National Environmental Management Laws Amendment Bill [B26-2013] (NEMLA 3: Mining); National Environmental Management Waste Amendment Bill [B32-2013](NEMWA); National Water Act Amendment Bill (Committee Bill)

Meeting report

National Environmental Management Laws Amendment Bill
The Chairperson outlined that in today’s meeting the Committee would simply be going through amendments following yesterday’s meeting to have something to take to party caucuses as soon as possible. He proceeded to take the Committee through the Bill to go over these changes. During this reading some minor grammatical and wording changes were made.

During the reading the Chairperson informed the Committee that he had discussions with the Director General of the Department of Environmental Affairs and an official from the Department of Mineral Resources (DMR) who had indicated that during the discussions on the Bill there had been consultation with the state law advisors. However, since the Committee’s last meeting no instructions were given to the state law advisors.  He accepted this and would like to move forward on this basis. He was not questioning DMR but something must have happened that Mr Enver Daniels, Chief State Law Advisor, suddenly arrived at the Committee’s meeting yesterday.

The primary areas of focus in this reading included:

Section 8
The Chairperson, under section 8(c) wanted it to be made clear that Acid Mine Drainage (AMD), or the technical term used for it, be stated as part of residual environmental impacts. He felt the fact that AMD was not included was lazy drafting on the side of the Department. Similarly under 8(a) the term “extraneous water” seemed inadequate as AMD was more than that, it was polluted water. He wanted alternative wording for these clauses by the end of the day.

24S: Management of residue stockpiles and residue deposits
Mr Alf Wills, Deputy Director General: Environmental Advisory Services, DEA, explained this was a complicated section to draft. The Department had created the offence and related definitional issues in the Waste Act but this was also included the section as a reference in NEMA as the umbrella legislation.

The Chairperson thought, following yesterday’s meeting, that the stockpiles and deposits still available for re-use would be kept separate while the other residue stockpiles and residue deposits would fall under the Waste Act. He could not see this.

Mr Wills replied that this had been done in the last definition of waste where the last clause in the definition said that materials which had been reused, recycled and recovered were no longer waste. Residue left after the extraction of materials would then become waste again to be managed in accordance with the Waste Act.

The Chairperson noted that this amendment to the definition of waste would need to be made. It would be legally unconscionable to remove residue stockpiles and residue disposal from the definition of waste, as was suggested. It would be hugely problematic as a whole new legal regime would need to be created just to deal with residue stockpiles and residue disposal from mines.

An DMR official agreed and found the amendments in order. He did, however, think consultation on implications were needed, for instance, for requiring a licence for residue.

The Chairperson said the industry, not just mining, wanted to decide what waste was. This amendment allowed the Minister to decide what waste under reuse and recovery was. There were no negative implications about the fact that all materials not under reuse and recovery, would be considered waste. If there was any negative impact it would come from DMR, not the law. There were capacity issues within departments but the law could not be written to accommodate that.

He noted that clauses 21, 22, 23 and 24 of the Waste Act, and section 24S under NEMA, collectively created a legal regime for waste under mining. He felt comfortable with this instead of removing residue stockpiles and residue disposal completely from waste.

Section 43
The Chairperson was concerned that the insertion of 43(9), which dealt with the suspension of parts of a directive in the case of appeal processes, and the use of the phrase “in order to protect human health or the environment” was too wide. He suggested the wording be altered along the lines of “strictly in exceptional circumstances where there is imminent threat to human health or the environment”. He agreed with the overall principle of the clause.

National Environmental Management Waste Amendment Bill
Section 14
Mr Wills explained that the transitional arrangements of the Act were in operation but not fully effected.

The Chairperson asked what this meant.

Mr Wills replied that the arrangements had been assented to by the President but were not to be fully effected until 8 December 2014. The Chief State Law Advisor had advised that the NEMLA Act needed to be fully effected one day prior to the NEMWA Act coming into effect. 

Ms Linda Garlipp, Chief Director: Law Reform and Appeals, DEA, added this was a complex situation. The section could not be deleted because it was already in operation but it did not yet apply to minerals in terms of the mining provisions.

The Chairperson noted that “not in effect yet” meant nothing in law. He understood that once legislation was put through in a proclamation then it was law. The Department not implementing the legislation was another story. He suggested alternative wording be used to convey the intentions of this clause. He asked that the Department consult the law advisors on it and come back to him.

National Water Amendment Bill
The Chairperson was exasperated that the Department did not colour the amendments proposed following yesterday’s meeting. He wanted the ease of simply having to go through the relevant amendments and not the rest of the text.

The Chairperson swiftly went through the Bill noting further changes which needed to be made.

Speaker’s Memorandum
The Chairperson read through the document noting further changes which needed to be made following yesterday’s meeting. These changes were largely of a grammatical and technical nature. He was not happy that the Department did not include information on the processes and timeframes. He requested that Mr Wills take personal responsibility for this document and those on Water and to fix them up. If these things were not done, the Department’s Bill would not be passed. When he thought they were ready he would send it to Members. He was fed up that a basic piece of work could not be done satisfactorily after so many months. The Department would not leave Cape Town until these documents were completed.   

The Chairperson would circulate these documents to Members once they were completed. He asked them to keep Tuesday 11 February provisionally open for a meeting to ensure all bases were covered.

Definition of ‘Waste’
Mr Wills explained that for the proposed definition on waste, the Department had met with Treasury and the industry on the matter.

The Chairperson asked if the definition was based on a list of waste. He wanted the finalised list.

Mr Wills explained the list was in two parts and he had one presently.

The Chairperson was not pleased, saying Mr Wills was skirting around the question. If there was not a finalised list he felt the matter was not worth discussing.

Mr Wills said the list was based on the broad categories of waste as defined in the Waste Act which included business, hazardous, inert, medical and mining waste including residue stockpiles and residue deposits. There was a proposal for the insertion of a clause based on a list of waste as defined by the Minister and proclaimed by notice in the Gazette within six months of this Act being published in terms of section 81 of the Constitution.

The Chairperson said this was not a list but a definition of a definition. He would not move on this clause until he knew what every piece of waste was contained in a document.

Mr Wills explained that in the production of such a list the Department would need to consult stakeholders.

The Chairperson said the Department needed to create certainty over waste. Mr Mark Gordon, from the Department, had informed him the European list on waste was 35 pages. He could not understand why this could not be copied as far as what was relevant to waste in SA. A nonsense definition had already been come up with after consultation. The Department had spoilt their opportunity on this matter as the Committee was not meeting tomorrow.

Levies
The Chairperson asked what had happened on the levy issue.

Mr Wills explained the Department had consulted Treasury. One of the clauses was the Objects of the Act and dealt with norms and standards, industry plans, integrated waste management plans and other tools, instruments, processes and systems. In terms of the finance, there would be three insertions.

The Chairperson repeated that he wanted to know what the Department had discussed with Treasury for the agreement on the levy.

Mr Wills said, from the discussions with Treasury, the agreement was for the details of the procedures of the levy charges to be outlined in a Money Bill. In this Bill, provision would be made for the levies to be charged and collected through the national fiscal system, and for Treasury to be responsible for promulgating the tariffs and procedures for collection. The levies or charges would then be redirected to the agency and for the agency to be empowered to redirect those funds.

The Chairperson asked if all these clauses had been drafted.

Mr Wills indicated they had been. This afternoon, in summary, the team would come to the Chairperson with a list and a redrafted definition of waste with the amendments to the Waste Bill that the Committee had already requested and the three clauses inserted related to the user charges.

The Chairperson asked the Committee to indulge the Department. He would meet with them this afternoon. If all the documents were in a state where further amendments were needed the Committee would meet next week Tuesday 11 February. If they were not ready, the team would literally be chased away. The three main areas were the issues of the agency, levies, the definition of waste and to ensure provinces did not duplicate waste streams.  The other matters were of a technical nature. The National Water Bill also needed to be sorted out.

The meeting was adjourned.