02 AUGUST
2010
South Africa’s new Environmental Impact
Assessment (EIA) regulations come into effect
today, 02 August 2010, signaling the start
of the official implementation process of
a new regime aimed at improving the efficiency
and effectiveness of EIA.
EIA is a pro-active
and systematic process where potential environmental
impacts both positive and negative associated
with certain activities are assessed, investigated
and reported. The process contributes to
giving effect to the objectives of integrated
environmental management as decision makers
are informed of the desirability of such
activities and on the conditions which authorization
of the activity should be subject to, where
relevant.
The new revised regulations
are the result of a substantial consultative
process and were published by Minister of
Water and Environmental Affairs, Buyelwa
Sonjica in Government Gazette 33306 of 18
June 2010. The NEMA EIA 2010 regulations
and the listing notices thereto replace
the National Environmental Management Act
(NEMA) EIA regulations of 2006 and its associated
listing notices.
These regulations signify
an important step towards a more efficient
and effective EIA system, in that apart
from aligning the 2006 Regulations with
the new and improved Act, the 2010 EIA Regulations
seeks to streamline the EIA process. It
also introduces an approach where impacts
associated with the sensitivity of the receiving
environment are treated with more care -
this is achieved through the introduction
of a Listing Notice dedicated to activities
planned for predefined sensitive areas.
The lists of activities
requiring environmental authorization prior
to commencement have also been revised.
This was a major focus of the amendment
process as the EIA system was inter alia
overburdened by large numbers of applications
associated with insignificant activities;
the comprehensive scoping and EIR process
with its associated substantial costs was
in some instances unjustifiably required
for activities for which the impacts were
known and thereby potential entrepreneurs
could be excluded from the economy; and
some critical activities were omitted.
Three listing notices
have been published in conjunction with
the new regulations.
Listing notice one (1)
stipulates the activities requiring a basic
assessment report (BAR). These are typically
activities that have the potential to impact
negatively on the environment but due to
the nature and scale of such activities,
these impacts are generally known. Listing
notice two (2) identifies the activities
requiring both Scoping and an Environmental
Impact Report (EIR) these are typically
large scale or highly polluting activities
and the full range of potential impacts
need to be established through a scoping
exercise prior to it being assessed. The
construction of facilities for the storage,
or storage and handling of dangerous goods
with a combined capacity of 500m3 or more
both above and underground storage will
require Scoping and an EIR and not a BAR.
Listing notice three (3) contains activities
that will only require an environmental
authorisation through a basic assessment
process if the activity is undertaken in
one of the specified geographical areas
indicated in that listing notice. Geographical
areas differ from province to province.
An example of such a listing will be cell
phone masts.
In terms of timeframes
for handling EIAs, where there previously
was no consequence for the authority when
it does not meet the regulatory time frames,
it is now compelled to reach a decision
on the information it has after a reasonable
prescribed extension to the regulated time
frames have lapsed. It should however be
emphasized that the regulated time frames
have not been extended and it will be indicated
that the time frame has not been met even
if the decision is forth coming in the extension
automatically obtained.
In terms of public consultation
amendments have been effected to ensure
a fair process. For example, the period
from 15 December to 02 January has been
excluded from public consultation processes
and in the counting of days for both decisions
and lodging of appeals, etc. Another example
of an amendment aimed at improving public
consultation and access to the EIA processes
is that a provision has been added requiring
that a decision to grant or refuse an application
must be published in the same newspaper
as was used during the public participation
process. The new regulations now take into
account the amendments made to NEMA and
provide for section 24O of NEMA (40 days
for organs of state to comment) and 60 days
for Water Affairs if the application is
for a waste activity. In addition land owner
consent has been replaced with land owner
notification.
The regulations also
contain very clear transitional arrangements
that address all potential scenarios both
in terms of decisions reached in terms of
the EIA Regulations of 1997 and that of
2006, pending applications from either these
regimes that are no longer listed, pending
applications that remain listed either in
the exact same format or that are similar
to newly listed activities etc. These transitional
arrangements clearly spell out the status
of authorizations received prior to the
coming into effect of the 2010 Regulations
as well as processes for withdrawing applications
for activities no longer listed.
Although mining activities
have been listed and certain powers given
to the Minister of Mineral Resources, these
provisions and listings have not been brought
into effect as it is not yet empowered by
either the National Environmental Management
Act or the Mineral Petroleum Resources Development
Act.
In terms of the Environmental
Management Framework provisions that previously
formed part of the 2006 EIA Regulations,
the amendment to the Act that now recognize
EMFs as an environmental instrument in its
own right has resulted in standalone EMF
regulations which have been published on
18 June and which will also come into effect
on 2 August 2010
To access the new regulations
visit http://www.environment.gov.za/EIM%20WEBSITE/eim_page.html
Part 1 - (pages 1-50)
http://www.environment.gov.za/EIM%20WEBSITE/NEMAp1.pdf
Part 2 - (pages 50-100)
http://www.environment.gov.za/EIM%20WEBSITE/page2.pdf
Part 3 (pages 100-150)
http://www.environment.gov.za/EIM%20WEBSITE/page3.pdf
Part 4 (pages 150-200)
http://www.environment.gov.za/EIM%20WEBSITE/page4.pdf
