Tag Archive | NEMA

Environmental legislation updates

Changes to environmental legislation….

dea logosent to clients 10 Oct….. The Department of Environmental Affairs (DEA) has published for comment a whole series of amendments to the cluster of laws generally referred to as the NEMA laws, or South Africa’s national environmental legislation.

The changes affect mining and quarrying, the industrial and manufacturing sectors and relationships of the many sectors with local authorities on licensing.

The draft Bill refers to the overarching National Environmental Management Act; the National Environmental Management: Protected Areas Act; National Environmental Management: Biodiversity Act; the National Environmental Management: Air Quality Act; the National Environmental Management: Integrated Coastal Management Act and the National Environmental Management: Waste Act.

Piggy bank for closures

In the case of National Environmental Management Act a number of changes are proposed, perhaps the most notable being ” to provide clarity to the definition of “financial provision” that an applicant or holder of an environmental authorisation relating to mining activities must set aside financial provision for progressive mitigation, mine closure and the management of post closure environmental impacts”.

NEMA generally provides that if environmental harm is authorised by law, such as a permit issued under any environmental law, the relevant operator is obliged to minimise and rectify such harm. Where a person fails to take reasonable measures to minimise or rectify effects of environmental pollution or degradation, the relevant authority may itself take such measures, and recover costs from the responsible operator. Failed mining operations apparently have presented government with little option but to use taxpayer’s money.

With the recent amendment to provide for liability for historical pollution any operator occupying land may also be liable in future for remediation costs under the NEMA: Waste Act equally and this is notwithstanding that the activity is authorised by permit. All five laws are designed to intertwine, the Management Act amendments say.

Mineral Resources only

Other changes under the National Environmental Management Act provide clarity that “the Minister responsible for mineral resources is also responsible for listed or specified activities that is or Is directly related to prospecting, exploration, extraction or primary processing of a mineral or petroleum resource.” Various other changes are proposed which should be read by parties affected.

The changes under the NEM: Protected Areas Act are relatively minor providing for the chief financial officer of the SANParks to be on the board; various new offences in marine protected areas and to clarify certain offences andenvironmental2 procedures.

Again under the NEM: Biodiversity Act changes are proposed on board representation to include technical experts; steps, actions or methods to be undertaken to either control or eradicate listed invasive species and, importantly, to ensure that MECs in the provinces “must follow a consultation process when exercising legal powers” under the Act.

Air quality ; Who licences what

Under the NEM: Air Quality Act the issue of who does what is clarified for municipalities on listed unlawful activities and the proposals provide clarity on the issue of a provincial department responsible for environmental affairs is the licensing authority where a listed activity falls within the boundaries of more than one metropolitan municipality or more than one district municipality and to deal with appeal processes.
Other articles in this category or as background
NEMA: Waste Bill passed – ParlyReportSA
Environmental pace hots up – ParlyReportSATougher rules ahead with new evironmental Bill – ParlyReportCoastal environment bill proposals clearer – ParlyReport

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Infrastructure Development Bill modified and passed

Minister responds on land issue….

ebrahim patelThe Infrastructure Development Bill recently tabled by Ebrahim Patel, minister of economic development, appears to have avoided major confrontation as a result of re-wording of the provisions it contained regarding expropriation of land for major projects, the Bill having originally granted the state the right to expropriate land where a development project, declared as a Special Infrastructure Project (SIP), was concerned.

The Bill was passed by the National assembly and recently went to the NCOP for concurrence. Recent reports indicate it was passed.

Most submissions criticising the Bill said that the new proposals completely overstepped the mark on the question of expropriation but minister Patel has now assured all parties that such expropriation, if it took place because of a SIP, would be in terms of existing legislation when it came to the acquisition of land needed.

PICC oversight will cost project

In terms of the Bill, each SIP is to have a steering committee which will put in place time frames; attempt to deal with regulatory delay challenges; address project management and ensure the coordinated issuing of permits and licences but the PICC budget for the particular SIP would have to be funded out of the departmental budgets or those of the state-owned companies responsible for managing a project.

The Bill also gives the stamp of approval to PICC, the body which has adopted the National Infrastructure Plan of 2012 that intends to “transform the SA economic landscape while simultaneously creating significant numbers of new jobs, and to strengthen the delivery of basic services by planning and developing enabling infrastructure that fosters economic growth.”

Expropriation to be as presently defined

But the Bill as introduced into Parliament overstepped the mark on the question of expropriation when it came to ensuring that a SIP became a national priority and the minister has indicated that a new cause has been drafted to make it clear that any expropriation required in terms of the strategic integrated projects will be carried out in accordance with the provisions of current legislation.

Minister Patel told parliamentarians that all thirty written submissions had been received and noted and the Infrastructure Development Bill had, as a result of these public hearings, strengthened the constitutionality of the work of PICC, reduced ambiguity on the subject of SIPs whilst ensuring that public consultation had led to transparency.

He said the Bill was important as it involved some R1-trillion on infrastructure since 2009 and the Bill in giving legal standing to the work of PICC was a “milestone in South Africa’s economic development”.

Environmental impact overlooked by Bill

Another complaint was that despite the fact that, if passed, the Bill would co-ordinate some of the biggest infrastructure projects in South Africa’s history, the provisions  make no reference to the need for infrastructure development to be environmentally sustainable other than a clause acknowledging that the SIPs will still need environmental authorisation under the National Environmental Management Act (NEMA).

South Africa has a comprehensive environmental impact assessment (EIA) regime and the department of water and environmental affairs, over the past five years, had spent time and parliamentary effort to improve, streamline and speed up EIA processes, the minimum period for such clearances going no faster than 300 days for clearance on EIAs as far as NEMA is concerned, under any circumstances, in the national interest.

The idea of PICC being allowed to reduce this environmental clearance to 250 days, or even shorter time frames for mega-projects, has the environmental world in a stir it seems, the shortening process, they say being impossible to manage to and which renders EIAs meaningless.

Environmentalists say that decisions about big projects that will affect the whole nation for generations to come must be made using comprehensive information about social and environmental impacts in compliance with NEMA and this takes time, the minimum possible being 300 days as envisaged by NEMA.

It seems that minster Patel has solved the land expropriation issue but has not satisfied the environmentalists who still complain that in its present form the Infrastructure Development Bill will not achieve its aim as far as fully integrated development in the national interest is concerned.

The Bill is headed for promulgation sometime in the mid year, and was passed before the end of the present session in an extended session of the NCOP.
Earlier articles on this subject:
http://parlyreportsa.co.za//cabinetpresidential/infrastructure-development-bill-legislates-growth-path/
http://parlyreportsa.co.za//cabinetpresidential/gigaba-answers-critics-infrastructure-build/
http://parlyreportsa.co.za//cabinetpresidential/gigaba-answers-critics-infrastructure-build/

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NEMA: Waste Bill passed

NEMA Waste Bill to have monitoring body….

wasteThe National Environmental Management Act (NEMA); Waste Amendment Bill was again debated by the portfolio committee on water and environmental affairs who were struggling for some time with a definition of the word “waste”after the final hearings had been conducted and submissions heard. The Bill was subsequently passed to the NCOP for concurrence.

Whilst the definitions of non hazardous and non hazardous waste; medical waste and pollution matters seem clearly defined under other sections of the NEMA, the noun “waste” as a subject matter has led to all kinds of interpretation, the matter being further complicated, chairperson Adv. “Johnnie” de Lange said, by industry only declaring matter as waste when it decided to do so.

This agency will be different

He said he was aware that government had appointed too many agencies with boards that were simply eating up taxes and were staffed by those who did not understand the particular subject for which they were formed. He was determined that this would not be the case with this Bill.

He said that an agency such as was planned in terms of the Bill before them had to be staffed by persons who knew their subject and appointments had to be made “without any public servant just picked to fill a place”.    He said that the control, eradication and disposal of waste matter had become a serious matter in South Africa and was affecting the lives of many persons, most of them poor.

Transnet in their submission also pointed to the fact that confusion would follow the present loose wording which was “any substance, whether that substance can be reduced, reused and recovered”.   The issues of by-products however, was more easily resolved by being able to name them.

CSIR weighs in

Dr Susan Oelofse of CSIR submitted a full paper, CSIR having been invoked in the original discourse on the formation of the Bill, re-confirmed its absolute necessity for the Bill in general terms but also said that it was not possible to reuse and recover waste if the possibility of its recovery was within the same definition.

In their submission, CSIR they stated that the formation of an agency to control waste was not publicly discussed with them, or anybody, beforehand and needed to be.

Without public input, they said, it’s formation might be stunted and in any case their powers should be limited to approval, monitoring and auditing only.   Dr Oelefse’s criticisms of the wording of the Bill on the subject of a waste agency were extensive but she seem somewhat mollified with the promise that the public at large would be consulted and that experts would be appointed.

Abuse with waste to be stopped

Adv. de Lange agreed that the committee had to “get this one right because the penalties were going to be huge” and the major abusers had to be “stopped in their tracks”.

Parliament subsequently summed up all the hearings in a report.   The department has commented giving their views and the committee has now debated issues. From the dates given by Adv, de Lange, the Bill was apparently to be “fast tracked” and has now been passed through the NCOP with concurrence and the Bill passed to the President to become law.

Earlier articles on this subject:
http://parlyreportsa.co.za//energy/environmental-affairs-speed-things-up-with-seas/
http://parlyreportsa.co.za//mining-beneficiation/tougher-rules-ensvisaged-with-new-environmental-law/
http://parlyreportsa.co.za//energy/fueloilrenewables/fracking-moves-november-says-minister-davies/

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Coastal Management Bill stirs up waters

Who owns the seabed…

A  warning was issued by Adv “Johnny” de Lange, chairman of the portfolio committee on water and environmental affairs, during a debate on the subject of National Environmental Management Coastal Management Bill, that nobody, including Transnet, could own seabed other than the nation itself and that he or his committee would not hear of counter-proposals to this fact.

The subject of the debate was a briefing on the Bill was conducted by the department of water and environmental affairs (DWAF) prior to hearings from the public on the proposed changes. A major submission regarding ownership was known to be coming from Transnet regarding its installations at Durban port.

The  Bill, said de Lange, was attempting to legislate on border or property issues dealing with the changing forces of nature, a fact which was always going to hit problems.  In defining an area of South Africa’s coastal waters so that  a narrow strip of ecologically sensitive land and sea along the outline of the coast falls under the aegis and environmental control of the state, an attempt had been made legislatively and this, as suspected, had become an issue, he said.

Previously rejected

DWAF, as a result of previous committee meetings, had found the Bill rejected on a number of issues particularly involving state lines to be drawn up and affected by high tides, estuarine re-alignments and coastal degradation and the Bill was returned but not rejected for the purpose of re-writing definitions and re-wording various clauses.

The Bill originally was put to public comment in November 2012, receiving 330 submissions on contentious issues that mainly involved the impact of the Bill on coastal state property, definitions that affected the rights of private owners  and disagreements with the environmental objectives of the Bill.

New suggestions

In a series of re-definitions proposed by Adv. Raznack of DWAF, such as removing reference to “water courses”; dealing with definitions of flood levels in terms of ten years phases; and re-defining estuaries issues on the basis of whether they are closed to the sea or not; a compromise set of definitions was put to the portfolio committee on water and environmental affairs.

Canals, which may or may not have an ownership issue, carrying water to the sea were another issue under debate and answers appear to have been provided along lines how sea water backs up and the extent to which it backs up in the canal under question. Various re-definitions and wordings throughout the Bill are now proposed.

Western Cape queries

The new proposals were queried by Adv. Gary Birch of the Western Cape provincial water and environmental affairs, who disagreed with the major re-definitions but who made in his submission with a number of counter-proposals on the wording regarding high-tide water marks.

He pointed to the fact that whilst property lines on a river were generally regarded as being at a middle of a river, this could not apply to massive, changing estuarine areas and called for a new look at this problem, also making certain suggestions. These were found acceptable for discussion by the chair.

Further suggestions by Prof. Jenny Whittall of University of the Western Cape, a renowned expert on such matters, were also taken on board by the portfolio committee with particular reference to estuarine areas.

Transnet yet to submit

Adv. de Lange, the committee chairman considered all the inputs by experts particularly refreshing and useful, since he said he was sure that this Bill could be resolved shortly. When MPs raised the question that Transnet had various port structures that were on the sea bed falling under the ambit of the Bill, Adv. de Lange said he was prepared for this.

He said that whilst he awaited the submission of Transnet, the SOE was quite entitled to own such structures at their risk below sea level or even affected by high tide marks. However, he said, “No way can Transnet, or any such body, own the sea bed. That is South Africa’s and that will be the end of that discussion.”

Refer previous articles in this category
http://parlyreportsa.co.za//health/coastal-environment-proposals-getting-clearer/
http://parlyreportsa.co.za//mining-beneficiation/tougher-rules-ensvisaged-with-new-environmental-law/

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Air Quality Management Framework Bill to be tabled

Minister now to table Bill…..

A proposed version of the 2012 National Framework for Air Quality Management Bill was published in February 2013 for public comment and sixty days given for such comments to reach the department of water and environmental affairs. The final document will amend the existing 2007 framework, a five-year update being called for in terms of the Environmental Management: Air Quality Act.

South Africa has completely overhauled its environmental laws in the last six years.

From the document calling for comment, it appears that the main focus is on the need to involve the public in air quality issues as well as emitters, adding at the same time new regulations aimed at the further prevention of air pollution and degradation of air quality,  the promotion of efficient and effective air quality management, effective air quality monitoring and changing international compliance issues.

Ambient air quality now included

This five year cycle for review of the original framework will include reference to developments such as the establishment of ambient air quality standards and bring the whole of the Air Quality Act into effective play as anchor legislation for South Africa on the subject.

Finally, an information process for public enquiries on air quality and air pollution matters will be established.

It remains to be seen if the department has taken on board any changes that might have been suggested.

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air quality dispersion comments called for

strelitsia_smallair quality regulations for comment…

The department of environmental affairs (DEA) has published draft regulations regarding air quality in terms of the National Environmental Management: Air Quality Act referring to air dispersion modelling and has called for comments.

The regulations, says an explanation from DEA, provide a technical guideline for demonstrating compliance with air dispersion modelling for quality management in South Africa which is applicable to the need in this country for an air quality management plan, prioritising areas in such a plan, an atmospheric impact report and assessments accordingly.

New basis of controls

The regulations, which are in draft stage, are accompanied by the comment that that the Air Quality Act as a whole represents a distinct shift from exclusively source-based air pollution control to holistic and integrated effects based air quality management. Air dispersion modelling is part of this, they state.

DEA also states that the objectives of the regulations and guideline are to standardise model applications for regulatory purposes and to make sure that dispersion modelling studies are compatible across different cases.

Any written comments should be submitted to DEA by 14 February.

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