Environmental Impact Assessments: Department of Environmental Affairs and Tourism briefing

Meeting report

Environmental Impact Assessment (EIA) Process: Changes in line with National Environmental Management Act (NEMA): Department of Environmental Affairs and Tourism (DEAT) Briefing
Ms Lize McCourt, Chief Director: Environmental Impact Management, DEAT, briefed the Committee on the changes to the EIA process that resulted from this process being brought in line with the 2006 National Environmental Management Act (NEMA), as opposed to the previous position of the 1997 Regulations that had been formed under the 1989 Environment Conservation Act (ECA). The revised EIA Regulations were promulgated during April 2006.

Ms McCourt set out that a comprehensive review of the 1997 had been undertaken, which had identified a number of difficulties and inadequacies, including inconsistent interpretation, too many unnecessary processes, inflexibility in procedural requirements, inadequate definitions and lack of adequate capacity and resources. However, she noted that this EIA assessment also had had many positive consequences, for instance resulting in more sustainable human settlements, proactively identifying environmental hazards and boosting collective responsibility.

The new EIA system envisaged for South Africa consisted of four elements. Theses were the development of regulations that were appropriate to the South African context, building and maintaining adequate capacity to implement the regulations, establishing a regulated Environmental Assessment Practitioners (EAP) industry, and developing and implementing a framework of tools and systems to supplement an EIA system.

Ms McCourt then proceeded to set out what would be done under each of these points (see attached presentation). She then set out a five-point plan towards more effective administration of EIA, focusing on expediting pending applications, developing strategic spatial systems, building human resource capacity, developing of support tools and capacity. She detailed the progress in implementation of the system and the five-point plan.

Ms McCourt concluded that there was still much to be done to improve the system. There was a need to streamline targets. There would be further rationalisation of the need for EIA and improvement of governance. This was dependent on the law reform process, and would involve amendments to both NEMA and the 2006 EIA regulations.

Discussion
Mr L Van Rooyen (ANC – Free State) asked how the revised regulations impacted on the current energy crisis, as there was clearly a need to build new power stations. He asked what the Department was doing to ensure minimum delay. Mr Van Rooyen asked what the relationship between DEAT and the Department of Minerals and Energy (DME) was, as it was mentioned that some regulations were not applicable to the mining sector. He asked what methods ensured that responsibility was clear for different spheres.

Ms McCourt made it clear that Eskom had retracted its claim that the EIA had delayed the Medupi Power Station and that there was no delay. She added that the DEAT had put in place a plan with Eskom to streamline the EIA processes, as long as quality information was provided up front. DEAT had additional capacity specifically to deal with this issue. She added that it was very aware of the consequences, but could not lower the quality of EIAs due to the significant potential environmental harm that could be caused.

Ms McCourt said that the relationship between DEAT and DME was complicated and resulted from the National Petroleum Resources Development Act (NPRDA), which gave the Minister of Minerals and Energy the mandate for mining, and the environmental requirements linked to that. In NEMA there was provision for listing of activities under the control of other Ministers. The Minister of Minerals and Energy agreed that mining could be listed as long as it did not impact on the NPRDA. The NPRDA had an environmental management framework, so enforcement by DEAT would essentially be duplication. There would be a need to change the legislation to allow NEMA to supersede the NPRDA clause and make DME in charge of enforcement of regulations prescribed by NEMA. There was provision to consider whether environmental negatives were outweighed by an overwhelming degree of benefit.

Mr Van Rooyen stated that there was an economic and developmental cost that needed to be balanced with environmental protection and asked what the positive benefits of the new EIA were. He added his worry about the skills level of staff involved in EIAs who were involved in the EIAs, especially at provincial levels and asked what DEAT was doing to assist provinces.

Ms B Dlulane (ANC – Eastern Cape) stated that as the provinces were autonomous in the implementation and application of EIAs she was worried about the variance of capacity between provinces. She reiterated Mr Van Rooyen’s question about what DEAT was doing to capacitate provinces. She added that she was worried that the inability to process EIAs in some cases was leading to the hold up of building houses.

Ms McCourt replied that the skills pool was very small and essentially the skilled staff were being circulated between provinces. DEAT was busy skilling its staff through the University of Pretoria as EIA practitioners. She added that DEAT could not compete, in terms of the financial benefits, with the private sector and that it suffered from the usual government attraction and retention problems. However it was working with the Department of Public Service and Administration (DPSA) on this issue and EAPs had been recognised as a scarce skill. Allocation of funds to DEAT increased by R20 million. This did not necessarily help the provinces, where their ability to function was impeded by a large portion of their budgets being consumed by salaries. As a result DEAT was using the entire figure to build capacity in the provinces. Ms McCourt added that previously the Department had “thrown money” at the capacity problem as a short-term solution. The medium term solution involved training and the long-term involved evaluating the exact needs of each province. At a national level however, DEAT was fully staffed.

Ms H Matlanyane (ANC – Limpopo) asked whether the revisions and streamlining of the process would result in a compromise of the propriety and quality of the EIA. She asked whether DEAT was going to have proper qualified capacity at a local and provincial level. Ms Matalanyane asked what was being done to ensure that those who transgressed the EIA requirements were dealt with, and asked whether DEAT had the capacity to enforce the law. She expressed her concern that cutting short the EIA timeframes may lead to developers looking for a way of doing “shady” work.

Ms McCourt replied that they were very concerned about compromising quality. DEAT focused on efficiency and effectiveness. It was constantly evaluating both in order to determine if there was any compromise. Currently there appeared to be none. An EIA Practitioner Registration was being implemented to ensure a code of conduct. Enforcement was multi-pronged. The EIA Inspectors of DEAT did perform the task, but input from concerned parties was also used and in some cases these parties were appointed compliance monitors.

Mr A Watson (DA – Mpumalanga) stated that with regard to Integrated Development Plans (IDPs) and spatial planning, it was his experience that these plans were not done with EIAs in place and consequently they sometimes transgressed the EIA. The plans, if approved, would be held up because they were not EIA compliant. He asked what was being done to address this issue. Mr Watson added that density of capacity was related to development. He asked whether DEAT was planning for future development, or if that had been halted due to the energy crisis.

Ms McCourt replied that planning was a historical problem, and that IDPs were supposed to be commented on by national and provincial environmental authorities. Spatial Development Plans (SDPs) needed to be done first. In terms of density there was a need to move to a more strategic process, where the EIA fitted into the SDP framework, aiming at building regional Environmental Management Frameworks (EMF) for entire regions.

The Chairperson asked for elaboration on exemptions. He added that indiscriminate application of EIAs made it very difficult for small previously disadvantaged developers who lacked the resources to pay consultant fees for EIAs. He asked who was providing the training mentioned and whether it was intended to alleviate the burden of going to a consultant.

Ms McCourt replied that DEAT, as the EIA authority, they did not actually conduct the EIAs, but were the decision makers on the work done by consultants and EIA practitioners.  It would constitute a conflict of interests if the decision-making authority was also contracted to do the assessment. She stated that developments were looked at according to activity level, and not according to the developers’ financial status. She explained that anybody could apply for an exemption from having to follow the EIA processes, provided good reasons were given. An EIA practitioner did not need to be used if the developer could still provide the correct information. There would be an exclusion if a predefined set of conditions existed

Ms McCourt said that training occurred in house as well as through the University of Pretoria, who were specialists. They were training people in the administration of the law. DEAT and the University were working with industry to formulate accreditation according to the South African Qualification Authority (SAQA).

The Chairperson asked how the R11.3 million was helping provinces, whether it was to pay consultants and asked how it brought relief. The Chairperson asked how 95% of applications could be processed in time when he was aware of a significant backlog.

Ms McCourt explained that the R11.3 million was specifically used to eliminate the backlog of 1997 EIA Regulation applications. No timeframe could be applied to these applications, as none had been specified. Consultants were paid to review the applications and make recommendations. As a result the backlog was reduced from 5 999 to 1200. The 95% processed on time referred to the 2006 EIA Regulation applications under NEMA.

The Chairperson asked what higher risk activities were, as well as how DEAT assessed a geographical area. He noted that sector guidelines could be used for exclusions and asked who could be excluded.

Ms McCourt added that higher risk activities were those that, due to their nature, posed a bigger risk - for example the building of an oil refinery compared to building of a warehouse on the same portion of land. Sector guidelines specifically stated where particular activity could take place, according to an EIA blueprint standard for the activity. She stated that geographical assessments involved going in and physically mapping an area’s geology, ecology and biodiversity in relation to where the proposed development was to be built. Such mapping of an area’s attributes allowed for the formulation of specific uses for land, according to EIA guidelines.

Mr Van Rooyen was worried that between the economic crisis and EIAs there would be a trade-off, to the economic detriment of the country. He noted that there would be a meeting between Eskom and DEAT and asked at what level that would be, and if DEAT would be sticking rigidly to its processes. He stated that at this juncture the economic crisis was greater the EIA process.

Ms McCourt stated that with regard to power stations that DEAT already had to consider an air quality exemption for a particular timeframe, but that this needed to be done on a case-by-case level. She reiterated that the Minister of Environmental Affairs and Tourism stated that DEAT would not compromise the environment, but would endeavour to be more efficient.

Mr van Rooyen mentioned that the either the N12 or N16 was delayed an upgrade due to the EIA. The Road Agency stated that it was being sent from pillar to post, and the issue apparently had to do with the mining of gravel to construct the road.  Mr Van Rooyen questioned whether this was not in fact the mandate of DME. He asked whether DEAT and DME were interacting properly at an administrative, not just on a ministerial level.

Ms McCourt responded that DEAT and DME met on at least a quarterly basis and this was at a Director General or Chief Director level. However, they would only interact on a case basis if there was a problem. She added that she would look into the road problem to determine whether it was a NEMA or NPRDA issue.

Mr Van Rooyen asked how far DEAT had gone in establishing the regulatory body.

Ms McCourt replied that DEAT had to push the issue as nobody was forthcoming. and that they had now pushed the National Body to become the regulator. There was further pressure applied by DEAT for this body to have a code of conduct that took into account transformation and SAQA unit standards. This was on target and that should be completed by the due date, towards the end of 2008.

The Chairperson asked what the consequences of non-compliance were.

Ms McCourt replied that non-compliance with EIA provisions had the same consequences as non-compliance with NEMA. Chapter 7 of NEMA stipulated penalties ranging through criminal prosecution, guilty pleas and fines.

The Chairperson asked whether an EIA would need to be done if one EIA had been conducted on a piece of land already, but another development was proposed on the same land.

Ms McCourt replied in the negative and added that the existing information would be applied to the new proposed project.

The meeting was adjourned.