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.