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ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
9 November 2004
ENVIRONMENTAL IMPACT ASSESSMENT PROPOSED REGULATIONS: BRIEFING
Chairperson: Ms E Thabethe (ANC)
Documents handed out:
Progress in development of new Environmental Impact Assessment (EIA) Regulations
The Department presentation explained the need for the new Environmental Impact Assessment regulations as the existing EIA process was complex and did not allow for speedy processing of applications. Consultation on how the system could be improved was extensive and a 140 public submissions were received. The proposed changes to the EIA process were outlined.
Mr P Lukey, Chief Director: Regulations Services, explained the need for the new regulations as the existing regulations did not allow for a speedy processing of applications but instead placed a high administrative burden on officials and caused delays. The principles underpinning the new regulations were to ensure the streamlining of the process and provide adequate information up-front for sound decision-making by officials while reducing the unnecessary administrative burden. The consultation process in compiling the new regulations was described and the comments received by the public were summarised for the Committee. Mr Lukey then explained the changes in the proposed approach and in what way it differed from the previous process (see document for detail).
Mr A Mokoena (ANC) thanked the Department for ushering in a progressive dispensation. He however raised concerns over the apparent lack of Black participation with the EIA process especially with regard to environmental degradation happening in the townships. He asked for clarity on the role of municipalities in the EIA process, given the fact that development took place at the local level of the government. Between the three levels of government, who had the right to impose authority over a specific application? He also asked what could be done with charlatans posing as EIA practitioners.
Ms M Ntuli (ANC) asked whether there would be a reduction of staffing. She also asked how the workshops had been co-ordinated and if they were successful or not.
Mr G Morgan (DA) asked what could be done to monitor the additive and cumulative impact within the EIA process. He referred to the Environment Management Framework, section 3 in the regulations, and said that he was of the view that there would be a great burden on municipalities in formulating these Management Frameworks Further how could it be checked that these Management Frameworks were correctly done?
Mr L Greyling (ID) asked Mr Lukey to unpack what went into the term "screening". Secondly he asked if there was any way to counter a situation where the same consultants are used to do EIA and ended up not picking up on issues they should be picking up. Lastly he asked if mining would also be included in the EIA.
The Chair referred to the "listed activities" in the document and asked the Department to unpack the criteria or barometer used to say this would have 'small' or 'little' impact. What was the criteria used to identify a highly sensitive area and how did the Department link this up with development as well as checking that it would not create problems in the future.
Response by Department
Dr C Olver, Director General, commented on the question about mining by saying that the principle adopted in approaching the new regulations had already been decided on by Parliament when it passed the amendment to the National Environmental Management Act (NEMA). The principle was to adopt an equitable approach to all activities when dealing with EIA. Historically there had been some exemptions and mining had been exempted from the EIA process. Authorisations with regard to mining had been dealt with by the Department of Minerals and Energy - but this was assigning it both a player and referee role and this was not appropriate, given that its role was to promote mining. There was no longer any sector that would be exempted from the EIA process. Genetically Modified Organisms (GMOs) were also pulled into the EIA net for the first time. In Category One any release of a GMO into the environment required an initial screening. In Category Two all mining and the associated activities were listed and those required a full EIA.
Mr P Lukey, referring to the three areas in the process, scoping, screening and environmental impact reporting, said that the Committee could consider these as series of services. In the screening process, the Department screens out issues where a decision can be made in terms of a standard guideline to deal with an activity that happens continuously and is well known. For example, a mobile diesel tank on farms. If the tank contains diesel, the potential impact could be that it leaks or falls over. If it were properly constructed, there would be bundling around it which could capture the leak which is quite a safe thing to do and it would not need to go through an environmental impact assessment. So that would be part of the screening process. In the screening process, things which have a limited environmental impact are screened out.
He said the scoping process was a way of exploring the development to tease out areas of concern. For example what impact would it have on the social and cultural environment in that particular area. So scoping asks the questions. He said the idea of BEE and public participation, certainly participation of affected communities, was what the whole process of Environmental Impact Assessment was all about. The scoping process was supposed to get people affected by the development to come and say what their concerns were. There needs to be awareness building so people can understand what the implications of the development are. Community workshops around the N2 toll road is a good example of empowering people and being good process.
After all aspects had been identified, then the research happened. Those questions that were brought up in the scoping process were answered in the Environment Impact Report. Scoping provides the questions. The Environment Impact Report answers those questions. Based on those answers, the government makes the decision. So that is the process in summary.
Mr Lukey explained that the application would go to the Department for approval. The screening document will be part of the application and will pick up on those matters that do not require scoping and will allow immediate authorisation and a turn-around time of two to three days instead of at least six to seven weeks. At the same time the quality of the decision from the shorter process will not be affected. On the matter of litigation, there will always be people who object to a decision no matter how high the quality of the decision. However the intention is to ensure that the process is so well defined and so well carried out, that if the government does have to go to court, it will succeed because it has its house in order. Of course, the process requires capacitated people and the new regulations will have a fully detailed implementation manual.
On the role of municipalities, he pointed out that in many instances, the municipalities themselves were the developers. To answer the question of who was the authorising agency, the provincial authority was the competent authority except in certain instances:
- where an applicant was an organ of state,
- where the application had policy implications,
- where the application had a development that crossed provincial borders such as roads and railway lines. In those instances, the application was passed to the National Department.
Mr Lukey referred to the question asked about fly-by-night consultants producing work of dubious quality and said that the NEMA amendment now required EIA practitioners to be registered and this was important in order to deliver a uniform code of practice to counter this problem.
Mr Lukey pointed out that "the reduction of the administrative burden" did not mean that the Department was referring to a reduction of jobs. The Department was instead referring to a situation where the work for an official was "less paper-pushing and more meaningful and impactful" and enabled the staff to be more productive and make quality decisions.
He said that the provincial workshops were organised by provincial government themselves and were very well attended. Some of them had quite heated debates but all were exceptionally useful and the comments were pulled into the final reworking of the regulations.
In reply to the question of monitoring cumulative and additive impacts, Mr Lukey agreed that the Department had been weak at monitoring but this was a structural issue that had been addressed by restructuring the Department and most provinces were following this route which was to close the governance cycle beyond authorisation to compliance monitoring and to enforcement. The good thing about the new regulations was that they could now vary the record of decision over time.
In terms of the Environmental Management Frameworks (EMF), he agreed that these were a kind of mini strategic environment assessment. For example in a small light-industrial area, there was no reason for the Department to consider socio-economic studies for sixteen different light developments in that area. If the municipality had an EMF indicating how that area had been zoned and how it wanted it developed, any applications could be seen in that context and this would speed up the application process. The municipality had to spend time on the EMF but it would be beneficial in the long run.
On the huge issue of independence of consultants, he said the Department had tried to create mechanisms to ensure levels of independence. For example, the majority of the funds earned by the consultant cannot come from the applicant, there cannot be in-house consultants and the consultant cannot have remuneration based on a positive outcome. However, some people say that just having the consultant paid by the applicant is a conflict of interest. But the alternatives have been explored and are not practical so the Department is sticking with the NEMA principle that the polluter pays. The Department had means and ways and tests of ensuring that the consultant is independent.
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