The NEMA Environmental Impact Assessment Regulations by Ieptieshaam Bekko

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The NEMA Environmental Impact Assessment
RegulationsbyIeptieshaam BekkoAlvan
GabrielDepartment of Environmental Affairs and
Development Planning
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The NEMA EIA regulations was promulgated on 21
April 2006 in Government Gazette No 8453 - GN
385, 386 and 387.The regulations came into
effect on 3 July 2006 and repealed the ECA EIA
regulations.
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The NEMA EIA process

• GN No. R. 385
• BASIC ASSESSMENT
• Activities identified ito GN No. R. 386
• SCOPING EIA
• Activities indentified ito GN No. R. 387
• Advised by DEADP
• Permission granted to follow Scoping EIA
• application is for two or more activities and
  Scoping must be applied in respect of any of the
  activities

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Environmental Assessment Practitioners (EAPs)

• 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
• Role of exemptions
• Registration of EAPs

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Basic assessment Process

• Notify Authority (form) (R. 22)
• Basic information
• Indicate if exemption will be applied for

Authority response and advice (R 5)

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

Public participation (R. 22 and 56)
Basic assessment report (R. 23)

• Submit application (R 24)
• Application form
• Assessment report
• Exemption application (R 52)

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)
10 days
30 days
Notify IAPs of decision (R. 10)
Competent authorities must strive to meet
timeframes (R. 9)
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Scoping/EIA process

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

• Submit application (R. 27)
• Application form
• Landowners consent
• Indicate if exemption will be applied for (part
  of application from)

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

Check application (R. 14)
14 days
Acknowledge receipt (R. 14)
Submit EIA Report
60 days

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

• Authority 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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Exemptions

• Any person to whom a provision of these
  Regulations applies may apply for an exemption
  from such provision in respect of a specific
  activity - R. 51(1)
• A person may be exempted from a provision of
  these Regulations requiring or regulating a
  public participation process, only if the rights
  or interests of other parties are not likely to
  be adversely affected - R. 51(2)

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Exemptions (cont)

• Cannot be exempted from having to obtain
  environmental authorisation
• PP will always have to be undertaken
• Exemption decisions
• No timeframes
• Can be appealed The MEC may direct (ito S43(7))
  that an appeal against an exemption will suspend
  an application process until such time that a
  decision has been taken on the appeal.

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Exemption application process
Submit a separate application for exemption (R
52)

• Notify authority of intention to apply
• Part of intent to apply for basic assessment
• Part of application for Scoping/EIA

14 days
Acknowledgement of receipt (R. 52)
Authority advises applicant (R. 5) on the
appropriateness of exemption
Adverse effects on rights or interests of other
parties

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

No adverse effects on rights or interests of
other parties

• Public participation (R 56)
• Submit comments report

No timeframe

• Authority consider report

10 days
10 days
Integrate public participation requirement for
exemption application as part of Basic Assessment
or Scoping/EIA processes

• Notify applicant of decision (R. 54, or R. 26. or
  R. 36, and R. 10)
• A separate written exemption notice

• Exemption notice is part of authorisation of
  Basic Assessment or Scoping/EIA Application

Notify IAPs (R. 54, or R. 26. or R. 36, and R.
10)
Competent authorities must strive to meet
timeframes (R. 9)
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Cooperative governance

• Regulation 6
• Where an application must also be made in terms
  of other legislation that require substantially
  similar information or procedure to be carried
  out, the MEC must take steps to enter into a
  written agreement with the other authority to
  co-ordinate requirements avoid duplication

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Cooperative governance (cont.)

• For example, the following listed activities
  trigger the need for cooperation with several
  other authorities
• Mining cooperation with DME required.
• Emissions - cooperation with DEADP Pollution
  and Waste required
• Establishment of waste disposal sites
  cooperation DEADP Pollution and Waste required
• Construction of waste water treatment works
  Cooperation with DWAF required.
• Removal of natural vegetation for agricultural
  fields cooperation with Dept of Agric (nat. and
  prov.) needed.
• Subdivisions cooperation with Dept of Agric and
  local authorities required
• Large development cooperation with local
  authorities needed

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Public Participation requirements

• Public participation process (R. 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 (EIA)
  gazette
• Provincial or national newspaper (if activity may
  have impact beyond borders of municipality)
• Requirements for content size of notices
• Registered IAPs entitled to comment (R. 58)
• Must comply with timeframes (30 days in all
  instances - PAJA)
• 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 and the
  EAP must record IAP comments in reports

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Appeal provisions

• Appeal provisions (R. 60 68)
• What decisions can be appealed?
• Authorisations/refusals
• Exemptions
• Amendment of decisions
• Withdrawal of authorisations
• Who can appeal? any affected party
• To whom should notices and appeals be submitted?
• No appeal against the Minister or MEC decision
• Do appeals suspend the EIA? - Yes

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Appeal provisions (cont.)
Notification of decision
10 days

• Notice of intention to appeal (R. 62)
• Notice on official form and questionnaire
• 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

lt 30 days
Submit appeal to Ministry (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)
• No timeframe
• Notify appellant each respondent

Acknowledge receipt (R. 66(1))
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Amendment of authorisations

• Ability to amend authorisations on application by
  holder or at authoritys initiative (R 44 - 46)
  
• The extent of the process to be followed depends
  on whether amendment is likely to affect the
  environment or rights of other parties.
• Substantive amendment require public
  participation process
• If not substantive amendments a shorter
  process is followed

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Withdrawal of Authorisations

• Withdrawal only be considered under certain
  circumstances (R. 47)
• Condition contravened
• Fraud
• Misrepresentation / non-disclosure
• Activity discontinued
• Criminal proceeding not excluded when
  authorisations are withdrawn

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Environmental Management Plans

• Environmental Management Plans (R. 34)
• Draft EMPs submitted as part of the environmental
  impact assessment report
• Contents detailed

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Compliance monitoring and Offences

• Compliance Monitoring (R. 79)
• An audit report may be requested if the authority
  suspects contravention or failure of the ROD
  conditions that caused, or may cause, harm to
  the environment
• The holder of an authorisation liable for costs
• Failure to submit audit reports authority can
  appoint EAP to have audit undertaken
• Offences (R. 81)
• It is an offence to
• Provide misleading information
• Withhold information
• Fail to submit an audit report
• Continue with an activity after the RoD was
  withdrawn
• Convictions - Penalties in terms of Section 24F
  of NEMA

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Guidelines

• National and Provincial Guidelines (R. 73 76)
• DEADP Guidelines on
• Transitional Arrangements
• Public Participation
• Alternatives
• Exemptions
• Appeals
• Interpretation of the Listed Activities
• Public comment and gazetting
• Legal status of guidelines not binding but to
  be taken into account
• Existing guidelines (that have been adopted by
  the MEC before new regulations take effect) will
  be regarded to be guidelines in terms new
  regulations (R. 85)

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Other provisions

• Cost Recovery
• Regulations makes provision for charging
  application fees and recovering of costs
• Transitional Arrangements (R. 82 - 85)
• 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
• Class Application
• Different activities as part of the same
  development
• Same activity on different sites/properties

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Summary of aspects contained in the regulations
and NEMA intended to streamline the EIA process

• Predetermined process (basic assessment of
  Scoping/EIA)
• Class applications
• Exemptions
• Timeframes for decision-making
• EMPs part of EIA process before decision-making
• Possibility of amending Authorisations
• Environmental Management Frameworks
• Through the Supplementation project

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Listed Activities

• Basic Assessment (GN No. R. 386)
• 25 activities (55 activities in total)
• Scoping EIA (GN No. R. 387)
• 10 activities (29 activities in total)

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Listed Activities (basic assessments)

• Activity 1(k) - The construction of facilities or
  infrastructure, including associated structures
  or infrastructure for the bulk transportation of
  sewage and water, including storm water, in
  pipelines with -
• an internal diameter of 0,36 metres or more or
• a peak throughput of 120 litres per second or
  more
• Activity 7 - The above ground storage of a
  dangerous good, including petrol, diesel, liquid
  petroleum gas or paraffin, in containers with a
  combined capacity of more than 30 cubic metres
  but less than 1 000 cubic metres at any one
  location or site.
• Activity 15 - The construction of a road that
  is wider than 4 metres or that has a reserve
  wider than 6 metres, excluding roads that fall
  within the ambit of another listed activity or
  which are access roads of less than 30 metres
  long.

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Listed Activities (basic assessments)

• Activity 16 - The transformation of undeveloped,
  vacant or derelict land to
• establish infill development covering an area of
  5 hectares or more, but less than 20 hectares or
• residential, mixed, retail, commercial,
  industrial or institutional use where such
  development does not constitute infill and where
  the total area to be transformed is bigger than 1
  hectare

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Listed Activities (Scoping and EIA)

• Activity 1(c) - the above ground storage of a
  dangerous good, including petrol, diesel, liquid
  petroleum gas or paraffin, in containers with a
  combined capacity of 1 000 cubic metres or more
  at any one location or site including the storage
  of one or more dangerous goods, in a tank farm
• Activity 1(f) - the recycling, re-use, handling,
  temporary storage or treatment of general waste
  with a throughput capacity of 50 tons or more
  daily average measured over a period of 30 days

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Supplementation of the EIA regulations

• Section 24(2) of NEMA states
• The MEC with the concurrence of the Minister,
  may identify
• activities which may not commence without
  environmental authorisation from the competent
  authority
• geographical areas based on environmental
  attributes in which specified activities may not
  commence without environmental authorisation from
  the competent authority
• geographical areas based on environmental
  attributes in which specified activities may be
  excluded from authorisation by the competent
  authority
• The initiation of a project to supplement the EIA
  regulations
• Rationale for the project
• Add to the general list of activities contained
  in the regulations based on the unique
  sensitivity of the Western Cape (i.e. adding to
  the list of activities contained in the
  regulations or refining thresholds of existing
  activities)
• Exclude activities in non-sensitive areas
• Include activities in specific sensitive areas
• Status of the project

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The competent authority

• DEAT is the competent authority when activity
  has (NEMA Section 24C (2))
• implications for national environmental policy or
  international environmental commitments or
  relations
• will take place within an identified area
• will affect more than one province or traverse
  international boundaries
• is undertaken, or is to be undertaken, by
• national department
• provincial department responsible for
  environmental affairs
• statutory body, excluding any municipality
• will take place within a national proclaimed
  protected area or other conservation area under
  control of a national authority

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ORGANOGRAM
ENVIRONMENT AND LAND MANAGEMENT Chief Director
Rudi Ellis
INTEGRATED ENVIRONMENTAL MANAGEMENT (IEM)
REGION B Director Anthony Barnes (SPA,
Helderberg, Overberg, West coast, Central and
Blouwberg)
INTEGRATED ENVIRONMENTAL MANAGEMENT (IEM)
REGION A Director Chris Rabie (George, Boland
and Oosternberg)
IEM REGION A1 DD Yakeen Atwaru
IEM REGION A2 DD Ayub Mohamed
IEM REGION B1 DD Zaahir Toefy
IEM REGION B2 DD Paul Hardcastle
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The regulations can be accessed on the
Department of Environmental Affairs and
Tourisms website (www.environment.gov.za) as
well as the Department of Environmental Affairs
and Development Planning website
(www.capegateway.gov.za/eadp).
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Contact details

• Physical address
• Utilitas building
• 1 Dorp Street
• Cape Town

• Postal address
• Private Bag X 9086
• CAPE TOWN
• 8000