Streamlined EIA Process will result in improved service delivery
THURSDAY, 24 JUNE 2004:
The Director-General of the Department of Environmental Affairs and Tourism, Dr Crispian Olver, today announced the department’s plan to enhance government’s environmental impact management service delivery through the streamlining and fine-tuning of the environmental impact assessment (EIA) process.
Speaking at a media briefing in Johannesburg today (Thursday, 24 June
2004), Dr Olver said that while the EIA is a tool that is at the cutting
edge of environmental management practise and the detailed, lengthy and
meticulous information-gathering process associated with the use of EIAs
has been used to manage the diverse range of new developments, it is obvious
that a ‘one-size-fits-all’ approach is not the most efficient and effective
form of impact management.
“This important regulatory instrument is being clogged up by applications
that have relatively insignificant impacts and the cost to both government
and developers cannot be justified in terms of any environmental improvements
that accrue from full-scale EIAs for these applications.” To illustrate
the point, Dr Olver said that “we sometimes have the ridiculous situation
where the environmental impacts of, for example, the energy and paper use
associated with the EIA process itself may be more significant than the
development subjected to an EIA - this cannot be allowed to continue.”
Learning from its seven years of EIA experience, the department and its provincial counterparts have been working on the development of new environmental impact management tools as well as the more appropriate use of the EIA. To this end, the National Environmental Management Act, 1998 (Act No. 107 of 1998) has been amended to allow for the use of new tools and the streamlining and fine-tuning of the EIA.
Furthermore, tomorrow (Friday 25 June 2004), a new set of regulations
and schedules will be published in the Government Gazette for public comment.
These regulations will:
* Streamline the EIA process by, inter alia, reducing the number of
steps and/or interactions between the applicant and the authority to key
interventions or provision of information;
* Reduce the number of formal decisions required by officials;
* Securing the provision of sufficient and adequate information by
the applicant prior to decision-making;
* Create flexibility regarding the entry point in the EIA process and
undertaking of the process to ensure that officials are able to request
only the information required for decision-making and avoid unnecessary
steps and/or processes;
* Reduce the administrative burden and potential for delays through
the submission of incomplete or inferior reports by the applicant; and
* Provide for sound decision-making through the provision of adequate
information.
Given the implications of these regulations for developers and the
entire environmental impact management sector, the Minister of Environmental
Affairs and Tourism, Martinus Van Schalkwyk, announced during his budget
vote address to Parliament on Monday, 21 June 2004, that the regulations
will be published early and for an extended period to allow all interested
parties the chance to engage in their development and finalisation.
Dr Olver said that despite the planned extended comment period, the Minister’s announcement in Parliament appears to have given rise to some public concerns: “There appears to be a fear that the streamlined EIA process may reduce the intensity of attention given to new developments and allow new loopholes for developments having significant impacts to go un-assessed. Indeed, there has been a reaction that instead of streamlining the existing process, government should simply employ more staff.
“But we cannot afford to turn the EIA process into a bureaucratic exercise employing hundreds of ‘paper-pushers’ that add little environmental value - we must ensure efficient and effective environmental governance and this can be achieved by using the best tools for the job. Government will not be serving the people of South Africa by investing the same amount of resources in the assessment of, for example, a farm diesel tank, as it does for a hazardous waste plant - we must justify our use of resources in terms of the environmental benefits accrued.” He further pointed out that “this is an exercise in improving service delivery - the quality of our assessments will not be reduced. On the contrary, the concentration of government’s efforts on applications with significant rather than trivial impacts will enhance the quality of environmental impact management across the country.”
For more information contact:
Phindile Makwakwa (Director: Media Liaison) Mobile: (082) 850 9559
e-mail: pmakwakwa@deat.gov.za
For your information, the Proposed Regulations under Section 24(5)
of the National Environmental Management Act, 1998 (Act No. 107 of 1998)
as amended, will shortly be added to our version of the Act, which is available
as part of our Electronic Legislation Library.
For any further information regarding this legislation, kindly contact:
Data Dynamics; Dbn: 031 - 262 8240, email sales@ddyn.com , or Jhb:
011- 880 5860, email salesjhb@ddyn.com.
Sourced 8 July 2004 : http://www.environment.gov.za
DEPARTMENT OF ENVIRONMENTAL AFFAIRS AND TOURISM
No. …. … 2004
PROPOSED REGULATIONS UNDER SECTION 24(5) OF THE NATIONAL ENVIRONMENTAL MANAGEMENT ACT, 1998 (ACT No. 107 OF 1998) AS AMENDED
The Minister of Environmental Affairs and Tourism intends making regulations and identifying activities and geographical areas under sections 24(2), 24(5) and 24A of the National Environmental Management Act, 1998 (Act No. 107 of 1998) as amended, and as set out in the Schedule hereto.
Interested parties are requested to submit comments in connection with
the proposed regulations within 30 days from the date of publication of
this notice. Comments must be submitted to the Director-General: Environmental
Affairs and Tourism, Private Bag X447, Pretoria, 0001.
C G Olver
Director-General: Environmental Affairs and Tourism
_______________________________________________________
SCHEDULE
_____________________________________________________________________
TABLE OF CONTENTS
CHAPTER 1:
DEFINITIONS AND INTERPRETATION
1. Definitions and interpretation
2. Application of regulations
CHAPTER 2:
GENERAL POWERS, RESPONSIBILITIES AND OBLIGATIONS
3. General responsibilities and obligations of applicants
4. General responsibilities and obligations of environmental assessment
practitioners
5. General responsibilities and obligations of interested and affected
parties
6. General powers, responsibilities and obligations of the competent
authority
CHAPTER 3:
AUTHORISATION OF ACTIVITIES
7. Applications
8. Assessment of applications
9. Screening
10. Consideration of screening reports
11. Scoping and plan of study for environmental impact assessment
12. Consideration of scoping reports and plans of study for environmental
impact assessment
13. Environmental impact assessment
14. Content of specialist reports
15. Content of reports on specialised processes
16. Contents of draft environmental management plans
17. Consideration of environmental impact assessment reports
18. Considerations for issuing of environmental authorisations
19. Decisions of competent authority
20. Transfer of environmental authorisations
21. Variation of environmental authorisations
CHAPTER 4:
IDENTIFICATION OF ACTIVITIES AND GEOGRAPHICAL AREAS
22. Category I identified activities that require screening
23. Category II identified activities that require environmental impact
assessment
24. The identification of geographic areas in which specified activities
require environmental authorisation
CHAPTER 5:
ENVIRONMENTAL MANAGEMENT FRAMEWORKS
25. Purpose of environmental management frameworks
26. Compilation of environmental management frameworks
27. Contents of environmental management frameworks
28. Approval and adoption of environmental management frameworks
CHAPTER 6:
COMPLIANCE AND ENFORCEMENT
29. Compliance and enforcement
30. Use of information or statements
31. Offences
32. Penalties
CHAPTER 7:
APPEALS
33. Appeal
CHAPTER 8:
GENERAL MATTERS
34. Exemptions
35. Consideration of exemption applications
36. Authorisation of mining activities
CHAPTER 9:
MISCELLANEOUS
37. Limitation of liability
38. Repeal of regulations
39. Transitional arrangements
40. Commencement
CHAPTER 1: DEFINITIONS AND INTERPRETATION
1. Definitions and interpretation
(1) In these regulations any word or expression to which a meaning
has been assigned in the Act has that meaning, and unless the context requires
otherwise-
(a) "activity" unless otherwise indicated means a listed activity or
specified activity in terms of section 24(2)(a), (b) or (d) of the Act;
(b) "adjacent land" includes land that is separated from a site by
a road, railway line or other infrastructure;
(c) "agri-industrial" means a commercial concern engaged in the manufacture
or distribution of agricultural produce and includes battery farm operations
that are under roof;
(d) "aquaculture" means the farming of animals or plants in an aquatic
environment;
(e) "asbestos" means any fibrous mineral silicate containing actinolite,
amosite, anthophyllite, chrysotile or crocodolite;
(f) "associated structures or infrastructure" means any building or
infrastructure that is necessary for the functioning of the facility or
that is used for an ancillary service from the facility;
(g) "bulk storage or transport" means the storage or transport of goods
in quantities specified before it is processed, packaged or made available
to the retail sector or the end user, or the storage, transport or movement
of large quantities of effluent or waste after it has been discarded by
the end user;
(h) "clay" means attapulgite or sepiolite, ball clay, bentonite, refractory
clay, semi-flint and plastic or fireclay, shale or brick clay, vermiculite-chlorite
group, fuller’s earth, illite-montmorillonite group, kaolin, nontronite
or saponite, or any other kinds of clay;
(i) "coal" means coal, pseudo-coal, or torbanite or oil shale;
(j) "community woodlot" means a small plantation the purpose of which
is to provide firewood or other wood to a community, excluding for commercial
purposes;
(k) "competent authority" means the authority described in regulation
7(7);
(l) "concentration of animals" means keeping animals in confined spaces
or structures where they are fed in order to prepare them for slaughter
or to produce secondary products like milk or eggs;
(m) "cumulative impact" means an impact that in itself may not
be significant but is significant when added to the impact of other activities;
(n) "dangerous goods" means goods that are capable of posing a significant
risk to the health and safety of people or the environment and that are
listed in Annex B.2 or Annex C of South African National Standard: The
identification and classification of dangerous goods for transport, SANS
10228 as amended from time to time;
(o) "development" means the process of carrying out the work associated
with a change in the use of land, buildings or infrastructure, or with
a change in the intensity of the use of land, buildings or infrastructure;
(p) "diamond" means alluvial diamond or kimberlite diamond;
(q) "dimension stone" means general dimension stone, diorite or syenite,
gabbro or norite, granite or syenite, marble, pyroxenite, quartzite or
sandstone, shale or slate or jaspilite or schist, travertine, verdite or
buddstone or any other kind of dimension stone;
(r) "environmental control zones" means identified areas that
are subject to specific forms or levels of control based on the environmental
sensitivity of each zone;
(s) "environmental impact assessment" means the process of collecting,
organising, analysing, interpreting and communicating information that
is relevant to a decision contemplated in regulation 17 in respect of the
potential impacts of a proposed activity;
(t) "environmental management framework" means a spatial framework
within which specific environmental management parameters and conditions
are set in respect to development activities;
(u) "environmental management parameters" means the parameters within
which activities should be evaluated given the broader context of an area
for which an environmental management framework exists;
(v) "environmental resource inventory" means an inventory of environmental
resources that occur in an area;
(w) "environmental opportunities and constraints" means the opportunities
that the environment provides for development and the constraints that
environment poses for development;
(x) "expansion" means extending the range of outputs from a facility
or extending the area covered by a facility used to undertake an activity;
(y) "ferrous and base metal" means aluminium ore, antimony ore, berryllium
ore, bismuth ore, chrome ore, cobalt, copper ore, germanium ore, iron ore,
lead, lithium ore, manganese ore, mercury, molybdenum ore, nickel ore,
niobium (columbium) ore, pyrite, rare earths, silicon ore, tantalum/niobium
ore, tin ore, tungsten ore, uranium ore, vanadium ore, zinc ore or zirconium
ore;
(z) "filling station" means a facility where petrol, diesel and paraffin
is sold and includes shops and car-washing facilities that are located
on the same property;
(aa) "gemstone" excluding diamond, means agate, amazonite, amethyst,
apatite, apophyllite, aquamarine, beryl, chalcedony, chrysoberyl, citrine,
corundum, dumortierite, emerald, epidote, feldspar, garnet, heliodor,
jade, jasper, kyanite, labradorite, malachite, morganite, opal, orthoclase,
prehnite, quartz, ruby, sapphire, sodalite, spinel, tiger’s-eye,
topaz, tourmaline or zircon;
(bb) "geographical area" means an area that can be accurately identified
on a map or described in words or coordinates;
(cc) "heavy mineral" means leucoxene, monazite, rutile or any other
type of heavy mineral;
(dd) "identified activity" means activities listed or specified in
regulations 22, 23 or 24 or in terms of the Act;
(ee) "industrial mineral" means aggregate, andalusite, barytes, calcite,
corundum, dolomite, dolomitic limestone, feldspar, fluorspar, garnet (abrasive),
gibbsite, graphite, gravel, gypsum, kieselguhr, kyanite, lignite, limestone,
magnesite, mica, mineral pigment, nepheline, nitrate, perlite, phosphate
ore, phosphorous materials, pyrophyllite, salt, manufactured sand from
hardrock, manufactured sand from waste dump, serpentine, sillimanite, soda,
stone aggregate from waste dump, gravel stone aggregate, strontium, sulphur,
sulphur in pyrite, talc, vermiculite, wollastonite or zeolite;
(ff) "infill development" means urban development, including
residential commercial, retail, institutional, educational and mixed use
development in a built up area which is at least 50 percent abutted by
urban development and can be readily connected to municipal bulk infrastructure
services;
(gg) "interested and affected party" means a person or group of persons
interested or affected by a proposed activity;
(hh) "linear activity" means an activity that usually occurs across
several properties and may affect more than one aspect or type of environment
in different ways along the course of the development;
(ii) "mixed use" means, with regards to an activity, the presence of
two or more types of land use in an area;
(jj) "opportunity cost" means the loss of the ability to use a resource
for an alternative activity as a result of the chosen activity;
(kk) "plan of study for environmental impact assessment" means a document
contemplated in regulation 11 that sets out how the environmental impact
assessment will be conducted;
(ll) "precious metal" means gold ore, silver ore or platinum group
minerals and ore;
(mm) "public participation" means furnishing interested and affected
parties and the public with an opportunity to comment on, or raise issues
relevant to, an application for environmental authorisation, the adoption
of a policy or guideline contemplated in these regulations or the
compilation of an environmental management framework;
(nn) "registered interested and affected party" means a person who
participated in a public participation process contemplated in these regulations;
(oo) "scoping report" means a report contemplated in regulation 11
and which contains information on identified issues of and alternatives
to the proposed development;
(pp) "screening" means the assessment contemplated in regulation 9
to determine whether there is a likelihood of significant impacts that
require further investigation or whether a decision can be made, based
on the information provided as a result of the screening process;
(qq) "significant impact" means an impact that by its magnitude, duration,
intensity or probability of occurring may have an effect on an important
aspect of the environment;
(rr) "silica" means building sand, concrete sand, crusher sand, filling
sand, foundry sand, glass sand, metallurgical silica, silcrete or silica
sand;
(ss) "South African Manual for Outdoor Advertising Control" means the
publication of the national Department of Environmental Affairs and Tourism
that is used as the basis for control of outdoor advertising by local authorities;
(tt) "specialised processes" means processes that have been developed
to fulfil specific functions in environmental management decision making
that may be used as appropriate to a specific case and may include risk
assessment, cost benefit analysis, and strategic environmental assessment;
(uu) "the Act" means the National Environmental Management Act,1998
(Act No. 107 of 1998), as amended; and
(vv) "upgrade" means extending the capacity or output of infrastructure
or of a facility.
(2) Where a term is not defined in this section, the term shall have
its ordinary dictionary meaning, unless the context indicates otherwise.
(3) Unless otherwise specified in these regulations, a reference to
a number of days shall mean calendar days.
2. Application of regulations
(1) These regulations are applicable to the undertaking of ?
(a) the activities listed in regulations 22 and 23;
(b) any listed activity identified in terms of section 24(2)(a) and
(d) of the Act; and
(c) any specified activity identified within a listed area in terms
of section 24(2)(b) or (c) of the Act.
CHAPTER 2: GENERAL POWERS, RESPONSIBILITIES AND OBLIGATIONS
3. General responsibilities and obligations of applicants
(1) An applicant ?
(a) must, where the applicant is not the owner of the land on which
it is proposed to undertake the activity, obtain the consent of the landowner
to undertake the proposed activity in a form agreed to, or indicated by,
the competent authority provided that if the application is in respect
of a linear activity, it shall be sufficient for the applicant to prove
that notice of the proposed activity has been given to the owners of land
on which the activity may take place;
(b) must appoint an independent environmental assessment practitioner
where required in terms of these regulations;
(c) must provide the environmental assessment practitioner and the
competent authority with access to all information at its disposal regarding
the application, whether such information is favourable to the applicant
or not;
(d) is responsible for all costs incurred in complying with these regulations,
including but not limited to ?
(i) costs incurred in connection with the appointment of the environmental
assessment practitioner or any person contracted by the environmental assessment
practitioner;
(ii) costs incurred in respect of the undertaking of any process required
in terms of these regulations;
(iii) costs in respect of any fee prescribed by the competent authority,
(iv) costs in respect of specialist reviews, if the competent authority
decides to recover costs; and
(v) the provision of security to ensure compliance with conditions
attached to an environmental authorisation, should it be required by the
competent authority;
(e) must ensure that the environmental assessment practitioner has-
(i) expertise in conducting environmental impact assessments;
(ii) the ability to perform all the relevant tasks contemplated in
these regulations;
(iii) the ability to manage the public participation process contemplated
in paragraph (f);
(iv) the ability to timeously produce thorough, readable and informative
documents relevant to the application;
(v) adequate recording and reporting systems to ensure the preservation
of all data gathered; and
(vi) a good working knowledge of all relevant policies, legislation,
guidelines, norms and standards;
(f) is responsible for ensuring that the environmental assessment practitioner
undertakes public notification, information dissemination and participation
that provides all interested and affected parties, including all organs
of state at all spheres of government that may have jurisdiction over any
aspect of the activity, with a reasonable opportunity to participate in
such information and participation procedures;
(g) is responsible for complying with the conditions of any environmental
authorisation issued by the competent authority; and
(h) must indemnify the government of the Republic, the competent authority
and all its officers, agents and employees, from any liability arising
out of the content of any report, any procedure or any action for which
the applicant or environmental assessment practitioner is responsible in
terms of these regulations in a form indicated by the competent authority,
provided that this requirement shall not apply to an applicant that is
an organ of state.
(2) An applicant may request a meeting with the competent authority
to discuss appropriate steps that should be taken to give effect to the
requirements of these regulations.
(3) If any provision of subregulation (1) is not complied with by the
applicant within six months, after having been made aware of it by the
relevant competent authority, the application shall be regarded as having
lapsed.
4. General responsibilities and obligations of environmental assessment
practitioners
(1) An environmental assessment practitioner must when performing any
work in terms of these regulations ?
(a) have expertise in conducting environmental impact assessments,
including a knowledge and understanding of any guidelines or policies that
have relevance to the proposed activity;
(b) undertake such work in an objective manner, even if this results
in findings and views which are not favourable to the applicant;
(c) have no financial interest in the undertaking of the activity,
other than remuneration for work performed in terms of these regulations;
(d) have no vested interest in the proposed activity proceeding, nor
any other conflicting interest in the undertaking of the activity, other
than in complying with the regulations;
(e) disclose to the competent authority any material factors that have
or may have the potential to influence the decision of the competent authority
or the objectivity of any report, plan or document required in terms of
these regulations;
(f) ensure that public information is distributed and participation
facilitated that provide all interested and affected parties, including
all organs of state at all spheres of government that may have jurisdiction
over any aspect of the activity, with a reasonable opportunity to participate
in such information and participation procedures;
(g) keep a register of any interested and affected party that participated
in a public participation process;
(h) provide the competent authority with reasonable access to all information
at its disposal regarding the application, whether such information is
favourable to the applicant or not; and
(i) submit a declaration of interest to the competent authority in
a form that may be indicated by the competent authority.
(2) Where it comes to the attention of the competent authority that
the environmental assessment practitioner has an interest in the application,
the competent authority may indicate to the applicant and environmental
assessment practitioner that it will not accept any reports from the environmental
assessment practitioner.
5. General responsibilities and obligations of interested and affected
parties
Interested and affected parties who register as interested and affected
parties in respect of an application must ?
(a) furnish comments within the timeframes that have been approved
or provided for by the competent authority;
(b) disclose any issue which the interested and affected party believes
may be of significance to the decision of the competent authority during
the comment periods provided for; and
(c) disclose any competitive or direct financial interest that the
interested and affected party may have in the approval or refusal of an
application.
6. General powers, responsibilities and obligations of the competent
authority
(1) The competent authority must -
(a) ensure that officers or agents employed by the competent authority
to evaluate any reports submitted in terms of these regulations -
(i) have knowledge in the area of environmental matters and integrated
environmental management;
(ii) are familiar with the evaluation tasks required; and
(iii) have knowledge of all relevant policies, legislation, guidelines,
norms and standards;
(b) ensure that the evaluation and decisions required in terms of these
regulations are done or reached efficiently and within the specified timeframes,
or where timeframes are not indicated, within a reasonable time, and that
the applicant is informed immediately of any delay;
(c) provide the applicant, on request, with access to any guidelines
or information that are relevant to the application, are in the possession
of the competent authority and that may assist the applicant in fulfilling
its obligations;
(d) keep the inputs required from the applicant to the minimum that
are necessary to make an informed decision on the application, without
putting any limitation on the rights that interested and affected parties
may have in terms of these regulations;
(e) where applicable, inform the applicant of the nature and extent
of the public participation process to be followed in complying with these
regulations; and
(f) maintain a register of all applications received and in terms of
which an environmental authorisation has been issued.
(2) The Minister or MEC may develop and publish guidelines or policies
in the relevant Gazette in respect of an activity, group of activities
or the process contemplated in these regulations with the aim of ensuring
efficiency and the protection of the environment.
(3) Before adopting a policy contemplated in subregulation (2), the
Minister or MEC
must -
(a) publish the proposed policy in the relevant Gazette and invite
members of the public to submit comments on the policy;
(b) consult with all Cabinet members or members of the Executive Council
whose area of responsibility will be affected by the policy; and
(c) give notice to the public of the Minister or MEC’s intention to
adopt a policy and provide an opportunity for the public to comment on
the policy in question.
(4) Any policies contemplated in subregulation (2) above must be taken
into account when completing any form or preparing any report required
by these regulations and any proposed deviation from a guideline or policy
must be motivated.
(5) In considering any application where existing operations or activities
are undertaken on the property that is the subject of the application,
the competent authority may require that the impacts of any existing operations
or activities be taken into consideration or assessed in the submission
of the application or any report contemplated in these regulations.
(6) Where these regulations contemplate an assessment of alternatives
to the proposed activity, the competent authority may, where relevant,
direct the applicant to consider alternatives in respect of ?
(a) the property on which or location where it is proposed to undertake
the activity;
(b) the type of activity to be undertaken on a property;
(c) the design of the activity;
(d) the way in which the activity is undertaken; or
(e) not proceeding with the proposed activity.
(7) The competent authority may convene meetings with organs of state
that have jurisdiction over an activity that is the subject of an application
to ?
(a) ensure that the comments of other organs of state are considered
by the competent authority; and
(b) facilitate an integrated approach to decision-making in respect
of the activity.
CHAPTER 3: AUTHORISATION OF ACTIVITIES
7. Applications
(1) Any person who intends undertaking a Category I activity listed
in regulation 22 must submit an application form together with the prescribed
fee and conduct a screening process.
(2) Any person who intends undertaking a Category II activity listed
in regulation 23 must submit an application form together with the prescribed
fee and conduct a scoping process and environmental impact assessment.
(3) If any person intends undertaking a Category I activity and that
person is of the opinion that it is unlikely that the competent authority
will be able to reach a decision on the basis of information provided in
a screening report, the applicant may request the competent authority,
in writing, to grant permission to undertake an environmental impact assessment
instead of a screening process.
(4) Applications must be made on the relevant application form obtainable
from the competent authority.
(5) Any person who intends undertaking two or more activities on the
same property or as part of one development proposal must submit one application
form in respect of such activities for the purposes of complying with these
regulations.
(6) Any person who intends undertaking more than one of the same type
of activity may request the competent authority, in writing, for permission
to submit one application form in respect of those activities and to undertake
a consolidated process in respect of those activities.
(7) The competent authority shall be the environmental authority in
the province in which the activity is to be undertaken unless it is an
application for an activity contemplated in section 24C(2) of the Act,
in which case the competent authority shall be the Minister.
(8) Any dispute or disagreement concerning the competent authority
to which an application should be submitted shall be referred to the Minister.
8. Assessment of applications
(1) On receipt of an application, the competent authority must within
14 days and in writing ?
(a) acknowledge receipt of the application; or
(b) notify the applicant if the application does not comply with the
requirements of these regulations or does not contain material information
required in the application form or any guideline that has been developed
by the competent authority in respect of the submission of applications.
(2) An application that does not comply with the requirements of these
regulations or does not contain material information required in the application
form or any guideline that has been developed by the competent authority
in respect of the submission of applications may be referred back to the
applicant by the competent authority.
9. Screening
(1) An applicant who wishes to undertake a Category I activity listed
in regulation 22 must appoint an environmental assessment practitioner
to conduct a screening process and to complete a form in accordance with
the requirements of the competent authority or provided by the competent
authority.
(2) A completed form referred to in subregulation (1), including any
additional information that is required to support the application, shall
be known as a screening report.
(3) The competent authority may require that a screening report be
submitted together with, or as part of an application form, in which instance,
the competent authority shall take the decisions contemplated in regulations
8 and 10 concurrently.
(4) Unless agreed otherwise by the competent authority, the environmental
assessment practitioner must follow any relevant guidelines developed by
the competent authority in respect of public participation and must at
least ?
(a) inform the following people that an application will be submitted
to the competent authority in terms of these regulations and the manner
in which such persons may make representations -
(i) landowners and occupiers of adjacent land;
(ii) landowners and occupiers of land near the property where it is
proposed to undertake the activity and whom may be directly affected by
the proposed activity; and
(iii) the ward counsellor and any organisation that represents the
community in the area;
(b) place a notice in at least one local newspaper and any Government
Gazette that is published specifically for the purpose of providing notice
to the public of applications in terms of these regulations indicating
that an application is being submitted to the competent authority in terms
of these regulations; and
(c) place a notice in at least one provincial newspaper, national newspaper
or any Government Gazette that is published specifically for the purpose
of providing notice to the public of applications in terms of these regulations,
indicating that an application is being submitted to the competent authority
in terms of these regulations where the proposed activity may have impacts
that are outside of the geographical area.
(5) A screening report must contain all information that is necessary
for the competent authority to assess the application and make a decision
contemplated in regulation 10, including ?
(a) details of the person who compiled the report and that person’s
competence to undertake a screening process;
(b) a description of the proposed activity;
(c) a description of the need and desirability of the activity, including
the benefits that the proposed activity will have to society in general
and the community where it will be located;
(d) a description of the property or properties and environment in
the vicinity of the property where the applicant intends undertaking the
activity, including any geographical, physical, social and cultural features
of the property or environment;
(e) an identification of any legislation, policies and guidelines that
are relevant to the application;
(f) a description of the public participation process undertaken during
the screening process, including information in respect of ?
(i) steps taken to notify potential interested and affected parties
of the application;
(ii) proof of any advertisements that were placed notifying potential
interested and affected parties;
(iii) a list of all people or organisations that were identified as
an interested and affected party; and
(iv) a summary of comments received from interested and affected parties
and the date and method of response to any comment received;
(g) a description of the need and desirability of the proposed activity,
potential alternatives to the proposed activity, including the consideration
of alternative locations, alternative designs and processes at an appropriate
level of detail, as well as the alternative of not proceeding with the
activity;
(h) a description and assessment of the significance of any environmental
impacts, including cumulative impacts that may occur as a result of the
undertaking of the activity, including during the construction phase;
(i) any environmental management and mitigation measures proposed by
the applicant;
(j) a draft environmental management plan; and
(k) any other information required by a competent authority in a guideline.
10. Consideration of screening reports
(1) After a screening report has been received by the competent authority,
the competent authority must within 30 days -
(a) decide that the information contained in the screening report is
sufficient for the competent authority to reach a decision in respect of
the application without further investigation and grant authorisation in
respect of all or part of the application with any conditions or refuse
authorisation;
(b) advise the applicant that further or additional information or
investigation is required before a decision can be reached on the application
because ?
(i) the issues or potential impacts of the proposed activity are unclear;
(ii) further information is required in respect of the proposed activity;
(iii) further information in respect of any environmental aspect, including
a social or cultural impact, is required;
(iv) further information is required on alternatives to the activity;
or
(v) more comprehensive public participation is required;
and instruct the applicant to comply with the provisions of regulation
11 or instruct the applicant to furnish only the information specified
by the competent authority; or
(c) notify the applicant that the application cannot be assessed properly
because the screening report does not contain material information required
in terms of these regulations or any guidelines that have been developed
in respect of the activity which is the subject of the application and
refer the screening report back to the applicant.
(2) A screening report that is referred back to the applicant in terms
of subregulation (1)(b), may be amended and resubmitted by the environmental
assessment practitioner.
11. Scoping and plan of study for environmental impact assessment
(1) An applicant who wishes to undertake a Category II activity listed
in regulation 23 must appoint an environmental assessment practitioner
to complete an application form, conduct a scoping process and to compile
a scoping report and plan of study for environmental impact assessment.
(2) The environmental assessment practitioner must follow any guidelines
developed by the competent authority in respect of public participation.
(3) A scoping report must contain all the information that is necessary
for the competent authority to understand the nature of issues that have
been identified during scoping and ?
(a) details of the person who compiled the report and that person’s
competence to undertake a scoping process;
(b) a description of the proposed project;
(c) a description of how the physical, social and cultural environment
may be affected by the proposed activity;
(d) a description of environmental issues that have been identified;
(e) a description of all alternatives identified; and
(f) a description of the public participation process undertaken during
scoping, including information in respect of ?
(i) steps taken to notify potentially interested and affected parties
of the application;
(ii) proof of any advertisements that were placed soliciting comments
from potentially interested and affected parties;
(iii) an indication of all people or organisations that were registered
as an interested and affected party; and
(iv) a summary of comments received from such parties and the date
and method of response to any comment received; and
(g) a plan of study for environmental impact assessment.
(4) A plan of study for environmental impact assessment contemplated
in subregulation (3) must set out the approach that the applicant intends
to follow in undertaking an environmental impact assessment and must include
?
(a) a description of all tasks to be undertaken as part of the assessment
process, including any specialist reports or specialised processes;
(b) an indication of the stages at which the competent authority will
be consulted;
(c) a description of the proposed method of assessing the environmental
issues and alternatives, including the no-go option; and
(d) the nature and extent of the public participation processes to
be conducted during the environmental impact assessment process.
12. Consideration of scoping reports and plans of study for environmental
impact assessment
(1) After receiving a scoping report the competent authority must within
30 days and in writing ?
(a) accept the report and advise the applicant to proceed with the
activities contemplated in the plan of study for environmental impact assessment;
(b) request the applicant to make any amendments that the competent
authority requires to accept the scoping report and plan of study for environmental
impact assessment; or
(c) reject the scoping report and plan of study for environmental impact
assessment because it does not contain material information required in
terms of these regulations or any guidelines that have been developed by
the competent authority in respect of scoping reports and plans of study
for environmental impact assessment.
(2) A scoping report or plan of study for environmental impact assessment
that has been rejected by the competent authority in terms of subregulation
(1)(c) may be amended and resubmitted by the environmental assessment practitioner.
13. Environmental impact assessment
(1) The environmental impact assessment report must contain all information
that is necessary for the competent authority to assess the application
and make a decision contemplated in regulation 17 including ?
(a) details of the person who compiled the report and that person’s
competence to undertake an environmental impact assessment;
(b) a detailed description of the proposed activity;
(c) a description of the need and desirability of the activity, including
the benefits that the proposed activity will have to society in general
and the community where it will be located, in particular;
(d) a description of the property or properties and environment in
the vicinity of the property where the applicant intends undertaking the
activity, including any geographical, physical, social and cultural features
of the property or environment;
(e) a description of the public participation process undertaken during
the scoping process, including information in respect of ?
(i) steps taken to notify potentially interested and affected parties
of the application;
(ii) proof of any advertisements that were placed soliciting comments
from potentially interested and affected parties;
(iii) an indication of all people or organisations that were registered
as an interested and affected party; and
(iv) a summary of comments received from such interested and affected
parties and the date and method of response to any comment received;
(f) an indication of the methodology used in determining the significance
of potential environmental impacts;
(g) a description and comparative assessment of all alternatives identified
during the environmental impact assessment process;
(h) a summary of the findings of any specialist studies;
(i) a summary of the findings of any specialised processes;
(j) a description of all environmental issues that were identified
during the environmental impact assessment process, an assessment of the
significance of each issue and an indication of the extent to which the
issue could be addressed by mitigation measures;
(k) an assessment of each identified potentially significant impact,
including cumulative impacts, in terms of the nature of the impact, the
extent and duration of the impact in terms of the spatial size or area
of influence, the probability of the impact occurring and the degree to
which the impact can be mitigated;
(l) a description of the assumptions, uncertainties and gaps in knowledge;
(m) an environmental impact statement that contains -
(i) a summary of the key findings of the environmental impact assessment;
and
(ii) a comparative assessment of the positive and negative implications
of the proposed activity;
(n) a draft environmental management plan;
(o) copies of specialist reports, reports on specialised processes
and comments received from interested and affected parties; and
(p) any other information specified by the competent authority.
14. Content of specialist reports
Specialist reports that are compiled as part of an environmental impact
assessment must contain -
(a) the name or names, qualifications and relevant experience of the
specialist or specialists;
(b) an indication of the scope of report and purpose for which the
report was compiled;
(c) a description of the methodology adopted in compiling the report;
(d) a description of the assumptions, uncertainties and gaps in knowledge;
(e) a description of the findings and potential implications of such
findings for the impact of the proposed activity on the environment;
(f) information on any mitigation measures that are recommended;
(g) a description of any public consultation process undertaken; and
(h) any other information requested by the competent authority.
15. Content of reports on specialised processes
A report compiled on a specialised process that is undertaken as part
of an environmental impact assessment must contain -
(a) the name or names, qualifications and relevant experience of the
author or authors;
(b) an indication of the scope of the report and purpose for which
the specialist process was undertaken;
(c) a description of the methodology adopted in undertaking the process;
(d) a description of the assumptions, uncertainties and gaps in knowledge;
(e) a description of the findings and implication of such findings
of the impact of the proposed activity on the environment;
(f) a description of any proposed mitigation measures;
(g) a description of any public consultation process that was conducted
as part of the specialised process; and
(h) any other information requested by the competent authority.
16. Contents of draft environmental management plans
A draft environmental management plan must include information on any
proposed management or mitigation measures that will be taken to address
the environmental impacts identified in the environmental impact assessment
report.
17. Consideration of environmental impact assessment reports
(1) The competent authority must, within 45 days after receiving an
environmental impact assessment report ?
(a) accept the report;
(b) notify the applicant that specialist reviewers have been appointed
to review the report;
(c) request the applicant to make the amendments that the competent
authority requires to accept the environmental impact assessment report;
or
(d) reject the report because it does not contain material information
required in terms of these regulations or that has been specified by the
competent authority.
(2) An environmental impact assessment report that is rejected in terms
of subregulation (1)(d) may be amended and resubmitted by the environmental
assessment practitioner.
(3) The competent authority may, before making a decision to grant
authorisation or refuse authorisation, appoint a specialist reviewer or
reviewers to review any environmental impact assessment report, or parts
thereof, and to submit a report on their findings to the competent authority.
(4) The Minister or MEC may recover the costs of appointing a specialist
reviewer from the applicant where ?
(a) the technical knowledge required to review any aspect of a report
is not readily available within the competent authority; or
(b) a high level of objectivity is required which is not apparent in
the documents submitted, in order to ascertain whether the information
contained in such documents is adequate for decision-making or where it
requires amendment.
(5) On acceptance of an environmental impact assessment report or,
where the environmental impact assessment report has been referred for
specialist review in terms of subregulation (3), on receipt of the findings
of the specialist reviewer, the competent authority must within 60 days
and in writing ?
(a) grant authorisation in respect of all or part of the application
with any conditions; or
(b) refuse authorisation.
18. Considerations for issuing of environmental authorisations
The competent authority must take all relevant factors into account
when considering an application for environmental authorisation, including
-
(a) the requirements of section 24 of the Constitution;
(b) the principles of the Act;
(c) the objectives of any environmental policies, strategies or plans
that are relevant to the application;
(d) the provisions of applicable international legal instruments which
have been ratified by the Republic;
(e) any economic or social policies of government that adopt specific
approaches to achieving sustainable development;
(f) the pollution or environmental degradation being or likely to be
caused by the undertaking of the activity and the likely impact of that
pollution or environmental degradation on the environment;
(g) the cumulative impacts to which the activity may contribute;
(h) the environmental opportunity costs that may arise as a result
of the activity;
(i) measures that could be taken-
(i) to prevent, control, abate or mitigate any pollution or environmental
degradation; and
(ii) to protect the environment from harm as a result of the undertaking
of the activity;
(j) the contents of any documents accompanying the application, including
documents that contain information on ?
(i) the significance and nature of potential impacts;
(ii) alternatives to the activity, including the alternative of not
proceeding with the activity;
(iii) mitigation measures to manage any environmental impacts;
(iv) any submission from an interested and affected party; and
(v) the ability of the applicant to implement mitigation measures and
to comply with any conditions of authorisation;
(k) comments received from organs of state that have jurisdiction over
any aspect
of the activity; and
(l) any legislation, regulations or guidelines issued by the Minister
or competent authority that are relevant to the application.
19. Decisions of competent authority
(1) After the competent authority has reached a decision to grant or
refuse authorisation in respect of an application, it must ?
(a) notify the applicant of the decision;
(b) give written reasons for the decision;
(c) draw the applicant’s attention to the provisions contained in these
regulations regulating appeal procedures;
(d) instruct the applicant to notify all registered interested and
affected parties of the competent authority’s decision and the provisions
regulating appeal procedures contained in these regulations within a determined
time period; and
(e) issue an environmental authorisation where the decision of the
competent authority is to grant authorisation, provided that where the
competent authority grants authorisation, the information specified in
subregulation (a), (b), (c) and (d) may be included in the authorisation.
(2) If an applicant has submitted an application form in respect of
more than one activity in terms of regulation 7(5) or (6), the competent
authority may grant authorisation in respect of one or more of the activities
forming the subject of the application in a single environmental authorisation
or refuse to grant authorisation in respect of one or more of the activities
forming the subject of the application.
(3) An environmental authorisation must specify-
(a) the name, address and telephone number of the applicant to whom
the authorisation is issued;
(b) a description of the activity that is authorised;
(c) a description of the property or properties, location and area
where the activity will be undertaken;
(d) the conditions in terms of which the activity may be undertaken
including in respect of ?
(i) the period for which the environmental authorisation is valid;
(ii) requirements for the management, monitoring and reporting of the
impacts of the activity throughout the life cycle of the activity; and
(iii) the transfer of rights and obligations when there is a change
of ownership of the property or of the activity.
(4) An environmental authorisation may -
(a) provide that the activity may not commence prior to specified conditions
being complied with;
(b) require the applicant to furnish the competent authority with reports
prepared by the applicant or an independent person, at specified times
or intervals, that -
(i) indicate the extent to which the conditions of the authorisation
have or have not been complied with;
(ii) provide details of the nature of, and reasons for, any non-compliance
with a condition of the authorisation; and
(iii) describe any action taken, or to be taken, to mitigate the effects
of the non-compliance or to prevent any recurrence of the non-compliance;
(c) require the applicant to furnish security for any mitigation or
rehabilitation measures required in the environmental authorisation; and
(d) include any other condition that the competent authority considers
necessary for the protection of the environment.
20. Transfer of environmental authorisations
(1) If a holder of an environmental authorisation transfers ownership
of a property on which an activity that is authorised in terms of these
regulations is undertaken, or transfers the ownership of an activity that
is authorised in terms of these regulations, the environmental authorisation
may, with the permission of the competent authority, be transferred to
the new owner of the property or activity.
(2) The permission of the competent authority referred to in subregulation
(1) may not be unreasonably withheld.
(3) A person applying for permission for the transfer of an environmental
authorisation must submit a written application to the competent authority
that includes -
(a) the name, address and telephone number of the new owner of the
property or activity;
(b) a written declaration from the new owner that he is aware of the
conditions of the environmental authorisation and that he is able to comply
with such conditions;
(c) any relevant information that supports the declaration; and
(d) any other information stipulated in the conditions of the environmental
authorisation relating to the transfer of rights and obligations.
(4) A person applying for permission for the transfer of an environmental
authorisation must take appropriate steps to bring the application for
transfer of the environmental authorisation to the attention of registered
interested and affected parties.
(5) If the competent authority grants permission for the transfer of
an environmental authorisation, it must amend the authorisation to reflect
the name, address and telephone number of the new owner and furnish a copy
thereof to the new owner.
21. Variation of environmental authorisations
(1) The competent authority may, by written notice to the holder of
an environmental authorisation, vary an environmental authorisation ?
(a) if it is necessary or desirable to prevent deterioration of the
environment;
(b) if it is necessary or desirable for the purposes of achieving prescribed
environmental standards;
(c) if it is necessary or desirable to accommodate demands brought
about by impacts on socio-economic circumstances and it is in the public
interest to meet those demands;
(d) at the written request of the holder of the environmental authorisation;
or
(e) if it is transferred to another person in terms of regulation 20.
(2) The variation of an environmental authorisation includes ?
(a) the attaching of an additional condition or requirement to the
environmental authorisation;
(b) the substitution of a condition or requirement;
(c) the removal of a condition or requirement; or
(d) the amendment of a condition or requirement.
(3) An environmental authorisation may be varied at any time during
its currency.
(4) If the competent authority intends varying an environmental authorisation
in terms of subregulation (1)(a), (b), (c), or (e), the competent authority
must notify the holder of the environmental authorisation, interested and
affected parties and the public of
the ?
(a) competent authority’s intention to vary the environmental authorisation;
(b) proposed details of the variation;
(c) reasons for the variation; and
(d) time period within which objections to the variation may be submitted
to the competent authority.
(5) If the competent authority receives a request from the holder of
an environmental authorisation in terms of subregulation (1)(d), the competent
authority may require the holder of the environmental authorisation to
furnish such additional information or to undertake such studies as it
deems necessary to reach a decision on the request for variation.
(6) If the competent authority receives a request from the holder of
an environmental authorisation in terms of subregulation (1)(d), the competent
authority must require the holder of the environmental authorisation to
take appropriate steps to bring the request to the attention of relevant
organs of state, interested and affected persons and the public and to
provide such persons with an opportunity to submit comments on the request
for variation.
(7) Regulation 20, read with the necessary changes as the context may
require, applies to the variation of an environmental authorisation.
CHAPTER 4: IDENTIFICATION OF ACTIVITIES AND GEOGRAPHICAL AREAS
22. Category I identified activities that require screening
(1) The construction of new facilities or infrastructure, including
associated structures or infrastructure, for ?
(a) the manufacturing, storage, testing or disposal of explosives including
ammunition, but excluding licensed retail outlets and the legal end
use of such explosives;
(b) the storage of more than 1 000 tons of ore;
(c) the storage of more than 250 tons of coal;
(d) hospitality and recreational purposes, including resorts, lodges,
hotels and other tourism or hospitality facilities where -
(i) more than 20 guests can be accommodated overnight;
(ii) there are more than 10 guest units;
(iii) the facility will cover an area in excess of 1 hectare; or
(iv) there is no connection to a municipal sewerage system;
(e) golfing activities including ?
(i) driving ranges; or
(ii) golf courses covering less than 10 hectares;
(f) sport and associated recreation activities where -
(i) the facility will have a capacity to hold more than 8 000 people;
or
(ii) the facility will cover an area in excess of 3 hectares;
(g) the slaughter of animals and the processing of animal products
and by-products with a product throughput in excess of 10 000 kilogram
per year;
(h) the concentration of animals for the purpose of commercial production
in densities that exceed -
(i) 20 square metres per unit of cattle and more than 500 units per
year,
(ii) 8 square meters per unit of sheep and more than 1 000 units per
year;
(iii) 8 square metres per unit of pigs and more than 250 units per
year excluding piglets that are not yet weaned;
(iv) 30 square metres per unit of crocodiles at any level of production,
excluding crocodiles younger than 6 months;
(v) 3 square metres per unit of poultry and more than 250 units at
any time, excluding chicks younger than 20 days;
(vi) 3 square metre per unit of rabbit at and more than 250 units at
any time; or
(vii) 100 square metres per unit of ostriches and more than 50 units
per year;
(i) commercial aquaculture production including mariculture and algae
farms with a product throughput of more than 10 000 kilograms per year;
(j) agri-industrial purposes outside areas zoned for industrial purposes
and that cover an area of more than 1 000 square metres;
(k) the bulk transportation of sewage and water in pipelines or channels
with -
(i) an internal diameter of 0,36 metres or more; or
(ii) a maximum peak throughput of 120 litres or more per second;
(l) the production of clay bricks and clay or ceramic tiles;
(m) the transmission and distribution of above ground electricity with
a capacity of less than 120 kilovolt, but more than 20 kilovolt;
(n) any purpose in the one in a hundred year flood line of a river
or stream, or within 30 metres from the bank of a river or stream where
the flood line is unknown, including -
(i) canals;
(ii) channels;
(iii) bridges;
(iv) dams; and
(v) weirs;
(o) the off-stream storage of water, including dams and reservoirs,
with a capacity of 80 000 cubic metres or more;
(p) the recycling, handling, temporary storage or treatment of waste
with a daily throughput capacity in excess of 10 cubic metres;
(q) the cremation of human or animal tissue;
(r) horseracing;
(s) polo and polo-cross;
(t) the landing, parking and maintenance of aircraft including -
(i) helicopter landing pads;
(ii) structures for equipment and aircraft storage;
(iii) structures for maintenance and repair;
(iv) structures for fuelling and fuel storage; and
(v) structures for air cargo handling; or
(u) the outdoor racing of motor powered vehicles including -
(i) motorcars;
(ii) trucks;
(iii) motorcycles;
(iv) boats; and
(v) jet skis.
(2) Construction or earth moving activities in the sea and extending
for a distance of 100 metres inland of the high-water mark of the sea,
including the construction of ?
(a) small harbour facilities for commercial and recreational vessels
or craft;
(b) facilities associated with the arrival and departure of vessels
and the handling of cargo;
(c) facilities for the storage of material and the maintenance of vessels;
(d) fixed or floating jetties and slipways;
(e) piers;
(f) breakwater structures;
(g) tidal pools; or
(h) buildings.
(3) The prevention of the free movement of sand, including erosion
and accretion, by means of planting vegetation, placing synthetic material
on dunes and exposed sand surfaces for a distance of 100 metres inland
of the high-water mark of the sea.
(4) The dredging, excavation, removal or moving of soil, sand or rock
exceeding 5 cubic metres from a river, tidal lagoon, tidal river, floodplain
or wetland.
(5) The removal or damaging of natural vegetation for a distance of
100 metres inland of the high-water mark of the sea.
(6) The excavation, moving, removal, depositing or compacting of soil,
sand, rock or rubble covering an area exceeding 10 square metres for a
distance of 100 metres inland of the high-water mark of the sea.
(7) Filling stations or any other facility for the underground storage
of petrol, diesel or paraffin.
(8) The above ground storage, including temporary storage, of petrol,
diesel or paraffin in containers with a combined capacity of more than
30 cubic metres at any one location or site.
(9) Borrow pits, other than borrow pits identified in regulation 23.
(10) The manufacture of charcoal and coke.
(11) The establishment of cemeteries.
(12) The decommissioning of a dam where the highest part of the dam
wall, as measured from the outside toe of the wall to the highest part
of the wall, is 5 metres or higher or where the high-water mark of the
dam covers an area of more than 10 hectares.
(13) The abstraction of groundwater at a volume where any general authorisation
granted in terms of the National Water Act, 198 (Act No. 36 of 1998) for
groundwater is to be exceeded or the borehole is within 100 metres of another
user, spring, wetland, surface water body or river.
(14) The transformation or removal of indigenous vegetation in excess
of 3 hectares.
(15) The planting of tree plantations or the expansion of existing
plantations, but excluding community woodlots smaller than 3 hectares.
(16) The construction of masts and towers, including those used for
telecommunication, broadcasting or radio transmission, where the height
of the mast or tower structure as measured from its base is higher than
15 metres;
(17) The transformation of undeveloped land to ?
(a) establish infill development covering an area of 5 hectares or
more; or
(b) establish residential, mixed use, retail, commercial, industrial
or institutional use with a structure footprint of 1 hectare or more where
such development does not constitute infill.
(18) Phased development activities where any one phase of a development
activity may be below a threshold in these regulations but a combination
of the phases will exceed the threshold.
(19) The subdivision of land into portions smaller than 5 hectares.
(20) The development of a new facility or the transformation of an
existing facility for the conducting of manufacturing processes, warehousing,
bottling, packaging, or storage, which occupies an area in excess of 1000
square metres outside an existing area zoned for industrial purposes.
(21) The transformation of public open space or a protected area to
another use.
(22) The release of genetically modified organisms into the environment
in instances where it is required by the Genetically Modified Organisms
Act, 1997 (Act No. 15 of 1997) or the National Environmental Management:
Biodiversity Act, 2004 (Act No. 10 of 2004).
(23) The use of any organism for biological control.
(24) The decommissioning of mining, quarrying, prospecting or other
mineral extraction operations that commenced before 1991.
(25) The decommissioning of existing facilities or infrastructure,
other than facilities or infrastructure that commenced under an environmental
authorisation issued in terms of these regulations, for -
(a) electricity generation;
(b) nuclear reactors and storage of nuclear fuel;
(c) industrial activities where the facility or the land on which it
is located is contaminated or has the potential to be contaminated by any
material which may place a restriction on the potential to re-use the site
for a different purpose;
(d) the disposal of waste;
(e) the treatment of effluent, wastewater and sewage with an annual
throughput capacity of more than 15 000 cubic metres;
(f) the recycling, handling, temporary storage or treatment of waste
with a daily throughput capacity of more than 10 cubic metres; or
(g) the cremation of human or animal tissue;
(26) The recommissioning or use of facilities or infrastructure, after
a period of two years from closure, or temporary closure, excluding facilities
or infrastructure that commenced under an environmental authorisation issued
in terms of these regulations, for -
(a) electricity generation;
(b) nuclear reactors and nuclear fuel storage; or
(c) facilities for any industrial process or activity, which requires
a new permit or license in terms of legislation governing the release of
emissions, pollution, effluent or waste to air, water or soil;
(27) The expansion or upgrading of existing facilities for any industrial
process or activity, which requires an amendment of an existing permit
or license or a new permit or license in terms of legislation governing
the release of emissions, pollution, effluent or waste to air, water or
soil;
(28) In accordance with the provisions of section 24(2)(c) of the Act,
an MEC may exclude activities (1)(c), (1)(d), (1)(e), (1)(f), (1)(j), (1)(k),
(1)(l), (1)(m), (1)(o), (1)(r), (1)(s), (1)(t), (1)(u), (2), (3), (4),
(5), (6), (7), (8), (13), (14), (15), (16), (17), (18), (19), (20), (21),
(24), (25), (26) and (27) where -
(a) an area that is managed by any authority for which an environmental
management framework that makes provision for the proper management of
the activities to be managed in terms of the environmental management framework
has been approved by the competent authority; or
(b) an area is not sensitive to certain activities due to its nature
or zoning as identified by the competent authority.
23. Category II identified activities that require environmental
impact assessment
(1) The construction of new facilities or infrastructure, including
associated structures or infrastructure, for -
(a) the generation of electricity where ?
(i) the electricity output is 10 megawatt or more; or
(ii) the facility covers an area in excess of 1 hectare;
(b) nuclear reaction including the production, enrichment, processing,
reprocessing, storage or disposal of nuclear fuels, radioactive products
and waste;
(c) any industrial process or activity, which requires a permit or
license in terms of legislation governing the release of emissions, pollution,
effluent or waste to air, water or soil;
(d) the use, recycling, handling, treatment, storage or final disposal
of hazardous wastes;
(e) the extraction or processing of natural gas including gas from
landfill sites;
(f) the bulk transportation of dangerous goods using pipelines, funiculars
and conveyors with a daily throughput capacity in excess of 50 tons or
50 cubic metres;
(g) the landing, parking and maintenance of aircraft excluding unpaved
landing strips shorter than 1,4 kilometres in length and helicopter landing
facilities and stops used exclusively by emergency services, but including
-
(i) airports;
(ii) runways;
(iii) waterways; or
(iv) structures for engine testing;
(h) coastal marinas and harbours;
(i) the transmission and distribution of above ground electricity with
a capacity of 120 kilovolt or more;
(j) marine telecommunication infrastructure;
(k) the transfer of more than 20 000 cubic metres of water between
water catchments or impoundments per day;
(l) the final disposal of general waste covering an area in excess
of 100 square metres or 200 cubic metres of airspace;
(m) the treatment of effluent, wastewater and sewage with an annual
throughput capacity of more than 15 000 cubic metres;
(n) the incineration, burning, evaporation, thermal treatment, roasting
or heat sterilisation of waste or effluent;
(o) the microbial deactivation, chemical sterilisation or non-thermal
treatment of waste or effluent;
(p) rail transportation, excluding railway lines and sidings in industrial
areas and underground railway lines in mines, but including -
(i) railway lines;
(ii) stations; and
(iii) shunting yards; or
(q) golfing activities including -
(i) golf courses covering 10 hectares or more; and
(ii) golf estates that comprise of golf courses of any size and residential
housing.
(2) Any new development activity where the total area of the site is
in excess of 20 hectares.
(3) The extraction of peat.
(4) The route determination and construction of roads and associated
infrastructure where ?
(a) it is a national road as defined in section 40 of the South African
National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of
1998);
(b) it is a road administered by a provincial authority;
(c) the road reserve is wider than 30 metres; or
(d) the road is designed to carry a high volume of traffic of more
than 700 vehicles per lane per day with an equivalent standard axle (80
kilo Newton) pavement class of 3 or more.
(5) The construction of a dam where the highest part of the dam wall,
as measured from the outside toe of the wall to the highest part of the
wall, is 5 metres or higher or where the high-water mark of the dam covers
an area of more than 10 hectares.
(6) The mining, quarrying, prospecting, extraction or production, including
associated structures and the extension of existing operations, of -
(a) ferrous and base metals;
(b) precious metals;
(c) coal;
(d) diamonds;
(e) heavy minerals;
(f) asbestos;
(g) industrial minerals;
(h) gemstones;
(i) clay;
(j) silica; or
(k) dimension stone.
(7) In accordance with the provisions of section 24(2)(c) of the Act,
an MEC may exclude activities listed under (1)(p), (1)(q), (2) and (4),
as appropriate, where ?
(a) an area which is managed by any authority for which an environmental
management framework that makes provision for the proper management of
the activities to be managed in terms of the environmental management framework
has been approved by the competent authority; or
(b) an area is not sensitive to certain activities due to its nature
or zoning as identified by the competent authority.
24. The identification of geographical areas in which specified activities
require environmental authorisation
(1) Geographical areas that may be identified by an MEC in terms of
section 24(2) of the Act in which specified activities may not commence
without any environmental authorisation include ?
(a) areas or sites identified by any legislation or in any government
policy or plan that has been adopted for the purpose of protecting or conserving
biological, water, landscape, geological, archaeological, palaeontological,
architectural or cultural resources;
(b) the core areas of biosphere reserves; and
(c) areas designated for conservation or protection by the Republic
in terms of any international agreement, treaty or convention to which
the Republic is a party.
(2) Activities listed that may be specified by an MEC as requiring
environmental authorisation in a geographic area include ?
(a) the construction of new facilities or infrastructure or the upgrade
or expansion of existing facilities or infrastructure, including associated
structures, for ?
(i) the manufacture of cement bricks and products;
(ii) vehicular transport, including tracks, where natural vegetation
in excess of 250 square metres must be removed, or material to construct
a road must be imported from a borrow pit;
(iii) marinas and the launching of watercraft on inland waters;
(iv) above ground cableways and funiculars;
(v) landing and take-off of aircraft;
(vi) driving of 4x4 vehicles;
(vii) the generation of water pressure by means of elevated water pressure
tanks with a combined capacity of 10 000 litres or more;
(viii) the treatment or disposal of effluent, wastewater and sewage
with a yearly throughput capacity of more than 100 cubic metres;
(ix) advertisements as defined in classes 1(a), 1(b), 1(c), 1(d), 2(g),
3(a), 3(b), 3(k), 4(b) and 5(a) of the South African Manual for Outdoor
Advertising Control;
(x) resorts, lodges, hotels and other tourism or hospitality facilities;
(xi) camping and picnicking where the site covers an area in excess
of 500 square metres;
(xii) sporting activities with a capacity to hold more than 1 000 spectators,
or covering an area in excess of 1 hectare; or
(xiii) the abstraction of water directly from natural sources, including
streams and aquifers, where the daily extraction will exceed 10 000 litres
per day or more than 50% of the flow volume of a stream;
(b) the construction of masts, towers and poles, including those used
for telecommunication, broadcasting or radio transmission where the height
of the mast, tower or pole structure as measured from its base is higher
than 7 metres;
(c) the new or initial fitment of telecommunication or radio reflector
or antenna dishes with a diameter in excess of 3 metres and other types
of antennas with dimensions of which any part falls outside a box of 3
metres long, 0,4 metres wide and 0,4 metres deep, whether fitted to a pole,
mast, tower, building or any other existing structure;
(d) the establishment of new or the extension of existing cultivated
agricultural fields in excess of 500 square metres;
(e) the transformation or removal of indigenous vegetation in excess
of 500 square metres;
(f) the development or redevelopment of areas for the purposes of residential,
mixed, commercial, retail, industrial, agri-industrial, institutional and
educational use.
CHAPTER 5: ENVIRONMENTAL MANAGEMENT FRAMEWORKS
25. Purpose of environmental management frameworks
(1) The Minister or MEC may use an approved or adopted environmental
management framework to inform any decision regarding the identification
of a geographical area in which specified activities may not commence without
an environmental authorisation or in which a specified activity may be
excluded from requiring an environmental authorisation.
(2) The purpose of any environmental management framework that is submitted
to the Minister or MEC for approval or to Cabinet or an Executive Council
for adoption must be to ?
(a) assess and document the environmental attributes of a defined geographical
area in sufficient detail to enable the Minister or MEC to make an informed
decision regarding the need for environmental authorisation in respect
of specific activities;
(b) identify conservation and environmental management priorities within
a defined geographical area to facilitate the implementation of measures
that support the management of such priorities;
(c) identify specific areas or aspects within a defined geographical
area that should be managed or protected;
(d) identify environmental considerations that should be taken into
account in the formulation of strategic development frameworks and integrated
development plans;
(e) provide information in respect of land uses that are, or are not,
appropriate for the area, having regard to the environmental attributes
of the area; and
(f) facilitate co-operative governance with respect to decision-making
and the management and protection of the environment.
26. Compilation of environmental management frameworks
(1) The process for developing an environmental management framework
must include as a minimum -
(a) a terms of reference that is developed on the basis of the requirements
of the competent authority, the relevant local authority or authorities,
other organs of state that have an interest in the contents of the environmental
management framework and the public;
(b) an assessment of the status quo in respect of environmental resources
and development in the geographical area in question;
(c) the determination of environmental management framework parameters
that are based on -
(i) an identification and assessment of alternatives or potential development
scenarios in the area;
(ii) an identification of relevant strategic issues and objectives;
and
(iii) an identification of potentially competing interests in respect
of the access to or utilisation of environmental resources and an assessment
of how such interests can be balanced, if at all.
(d) a public participation process that provides for -
(i) notification to the public of the intention to develop an environmental
management framework and information regarding the manner in which the
public may participate;
(ii) the dissemination of information in respect of the proposed contents
of the environmental management framework to the public;
(iii) the opportunity for interested and affected parties to provide
input to, comment on, or raise issues in respect of, the process and contents
of the proposed environmental management framework;
(iv) response mechanisms for communicating how comments made by the
public have been considered and addressed; and
(v) the communication of the results of the environmental management
framework to the public and stakeholders.
27. Contents of environmental management frameworks
(1) An environmental management framework that is submitted to the
Minister or MEC for approval or adoption must contain ?
(a) a description and map of the area that is the subject of the environmental
management framework;
(b) a comprehensive description of the process followed in compiling
the environmental management framework report including a description of
the public participation process followed;
(c) an assessment of the status quo of environmental resources and
development pressures in the area;
(d) proposed environmental management parameters and guidelines for
the assessment of proposed activities in the area;
(e) a determination of environmental control zones in the area and
control mechanisms for each zone based on the sensitivity of the environment;
(f) an indication of activities that will be managed in terms of the
environmental management framework and measures that will be used to make
the provisions of the environmental management framework binding, if at
all; and
(g) a zoning of the area in respect of specific activities in a manner
that will identify ?
(i) areas in which an activity should be allowed to take place without
further investigation;
(ii) areas in which the undertaking of a specific activity may be allowed
subject to an environmental authorisation being granted in terms of these
regulations; and
(iii) areas in which the undertaking of a specific activity should
not be considered;
(h) a strategy for the implementation of the environmental management
framework including an indication of how the environmental management framework
will facilitate administrative efficiency and co-operative governance;
(i) an indication of the intervals when the environmental management
framework will be reviewed; and
(j) any other requirements specified by the competent authority.
28. Approval and adoption of environmental management frameworks
(1) An environmental management framework that is compiled by a competent
authority must be adopted by Cabinet or an Executive Council as the case
may be.
(2) An environmental management framework that is developed by an organ
of state, other than the competent authority, must be approved by ?
(a) the MEC of the province in which the geographical area, that is
the subject of the environmental management framework, is located;
(b) the Minister, in consultation with the MEC, where the environmental
management framework includes activities contemplated in section 24C(2)
of the Act.
(3) An environmental management framework that is approved by the Minister
or MEC must be reviewed, and if necessary revised, at intervals not exceeding
five years and the revised environmental management framework submitted
to the Minister or MEC for approval.
(4) Any environmental management framework that is approved by the
Minister or MEC or adopted by Cabinet or an Executive Council must be published
in the relevant Gazette and be available in a user-friendly format to the
public.
CHAPTER 6: COMPLIANCE AND ENFORCEMENT
29. Compliance and enforcement
(1) The provisions of Chapter 7 of the Act shall apply to these regulations,
as read with the necessary changes.
(2) The competent authority may require the holder of an environmental
authorisation or exemption to submit an environmental audit report if the
competent authority reasonably suspects that the holder of an environmental
authorisation or exemption has on one or more occasions contravened the
conditions of the environmental authorisation or exemption and that the
contravention or contraventions have caused, or are likely to cause, harm
to the environment.
(3) An environmental audit report required in subregulation (2) must
be submitted in a form and within a time period indicated by the competent
authority.
(4) The competent authority may require the holder of an environmental
authorisation to appoint an independent person approved by the competent
authority to undertake the environmental audit.
30. Use of information or statements
Any information or statements supplied to the competent authority as
required by these regulations or the Act, may be taken into consideration
by the competent authority and used for the purposes of these regulations
or the Act.
31. Offences
(1) In addition to any offences contained in the Act, a person shall
be guilty of an offence if that person ?
(a) commences or undertakes an activity listed in regulation 22 or
23 without obtaining environmental authorisation or exemption from requiring
such authorisation from the competent authority;
(b) contravenes or fails to comply with a condition of an environmental
authorisation or exemption;
(c) is a holder of an environmental authorisation and that person transfers
ownership of the property on which an activity that is authorised in terms
of these regulations is undertaken or transfers the ownership of the activity
without drawing the requirements of the environmental authorisation to
the attention of the new owner;
(d) fails to submit an environmental audit report required in terms
of regulation 29(2); or
(e) supplies false or misleading information in respect of an application
for environmental authorisation, exemption or transfer of an environmental
authorisation.
(2) Any person who fails to submit information or submits false or
misleading information during the compilation of the audit shall be guilty
of an offence, whether or not the information, or failure to furnish the
information, might incriminate that person.
32. Penalties
The penalties as prescribed in the Act, as amended, will be applicable
to these regulations.
CHAPTER 7: APPEALS
33. Appeal
(1) Any affected person may appeal against a decision as provided for
in the Act.
(2) An appeal must be made within 30 days after ?
(a) the decision of the competent authority forming the subject of
the appeal is received by the applicant; or
(b) notice of the decision forming the subject of the appeal has come
to the attention of the appellant or has been sent to the appellant by
the applicant.
(3) Any applicant who appeals a decision must give a copy of his appeal
to all registered interested and affected parties.
(4) The competent authority must furnish a copy of any appeal received
from a person other than the applicant to the applicant.
(5) Any person receiving notification of an appeal in terms of subregulation
(3) or (4) shall be entitled to submit a response to the appeal to the
Minister or MEC within 30 days after the notification has been received.
(6) An appeal shall be made in writing and shall at least contain ?
(a) the name of the appellant;
(b) the grounds of the appeal;
(c) any supporting documentation which is referred to in the appeal
and which is not in the Minister or MEC’s possession;
(d) proof that a copy of the appeal has been given to all registered
interested and affected parties, where the appellant is the applicant for
an environmental authorisation or exemption; and
(e) any other information specified in a guideline published by the
competent authority.
(7) After receipt of an appeal, the Minister or MEC must -
(a) acknowledge receipt of the appeal within 10 days;
(b) advise the appellant if the environmental authorisation or exemption,
or any provisions or conditions attached thereto, which are the subject
of the appeal are suspended during the consideration of the appeal;
(c) advise the appellant, or other persons who have responded to the
appeal ?
(i) of the process that will be followed;
(ii) whether further information is required; and
(iii) if the appeal will be referred to an appeal panel.
(8) An appeal panel appointed by the Minister must comprise of people
who are appropriately qualified to consider the appeal and to make recommendations
to the Minister or MEC.
(9) The Minister or MEC must furnish an appeal panel with a written
description of the issues in respect of which recommendations must be made
and the powers of the appeal panel.
(10) The Minister or MEC must reach a decision within 60 days of being
in possession of all the relevant information, including any recommendations
of an appeal panel, which he requires to reach a decision, unless the Minister
or MEC has, in writing and with the furnishing of reasons, notified the
appellant and other persons who have responded to the appeal that a different
time period will be applied.
(11) A decision of the Minister or MEC must be in writing and must
indicate ?
(a) the reasons for the decision; and
(b) the extent to which the decision being appealed against is upheld
or overturned.
CHAPTER 8: GENERAL MATTERS
34. Exemptions
(1) Any person may apply, in writing, to the competent authority for
exemption from the application of any provision of these regulations other
than a public participation process, in respect of a specific activity.
(2) An application for exemption shall comply with any written guideline
that the competent authority has produced to facilitate administrative
efficiency, consistency in applications and informed decision-making.
(3) An application in terms of subregulation (1) must be accompanied
by reasons.
(4) The competent authority must acknowledge receipt of the application
for exemption within 14 days.
(5) The competent authority may require the applicant to furnish further
information or to take such steps as may be specified by the competent
authority if it is necessary to inform the consideration of the application.
(6) The competent authority must require an applicant applying for
exemption to take steps specified by the competent authority to bring the
application to the attention of relevant organs of state, interested and
affected persons and the public and to provide such persons with an opportunity
to submit comments on the application where a decision to grant exemption
may adversely affect the rights of any person.
35. Consideration of exemption applications
(1) When considering an application for exemption, the competent authority
must consider the requirements of sections 23 and 24(1) of the Act and
the provisions of regulation 18, read with the necessary changes that it
considers to be relevant.
(2) The competent authority must, after considering an application
for exemption, within 60 days of receiving comments on the application
and in writing ?
(a) refuse to grant exemption or grant exemption from compliance with
any or all of the provisions of these regulations, subject to such conditions
as it may deem fit;
(b) notify the applicant of the decision;
(c) give written reasons for the decision;
(d) draw the applicant’s attention to the provisions contained in these
regulations regulating appeal procedures;
(e) instruct the applicant to notify all registered interested and
affected parties of the competent authority’s decision and the provisions
regulating appeal procedures contained in these regulations within a determined
time period; and
(f) issue a letter of exemption where the decision of the competent
authority is to grant exemption, provided that where the competent authority
grants exemption, the information specified in subregulation (b), (c),
(d) and (e) may be included in the letter of exemption.
(3) An exemption must specify-
(a) the name, address and telephone number of the applicant to whom
the exemption is granted;
(b) a description of the activity in respect of which exemption was
applied for;
(c) the regulation or regulations that the applicant is exempted from
complying; and
(d) conditions of the exemption, if any.
36. Authorisation of mining activities
Any process followed or document prepared for the purposes of complying
with these regulations by an applicant who intends undertaking a mining
activity or on such applicant’s behalf shall be deemed to comply with the
requirements of the Mineral and Petroleum Resources Development Act, 2002
(Act No. 28 of 2002), provided that the competent authority has consulted
with the Department of Minerals and Energy in respect of that department’s
requirements prior to approving any process or accepting any document.
CHAPTER 9: MISCELLANEOUS
37. Limitation of liability
Neither the State nor any other person is liable for any damage or
loss caused by-
(a) the exercise of any power or the performance of any duty under
these regulations; or
(b) the failure to exercise any power, or perform any functions or
duty under these regulations;
unless the exercise of or failure to exercise the power, or performance
or failure to perform the duty was unlawful, negligent or in bad faith.
38. Repeal of regulations
The regulations passed in terms of the Environment Conservation Act,
1989 (Act No. 73 of 1989) in Government Notices R. 1182, R. 1183 and R.
1184 of 5 September 1997, as amended, are hereby repealed.
39. Transitional arrangements
(1) The transitional arrangements as prescribed in the Act are
applicable to these regulations.
(2) The provisions contained in these regulations in respect
of the competent authority’s powers to require an applicant to provide
financial or other security may not be exercised until the Minister or
MEC has published further regulations or a guideline on the exercise of
such powers after consultation with the Minister of Finance.
40. Commencement
These regulations commence on a date determined by the Minister by
notice in the Gazette.