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.
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 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
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.
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.
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.
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.
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.
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
(b) may include, with respect to every application for an
environmental authorisation—
(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
(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 in terms of this Act, may be considered by the competent authority
as sufficient for the purposes 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.
1.4
Clause 3: Amendments to section
24C
24C Procedure for identifying the competent authority
(1) When listing activities in terms of section 24 (2)
the Minister, or the MEC with the concurrence of the Minister, must identify
the competent authority responsible for granting environmental authorisations
in respect of those activities.
(2) The Minister must be identified as the competent
authority in terms of subsection (1) if the activity-
(a) has implications for national environmental policy or
international environmental commitments or relations;
(b) will take place within an area identified in terms of
section 24 (2) (b) or (c) as a result of the obligations resting
on the Republic in terms of any international environmental instrument, other
than any area falling within the sea-shore, a conservancy, a protected natural
environment, a proclaimed private nature reserve, a natural heritage site, or
the buffer zone or transitional area of a biosphere reserve or a world heritage
site;
(c) will
affect more than one province or traverse international boundaries;
(d) is undertaken, or is to be undertaken, by-
(i) a national
department;
(ii) a
provincial department responsible for environmental affairs; or
(iii) a
statutory body, excluding any municipality, performing an exclusive competence
of the national sphere of government; or
(e) will take place within a national proclaimed protected area
or other conservation area under control of a national authority.
(3) The Minister and an MEC may agree that applications
for environmental authorisations with regard to any activity or class of
activities-
(a) contemplated in subsection (2) may be dealt with by the
MEC;
(b) in respect of which the MEC is identified as the competent
authority may be dealt with by the Minister.
Amended Text:
"Procedure
for identifying [the] competent authority
24C. (1) When listing or specifying activities in
terms of section 24(2) the Minister, or [the]
an MEC with the concurrence of the Minister, must identify the competent
authority responsible for granting environmental authorisations in respect of
those activities.
(2) The Minister must be identified as the
competent authority in terms of subsection (1) if the activity—
(a) has implications for international
environmental [policy or international
environmental] commitments or relations;
(b) will take place within an area [identified in terms of section 24 (2)(b) or (c) as a result of the obligations resting on the Republic in terms
of any] protected by means of an international environmental
instrument, other than—
(i) any area falling within the sea-shore[,] or within 150 meters seawards
from the high-water mark, whichever is the greater;
(ii) a conservancy[,];
(iii) a protected natural environment[,];
(iv) a proclaimed private nature reserve[,];
(v) a natural heritage site[, or];
(vi) the buffer zone or transitional area of
a biosphere reserve; or
(vii) the buffer zone or transitional area
of a world heritage site;
(c) [will
affect more than one province or traverse] has a development footprint that falls within more than one provincial
boundary or traverses international boundaries;
(d) is undertaken, or is to be undertaken,
by—
(i) a
national department;
(ii) a
provincial department responsible for environmental affairs or any other
organ of state performing a regulatory function and reporting to the MEC;
or
(iii) a statutory body, excluding any municipality, performing an
exclusive competence of the national sphere of government; or
(e) will take place within a national proclaimed
protected area or other conservation area under control of a national
authority.
(3) The
Minister and an MEC may agree that applications for environmental
authorisations with regard to any activity or class of activities—
(a) contemplated in subsection (2) may be
dealt with by the MEC;
(b) in respect of which the MEC is
identified as the competent authority may be dealt with by the Minister.“.
The majority of the
amendments are purely to provide clarity in interpretation. Also a consistent link is provided with
environmental authorisations in other specific environmental management Acts.
1.5
Clause 4: Amendments to section 24D
24D Publication
of list
The Minister or MEC, as the case may be, must publish in
the relevant Gazette a notice listing activities and areas identified in
terms of section 24 (2) and listing the competent authorities identified in
terms of section 24C and the date on which the list is to come into effect.
Amended Text:
"Publication of list
24D. (1) The Minister or MEC concerned, as
the case may be, must publish in the relevant Gazette a notice [listing] containing a list of—
(a) activities [or] and
areas identified in terms of section 24(2); and [listing the]
(b) competent authorities identified in terms of section 24C [and].
(2) The notice referred to in subsection
(1) must specify the date on which the list is to come into effect.".
The amendments to the
abovementioned section are purely editorial to provide clarity in interpretation.
1.6
Clause 5: Amendments to
section 24F
24F Offences
relating to commencement or continuation of listed activity
(1) Notwithstanding the provisions of any other Act, no
person may commence an activity listed in terms of section 24 (2) (a) or
(b) unless the competent authority has granted an environmental
authorisation for the activity, and no person may continue an existing activity
listed in terms of section 24 (2) (d) if an application for an
environmental authorisation is refused.
(2) It is an offence for any person to contravene
subsection (1) or the conditions applicable to any environmental authorisation
granted for a listed activity.
(3) It is a defence to a charge in terms of subsection
(2) to show that the activity was commenced or continued in response to an
emergency so as to protect human life, property or the environment.
(4) A person convicted of an offence in terms of
subsection (2) is liable to a fine not exceeding R5 million or to imprisonment
for a period not exceeding ten years, or to both such fine and such
imprisonment.
Amended Text:
24F "Publication of list
"(1) Notwithstanding [the provisions of] any other Act, no person may—
(a) commence an
activity listed or specified in terms of section 24 (2)(a) or (b)
unless the competent authority has granted an environmental authorisation for
the activity[, and no person may
continue an existing activity listed in terms of section 24 (2)(d) if an application for an
environmental authorisation is refused]; or
(b) commence and
continue an activity listed in terms of section 24(2)(d) unless it is done in terms of an applicable norm or standard.
(2) It is an offence for any person to fail
to comply with or to contravene—
(a) subsection (1)
[or];
(b) the conditions
applicable to any environmental authorisation granted for a listed or specified activity; or
(c) any
condition applicable to an exemption granted in terms of section 24M.".
The amendment provide for
consequential changes due to the introduction of norms and standards in the
Bill. It also provides for the
contravention of a norm or a standard to be an offence.
1.7 Clause 6: Amendments to section 2G
24G Rectification
of unlawful commencement or continuation of listed activity
(1) On application by a person who has committed an
offence in terms of section 24F (2) the Minister or MEC, as the case may be,
may direct the applicant to-
(a) compile a report containing-
(i) an
assessment of the nature, extent, duration and significance of the impacts of
the activity on the environment, including the cumulative effects;
(ii) a description of mitigation measures
undertaken or to be undertaken in respect of the impacts of the activity on the
environment;
(iii) a
description of the public participation process followed during the course of
compiling the report, including all comments received from interested and
affected parties and an indication of how issues raised have been addressed;
(iv) an
environmental management plan; and
(b) provide such other information or undertake such further
studies as the Minister or MEC may deem necessary.
(2) Upon the payment by the person of an administration
fine not exceeding R1 million as determined by the competent authority, the
Minister or MEC concerned must consider the report contemplated in subsection
(1) and thereafter may-
(a) direct the person to cease the activity, either wholly or
in part, and to rehabilitate the environment within such time and subject to
such conditions as the Minister or MEC may deem necessary; or
(b) issue an environmental authorisation to such person subject
to such conditions as the Minister or MEC may deem necessary.
(3) A person who fails to comply with a directive
contemplated in subsection (2) (a) or who contravenes or fails to comply
with a condition contemplated in subsection (2) (b) is guilty of an
offence and liable on conviction to a penalty contemplated in section 24F (4).
Amended text:
"Rectification of
unlawful commencement or continuation of [listed] activity
24G. (1) On application
by a person who has committed an offence in terms of section 24F(2) the
Minister or MEC concerned, as the case may be, may direct the applicant
to—
(a) compile a report containing one or more of the following, namely—
(i) an assessment of the nature,
extent, duration and significance of the consequences for or impacts on
the environment of the activity on the environment, including the
cumulative effects;
(ii) a description of mitigation measures
undertaken or to be undertaken in respect of the consequences for or
impacts on the environment of the activity on the environment;
(iii) a description of the public
participation process followed during the course of compiling the report,
including all comments received from interested and affected parties and an
indication of how issues raised have been addressed;
(iv) an environmental management plan; and
(b) provide
such other information or undertake such further studies as the Minister or MEC,
as the case may be, may deem necessary.
(2) [Upon the payment by the person of an
administration fine not exceeding R1 million as determined by the competent
authority, the] The Minister or MEC concerned must consider [the
report contemplated in] any reports or information submitted in terms of
subsection (1) and thereafter may—
(a) direct
the person to cease the activity, either wholly or in part, and to rehabilitate
the environment within such time and subject to such conditions as the Minister
or MEC may deem necessary; or
(b) issue
an environmental authorisation to such person subject to such conditions as the
Minister or MEC may deem necessary.
(2A) A
person contemplated in subsection (1) must pay an administrative fine, which
may not exceed R1 million and which must be determined by the competent
authority, before the Minister or MEC
concerned may act in terms of subsection (2).
(3) A person who fails to comply with a
directive contemplated in subsection (2)(a) or who contravenes or fails
to comply with a condition contemplated in subsection (2)(b) is guilty
of an offence and liable on conviction to a penalty contemplated in section
24F(4).".
The amendment to
subsection (1) of 24G provides clarity that the report could be required to
contain one or more of the aspects mentioned in section 24G(1) and not
necessarily all of them.
It further provides that
the Minister may only issue an environmental authorisation once the
administrative fine has been paid.
1.8 Clause 7: Amendments to section 24H
"(6) The Minister may appoint as
registration authorities such number of associations as are required for the
purposes of this Act and may , if circumstances so require, limit the number of
registration authorities to a single registration authority.".
Subclause (6) empowers
the Minister to appoint one or more registration authorities or limits it to a
single authority.
1.9.1 Clause 8: Insertion of section 24J
Inserted Text:
"Implementation
guidelines
24J. The Minister and an MEC, in
concurrence with the Minister, may publish guidelines regarding the
implementation, administration and institutional arrangements of regulations
made in terms of section 24(5).
Clause 24 J empowers the
Minister to issue guidelines regarding the implementation, administration and
institutional arrangement of regulations made in terms of section 24(5).
1.9.2 Clause 8 Insertion of
section 24K
Inserted Text:
Consultation
between competent authorities and consideration of legislative compliance
requirements of other organs of state having jurisdiction
24K. (1) The
Minister or an MEC may consult with any
organ of state responsible for administering the legislation relating to any
aspect of an activity that also requires environmental authorisation under this
Act in order to co-ordinate the respective requirements of such legislation
and to avoid duplication.
(2) The
Minister or an MEC, in giving effect to Chapter 3 of the Constitution and
section 24(4)(a)(i) of this Act, may
after consultation with the organ of state contemplated in subsection (1) enter
into a written agreement with the organ of state in order to avoid duplication
in the submission of information or the carrying out of a process relating to any aspect of an activity that
also requires environmental authorisation under this Act.
(3) The Minister or an MEC may—
(a) after having concluded an agreement contemplated in subsection (2),
consider the relevance and application of such agreement on applications for
environmental authorisations; and
(b) when he or she considers an application for environmental
authorisation that also requires authorisation in terms of other legislation
take account of, either in part or in full and as far as specific areas of
expertise are concerned, any process authorised under that legislation as
adequate for meeting the requirements of Chapter 5 of this Act, whether such
processes are concluded or not.
This clause provides for enabling
provisions to enhance coordination between organs of state to prevent
duplication when authorisations are required in terms of more than one Act. It also provides for agreements between
organs of state to be concluded which set out such cooperation mechanisms.
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 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.
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 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.
1.10 Clause 9: Amendment of section 43
Amended Text:
(1) Any affected person may appeal to the Minister
against a decision taken by any person acting under a power delegated by the
Minister under this Act or a specific environmental management Act.
(2) Any affected person may appeal to the relevant MEC
against a decision taken by any person acting under a power delegated by the
MEC under this Act or a specific environmental management Act.
(3) Any affected party may appeal to the Minister or MEC,
as the case may be, against-
(a) any decision to issue or to refuse to issue an
environmental authorisation or to grant an exemption in terms of Chapter 5;
(b) any provision or condition of an environmental
authorisation or exemption issued or granted in terms of Chapter 5;
(c) any
directive issued in terms of Chapter 5.
(4) An appeal under subsections (1) to (3) must be noted
and must be dealt with in the manner prescribed and upon payment of a
prescribed fee.
(5) The Minister or MEC, as the case may be, may consider
and decide an appeal or appoint an appeal panel to consider and advise the
Minister or MEC on the appeal.
(6) The Minister or MEC may, after considering such an
appeal, confirm, set aside or vary the decision, provision, condition or
directive or make any other appropriate order, including an order that the
prescribed fee paid by the appellant, or any part thereof, be refunded.
(7) An appeal under this section does not suspend an
environmental authorisation or exemption, or any provisions or conditions
attached thereto, or any directive, unless the Minister or MEC directs
otherwise.
"Appeals
43. (1) Any [affected]
person may appeal to the Minister against a decision taken by any person acting
under a power delegated by the Minister under this Act or a specific
environmental management Act.
(2) Any [affected]
person may appeal to [the relevant] an
MEC against a decision taken by any person acting under a power delegated by [the] that MEC under this Act or
a specific environmental management Act.
[(3) Any
affected party may appeal to the Minister or MEC, as the case may be, against—
(a) any decision to issue or to refuse to issue an environmental
authorisation or to grant an exemption in terms of Chapter 5;
(b) any provision or condition of an environmental authorisation
or exemption issued or granted in terms of Chapter 5;
(c) any directive
issued in terms of Chapter 5.]
(4) An appeal under [subsections] subsection (1) [to (3)] or (2) must be noted and must be dealt with in the
manner prescribed and upon payment of a prescribed fee.
(5) The Minister or an MEC, as the
case may be, may consider and decide an appeal or appoint an appeal panel to
consider and advise the Minister or an MEC on the appeal.
(6) The Minister or an MEC may, after
considering such an appeal, confirm, set aside or vary the decision, provision,
condition or directive or make any other appropriate [order] decision, including [an order] a decision that the prescribed fee paid by the
appellant, or any part thereof, be refunded.
(7) An appeal under this section does not
suspend an environmental authorisation or exemption, or any provisions or
conditions attached thereto, or any directive, unless the Minister or an MEC
directs otherwise.".
By removing the
limitation that only “affected persons” may appeal the appeals provision is
opened up to be used by those who have locus
standi in terms of section 32 of the principal Act. Other editorial amendments were made to
provide clarity.
1.8
Clause 9: Transitional provision
Transitional
provisions
10. (1) Anything done or deemed to have been
done under a provision repealed or amended by this Act—
(a) remains valid to the extent that it is consistent with the
principal Act as mended by this Act until anything done under the principal Act
as amended by this Act overrides it; and
(b) subject to paragraph (a),
is considered to be an action under the corresponding provision of the
principal Act as amended by this Act.
(2) An application for authorisation of
an activity that is submitted in terms of Chapter 5 of the principal Act and
that is pending when this Act takes effect must, despite the amendment of the
principal Act by this Act, be dispensed with in terms of the provisions of
Chapter 5 of the principal Act as if Chapter 5 had not been amended.
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.