NEMA Amendment Bill [B36-2007]: briefing; National Environmental Laws Amdendment Bill [B35-2007]: adoption

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
10 October 2007
NATIONAL ENVIRONMENTAL MANAGEMENT AMD BILL: BRIEFING; NATIONAL ENVIRONMENTAL LAWS AMD BILL: ADOPTION

Chairperson: Mr L Zita (ANC)

Documents handed out:
Proposed amendments to National Environmental Management Act, 1998 (NEMA)
National Environmental Management Amendment Bill: Clause by clause explanation
National Environmental Management Amendment Bill [B 36-2007]
Clause by clause analysis: National Environmental Laws Amendment Bill [B35-2007]
National Environment Laws Amendment Bill [B35-2007]
Environment Conservation Act 73 of 1989
National Environmental Management Act 107 of 1998
Atmospheric Pollution Prevention Act 45 of 1965
National Environment Management: Air Quality Act 39 of 2004

Audio recording of meeting

SUMMARY
The Committee were briefed on the National Environmental Laws Amendment Bill [B35-2007] and adopted it unanimously without any amendments. It was a technical bill to ensure a smooth transition between the old and new environmental legislation as well as to clarify the status of Environmental Management Inspectors as peace officers

There was also a briefing on the changes to the National Environmental Management Act which needed to be aligned to the approach taken in rationalising the Environmental Impact Assessment (EIA). The amendments were to create a more streamlined process, to allow for more spatial tools to be utilised and to be in accordance with the Promotion of Administrative Justice Act. The enabling provisions of Chapter 5 were to move away from the focus on the EIA as the only tool to ensure proper environmental management of development activities in order to improve the efficiency and effectiveness of the Environmental Impact Management system.

The Committee expressed their concern at allowing the Minister of Minerals and Energy to be a competent authority, specifically in reference to mining authorisations. However, it was clarified that the Department of Minerals and Energy had legislation that dealt specifically with mining authorisation. There were also concerns about the clause that provided for financial assurance by those who had applied for an activity. This clause stipulated that finances had to be provided upfront. The Committee predicted that business would not be pleased with this clause, even though it was already in the principal act.

MINUTES
National Environmental Laws Amendment Bill [B35-2007]
The Department had provided a briefing on this Bill on 5 September but had been asked by the Committee to provide a clearer briefing. This was provided by Ms Joanne Yawitch, Deputy Director General: Environmental Quality and Protection.

She explained that over the past couple of years, DEAT had been involved in a major Law Reform Programme. During the transitional period between new and old legislative regimes, this Bill ensured consistent transition and attended to any technical oversights in drafting. The outdated pieces of National Environmental legislation covered environmental impact assessment, biodiversity and protected areas, air quality and waste management, and integrated coastal management.

Certain parts of the legislation pertaining to these issues had been replaced by new legislation. Part 5 of the Environment Conservation Act, 1989 and EIA Regulations were replaced by Chapter 5 of National Environmental Management Act, 1998 and EIA Regulations. National Environment Management: Protected Areas Act 57 of 2003 and the Biodiversity Act 10 of 2004 were replacing the National Parks Act. The Atmospheric Pollution Prevention Act, 1965 and Part 4 of the Environment Conservation Act, 1989 would be replaced by the National Environmental Management: Air Quality Act 39 of 2004, and the National Environmental Management: Waste Bill. The Sea and Shore Act, 1935 would be replace by the National Environmental Management: Integrated Coastal Management Bill.

A second objective of the Bill was to clarify the status of EMIs as peace officers. Ms Yawitch explained that DEAT had decided to centralise all enforcement powers and that in May 2005 the Minister of Environmental Affairs and Tourism was given powers to designate Environmental Management Inspectors (EMIs). The functions of the EMIs were to enforce and monitor compliance within the mandate. A large inspectorate had been established that went across national and provincial governments. It was critical to ensure that the legislation applying to the EMIs was clear and they were given the required powers and tools to carry out their functions.

During the process of implementation of the Environment Conservation Amendment Act, it was noted that there needed to be added a penalty to the criminal offence of failing to comply with a compliance order and rectifying certain cross references with regard to the illegal discarding and disposal of waste. There was a legal loophole with regard to the disposal of waste which had to be rectified. There were also technical and minor amendments that needed to be done.

She then went through each of the clauses: see the Working Document for the Clause by Clause analysis of the National Environmental Laws Amendment Bill [B35-2007].

Ms Yawitch concluded that these were essentially technical amendments that sought to bring about coherence and consistency and to avoid duplication and legal loopholes.

Discussion
Mr Mokoena asked if the EMIs had a national commissioner and if so what was the title of that person. He added that there should be a national commissioner.

Mr Sonnyboy Bapela (Chief Director: Regulatory Services: DEAT) explained that the EMIs were ranked according to grading, ranging from Grade 1, being the highest, to Grade 5 which was the lowest.

Mr Mokoena remarked that the training given to the EMIs had to nationally accredited.

Ms J Chalmers (ANC) commented that the Amendment Bill was quite technical. She asked for an example of the sort of offence that would incur one of the major fines mentioned.

Ms Yawitch clarified that fines have a maximum and therefore can be any amount up to that maximum. The Minimum Sentencing Act would assist the magistrates and the judicial officers in their decision regarding sentencing and fines. Any contravention that was covered in the Act would allow the Magistrate to link fines or sentence to a particular contravention. Legislation allowed EMI’s powers of arrest, search and seizure, issuing of search warrants and other policing powers. EMIs were trained in the same way as peace officers. This would bring clarity to people challenging their powers as peace officers, that they are peace officers and it would avoid duplication.

Ms Chalmers said they would appreciate a meeting about and with the peace officers.

Ms Yawitch replied that a decision had been taken by the Department of Justice to pilot environmental courts in Hermanus and Port Elizabeth. She understood that given the budget restraints in the Department of Justice, a decision was taken not to continue with the environmental courts. DEAT felt that the pilot environmental courts were successful and indicated to the Department of Justice their displeasure at the discontinuation of the courts. However, with the Environmental Management Inspectorate, there was a larger scale of operation and working together with the criminal justice authorities. For instance DEAT legislation had been integrated into the curriculum at the Justice College. The cases that dealt with the contravention of Environmental Legislation now went into the conventional court system.

Mr A Mokoena (ANC) made the point that presentations should enable the Committee to make informed decisions and should be coherent. He added that the inclusion of examples would assist in understanding the more technical aspects of the Bill. He mentioned that he had heard of an arrest through the media made by the EMIs. He asked which law would be utilised to ensure successful prosecution and at what court would the hearing take place.

Ms Yawitch replied that they would verify if non-compliance had taken place. Then a determination of whether or not there were permits for the facility and where there were any contraventions of the conditions of the permits. There was also a general catch-all clause in NEMA, however this clause was very vague. Prosecution would take place in the conventional courts.

Mr Bapela added that in future presentations, DEAT would give details on the successes of the EM inspectorate.

Voting on Bill
Once the Chair deemed that the Committee were all in agreement with the Bill, he read the motion of desirability that stated that the Committee found the National Environmental Laws Amendment Bill [B35-2007] desirable. The Committee then unanimously adopted the Bill without amendments.

National Environmental Management Amendment Bill [B36-2007]
Ms Yawitch explained that the Environmental Impact Assessment (EIA) had been overhauled to streamline the processes, introduce strategic tools and integration of processes. The National Environmental Management Act (NEMA) as the primary law would need to be amended to align with this approach. The enabling provisions of Chapter 5 were to move away from the focus on the EIA as the only tool to ensure proper environmental management of development activities to improve the efficiency and effectiveness of the Environmental Impact Management (EIM) system.

In order to do this there had to be increased clarity through amendments and by inserting definitions of terminology. There had to be a provision for other tools besides the EIA, improved cooperative governance, new provisions for integration and alignment of regulatory processes, to strengthen provisions to use spatial tools in environmental impact management, new provisions for management, including exemption provisions and checks and balances, and an alignment with the Promotion of Administrative Justice Act (PAJA).

Ms Yawitch added, with regard to alignment of regulatory processes, that norms and standards would be introduced that would expedite the process and reduce or avoid duplication. For instance the use of above ground storage tanks. If one had met the requirements, then starting proceedings for each tank would not be necessary.

Mr Mokoena asked if disused petrol stations were regarded as ground storage tanks.

Ms Yawitch said that there was provisional legislation with the Department of Minerals and Energy with regard to decommissioning those petrol stations in a way that was meant to prevent pollution. She agreed that this issue required attention.

Ms Yawitch explained that Sections 24 and 25 contained the provisions for regulatory processes in terms of Integrated Environmental Authorisations. In her Powerpoint presentation, she highlighted what the relevant subsections currently provided for and why changes were needed (see document).

Ms Yawitch then presented a detailed clause by clause explanation of the National Environmental Management Amendment Bill (see document). The following clauses raised discussion:

Discussion
Section 1 of the Principal Act, Clause 1: Definitions
1.1.1 Activities
Ms Liza McCourt (Chief Director: Environment Impact Management: DEAT) clarified that the definition allowed one to assess the technology once and not every time there was a new development.

Mr Mokoena asked if it was possible to insert the word ‘trial run’ as part of the exclusions.

Ms McCourt replied that ‘trial run’ could be termed as a specified activity.

1.1.1 Competent authority
Ms Yawitch pointed out that additional information was added to the definition of “competent authority” as section (b) “the evaluation of the environmental impact and the granting, amending or refusing of environmental authorisation in respect of mining, prospecting, petroleum exploration and production, means the Minister of Minerals and Energy”.

This amendment was added as a result of the agreements between the Minister of Environmental Affairs and Tourism, the Minister of Minerals and Energy and the Deputy President on the issues of mining and EIA and how these should be handled. Although the issues were not completely concluded, there was an agreement that there would be one EIA system for the country. This would include mining and provision would be made for the Minister of Minerals and Energy to be a competent authority, in order for the Department of Minerals and Energy to carry out the EIA system and to avoid duplication of the EIA system.

Mr L Khorai (ANC) asked if the issues with regard to the Department of Minerals and Energy were resolved.

Ms Yawitch answered that they were allowed to continue with the current amendment. She added that processes regarding the legislation that concerned both departments, the Minerals and Petroleum Resources Development Act, were back on track.

Mr G Morgan (DA) asked from a departmental point of view, if they would prefer to be the only competent authority in terms of consistencies, or if there were reasons why it may be beneficial to allow the Minister of Minerals and Energy to be a competent authority for mining authorisations. He was concerned that it this could create an opportunity for other departments and Ministers to become competent authorities.

Mr Mokoena agreed with Mr Morgan. He added that NEMA was supposed to be overarching legislation, however if one exemption was allowed for the Department of Minerals and Energy and ‘pigeon holes’ could be created for other departments.

Mr Morgan followed up with the example of the growing number of open-cast mines in Mpumalanga and the environmental issues surrounding this. He declared that DEAT should be the only competent authority in these types of matters.

Ms Yawitch replied that there was substantive legislation that dealt with mining authorisations. The DME had a large body of people in each of the nine provinces that dealt specifically with mining authorisations.

Ms Chalmers commented on the fact that currently the DME could do their own EIA, but there was an appeal then DEAT would be the overriding authority. This would lead to a hugely time consuming process. She foresaw that it could lead to many problems.

Ms Yawitch replied that in the mining system the Minister could not be the authority on both the EIA and the appeal, therefore the Minister of Minerals and Energy would the approve mining authorisation and the Minister of Environmental Affairs and Tourism would be the one to deliberate on the appeal, if there was one. The parallel legal systems of the DEAT and DME would be aligned in DEAT’s legal system that addressed all the factors and provided guidelines.

Ms Yawitch continued that the difference between DME and any other government department was that they had legislation in place that set out how environmental authorisations should happen on mines. That system was different to the EIA system, and this had caused problems with regard to implementation. There were overlapping areas, all for one activity, with different authorities getting involved with different processes. Currently the competent authority was DEAT and the provinces. The situation did arise where provinces differ in their processes. DEAT wanted to create consistencies throughout the provinces.

1.1.4 Development footprint
Ms McCourt explained that the definition of development footprint was included because of competencies, both national and provincial. Previously it was stated that it would be a national competency if the activity impacted more that one province. This was problematic because most activities were linked to water or air and it transgressed provincial boundaries. Therefore the definition clarified the issues by making it a national competency only if more than one province was physically affected. The EIA regulations also affected when an assessment was triggered, and the ‘development footprint’ made it clear that it had to be the activity that would cause an assessment.

1.1.8 Spatial Development Tool

Ms McCourt explained spatial tool was related to the concept of an environmental management framework was introduced. This was ultimately a map that gave environmental information on which activities would be accepted. This definition was expanded to allow other tools as the previous definition was restrictive. It created certainty to developers on what to expect.

1.1.9 Definitions
Ms McCourt added that definitions was added because it related to appeals and the legal reviews related to appeals. There were situations where there was an application for legal reviews before the appeals were complete. PAJA allowed for the administrative procedure to be exhausted before there was any movement towards legalities.

Ms McCourt clarified the term ‘exclusion’ explaining that there was no need to go through any processes as long as requirements were met. Exemptions meant that there was an exemption from a specific process. Previously exclusions were limited to geographical area, it had been expanded to include compliance with norms and standards.

Mr Mokoena suggested that ‘exclusions’ and ‘exemptions’ should be included in the definitions at the beginning of the Bill.

Ms McCourt explained that the ‘must’ list in Section 24 could be applied to any environmental tool and was not restricted to EIA. The reason for the lack of public participation was not part of this section. It should be noted that the principles of NEMA require public participation. The ‘may’ list surrounded the procedures of public participation.

Ms Yawitch further clarified Section 24(5)(d) by saying that provision should be made to ensure that polluters were held accountable for the cost of environmental damage. She predicted that businesses would not be happy with this clause, even though the clause was already in the principal act.

Mr Mokoena asked for clarification on who would be responsible for clearing the pollution.

Ms Yawitch responded that currently the provision in NEMA was unsatisfactory. It stated that if the polluter did not clear the pollution, then government was responsible for the cleanup and had to recover the costs. In reality it was government that would pay. The EIA process would be able to determine whether the pollution would occur and then incur financial cost.

Mr Zita asked about the extent of the evasive techniques employed by business and whether DEAT had the capacity to appropriately deal with this.

Ms Chalmers anticipated that business would not want to put money aside in case of pollution.

Ms McCourt responded that it was similar to mining closures. What was required was financial assurance that the business would be able to do the rehabilitation of land once their activity was completed.

Ms Chalmers asked what would happen if the company went bankrupt.

Ms Yawitch replied that the finance was required upfront, so that if bankruptcy occurred there would still be funds for rehabilitation. Furthermore the Waste Bill dealt extensively with environmental contamination.

Ms McCourt clarified Section 24(8)(b) saying where two processes were similar, one of the authorisations could be deemed as sufficient.

Clause 6: Amendments to Section 24G
Mr Mokoena asked about those who had established an activity that would be deemed illegal according to environmental laws but only after the EIA laws were promulgated.

Ms Yawitch responded that regulations would apply only from the date that they came into effect. This clause dealt with those who should have complied with regulations and had not.

Mr Mokoena commented that it was unfair if those who had contravened the law before the promulgation of the regulation, were not held accountable.

Ms Yawitch replied that there was a general duty of care provision in another chapter of NEMA. The ‘contaminated land’ section of the Waste Bill was retrospective and it was allowed that enforcement could take place.

Mr Bapela stated that the way the law was set up, it did not allow for retrospective applications.

Mr Mokoena suggested that in the priority areas, as identified by the DEAT, there were hospitals that could be used in a consulting forum for environmental health problems, as hospitals could provide valuable assistance with regard to statistics.

Clause 8: Amendments to Section 24K
Mr Zita asked if there were any checks and balances.

Ms Yawitch replied positively and added that the checks and balances were with the specific organ of state that was applicable. DEAT was not abdicating authority.

Mr Zita responded that they should be careful, mentioning that some departments were prone to rant and that it should be tightened.

Ms McCourt replied that the intention of the clause was not to replace other checks and balances. The intention was to avoid repeating procedures with the EIA.

Mr Mokoena asked if there were consensus between departments.

Ms Yawitch replied that there were agreements on most fronts. In this amendment it was stipulated that there had to be a written agreement with an organ of state.

Meeting adjourned.