PROPOSED REGULATIONS TO PHASE OUT THE USE OF PERSISTENT ORGANIC POLLUTANTS
The draft regulations prescribe measures for the phasing-out of the listed chemicals, in order to ensure that their impacts or potential impacts on human health, well-being, safety and environment are prevented, mitigated or minimised. Proposed phase-out timeframes in which all listed chemicals must be completely phased out, including the disposal of resulting waste, are also indicated in the draft regulations.
It is proposed that no person may use, produce, distribute, sell, import or export after the following deadlines:
Listed Chemicals and Phase-out timeframes
Hexabromophenyl and Hexabromophenyl formulations or have Hexabromophenyl containing wastes in their possession
After 31 December 2020
Pentachlorobenzene and Pentachlorobenzene formulations , or have Pentachlorobenzene containing wastes in their possession
After 31 December 2019
Peflouroctane Sulfonic Acids, its salts (PFOS) and Perfouroctane Sulfonyl Fluoride, PFOS formulations or have PFOS containing wastes in their possession
After 31 December 2021
Hexabromophenyl Ether (Hexa-BDE’s) and Heptabromodiphenyl Ether (Hepta BDE’s); Hexa- BDE and Hepta- BDE formulations , or have Hexa-BDE’s and Hepta-DBE’s in their possession
After 31 December 2020
Tetrabromodiphenyl Ether (Tetra- BDE’s) and Pentabromodiphenyl Ether (Penta-BDE’s), Tetra-BDE’s and Penta-BDE’s formulations , or have Hexa-BDE’s and Hepta-BDe’s containing wastes in their possession
After 31 December 2020
The draft regulations impose additional obligations relating to the phasing out of the listed chemicals as follows.
All users, producers, sellers, distributors, importers or exporters of a listed chemical will be required to notify the Director-General of the Department of Environmental Affairs, within 30 days of final promulgation of these regulations.
Phase Out Plans
After notifying the Director-General as required above, producers or importers of listed chemicals will be required to develop phase-out plans for each listed chemical, which must include the contact details of the company/person submitting the phase-out plan, suitable alternatives to the listed chemicals as well the annual reduction target. This plan must be submitted to the Director General for approval, within 12 months of the final promulgation of the regulations.
It is proposed that all users, producers, sellers, distributors, importers or exporters must report the quantities of listed chemicals, used, produced, imported or exported to the Director General every calendar year.
Janice Tooley, Partner, Shepstone & Wylie (Environmental and Clean Energy Law Department)
On 30 October 2015, Minister Edna Molewa gave notice of her intention to amend the
Environmental Impact Assessment Regulations, 2014 and Listing Notices 1, 2 and 3 of 2014 (GN 1030, GG39343, 30 October 2015).
The deadline for comment is 30 November 2015.
Most of the proposed changes to the EIA Regulations are minor and are intended to improve synergy and clarity within the regulations themselves and with the enabling provisions in NEMA and future notices.
Notably, all references to Listing Notice 4 are to be removed and provisions inserted to rely on the future exceptions that the Minister may publish by way of a notice in the Government Gazette. These exceptions will relate to the manner, the need or the ability to obtain environmental authorization and the applicable instances and/or geographical areas identified and are intended to apply to activities that are:
Amendments to regulation 54 will require that an application for an amendment of a MPRDA- approved EMPr or EMP submitted after the 8 December 2014 be dealt with in terms of Part 4 of Chapter 5 of the 2014 EIA Regulations and not Part 1 and 2 as is currently required. Another notable amendment is the insertion of regulation 54A which will provide for transitional arrangements related to prospecting or exploration of a mineral or petroleum resource or extraction and primary processing of a mineral or petroleum resource, specifically in relation to environmental authorisation and auditing requirements.
In Listing Notice 1, there are minor amendments proposed to 7 of the 67 listed activities, namely, 1, 19, 32, 36, 48, 49 and 67.
The Listing Notice 2 activities for which amendments are being proposed are 1, 21 and 27.
Although Listing Notice 3 will be substituted in its entirety, the changes are predominantly structural. The 26 activities will retain their current wording but the third column which contains a description of the geographical areas based on environmental attributes is to be presented per province and no longer as a combined description as is the current situation for the Free State, Limpopo,Mpumalanga and Northern Cape provinces.
Mansoor Parker, ENS executive (tax)
Andrew Gilder, ENS senior associate (carbon markets specialist, environmental)
On Monday, 2 November 2015, the South African National Treasury published a Draft Carbon Tax Bill (the “Bill”) for public comment, with the comment period commencing immediately and continuing until 15 December 2015. At first glance, the Bill does not stray too far from the carbon tax design that Treasury has been proposing since 2010 in various discussion papers, national budget speeches and their associated explanatory memoranda and responses to stakeholder commentary on the design. The Bill does not change the essentials, but it does progress certain of the detail while providing only a tantalising glimpse of some of the more interesting aspects of the design. While the proposed tax is vaunted as the carbon tax, this is not the only or the first carbon tax imposed in South Africa. Emissions on new vehicles are subject to emissions taxation and approximately five years ago, the fossil fuel electricity levy was introduced. These are both taxes on greenhouse gas emissions, as is the proposed carbon tax.
The following high-level points are important to note in relation to the Bill:
Andrew Gilder (ENS)
I was asked this question by email by a colleague: '…whether at a deep moral level carbon offsetting is flawed as a concept (“I don’t feel like making my bed but I’ll pay you to make yours and one other”). Can we really pay for someone else to do it while retaining that sense of being responsible or is it like parents who give their kids lots of money and drop at a mall for a Saturday rather than parent them?'
This question was based on the Papal Encyclical that was recently issued.
(AI = Annex 1 (developed countries) and NAI = Non-Annex I (developing countries):
'Simple carbon offsetting without the attendant co-benefits would be morally flawed. However, one needs to recall (and this gets lost in the noise around offsetting) that:
(Also, have a look at the articles on the Ecosystem Marketplace listed above).
It is instructive to note the level of FDI that has been unlocked by the CDM. Also note that criticism of the CDM tends to be directed at abuses linked to individual projects – this criticism is correct but cannot be extrapolated to maligning the system, as a whole, particular when one takes the whole system into account, including FDI flows and local sustainability requirements. That would be a bit like saying that the whole system established by the SA Constitution needs to be called into question because there are allegations of fraud and abuse of the system by individuals (people municipalities, government departments) within the system.'
Any comments to the Pope’s Declaration are welcomed.
Matthew Burnell (Fasken Martineau)
On 29 August 2014 the Department of Environmental Affairs (DEA) published draft Environmental Impact Assessment Regulations and listed activities for comment. These draft regulations must be read in conjunction with the Nationa Appeal Regulations, 2014 (which are also available for comment) and the to-be-published regulations entitled the Financial Provisioning for the Rehabilitation or Management of Negative Environmental Impacts Associated with Prospecting and Mining Operations, 2014.
The regulations have come on the back of the “One Environmental System” proposed by the Department which seeks to streamline the environmental regulatory process. Although the general structure of the environmental impact
system is not significantly different from what is currently in place (i.e. an applicant that intends to undertake a listed activity set out in the listing notices will be required to undertake either a basic assessment or a scoping
assessment and EIA to determine the nature and extent of any environmental impacts that would arise from that activity), there are some noteworthy proposals which need to be highlighted. Some of our preliminary comments are set out below.
First, the Regulations seek to prevent lengthy environmental impact assessment approval processed by providing very specific time periods within which to consider applications for environmental authorisations. The intention of the DEA is that all applications should be completed within 1 year. In order to comply with these timelines, we have been informally advised that applications for environmental authorisations will need to comply with all of the Regulations requirements from the date of submission. Parties will no longer be required to submit layout plans or additional reports at a later stage and (if they do) there will be no guarantee that the time periods will be met. Defined time periods have been used in previous iterations of the Regulations without much success in that both applicants and authorities used the time periods more as a guide than as a deadline. Compliance with these periods was also not met as additional information was often submitted after the original application thus delaying the consideration and assessment of the application. The previous time periods were also deemed to be too short and therefore impossible to comply with. The proposed time periods within the regulations seem more reasonable to achieve. There are, however, no penalties for non-compliance and it will remain to be seen whether these time periods will be met.
Another significant amendment is that applicants may no longer make application to be exempt from any provisions of the regulations. As a result, strict compliance with the regulations will be required unless the regulations specifically allow for exemption. Once such allowance is where an environmental assessment practitioner / specialist is not independent, an applicant can apply to the competent authority that the assessment practitioner / specialists work be reviewed by a third party. We are of the view that environmental groups will oppose the inclusion of this clause in the final draft of the regulations.
Amendment to Environmental Authorisation
The provisions regulating amendments to environmental authorisations raise some concerns. The regulations state that an environmental authorisation may only be amended in specific circumstances. One such situation is where ‘the amendment relates to the change of ownership or transfer of rights and obligations where construction or expansion has not yet commenced’.This wording is unfortunate as it does not cater for situations where a company sells its business. For example, if company X obtained an environmental authorisation for the development and operation of a facility for the generation of electricity from a non-renewable resource, it builds the facility and then elects to sell the facility (i.e. not the shares). As part of the sale of business it would be necessary to transfer the environmental authorisation. The restriction on the amendment to situations where the construction has not yet commenced would means that the seller would not be able to transfer the environmental authorisation for the operation of the facility. The purchaser would then need to obtain an environmental authorisation for operation of the facility which would require a basic assessment or a scoping assessment and EIA. As the exemption provisions have been deleted from
the regulations, it would be impossible for the purchaser to make application for an exemption from this obligation on the basis that the study had already been done and approved. This difficulty could be resolved by dealing with specific provisions relating to the transfer of environmental authorisations – clauses which have been notably absent from all preceding versions of the EIA regulations.
The procedure for the amendment of an environmental authorisation either at the behest of the holder of the authorisation or the competent authority also does not require that interested and affected persons be consulted. This runs contrary to the provisions of audi alteram partem and the Promotion of Administrative Justice Act 3 of 2000 in cases where the amendment to an environmental authorisation will have significant effects.
Suspension and Withdrawal
The competent authority may suspend an environmental authorisation only where the environmental authorisation was granted on a misrepresentation or non-disclosure of material information and only where the activity has not yet commenced. Similarly, the competent authority may withdraw the environmental authorisation under the same circumstances. It is assumed that in the event that to the extent that there is a non-compliance with the terms of the environmental authorisation will be dealt with using directives and compliance notices.
The Appeal Regulations
The National Appeal Regulations, 2014 (The Appeal Regulations) are open for comment until 22 September 2014. The Regulations apply to any decisions made in terms of the National Environment Management Act, the National Environmental Management: Biodiversity Act and the National Environmental Management Waste Act unless the decision was taken by the Minister or MEC in his or her capacity as the“competent authority”, in which case an affected party may proceed directly to review proceedings.
The Appeal Regulations have significantly truncated the existing appeal process in the EIA Regulations. This shortened procedure will be welcomed by developers.
The Appeal Regulations have removed the requirement for an affected party to submit a notice of intention to appeal but must rather submit an appeal within 20 days of the applicant being sent a copy of the environmental authorisation or waste licence or permit in terms of the Biodiversity Act. Although the intention may have been to significantly truncate the appeal process by removing the requirement to submit the notice of intention to oppose. The20 days period within which to prepare and submit an appeal may be impractical under the circumstances. For example, in a situation where an appellant may have not been notified of a proposed development only becomes aware of the application once the authorisation is sent to him or her. Within 20 days, the appellant is required to obtain copies of all the relevant environmental reports; appoint environmental specialists to review the relevant documents and determine the nature and extent of the impact; depending on the expert findings, prepare and submit an appeal which may require significant resources and may prejudice the appellant as the time period in which to conduct all of these actions is not sufficient.
The Appeal Regulations do not afford the appeal administrator to
extend the time period within which to submit an appeal or to condone the late
filing of an appeal. Therefore any decision by the appeal administrator to allow
an appeal would be unlawful.
Anél du Plessis (North-West University, Potchefstroom Campus)
Following initial controversy in environmental and planning circles, the Infrastructure Development Act 23 of 2014 came into effect on 10 July 2014 (available at http://cer.org.za/virtual-library/infrastructure-development-bill-2013). Drafts of the Infrastructure Development Bill were publicly opposed by the Centre for Environmental Rights, the Environmental Monitoring Group, the Federation for a Sustainable Environment, Telkom and the South African Local Government Association (SALGA), among others. (See http://cer.org.za/virtual-library/infrastructure-development-bill-2013). Written submissions and presentations during three days of public hearings in January 2014 resulted in several amendments to the Infrastructure Development Bill.
The Infrastructure Development Act was developed with the primary objective to achieve the objectives of South Africa’s 2012 National Infrastructure Plan – a national policy of the Department of Economic Development (available at http://www.gov.za/issues/national-infrastructure-plan/). The overall aim with the Infrastructure Development Act is to prioritise and fast-track infrastructure development along the lines of 18 identified Strategic Integrated Projects (SIPs) through the shortening of the time and limiting the bureaucratic processes required to obtain legally required approvals (including environmental and social impact assessments). As confirmed in the Act, the Presidential Infrastructure Coordinating Commission is responsible for the selection, planning and monitoring of large infrastructure projects in South Africa. SIP Steering Committees provide concrete assistance to SIPs and are required to identify all necessary authorisations, licenses, permissions and exemptions and instruct applicants to submit applications for these simultaneously. Steering Committees are also required to ensure that applications are complete and compliant and to monitor processing of applications.
Some of the most prominent features of the Act are the following:
- The Act focuses on the facilitation and co-ordination of public infrastructure development which is of significant economic and social importance to South Africa (Preamble);
- It establishes the structures of the Presidential Infrastructure Co-ordinating Commission (PICC) (ss 3-6);
- It determines that the PICC acts through a Council of which the responsibility is to ensure the development, maintenance, implementation and monitoring of the 2012 National Infrastructure Plan (s
- It establishes a Management Committee to support the Council in carrying out its functions and to oversee the functions performed by a Secretariat (ss 6-16);
- The Secretariat is established and is responsible for coordinating the implementation of any SIP by appointing members to a Steering Committee established for each SIP and directing the work of each Steering Committee (ss 9-11);
- Steering Committees must facilitate and monitor the implementation of a SIP. Every Steering Committee is chaired by a SIP coordinator appointed by the Secretariat. The Steering Committee should identify the projects constituting a SIP and must identify the ways and means (e.g. a project plan) of giving effect in what the Act describes as the “most effective, efficient and expeditious manner” of implementing a SIP (ss 11,12-15);
- It provides for the designation of SIPs under particular circumstances (s 8);
- Organs of state affected by a SIP must align future planning or implementation of infrastructure or future spatial planning and land use with the SIP (s 8(4));
- The PICC may expropriate land, in terms of the Expropriation Act, for purposes of implementing a SIP. The PICC, before expropriating land, must consult with the organ of state in whose favour the expropriation is
to be made (s 5);
- It states that whenever an environmental assessment is required in respect of a SIP, such assessment must be done in terms of the National Environmental Management Act (NEMA), with specific reference to Chapter 5 (s
- It sets compulsory timelines for the implementation of a SIP. A mechanism is provided for extending the period for completing a process, if the relevant official makes a written request to the ‘executive authority’ (such authority is however not defined or described in the Act) (s 17 and Schedule 2 (Process and Periods of Time); and
- Schedule 3 lists the SIPs in existence at the commencement of the Act:
Unlocking the northern mineral belt with Waterberg as catalyst
Durban-Free State-Gauteng logistics and industrial corridor
South-Eastern node and corridor development
Unlocking the economic opportunities in the North West Province
Saldanha-Northern Cape development corridor
Integrated municipal infrastructure project
Integrated urban space and public transport programme
Green energy in support of the South African economy
Electricity generation to support socio-economic development
Electricity transmission and distribution for all
Agri-logistics and rural infrastructure
Revitalisation of public hospitals and other health facilities
National school build programme
Higher education infrastructure
Expanding access to communication technology
SKA and Meerkat
Regional integration for African cooperation and development
Water and sanitation infrastructure