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ENVIRONMENTAL IMPACT ASSESSMENT:

REVISED REGULATIONS IN TERMS OF

THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998

(ACT NO. 107 OF 1998)

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WYNAND FOURIE

Director: Environmental Impact Management

Presenter

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Programme of information sessions

DATE PROVINCE TOWN/CITY

10 May Eastern Cape East London

24 May Mpumalanga Nelspruit

26 May Free State Bloemfontein

31 May Western Cape Cape Town

2 June KZN Durban

5 June Open seminar: Gauteng Pretoria

9 June Gauteng Johannesburg

15 June North West Rustenburg

19 June Northern Cape Kimberley

22 June Limpopo Polokwane

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• EIA is one of the key tools for enabling sustainable development in South Africa

• Predict environmental consequences of proposed activities for decision-making, to ensure that resources are soundly managed

• For many years, considered part of Integrated Environmental Management, but not legislated

• Legislated in 1997 in terms of Environment Conservation Act, 1989

Background

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• Sections 21, 22 & 26 of ECA enable EIA regulations

• EIA regulations (GN R 1182, 1183 & 1184) promulgated in September 1997

• Various amendments made to EIA regulations, most recent in May 2002

• NEMA promulgated in 1998 and to replace ECA

• Development of new EIA regulations commenced in 2000

Background cont..

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Total EIAs to date

43,423 EIA processes between September 1997 & March 2006

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Need for New Regulations

• Wide interpretation of activities could result in inconsistent application by authorities

• Too many small scale / insignificant activities made subject to EIA

• Lengthy and inflexible process, with too many “authority stops” / “decision points”

• Inadequate requirements for public participation

• Not supported by strategic planning tools• Enforcement measures generally weak

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• The current process does not always ensure that the necessary information for decision-making is submitted

• The current list of activities requires amendment

• There are concerns that the current regulations cause unnecessary delays for development

Need for New Regulations cont..

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Improvements

Aspect ECA EIA Regulations

NEMA EIA Regulations

Activities Too wide a spectrum, unclear, crucial activities omitted

Narrowed the spectrum, more specific, include activities previously omitted

EIA Process One cumbersome process, resulted in innovative interventions

Differentiate between basic and comprehensive assessments

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Improvements cont..

Aspect ECA EIA Regulations

NEMA EIA Regulations

Decision-making process

Allowed for comprehensive process only

• Allow for rapid decision making •Prescribe time frames

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Aspect ECA EIA Regulations

NEMA EIA Regulations

Roles & Responsibilities

Prescribed for authorities and applicant only – no real consequences for not abiding by the rules

Prescribed for ALL role players, including I&APs – consequences for non-compliance provided for.

Improvements cont..

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Aspect ECA EIA Regulations

NEMA EIA Regulations

Public participation

Included but poorly defined

Well defined and minimum requirements prescribed

Appeal process

Appeal decision-making process not prescribed

Process well defined and aligned with PAJA

Improvements cont..

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• Two categories of activities: Basic Assessment (Notice 1) and Environmental Assessment (Notice 2)

• Public participation can commence before applying (Basic Assessment)

• Specified requirements for amendment of authorisations

• Terms of reference for EIA included in Scoping Report, no longer separate plan of study

• Clarification of independence of EAP

What’s new?

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• Exclusions based on Environmental Management Frameworks

• Compliance and enforcement strengthened• Cooperation agreements between authorities• Draft Environmental Management Plans to be

included in EIAs• Report contents specified in detail• Combination of applications• Provision for amendment & withdrawal of

authorisations

What’s new? cont..

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Environmental Assessment Practitioners (S. 17-19)

• Compulsory for applicant to appoint EAP• Independence & expertise required• Must disclose all relevant information that could

influence decision or objectivity of a document or report

• Disqualification: – If authority believes that EAP is not independent– EAP informed and has opportunity to make representations to

authority– Authority can refuse to accept report or require independent

review

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Determining assessment process (Regulations 20-21)

• EAP to determine relevant process• Basic Assessment (Notice 1 Act) or

Scoping & EIA (Notice 2 Act)• Process chosen based on:

– Listing notices 1 & 2– If application is for 2 or more activities and at

least one of these requires Scoping and EIA, then application must be subjected to Scoping & EIA

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• Activities contained in Listing Notice 1 are subject to a basic assessment process

• Smaller scale activities• Predicted impacts are generally known and

can be easily managed• Will be further limited through exclusions

Basic Assessment (Regulations 22-26)

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Basic Assessment cont..

Public participation (R. 22)

Basic assessment report (R. 23)

Submit application (R. 24)• Application form• Assessment report• Etc.

14 days

Acknowledge receipt (R. 14)

Check application (R. 14)

30 days

Response (R. 25)

• Submit additional information• Specialist studies• Alternatives• Rejection• Scoping & EIA

Scoping & EIA

Grant / refuse authorisation (R. 26)

10 days

Notify I&APs of decision (R. 10)

Notify applicant of decision (R. 10)

Competent authorities must strive to meet timeframes (R. 9)

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• Activities contained in Listing Notice 2 are subject to a comprehensive assessment process

• Activities that due to nature and/or extent are likely to have significant impacts

• Associated with high levels of pollution / waste / environmental degradation

• Impacts cannot easily be predicted• Higher risk activities

Scoping & EIA (Regulation 27-36)

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Scoping & EIA cont..

Submit application (R. 27)• Application form• Landowner’s consent

14 days

Check application (R. 14)

30 days

Response (R. 31)• Request amendments• Reject because:

• insufficient information• failure to consider guidelines

• Accept

Decision (R. 36)

10 days

Notify I&APs of decision (R. 10)

Notify applicant of decision (R. 10)

Acknowledge receipt (R. 14)

Submit Scoping Report (R. 30)

Scoping (R. 28-29)• Public participation (incl. organs of state)• Scoping Report• Public comment on SR (R. 58)

EIA (R.32)• Prepare EIA report & draft EMP

60 days

Response (R. 35)• Reject• Amend• Specialist review• Accept

45 days 45 days

Competent authorities must strive to meet timeframes (R. 9)

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EIA Report includes:• Activity description• Site/area assessment• Public participation• Description of issues• Description and assessment of alternatives (if any)• Specialist studies (only if necessary)• Specialized processes (only if necessary)• Assessment of impacts• Assessment of issues• Environmental impact statement• Draft environmental management plan

Contents of EIA Reports (Regulation 32)

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• Authority must:• Make a decision (grant or refuse) • Issue single authorization for more than one activity

• Authorization must include:• Details of applicant• Activity description• Property description• Conditions

• Authorization may require:• Commencement only after certain conditions complied with• Submission of compliance reports• Submission of environmental audit report• Any other condition

Authorisations (Regulations 37-38)

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Amendment of authorisations (Regulation 39-46)

• Authority may amend an authorisation, on application: - by holder or - from authority• On application by holder (Regulation 40-43):

– Official form– Acknowledge receipt within 14 days– Consider whether likely to affect the environment or

rights of other parties– Authority must promptly decide on non-substantive

amendments: timeframe not specified

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Amendment of authorisations cont..

• Application by authorisation holder – If substantive amendments:

• Public participation• Investigation & assessment• Public comment on reports• Submit reports

• Amendment on initiative of authority to:– prevent deterioration or further deterioration of

environment– achieve prescribed environmental standards– accommodate demands due to socio-

economic circumstances & public interest

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Amendment of authorisations cont..

• Amendment on initiative of authority:– Notify holder– Opportunity for representations– Public participation, if necessary

• On reaching a decision, the authority must (Regulation 46):– Notify the holder– Provide reasons– Inform of possibility of appeal– Issue amended authorisation

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Withdrawal of authorisations (Regulations 47-50)

• Withdrawal only under certain circumstances (Regulation 47):– Condition contravened– Fraud– Misrepresentation / non-disclosure– Activity discontinued

• Authority must (Regulation 48):– Notify holder– Opportunity for representations– Public participation, if necessary

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Withdrawal of authorisations cont..

• Suspension allowed if (Regulation 49):– Contravention of condition is causing harm to

the environment– Suspension necessary to prevent harm or

further harm– Suspension possible before or after

opportunity for representations by holder• Decision (Regulation 50):

– Notify holder in writing– Inform of possibility of appeal

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Exemptions (S. 51-55)

• Different from exemptions i.t.o. ECA• Exemption can be considered from any

provision of regulations• Exemption from public participation only

possible if rights or interests of other parties are not adversely affected

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Exemptions cont..

14 days

Submit application (R 52)

Acknowledgement of receipt (R. 52(2))

Consideration (R. 53)• May request additional information• Advise application of any factors prejudicing the application

No adverse effects on rights or interests of other parties

Adverse effects on rights or interests of other parties

10 days

Notify applicant of decision (R. 54)• Written exemption notice

Notify I&APs (R. 54(10(d)))

Appeal

• Public participation (R 56)• Register of I&APs• Submit comments

10 days

Competent authorities must strive to meet timeframes

(R. 9)

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Public participation (S. 56-59)

• Public participation process (Regulation 56):– Site notice boards– Written notice to:

• Adjacent owners and occupiers • Owners and occupiers within 100m of boundary of site• Ward councillor• Municipality• Organs of state having jurisdiction

– Adverts in one local newspaper or official gazette– Provincial or national newspaper (if activity may have

impact beyond borders of municipality)– Requirements for content & size of notices– Exceptions for linear & ocean-based activities: to be

agreed with authority

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Public participation cont..

• Register of I&APs (Regulation 57):– Applicant or EAP must maintain register

containing names & addresses of:• Persons who submitted comments • Persons who, after the PP process, submitted

written requests for their names to be placed on the register

• All organs of state having jurisdiction– Register accessible to all who submit written

request

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Public participation cont..

• Registered I&APs entitled to comment (Regulation 58):– Must comply with timeframes– Must provide copy of comments sent to authority to

EAP as well– Must declare business, personal, financial or other

interests– I&APs must be given opportunity to comment on all

reports before submission to authority (BA reports, scoping reports, EIRs & EMPs)

• I&AP comments to be recorded in reports (Regulation 59):– EAP must record I&AP comments in reports– Comments on final reports to be submitted to authority

can be an attachment

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Appeals (R. 60-68)

10 days

Notification of decision

<= 30 days

Notice of intention to appeal (R. 62)• Notice on official form• If applicant appeals, inform all other I&APs & organs of state• If appellant is someone other than applicant, inform applicant

Appeal must be accompanied by: (R. 63)• Grounds for appeal• Supporting documentation• Statement by appellant that R. 63 has been complied with• Appeal fee (not yet prescribed)

Responding statements (R. 65)

30 days

Submit appeal (R. 64)

Answering statement to new information introduced (R. 65 (2)(b)) – when applicable

30 days

Processing of appeal (R. 66)• Issue direction i.t.o. R. 43(7) of NEMA• Appoint appeal panel i.t.o. R. 43(5) of NEMA

10 days

Appeal panel (R. 67) - optional

Decision (R. 68) • Notify appellant & each respondentAcknowledge receipt (R. 66(1))

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Environmental Management Frameworks (R. 69-72)

• Regulations prescribe process for compiling EMF and set minimum requirements for content

• Strategic tool where a geographical area is assessed: – Status quo is studied in terms of inter alia

biophysical environment, built environment and “planned” environment

– Desired state of environment defined– Road map established how to reach and

maintain desired state of environment

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EMFs cont..

• EMF consist of various “environmental control zones”, environmental management plan and environmental management policy

• Certain pre-determined activities can be excluded from EIA requirements if aligned with control zones, EMP and EM Policy

• EMF also useful as environmental input into SDF’s, precinct plans, etc.

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Guidelines– National and provincial– Drafts in gazette for comment– Not binding, but must be taken into account

by EAPS & authorities

Guidelines (Regulations 73-76)

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• Anything done i.t.o. previous regs remains valid

• Authorisations issued i.t.o. previous regs regarded to be issued under new regs

• Applications and appeals pending under ECA to be completed i.t.o. ECA

• Existing guidelines that have been adopted before new regulations take effect regarded to be guidelines in terms new regulations

Transitional arrangements (Chapter 9)

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• Reckoning of days (S. 1(2))– Reckoned from start of day following a particular

day to end of last day of the period– If last day of the period falls on a Saturday,

Sunday or public holiday, the period must be extended to the end of the next day which is not a Saturday, Sunday or public holiday

– Submitted today, starts running tomorrow until day 30. If day 30 is Sa, Su, PH = next work day

General provisions

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• Lapsing of application or appeal (Regulation 77)– Appeal or application lapses if applicant or appellant fails

to comply with a requirement of these regulations within 6 months of submitting application or appeal

• Resubmission of similar applications (Regulation 78)– Applicant may not resubmit application substantially

similar to previous application that has been refused, unless:

• 3 years has lapsed since refusal of previous application• New application contains new information

General provisions cont..

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• Compliance monitoring (Regulation 79):– Authority may request holder of authorisation or

exemption to explain alleged contravention or non-compliance

– Authority may request environmental audit report– Authority may request audit report to be prepared by

independent person– Holder of authorisation or exemption is liable for all

costs– Authority may appoint auditor and recover costs if

holder of authorisation or exemption fails to do so

General provisions cont..

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• Assistance to people with special needs (Regulation 80):– Authorities, Minister and MECs must give

reasonable assistance to person who is unable to comply with a requirement of the regulations due to:

• Lack of skills to read or write• Disability• Any other disadvantage

General provisions cont..

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• Offences (Regulation 81):– Supplying false / misleading information– Failure to disclose information– Failure to submit audit report– Failure to comply with conditions of

exemption – Continuation with activity if authority has

withdrawn authorisation• Penalties in terms of NEMA section 24F

General provisions cont..

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• Implementation documents – DEAT has drafted four guidelines:

• Process flow (administrative)• Assessment of impacts and alternatives• Environmental Management Frameworks• Public participation

– EMF and PP published for comment– Expected completion date: July 2006

• Application form and BA report: – To be made available in print and on DEAT

website

Way forward

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Implementation documents• Various templates and guidelines have

been drafted • Official EIA gazette is planned

– All EIA related publications– Discussions with GPW to be finalized

Way forward

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Implementation documents (cont)

• Registration of EAPs– Not yet compulsory– Work in progress

• EIA regulations companion– Booklet format– EIA regulations in laymen’s terms

Way forward

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Website

• www.deat.gov.za

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Thank you