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