South Africa: New Environmental Law Regulations

In the face of South Africa’s obligations ahead of the World Cup in 2010, the country’s proposed economic growth targets and other developments that have attracted public attention, such as the Gautrain and pebble bed nuclear reactors, developments throughout the country are attracting more attention from the point of view of the impact that such developments may or may not have on the environment. Environmental concerns, in the context of such developments, are thus becoming more important and attracting more public attention. The regulations that are now proposed, for the purposes of regulating environmental impact assessments, will be an increasingly important element of any development. South Africans are becoming increasingly aware of their environment and the impact that a development has on the environment. This awareness is reflected, to a degree, in the new environmental impact assessment regulations. This edition of EnviroWerks explores the proposed regulations ahead of the commencement date of these regulations on 3 July 2006.

The Department of Environmental Affairs ("the Department") has taken another step towards ensuring that environmental concerns are fully addressed when doing business in South Africa. Regulations to the National Environmental Management Act No. 107 of 1998 ("the Act"), which will come into effect on 3 July 2006, prescribe far-reaching amendments to the current organization and application of environmental impact assessments ("an environmental assessment"). An environmental assessment is necessary before undertaking certain projects or developments that are identified in the regulations and which projects or developments may, without proper control, adversely affect the environment.

To date the environmental assessment application process has been riddled with delays and problems. The blame for these delays has been placed on severe capacity restraints within the Department and the inadequacies of the previous regulations relating to environmental impact assessments. The Department has stated, in its presentation accompanying the regulations, that the scope of activities covered by the previous regulations was too wide resulting in an inconsistent application by authorities. Accordingly, the new regulations are streamlined and designed to narrow the spectrum of activities that are subject to an environmental assessment by differentiating between different types of assessments for different kinds of activities. For example, an application for the construction of a small sports facility is subject to a basic assessment while large projects, which are more likely to have a more significant adverse impact on the environment, are subject to an extensive "scoping" process. Higher risk activities, such as mining activities, are therefore subjected to a thorough and more comprehensive assessment process.

In terms of the new regulations, a number of significant changes are introduced into the assessment application process -

• the applicant must appoint an environmental assessment practitioner who is independent, objective and who has the required expertise. If the competent authority is of the view that the practitioner managing the application is not independent, it may, subject to appeal, refuse to accept any reports from such practitioner and require an external review or complete revision of the work at the applicant's cost;
• the environmental assessment practitioner has the responsibility, under the new regulations, to consult extensively with interested and affected parties in order to facilitate proper public participation;
• time frames are now prescribed in order to speed up the assessment application process. In this regard, the Department or responsible provincial government must acknowledge receipt of the application within 14 days of receipt of the application and then has 30 days to either grant or refuse an environmental assessment authorisation;
• an applicant who intends to undertake more than one activity, as part of the same development, is required to submit a single application for all the activities comprising a particular project or development;
• the compliance and enforcement provisions of the regulations have been strengthened. A person who provides incorrect or misleading information in an application or who fails to comply with the regulations or continues an activity without an authorisation, is now subject to a maximum of two years imprisonment or a corresponding fine determined by the Minister of Justice;
• the new regulations provide that the competent authority is now entitled to have access to all information that may reasonably or potentially have an impact on or influence any decision it takes. The applicant must, on request by the competent authority, disclose such information, unless the information is protected by law.

The new regulations also introduce new activities that are subject to the environmental impact assessment process. The previous list of activities merely included 11 categories and sub-categories. However, the new regulations create two separate lists; one dealing with activities requiring basic assessments and the other dealing with activities that require comprehensive scoping. Thresholds have also been designed in order to differentiate between the types of assessments. For example, construction of facilities for the generation of electricity, where the output is more than 10 megawatts but less than 20 megawatts, are subject to a basic assessment, while any facility generating more than 20 megawatts of electricity is subject to a comprehensive scoping process.

New activities that are subject to basic assessments include the construction of sports facilities with a capacity of more than 8 000 people, the construction of a road wider than 4 metres or the transformation of undeveloped, vacant or derelict land in order to establish urban development. The last-mentioned of these activities includes residential, commercial, retail, institutional, educational and mixed-use development in a built-up area that is at least 50% abutted by urban development. Activities that fall exclusively within the ambit of "scoping" include the construction of petrol filling stations or any other facility for the underground storage of dangerous goods and the refining of gas, oil and petroleum products.

The regulations do allow an applicant to apply to the competent authority for an exemption from certain provisions of the regulations in respect of a specific activity. An exemption will only be granted by a competent authority if the rights and interests of other parties are not likely to be adversely affected.

The regulations also set out certain minimum requirements regarding interested and affected parties. The person conducting the public participation aspect of the application process must give notice to all interested and affected parties of any project or development identified in the regulations. In terms of the regulations, such persons include -

• the owners or occupiers of land adjacent to the project or development site;
• the municipal councillor of the ward in which the site is situated;
• any organisation of ratepayers that represents the community in the area in which the site is located;
• the municipality that has jurisdiction over the area in which the site is located; and
• the organ of state that has jurisdiction in respect of the activity that it is proposed be conducted on the site.

Additional obligations that are imposed upon the person interacting with interested and affected parties include primarily the following -

• advertisements must be placed in provincial and national newspapers if the activity will have an impact that extends beyond the boundaries of the metropolitan area in which the activity is undertaken;
• the applicant or environmental assessment practitioner must open and maintain a register that contains the names and addresses of the interested and affected parties who are entitled to comment on all written submissions made to the competent authority;
• the environmental assessment practitioner managing the application must ensure that all comments made by interested and affected parties are recorded in the reports that are submitted by any applicant, in terms of the regulations, to the competent authority.

The regulations will come into effect on 3 July 2006 except for those regulations relating to mining activities, which will only come into force at a date yet to be fixed. This delay is due to the required reforms needed to implement an effective assessment system in the mining sector.

In the interim, transitional arrangements are provided for in Chapter 9 of the regulations. Anything done or any authorisation, issued in terms of the previous regulations and which is in force when the new regulations take effect, will be regarded as being authorised in terms of the regulations. Any pending applications or appeals must still be dispensed with in terms of the previous regulations, as if they have not been repealed.

The provisions of the Act allow any person or group of persons to seek appropriate relief in respect of any breach or threatened breach of any statutory provision concerned with the protection of the environment or the use of natural resources. Therefore a person or a group of persons, in its own interest of or on behalf of another, in the public interest or merely in the interest of protecting the environment may bring a company or person to court, for not complying with any applicable environmental legislation.

A court has the discretionary power to enquire into and assess the monetary value of the loss or damage caused to the environment or the costs likely to be incurred in rehabilitating the environment. A court may order the transgressor to be liable to pay the reasonable costs incurred. These provisions of the Act will also apply to the regulations.

The liability of a person who does not comply with the Act or the regulations is severe. No person can commence with any activity listed in the regulations unless the competent authority has granted permission in respect of such an activity. It is an offence if a person proceeds with the activity without the required authorisation to do so. A person convicted of such an offence is liable to a fine not exceeding R5 million or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment.

Any person who is or was a director of a company at the time of the commission by that company of an offence shall personally be guilty and liable on conviction to the penalty specified in the relevant law. The court may also declare any item that was used for the purpose of or in connection with the commission of the offence to be forfeited to the State. These penalty provisions apply to a body incorporated in terms of any law, including a partnership.

While the regulations provide some clarity on the types of activities that are to be regulated and the extent to which these activities are regulated, there seems to be a considerable overlap between the lists. Certain activities are included in both lists, such as mining exploration and reconnaissance and it will be up to the Department to explain which assessment process in the regulations, applies to which activity.

The regulations will have an extensive impact upon many businesses, especially those in the mining and property industries. The potential costs and the consequent liability, should a company fail to comply with the regulations, are extremely onerous.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.