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

 

 

 

Text Box: 24H	Registration authorities
	(1) An association proposing to register its members as environmental assessment practitioners may apply to the Minister to be appointed as a registration authority in such manner as the Minister may prescribe.
	(2) The application must contain-
		(a)	the constitution of the association; 
		(b)	a list of the members of the association;
		(c)	a description of the criteria and process to be used to register environmental assessment practitioners; 
		(d)	a list of the qualifications of the members of the association responsible for the assessment of applicants for registration;
		(e)	a code of conduct regulating the ethical and professional conduct of members of the association; and
		(f)	any other prescribed requirements.
	(3) After considering an application, and any other additional information that the Minister may require, the Minister may-
		(a)	by notice in the Gazette, appoint the association as a registration authority; or
		(b)	in writing addressed to the association, refuse the application, giving reasons for such refusal.
	(4) The Minister may, for good cause and in writing addressed to the association, terminate the appointment of an association as a registration authority.
	(5) The Minister must maintain a register of all associations appointed as registration authorities in terms of this section.
[S. 24H inserted by s. 3 of Act 8 of 2004.]

 

"(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:

 

43      Appeals

            (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.