New EIA regulations

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ENVIRONMENTAL IMPACT ASSESSMENT REVISED
REGULATIONS IN TERMS OF THE NATIONAL
ENVIRONMENTAL MANAGEMENT ACT, 1998 (ACT NO. 107
OF 1998)
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Presenters

• Dave Rudolph
• Strategic Environmental Focus (Pty) Ltd

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How to participate

• Be courteous at all times
• One speaker at a time
• Introduce yourself
• Focus on the issue not the individual
• No interruptions
• Please keep questions until the end of the
  presentation
• All questions comments to be directed through
  the Chairperson
• No long debates
• Give a fair chance to all

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Programme of information sessions
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Agenda
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Background

• EIA is one of the key tools for enabling
  sustainable development in South Africa
• Predict environmental consequences of proposed
  activities for decision-making, to ensure that
  resources are soundly managed
• For many years, considered part of Integrated
  Environmental Management, but not legislated
• Legislated in 1997 in terms of Environment
  Conservation Act, 1989

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Background cont..

• Sections 21, 22 26 of ECA enable EIA
  regulations
• EIA regulations (GN R 1182, 1183 1184)
  promulgated in September 1997
• Various amendments made to EIA regulations, most
  recent in May 2002
• NEMA promulgated in 1998 and to replace ECA
• Development of new EIA regulations commenced in
  2000

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Total EIAs to date
43,423 EIA processes between September 1997
March 2006
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Need for New Regulations

• Wide interpretation of activities could result in
  inconsistent application by authorities
• Too many small scale / insignificant activities
  made subject to EIA
• Lengthy and inflexible process, with too many
  authority stops / decision points
• Inadequate requirements for public participation
• Not supported by strategic planning tools
• Enforcement measures generally weak

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Need for New Regulations cont..

• The current process does not always ensure that
  the necessary information for decision-making is
  submitted
• The current list of activities requires amendment
• There are concerns that the current regulations
  cause unnecessary delays for development

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Improvements
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Improvements cont..
13
Improvements cont..
14
Improvements cont..
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Whats new?

• Two categories of activities Basic Assessment
  (Notice 1) and Environmental Assessment (Notice
  2)
• Public participation can commence before applying
  (Basic Assessment)
• Specified requirements for amendment of
  authorisations
• Terms of reference for EIA included in Scoping
  Report, no longer separate plan of study
• Clarification of independence of EAP

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Whats new? cont..

• Exclusions based on Environmental Management
  Frameworks
• Compliance and enforcement strengthened
• Cooperation agreements between authorities
• Draft Environmental Management Plans to be
  included in EIAs
• Report contents specified in detail
• Combination of applications
• Provision for amendment withdrawal of
  authorisations

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Environmental Assessment Practitioners (S. 17-19)

• Compulsory for applicant to appoint EAP
• Independence expertise required
• Must disclose all relevant information that could
  influence decision or objectivity of a document
  or report
• Disqualification
• If authority believes that EAP is not independent
• EAP informed and has opportunity to make
  representations to authority
• Authority can refuse to accept report or require
  independent review

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Determining assessment process (Regulations
20-21)

• EAP to determine relevant process
• Basic Assessment (Notice 1 Act) or Scoping EIA
  (Notice 2 Act)
• Process chosen based on
• Listing notices 1 2
• If EAP advises Scoping EIA instead of Basic
  Assessment
• If application is for 2 or more activities and at
  least one of these requires Scoping and EIA, then
  application must be subjected to Scoping EIA

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Basic Assessment (Regulations 22-26)

• Activities contained in Listing Notice 1 are
  subject to a basic assessment process
• Smaller scale activities
• Predicted impacts are generally known and can be
  easily managed
• Will be further limited through exclusions

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Basic Assessment cont..

• Response (R. 25)
• Submit additional information
• Specialist studies
• Alternatives
• Rejection
• Scoping EIA

Public participation (R. 22)
Basic assessment report (R. 23)

• Submit application (R. 24)
• Application form
• Assessment report
• Etc.

Scoping EIA
Check application (R. 14)
Grant / refuse authorisation (R. 26)
14 days
10 days
Acknowledge receipt (R. 14)
Notify applicant of decision (R. 10)
30 days
Notify IAPs of decision (R. 10)
Competent authorities must strive to meet
timeframes (R. 9)
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Scoping EIA (Regulation 27-36)

• Activities contained in Listing Notice 2 are
  subject to a comprehensive assessment process
• Activities that due to nature and/or extent are
  likely to have significant impacts
• Associated with high levels of pollution / waste
  / environmental degradation
• Impacts cannot easily be predicted
• Higher risk activities

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Scoping EIA cont..

• Response (R. 31)
• Request amendments
• Reject because
• insufficient information
• failure to consider guidelines
• Accept

• Submit application (R. 27)
• Application form
• Landowners consent

Check application (R. 14)
14 days

• EIA (R.32)
• Prepare EIA report draft EMP

Acknowledge receipt (R. 14)
60 days

• Scoping (R. 28-29)
• Public participation (incl. organs of state)
• Scoping Report
• Public comment on SR (R. 58)

• Response (R. 35)
• Reject
• Amend
• Specialist review
• Accept

45 days
45 days
Submit Scoping Report (R. 30)
Decision (R. 36)
10 days
30 days
Notify applicant of decision (R. 10)
Competent authorities must strive to meet
timeframes (R. 9)
Notify IAPs of decision (R. 10)
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Contents of EIA Reports (Regulation 32)

• EIA Report includes
• Activity description
• Site/area assessment
• Public participation
• Description of issues
• Description and assessment of alternatives (if
  any)
• Specialist studies (only if necessary)
• Specialised processes (only if necessary)
• Assessment of impacts
• Assessment of issues
• Environmental impact statement
• Draft Environmental management plan

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Authorisations (Regulations 37-38)

• Authority must
• Make a decision (grant or refuse)
• Issue single authorisation for more than one
  activity
• Authorisation must include
• Details of applicant
• Activity description
• Property description
• Conditions
• Authorisation may require
• Commencement only after certain conditions
  complied with
• Submission of compliance reports
• Submission of environmental audit report
• Any other condition

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Amendment of authorisations (Regulation 39-46)

• Authority may amend an authorisation,
• on application
• - by holder or
• - from authority
• On application by holder (Regulation 40-43)
• Official form
• Acknowledge receipt within 14 days
• Consider whether likely to affect the environment
  or rights of other parties
• Authority must promptly decide on non-substantive
  amendments timeframe not specified

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Amendment of authorisations cont..

• Application by authorisation holder
• If substantive amendments
• Public participation
• Investigation assessment
• Public comment on reports
• Submit reports
• Amendment on initiative of authority to
• prevent deterioration or further deterioration of
  environment
• achieve prescribed environmental standards
• accommodate demands due to socio-economic
  circumstances public interest

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Amendment of authorisations cont..

• Amendment on initiative of authority
• Notify holder
• Opportunity for representations
• Public participation, if necessary
• On reaching a decision, the authority must
  (Regulation 46)
• Notify the holder
• Provide reasons
• Inform of possibility of appeal
• Issue amended authorisation

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Withdrawal of authorisations (Regulations 47-50)

• Withdrawal only under certain circumstances
  (Regulation 47)
• Condition contravened
• Fraud
• Misrepresentation / non-disclosure
• Activity discontinued
• Authority must (Regulation 48)
• Notify holder
• Opportunity for representations
• Public participation, if necessary

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Withdrawal of authorisations cont..

• Suspension allowed if (Regulation 49)
• Contravention of condition is causing harm to the
  environment
• Suspension necessary to prevent harm or further
  harm
• Suspension possible before or after opportunity
  for representations by holder
• Decision (Regulation 50)
• Notify holder in writing
• Inform of possibility of appeal

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Exemptions (S. 51-55)

• Different from exemptions i.t.o. ECA
• Exemption can be considered from any provision of
  regulations
• Exemption from public participation only possible
  if rights or interests of other parties are not
  adversely affected

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Exemptions cont..
Submit application (R 52)
14 days
Acknowledgement of receipt (R. 52(2))
Adverse effects on rights or interests of other
parties
No adverse effects on rights or interests of
other parties

• Consideration (R. 53)
• May request additional information
• Advise application of any factors prejudicing
  the application

• Public participation (R 56)
• Register of IAPs
• Submit comments

10 days
10 days

• Notify applicant of decision (R. 54)
• Written exemption notice

Notify IAPs (R. 54(10(d)))
Competent authorities must strive to meet
timeframes (R. 9)
Appeal
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Public participation (S. 56-59)

• Public participation process (Regulation 56)
• Site notice boards
• Written notice to
• Adjacent owners and occupiers
• Owners and occupiers within 100m of boundary of
  site
• Ward councillor
• Municipality
• Organs of state having jurisdiction
• Adverts in one local newspaper or official
  gazette
• Provincial or national newspaper (if activity may
  have impact beyond borders of municipality)
• Requirements for content size of notices
• Exceptions for linear ocean-based activities
  to be agreed with authority

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Public participation cont..

• Register of IAPs (Regulation 57)
• Applicant or EAP must maintain register
  containing names addresses of
• Persons who submitted comments
• Persons who, after the PP process, submitted
  written requests for their names to be placed on
  the register
• All organs of state having jurisdiction
• Register accessible to all who submit written
  request

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Public participation cont..

• Registered IAPs entitled to comment (Regulation
  58)
• Must comply with timeframes
• Must provide copy of comments sent to authority
  to EAP as well
• Must declare business, personal, financial or
  other interests
• IAPs must be given opportunity to comment on all
  reports before submission to authority (BA
  reports, scoping reports, EIRs EMPs)
• IAP comments to be recorded in reports
  (Regulation 59)
• EAP must record IAP comments in reports
• IAP comments need not be recorded in a report if
  they relate to report to be submitted to authority

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Appeals (R. 60-68)
Notification of decision
10 days

• Notice of intention to appeal (R. 62)
• Notice on official form
• If applicant appeals, inform all other IAPs
  organs of state
• If appellant is someone other than applicant,
  inform applicant

• Appeal must be accompanied by (R. 63)
• Grounds for appeal
• Supporting documentation
• Statement by appellant that R. 63 has been
  complied with
• Appeal fee (not yet prescribed)

lt 30 days
Submit appeal (R. 64)

• Processing of appeal (R. 66)
• Issue direction i.t.o. R. 43(7) of NEMA
• Appoint appeal panel i.t.o. R. 43(5) of NEMA

30 days
Responding statements (R. 65)
30 days
Appeal panel (R. 67) - optional
Answering statement to new information introduced
(R. 65 (2)(b)) when applicable
10 days

• Decision (R. 68)
• Notify appellant each respondent

Acknowledge receipt (R. 66(1))
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Environmental Management Frameworks (R. 69-72)

• Regulations prescribe process for compiling EMF
  and set minimum requirements for content
• Strategic tool where a geographical area is
  assessed
• Status quo study in terms of inter alia
  biophysical environment, built environment and
  planned environment
• Desired state of environment defined
• Road map established to reach and maintain
  desired state of environment

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EMFs cont..

• EMF consist of various environmental control
  zones environmental management plan and
  environmental management policy
• Certain pre-determined activities when aligned
  with control zones, EMP and EM Policy are then
  excluded from EIA requirements
• EMF also useful as environmental input into
  SDFs, Precinct plans, etc.

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Guidelines (Regulations 73-76)

• Guidelines
• National and provincial
• Drafts in gazette for comment
• Not binding, but must be taken into account
• by EAPS authorities

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Transitional arrangements (Chapter 9)

• Anything done i.t.o. previous regs remains valid
• Authorisations issued i.t.o. previous regs
  regarded to be issued under new regs
• Applications and appeals pending under ECA to be
  completed i.t.o. ECA
• Existing guidelines that have been adopted before
  new regulations take effect regarded to be
  guidelines in terms new regulations

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General provisions

• Reckoning of days (S. 1(2))
• Reckoned from start of day following a particular
  day to end of last day of the period
• If last day of the period falls on a Saturday,
  Sunday or public holiday, the period must be
  extended to the end of the next day which is not
  a Saturday, Sunday or public holiday
• Submitted today, starts running tomorrow until
  day 30. If day 30 is Sa, Su, PH next work day

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General provisions cont..

• Lapsing of application or appeal (Regulation 77)
• Appeal or application lapses if applicant or
  appellant fails to comply with a requirement of
  these regulations within 6 months of submitting
  application or appeal
• Resubmission of similar applications (Regulation
  78)
• Applicant may not resubmit application
  substantially similar to previous application
  that has been refused, unless
• 3 years has lapsed since refusal of previous
  application
• New application contains new information

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General provisions cont..

• Compliance monitoring (Regulation 79)
• Authority may request holder of authorisation or
  exemption to explain alleged contravention or
  non-compliance
• Authority may request environmental audit report
• Authority may request audit report to be prepared
  by independent person
• Holder of authorisation or exemption liable for
  all costs
• Authority may appoint auditor and recover costs
  if holder of authorisation or exemption fails to
  do so

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General provisions cont..

• Assistance to people with special needs
  (Regulation 80)
• Authorities, Minister and MECs must give
  reasonable assistance to person who is unable to
  comply with a requirement of the regulations due
  to
• Lack of skills to read or write
• Disability
• Any other disadvantage

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General provisions cont..

• Offences (Regulation 81)
• Supplying false / misleading information
• Failure to disclose information
• Failure to submit audit report
• Failure to comply with conditions of exemption
• Continuation with activity if authority has
  withdrawn authorisation
• Penalties in terms of NEMA section 24F

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Way forward

• Implementation documents
• DEAT has drafted four guidelines
• Process flow (administrative)
• Assessment of impacts and alternative
• Environmental Management Frameworks
• Public participation
• EMF and PP published for comment
• Expected completion date July 2006
• Application form and BA report finalised
• To be made available in print and on DEAT website

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Way forward

• Implementation documents
• Various templates and guidelines drafted
• to be shared between authorities
• Official EIA gazette planned
• All EIA related publications
• Initial discussions held with GPW

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Way forward

• Implementation documents (cont)
• Registration of EAPs
• Not compulsory
• Work in progress
• EIA regulations companion
• Booklet format
• EIA regulations in laymens terms

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• Questions answers