taken by DEA was a short cut to disaster. It should be clear how questions of liability would be dealt with. There should be a procedure for the state to claim against the operator responsible for any accident. Treaties should be domesticated, not included verbatim in national law.

The Chairperson asked DEA to draft a resolution on which parts of the treaty should form part of national law. The resolution should reflect the view of the Committee that the entire law should be redrafted. He requested that the Committee be given copies of the current Act and regulations. He asked Members to obtain the mandate of their parties to vote on this issue at a later date.

Benguela Current Convention
Ms Razack had spoken to Adv Smuts. His opinion was that the clause raised was a stand-alone issue.

The Chairperson said that the Department of International Relations and Co-Operation (DIRCO) SLAs had their own opinions. There was not much that could be done as the treaty was already in place.

Dr Geoff Cowan, DEA Director: Protected Areas Legislation Compliance & Monitoring, said that DIRCO confirmed that this matter was in their domain.

The Chairperson noted the agreement of Members.

South African Weather Service (SAWS) Amendment Bill
The Chairperson asked Members to consider the latest changes to this Amendment Bill.

Clause 2
The Chairperson noted that all references to 'policy framework' had been removed. Members were happy with this. The other changes requested the previous day had been incorporated.

Clause 4
Mr Sibusiso Shabalala, DEA Director: Legal Services, said that a wording change suggested by the SLA had been incorporated. Sub-clause (7)(c) now referred to 'the relevant Minister or any other stakeholder'.

Clause 6
The Chairperson suggested that a provision be added to clause 6 that the board should act in accordance with norms and standards set by the Minister.

Mr Rodgers asked if other stakeholder should be included .

Ms Judy Beaumont, DEA Deputy Director General: Climate Change and Air Quality, said that the National Environmental Management: Air Quality Act (AQA) provided for standards in the setting of air quality data. There could be a duplication of legislation if standards were to be addressed in this Act as well.

The Chairperson was unconvinced. He would go with the opinion of DEA, but felt that this was incorrect.

Mr Shabalala said that Clause 4(6)(c) would now refer to 'operational policy'.

Mr Ishaam Abader, Deputy Director-General: Legal Services, DEA, said that in terms of 6(h), there were already human resources (HR) policies in place which needed to be followed. He was satisfied that it was clear enough that internal recruitment and other policies were indicated.

The Chairperson asked if there was not another word that could be found. There was already a lot of reference to policy.

Clause 7
Mr Shabalala demonstrated how the paragraph relating to the appointment of a Chief Executive Officer for a term or terms of not exceeding five years had been amended, and there was now provision for the reappointment of the CEO.

The Chairperson must not happy with 'reappointed'. He suggested that (b) be reworded to indicate the procedure to be followed on each occasion that a CEO was to be appointed.

Mr Shabalala said that sub-clause (4) now referred to a prescribed process in the appointment of the CEO. The process would be spelt out in the regulations.

The Chairperson felt that the principle contained in the previous version of the clause was important. It was correct to refer to the prescribed process. However, he felt that the principle that the process should be transparent and competitive should be reflected in the Bill. He suggested that this reference be inserted after sub-clause (2). He further suggested that the current sub-clauses (3) and (4) be combined.

The Chairperson asked if was necessary to include 'duties and functions' in (8)(b). Generally, the word 'duties' was not used.

Ms Mpikashe agreed. 'Duties' and 'functions' were considered to have the same meaning.

The Chairperson proposed that the words 'duties and' be deleted from (8)(b). This was accepted. He further suggested a streamlining of sub-clauses (c) and (d).

Clause 8
The Chairperson suggested that 13A(1)(a) and (b) be transposed. He noted that provision was made for the death of the CEO. Wherever the clause referred to 'duties and functions' this should be changed to 'functions'. In (2) (b) he wanted to see 'adequately' before 'diligently'. In (b), the phrase 'executing the powers' needed to be added. He read sub-clauses (6), (7) and (8), dealing with preliminary investigations. There should be a provision for a finding of some lesser transgression.

Mr Shabalala said that the opinion of the SLA was that the time frame of 'as soon as reasonably possible' should be quantified.

The Chairperson felt that it was correct to use 'reasonably possible'.

Ms Wenger agreed that there should be a fixed time limit.

The Chairperson had experience of disciplinary procedures, and it was difficult to prescribe a time frame.

Mr Rodgers raised the possibility of the Minister dragging out a disciplinary issue.

The Chairperson felt that a time period could be written into the regulations, which would be easier to amend. A court could rule on what was reasonable. He noted that the Minister would appoint the preliminary inquiry. He proposed that 'reasonably possible' be changed to 'within sixty days'. This change must also be reflected in clause 8. He noted the agreement of Members.

Mr Shabalala said that a new sub-clause (7) had been added to make provision for the removal of the CEO based on the recommendation of a physician.

The Chairperson asked if there was any protection for the CEO.

Ms Wenger asked if medical boarding did not fall under a separate body.

The Chairperson described briefly the process of medical boarding.

Ms Wenger asked what qualification the 'physician' would have.

The Chairperson suggested that the word 'physician' be changed to 'medical practitioner with the necessary expertise'. He also suggested a new clause to make provision for the CEO to be able to obtain a second opinion to challenge the findings of the board.

The Chairperson suggested that in (8)(a), the clause should also only be applicable in terms of subsections (2)(a), (b), (d) and (e). He felt that the clause was well written and an example to other departments.

Ms Mpikashe said that the jurisdiction of the Director of Public Prosecutions was limited to the jurisdiction of the High Court in that area.

The Chairperson proposed that the same procedure be followed as with the other Bills considered earlier in the meeting. He had thought that the Act could come into operation immediately. He would prefer clause 18 not to include the period of six months from the date of publication. The regulations were not that complicated.. The work of SAWS should not be further delayed due to a minor point of regulation. Three Bills could now go to the party caucuses, together with the two treaties.

National Environmental Management Laws Amendment 3
Ms Linda Garlipp, DEA Chief Director: Law Reform and Appeals, said that there had been a comprehensive briefing regarding the National Environmental Management Laws Third Amendment Bill (NEMLA 3) on the previous occasion. The Draft Water Bill, Environmental Impact Assessment (EIA) and Appeal regulations had been distributed. She said that NEMLA 3 must be read with several Acts, including the National Environmental Management Act (NEMA) as amended and the Mineral and Petroleum Resources Development Act (MPRDA). The Bill could not be viewed in isolation.

Ms Garlipp said that NEMLA 3 would amend the definition of an environmental inspector. A definition of an environmental management resources inspector would be included.

Ms Garlipp said that the time period for consultation, as listed in section 24, would be reduced to 30 days. . Transitional provisions for appeals would be made. There was no such thing as an in process appeal. The reference to this had therefore been removed. The Minister of Mineral Resources would be the competent authority for the issuing of Atmospheric Emission Licences (AEL) and Waste Management Licences. The Waste Act would be amended to make provision for residue deposits and stockpiles. Draft regulations would be published for appeals, exemptions and EIAs.

Ms Garlipp said that no amendments were needed to the National Water Act (NWA). There was a policy process under way. The Water Bill did address an appeal process, with special provision for mining appeals. Regulations had been drafted to align the permitting systems. The NWA dealt with water tribunals in chapter 15 and 16. Separate appeal processes would be applicable to mines.

Ms Garlipp said that outstanding issues were the alignment of the competent authority and licensing authority provision. The Minister of Environmental Affairs would be the licensing authority for AELs and not the Minister for Mineral Resources. While there was a reference to AQA, DEA thought it made more sense to keep the processes separate. Air Quality Licences (AQL) were only needed once operations started. If environmental authority was refused, it was highly unlikely that an AQL would be issued. There would be a knock-on effect to other air emission licences. The same approach as that of the Department of Water Affairs (DWA) would be followed. There would be a separate regime. This was not ideal and the DEA felt that AELs should be kept separate.

The Chairperson asked why this was an outstanding issue.

Ms Garlipp replied that this matter needed to be discussed and agreed upon. The Bill made provision for a separate regime for mining licences.

The Chairperson had thought that it was only the appeal process that was being addressed.

Ms Garlipp said that the appeal process itself was not the challenge. All the licences should be issued simultaneously, and the appeal process would follow. It was unlikely that the AEL would not be issued if the environmental licence was issued. Most of the AELs were issued by local authorities, and she doubted that these bodies would be able to issue these licences simultaneously with the environmental licence.

The Chairperson asked if it would be possible to remove the atmospheric licensing from municipalities as far as mining was concerned. Adding 60 days to the process would not guarantee that the municipality would be able to issue the licence.

Mr Abader said that the AEL would only kick in after operations had started.

Ms Garlipp said that DEA had dealt with this before. The drafting had been done with a view to a special dispensation for mining.

The Chairperson noted the lack of a representative from the Department of Mineral Resources (DMR). There had been an agreement that someone would be present.

Ms Garlipp replied that the Departments were busy with strategic sessions. DEA would give feedback to DMR. Nothing needed to be changed except for the provisions of AQA. Some of the amendments would be retained.

The Chairperson was still not clear on why this was being done. It seemed that DEA wanted to revert to the previous policy.

Ms Garlipp said that there were amended provision to NEMA. Another amendment had been created to ensure that the 60-day period fell away, but DEA did not want to see this happen.

The Chairperson asked what would happen if the municipality did not issue the licence within the 60 days.

Ms Garlipp said that DEA had proposed intervention in this case, but there might be a constitutional challenge launched.

The Chairperson said that a specific clause could be created in this legislation. There was already a similar clause in NEMLA 2. The same wording could be followed to cover the case of a municipality failing to issue the licence within the time period. The concurrency of municipalities had been created after the Constitution had been drafted, and was in the same schedule as that dealing with national and provincial government relations. A separate schedule would have been better, but this was not the case. It was clear that the national legislation would have priority. DEA had to create the power to intervene where the municipality failed to issue the licence within 60 days.

Mr Rodgers asked if the AEL was issued before or after the commencement of industry. He was informed was that this was issued before operations commenced. Many municipalities lacked the capacity to issue AELs. He foresaw a host of interventions that would delay the development of industry. He proposed that the licensing process should be conducted by DEA in consultation with municipalities.

The Chairperson agreed. The municipalities would still have a say in the process. He instructed DEA to discuss this with DMR.

Ms Garlipp said that a decision was still to be made on whether the listing of residue stockpiles and deposits should be a waste management activity or be subject to norms and standards.

The Chairperson said that this would be done by proclamation. An internal solution was needed.

Ms Garlipp added that there had been three years of discussion on the need to amend the definition of 'mining areas'. Section 24C would be amended. The powers of the Mineral for Mineral Resources would be limited to the areas for which a right had been applied. The term 'mining area' was very wide. This amendment would obviate the need to amend 'mining area'.

The Chairperson did not want to change the definition of a mining area, but did want to prevent DMR from taking what might be unconstitutional decisions in adjacent areas. The power to make environmental decisions in areas in which mining was taking place could be allocated to DMR, but there was not that much merit in allowing this right in adjacent areas.

Ms Garlipp said that 'mining area' could be defined in NEMA. The Waste Act would follow a similar wording. Section 24L of NEMA was currently worded to refer to similarly listed activities in other Acts. A solution would be found. Another outstanding issue was the exploration and production of offshore gas and oil. This was a complicated issue and required more discussion and research. DEA was engaging with DMR. An understanding was needed of the expectation placed on DEA.

Ms Dee Fischer, Director: IEMS, DEA, said that reconnaissance could be included in the definition. This could include desktop studies. DMR felt that the issue was more involved. Reconnaissance included seismic exploration. DMR currently gave permission for these activities.

The Chairperson was worried that there were other structures involved.

Ms Garlipp said that there had been positive comments on the financial provisions. More time was needed to consider these comments. Financial regulations still needed to be considered. Another outstanding issue was finalising the matrix. It was a complex issue.

Ms Garlipp said that a number of amendments needed to be made. A number of amendments were needed to the MPRDA. There were a number of these. The Committee had also made a number of requests.

The Chairperson said that a lot of work had been done. The input prepared for Members was informative. He adjourned the meeting for lunch.

National Environmental Management: Air Quality Amendment Bill
The Chairperson introduced consideration of this Bill:

Clause 1
The Chairperson noted the amendment proposed by the Gauteng government. DEA agreed with this. There were no real comments on the definitions, but there had been amendments.

Mr Shabalala said that the first amendment was the comment by Business Unity South Africa (BUSA) on the preliminary AEL. This was on the term 'commissioning'.

The Chairperson felt that the definition given was vague. He felt that it should rather refer to the actual commencement of operations.

Mr Shabalala agreed.

The Chairperson noted the agreement of Members on the other definitions.

Clause 2
The Chairperson noted an amendment to clause 2, which would amend section 13 of the Act. This read that the Minister 'may establish' a National Air Quality Advisory Committee (NAQAC).

Ms Beaumont said that there was a national committee on climate change. This committee had not functioned for several years. It was to meet four times a year, and was functioning without a legal provision. Once there was such a legal provision, it might be constrained. The committee had been formed, but operated on an ad hoc basis. The type of consultation with stakeholders was extensive and related to a wide array of different requirements.

The Chairperson said that this was a fragmented area. He could not understand why DEA would not want to have such a committee on a formalised basis.

Ms Beaumont said that there were formal consultation processes with municipalities. They did not want the clause removed, but still wished to see it left as 'may'.

The Chairperson asked if DEA wanted this committee or not.

Ms Beaumont replied that the committee was not needed.

Ms Wenger did feel the need for such a committee. Municipalities lacked capacity, and this kind of a body was needed to fill the vacuum.

Mr Shabalala said that section 3A of NEMA was a clause that enabled the Minister to have discretion in establishing an authority. The forum had not yet been established after the clause had been promulgated in 2009. The Act of 2009 had provided for a National Environmental Advisory Forum (NEAF) with various sub-committees. The establishment of NAQAC would have to be in terms of section 3A.

The Chairperson said that the spirit of this clause was to establish an independent body. He asked why this would have to be done in terms of section 3A.

Mr Abader said that section 3A authorised the Minister to establish committees.

The Chairperson ruled that the clause must remain, and that 'may' must be changed to 'must'. All the requirements for NAQAC must be included in this clause or be in the regulations. He felt that the version before him was an example of lazy drafting. He instructed Ms Beaumont to look carefully at what DEA wanted to do with this committee. He did not know why there was a need for a committee, as there were advisers within the department. It would have meaning if it was to be a forum for the different stakeholders.

Clause 3
Mr Shabalala said that clause 3 would amend section 19 of the Act. Currently, the environmental plan had to be submitted within six months of the declaration of the area.

Ms Beaumont said that the period of six months was too short, and this was why DEA wished to extend the period to 24 months. Most of the priority areas had a plan, but all had taken more than six months.

The Chairperson still felt that two years was too long to draft a plan.

Ms Beaumont said that experience showed that the consultation process did take so long. The Waterberg area, which had been declared recently and still lacked a plan, was very complex. Basic modelling and threat assessment alone took longer than six months, after which stakeholders had to be consulted.

The Chairperson asked if DEA did not do its homework before a priority area was declared.

Mr Abader said that there was considerable development happening in the Waterberg area, as an example, and not everything could be anticipated.

The Chairperson said that there should be provision for amendments. The industry would like to drag the process out as long as possible. There would be no legal obligation for 24 months. He doubted that any NGO would support this extension, and only business would have been behind this. He was not satisfied with the 24 months. This was diabolical.

Mr Abader said that there was provision for the Minister to extend the period. Business would do nothing for two years and then request an extension.

Ms B Ferguson (COPE) shared the Chairperson's sentiments.

The Chairperson ruled that the period should stay at six months, with provision for the Minister to extend the period. He rejected a plea to compromise on twelve months. He asked if any substantial comments had been received.

Clause 4
Mr Shabalala said that clause 4 would insert a new section 22A. There had been extensive comment from CER on this issue, which related to the consequences of unlawful conduct.

The Chairperson noted a comment from the Western Cape that the clause did not match the rationale.

Mr Shabalala said that the clause emanated from the second amendment of NEMA. There had been other suggestions on improving the current regime.

Ms Garlipp said that the current NEMA provision was only related to the Minister and Members of the Executive Council (MEC), while most licensing would be at a municipal level.

The Chairperson asked why there could not be a statement that section 24G of NEMA also applied to municipalities.

Ms Beaumont said that some facilities pre-dated NEMA, which had been enacted in 1998. Some of these did not have AELs, and were not even compliant with the Act of 1965. It was a general clause, but did not have the same constraints as section 24G of NEMA. That section could not be applied retrospectively.

The Chairperson said that the clause was written in the same way as NEMA.

Ms Garlipp said that an illegal activity would remain illegal.

The Chairperson said that some rewording might be needed. He understood that municipalities were not covered at present in NEMA.

Mr Abader said that in a section 24G process, there was a protocol at provincial level for authorisation and calculating fines. This provision would now have to be implemented at a municipal level.

The Chairperson said that 24G covered provinces and national departments. The principles remained the same when there was enforcement at municipal level. It would be simpler to make 24G also applicable to municipalities. DEA could not immediately think of a reason why this should not happen.

Mr Shabalala said that some improvements had been suggested for air quality. These were aimed at making the clause more relevant to air quality issues. These were mainly from CER.

The Chairperson said that in sub-clause (7)(b) there was a provision that a licence application 'may' be deferred during an investigation. There was a comment that this should be changed to 'must'. He suggested that the wording remain as 'may'. There were a number of amendments suggested by CER to improve the text. These proposals were accepted. The recommendations from Eden District Municipality was not accepted.

The Chairperson recalled a presenter from CER making a submission about overlapping claims. She had made a valid point that in some cases two applications would have to be made. Mr Alf Wills, a DDG at DEA, had agreed with her.

Mr Abader said that there were two separate processes for the EIA and EMP. He found a comment in the document, but this related to two offences.

The Chairperson found the recommendation to delete section 22A in favour of section 24G of NEMA. The alternate recommendation was to close the loopholes in 22A.

Mr Shabalala said that the suggestion made related to sub-clauses (c), (d) and (e). There would be regulations to include the criteria relating to the imposition of an administrative fine. Regarding the study to be done, the report must include the consequences and impact on the environment including the impact on the ambient air quality and human health.

The Chairperson instructed DEA to make contact with the presenter to determine if the loopholes to which she alluded, still existed.

Clause 5
Mr Shabalala said that clause 5 would add a new subsection 29(4).

Ms Beaumont proposed a wording change to make the clause read better.

The Chairperson said that the comments from Gauteng were noted. They felt that this provision for a requirement for an applicant to monitor, evaluate and report on the implementation of the pollution prevention plan was already contained in other legislation.

Amendment to section 31
Ms Beaumont said that the AQA had been drafted with greenhouse gas (GHG) emissions in mind. Options were created for reducing emissions. DEA wished to declare GHG a pollutant. She proposed and amendment to section 31A of the Act. This would require an operator to reduce the amount of GHG emissions. This might prove to be contentious. There had been no specific consultation with business and industry on this issue. The pollution measures in section 29 might be used to achieve this, but would not be as strong a remedy. One of the reasons for her concern was the current level of consultation with industry. By the end of the current financial year there should be decisions on emission reduction.

The Chairperson said that this would only apply where there was already an activity in progress.

Ms Beaumont said that the first step would be to declare GHG as a priority pollutant. This was not yet the case. The rest could then follow.

The Chairperson said that the best way would be to generate a resolution on this matter. The Committee recommended that the DEA should consider passing such a clause in legislation as soon as possible.

Ms Wenger wanted to know why the stakeholders had not been consulted. This should have happened from the beginning.

Ms Beaumont replied that the process unfolding had been a difficult exercise. It was hard to get full business involvement. She hoped that there would be a report available within one or two months. Amending the legislation seemed to be a good opportunity to introduce the concept.

The Chairperson agreed that it could not go into legislation yet, but was certainly a matter to be considered in future.

Clause 6
Mr Shabalala said that there was another amendment to section 36(3). Changes had to be made as this dealt with a local authority. There was constant reference to 'Minister or MEC' as he was unsure which authority would be relevant.

Ms Garlipp said that provinces could be delegated the authority to issue AELs.

The Chairperson concluded that provinces only dealt with licensing issues when it was delegated to them.

Mr Shabalala said that subsection 36(2) stated that the licensing authority lay with local and district municipalities, but it could delegate this authority to the province.

The Chairperson asked if this meant that it was inappropriate to give this power where there was a lack of capacity.

Mr Shabalala said that the situation differed from province to province. In some cases assistance was needed at national level for projects such as the Sasol refineries.

The Chairperson asked what clause was being deleted.

Mr Shabalala said that subsection (3) dealt with intervention by the MEC, but would be deleted.

The Chairperson said that this would allow the MEC to take over the licensing function. This could lead to a constitutional challenge.

Mr Shabalala replied that section 39 dealt with provincial intervention in local government. This could happen when a municipality failed to fulfil an obligation. This included issuing a directive to the municipality, or even dissolving a municipality.

The Chairperson said that the intention was only to intervene where licensing time frames were not being met. After reading the relevant section of the Constitution, he asked if the power to intervene was being given by legislation or by the Constitution.

Mr Shabalala said that the Constitution only assigned air pollution activities to municipalities.

The Chairperson was nervous about putting in both Minister and MEC. There could be duplication.

Ms Wenger felt that MEC would be more appropriate as the provincial sphere would be closer. She agreed that not all provinces had the capacity, but the Minister should not be overburdened. The first route should be to the province, with the matter only progressing to the Minister if there was a lack of capacity at provincial level.

The Chairperson suggested that both Minister and MEC be left in the clause, but urged Members to consider this matter.

Mr Shabalala said that new subsections (5), (6) and (7) would be added. The Minister would have to be the licensing authority where this function was delegated to the province, where provincial boundaries were straddled, where a project was termed a national priority, in terms of activities listed in section 24(2) of NEMA, and in terms of the Waste Act.

Ms Beaumont had an issue that had not quite been resolved. In (5)(d) the word 'and' was used. If this was changed to 'or', then any activity in terms of these could be automatically lifted to Ministerial level.

The Chairperson said that the activity contemplated could not be listed in terms of both section 24(2) of NEMA and the Waste Act. The use of 'or' was correct there, and 'and' in the final sentence. He asked what had happened to the proposal put forward by Mr Rodgers earlier on mining, that decisions should be made 'in consultation'. This amendment should appear in this clause. Sub-clause (e) might no longer be relevant in this case.

Ms Fischer said that the Minister had the power to issue the licence through the normal 300-day process.

The Chairperson said that if this was done then the municipality would be taken out of the process completely. This might not be such a good idea. Sub-clause (e) made the Minister the only competent authority.

Ms Beaumont said that there could be some strong opposition. Some municipalities did have the capacity, and in fact used AELs as a revenue stream.

The Chairperson said that the implementation might now work, but could be changed later.

Mr Shabalala said that sub-clause (6) made provision for the Minister to issue an integrated environmental authorisation.

The Chairperson asked if the wording of sub-clause (6) was correct. The amendment concerning consultation would have to be made.

Clause 7
Mr Shabalala said that references to section 22 of the Environment Conservation Act had been removed, and it was therefore necessary to amend section 38 of the principal Act. CER had indicated a concern that some applications were not widely publicised, which impacted on the AEL process. CER had suggested that a new sub-paragraph be included in section 38 to specify where copies of the application would be kept. It was the experience of DEA that applications often contained confidential information. Copies would normally be kept at the office of the licensing authority.

The Chairperson said that everything suggested by CER already seemed to be in place. He appreciated that there might be sensitive information, but asked why DEA was resisting this change. He suggested that the proposal be incorporated.

Mr Shabalala said that a comment from Business Unity South Africa (BUSA) had been incorporated.

Clause 8
Mr Shabalala said that clause 8 would amend section 39 of the principal Act. A minor change had been incorporated.

Clause 9
Mr Shabalala said that clause 9 would amend section 40. There was a major section relating to air quality time frames relating to mining. Specific provisions were now being made.

The Chairperson read a comment made by Eskom. This proposal had been rejected.

Mr Shabalala said that this was a decision relating to AEL. In essence, Eskom was not agreeing with the sixty-day time frame for the licensing authority.

The Chairperson was seeing a different proposal in his notes.

Mr Shabalala said that there might be more than one application for a certain activity. Eskom questioned if these could all be issued within 60 days. DEA responded that 60 days was the maximum time frame, and applications could be finalised in a shorter time.

The Chairperson asked about the suggestion from Eskom that the phrase 'Where a certain application has been submitted'.

Mr Abader said that if Eskom was saying that if two separate applications were made, the first step was the environmental authorisation. Only then would the AEL be considered. Eskom did not see why an integrated submission could not be submitted simultaneously.

Ms Beaumont said that this came down to constraints at municipal level. Major power stations would fall under the category of national priority projects, but there might be delays at local level.

Clause 10
Mr Shabalala said that clause 10 would insert a new subsection 41(3). Most of the comment on the validity of a provisional AEL had been to extend the time period from one to two years.

Ms Beaumont said that there was a bit of a dispute amongst her colleagues. She thought that DEA was happy with extending the period to two years.

Mr Shabalala emphasised that this would be from the date of commissioning. The provisional licence would allow for testing. If the results were compliant for six months then a full AEL would be issued.

The Chairperson asked why this should be. If there was compliance within the first six months a full AEL could be given.

Ms Beaumont assumed that there would be a period of testing. She was trying to find a practical number, as two years sounded like a long time to her as well.

Mr Abader said that a provisional licence would be given. After commissioning there would be a testing period. If there was full compliance within the first six months then a full licence would be granted. At present there was a full year to achieve full compliance, and if this did not happen the full licence would not be awarded.

The Chairperson said that harmful emissions would now be allowed for another year without compliance being achieved. This did not seem right to him.

Ms Elizabeth Masekwameng, Director, DEA, said that there were issues in the licensing framework. After a year the company would apply for a licence but the municipality would take some time to do this.

The Chairperson said that a right was being created. If a company could demonstrate its compliance within six months then an AEL would be allowed.

Ms Masekwameng suggested that the applicant should apply for a full licence within a year.

The Chairperson said that it was about the laxity of the facility rather than capacity constraints.

Mr Abader said that the testing after commissioning would evaluate whether expected targets would be reached.

The Chairperson said that all the discussion was about the operator not meeting conditions within one year rather than local government capacity.

Ms Wenger said that there would be teething problems with the commissioning of a plant. A realistic time frame should be set. Excessive emissions during this time might not be deliberate, and some allowances should be made. She felt that two years would be a fair time. She lived in an area where there was a lot of pollution. She felt that the period should be at least one year with a provision for an extension to two years in order to achieve compliance.

The Chairperson accepted the proposal of one year with a possible extension. It should be clear that this was not automatic and the applicant would have to show good cause as to why an extension was justified.

Mr Shabalala noted that BUSA and CER had both suggested a two-year period.

Mr S Huang (ANC) said that major projects like Medupi had experienced serious overruns. The two years would have expired long before it went into production.

Ms Masekwameng said that the answer lay in the definition of 'commissioning'. Medupi was still under construction, and this made a big difference.

Clause 11
Mr Shabalala said that clause 11 would amend section 49 of the Act, and considered the definition of a 'fit and proper' person. He proposed that subsection (b) be removed.

The Chairperson said that removing that clause would mean that only a current director could apply. He felt that (b) must be retained as this could provide a loophole for corrupt activity.

Ms Beaumont wanted to go back to the issue of a 'fit and proper' person. An additional clause might be needed. Subsection ( c ) needed to be retained as is, but there was a need for an additional clause to cover a company that had a director or senior manager that was a director of the company contemplated. The other situation was to talk of a company as a person which had a director or senior manager who is or was a director or senior manager of a company.

The Chairperson said that the clause covered both past and present if (b) was retained.

Ms Wenger asked what would happen if an individual was involved in a new company in an entirely new capacity. It would be wrong to stop a person from earning a living.

The Chairperson said that these were factors to take into consideration and not an absolute prohibition. The clause was talking to a senior position.

Mr Huang said that the Chairperson was correct. Paragraphs (a) and (b) were comprehensive enough.

The Chairperson said that deleting (b) would eliminate the past. The clause was badly worded and could be improved upon. All facts should be considered, but these were specific factors.

Clause 12
Mr Shabalala said that clause 12 would amend section 51. it would define a criminal offence for a contravention of section 28. No offence had been defined for this in the past.

Clause 13
Mr Shabalala said that there were no comments on clause 13, which would amend section 53.

Ms Beaumont said that there had been a proposal relating to reporting in respect of GHG in particular. What DEA would like to do was to use section 53 as an enabling clause for drafting regulations on reporting. There was a specific challenge as DEA would like to work closely with the Department of Energy (DoE). They had an automated system. DEA would like to streamline the system so that companies were not reporting to DoE on one matter and to DEA on another. At present DEA could only gather data on emissions, and at present was only compiling data and GHG manually. The proposed amendments would make the process easier for them.

The Chairperson would allow this as it was only about regulations, but did not like the way in which some matters were being sneaked into the Bill. He did not like the word 'energy information' as it was too vague.

Mr Shabalala said that there were no specific comments on clauses 14, 15 and 15. A list of activities would be developed under section 21. Sections 62 and 63 would be deleted. Schedule 2 would also be deleted as there were already standards in place.

The Chairperson reminded DEA to consult with CER. The issue of consultation must also be sorted out. He proposed the same procedure as with the other Bills. There was also a resolution to be drafted.

Conclusion
The Chairperson was loath to proceed with NEMLA 3 because of all the outstanding issues. He emphasised the need to involve DWA. The work done by DEA was of good standing despite some of the questionable processes followed. He outlined the programme for the following week, which would concentrate on the budget review process. He wanted to see the NEMLA 3 draft the following week, and perhaps an initial briefing on the Waste Bill.

Mr Shabalala said that DEA would not be able to attend the following Thursday.

The meeting was adjourned.
 

Share this page: