2014 environmental impact assessment (eia) …
TRANSCRIPT
Directorate: Development Facilitation
Gerhard Gerber
File Reference: 16/2
Circular: EADP 0028/2014
CIRCULAR: EADP 00??/2014: “One Environmental System” and the 2014 EIA Regulations Page 1 of 23
CIRCULAR: EADP 0028/2014
To whom it may concern
“ONE ENVIRONMENTAL MANAGEMENT SYSTEM” AND THE
2014 ENVIRONMENTAL IMPACT ASSESSMENT (EIA) REGULATIONS
This Circular must be read together with applicable legislation, and is not intended to be a
substitute for the provisions of the legislation in any way. If there is a conflict between the
content of this Circular and a provision in the legislation, then the provision in the
legislation will prevail. While this Circular must be taken into account to the extent that it
provides guidance in terms of best practice, in as far as the Circular sets out the
requirements prescribed by the legislation, it must be adhered to.
1. “One Environmental System”
1.1. Following an agreement between the Ministers responsible for environmental
affairs, water and sanitation, and mineral resources, amendments have been
made to the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28
of 2002) (“MPRDA”), the National Environmental Management: Air Quality Act,
2004 (Act No. 39 of 2004) (“NEMAQA”), National Environmental Management Act,
1998 (Act No. 107 of 1998) (“NEMA”), the National Water Act, 1998 (Act No. 36 of
1998) (“NWA”), and the National Environmental Management: Waste Act, 2008
(Act No. 59 of 2008) (NEMWA) to give effect to “One Environmental System” for
South Africa1. The date of effect of the last of the amended provisions was
8 December 2014.
1 Section 50A of NEMA; sections 41(5) and 163A of NWA; sections 43(1A) and (1B) and 44 of NEMWA; sections 36(5)(d) and
(e) and sections 40(3) and (3A) of NEMAQA; Act No. 49 of 2008; Act No. 62 of 2008; Act No. 20 of 2014; Act No. 25 of 2014;
and Act No. 27 of 2014 refer.
11th Floor, 1 Dorp Street, Cape Town, 8001 Private Bag X9086, Cape Town, 8000
tel: +27 21 483 2787 www.westerncape.gov.za/eadp
e-mail: [email protected]
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Fixed and Synchronised Timeframes
1.2. In terms of the “One Environmental System” fixed timeframes for the consideration
and issuing of decisions in terms of the respective legislation was agreed to and
the processes to be followed in terms of the respective legislation have been
synchronised and integrated.
Note: In this regard, it must be noted that Heritage Impact Assessments
have always been integrated with the environmental impact
assessment (EIA) processes undertaken in terms of NEMA through the
provisions set out in Section 38(8) of the Mineral and Petroleum
Resources Development Act, 1999 (Act No. 25 of 1999) (“NHRA”).
1.3. “Days” means calendar days. When a period of days must in terms of the 2014 EIA
Regulations (see section 2 below which deals with the 2014 EIA Regulations) be
reckoned from or after a particular day, that period must be reckoned as from the
start of the day following that particular day to the end of the last day of the
period, but if the last day of the period falls on a Saturday, Sunday or public
holiday, that period must be extended to the end of the next day which is not a
Saturday, Sunday or public holiday. For any action contemplated in terms of the
2014 EIA Regulations for which a timeframe is prescribed, the period of 15
December to 5 January must be excluded in the reckoning of days. Unless justified
by exceptional circumstances, as agreed to by the Competent Authority, a
person intending to submit an application (“proponent”) and applicant must
refrain from conducting any public participation process during the period of
15 December to 5 January. Where a prescribed timeframe is affected by one or
more public holidays, the timeframe must be extended by the number of public
holiday days falling within that timeframe2.
1.4. The fixed timeframes for the synchronised consideration and issuing of decisions in
terms of the respective legislation which was agreed to are:
1.4.1. if an application must be subjected to Basic Assessment the process must be
concluded within 197 or 247 days–
(a) the Basic Assessment Report must be submitted to the Department
within 90 days or, if there was a need for a revised report, within 140
days of receipt of the application by the Department3; and
2 Regulation 3 of the 2014 EIA Regulations refers. 3 Regulation 19 of the 2014 EIA Regulations refers.
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(b) the application must be decided within 107 days of receipt of the Basic
Assessment Report by the Department4;
1.4.2. if the application must be subjected to Scoping and Environmental Impact
Reporting the process must be concluded within 300 or 350 days–
(a) the Scoping Report must be submitted within 44 days of receipt of the
application by the Department5;
(b) the consideration of the Scoping Report must concluded within
43 days of receipt of the Scoping Report by the Department6;
(c) the Environmental Impact Assessment Report must be submitted within
106 days or, if there was a need for a revised report, within 156 days of
acceptance of the Scoping Report by the Department7; and
(d) the application must be decided within 107 days of receipt of the
Environmental Impact Assessment Report by the Department8.
Note: “Receipt”9 means “receipt on the date indicated–
(a) on a receipt form if the application or document was hand
delivered or sent via registered mail;
(b) in an automated or computer generated acknowledgment of
receipt;
(c) on an acknowledgement in writing from the competent
authority as the date of receipt if the application or document
was sent via ordinary mail; or
(d) on an automated or computer generated proof of
transmission in the case of a facsimile message”.
An application in terms of the 2014 NEMA Environmental Impact
Assessment Regulations (see section below on the “2014 NEMA EIA
Regulations”) lapses if the applicant fails to meet any of the
timeframes prescribed in the Regulations, unless the scope of work
must be expanded based on the outcome of an assessment done in
accordance with the 2014 EIA Regulations, which outcome could not
be anticipated prior to the undertaking of the assessment, or in the
event where exceptional circumstances can be demonstrated, and
the Competent Authority, prior to the lapsing of the relevant
prescribed timeframe, in writing extended the relevant timeframe
and agree with the applicant on the length of such extension10.
4 Regulation 20 of the 2014 EIA Regulations refers. 5 Regulation 21 of the 2014 EIA Regulations refers. 6 Regulation 22 of the 2014 EIA Regulations refers. 7 Regulation 23 of the 2014 EIA Regulations refers. 8 Regulation 24 of the 2014 EIA Regulations refers. 9 Defined in the 2014 EIA Regulations 10 Regulation 45 and 3(7) of the 2014 EIA Regulations refer.
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1.5. In terms of synchronisation, the decisions in terms of the consideration and issuing
of decisions in terms of the respective legislation which was agreed to are:
1.5.1. the decision related to the heritage impacts will be made as part of and
therefore at the same time as the decision on the Environmental
Authorisation in terms of NEMA;
1.5.2. the decision on the Environmental Authorisation, the decision on the Waste
Management Licence, and the decision on the WULA11 must all be made
within the legislated timeframe;
Note: A Waste Management Licence for a waste disposal facility must
include any conditions contained in a WULA issued for a water use
associated with the waste disposal facility12. With the timeframes to
be synchronised it would mean that either the condition to be
included in the WULA should be communicated to the Licensing
Authority who is deciding the Waste Management Activity, or
immediately after the issuing of the WULA, the conditions of the
WULA need to be included in the Waste Management Licence that
need to be issued immediately after the issuing of the WULA.
and
1.5.3. a decision on an Atmospheric Emission Licence must either be decided:
(a) at the same time as the decisions on the Environmental Authorisation
and Waste Management Licence it relates to a prospecting, mining,
exploration or production activity contemplated in the MPRDA in the
area for which the right has been applied13; or
(b) within 60 days of the date on which the Environmental Authorisation in
terms of NEMA was decided14.
11 Section 41(5) of NWA refers. 12 Section 50(3) of NEMWA refers. 13 Section 40(3A) of NEMAQA refers. 14 Section 40(3) of NEMAQA refers.
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Roles and Responsibilities of the different Authorities
1.6. The Minister responsible for mineral resources is the:
1.6.1. Competent Authority to consider applications for Environmental
Authorisation in terms of NEMA if the activities relate to prospecting,
exploration, mining or operations15; and
1.6.2. Licensing Authority to consider Waste Management Licence applications in
terms of the NEMWA if the activities relate to prospecting, exploration,
mining or operations16.
1.7. The Minister responsible for environmental affairs is the:
1.7.1. Competent Authority to consider applications for Environmental
Authorisation in terms of NEMA for a listed activity that does not relate to
prospecting, exploration, mining or operations, unless in terms of the
provisions of Section 24C of NEMA the MEC of the relevant Province
responsible for environmental affairs17 is the Competent Authority;
1.7.2. Licensing Authority to decide an Atmospheric Emission Licence application
in terms of NEMAQA if the activity18, amongst others, relates to the activities
listed in terms of section 24(2) of NEMA19, or in terms of section 19(1) of the
NEMWA20, or if the listed activity relates to a prospecting, mining, exploration
or production activity as contemplated in the MPRDA21;
1.7.3. Appeal Authority to decide on appeals against the Minister responsible for
mineral resources’ decisions in terms of NEMA22; and
1.7.4. Appeal Authority to decide on appeals against decisions of officials
delegated by the Minister to decide on Environmental Authorisation
applications in terms of NEMA and Atmospheric Emission Licence
applications in terms of NEMAQA.
15 Section 24C(2A) of NEMA, and sections 43(1A) and 1B of NEMWA refer. 16 Sections 43(1A) and (1B) of NEMWA refer. 17 Section 24C of NEMA refers. 18 The list of Atmospheric Emission Activities published in terms of NEMAQA (Government Notice No. 893 published in
Government Gazette No. 37083 on 22 November 2013 refers). 19 Listing Notices 1, 2 and 3 published in terms of NEMA (Government Notices No. R. 983, R. 984 and R. 985 published in
Government Gazette No. 38282 on 4 December 2014 refer). 20The list of Waste Management Activities published in terms of NEMWA (Government Notice No. 921 published in
Government Gazette No. 37083 on 29 November 2014 refers). 21 Section 36 of NEMAQA refers. 22 Section 50A(2)(c) of NEMA refers
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1.8. The Minister responsible for water and sanitation is the:
1.8.1. Licensing Authority to decide on water use licence applications (“WULAs”) in
terms of NWA; and
1.8.2. Appeal Authority to decide on appeals against decisions of officials
delegated by the Minister to decide on WULAs in terms of NWA.
1.9. The MEC, of the relevant province, responsible for environmental affairs is the:
1.9.1. Competent Authority to consider applications for Environmental
Authorisation in terms of NEMA for a listed activity that does not relate to
prospecting, exploration, mining or operations, and which in terms of the
provisions of Section 24C of NEMA must be dealt with by the MEC;
1.9.2. Licensing Authority to decide an Atmospheric Emission Licence application
in terms of NEMAQA if a Metropolitan Municipality, or the District Municipality
or Minister responsible for environmental affairs is not the Licensing Authority
in terms of the provisions of Section 36 of NEMAQA;
1.9.3. Licensing Authority to decide an Waste Management Licence application in
terms of NEMWA if the Minister responsible for environmental affairs or the
Minister responsible for mineral resources is not the Licensing Authority in
terms of the provisions of Section 43 of NEMWA; and
1.9.4. Appeal Authority to decide on appeals against decisions of officials
delegated by the MEC to decide on Environmental Authorisation
applications in terms of NEMA, Atmospheric Emission Licence applications in
terms of NEMAQA, and Waste Management Licences in terms of NEMWA.
1.10. The Council of a Metropolitan or District Municipality is the:
1.10.1. Licensing Authority to decide on Atmospheric Emission Licence applications
in terms of NEMAQA which are not decided by the Minister responsible for
environmental affairs or the MEC of the relevant province responsible for
environmental affairs; and
1.10.2. Appeal Authority to decide on appeals submitted in terms of the Local
Government: Municipal System Act, 2000 (Act No. 32 of 2000) (“MSA”)
against decisions of officials delegated by the Council to decide on
Atmospheric Emission Licence applications in terms of NWA.
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1.11. In terms of Heritage Impact Assessments to be undertaken as part of EIA processes
undertaken in terms of NEMA, the Competent Authority to decide on a NEMA
application must ensure that the requirements of the relevant heritage authority in
terms of the Heritage Impact Assessment are met, and must take into account the
recommendations of the heritage authority when deciding the application in
terms of NEMA23.
2. 2014 EIA Regulations and 2014 NEMA Listing Notices
2014 EIA Regulations
2.1. To give further effect to the “One Environmental System”, the Minister responsible
for environmental affairs promulgated:
2.1.1. on 4 December 2014 , new EIA Regulations (“2014 EIA Regulations”)24; and
2.1.2. on 8 December 2014 National Exemption Regulations25 and National Appeal
Regulations26.
2.2. On the date of effect of the 2014 EIA Regulations, the National Exemption
Regulations and the National Appeal Regulations, 8 December 2014, these
regulations repealed and replaced the EIA Regulations promulgated in terms of
NEMA on 18 June 2010 (“2010 NEMA EIA Regulations)27.
Listing Notices
2.3. The Minister responsible for environmental affairs on 4 December 2014 also
repealed Listing Notice 1, 2 and 3 published in terms of NEMA in 201028 and
published three new Listing Notices in terms of NEMA29. While a draft
Listing Notice 430 was also published earlier this year, Listing Notice 4 has not been
promulgated. The date of effect of the new Listing Notice 1, 2 and 3 was
8 December 2014.
23 Section 38(8) of the NHRA refers 24 Government Notices No. R. 982 published in Government Gazette No. 38282 on 4 December 2014 refers. 25 General Notice No. R. 994 published in Government Gazette No. 38303 on 8 December 2014 refers. 26 General Notice No. R. 993 published in Government Gazette No. 38303 on 8 December 2014 refers. 27 Government Notice No. R. 543 published in Government Gazette No. 33306 on 18 June 2010 refers. 28 Government Notice No. R. 544, R. 545, and R. 546 published Government Gazette No. 33306 on 18 June 2010 refer. 29 Government Notices No. R. 982 published in Government Gazette No. 38282 on 4 December 2014 refers. 30 General Notice No. 709 published in Government Gazette No. 37937 on 22 August 2014 refers.
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3. EMF Regulations, NEMA Fee Regulations, and Financial Provision
EMF Regulations
3.1. The Environmental Management Framework (“EMF”) Regulations31 published in
terms of NEMA has not been repealed or amended and still applies.
NEMA Fee Regulations
3.2. The “Fees for consideration and processing of applications for Environmental
Authorisations and amendments thereto” (“NEMA Fee Regulations”) published in
terms of NEMA32 also apply in terms of applications for Environmental Authorisation
in terms of the 2014 NEMA Listing Notices.
Financial provision
3.3. Section 24(5) of NEMA states that the Minister, or an MEC with the concurrence of
the Minister, may make regulations to, amongst others, lay down the procedure to
be followed in respect of financial provision.
3.4. Section 24P of NEMA also set out the requirements in terms of financial provision for
remediation of environmental damage in relating to an Environmental
Authorisation for prospecting, exploration, mining, or production related activities
which must be complied with once such financial provision regulations have been
prescribed in terms of NEMA. In term of Section 24P(7) of NEMA, the requirement in
terms of such financial provision regulations may also be made applicable to any
other application in terms of NEMA.
3.5. NEMA, however, defines “financial provision” as “the insurance, bank guarantee,
trust fund or cash that applicants for an environmental authorisation must provide
in terms of this Act guaranteeing the availability of sufficient funds to undertake
the— (a) rehabilitation of the adverse environmental impacts of the listed or
specified activities; (b) rehabilitation of the impacts of the prospecting,
exploration, mining or production activities, including the pumping and treatment
of polluted or extraneous water; (c) decommissioning and closure of the
31 Government Notice No. 547 published in Government Gazette No. 33306 of 18 June 2010 refers. 32 Government Notice No. 141 published in Government Gazette No. 37383 on 28 February 2014 refers.
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operations; (d) remediation of latent or residual environmental impacts which
become known in the future; (e) removal of building structures and other objects;
or (f) remediation of any other negative environmental impacts”. Section 24E of
NEMA prescribes that every Environmental Authorisation must as a “minimum
ensure that”, amongst others, “adequate provision is made for the ongoing
management and monitoring of the impacts of the activity on the environment
throughout the life cycle of the activity”. As such, while Section 24P of NEMA will
only come into effect once specific regulations in terms of Section 24P have been
prescribed, Section 24E already applies and in terms of a particular application for
Environmental Authorisation, the relevant Competent Authority could already
attach conditions to the Environmental Authorisation that directly relate to the
requirements to make adequate provision for the ongoing management and
monitoring of impacts which could also include financial provision.
Note: In terms of the content requirements of a Basic Assessment Report33,
an Environmental Impact Assessment Report34, and an Environmental
Management Programme35 information must be provided on “where
applicable, details of any financial provisions for the rehabilitation,
closure, and ongoing post decommissioning management of
negative environmental impacts”. A Closure Plan36 must “comply with
any provisions of the Act regarding financial provisions for
rehabilitation, where applicable”.
3.6. While draft “Regulations pertaining to the financial provision for the rehabilitation,
closure and post closure of prospecting, exploration, mining or production
operations”37 was published earlier this year, the final regulations has not yet been
promulgated. Once the final regulations are promulgated and has come into
effect, the provisions would have to be met by all applications for Environmental
Authorisation in terms of NEMA that relate to prospecting, exploration, mining or
production operations. As indicated above, the requirement in terms of such
financial provision regulations may also be made applicable to any other
application in terms of NEMA38.
33 Regulation 3(1)(s) in Appendix 1 to the 2014 EIA Regulations refers. 34 Regulation 3(t) in Appendix 3 to the 2014 EIA Regulations refers. 35 Regulation 1(1)(f)(iv) in Appendix 4 to the 2014 EIA Regulations refers. 36 Regulation 1(1)(j) in Appendix 5 to the 2014 EIA Regulations refers. 37 General Notice No. 940 published in terms of Government Gazette No. 38145 on 31 October 2014 refers. 38 Section 24P(7) of NEMA refers.
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4. Public Participation
Public participation in terms of an application for Environmental Authorisation is a
minimum requirement and National Environmental Management Principles
4.1. Procedures for the investigation, assessment and communication of the potential
consequences or impacts of activities on the environment–
4.1.1. must ensure, with respect to every application for an Environmental
Authorisation, amongst others, 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
those information and participation procedures39;
Note: NEMA defines “Environmental Authorisation” as “the authorisation by a
competent authority of a listed activity or specified activity in terms of
NEMA, and includes a similar authorisation contemplated in a specific
environmental management Act”. NEMA further defines “specific
environmental management Act” as “means–
(a) the Environment Conservation Act, 1989 (Act No. 73 of 1989);
(b) the National Water Act, 1998 (Act No. 36 of 1998);
(c) the National Environmental Management: Protected Areas Act,
2003 (Act No. 57 of 2003);
(d) the National Environmental Management: Biodiversity Act, 2004
(Act No. 10 of 2004);
(e) the National Environmental Management: Air Quality Act, 2004
(Act No. 39 of 2004);
(f) the National Environmental Management: Integrated Coastal
Management Act, 2008 (Act No. 24 of 2008);
(g) the National Environmental Management: Waste Act, 2008 (Act
No. 59 of 2008); or
(h) (h) the World Heritage Convention Act, 1999 (Act No. 49 of 1999),
and includes any regulation or other subordinate legislation made in
terms of any of those Acts.
As such, 4.1 and 4.1.1 above applies to an application for
“Environmental Authorisation” in terms of any of the abovementioned
Acts, e.g. an Atmospheric Emission Licence, a Waste Management
Licence, a Water Use Licence, etc.
39
Section 24(4)(a)(v) of NEMA refers.
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4.1.2. must take into account–
(a) the general objectives of integrated environmental management laid
down in the NEMA which, amongst others, calls for “adequate and
appropriate opportunity for public participation in decisions that may
affect the environment”40; and
(b) the National Environmental Management Principles laid down in
NEMA which, amongst others, include the principle that “the
participation of all interested and affected parties in environmental
governance must be promoted, and all people must have the
opportunity to develop the understanding, skills and capacity
necessary to achieving equitable and effective participation, and
participation by vulnerable and disadvantaged persons must be
ensured”41.
Note: It is not possible for the Department to grant exemption from the
requirement set out in 4.1 above42. It is, however, possible to be
exempted from some of the procedural requirements in terms of
public participation, but an application for exemption must also be
subjected to public participation.
4.2. Again refer to 1.3 above regarding the reckoning of days.
4.3. Any public participation process undertaken in terms of the 2014 EIA Regulations
must be conducted for a period of at least 30 days43.
Consent of and consultation with the land owner or person in control of the land44
4.4. If the person intending to submit an application for Environmental Authorisation
(“proponent”) and the person intending to submit an application for Exemption is
not the owner or person in control of the land on which the activity is to be
undertaken, the proponent must, before applying in respect of such activity,
obtain the written consent of the landowner or person in control of the land to
undertake such activity on that land, which written consent must be submitted
together with the application for Environmental Authorisation and application for
Exemption45.
40 Sections 24(4)(a)(ii) and 32(2)(d) of NEMA refer. 41 Sections 2(4)(f) and 24(4)(a)(11) of NEMA refer. 42
Section 24M(1) of NEMA refers.
43 Regulation 3(8) of the 2014 EIA Regulations refers. 44 Regulations 16(1)(b)(i) and 39 of the 2014 EIA Regulations refer. 45 Regulation 41(1) of the 2014 EIA Regulations and Regulation 4(3) of the National Exemption Regulations refer
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4.5. The written consent of the land owner or person in control of the land is, however,
not required in respect of–
4.5.1. linear activities;
Note: “Linear activity” is defined as “an activity that is arranged in or
extending along one or more properties and which affects the
environment or any aspect of the environment along the course of
the activity, and includes railways, roads, canals, channels, funiculars,
pipelines, conveyor belts, cableways, power lines, fences, runways,
aircraft landing strips, and telecommunication lines”46.
4.5.2. activities directly related to prospecting or exploration of a mineral and
petroleum resource or extraction and primary processing of a mineral
resource; and
4.5.3. strategic integrated projects (“SIPs) as contemplated in the Infrastructure
Development Act, 2014 (Act No. 23 of 2014).
4.6. The Department will, however, also require that the land owner or person in control
of the land (including in respect of linear activities and SIPs47) be consulted with
throughout the EIA process.
Notice to potential or Registered I&APs
4.7. The person conducting a public participation process in respect of an application
for Environmental Authorisation and an application for Exemption must take into
account any relevant guidelines applicable to public participation as
contemplated in Section 24J of NEMA and must give notice to all potential
interested and affected (I&APs) parties of the application or proposed application
for Environmental Authorisation, and the notice of intention to apply for Exemption
by48–
4.7.1. fixing a notice board at a place conspicuous to and accessible by the
public at the boundary, on the fence or along the corridor of–
(a) the site where the activity to which the application or proposed
application relates is or is to be undertaken; and
(b) any alternative site;
46 As defined in the 2014 EIA Regulations. 47 Applications for Environmental Authorisation in terms of activities directly related to prospecting or exploration of a mineral
or petroleum or extraction and primary processing of mineral resources, must be dealt with by the Minister responsible for
mineral resources. 48
Regulation 41(2) of the 2014 EIA Regulations and Regulations 4(3), (4), (5) and (6) of the National Exemption Regulations
refer.
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4.7.2. giving written notice to–
(a) the occupiers of the site and, if the proponent or applicant is not the
owner or person in control of the site on which the activity is to be
undertaken, the owner or person in control of the site where the activity
is or is to be undertaken or to any alternative site where the activity is to
be undertaken;
(b) owners, persons in control of, and occupiers of land adjacent to the
site where the activity is or is to be undertaken or to any alternative site
where the activity is to be undertaken;
(c) the municipal councillor of the ward in which the site or alternative site
is situated and any organisation of ratepayers that represent the
community in the area;
(d) the municipality (both the Local Municipality and District Municipality)
which has jurisdiction in the area;
(e) any organ of State having jurisdiction in respect of any aspect of the
activity; and
(f) any other party as required by the Department;
4.7.3. placing an advertisement in–
(a) one local newspaper; or
(b) any official Gazette that is published specifically for the purpose of
providing public notice of applications or other submissions made in
terms of the EIA Regulations;
(c) unless an advertisement has been placed in the official Gazette
referred to in 4.7.1.3.2 above, placing an advertisement in at least one
provincial newspaper or national newspaper, if the activity has or may
have an impact that extends beyond the boundaries of the
metropolitan or district municipality in which it is or will be undertaken;
and
4.7.4. using reasonable alternative methods, as agreed to by the Department, in
those instances where a person is desirous of but unable to participate in the
process due to–
(i) illiteracy;
(ii) disability; or
(iii) any other disadvantage.
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Note: A written notice in terms of 4.7.2 above must be given by–
by delivering it by hand;
by sending it by registered mail–
o to that person‘s business or residential address; or
o in the case of a juristic person, to its registered address or
principal place of business;
by faxing a copy of the notice to the person, if the person has a fax
number;
by e-mailing a copy of the notice or other document to the person,
if the person has an e-mail address;
by posting a copy of the notice to the person by ordinary mail, if
the person has a postal address; or
where an address is unknown despite reasonable enquiry, by
publishing it once in the Gazette and once in a local newspaper
circulating in the area of that person‘s last known residential or
business address;49
A written notice to a Municipality in terms of 4.7.2.(d) above must be
submitted to the relevant Municipal officials (e.g. Health Officer,
Planner, Environmental Manager, Engineer, etc.). The Municipal
Manager should be approached to determine which Municipal
officials to be notified.
In terms of 4.7.2.(e) above, note that:
“Organ of State”50 means– any department of State or
administration in the national, provincial or local sphere of
government; or any other functionary or institution–
o exercising a power or performing a function in terms of the
Constitution or a Provincial Constitution; or
o exercising a public power or performing a public function in
terms of any legislation;
but does not include a court or a judicial officer.
"State department" has been defined as “means any department
or administration in the national or provincial sphere of government
exercising functions that involve the management of the
environment”51. Unless an agreement to the contrary has been
49 Section 47D of NEMA refers. 50 As defined in the Constitution. 51 As defined in the 2014 EIA Regulations.
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reached with the Department, the Environmental Assessment
Practitioner (“EAP”) must consult with every organ of state including
the State departments52, but the Department when considering an
application for environmental authorisation must also consult with
every State department that administers a law or exercising
functions that affect the environment or involve the management
of the environment53. When, following submission of the application
for Environmental Authorisation, the I&APs are afforded an
opportunity to comment on a Basic Assessment Report, a Scoping
Report and an Environmental Impact Assessment Report, the EAP
must notify all the Registered I&APs and the Department of the
opportunity to comment on the report, but the Department will also
in writing request the State departments (the contact persons that
the EAP notified) that administers a law or exercising functions that
affect the environment or involve the management of the
environment to within 30 days from the Department’s request
submit comments to the Department, copied to the EAP, on the
application and the report54.
In terms of placing an advertisement in terms of 4.7.3 above, note
that in terms of an application for an Atmospheric Emission Licence
and an application for a Waste Management Licence a notice must
be published in at least two newspapers circulating in the area in
which the activity applied for is or is to be carried out.55
4.7.5. While the 2010 NEMA EIA Regulations allowed the Department to agree to a
deviation, to the extent appropriate, from the requirements set out for giving
notice56, the 2014 EIA Regulations does not allow for deviation. If a person
wants to “deviate” from a specific requirement in terms of giving notice,
exemption from the specific requirement would have to be applied for.
52
Regulation 7(2) of the 2014 EIA Regulations refers.
53 Section 24O(2) and the definition of State department in the 2014 EIA Regulations refer. 54 Sections 24O(2) and (3) of NEMA and Regulation 43(2) of the 2014 EIA Regulations refer. 55 Section 38(3(b) of NEMAQA and Section 47(4) of NEMWA refer. 56 Regulation 54(5) of the 2010 NEMA EIA Regulations refers.
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Content of Notice, Notice Board and Advertisement, and size of Notice Board
4.8. A notice, notice board or advertisement referred must57–
4.8.1. give details of the application or proposed application which is subjected to
public participation; and
4.8.2. state–
(a) the name, address and telephone number of the person applying
for the Environmental Authorisation or Exemption;
(b) whether Basic Assessment (BA) or Scoping and Environmental
Impact Reporting (S&EIR) procedures are being applied to the
application for Environmental Authorisation;
(c) the nature application, including the particulars of the
activity/provisions from which exemption is being applied for, and
location of the activity to which the application relates;
(d) where further information on the application or proposed
application, including a copy of the application, can be obtained;
(e) the period within which representations may be made/comments
may be submitted, which period must be at least 30 days58;
(f) the manner in which representations may be made/comments may
be submitted in respect of the application or proposed application,
including the postal address, e-mail address, fax number, contact
details of the person to whom comments may be submitted;
(g) that a register of interested and affected parties (I&APs) will be
opened and maintained containing the names, contact details and
addresses of–
(i) all persons who, as a consequence of the public participation
process conducted in respect of that application, have
submitted written comments or attended meetings with the
proponent, applicant or EAP;
(ii) all persons who have requested the proponent or applicant, in
writing, for their names to be placed on the register; and
(iii) all organs of state which have jurisdiction in respect of the
activity to which the application relates;
(h) that only Registered I&APs will be59:
57
Regulation 41(3) of the 2014 EIA Regulations, Section 38(3(b) of NEMAQA, Section 47(4) of NEMWA and Regulation 4(4) of
the National Exemption Regulations refer. 58 Regulation 3(8) of the 2014 EIA Regulations refers.
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(i) once the application has been submitted, entitled to comment
on reports and plans to be submitted to the Department and to
bring to the attention of the proponent or applicant any issues
which that party believes may be of significance to the
consideration of the application, provided that the party–
provide its name, contact details and address; and
discloses any direct business, financial, personal or other
interest which the party may have in the approval or refusal of
the application; and
(ii) in writing, within 14 days of the date of the decision be notified
of the outcome of the application, including the reasons for the
decision, and the right of appeal.
4.9. A notice board must60–
4.9.1. be of a size at least 60cm by 42cm; and
4.9.2. display the required information in lettering and in a format as may be
determined by the competent authority.
Making reports and plans available for comment
4.10. Potential or Registered I&APs, including the Department, the organs of State and
State departments, must be given a period of at least 30 days to submit comments
on a Basic Assessment Report (“BAR”), an Environmental Management
Programme (“EMPr”), a Scoping Report (“SR”), an Environmental Impact
Assessment Report (“EIAR”), where applicable a Closure Plan, and a report on an
application for amendment to a valid Environmental Authorisation which will result
in a change in scope (i.e. a substantive amendment).61
4.11. Potential or Registered I&APs, including the Department, may be provided with an
opportunity, for a period of at least 30 days, to comment on the reports and plans
referred to in 4.10 above prior to submission of an application, but once the
application has been submitted, must be provided an opportunity to comment on
such reports prior to the formal submission of the report to the Department within
the prescribed timeframe for the submission of the specific report62.
59 Regulations 4(2) and 43(1) of the 2014 EIA Regulations refer. 60 Regulation 41(4) of the 2014 EIA Regulations refers. 61
Regulations 40(1) and (2) and 32 of the 2014 EIA Regulations refer. 62
Regulation 40(3) of the 2014 EIA Regulations refers.
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Note: In other words, even if potential or Registered I&APs were afforded an
opportunity to comment on the report/plan prior to submission of the
application, once the application has been submitted the potential
or Registered I&APs, including the Department, must again be
afforded a period of at least 30 days to comment on the report/plan.
Considering the timeframes for submission of a Basic Assessment
Report and, especially, a Scoping Report, it is recommended that the
notice referred to in 4.7 above be given to potential I&APs prior to
submission of the application. It is further recommended that the
same notice also inform the potential I&APs of the availability of the
“draft” report/plan for comment. (Note: While the 2014 EIA
Regulations do not refer to “draft” and “final” reports, the report that
may be released prior to submission of the application will be a
“draft” report, while the report that will be made available after
submission of the application will be the “final” report.
4.12. As stated in the notes under 4.7 above, if, after having submitted an application
for Environmental Authorisation, the EAP notifies the relevant State departments of
the opportunity to comment on the “final” report, the Department will also in
writing request the relevant State departments to submit their comments within
30 days of the Department’s request for comments to the Department, and to
provide the EAP with copies of any comments submitted to the Department. As
such, the EAP must provide copies of the notices given to the State departments
of the availability of the “final” report to the Department on the same day as the
notices is given to the State departments. The Department will also copy the EAP
on the requests for comments that it sends to State departments.
4.13. Where the Department is requested by an applicant to comment in terms of the
2014 EIA Regulations, the Department will submit its comments within 30 days63.
4.14. If after having submitted the application and after the commenting period on the
BAR, EIAR, EMPr, or a report on proposed substantive amendments, significant
changes have to be made to report or EMPr or significant new information has to
be added to the report or EMPr, the revised BAR, EIAR, EMPr or report on proposed
substantive amendments must be made available to the Registered I&APs for an
additional commenting period of at least 30 days. The notice that a revised BAR,
EIAR, EMPr or report on proposed substantive amendments will be subjected to an
additional public participation period, must, however, be communicated to the
Department within the original time period within which the BAR, EIAR or report on
proposed substantive amendments had to be submitted to the Department. The
63 Regulation 7(5) of the 2014 EIA Regulations refers.
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revised report, together with any comments received on the revised report, must,
however, be submitted within 50 days of the expiry of the original period within
which the final BAR, EIAR, EMPr or report on proposed substantive amendments
had to be submitted to the Department.64
4.15. If an additional public participation process will be followed in terms of a revised
report as set out in 4.14 above, the requirements in terms of giving notice as per
4.7.1, 4.7.2, 4.7.3 and 4.7.4 above need not be complied with again during the
additional public participation process on condition that–
4.15.1. such process has been preceded by a public participation process which
included compliance with the requirements for giving notice set out in 4.7.1,
4.7.2, 4.7.3 and 4.7.4 above; and
4.15.2. written notice is given to the Registered I&APs regarding where the revised
report or plan may be obtained, the manner in which and the person to
whom representations on these reports or plans may be made and the date
on which such representations are due, which date must allow for at least
30 days to submit comments.65
Identifying and approaching specific stakeholders
4.16. Over and above the placement of general notices in the media calling for
potential I&APs to participate, certain stakeholders should be specifically
approached. The following means of identifying stakeholders should be used
when appropriate:
4.16.1. social profiles or probes provide a comprehensive summary of the key
characteristics of the people of a community or area and can serve as a
starting point for identifying stakeholders;
4.16.2. brainstorming sessions with the proponent and/or authorities, based on
previous experience, to identify key stakeholders who may be interested
or affected by the proposal;
4.16.3. established lists and databases, held by consultancies, authorities or
research institutions, may hold additional contact details of residents, Non-
64 Regulations 19(1)(b), 23(1)(b) and 32(1)(b) of the 2014 EIA Regulations refer. 65 Regulation 41(5) of the 2014 EIA Regulations refers.
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Government Organisations, Community Based Organisations or
constituents; and
4.16.4. network or chain referral systems according to which key stakeholders are
asked to assist in identifying other stakeholders.
Appropriate participation measures
4.17. Appropriate participation measures should be put in place to deal with the range
of cultural and language requirements of I&APs. The language used by the I&APs
must be taken into account when serving a notice, selecting a newspaper,
holding a public meeting and writing a report.
Note: Where environmental reporting is done in a specific official language,
executive summaries in the other official languages should be made
available, on request.
4.18. Where I&APs include historically disadvantaged communities or people with
special needs (e.g. a lack of skills to read or write, disability, or any other
disadvantage), the following should, amongst others, be considered:
4.18.1. the project and public participation process could be announced on an
appropriate local radio station in a local language, at an appropriate time;
4.18.2. Participatory Rural Appraisal (PRA) and Participatory Learning and Action
(PLA) approaches and techniques could be used to build the capacity of
these stakeholders to engage and participate more effectively;
4.18.3. existing community structures, committees and leaders should specifically be
approached;
4.18.4. public meetings should be held at times and venues suitable to the
community;
4.18.5. determine the need for separate meetings with vulnerable and marginalised
groups;
4.18.6. appropriate access to information must be provided; and
4.18.7. reasonable assistance to people with special needs should be provided.
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Level of public participation to be undertaken
4.19. The minimum requirements for public participation outlined in the 2014 EIA
Regulations will not necessarily be sufficient for all applications. The circumstances
of each application are different. The following should be taken into account
when deciding on the level of public participation and the process to be followed:
4.19.1. Scale of anticipated impacts:
(a) Are the impacts of the project likely to extend beyond the boundaries
of the local municipality?
(b) Are the impacts of the project likely to extend beyond the boundaries
of the province?
(c) Is the project a greenfields development (a new development in a
previously undisturbed area)?
(d) Does the area already suffer from socio-economic problems (e.g. job
losses) or environmental problems (e.g. pollution), and is the project
likely to exacerbate these?
(e) Is the project expected to have a wide variety of impacts (e.g. socio-
economic and environmental)?
4.19.2. Public sensitivity of the project:
(a) Is widespread public concerns expected about the potential negative
impacts of the project?
(b) Is there a high degree of conflict among I&APs?
(c) Will the project impact on private land other than that of the
applicant?
(d) Does the project have the potential to create unrealistic expectations
(e.g. that a new factory would create a large number of jobs)?
4.19.3. Potential affected parties:
(a) Has very little previous public participation taken place in the area?
(b) Did previous public participation processes in the area result in conflict?
(c) Are there existing organisational structures (e.g. local forums) that can
represent I&APs?
(d) What is the literacy level of the community in terms of their ability to
participate meaningfully during the public participation process?
(e) Is the area characterised by high social diversity (i.t.o. socio-economic
status, language or culture)?
(f) Were people in the area victims of unfair expropriations or relocation in
the past?
(g) Is there a high level of unemployment in the area?
(h) Do the I&APs have special needs (e.g. a lack of skills to read or write,
disability, etc.)?
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4.20. Based on the above consideration, the use of the following public participation
mechanisms, over and above the minimum requirements, should also be
considered:
4.20.1. public meetings and open days;
4.20.2. conferences;
4.20.3. press releases;
4.20.4. questionnaires or opinion surveys;
4.20.5. information desks and/or information lines (helplines); and
4.20.6. meetings/workshops with constituencies (e.g. National Standing
Committees, Non-Government Organisations/Community Based
Organisations).
All relevant facts to be made available, participation to be facilitated, and
reasonable opportunity to comment
4.21. The person conducting the public participation process must ensure that66–
4.21.1. information containing all relevant facts in respect of the application or
proposed application is made available to potential interested and affected
parties; and
4.21.2. participation by potential or registered interested and affected parties is
facilitated in such a manner that all potential or Registered I&APs are
provided with a reasonable opportunity to comment on the application or
proposed application.
Combination of public participation processes
4.22. Where an Environmental Authorisation is required in terms of the 2014 EIA
Regulations and an authorisation, permit or licence is also required in terms of a
specific environmental management Act (“SEMA”), a combined public
participation process must be followed as agreed to by the relevant authorities67.
4.23. With respect to every application for Environmental Authorisation in terms of
NEMA and every application for an authorisation, permit or licence in terms of a
66
Regulation 41(6) of the 2014 EIA Regulations refers.
67 While regulation 41(7) of the 2014 EIA Regulations refers to “may”, Section 50A of NEMA and Sections 41(5) and 163A of
the National Water Act states that the processes “must” be synchronised, aligned and integrated refers.
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SEMA, there must be coordination and cooperation between the Competent
Authority/Licensing Authority in terms of NEMA/SEMA and any other organs of state
from which an authorisation, permit or licence in terms of any other legislation is
required68. As such, the EAP must prior to undertaking public participation, engage
with the authorities to determine the need for a combined process to be followed.
4.24. Where the authorities have entered into an agreement in terms of Section 24K
and/or 24L of NEMA, and the authorities have indicated that such an agreement is
applicable to an application, the application must be dealt with in accordance
with the combined process, including any combined public participation, agreed
to between the authorities69.
4.25. Where the Department has granted permission for the combination of
applications, a combined public participation process must be followed70.
Details of the Public Participation Process undertaken and Comments and Responses
to be recorded in reports
4.26. The applicant must ensure that the comments of I&APs are recorded in reports
and plans and that such written comments, including responses to such comments
and records of meetings, are attached to the reports and plans that are submitted
to the Department.
4.27. Where a person desires but is unable to access the written comments referred to
in 4.26 above due to–
4.27.1. a lack of skills to read or write;
4.27.2. disability; or
4.27.3. any other disadvantage;
reasonable alternative methods of recording comments must be provided for.71
4.28. A BAR, SR, EIAR and Closure Plan must contain, amongst others72–
4.28.1. details of the public participation process undertaken, including copies of
the supporting documents and inputs (including copies of comments received
and minutes of meetings held); and
68
Regulation 7(3) of the 2014 EIA Regulations and 24(4)(a)(i) of NEMA refer.
69 Regulation 7(1) of the 2014 EIA Regulations and Sections 24L and K of NEMA refer. 70 Regulation 11 of the 2014 EIA Regulations refers. 71
Regulations 44(1) and (2) of the 2014 EIA Regulations refer.
72 Appendix 1: Regulation 3(1)(h); Appendix 2: Regulation 2(h); Appendix 3: Regulation 3(h); and Appendix 5: Regulation
1(1)(i) of the 2014 EIA Regulations refer.
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4.28.2. a summary of the comments received and issued raised by I&APs (including
the date of receipt of the comments) and the responses of the EAP to those
comments and an indication of the manner in which the issues were
incorporated, or the reason for not including them), into the report.
4.29. A Specialist Report and Audit Report must contain, amongst others73–
4.29.1. a description of any consultation process that was undertaken during the
course of preparing the Specialist/Audit Report; and
4.29.2. a summary and copies of any comments received during any consultation
process undertaken during the course of preparing the Specialist/Audit
Report, and responses thereto.
4.30. Proof of all notices given to I&APs, notice board displayed and advertisements
placed in terms of the 2014 EIA Regulations must be submitted to the Department
together with the rest of the public participation information, with the following to
be submitted to the Department:
4.30.1. a copy of the newspaper advertisement (“newspaper clipping”) and, if
applicable, notice in the Gazette that was placed, indicating the name
of the newspaper and, if applicable, the name of the Gazette, and the
date of publication (of such quality that the wording in the
advertisement/notice is legible);
4.30.2. a site map showing where the site notice was displayed, a dated
photographs showing the notice displayed on site and a copy of the text
displayed on the notice;
4.30.3. in terms of the written notices given, a copy of the written notice sent, as
well as–
(a) if registered mail was sent, a list of the registered mail sent
(showing the registered mail number, the name of the person
the mail was sent to, the address of the person and the date the
registered mail was sent);
(b) if normal mail was sent, a list of the mail sent (showing the name
of the person the mail was sent to, the address of the person, the
date the mail was sent, and the signature of the post office
worker or the post office stamp indicating that the letter was
sent);
(c) if a facsimile was sent, a copy of the facsimile report;
(d) if an electronic mail was sent, a copy of the electronic mail sent;
and
(e) if delivered by hand (a “mail drop”), a signed register of “mail
drops” received (showing the name of the person the notice
was handed to, the address of the person, the date, and the
signature of the person).
73 Appendix 6: Regulation 1(1)(o) and (p); and Appendix 7: Regulation 3(1)(g) and (j) of the 2014 EIA Regulations refer.
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Information to be made available at the site, to anyone on request on the holder’s
website
4.31. In terms of the 2014 EIA Regulations the Department must attach to any
Environmental Authorisation it grants a condition that the Environmental
Authorisation, EMPr, any independent assessments of financial provision for
rehabilitation and environmental liability, Closure Plans (where applicable), Audit
Reports, and all compliance monitoring reports be made available for inspection
and copying74–
4.31.1. at the site of the authorised activity;
4.31.2. to anyone on request; and
4.31.3. where the holder of the environmental authorisation has a website, on such
publicly accessible website.
Public participation in terms of applications for Amendment
4.32. In terms of amendment where the amendment will not change the scope of the
valid Environmental Authorisation nor increase the level or nature of the impacts,
or if the amendment relates to the change of ownership or transfer or rights and
obligations, public participation is not required, but the Department could as part
of a request for additional information ask for public participation information.75
4.33. In terms of an amendment where the amendment will result in a change to the
scope of a valid Environmental Authorisation where such change will result in an
increased level or nature of impact, the report on the amendment must76–
4.33.1. be subjected to a public participation process as set out in 4.10, 4.11, 4.12,
4.13, 4.14 and 4.15 above, and as had been agreed to by the Department,
and which is appropriate to bring the proposed amendment to the attention
of potential and Registered I&APs, including organs of State which have
jurisdiction in respect of any aspect of the relevant activity, and the
Department; and
74 Regulation 26(h) of the 2014 EIA Regulations refer. 75 Regulations 29 and 30 of the 2014 EIA Regulations refer. 76 Regulations 31 and 32 of the 2014 EIA Regulations refer.
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4.33.2. reflect the incorporation of comments received, including any comments of
the Department, when the report is submitted within-
(a) 90 days of receipt by the Department of the application for
amendment; or
(b) on condition that notice is given to the Department within 90 days
of receipt by the Department of the application for amendment
(as set out in 4.13 and 4.14 above), 140 days of receipt by the
Department of the application for amendment if significant
changes have been made or significant new information has been
added to the report and that the revised report will be subjected to
another public participation process of at least 30 days.
Public participation in terms of amendments to an EMPr
4.34. Where the findings of an Environmental Audit Report indicate insufficient
mitigation of environmental impacts associated with the undertaking of the
activity, or insufficient levels of compliance with the Environmental Authorisation or
EMPr and, where applicable the Closure Plan; the holder must77–
4.34.1. when submitting the Environmental Audit Report to the Department submit
recommendations to amend the EMPr or Closure Plan in order to rectify the
shortcomings identified in the Environmental Audit Report, which
recommendations must have been subjected to a public participation
process, which process has been agreed to by the Department and was
appropriate to bring the proposed amendment of the EMPr and, where
applicable the Closure Plan, to the attention of potential and Registered
I&APs, including organs of State which have jurisdiction in respect of any
aspect of the relevant activity and the Department; and
4.34.2. within 7 days of the date of submission of an Environmental Audit Report to
the Department, notify all potential and Registered I&APs of the submission
of that report, and make such report immediately available–
(a) to anyone on request; and
(b) on a publicly accessible website, where the holder has such a
website.
77 Regulation 34 of the 2014 EIA Regulations refers.
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4.35. Where the holder of an Environmental Authorisation identifies amendments
to the impact management outcomes or objectives of the EMPr or
amendments to the closure objectives of the Closure Plan before an audit is
required in terms of the Environmental Authorisation, such holder must78–
4.35.1. notify the Department of its intention to amend the EMPr or Closure
Plan at least 60 days prior to submitting such amendments to the
EMPr or Closure Plan to the Department for approval; and
4.35.2. invite comments on the proposed amendments from potentially
I&APs, including the Department, by using–
(a) any of the methods highlighted in 4.7 above for a period of
at least 30 days; and
(b) reasonable alternative methods, as agreed to by the
Department, to invite comments may be used in those
instances where a person desires but is unable to
participate in the process due to–
(i) illiteracy;
(ii) disability; or
(iii) any other disadvantage.
4.36. If comments are submitted to the holder of the Environmental Authorisation,
in terms of 4.35.2 above, the holder must submit such comments to the
Department, including responses to such comments, together with the
proposed amended EMPr or Closure Plan.
5. Alternatives
5.1. “Alternatives”, in relation to a proposed activity, means different means of
meeting the general purpose and requirements of the activity, which may include
alternatives to the–
5.1.1. property on which or location where the activity is proposed to be
undertaken;
5.1.2. type of activity to be undertaken;
5.1.3. design or layout of the activity;
5.1.4. technology to be used in the activity; or
5.1.5. operational aspects of the activity;
and includes the option of not implementing the activity79.
78 Regulation 37 of the 2014 EIA Regulations refers. 79 As defined in the 2014 EIA Regulations.
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The identification of alternatives is a minimum requirement with respect to every
application for Environmental Authorisation
5.2. The procedures for the investigation, assessment and communication of the
potential consequences or impacts of activities on the environment must,
amongst others, with respect to every application for Environmental Authorisation:
5.2.1. ensure that the general objectives of integrated environmental
management laid down in Section 23 of NEMA and the National
Environmental Management Principles set out Section 2 of NEMA are taken
into account80; and
5.2.2. include an 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 activity81.
Note: As highlighted in the note under 4.1.1 above, 4.2 above applies to an
application for “Environmental Authorisation” in terms of NEMA and
any of the SEMAs, e.g. an Atmospheric Emission Licence, a Waste
Management Licence, a Water Use Licence, etc.
5.3. The general objective of integrated environmental management, amongst others,
is to “identify, predict and evaluate the actual and potential impact on the
environment, socio-economic conditions and cultural heritage, the risks and
consequences and alternatives and options for mitigation of activities, with a view
to minimising negative impacts, maximising benefits, and promoting compliance
with the principles of environmental management” set out in NEMA82.
5.4. The National Environmental Management Principles, amongst others, state that
“Environmental management must be integrated, acknowledging that all
elements of the environment are linked and interrelated, and it must take into
account the effects of decisions on all aspects of the environment and all people
in the environment by pursuing the selection of the best practicable
environmental option”83. NEMA defines the “best practicable environmental
option” as “the option that provides the most benefit or causes the least damage
to the environment as a whole, at a cost acceptable to society, in the long term
as well as in the short term”.
80
Section 24(4)(a) of NEMA refers.
81 Sections 24(4)(b) and 24(4A) of NEMA refer. 82
Section 23 of NEMA refers.
83 Section 2 of NEMA refers.
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5.5. When the Department considers an application for an Environmental
Authorisation, the Department must take into account all relevant factors, which
may include, amongst others, “…any feasible and reasonable alternatives to the
activity which are the subject of the application and any feasible and reasonable
modifications or changes to the activity that may minimise harm to the
environment”84.
5.6. The NEMWA also specifies that when considering an application for a Waste
Management Licence, the Licensing Authority must take into account all relevant
matters, including the “need for, and desirability of, the waste management
activity and alternatives”85.
5.7. The NEMAQA also states that when considering an application for an Atmospheric
Emission Licence, the Licensing Authority must also take into account “the best
practicable environmental options available that could be taken”86.
5.8. Ultimately an EIA is a decision-making process with the specific aim of selecting
the option that will provide the most benefit and cause the least damage in the
short and long term. The quality of an EIA, as with all decisions, therefore depends
on the quality of the alternatives from which to choose.
5.9. In light of the above, the very consideration of an application in terms of EIA is
about the consideration of alternatives related to the application – the
consideration of alternatives being the key consideration of EIA. Although the
NEMA refers to “must include” “where applicable” when referring to the
requirement to consider alternatives87, NEMA states that where an EIA has been
identified as the environmental instrument to be utilised in informing an application
for Environmental Authorisation, the consideration of alternatives, “is applicable”88.
All EIAs must therefore consider alternatives.
5.10. The identification, evaluation, consideration and comparative assessment of
alternatives directly relate to the management of impacts. Related to every
identified impact, alternatives, modifications or changes to the activity must be
identified, evaluated, considered and comparatively considered to:
5.10.1. in terms of negative impacts, firstly avoid a negative impact altogether, or if
avoidance is not possible alternatives to better mitigate, manage and
remediate a negative impact and to compensate for/offset any impacts
that remain after mitigation and remediation; and
5.10.2. in terms of positive impacts, maximise impacts.
84 Section 24O of NEMA refers. 85 Section 48 of NEMWA refers. 86 Section 39 of NEMAQA refers. 87
Section 24(4(b) of NEMA refers.
88 Section 24(4A) of NEMA refers.
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5.11. It must be noted that the Department may grant Environmental Authorisation for
an alternative not specifically applied for, and to the extent that Environmental
Authorisation is granted for such an alternative, such an alternative must be
regarded as having been applied for89.
Alternatives and Exemptions
5.12. NEMA and Chapter 5 of the 2010 NEMA EIA Regulations (which have not been
repealed) do allow for exemptions from provisions of the 2014 EIA Regulations or of
a provision of NEMA itself, except from the requirements to obtain Environmental
Authorisation and the minimum requirements applicable to every application for
Environmental Authorisation90. While it is therefore, technically, possible for an
applicant to apply to be exempted from the requirement to consider alternatives,
the legislation places an obligation on the Department to take into account any
feasible and reasonable alternatives to the activity and any feasible and
reasonable modifications or changes to the activity that may minimise harm to the
environment or maximise benefits. While the merits of each exemption application
will be considered, it is therefore unlikely that the Department will grant exemption
from the requirement to identify feasible and reasonable alternatives to better
deal with the identified impacts. It is, however, important to understand exactly
what the legislation requires in terms of alternatives and specifically the difference
between having to identify and evaluate alternatives and having to consider and
comparatively assess alternatives. The next section provides more detail in this
regard.
5.13. In terms of the NEMA EIA Regulations all Basic Assessment Reports91, Scoping
Reports92 and Environmental Impact Assessment Reports93 must contain a full
description of, amongst others, details of all the alternatives considered; the
environmental attributes associated with the alternatives focusing on the
geographical, physical, biological, social, economic, heritage and cultural
aspects; the impacts and risks identified for each alternative. Appendices 1, 2 and
3 to the 2014 EIA Regulations prescribed the information to be contained in
respectively a Basic Assessment Report, Scoping Report, and an Environmental
Impact Assessment Report. These Appendices in detail set out, amongst others,
the information to be provided in terms of the alternatives identified and
considered. The Appendices highlight that if no alternatives were considered
feasible or reasonable, motivation must be provided why no feasible and
reasonable alternatives exist. If no feasible and reasonable alternatives were
found, no comparative assessment of alternatives, beyond the comparative
assessment of the preferred alternative and the option of not proceeding, is
required as part of assessment.
89 Regulation 20(2) and 24(2) of the 2014 NEMA EIA Regulations refer. 90 Sections 24(4)(a) and 24M of NEMA refer. 91 Appendix 1 to the 2014 NEMA EIA Regulations refers. 92 Appendix 2 to the 2014 NEMA EIA Regulations refers. 93 Appendix 3 of the 2014 NEMA EIA Regulations refers.
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Note: If an applicant intends applying for exemption from the requirement
to identify and evaluate alternatives, the reasoned motivation why no
feasible or reasonable alternatives exist and why exemption should be
granted from having to consider alternatives, would probably consist
of information on the identification and evaluation of alternatives –
meaning that the same information required by the provisions from
which exemption is sought, will have to be provided as part of the
exemption application – nullifying the reason for the exemption
application. Furthermore, if the exemption application is decided prior
to proceeding with the process and appealed, the appeal will
suspend the process until the appeal is decided.
5.14. With regard to alternatives, Appendices 1, 2 and 3 to the 2014 EIA Regulations,
amongst others:
5.14.1. indicate that the objective of the basic assessment process is to, through a
consultative process─
(a) identify the alternatives considered;
(b) describe the need and desirability of the proposed alternatives;
(c) through the undertaking of an impact and risk assessment process
inclusive of cumulative impacts which focused on determining the
geographical, physical, biological, social, economic, heritage, and
cultural sensitivity of the sites and locations within sites and the risk of
impact of the proposed activity and alternatives on the these aspects
to determine;
(d) the nature, significance, consequence, extent, duration, and
probability of the impacts occurring to; and
(e) the degree to which these impacts–
(i) can be reversed;
(ii) may cause irreplaceable loss of resources; and
(iii) can be managed, avoided or mitigated;
5.14.2. through a ranking of the site sensitivities and possible impacts the activity
and alternatives will impose on the sites and location identified through the
life of the activity and alternatives to–
(a) identify and motivate the preferred alternatives, including the
preferred–
(i) site alternative;
(ii) activity alternative; and
(iii) technology alternative;
(b) identify suitable measures to manage, avoid or mitigate identified
impacts; and
(c) identify residual risks that need to be managed and monitored; and
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(d) prescribed that the following information related to alternatives must
be contained in respectively a Basic Assessment Report, Scoping
Report, and an Environmental Impact Assessment Report;
5.14.3. a motivation for the preferred alternatives, including the preferred—
(a) site alternative;
(b) activity alternative; and
(c) technology alternative;
5.14.4. a full description of the process followed to reach the proposed preferred
alternatives, including—
(a) details of all the alternatives considered;
(b) the environmental attributes associated with the alternatives focusing
on the geographical, physical, biological, social, economic, heritage
and cultural aspects;
(c) the impacts and risks identified for each alternative, including the
nature, significance, consequence, extent, duration and probability
of the impacts, including the degree to which these impacts—
(i) can be reversed;
(ii) may cause irreplaceable loss of resources; and
(iii) can be managed, avoided or mitigated;
5.14.5. the methodology used in determining and ranking the nature, significance,
consequences, extent, duration and probability of potential environmental
impacts and risks associated with the alternatives;
5.14.6. positive and negative impacts that the proposed activity and alternatives
will have on the environment and on the community that may be affected
focusing on the geographical, physical, biological, social, economic,
heritage and cultural aspects;
5.14.7. the possible mitigation measures that could be applied and level of residual
risk;
5.14.8. the outcome of the site selection matrix;
5.14.9. if no alternatives, including alternative locations for the activity were
investigated, the motivation for why no alternatives are considered feasible
and reasonable;
5.14.10. a concluding statement indicating the preferred alternatives, including
preferred location of the activity; and
5.14.11. an environmental impact statement which contains, amongst others, a
summary of the positive and negative impacts and risks of the proposed
activity and identified alternatives.
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5.15. In this regard–
5.15.1. the methodology;
5.15.2. criteria used to identify, investigate and assess alternatives (these must be
consistently applied to all alternatives); and
5.15.3. a reasoned explanation why an alternative was or was not found to be
reasonable and feasible;
must be provided.
5.16. While all identified alternatives must be evaluate, only those found to be
“feasible” and “reasonable” must further considered and be comparatively
assessed. The “feasibility” and “reasonability” of and the need for alternatives must
be determined by considering, amongst others:
5.16.1. the general purpose and requirements of the activity;
5.16.2. need and desirability;
5.16.3. opportunity costs;
5.16.4. the need to avoid negative impact altogether;
5.16.5. the need to minimise unavoidable negative impacts;
5.16.6. the need to maximise benefits; and
5.16.7. the need for equitable distributional consequences.
Note: Also refer to DEA’s Guideline on Need and Desirability (October 2014)94.
5.17. It must, however, be remembered that information generated during the
assessment, might require that further alternatives be considered. Alternatives must
be identified as early as possible in the process, as well as considered throughout
the process. The identification of alternatives should be broad, objectively done
and well documented.
94 General Notice No. 891 published in Government Gazette No. 38108 on 20 October 2014 refers
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Types of Alternatives
5.18. Although alternatives are to be considered as early as possible in the process, the
necessity to consider modifications and changes, in order to prevent and/or
mitigate negative environmental impacts or to maximise positive impacts
identified during the later stages of the assessment process, may also arise.
Whereas discrete alternatives are therefore generally identified during the early
stages of a project (pre-feasibility and feasibility) and comparatively assessed
during the assessment stage; incremental modifications and changes to activities
might also have to be considered when a development proposal is amended in
an incremental manner throughout the EIA process to address impacts and issues,
as and when they are identified. Both the identification, investigation, and
assessment of alternatives, and the generation and consideration of modifications
and changes to activities must be well documented.
5.19. While “alternatives” is defined as “in relation to a proposed activity, means
different means of meeting the general purpose and requirements of the activity,
which may include alternatives to the– (a) property on which or location where
the activity is proposed to be undertaken; (b) type of activity to be undertaken;
(c) design or layout of the activity; (d) technology to be used in the activity; or (e)
operational aspects of the activity; and includes the option of not implementing
the activity, a range of alternatives, however, exist not all of which are necessarily
appropriate for each EIA. Further to the types of alternatives below, alternatives
that maximise resource use efficiency (e.g. energy and water-use efficiency) and
minimise waste production must be sought. An “alternative” that does not
respond to a specific impact, is not an alternative.
TYPE OF
ALTERNATIVE
EXPLANATION/EXAMPLES
Location
Refers to both alternative properties as well as alternative sites on
the same property.
Note: In terms of the Minimum Requirements for Waste Disposal by
Landfill, location alternatives must be considered during the EIA
process.
Activity
Incineration of waste rather than disposal at a landfill site/ Provision
of public transport rather than increasing the capacity of roads.
Design or
Layout
Design: E.g. Different architectural and or engineering designs
Site Layout: Consideration of different spatial
configurations of an activity on a particular site (e.g.
Siting of a noisy plant away from residences).
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Technologic
al
Consideration of such alternatives is to include the option of
achieving the same goal by using a different method or process
(e.g. 1000 megawatt of energy could be
generated using a coal-fired power station or wind turbines.
Demand
Arises when a demand for a certain product or service can be
met by some alternative means (e.g. the demand for electricity
could be met by supplying more energy or using energy more
efficiently by managing demand).
Input
Input alternatives are applicable to applications that may use
different raw materials or energy sources in their process (e.g.
Industry may consider using either high sulphur coal or natural gas
as a fuel source).
Routing
Consideration of alternative routes generally applies to linear
developments such as power line servitudes, transportation and
pipeline routes.
Scheduling
and Timing
Where a number of measures might play a part in an overall
programme, but the order in which they are scheduled will
contribute to the overall effectiveness of the end result.
Scale and
Magnitude
Activities that can be broken down into smaller units and can be
undertaken on different scales (e.g. for a housing development
there could be the option 10, 15 or 20 housing units. Each of these
alternatives may have different impacts).
“No-Go
Option”
This is the option of not proceeding with the activity.
The assessment of alternatives must at all times include the “no-
go” option as a baseline against which all other alternatives must
be measured. The option of not proceeding with the activity (or
part of the activity) must always be assessed and to the same
level of detail as the other feasible and reasonable alternatives.
The “no-go” option is taken to be the existing rights on the
property and this includes all the duty of care and other legal
responsibilities that apply to the owner of the property. For
example, one cannot state that the “no-go” option for a vacant
piece of land will result in further degradation or alien plant
invasion, as it is already a legislated requirement that the
landowner control alien invasive plants on their land, and Section
28 of the NEMA’s “Duty of Care”, states that reasonable measures
must be taken to prevent pollution or degradation from
occurring, continuing or reoccurring. All the applicable permits
must be in place for a land use to be an existing right (the no-
go/default) e.g. the zoning of Agriculture does not mean land
can be cultivated as the no-go option, as other approvals must
first be obtained.
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6. Amendments
6.1. Only a valid Environmental Authorisation may be amended by the relevant
Competent Authority95.
Note: Because the late submission of an amendment application might
result in the Department not being able to process the amendment
application prior to the Environmental Authorisation lapsing, a holder
wishing to amendment an Environmental Authorisation should apply
for an amendment at least three months prior to the expiry of the
validity period of the Environmental Authorisation96.
6.2. The relevant Competent Authority may issue an amendment to a valid
Environmental Authorisation either by way of a new Environmental Authorisation or
new Environmental Authorisations or an addendum to the relevant Environmental
Authorisation, or replace the existing valid Environmental Authorisation with an
Environmental Authorisation in term of the 2014 EIA Regulations97.
6.3. An Environmental Authorisation may be amended or replaced without following a
procedural requirement contained in the 2014 EIA Regulations if the purpose is to
correct an error and the correction does not change the rights and duties of any
person materially98.
6.4. Where an Environmental Authorisation granted in terms of the 2014 EIA Regulations
does not include operational aspects and the activity has been commenced with,
the period for which such Environmental Authorisation is granted may only be
extended through an amendment for a maximum further period of five years99.
6.5. If a proposed amendment will result in a change to the scope of a valid
Environmental Authorisation where such change will result in an increased level or
nature of impact where such level or nature of impact was not assessed and
included in the initial application for environmental authorisation, or taken into
consideration in the initial environmental authorisation, an application for
amendment of the Environmental Authorisation100–
6.5.1. may be submitted if the change does not on its own, constitute a listed
activity; or
6.5.2. may not be submitted if the change does, on its own, constitute a listed
activity, but following an application for Environmental Authorisation for the
listed activity, the Competent Authority may replace the existing valid
Environmental Authorisation with a new Environmental Authorisation101.
95
Regulation 27(1) of the 2014 EIA Regulations refers.
96 Regulations 28(1) and (2) of the 2014 EIA Regulations refer.
97 Sections 27(2) of the 2014 EIA Regulations refers. 98
Regulation 27(4) of the 2014 EIA Regulations and Section 47A(1)(b) of NEMA refer.
99 Regulation 27(3) of the 2014 EIA Regulations refers.
100 Regulation 31 of the 2014 EIA Regulations refers.
101 Section 25(4) of the 2014 EIA Regulations refers.
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7. Environmental Assessment Practitioners (EAPs) and Specialists
7.1. A proponent or applicant must appoint an EAP at own cost to manage the
application. In addition to the appointment of an EAP, a Specialist may be
appointed, at the cost of the applicant, if the level of assessment is of a nature
requiring the appointment of a specialist.
7.2. An EAP and Specialist must meet the general requirements set out in Regulation 13
of the 2014 EIA Regulations. As with the 2010 NEMA EIA Regulations, one of the
general requirements is that the EAPs and Specialist must be “independent”.
"Independent" means102–
7.2.1. that such EAP or Specialist has no business, financial, personal or other
interest in the activity or application in respect of which that EAP or Specialist
is appointed in terms of the 2014 EIA Regulations; or
7.2.2. that there are no circumstances that may compromise the objectivity of that
EAP or Specialist in performing such work;
excluding -
(a) normal remuneration for a specialist permanently employed by the EAP; or
(b) fair remuneration for work performed in connection with that activity or
application.
7.3. In the event where the EAP or Specialist is not independent, the proponent or
applicant must, prior to conducting public participation, appoint another EAP or
Specialist which meets all the general requirements including being independent,
to externally review all work undertaken by the EAP or Specialist, at the applicant's
cost103.
7.4. Nothing in the legislation states that an EAP or Specialist must be independent
from each other. An EAP or Specialist will be “independent” as long as in the
person’s respective capacity as the EAP or Specialist the person has, other than
normal remuneration for a Specialist permanently employed by the EAP or fair
remuneration for work performed in connection with that activity or application,
no business, financial, personal or other interest in the activity or application, and
there are no circumstances that may compromise the objectivity of that EAP or
Specialist in performing such work.
102 As defined in the 2014 EIA Regulations. 103 Regulations 13(2) and (3) of the 2014 EIA Regulations refer.
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8. Transitional Arrangements
Transitional arrangements were provided for in the amendments made to NEMA and
are provided in Chapter 8 of the 2014 EIA Regulations.
Continuation of actions undertaken and authorisations issued under ECA Regulations
and previous NEMA Regulations (2006 and 2010 NEMA EIA Regulations)104
8.1. Any actions undertaken in terms of the EIA Regulations promulgated in terms of
the Environment Conservation Act, 1989 (Act No. 73 of 1989) (“ECA EIA
Regulations”)105 or in terms of the previous EIA Regulations promulgated in terms of
NEMA in 2006 (“2006 NEMA EIA Regulations”)106 or the 2010 NEMA Regulations and
which can be undertaken in terms of a provision of the 2014 EIA Regulations must
be regarded as having been undertaken in terms of the provision of the 2014 EIA
Regulations.
8.2. Any exemption from obtaining an Environmental Authorisation in terms of the ECA
EIA Regulations must be regarded to be an Environmental Authorisation issued in
terms of the 2014 EIA Regulations.
8.3. Any Authorisation issued in terms of the ECA EIA Regulations or the 2006 NEMA EIA
Regulations or the 2010 NEMA EIA Regulations, must be regarded to be an
Environmental Authorisation issued in terms of the 2014 EIA Regulations.
Note: Any appeal submitted after 8 December 2014 against an
Environmental Authorisation issued in terms of the ECA EIA Regulations
or the 2006 NEMA EIA Regulations or the 2010 NEMA EIA Regulations,
must be submitted and considered in terms of the National Appeal
Regulations.
Pending applications and appeals (ECA and NEMA)107
8.4. An application submitted in terms of the ECA EIA Regulations or 2006 NEMA EIA
Regulations or 2010 NEMA EIA Regulations which is pending when the 2014 EIA
Regulations take effect, including pending applications for activities directly
related to prospecting or exploration of a mineral or petroleum resource or
extraction and primary processing of a mineral or petroleum resource, must
despite the repeal of those Regulations be dispensed with in terms of the
Regulations applicable at the time of the submission of the original application as
if those Regulations were not repealed.
104 Regulations 50 and 52 of the 2014 EIA Regulations refer. 105 Government Notice No. R. 1182 and R. 1183 published in Government Gazette No. 18621 on 5 September 1997 refer. 106 General Notice No. R. 747 published in Government Gazette No. 37951 on 29 August 2014 refers. 107 Regulations 51 and 53 of the 2014 EIA Regulations refer.
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8.5. If a situation arises where an application in terms of an activity or activities
identified under ECA or the 2006 NEMA Listing Notices or the 2010 NEMA Listing
Notices is still pending when the 2014 EIA Listing Notices take effect, and the
activity or activities in question no longer requires Environmental Authorisation in
terms of the 2014 NEMA Listing Notices, the Competent Authority must consider
such an application to be withdrawn108.
8.6. Where an application submitted in terms of the ECA EIA Regulations or the 2006
NEMA EIA Regulations or the 2010 NEMA EIA Regulations is still pending when the
2014 EIA Listing Notices take effect and a component of the activity which was not
identified under the activities identified under ECA or the 2006 NEMA Listing
Notices or the 2010 NEMA Listing Notices, but is identified in terms of the 2014
NEMA Listing Notices, the Competent Authority must dispense of such application
in terms of the ECA EIA Regulations or the 2006 NEMA EIA Regulations or the 2010
NEMA EIA Regulations (whichever is applicable) and may also authorise the
activity identified in the NEMA EIA Listing Notices as if it was applied for, on
condition that all impacts of the newly identified activity have been considered
and assessed and that the requirements of 2014 EIA Regulations have also been
considered.
8.7. Any appeal submitted after 8 December 2014 against an Environmental
Authorisation issued in terms of the ECA EIA Regulations or the 2006 NEMA EIA
Regulations or the 2010 NEMA EIA Regulations, must be submitted and considered
in terms of the National Appeal Regulations.
Approved EMPrs and EMPs, Pending applications and appeals (MPRDA)109
8.8. All EMPrs or Environmental Management Plans (“EMPs) approved in terms of the
MPRDA before 8 December 2014 are deemed to be approved in terms of
NEMA110.
8.9. An application submitted in terms of the previous MPRDA Regulations and which
was pending on 8 December 2014 must despite the repeal of the MPRDA
Regulations be dispensed with in terms of the MPRDA and the MPRDA Regulations
as if the MPRDA has not been amended and as if the MPRDA Regulations were
not repealed111.
Note: “Application" with regard to 7.8 above means an application for a
permit, right, approval of an EMPr or amendment to such permit, right
or EMPr112.
108 Regulations 51 and 53 of the 2014 EIA Regulations refer. 109 Regulation 54 of the 2014 EIA Regulations refers. 110 Section 12(4) of Act No. 62 of 2008 refers. 111 Section 12 of Act No. 62 of 2008 and Section 26 of Act No. 25 of 2014 refer. 112 Section 26 of Act No. 25 of 2014 refers.
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8.10. Any appeal lodged in terms of MPRDA against a decision in respect of
environmental aspects, that was pending on 8 December must be dealt with in
terms of the MPRDA113.
8.11. An application submitted after the date of effect of the 2014 EIA Regulations for
an amendment of an EMPr which was issued in terms of the MPRDA must be dealt
with in terms of the amendment provisions set out in Chapter 5 of the 2014 EIA
Regulations.
Environmental Authorisation granted, but component not previous listed now listed
and activity has not yet been commended with (ECA, NEMA and MPRDA)
8.12. Where an Environmental Authorisation was issued in terms of the ECA EIA
Regulations, the 2006 NEMA EIA Regulations or the 2010 NEMA EIA Regulations or
an authorisation in the MPRDA prior to 8 December 2014 a component which
was not identified under the activities identified under ECA or the 2006 NEMA
Listing Notices or the 2010 NEMA Listing Notices is identified in terms of the 2014
NEMA Listing Notices–
8.12.1. if the newly listed activity directly relates to prospecting or exploration of a
mineral or petroleum resource, or extraction and primary processing of a
mineral or petroleum resource, the Minister responsible for mineral
resources114; or
8.12.2. if the newly listed activity does not directly relate to prospecting or
exploration of a mineral or petroleum resource, or extraction and primary
processing of a mineral or petroleum resource, the Competent Authority
who issued the Environmental Authorisation,
may on application–
(a) for an amendment, where the amendment will not change the scope
of the valid Environmental Authorisation/authorisation nor increase the
level or nature of the impact, which impact was initially assessed and
considered when the original application for Environmental
Authorisation/authorisation was made, issue an amendment to the
Environmental Authorisation/authorisation either by way of a new
Environmental Authorisation or new Environmental Authorisations or an
addendum to the relevant Environmental Authorisation/authorisation,
or replace the existing valid Environmental Authorisation/authorisation
with an Environmental Authorisation in term of the 2014 EIA
Regulations115; or
(b) for Environmental Authorisation for the newly listed activity, replace the
existing valid Environmental Authorisation/authorisation with a new
Environmental Authorisation116.
113 Section 26 of Act No. 25 of 2014 refers. 114 Section 27(1) of the 2014 EIA Regulations refers. 115 Sections 27(2) and 29(a) of the 2014 EIA Regulations refer. 116 Section 25(4) of the 2014 EIA Regulations refers.
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9. Guidelines
9.1. In terms of applications that were pending on 8 December 2014 the previous set of
Guidelines published117 by the Department still apply:
Guideline on Transitional Arrangements (March 2013)
Guideline on Appeals (March 2013)
Guideline on Alternatives (March 2013)
Guideline on Public Participation (March 2013)
Guideline on Exemption Applications (March 2013)
Guideline on Need and Desirability (March 2013)
Guideline on Generic Terms of Reference for EAPs and Project Schedules
(March 2013)
Note: While the Department published a Guideline on Need and Desirability
during March 2013, which was developed together with the national
Department of Environmental Affairs (“DEA”), DEA has published a
similar Guideline on Need and Desirability in terms of the
Environmental Impact Assessment (EIA) Regulations, 2010 (October
2014) as a national guideline118. While DEA’s guideline refers to the
2010 EIA Regulations, the 2014 EIA Regulations contain similar
requirements whereby the need for and desirability of the activity
have to be taken into account119 and the reports must to
describe/motivate the need and desirability of the activity and the
alternatives120. As such, DEA’s Guideline on Need and Desirability
(October 2014) must be taken into account when addressing need
and desirability in terms of the 2014 EIA Regulations.
9.2. While not formally published in terms of Section 24J of NEMA, the following
information documents must also be taken into account in terms of applications
that were pending on 8 December 2014:
Information Document on the Guidelines, Policies and Decision-Making
Instruments Relevant to EIA Applications in the Western Cape (October
2011)
Information Document on Biodiversity Offsets (October 2011)
117 Published in terms of Section 24J of NEMA in Notice No. 50621 in Provincial Gazette No. 7106 of 22 March 2013. 118 General Notice No. 891 published in Government Gazette No. 38108 on 20 October 2014 refers 119 Regulation 8 of the 2010 NEMA EIA Regulations and Regulation 18 of the 2014 EIA Regulations refer. 120 Regulations 22(2)(g), 28(1)(i), and 31(2)(f) of the 2010 NEMA EIA Regulations and Regulations 2(c) and 3(1)(f) of Appendix
1, Regulations 1(b) and 2(f) of Appendix 2, and Regulations 2(b) and 3(f) of Appendix 3 to the 2014 EIA Regulations refer.
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10. Requests submitted to the Department for comments when the Department is not the
Competent Authority
10.1. When the Department is not the Competent Authority to deal with a specific
application, the Department must be consulted with as an I&AP121 by the EAP, but
also requested by the Competent Authority to provide comments to the
Competent Authority122.
10.2. The formulation of comments in response to requests in terms of 10.1 is being
coordinated between the different components in the Department. As such,
requests for comments in terms of 10.1 above must be directed at:
Andre Oosthuizen
Directorate: Development Facilitation
Department of Environmental Affairs & Development Planning, Western
Cape Government
1 Dorp Street, 11th Floor, Utilitas Building, Cape Town, 8001
Telephone : 021 483 4282
Fax : 021 483 8311
E-mail : [email protected]
121 Regulation 41 of the 2014 EIA Regulations refers. 122 Section 24O of NEMA refers.
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11. “Incidents” and “Emergency Situations”123
11.1. Section 30 of NEMA deals with the “Control of Incidents” with “incident” defined
as “an unexpected, sudden and uncontrolled release of a hazardous substance,
including from a major emission, fire or explosion, that causes, has caused or may
cause significant harm to the environment, human life or property. Section 30 of
NEMA came into effect on 18 December 2013.
11.2. Section 30A of NEMA deals with “Emergency Situations” which is defined as “a
situation that has arisen suddenly that poses an imminent and serious threat to the
environment, human life or property, including a ‘disaster’ as defined in section 1
of the Disaster Management Act, 2002 (Act No. 57 of 2002), but does not include
an incident referred to in Section 30 of this Act”. “Disaster is defined in the Disaster
Management Act, 2002 (Act No. 57 of 2002) as “a progressive or sudden,
widespread or localised, natural or human-caused occurrence which– (a) causes
or threatens to cause - (i) death, injury or disease; (ii) damage to property,
infrastructure or the environment; or (iii) disruption of the life of a community; and
(b) is of a magnitude that exceeds the ability of those affected by the disaster to
cope with its effects using only their own resources”. Section 30A of NEMA comes
into effect on 18 December 2014.
12. Guidance by the Competent Authority
12.1. Similar to the 2010 NEMA EIA Regulations124, the 2014 EIA Regulations125 again
allows for a person intending to submit an application for Environmental
Authorisation (“proponent”) or an applicant or EAP to approach the Department
for advice on the nature and extent of any of the processes to be followed to
comply with NEMA and the 2014 EIA Regulations, or any relevant information or
decision support tool that must be taken into account or used.
12.2. Proponents and EAPs are therefore encouraged to, while also having to apply
their own minds, approach the Department for guidance prior to submitting an
application.
Yours faithfully
PIET VAN ZYL
HEAD OF DEPARTMENT
DATE: 9 December 2014
123 Section 29 of Act No. 30 of 2014 refers. 124 Regulation 5 of the 2010 NEMA EIA Regulations refers. 125 Regulation 8 of the 2014 EIA Regulations refers.