National Environmental Management Laws Amendment Bill [B26-2013], National Environmental Management Waste Amendment Bill [B32-2013] & National Water Act Amendment Bill [B3-2014]: deliberations

Water and Sanitation

03 February 2014
Chairperson: Mr J De Lange (ANC)
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Meeting Summary

The Committee met with the legal team of the Department of Environmental Affairs (DEA) to go through the National Environmental Management Laws Amendment Bill (NEMLA 3). The Committee went through the Bill noting a number of grammatical, drafting and wording issues which needed to be amended. From these discussion, three main areas of concentration were on section 14 (c) (8), section 24 (5) and section 79A. Under section 14 (c) (8), the Committee was against residue stockpiles and residue waste being completely removed from the definition of waste and they were concerned about the implications of a new legal regime if this was done. As a way forward, the Department proposed including residue stockpiles and residue waste in the work they were doing on the definition of waste. Turning to section 24 (5), the Committee questioned the issuing of directives by DGs and the suspension of parts of these directives should an appeal process be launched. The Committee recommend the Department change the wording of this clause to convey their intentions as the way the clause was currently drafted did not convey what they had wanted and was not in line with basic legal principles. Under section 79A, the Committee felt there needed to be discretion with the extensions granted by the Department of Mineral Resources. Having a strict timeframe, as was outlined in this clause, would not stand a legal test as it was a complete prohibition on extensions. It was agreed that this clause would be changed.

On the National Water Amendment Bill (NWAB), the Committee rapidly tracked through amendments noting a number of minor issues which needed to be further amended.

The Departments were instructed to take on board the discussions following the meeting and make the further amendments in order for the Bills to be finalised and amendments to be scrutinised once more next week.
 

Meeting report

Opening Remarks
The Chairperson noted that all the Bills the Committee was dealing with needed to be complete by the end of February in order for them to be passed. He had met last night with the team from the Department to go through the National Environmental Management Waste Amendment (NEMWA) Bill and progress made and the chances of dealing with this Bill were very slim. Even though the Department had gone a long way and met with the industry to agree on a definition, what they came up with was unacceptable because it was a definition that basically allowed industry to decide on when something was waste. This was obviously why industry was happy with the definition. He had asked the Department to list everything it wanted to categorise as waste to be put into the Bill. This could be accompanied by a further clause to let the Minister decide further what was considered as waste.  

The Chairperson highlighted that the bigger and more important problem was the levy issue. It was clearly unconstitutional to allow private citizens to raise a levy. The creation of an agency to deal with the levies was not in the legislation at all, which was the problem. This would first need to be passed as a Money Bill but Treasury was not brought on board in this sense. Procedures were not outlined and obviously a Bill could not be passed that did not deal with these issues.  There were a number of complicated and intricate things that needed to be done on the Waste Bill. If an acceptable definition could be sought at least the Committee could pass that. 

The Chairperson stated that the Department of Mineral Resources (DMR) had continued to undermine the Portfolio Committee’s on Water and Environmental Affairs and Portfolio Committee on Mineral Resources – an issue first raised by Ms Wenger in last week’s meeting. Yesterday it had come to his attention that the DMR had gone behind the Committee’s back to consult the state law advisors. He had asked the DMR DG to explain, in writing, why the processes of Parliament were being undermined by that department.

Ms M Wenger (DA) supported the sentiments of the Chairperson and felt strongly that the issue should be taken further. DMR owed the joint Committees an apology and explanation. The Committee could not let this go by as DMR did it once and DMR could do it again.

Mr J Skosana (ANC) echoed that it would not be tolerated and the DMR could not “drive” politicians. He thought the Committees needed to call both departments to deal with their attitudes.

The Chairperson suggested the Committee look at what to do further once he received the letter from the DMR DG.

National Environmental Management Laws Amendment Bill
The Chairperson noted that if the Bill was not finalised today it would be so tomorrow for Members to take to their caucuses. The outstanding issue he wanted the Department to clarify was to look at the appeals process. There were still issues to be cleared up concerning the National Water Amendment Bill (NWAB) so that it could be finalised the next day.

The Chairperson began reading through the Bill noting a number of minor grammatical amendments which were needed. Issues relating to the style of drafting and wording were also debated.

The main issues to come out of this reading through of the Bill included: 
Section 24S: Management of residue stockpiles and residue waste:
The Chairperson was against stockpiles being completely removed from waste. Was it the intention of the Department to completely remove this from waste and create a different and new legal regime for stockpiles and residue deposits? When the Bill left the Committee it would not be known what was to be done with stockpiles and residue as it had been removed from waste. This could not be the case because all the sludge dams were polluting water at the moment.   

Mr Alf Wills, DDG: Environmental Advisory Services, DEA, explained new operations would be subject to the environmental impact assessments (EIAs). This needed to be separated from existing mine dumps and slime dams etc. The intent was for the existing residue stockpiles and residue deposits to be dealt with under NEMA.

The Chairperson asked why the choice was made to remove residue stockpiles and residue deposits from waste.

An official from DMR responded that, in terms of process and mining methods, previously the technology was such that optimum extraction did not happen so some minerals were still retained in the rock formation. With improvements in technology, further extraction of minerals was taken from the stockpiles.

The Chairperson did not mind that but he was concerned that real waste was being removed from the definition of waste. Sludge dams were polluting water heavily especially in Gauteng. He could not understand why there was not another clause explaining what the DMR official had just outlined to exclude it from the definition of waste. Now everything under residue stockpiles and residue deposits were being removed from the definition of waste and a whole new legal regime had to be created just for that. It made no sense.

Mr Ishaam Abader, DDG: Legal, Authorisation & Compliance Inspectorate, DEA, said the matter was a bit more complicated because some of the waste was radioactive which was regulated under the Hazardous Substances Act.

The Chairperson said the legal regime had been completely changed. He noted this would also provide no protection for the communities who had cried about this issue by completely removing it from waste.   

Mr Wills, as a way forward, suggested Mr Mark Gordon, who was drawing up the section on the definition of waste, include this matter under the definition of waste providing for the exclusion of those stockpiles which were to be reprocessed.

The Chairperson felt the Committee would be much more comfortable with that. The big polluters like sludge dams had to stay under the legal regime dealing with waste. He wanted a clause to state that the regulations dealt with under 24S (1) must be passed at least three months after the Act had come into operation. This had to be done in a way that these issues were retained because the Waste Act might not be passed during this parliamentary term.  

Section 14 (c) (8):
The Chairperson questioned the issuing of directives by DGs and whether, in the case of lodging appeals, the directive would be suspended.

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, DEA, explained this followed from an earlier amendment in 2009 to allow for not only the Minister to issue directives but to enable DGs and Heads of Departments but she did not think the consequential amendment had been made.
 
The Chairperson said the question was whether, if an appeal was lodged against a directive, if the directive by the DG would be suspended until the appeal had been done.

Ms Garlipp responded that some areas of the directive needed to be kept alive, for example, to contain pollution or do some immediate remediation. The rest of the directive could be suspended then.

The Chairperson noted that this was not what the clause was saying and if it was the intention then the wording needed to be changed to convey that. 

Mr Wills added, from personal experience issuing directives, the process was to cease the activity pending an investigation of the legality.

The Chairperson repeated that the wording should be changed to explain that some parts of the directive would be suspended while others would not. The way the clause was currently drafted did not convey that. He suggested the team look at section 28 to maybe create a situation where the competent authority decided which aspects were still completely necessary to retain for the prevention of pollution while the rest would be suspended under the appeal.

Mr Wills said they had done so under subsections 9 and 10.

Mr Abader said that, from an enforcement perspective, this would bind the Department which they wanted to avoid doing.

The Chairperson said it was a basic legal principle that a directive or order could not be amended in the middle of an appeal process.

Mr Abader clarified this would be done after considering the appeal lodged.

The Chairperson felt this was even worse.

Mr Wills suggested the insertion of a clause to say the Minister must identify which elements of the directive must not be suspended pending the outcome of the appeal.  

The Chairperson added that the suspension should reference a specific clause and that the Minister may only do it to avoid damage to the environment and not any other reason. The team should work on that because they were on the right track. The amendment of a directive in the appeal process could only be done if there was a procedure to engage with the applicant.

Mr Abader provided a practical example of the Minster modifying the directive. 

The Chairperson said the fundamental issue was not to link this to the appeal process. It was to be carefully drafted as to which parts would be suspended and which parts would not be. This had concerned him about whether the Department had missed anything else in their appeal process. He suggested the team create a catch all phrase. 

Section 47CA
The Chairperson noted his problem with extension granted by DMR. There had to be discretion. He had asked the Department many times to not get their advice from DMR as this Department got these things wrong all the time because they did not understand legal consequences. This clause would get struck down by the court because it was a complete prohibition of extensions. If he was any NGO he would send the application one minute late to make the Department look stupid.

He suggested the clause say that time periods could only be extended in exceptional circumstances. He was happy with 30 days.  

79A Delegation by Minister responsible for mineral resources
This clause allowed for the Minister responsible for mineral resources to delegate a function entrusted to him or her in terms of this Act to, besides (a) a DG, (b) an official or to the holder of a specific post in the Department responsible for mineral resources.

The Chairperson thought an “official” could refer to any low ranking clerk or a cleaning lady.  Surely the Department did not want to go lower than a director’s post. He wanted the clause to be changed to allow for delegation to a more appropriate level as these were huge powers.

Amendment of section14 of Act 62 of 2008
The Chairperson was concerned about the possible implications of this clause. The time frames associated with the referenced Mineral and Petroleum Resources Amendment Act (2008) and its clauses were diametrically opposed to NEMLA and once the provisional arrangements kicked in, it would overturn the Bill. This section would have to be reworded.

Short Title and Commencement
The Chairperson wanted three months for the National Environmental Management Laws Amendment Act, 2014, to come into effect on a date fixed by the President by proclamation in the Gazette. He did not want this to be held up by DMR again.

The Chairperson noted the important issues for the Department to sort out was the residue stockpiles and residue deposits in relation to waste while the rest of the amendments were of a technical nature. These were quite easy changes. He wanted every single comma to be in place as the next day the Committee would just go straight into the changes effected following today’s meeting.

Mr Wills noted they were trying to organise a meeting with the DMR and questioned whether a definition of waste should be included in this Bill.

The Chairperson felt this should be left as a second option. Instead of a broad definition of waste, he thought the Department should rather insert a schedule. The ones that were not covered like plastic, glass, metal etc should be listed. There still needed to be a generic definition to ensure everything was captured and he thought this was going to take time. The definition could not be left which allowed business to decide what waste was and would create uncertainty in government. If the Department did not finish with the Waste Act the Committee could consider putting it in NEMLA Bill. He noted that the next day would be the last day for the Committee to go through the Bill as Members needed to take something to their respective party caucus.

The Chairperson requested Ms Garlipp compile a generic slide presentation outlining the major amendments to the legislation for the next week or so.

National Water Amendment Bill
The Chairperson began reading through the Bill noting a number of minor grammatical amendments which were needed. Issues relating to the style of drafting and wording were also debated.

The main issues to come out of this reading through of the Bill included: 
Amendment of section 26:
The Chairperson wanted the insertion of a 30 day clause to allow for the Committee to know, at least 30 days before the regulations were put into the government Gazette, when they were tabled in Parliament.

Short Title and Commencement
The Chairperson wanted the National Water Amendment Act, 2014, to come into operation on the same date as the other DEA legislation.

Speaker Memorandum
The Chairperson then read out the document to Members as they did not yet have a copy. A number of minor grammatical amendments were noted.

The Chairperson suggested the team insert more information and elaborate on the document to make more sense to the Speaker. He also wanted the insertion of a paragraph to explain the timeframes. The Committee would go through all these amendments the next day before moving onto the DEA legislation.

Parliamentary Law Advisors Memo
The Chairperson noted he would send Members a document from Ms Van der Merwe, a parliamentary law advisor, who wrote an opinion/memo saying she was happy with the Bill.

Tomorrow at 10h00 the Committee would only look at the amendments following today’s meeting. If necessary the departments should consult Ms Van der Merwe on all the amendments. The Members would then have documents to take to their caucus. There would also be a slide presentation to come outlining the major amendments and changes made from the original position. It was a possibility that if Mr Gordon fully finalised the definition of waste, the Chairperson would consider putting it under all the other amendments made to waste. He needed to be 100% happy with the clause and would not hold up the Bill for it 

The meeting was adjourned.
 

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