ENVIRONMENTAL
MANAGEMENT AMENDMENT BILL, 2007: CLAUSE
BY CLAUSE EXPLANATION OF THE BILL FOR THE PORTFOLIO COMMITTEE ON ENVIRONMENTAL
AFFAIRS AND TOURISM
Insertions indicated in green.
Deletions indicated in red.
Examples highlighted in blue
Proposed amendments after public
hearings in pink
1.1 CLAUSE 1: DEFINITIONS
1.1.1 Activities:
" 'activities' [includes], when used in Chapter 5, means
policies, programmes, processes,
plans and projects;";
The definition of
“activity” previously included policies, programmes, plans and projects. It is
now amended to also include “processes”.
1.1.2 Commence:
Current text:
'commence', when used in Chapter 5,
means the start of any physical activity on the site in furtherance of a listed
activity;
Amended text:
" 'commence', when used in Chapter 5, means the start of any physical
activity, including site
preparation [and] or any other activity on the site in furtherance of a listed or specified activity, but does not include any activity
required for investigation or feasibility study purposes as long as such
investigation or feasibility study does not constitute a listed activity or
specified activity;";
The definition of “commence” is
amended to clarify the physical activities that it includes and excludes. Apart from the listed and specified
activities, it also includes sites preparation or any other activity on the
site in furtherance of a listed or specified activity, but does not include
investigations or feasibility studies.
“Specified activities” is included as it was previously omitted due to
an oversight.
Example:
Drilling holes for geotech studies does not constitute commencement with
activity but trial burns at incinerator or digging foundations do
1.1.3
Competent authority
Current text:
'competent authority', in respect of a listed
activity or specified activity, means the organ of state charged by this Act
with evaluating the environmental impact of that activity and, where
appropriate, with granting or refusing an environmental authorisation in
respect of that activity;
Amended text:
" 'competent authority', in respect of—
(a) a listed or specified activity, means the organ of state
charged by this Act with evaluating the environmental impact of that activity
and, where appropriate, granting or refusing an environmental authorisation in
respect of that activity; and
(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;";
The definition of
“competent authority” is amended to include the Minister of Minerals and Energy
as competent authority. The
identification of mining and related activities (such as stockpiling of waste
material, roads, railway lines, schedules processes, etc.) as activities that
may result in substantial detrimental impact on the environment and that should
be subject to an environmental impact assessment process has long been a
controversial matter and the cause of various interactions between the
Department of Environmental Affairs and Tourism and the Department of Minerals
and Energy. The is a result of a compromise and in line with an agreement
between the Minister of Environmental Affairs and Tourism, the Minister of
Mineral and Energy and the Deputy President.
The impact of this change is that mining, exploration, etc. will now be
evaluated in terms of the National Environmental Management Act, 1998 and
Environmental Impact Assessment Regulations.
The Minister of Mineral and Energy will however be the competent
authority to issue the authorisations, but in terms of the recent agreement an
appeal against the aforementioned decision will be to the Minister of
Environmental Affairs and Tourism. The
amendment to the appeal provision still needs to be affected.
1.1.4
Development Footprint
Inserted text
“’development footprint’
means the land physically transformed as a result of the undertaking of the
activity.”
A new definition of “development
footprint” is inserted and is necessitated by its use in Clause 2, section
24(9)(a) (new insertion).
1.1.5 Environmental authorisation
Current text:
'environmental
authorisation', when used in Chapter 5, means the authorisation by a competent
authority of a listed activity in terms of this Act;
Amended text:
"
'environmental authorisation', when used in Chapter 5, means the
authorisation by a competent authority of a listed or specified activity in terms of this Act, and includes similar authorisation
contemplated in a specific environmental management Act;";
The definition of “environmental
authorisation” is amended to ensure alignment and integration between
authorisations issued in terms of the National Environmental Management Act and
other Specific Environmental Management Acts.
Example:
Waste management permit / licence issued in terms of Waste Bill
1.1.6 Integrated Environmental Authorisation
Inserted
text:
" 'integrated
environmental authorisation' means
an authorisation granted in terms of section 24L;";
A new definition of “integrated
environmental authorisation” is inserted and is necessitated because of the
insertion of the new clause 24L.
Example:
Aquaculture where abalone is farmed in the sea outside its area of natural
distribution - permits are required in
terms of NEMBA (two new sets of regulations re protected species and alien
species) and NEMA (EIA) – through this provision one process can be followed
resulting in one permit addressing all three sets of environmental regulations
1.1.7 Norms and Standards
Inserted
text:
" 'norms or standards', when used in
Chapter 5, means any norm or standard
contemplated in terms of section 24(10);";
A new definition of “norms and
standards” is inserted and is necessitated due to the insertion of a new clause
24(10).
1.1.8 Spatial Development Tool
Inserted
text:
" 'spatial development
tool', when used in Chapter 5, means a spatial description of
environmental attributes, developmental activities and developmental patterns
and their relation to each other;"; and
A new definition of “spatial
development tool” is inserted and is necessitated due to the introduction of
this concept in the text of the Bill.
Example:
Spatial development frameworks, Bio-regional plans, management plans for
protected areas, coastal zone management plans, etc.
1.1.9 Definitions
Inserted
text:
"(5) Any administrative process conducted
or decision taken in terms of this Act must be conducted or taken in accordance
with the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000),
unless otherwise provided for in this Act.".
A new subclause (5) to section 1
clarifies that if the principal Act, as amended, does not make provision for a
procedure when any administrative process needs to be conducted or decision
needs to be taken, the Promotion of Administrative Justice Act, 2000 will
apply.
Example:
This would prohibit, unless on an urgent basis where eminent damage to the
environment is reasonably foreseen, court applications for reviews prior to the
administrative process (e.g. appeals) being exhausted
1.3 Clause 2: Amendment to section 24 of the principal Act
]24 Environmental
authorisations
(1) In order to give
effect to the general objectives of integrated environmental management laid
down in this Chapter, the potential impact on the environment of listed
activities must be considered, investigated, assessed and reported on to the
competent authority charged by this Act with granting the relevant
environmental authorisation.
(2) The Minister, and every MEC with the concurrence of
the Minister, may identify-
(a) activities which may not commence without environmental
authorisation from the competent authority;
(b) geographical areas based on environmental attributes in
which specified activities may not commence without environmental authorisation
from the competent authority;
(c) geographical areas based on environmental attributes in
which specified activities may be excluded from authorisation by the competent
authority;
(d) individual or generic existing activities which may have a
detrimental effect on the environment and in respect of which an application
for an environmental authorisation must be made to the competent authority:
Provided that where an
activity falls under the jurisdiction of another Minister or MEC, a decision in
respect of paragraphs (a) to (d) must be taken after consultation
with such other Minister or MEC.
(3) The Minister, and every MEC with the concurrence of
the Minister, may compile information and maps that specify the attributes of
the environment in particular geographical areas, including the sensitivity,
extent, interrelationship and significance of such attributes which must be
taken into account by every competent authority.
(4) Procedures for the investigation, assessment and
communication of the potential impact of activities must ensure, as a minimum,
with respect to every application for an environmental authorisation-
(a) investigation of the environment likely to be significantly
affected by the proposed activity and alternatives thereto;
(b) investigation of the potential impact of the activity and
its alternatives on the environment and assessment of the significance of that
potential impact;
(c) investigation of mitigation measures to keep adverse impacts
to a minimum, as well as the option of not implementing the activity;
(d) public information and participation which provide all
interested and affected parties, including all organs of state in all spheres
of government that may have jurisdiction over any aspect of the activity, with
a reasonable opportunity to participate in such information and participation
procedures;
(e) reporting on gaps in knowledge, the adequacy of predictive
methods and underlying assumptions, and uncertainties encountered in compiling
the required information;
(f) investigation and formulation of arrangements for the
monitoring and management of impacts, and the assessment of the effectiveness
of such arrangements after their implementation;
(g) coordination and cooperation between organs of state in the
consideration of assessments where an activity falls under the jurisdiction of
more than one organ of state;
(h) that the findings and recommendations flowing from such
investigation, the general objectives of integrated environmental management
laid down in this Act and the principles of environmental management set out in
section 2 are taken into account in any decision made by an organ of state in
relation to the proposed policy, programme, plan or project; and
(i) that environmental attributes identified in the compilation
of information and maps as contemplated in subsection (3) are considered.
(5) The Minister, and every MEC with the concurrence of
the Minister, may make regulations consistent with subsection (4)-
(a) laying down the procedure to be followed in applying for,
the issuing of and monitoring compliance with environmental authorisations;
(b) laying down the procedure to be followed and the
institutional arrangements in respect of-
(i) the
efficient administration and processing of environmental authorisations;
(ii) fair
decision-making and conflict management in the consideration and processing of
applications for environmental authorisations;
(iii) the
preparation and evaluation of environmental impact assessments, strategic
environmental assessments, environmental management plans and any other
relevant environmental management instruments that may be developed in time;
(iv) applications
to the competent authority by any person to be exempted from the provisions of
any regulation in respect of a specific activity;
(v) appeals
against decisions of competent authorities;
(c) prescribing fees to be paid for-
(i) the
consideration and processing of applications for environmental authorisations;
(ii) the review
of documents, processes and procedures by specialists on behalf of the
competent authority;
(d) requiring the provision of financial or other security to
cover the risks to the State and the environment of non-compliance with
conditions attached to environmental authorisations;
(e) specifying that environmental impact assessments, or other
specified tasks performed in connection with an application for an
environmental authorisation, may only be performed by an environmental
assessment practitioner registered in accordance with the prescribed
procedures;
(f) requiring that competent authorities maintain a registry of
applications for, and records of decisions in respect of, environmental
authorisations;
(g) specifying that a contravention of a specified regulation
is an offence and prescribing penalties for the contravention of that
regulation;
(h) prescribing minimum criteria for the report content for
each type of report and for each process that is contemplated in terms of the
regulations in order to ensure a consistent quality and to facilitate efficient
evaluation of reports;
(i) prescribing review mechanisms and procedures including
criteria for, and responsibilities of all parties in, the review process;
(j) prescribing any other matter necessary for dealing with
making and evaluating applications for environmental authorisations.
(6) An MEC may make regulations in terms of subsection
(5) only in respect of listed activities or areas in respect of which the MEC
is the competent authority.
(7) Compliance with the procedure laid down by the
Minister or an MEC in terms of subsection (4) does not remove the need to
obtain an authorisation, other than an environmental authorisation, for that
activity from any organ of state charged by law with authorising, permitting or
otherwise allowing the implementation of the activity.
(8) Authorisations or permits obtained under any other
law for an activity listed or specified in terms of this Act does not absolve
the applicant from obtaining authorisation under this Act and any such other
authorisations or permits may only be considered by the competent authority if
they are in compliance with subsection (4) (d).
(9) Only the Minister may make regulations in accordance
with subsection (5) stipulating the procedure to be followed and the report to
be prepared in investigating, assessing and communicating potential impacts for
the purpose of complying with subsection (1) where the activity will affect-
(a) more than one province or traverse international
boundaries; or
(b) compliance with obligations resting on the Republic under
customary international law or a convention.
Amended Text:
24. (1) In order to
give effect to the general objectives of integrated environmental management
laid down in this Chapter, the potential [impact] consequences for or impacts
on the environment of listed or specified activities must be considered, investigated,
assessed and reported on to the competent authority [charged by
this Act with granting the relevant environmental authorisation].
(2) The Minister, [and every] or an MEC with the
concurrence of the Minister, may identify—
(a) activities which may not commence
without environmental authorisation from the competent authority;
(b) geographical areas based on environmental attributes, and as specified in spatial
development tools adopted in the prescribed manner by the environmental
authority, in which specified activities may not commence without
environmental authorisation from the competent authority;
(c) geographical areas based on environmental attributes, and specified in spatial
development tools adopted in the prescribed manner by the environmental authority,
in which specified activities may be excluded from authorisation by the
competent authority;
(d) [individual or generic existing
activities which may have a detrimental effect on the environment and in
respect of which an application for an environmental authorisation must be made
to the competent authority] activities contemplated in paragraph (a) that may commence without environmental authorisation, but that
must comply with prescribed norms or standards:
Provided that where an activity
falls under the jurisdiction of another Minister or an MEC, a decision in respect of paragraphs
(a) to (d) must be taken after consultation with such other
Minister or such
MEC.
(3) The Minister, [and every] or an MEC with the
concurrence of the Minister, may compile information and maps that specify the
attributes of the environment in particular geographical areas, including the
sensitivity, extent, interrelationship and significance of such attributes
which must be taken into account by every competent authority.
(4) Procedures for the investigation,
assessment and communication of the potential [impact] consequences or impacts
of activities on the
environment—
(a) must ensure, [as a minimum,] with
respect to every application for an environmental authorisation—
[(a)](i) coordination and cooperation between organs of state in
the consideration of assessments where an activity falls under the jurisdiction
of more than one organ of state;
(ii) that the
findings and recommendations flowing from such investigation, the general
objectives of integrated environmental management laid down in this Act and the
principles of environmental management set out in section 2 are taken into
account in any decision made by an organ of state in relation to any proposed
policy, programme, plan or project;
(iii) that a
description of the environment likely to be significantly affected by the
proposed activity is contained in such application; and
[(b)](iv) investigation of the potential [impact] consequences or impacts of the activity [and its alternatives] on the environment and assessment of the
significance of [that] those potential [impact] consequences or impacts; and
(V) public information and participation
procedures which provide all interested and affected parties, including all
organs of state in all spheres of government that may have jurisdiction over
any aspect of the activity, with a reasonable opportunity to participate in
such information and participation procedures;
(b) must
include, with respect
to every application for an environmental authorisation and where applicable -
(i) investigation of the potential consequences or impacts of
the alternatives to the activity on the environment and assessment of the
significance of those potential consequences or impacts, including the option
of not implementing the activity;
[(c)](ii)
investigation of mitigation measures to keep adverse consequences or impacts to a minimum[, as well as the option of not implementing the activity];
[(d)(iii) public information and participation procedures
which provide all interested and affected parties, including all organs of
state in all spheres of government that may have jurisdiction over any aspect
of the activity, with a reasonable opportunity to participate in such
information and participation procedures;]
[(e)](iv) reporting
on gaps in knowledge, the adequacy of predictive methods and underlying
assumptions, and uncertainties encountered in compiling the required
information;
[(f)](v) investigation and formulation of
arrangements for the monitoring and management of consequences or impacts on the environment,
and the assessment of the effectiveness of such arrangements after their
implementation;
[(g) coordination and cooperation between organs
of state in the consideration of assessments where an activity falls under the
jurisdiction of more than one organ of state;
(h) that the findings and recommendations
flowing from such investigation, the general objectives of integrated
environmental management laid down in this Act and the principles of
environmental management set out in section 2 are taken into account in any
decision made by an organ of state in relation to the proposed policy,
programme, plan or project; and
(i)](vi) [that] consideration of environmental attributes
identified in the compilation of information and maps [as] contemplated
in subsection (3) [are considered]; [and] or
(vii) conditions that requirements, prescribed in a specific
environmental management Act relevant to the listed or specified activity, are
adhered to.
(5) The
Minister, [and every] or an MEC with the concurrence of the Minister,
may make regulations consistent with subsection (4)—
(a) laying down the procedure to be
followed in applying for, the issuing of and monitoring compliance with
environmental authorisations;
(b) laying down the procedure to be followed
[and the institutional arrangements] in respect of—
(i) the
efficient administration and processing of environmental authorisations;
(ii) fair
decision-making and conflict management in the consideration and processing of
applications for environmental authorisations;
[(iii) the
preparation and evaluation of environmental impact assessments, strategic
environmental assessments, environmental management plans and any other
relevant environmental management instruments that may be developed in time;]
(iv) applications
to the competent authority by any person to be exempted from the provisions of
any regulation in respect of a specific activity; and
(v) appeals
against decisions of competent authorities;
(bA) laying down the procedure to be
followed for the preparation, evaluation and adoption of prescribed
environmental management instruments, including—
(i) environmental management frameworks;
(ii) strategic
environmental assessments;
(iii) environmental
impact assessments,
(iv) environmental
management plans;
(v) environmental
risk assessments;
(vi) environmental
feasibility assessments,
(vii) norms
and standards;
(viii) spatial
development tools; or
(ix) any
other relevant environmental management instrument that may be developed in
time;
(c) prescribing fees, after consultation with the Minister
of Finance, to be paid for—
(i) the
consideration and processing of applications for environmental authorisations;
and
(ii) the
review of documents, processes and procedures by specialists on behalf of the
competent authority;
(d) requiring, after consultation with the Minister of Finance,
the provision of financial or other security to cover the risks to the State
and the environment of non-compliance with conditions attached to environmental
authorisations;
(e) specifying that [environmental impact
assessments, or other] specified tasks performed in connection with
an application for an environmental authorisation, may only be performed by an
environmental assessment practitioner registered in accordance with the
prescribed procedures;
(f) requiring that competent authorities
maintain a registry of applications for, and records of decisions in respect
of, environmental authorisations;
(g) specifying that a contravention of a
specified regulation is an offence and prescribing penalties for the
contravention of that regulation;
(h) prescribing minimum criteria for the
report content for each type of report and for each process that is
contemplated in terms of the regulations in order to ensure a consistent quality
and to facilitate efficient evaluation of reports;
(i) prescribing review mechanisms and
procedures including criteria for, and responsibilities of all parties in, the
review process; and
(j) prescribing any other matter necessary
for dealing with [making] and evaluating
applications for environmental authorisations.
(6) An MEC may make regulations in terms of
subsection (5) only in respect of listed and specified activities or areas in respect of
which the MEC is the competent authority.
(7) Compliance with the procedures laid down
by the Minister or an MEC in terms of subsection (4) does not [remove the need to obtain an authorisation, other than an environmental
authorisation, for that activity] absolve a person from complying with any other statutory
requirement to obtain authorisation from any organ of state charged
by law with authorising, permitting or otherwise allowing the implementation of
the activity in question.
(8) (a) Authorisations [or permits]
obtained under any other law for an activity listed or specified in terms of
this Act does not absolve the applicant from obtaining authorisation under this
Act [and any such other authorisations or permits may only be
considered by the competent authority if they are in compliance with subsection
(4)(d)] unless an authorisation has been
granted in the manner contemplated in section 24L.
(b) Authorisations obtained after any
investigation, assessment and communication of the potential consequences of
activities [required for environmental authorisations], including an exemption granted in
terms of section 24M or permits obtained under any law for [an activity identified] a
listed activity or specified activity in terms of this Act, may be considered by the competent
authority as sufficient for the purposes of section 24(4) of this Act.
(9) Only the Minister may make regulations
in accordance with subsection (5) stipulating the procedure to be followed and
the report to be prepared in investigating, assessing and communicating
potential consequences for
or impacts on
the environment by activities, for the purpose of complying with
subsection (1), where the activity [will affect]—
(a) [more than one province or traverse]
has a
development footprint that falls within more than one provincial boundary or traverses international boundaries; or
(b) will
affect compliance with obligations resting on the Republic under
customary international law or a convention.
(10) (a) The Minister, or an MEC with the
concurrence of the Minister, may—
(i) develop or adopt norms or standards for activities
listed in terms of section 24(2)(d);
(ii) prescribe
the use of the developed or adopted norms or standards in order to meet the
requirements of this Act; and
(iii) prescribe
procedures and criteria to be used by the
competent authority for the monitoring of such activities in order to determine
compliance with the prescribed norms or standards.
(b) Norms or standards contemplated in paragraph (a) must provide for rules, guidelines
or characteristics—
(i) that may
commonly and repeatedly be used; and
(ii) against
which the performance of activities or the results of those activities may be
assessed for the purposes of achieving the objects of this Act.
(c) The process of developing norms or standards contemplated
in paragraph (a) must, as a minimum,
include—
(i) publication of the draft norms or standards
for comment in the relevant Gazette;
(ii) consideration
of comments received; and
(iii) publication
of the norms or standards to be prescribed.
(d) The process of adopting norms or
standards contemplated in paragraph (a) must, as a
minimum, include—
(i) publication
of the intention to adopt existing norms or standards in order to meet the
requirements of this Act for comment in the relevant Gazette;
(ii) consideration
of comments received; and
(iii) publication
of the norms or standards to be prescribed.".
The abovementioned
section has been amended to further refine and improve the environmental
management system and is aimed at improving the efficiency and effectiveness of
the system. This is done by -
a)
moving away from environmental impact assessments as the
only environmental assessment tool by stating that the consequences of an
activity and not only its impact must also be considered.
b)
the introduction of enabling provisions for management of
environmental impacts through existing or new norms or standards;
c)
enhancing environmental cooperation and coordination where
an activity falls under the jurisdiction of more than one organ of state;
d)
providing enabling provisions to lay down procedures for the
preparation, evaluation and adoption of prescribed environmental management
instruments.
Example 1: Spatial tools – This allow for the adoption of tools such as SDF’s,
Bio-regional plans, management plans for protected areas etc to be used in the
same way as introduced by EMFs – provided that the environmental authority is
satisfied that it is adequately informed by environmental considerations. It
does not mean that the Env Authority would approve these plans (developed and
approved in terms of other legislation) but that it may be adopted for purposes
of this Act
Example 2: Norms or standards – SANS codes have been developed for various activities
using inter alia environmental risk as criteria – these codes now prescribe
what needs to be done for such activity to be undertaken without posing any
threat to the environment. Cell phone masts can be used as an example – Code
prescribe EMF limits, distance of transmitters from uman settlements, etc – in
areas where visual impact is not a consideration, there is no reason why adherence
to this code should not be sufficient to protect the environment. (E.g –
excluded based on standard in industrial and commercial areas but not in
residential areas, schools & hospitals)
Example 3: Obligatory and discretionary requirements
for environmental instruments: The
requirements under (b), although all applicable to EIA and thus the tool that
everybody knows, cannot all be adhered to by other tools – Examples:
Tool: Cost Benefit Analysis – alternatives
and mitigation do not apply
Tool: EMP – alternatives do not apply, but
mitigation does
Tool: Life Cycle Assessment – alternatives
do not apply
1.4
Clause 3: Amendments to
section 24C
24C Procedure for identifying the competent
authority
(1) When listing activities in terms of section 24 (2)
the Minister, or the MEC with the concurrence of the Minister, must identify
the competent authority responsible for granting environmental authorisations
in respect of those activities.
(2) The Minister must be identified as the competent
authority in terms of subsection (1) if the activity-
(a) has implications for national environmental policy or
international environmental commitments or relations;
(b) will take place within an area identified in terms of
section 24 (2) (b) or (c) as a result of the obligations resting
on the Republic in terms of any international environmental instrument, other
than any area falling within the sea-shore, a conservancy, a protected natural
environment, a proclaimed private nature reserve, a natural heritage site, or
the buffer zone or transitional area of a biosphere reserve or a world heritage
site;
(c) will
affect more than one province or traverse international boundaries;
(d) is undertaken, or is to be undertaken, by-
(i) a national
department;
(ii) a
provincial department responsible for environmental affairs; or
(iii) a
statutory body, excluding any municipality, performing an exclusive competence
of the national sphere of government; or
(e) will take place within a national proclaimed protected area
or other conservation area under control of a national authority.
(3) The Minister and an MEC may agree that applications
for environmental authorisations with regard to any activity or class of
activities-
(a) contemplated in subsection (2) may be dealt with by the
MEC;
(b) in respect of which the MEC is identified as the competent
authority may be dealt with by the Minister.
Amended Text:
"Procedure
for identifying [the]
competent authority
24C. (1) When listing or specifying activities in
terms of section 24(2) the Minister, or [the] an MEC with the
concurrence of the Minister, must identify the competent authority responsible
for granting environmental authorisations in respect of those activities.
(2) The Minister must be identified as the
competent authority in terms of subsection (1) if the activity—
(a) has implications for international
environmental [policy or international environmental]
commitments or relations;
(b) will take place within an area [identified in terms of section 24 (2)(b)
or (c) as a result of the obligations
resting on the Republic in terms of any] protected by means of an international
environmental instrument, other than—
(i) any area falling within the sea-shore[,] or
within 150 meters seawards from the high-water mark, whichever is the greater;
(ii) a conservancy[,];
(iii) a protected natural environment[,];
(iv) a proclaimed private nature reserve[,];
(v) a natural heritage site[, or];
(vi) the buffer zone or transitional area of
a biosphere reserve; or
(vii) the buffer zone or transitional area of a world
heritage site;
(c) [will affect more than one province or
traverse] has a development footprint that falls within more
than one provincial boundary or traverses international boundaries;
(d) is undertaken, or is to be undertaken,
by—
(i) a
national department;
(ii) a
provincial department responsible for environmental affairs or any other organ of state
performing a regulatory function and reporting to the MEC; or
(iii) a statutory body, excluding any municipality, performing an
exclusive competence of the national sphere of government; or
(e) will take place within a national
proclaimed protected area or other conservation area under control of a national
authority.
(3) The
Minister and an MEC may agree that applications for environmental
authorisations with regard to any activity or class of activities—
(a) contemplated in subsection (2) may be
dealt with by the MEC;
(b) in respect of which the MEC is
identified as the competent authority may be dealt with by the Minister.“.
The majority of the
amendments are purely to provide clarity in interpretation. Also a consistent link is provided with
environmental authorisations in other specific environmental management Acts.
1.5
Clause 4: Amendments to section 24D
24D Publication
of list
The Minister or MEC, as the case may be, must publish in
the relevant Gazette a notice listing activities and areas identified in
terms of section 24 (2) and listing the competent authorities identified in
terms of section 24C and the date on which the list is to come into effect.
Amended Text:
"Publication of list
24D. (1) The Minister or MEC concerned, as the case may be, must
publish in the relevant Gazette a notice [listing] containing a list of—
(a) activities [or] and areas identified in
terms of section 24(2); and [listing the]
(b) competent authorities identified in terms of section 24C [and].
(2) The
notice referred to in subsection (1) must specify the date on which
the list is to come into effect.".
The amendments to the
abovementioned section are purely editorial to provide clarity in
interpretation.
1.6
Clause 5: Amendments to
section 24F
24F Offences
relating to commencement or continuation of listed activity
(1) Notwithstanding the provisions of any other Act, no
person may commence an activity listed in terms of section 24 (2) (a) or
(b) unless the competent authority has granted an environmental
authorisation for the activity, and no person may continue an existing activity
listed in terms of section 24 (2) (d) if an application for an
environmental authorisation is refused.
(2) It is an offence for any person to contravene
subsection (1) or the conditions applicable to any environmental authorisation
granted for a listed activity.
(3) It is a defence to a charge in terms of subsection
(2) to show that the activity was commenced or continued in response to an
emergency so as to protect human life, property or the environment.
(4) A person convicted of an offence in terms of
subsection (2) is liable to a fine not exceeding R5 million or to imprisonment
for a period not exceeding ten years, or to both such fine and such
imprisonment.
Amended Text:
24F "Publication of list
"(1) Notwithstanding [the provisions
of] any other Act, no
person may—
(a) commence an
activity listed or specified in terms of section 24 (2)(a) or (b) unless the
competent authority has granted an environmental authorisation for the activity[, and no person may continue an existing activity
listed in terms of section 24 (2)(d) if an application for an environmental authorisation is
refused]; or
(b) commence and continue an activity
listed in terms of section 24(2)(d) unless it is done in terms of an
applicable norm or standard.
(2) It is an offence for any person to fail to
comply with or to contravene—
(a) subsection
(1) [or];
(b) the conditions
applicable to any environmental authorisation granted for a listed or specified activity; or
(c) any condition applicable to an
exemption granted in terms of section 24M.".
The
amendment provide for consequential changes due to the introduction of norms
and standards in the Bill. It also
provides for the contravention of a norm or a standard to be an offence.
1.7 Clause 6: Amendments to section 2G
24G Rectification
of unlawful commencement or continuation of listed activity
(1) On application by a person who
has committed an offence in terms of section 24F (2) the Minister or MEC, as
the case may be, may direct the applicant to-
(a) compile a report
containing-
(i) an
assessment of the nature, extent, duration and significance of the impacts of
the activity on the environment, including the cumulative effects;
(ii) a
description of mitigation measures undertaken or to be undertaken in respect of
the impacts of the activity on the environment;
(iii) a
description of the public participation process followed during the course of
compiling the report, including all comments received from interested and
affected parties and an indication of how issues raised have been addressed;
(iv) an
environmental management plan; and
(b) provide such
other information or undertake such further studies as the Minister or MEC may
deem necessary.
(2) Upon the payment by the person
of an administration fine not exceeding R1 million as determined by the
competent authority, the Minister or MEC concerned must consider the report
contemplated in subsection (1) and thereafter may-
(a) direct the person
to cease the activity, either wholly or in part, and to rehabilitate the
environment within such time and subject to such conditions as the Minister or
MEC may deem necessary; or
(b) issue an
environmental authorisation to such person subject to such conditions as the
Minister or MEC may deem necessary.
(3) A person who fails to comply
with a directive contemplated in subsection (2) (a) or who
contravenes or fails to comply with a condition contemplated in subsection (2) (b) is guilty
of an offence and liable on conviction to a penalty contemplated in section 24F
(4).
Amended
text:
"Rectification of
unlawful commencement or continuation of [listed] activity
24G. (1) On application by a person who has
committed an offence in terms of section 24F(2) the Minister or MEC concerned, as the case may be, may direct the applicant to—
(a) compile a report containing one or more of the
following, namely—
(i) an assessment of the nature, extent, duration and
significance of the consequences for or impacts on the environment of the activity on the
environment, including the cumulative effects;
(ii) a description of mitigation measures
undertaken or to be undertaken in respect of the consequences for or impacts on the environment of the activity on the environment;
(iii) a description of the public participation
process followed during the course of compiling the report, including all
comments received from interested and affected parties and an indication of how
issues raised have been addressed;
(iv) an environmental management plan; and
(b) provide such
other information or undertake such further studies as the Minister or MEC, as the case may be, may deem necessary.
(2) [Upon the payment by the person of an
administration fine not exceeding R1 million as determined by the competent
authority, the] The Minister or MEC
concerned must consider [the report contemplated in] any reports or information submitted in terms of subsection (1) and thereafter may—
(a) direct the
person to cease the activity, either wholly or in part, and to rehabilitate the
environment within such time and subject to such conditions as the Minister or
MEC may deem necessary; or
(b) issue an
environmental authorisation to such person subject to such conditions as the
Minister or MEC may deem necessary.
(2A) A person contemplated in
subsection (1) must pay an administrative fine, which may not exceed R1 million
and which must be determined by the competent authority, before
the Minister or MEC concerned may act in terms of subsection (2).
(3) A person who fails to comply with a
directive contemplated in subsection (2)(a) or who contravenes or fails to comply with a condition
contemplated in subsection (2)(b) is guilty of an offence and liable on conviction to a
penalty contemplated in section 24F(4).".
The
amendment to subsection (1) of 24G provides clarity that the report could be
required to contain one or more of the aspects mentioned in section 24G(1) and
not necessarily all of them.
It further
provides that the Minister may only issue an environmental authorisation once
the administrative fine has been paid.
1.8 Clause 7:
Amendments to section 24H
"(6) The Minister may appoint as
registration authorities such number of associations as are required for the
purposes of this Act and may , if circumstances so require, limit the number of
registration authorities to a single registration authority.".
Subclause
(6) empowers the Minister to appoint one or more registration authorities or
limits it to a single authority.
1.9.1 Clause 8: Insertion of
section 24J
Inserted Text:
"Implementation
guidelines
24J. The Minister and an MEC, in concurrence with the Minister,
may publish guidelines regarding the implementation, administration and
institutional arrangements of regulations made in terms of section 24(5).
Clause 24 J
empowers the Minister to issue guidelines regarding the implementation,
administration and institutional arrangement of regulations made in terms of
section 24(5).
1.9.2 Clause 8 Insertion of section 24K
Inserted Text:
Consultation
between competent authorities and consideration of legislative
compliance requirements of other organs of state having jurisdiction
24K. (1) The
Minister or an MEC may consult with
any organ of state responsible for administering the legislation relating to
any aspect of an activity that also requires environmental authorisation under
this Act in
order to co-ordinate the respective requirements of such legislation and to
avoid duplication.
(2) The
Minister or an MEC, in giving effect to Chapter 3 of the Constitution and
section 24(4)(a)(i) of this Act, may after
consultation with the organ of state contemplated in subsection (1) enter into
a written agreement with the organ of state in order to avoid duplication in
the submission of information or the carrying out of a process relating to any aspect
of an activity that also requires environmental authorisation under this Act.
(3) The Minister or an MEC may—
(a) after having concluded
an agreement contemplated in subsection (2), consider the relevance and
application of such agreement on applications for environmental authorisations;
and
(b) when he or she considers an application for environmental
authorisation that also requires authorisation in terms of other legislation
take account of, either in part or in full and as far as specific areas of
expertise are concerned, any process authorised under that legislation as
adequate for meeting the requirements of Chapter 5 of this Act, whether such
processes are concluded or not.
This clause provides for enabling
provisions to enhance coordination between organs of state to prevent
duplication when authorisations are required in terms of more than one
Act. It also provides for agreements
between organs of state to be concluded which set out such cooperation
mechanisms.
Example 1:
MOU – DWAF and DEAT regulate the construction of dams, there
is potential to combine processes and reduce duplication, improve government
efficiency, etc
Example 2:
Relying in part on other processes: Definition of environment is wide and include socio-economic
considerations, human health and safety, etc. These aspects of an activity is
however also often and very specifically regulated through another “expert”
process – the idea is not to duplicate or contradict but to rely on each other.
Examples: Intent to toll process, Nuclear safety processes, emission licences,
etc..
1.9.3 Clause 8: Insertion of section 24L
Inserted
text:
Alignment
of environmental authorisations
24L. (1) If the
carrying out of a listed or specified activity contemplated in section 24 is
also regulated in terms of another law or a specific environmental management
Act, the authority empowered under that other law or specific environmental
management Act to authorise that activity and the competent authority empowered
under Chapter 5 to issue an environmental authorisation in respect of that
activity may exercise their respective powers jointly by issuing—
(a) separate authorisations, or
(b) an integrated environmental
authorisation.
(2) An
integrated environmental authorisation contemplated in subsection (1)(b) may be issued only if—
(a) the relevant provisions of this Act
and the other law or specific environmental management Act have been complied
with; and
(b) the environmental authorisation
specifies the—
(i) provisions
in terms of which it has been issued; and
(ii) relevant authority or authorities that
have issued it.
(3) A competent authority empowered under Chapter
5 to issue
an environmental authorisation in respect of a listed or specified activity may
regard such authorisation as a sufficient basis for the granting or refusing of an
authorisation, a permit or a licence under a specific environmental management
Act if that specific environmental management Act is also administered by that
competent authority.
(4) A
competent authority empowered
under Chapter 5 to issue an environmental authorisation may regard an authorisation issued
in terms of any other legislation that substantially meets all the requirements of the
processes contemplated in Chapter 5 to be an environmental authorisation in terms of that Chapter.
The new
clause introduces enabling mechanisms for the integration and alignment of
environmental management related authorisations (including permits, licences
and other permissions introduced by any specific environmental management Act);
and introduces enabling mechanisms for integration and alignment of
environmental authorisations with authorisations issued in terms of other
legislation. It also ensures the
reliance on a process conducted in terms of another regulatory process to
inform environmental authorisations.
This allows for the
following
scenarios:
Example 1: One process, more than one authorisation: EIA
and Emission to air licences.
Example 2: One process addressing requirements of more than
one set of regulations, one permit including conditions of and enforceable
through more than one set of regulations: EIA and NEMBA regs
Example 3: Accepting another process as compliant with NEMA
5 – Waste Licences
1.9.3 Clause 8: Insertion of section 24M
Inserted Text:
Exemptions from application of
certain provisions
24M. (1) The
Minister or an MEC, as the case may be, may grant an exemption from the
provisions of
regulations made in terms of section 24(5) laying down procedures contemplated
in section 24(4)(b) on such conditions as may be determined by the Minister or
MEC, as the case may be.
(2) The
Minister or an MEC, as the case may be, must prescribe the process to be
followed for the lodging and processing of an application for exemption from
section 24(4)(b).
(3) The
Minister or MEC may only grant an exemption contemplated in subsection (1) if—
(a) the granting of the exemption is
unlikely to result in significant detrimental consequences for or impacts on
the environment;
(b) the provision cannot be implemented in
practice in the case of the application in question; or
(c) the exemption is unlikely to adversely
affect the rights of interested or affected parties.
The new
clause empowers the Minister or MEC to exempt a person from the provisions of
section 24(4)(b) under certain circumstances.
Example:
Minister or MEC may grant exemption from need to place site notice for ppp for
linear activities. Alternatives may be restricted to no-go and not look at
technology / site> NB limited to provisions in regulations and NOT to
provisions of act – can be exempted from some procedures but not from assessing
impacts and obtaining authorisation
1.10 Clause 9: Amendment of section 43
Amended Text:
(1) Any affected person may appeal
to the Minister against a decision taken by any person acting under a power
delegated by the Minister under this Act or a specific environmental management
Act.
(2) Any affected person may appeal
to the relevant MEC against a decision taken by any person acting under a power
delegated by the MEC under this Act or a specific environmental management Act.
(3) Any affected party may appeal to
the Minister or MEC, as the case may be, against-
(a) any decision to
issue or to refuse to issue an environmental authorisation or to grant an
exemption in terms of Chapter 5;
(b) any provision or
condition of an environmental authorisation or exemption issued or granted in
terms of Chapter 5;
(c) any
directive issued in terms of Chapter 5.
(4) An appeal under subsections (1)
to (3) must be noted and must be dealt with in the manner prescribed and upon
payment of a prescribed fee.
(5) The Minister or MEC, as the case
may be, may consider and decide an appeal or appoint an appeal panel to
consider and advise the Minister or MEC on the appeal.
(6) The Minister or MEC may, after
considering such an appeal, confirm, set aside or vary the decision, provision,
condition or directive or make any other appropriate order, including an order
that the prescribed fee paid by the appellant, or any part thereof, be
refunded.
(7) An appeal under this section
does not suspend an environmental authorisation or exemption, or any provisions
or conditions attached thereto, or any directive, unless the Minister or MEC
directs otherwise.
"Appeals
43. (1) Any
[affected] person may
appeal to the Minister against a decision taken by any person acting under a
power delegated by the Minister under this Act or a specific environmental
management Act.
(2) Any [affected] person may appeal to [the relevant] an MEC
against a decision taken by any person acting under a power delegated by [the] that MEC under
this Act or a specific environmental management Act.
[(3) Any affected party may appeal to the Minister or MEC, as the
case may be, against—
(a) any decision to issue or to refuse to issue an environmental
authorisation or to grant an exemption in terms of Chapter 5;
(b) any provision or condition of an environmental authorisation
or exemption issued or granted in terms of Chapter 5;
(c) any directive issued in terms of Chapter 5.]
(4) An appeal under [subsections] subsection (1) [to (3)] or (2) must be noted and must be dealt with in the manner
prescribed and upon payment of a prescribed fee.
(5) The Minister or an MEC, as the case may be, may consider and decide an appeal
or appoint an appeal panel to consider and advise the Minister or an MEC on the
appeal.
(6) The Minister or an MEC may, after considering such an appeal, confirm, set
aside or vary the decision, provision, condition or directive or make any other
appropriate [order] decision, including [an order] a decision that the
prescribed fee paid by the appellant, or any part thereof, be refunded.
(7) An appeal under this section does not
suspend an environmental authorisation or exemption, or any provisions or
conditions attached thereto, or any directive, unless the Minister or an MEC
directs otherwise.".
By removing
the limitation that only “affected persons” may appeal the appeals provision is
opened up to be used by those who have locus standi in terms
of section 32 of the principal Act.
Other editorial amendments were made to provide clarity.
1.8
Clause
9: Transitional provision
Transitional
provisions
10. (1) Anything
done or deemed to have been done under a provision repealed or amended by this
Act—
(a) remains valid to the extent that it is
consistent with the principal Act as mended by this Act until anything done
under the principal Act as amended by this Act overrides it; and
(b) subject to paragraph (a), is considered to be an action under the corresponding
provision of the principal Act as amended by this Act.
(2) An
application for authorisation of an activity that is submitted in terms of
Chapter 5 of the principal Act and that is pending when this Act takes effect
must, despite the amendment of the principal Act by this Act, be dispensed with
in terms of the provisions of Chapter 5 of the principal Act as if Chapter 5
had not been amended.
(3) in respect of any listed activity commenced or continued in
contravention of a provision of the Environment Conservation Act, 1989, (Act
No. 73 of 1989), between 6 July 2005 and 2 July 2006, the provisions of section
24G of the principal Act apply with the necessary changes, and applications may
be lodged for a period of 6 months from the coming into effect of this
amendment Act.
The Bill
and the subsequent amendments to the existing regulations introduce different
procedures and considerations when dealing with applications for environmental
authorisations, which necessitate a transitional provision. Applications for authorisations pending when
this Bill takes effect, will be dealt with under the previous provisions.