2014 ENVIRONMENTAL IMPACT ASSESSMENT (EIA) …

Directorate: Development Facilitation

Gerhard Gerber

File Reference: 16/2

Circular: EADP 0028/2014

CIRCULAR: EADP 00??/2014: “One Environmental System” and the 2014 EIA Regulations of 23

CIRCULAR: EADP 0028/2014

To whom it may concern

“ONE ENVIRONMENTAL MANAGEMENT SYSTEM” AND THE

2014 ENVIRONMENTAL IMPACT ASSESSMENT (EIA) REGULATIONS

This Circular must be read together with applicable legislation, and is not intended to be a

substitute for the provisions of the legislation in any way. If there is a conflict between the

content of this Circular and a provision in the legislation, then the provision in the

legislation will prevail. While this Circular must be taken into account to the extent that it

provides guidance in terms of best practice, in as far as the Circular sets out the

requirements prescribed by the legislation, it must be adhered to.

1. “One Environmental System”

1.1. Following an agreement between the Ministers responsible for environmental

affairs, water and sanitation, and mineral resources, amendments have been

made to the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28

of 2002) (“MPRDA”), the National Environmental Management: Air Quality Act,

2004 (Act No. 39 of 2004) (“NEMAQA”), National Environmental Management Act,

1998 (Act No. 107 of 1998) (“NEMA”), the National Water Act, 1998 (Act No. 36 of

1998) (“NWA”), and the National Environmental Management: Waste Act, 2008

(Act No. 59 of 2008) (NEMWA) to give effect to “One Environmental System” for

South Africa1. The date of effect of the last of the amended provisions was

8 December 2014.

1 Section 50A of NEMA; sections 41(5) and 163A of NWA; sections 43(1A) and (1B) and 44 of NEMWA; sections 36(5)(d) and

(e) and sections 40(3) and (3A) of NEMAQA; Act No. 49 of 2008; Act No. 62 of 2008; Act No. 20 of 2014; Act No. 25 of 2014;

and Act No. 27 of 2014 refer.

11th Floor, 1 Dorp Street, Cape Town, 8001 Private Bag X9086, Cape Town, 8000

tel: +27 21 483 2787 www.westerncape.gov.za/eadp

e-mail: [email protected]

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CIRCULAR: EADP 0028/2014: “One Environmental System” and the 2014 EIA Regulations of 43

Fixed and Synchronised Timeframes

1.2. In terms of the “One Environmental System” fixed timeframes for the consideration

and issuing of decisions in terms of the respective legislation was agreed to and

the processes to be followed in terms of the respective legislation have been

synchronised and integrated.

Note: In this regard, it must be noted that Heritage Impact Assessments

have always been integrated with the environmental impact

assessment (EIA) processes undertaken in terms of NEMA through the

provisions set out in Section 38(8) of the Mineral and Petroleum

Resources Development Act, 1999 (Act No. 25 of 1999) (“NHRA”).

1.3. “Days” means calendar days. When a period of days must in terms of the 2014 EIA

Regulations (see section 2 below which deals with the 2014 EIA Regulations) be

reckoned from or after a particular day, that period must be reckoned as from the

start of the day following that particular day to the end of the last day of the

period, but if the last day of the period falls on a Saturday, Sunday or public

holiday, that period must be extended to the end of the next day which is not a

Saturday, Sunday or public holiday. For any action contemplated in terms of the

2014 EIA Regulations for which a timeframe is prescribed, the period of 15

December to 5 January must be excluded in the reckoning of days. Unless justified

by exceptional circumstances, as agreed to by the Competent Authority, a

person intending to submit an application (“proponent”) and applicant must

refrain from conducting any public participation process during the period of

15 December to 5 January. Where a prescribed timeframe is affected by one or

more public holidays, the timeframe must be extended by the number of public

holiday days falling within that timeframe2.

1.4. The fixed timeframes for the synchronised consideration and issuing of decisions in

terms of the respective legislation which was agreed to are:

1.4.1. if an application must be subjected to Basic Assessment the process must be

concluded within 197 or 247 days–

(a) the Basic Assessment Report must be submitted to the Department

within 90 days or, if there was a need for a revised report, within 140

days of receipt of the application by the Department3; and

2 Regulation 3 of the 2014 EIA Regulations refers. 3 Regulation 19 of the 2014 EIA Regulations refers.


(b) the application must be decided within 107 days of receipt of the Basic

Assessment Report by the Department4;

1.4.2. if the application must be subjected to Scoping and Environmental Impact

Reporting the process must be concluded within 300 or 350 days–

(a) the Scoping Report must be submitted within 44 days of receipt of the

application by the Department5;

(b) the consideration of the Scoping Report must concluded within

43 days of receipt of the Scoping Report by the Department6;

(c) the Environmental Impact Assessment Report must be submitted within

106 days or, if there was a need for a revised report, within 156 days of

acceptance of the Scoping Report by the Department7; and

(d) the application must be decided within 107 days of receipt of the

Environmental Impact Assessment Report by the Department8.

Note: “Receipt”9 means “receipt on the date indicated–

(a) on a receipt form if the application or document was hand

delivered or sent via registered mail;

(b) in an automated or computer generated acknowledgment of

receipt;

(c) on an acknowledgement in writing from the competent

authority as the date of receipt if the application or document

was sent via ordinary mail; or

(d) on an automated or computer generated proof of

transmission in the case of a facsimile message”.

An application in terms of the 2014 NEMA Environmental Impact

Assessment Regulations (see section below on the “2014 NEMA EIA

Regulations”) lapses if the applicant fails to meet any of the

timeframes prescribed in the Regulations, unless the scope of work

must be expanded based on the outcome of an assessment done in

accordance with the 2014 EIA Regulations, which outcome could not

be anticipated prior to the undertaking of the assessment, or in the

event where exceptional circumstances can be demonstrated, and

the Competent Authority, prior to the lapsing of the relevant

prescribed timeframe, in writing extended the relevant timeframe

and agree with the applicant on the length of such extension10.

4 Regulation 20 of the 2014 EIA Regulations refers. 5 Regulation 21 of the 2014 EIA Regulations refers. 6 Regulation 22 of the 2014 EIA Regulations refers. 7 Regulation 23 of the 2014 EIA Regulations refers. 8 Regulation 24 of the 2014 EIA Regulations refers. 9 Defined in the 2014 EIA Regulations 10 Regulation 45 and 3(7) of the 2014 EIA Regulations refer.


1.5. In terms of synchronisation, the decisions in terms of the consideration and issuing

of decisions in terms of the respective legislation which was agreed to are:

1.5.1. the decision related to the heritage impacts will be made as part of and

therefore at the same time as the decision on the Environmental

Authorisation in terms of NEMA;

1.5.2. the decision on the Environmental Authorisation, the decision on the Waste

Management Licence, and the decision on the WULA11 must all be made

within the legislated timeframe;

Note: A Waste Management Licence for a waste disposal facility must

include any conditions contained in a WULA issued for a water use

associated with the waste disposal facility12. With the timeframes to

be synchronised it would mean that either the condition to be

included in the WULA should be communicated to the Licensing

Authority who is deciding the Waste Management Activity, or

immediately after the issuing of the WULA, the conditions of the

WULA need to be included in the Waste Management Licence that

need to be issued immediately after the issuing of the WULA.

and

1.5.3. a decision on an Atmospheric Emission Licence must either be decided:

(a) at the same time as the decisions on the Environmental Authorisation

and Waste Management Licence it relates to a prospecting, mining,

exploration or production activity contemplated in the MPRDA in the

area for which the right has been applied13; or

(b) within 60 days of the date on which the Environmental Authorisation in

terms of NEMA was decided14.

11 Section 41(5) of NWA refers. 12 Section 50(3) of NEMWA refers. 13 Section 40(3A) of NEMAQA refers. 14 Section 40(3) of NEMAQA refers.


Roles and Responsibilities of the different Authorities

1.6. The Minister responsible for mineral resources is the:

1.6.1. Competent Authority to consider applications for Environmental

Authorisation in terms of NEMA if the activities relate to prospecting,

exploration, mining or operations15; and

1.6.2. Licensing Authority to consider Waste Management Licence applications in

terms of the NEMWA if the activities relate to prospecting, exploration,

mining or operations16.

1.7. The Minister responsible for environmental affairs is the:


Authorisation in terms of NEMA for a listed activity that does not relate to

prospecting, exploration, mining or operations, unless in terms of the

provisions of Section 24C of NEMA the MEC of the relevant Province

responsible for environmental affairs17 is the Competent Authority;

1.7.2. Licensing Authority to decide an Atmospheric Emission Licence application

in terms of NEMAQA if the activity18, amongst others, relates to the activities

listed in terms of section 24(2) of NEMA19, or in terms of section 19(1) of the

NEMWA20, or if the listed activity relates to a prospecting, mining, exploration

or production activity as contemplated in the MPRDA21;

1.7.3. Appeal Authority to decide on appeals against the Minister responsible for

mineral resources’ decisions in terms of NEMA22; and

1.7.4. Appeal Authority to decide on appeals against decisions of officials

delegated by the Minister to decide on Environmental Authorisation

applications in terms of NEMA and Atmospheric Emission Licence

applications in terms of NEMAQA.

15 Section 24C(2A) of NEMA, and sections 43(1A) and 1B of NEMWA refer. 16 Sections 43(1A) and (1B) of NEMWA refer. 17 Section 24C of NEMA refers. 18 The list of Atmospheric Emission Activities published in terms of NEMAQA (Government Notice No. 893 published in

Government Gazette No. 37083 on 22 November 2013 refers). 19 Listing Notices 1, 2 and 3 published in terms of NEMA (Government Notices No. R. 983, R. 984 and R. 985 published in

Government Gazette No. 38282 on 4 December 2014 refer). 20The list of Waste Management Activities published in terms of NEMWA (Government Notice No. 921 published in

Government Gazette No. 37083 on 29 November 2014 refers). 21 Section 36 of NEMAQA refers. 22 Section 50A(2)(c) of NEMA refers


1.8. The Minister responsible for water and sanitation is the:

1.8.1. Licensing Authority to decide on water use licence applications (“WULAs”) in

terms of NWA; and


delegated by the Minister to decide on WULAs in terms of NWA.

1.9. The MEC, of the relevant province, responsible for environmental affairs is the:


Authorisation in terms of NEMA for a listed activity that does not relate to

prospecting, exploration, mining or operations, and which in terms of the

provisions of Section 24C of NEMA must be dealt with by the MEC;

1.9.2. Licensing Authority to decide an Atmospheric Emission Licence application

in terms of NEMAQA if a Metropolitan Municipality, or the District Municipality

or Minister responsible for environmental affairs is not the Licensing Authority

in terms of the provisions of Section 36 of NEMAQA;

1.9.3. Licensing Authority to decide an Waste Management Licence application in

terms of NEMWA if the Minister responsible for environmental affairs or the

Minister responsible for mineral resources is not the Licensing Authority in

terms of the provisions of Section 43 of NEMWA; and


delegated by the MEC to decide on Environmental Authorisation

applications in terms of NEMA, Atmospheric Emission Licence applications in

terms of NEMAQA, and Waste Management Licences in terms of NEMWA.

1.10. The Council of a Metropolitan or District Municipality is the:

1.10.1. Licensing Authority to decide on Atmospheric Emission Licence applications

in terms of NEMAQA which are not decided by the Minister responsible for

environmental affairs or the MEC of the relevant province responsible for

environmental affairs; and

1.10.2. Appeal Authority to decide on appeals submitted in terms of the Local

Government: Municipal System Act, 2000 (Act No. 32 of 2000) (“MSA”)

against decisions of officials delegated by the Council to decide on

Atmospheric Emission Licence applications in terms of NWA.


1.11. In terms of Heritage Impact Assessments to be undertaken as part of EIA processes

undertaken in terms of NEMA, the Competent Authority to decide on a NEMA

application must ensure that the requirements of the relevant heritage authority in

terms of the Heritage Impact Assessment are met, and must take into account the

recommendations of the heritage authority when deciding the application in

terms of NEMA23.

2. 2014 EIA Regulations and 2014 NEMA Listing Notices

2014 EIA Regulations

2.1. To give further effect to the “One Environmental System”, the Minister responsible

for environmental affairs promulgated:

2.1.1. on 4 December 2014 , new EIA Regulations (“2014 EIA Regulations”)24; and

2.1.2. on 8 December 2014 National Exemption Regulations25 and National Appeal

Regulations26.

2.2. On the date of effect of the 2014 EIA Regulations, the National Exemption

Regulations and the National Appeal Regulations, 8 December 2014, these

regulations repealed and replaced the EIA Regulations promulgated in terms of

NEMA on 18 June 2010 (“2010 NEMA EIA Regulations)27.

Listing Notices

2.3. The Minister responsible for environmental affairs on 4 December 2014 also

repealed Listing Notice 1, 2 and 3 published in terms of NEMA in 201028 and

published three new Listing Notices in terms of NEMA29. While a draft

Listing Notice 430 was also published earlier this year, Listing Notice 4 has not been

promulgated. The date of effect of the new Listing Notice 1, 2 and 3 was

8 December 2014.

23 Section 38(8) of the NHRA refers 24 Government Notices No. R. 982 published in Government Gazette No. 38282 on 4 December 2014 refers. 25 General Notice No. R. 994 published in Government Gazette No. 38303 on 8 December 2014 refers. 26 General Notice No. R. 993 published in Government Gazette No. 38303 on 8 December 2014 refers. 27 Government Notice No. R. 543 published in Government Gazette No. 33306 on 18 June 2010 refers. 28 Government Notice No. R. 544, R. 545, and R. 546 published Government Gazette No. 33306 on 18 June 2010 refer. 29 Government Notices No. R. 982 published in Government Gazette No. 38282 on 4 December 2014 refers. 30 General Notice No. 709 published in Government Gazette No. 37937 on 22 August 2014 refers.


3. EMF Regulations, NEMA Fee Regulations, and Financial Provision

EMF Regulations

3.1. The Environmental Management Framework (“EMF”) Regulations31 published in

terms of NEMA has not been repealed or amended and still applies.

NEMA Fee Regulations

3.2. The “Fees for consideration and processing of applications for Environmental

Authorisations and amendments thereto” (“NEMA Fee Regulations”) published in

terms of NEMA32 also apply in terms of applications for Environmental Authorisation

in terms of the 2014 NEMA Listing Notices.

Financial provision

3.3. Section 24(5) of NEMA states that the Minister, or an MEC with the concurrence of

the Minister, may make regulations to, amongst others, lay down the procedure to

be followed in respect of financial provision.

3.4. Section 24P of NEMA also set out the requirements in terms of financial provision for

remediation of environmental damage in relating to an Environmental

Authorisation for prospecting, exploration, mining, or production related activities

which must be complied with once such financial provision regulations have been

prescribed in terms of NEMA. In term of Section 24P(7) of NEMA, the requirement in

terms of such financial provision regulations may also be made applicable to any

other application in terms of NEMA.

3.5. NEMA, however, defines “financial provision” as “the insurance, bank guarantee,

trust fund or cash that applicants for an environmental authorisation must provide

in terms of this Act guaranteeing the availability of sufficient funds to undertake

the— (a) rehabilitation of the adverse environmental impacts of the listed or

specified activities; (b) rehabilitation of the impacts of the prospecting,

exploration, mining or production activities, including the pumping and treatment

of polluted or extraneous water; (c) decommissioning and closure of the

31 Government Notice No. 547 published in Government Gazette No. 33306 of 18 June 2010 refers. 32 Government Notice No. 141 published in Government Gazette No. 37383 on 28 February 2014 refers.


operations; (d) remediation of latent or residual environmental impacts which

become known in the future; (e) removal of building structures and other objects;

or (f) remediation of any other negative environmental impacts”. Section 24E of

NEMA prescribes that every Environmental Authorisation must as a “minimum

ensure that”, amongst others, “adequate provision is made for the ongoing

management and monitoring of the impacts of the activity on the environment

throughout the life cycle of the activity”. As such, while Section 24P of NEMA will

only come into effect once specific regulations in terms of Section 24P have been

prescribed, Section 24E already applies and in terms of a particular application for

Environmental Authorisation, the relevant Competent Authority could already

attach conditions to the Environmental Authorisation that directly relate to the

requirements to make adequate provision for the ongoing management and

monitoring of impacts which could also include financial provision.

Note: In terms of the content requirements of a Basic Assessment Report33,

an Environmental Impact Assessment Report34, and an Environmental

Management Programme35 information must be provided on “where

applicable, details of any financial provisions for the rehabilitation,

closure, and ongoing post decommissioning management of

negative environmental impacts”. A Closure Plan36 must “comply with

any provisions of the Act regarding financial provisions for

rehabilitation, where applicable”.

3.6. While draft “Regulations pertaining to the financial provision for the rehabilitation,

closure and post closure of prospecting, exploration, mining or production

operations”37 was published earlier this year, the final regulations has not yet been

promulgated. Once the final regulations are promulgated and has come into

effect, the provisions would have to be met by all applications for Environmental

Authorisation in terms of NEMA that relate to prospecting, exploration, mining or

production operations. As indicated above, the requirement in terms of such

financial provision regulations may also be made applicable to any other

application in terms of NEMA38.

33 Regulation 3(1)(s) in Appendix 1 to the 2014 EIA Regulations refers. 34 Regulation 3(t) in Appendix 3 to the 2014 EIA Regulations refers. 35 Regulation 1(1)(f)(iv) in Appendix 4 to the 2014 EIA Regulations refers. 36 Regulation 1(1)(j) in Appendix 5 to the 2014 EIA Regulations refers. 37 General Notice No. 940 published in terms of Government Gazette No. 38145 on 31 October 2014 refers. 38 Section 24P(7) of NEMA refers.


4. Public Participation

Public participation in terms of an application for Environmental Authorisation is a

minimum requirement and National Environmental Management Principles

4.1. Procedures for the investigation, assessment and communication of the potential

consequences or impacts of activities on the environment–

4.1.1. must ensure, with respect to every application for an Environmental

Authorisation, amongst others, public information and participation

procedures which provide all interested and affected parties, including all

organs of State in all spheres of government that may have jurisdiction over

any aspect of the activity, with a reasonable opportunity to participate in

those information and participation procedures39;

Note: NEMA defines “Environmental Authorisation” as “the authorisation by a

competent authority of a listed activity or specified activity in terms of

NEMA, and includes a similar authorisation contemplated in a specific

environmental management Act”. NEMA further defines “specific

environmental management Act” as “means–

(a) the Environment Conservation Act, 1989 (Act No. 73 of 1989);

(b) the National Water Act, 1998 (Act No. 36 of 1998);

(c) the National Environmental Management: Protected Areas Act,

2003 (Act No. 57 of 2003);

(d) the National Environmental Management: Biodiversity Act, 2004

(Act No. 10 of 2004);

(e) the National Environmental Management: Air Quality Act, 2004

(Act No. 39 of 2004);

(f) the National Environmental Management: Integrated Coastal

Management Act, 2008 (Act No. 24 of 2008);

(g) the National Environmental Management: Waste Act, 2008 (Act

No. 59 of 2008); or

(h) (h) the World Heritage Convention Act, 1999 (Act No. 49 of 1999),

and includes any regulation or other subordinate legislation made in

terms of any of those Acts.

As such, 4.1 and 4.1.1 above applies to an application for

“Environmental Authorisation” in terms of any of the abovementioned

Acts, e.g. an Atmospheric Emission Licence, a Waste Management

Licence, a Water Use Licence, etc.

39

Section 24(4)(a)(v) of NEMA refers.


4.1.2. must take into account–

(a) the general objectives of integrated environmental management laid

down in the NEMA which, amongst others, calls for “adequate and

appropriate opportunity for public participation in decisions that may

affect the environment”40; and

(b) the National Environmental Management Principles laid down in

NEMA which, amongst others, include the principle that “the

participation of all interested and affected parties in environmental

governance must be promoted, and all people must have the

opportunity to develop the understanding, skills and capacity

necessary to achieving equitable and effective participation, and

participation by vulnerable and disadvantaged persons must be

ensured”41.

Note: It is not possible for the Department to grant exemption from the

requirement set out in 4.1 above42. It is, however, possible to be

exempted from some of the procedural requirements in terms of

public participation, but an application for exemption must also be

subjected to public participation.

4.2. Again refer to 1.3 above regarding the reckoning of days.

4.3. Any public participation process undertaken in terms of the 2014 EIA Regulations

must be conducted for a period of at least 30 days43.

Consent of and consultation with the land owner or person in control of the land44

4.4. If the person intending to submit an application for Environmental Authorisation

(“proponent”) and the person intending to submit an application for Exemption is

not the owner or person in control of the land on which the activity is to be

undertaken, the proponent must, before applying in respect of such activity,

obtain the written consent of the landowner or person in control of the land to

undertake such activity on that land, which written consent must be submitted

together with the application for Environmental Authorisation and application for

Exemption45.

40 Sections 24(4)(a)(ii) and 32(2)(d) of NEMA refer. 41 Sections 2(4)(f) and 24(4)(a)(11) of NEMA refer. 42

Section 24M(1) of NEMA refers.

43 Regulation 3(8) of the 2014 EIA Regulations refers. 44 Regulations 16(1)(b)(i) and 39 of the 2014 EIA Regulations refer. 45 Regulation 41(1) of the 2014 EIA Regulations and Regulation 4(3) of the National Exemption Regulations refer


4.5. The written consent of the land owner or person in control of the land is, however,

not required in respect of–

4.5.1. linear activities;

Note: “Linear activity” is defined as “an activity that is arranged in or

extending along one or more properties and which affects the

environment or any aspect of the environment along the course of

the activity, and includes railways, roads, canals, channels, funiculars,

pipelines, conveyor belts, cableways, power lines, fences, runways,

aircraft landing strips, and telecommunication lines”46.

4.5.2. activities directly related to prospecting or exploration of a mineral and

petroleum resource or extraction and primary processing of a mineral

resource; and

4.5.3. strategic integrated projects (“SIPs) as contemplated in the Infrastructure

Development Act, 2014 (Act No. 23 of 2014).

4.6. The Department will, however, also require that the land owner or person in control

of the land (including in respect of linear activities and SIPs47) be consulted with

throughout the EIA process.

Notice to potential or Registered I&APs

4.7. The person conducting a public participation process in respect of an application

for Environmental Authorisation and an application for Exemption must take into

account any relevant guidelines applicable to public participation as

contemplated in Section 24J of NEMA and must give notice to all potential

interested and affected (I&APs) parties of the application or proposed application

for Environmental Authorisation, and the notice of intention to apply for Exemption

by48–

4.7.1. fixing a notice board at a place conspicuous to and accessible by the

public at the boundary, on the fence or along the corridor of–

(a) the site where the activity to which the application or proposed

application relates is or is to be undertaken; and

(b) any alternative site;

46 As defined in the 2014 EIA Regulations. 47 Applications for Environmental Authorisation in terms of activities directly related to prospecting or exploration of a mineral

or petroleum or extraction and primary processing of mineral resources, must be dealt with by the Minister responsible for

mineral resources. 48

Regulation 41(2) of the 2014 EIA Regulations and Regulations 4(3), (4), (5) and (6) of the National Exemption Regulations

refer.


4.7.2. giving written notice to–

(a) the occupiers of the site and, if the proponent or applicant is not the

owner or person in control of the site on which the activity is to be

undertaken, the owner or person in control of the site where the activity

is or is to be undertaken or to any alternative site where the activity is to

be undertaken;

(b) owners, persons in control of, and occupiers of land adjacent to the

site where the activity is or is to be undertaken or to any alternative site

where the activity is to be undertaken;

(c) the municipal councillor of the ward in which the site or alternative site

is situated and any organisation of ratepayers that represent the

community in the area;

(d) the municipality (both the Local Municipality and District Municipality)

which has jurisdiction in the area;

(e) any organ of State having jurisdiction in respect of any aspect of the

activity; and

(f) any other party as required by the Department;

4.7.3. placing an advertisement in–

(a) one local newspaper; or

(b) any official Gazette that is published specifically for the purpose of

providing public notice of applications or other submissions made in

terms of the EIA Regulations;

(c) unless an advertisement has been placed in the official Gazette

referred to in 4.7.1.3.2 above, placing an advertisement in at least one

provincial newspaper or national newspaper, if the activity has or may

have an impact that extends beyond the boundaries of the

metropolitan or district municipality in which it is or will be undertaken;

and

4.7.4. using reasonable alternative methods, as agreed to by the Department, in

those instances where a person is desirous of but unable to participate in the

process due to–

(i) illiteracy;

(ii) disability; or

(iii) any other disadvantage.


Note: A written notice in terms of 4.7.2 above must be given by–

by delivering it by hand;

by sending it by registered mail–

o to that person‘s business or residential address; or

o in the case of a juristic person, to its registered address or

principal place of business;

by faxing a copy of the notice to the person, if the person has a fax

number;

by e-mailing a copy of the notice or other document to the person,

if the person has an e-mail address;

by posting a copy of the notice to the person by ordinary mail, if

the person has a postal address; or

where an address is unknown despite reasonable enquiry, by

publishing it once in the Gazette and once in a local newspaper

circulating in the area of that person‘s last known residential or

business address;49

A written notice to a Municipality in terms of 4.7.2.(d) above must be

submitted to the relevant Municipal officials (e.g. Health Officer,

Planner, Environmental Manager, Engineer, etc.). The Municipal

Manager should be approached to determine which Municipal

officials to be notified.

In terms of 4.7.2.(e) above, note that:

“Organ of State”50 means– any department of State or

administration in the national, provincial or local sphere of

government; or any other functionary or institution–

o exercising a power or performing a function in terms of the

Constitution or a Provincial Constitution; or

o exercising a public power or performing a public function in

terms of any legislation;

but does not include a court or a judicial officer.

"State department" has been defined as “means any department

or administration in the national or provincial sphere of government

exercising functions that involve the management of the

environment”51. Unless an agreement to the contrary has been

49 Section 47D of NEMA refers. 50 As defined in the Constitution. 51 As defined in the 2014 EIA Regulations.


reached with the Department, the Environmental Assessment

Practitioner (“EAP”) must consult with every organ of state including

the State departments52, but the Department when considering an

application for environmental authorisation must also consult with

every State department that administers a law or exercising

functions that affect the environment or involve the management

of the environment53. When, following submission of the application

for Environmental Authorisation, the I&APs are afforded an

opportunity to comment on a Basic Assessment Report, a Scoping

Report and an Environmental Impact Assessment Report, the EAP

must notify all the Registered I&APs and the Department of the

opportunity to comment on the report, but the Department will also

in writing request the State departments (the contact persons that

the EAP notified) that administers a law or exercising functions that

affect the environment or involve the management of the

environment to within 30 days from the Department’s request

submit comments to the Department, copied to the EAP, on the

application and the report54.

In terms of placing an advertisement in terms of 4.7.3 above, note

that in terms of an application for an Atmospheric Emission Licence

and an application for a Waste Management Licence a notice must

be published in at least two newspapers circulating in the area in

which the activity applied for is or is to be carried out.55

4.7.5. While the 2010 NEMA EIA Regulations allowed the Department to agree to a

deviation, to the extent appropriate, from the requirements set out for giving

notice56, the 2014 EIA Regulations does not allow for deviation. If a person

wants to “deviate” from a specific requirement in terms of giving notice,

exemption from the specific requirement would have to be applied for.

52

Regulation 7(2) of the 2014 EIA Regulations refers.

53 Section 24O(2) and the definition of State department in the 2014 EIA Regulations refer. 54 Sections 24O(2) and (3) of NEMA and Regulation 43(2) of the 2014 EIA Regulations refer. 55 Section 38(3(b) of NEMAQA and Section 47(4) of NEMWA refer. 56 Regulation 54(5) of the 2010 NEMA EIA Regulations refers.


Content of Notice, Notice Board and Advertisement, and size of Notice Board

4.8. A notice, notice board or advertisement referred must57–

4.8.1. give details of the application or proposed application which is subjected to

public participation; and

4.8.2. state–

(a) the name, address and telephone number of the person applying

for the Environmental Authorisation or Exemption;

(b) whether Basic Assessment (BA) or Scoping and Environmental

Impact Reporting (S&EIR) procedures are being applied to the

application for Environmental Authorisation;

(c) the nature application, including the particulars of the

activity/provisions from which exemption is being applied for, and

location of the activity to which the application relates;

(d) where further information on the application or proposed

application, including a copy of the application, can be obtained;

(e) the period within which representations may be made/comments

may be submitted, which period must be at least 30 days58;

(f) the manner in which representations may be made/comments may

be submitted in respect of the application or proposed application,

including the postal address, e-mail address, fax number, contact

details of the person to whom comments may be submitted;

(g) that a register of interested and affected parties (I&APs) will be

opened and maintained containing the names, contact details and

addresses of–

(i) all persons who, as a consequence of the public participation

process conducted in respect of that application, have

submitted written comments or attended meetings with the

proponent, applicant or EAP;

(ii) all persons who have requested the proponent or applicant, in

writing, for their names to be placed on the register; and

(iii) all organs of state which have jurisdiction in respect of the

activity to which the application relates;

(h) that only Registered I&APs will be59:

57

Regulation 41(3) of the 2014 EIA Regulations, Section 38(3(b) of NEMAQA, Section 47(4) of NEMWA and Regulation 4(4) of

the National Exemption Regulations refer. 58 Regulation 3(8) of the 2014 EIA Regulations refers.


(i) once the application has been submitted, entitled to comment

on reports and plans to be submitted to the Department and to

bring to the attention of the proponent or applicant any issues

which that party believes may be of significance to the

consideration of the application, provided that the party–

provide its name, contact details and address; and

discloses any direct business, financial, personal or other

interest which the party may have in the approval or refusal of

the application; and

(ii) in writing, within 14 days of the date of the decision be notified

of the outcome of the application, including the reasons for the

decision, and the right of appeal.

4.9. A notice board must60–

4.9.1. be of a size at least 60cm by 42cm; and

4.9.2. display the required information in lettering and in a format as may be

determined by the competent authority.

Making reports and plans available for comment

4.10. Potential or Registered I&APs, including the Department, the organs of State and

State departments, must be given a period of at least 30 days to submit comments

on a Basic Assessment Report (“BAR”), an Environmental Management

Programme (“EMPr”), a Scoping Report (“SR”), an Environmental Impact

Assessment Report (“EIAR”), where applicable a Closure Plan, and a report on an

application for amendment to a valid Environmental Authorisation which will result

in a change in scope (i.e. a substantive amendment).61

4.11. Potential or Registered I&APs, including the Department, may be provided with an

opportunity, for a period of at least 30 days, to comment on the reports and plans

referred to in 4.10 above prior to submission of an application, but once the

application has been submitted, must be provided an opportunity to comment on

such reports prior to the formal submission of the report to the Department within

the prescribed timeframe for the submission of the specific report62.

59 Regulations 4(2) and 43(1) of the 2014 EIA Regulations refer. 60 Regulation 41(4) of the 2014 EIA Regulations refers. 61

Regulations 40(1) and (2) and 32 of the 2014 EIA Regulations refer. 62



Note: In other words, even if potential or Registered I&APs were afforded an

opportunity to comment on the report/plan prior to submission of the

application, once the application has been submitted the potential

or Registered I&APs, including the Department, must again be

afforded a period of at least 30 days to comment on the report/plan.

Considering the timeframes for submission of a Basic Assessment

Report and, especially, a Scoping Report, it is recommended that the

notice referred to in 4.7 above be given to potential I&APs prior to

submission of the application. It is further recommended that the

same notice also inform the potential I&APs of the availability of the

“draft” report/plan for comment. (Note: While the 2014 EIA

Regulations do not refer to “draft” and “final” reports, the report that

may be released prior to submission of the application will be a

“draft” report, while the report that will be made available after

submission of the application will be the “final” report.

4.12. As stated in the notes under 4.7 above, if, after having submitted an application

for Environmental Authorisation, the EAP notifies the relevant State departments of

the opportunity to comment on the “final” report, the Department will also in

writing request the relevant State departments to submit their comments within

30 days of the Department’s request for comments to the Department, and to

provide the EAP with copies of any comments submitted to the Department. As

such, the EAP must provide copies of the notices given to the State departments

of the availability of the “final” report to the Department on the same day as the

notices is given to the State departments. The Department will also copy the EAP

on the requests for comments that it sends to State departments.

4.13. Where the Department is requested by an applicant to comment in terms of the

2014 EIA Regulations, the Department will submit its comments within 30 days63.

4.14. If after having submitted the application and after the commenting period on the

BAR, EIAR, EMPr, or a report on proposed substantive amendments, significant

changes have to be made to report or EMPr or significant new information has to

be added to the report or EMPr, the revised BAR, EIAR, EMPr or report on proposed

substantive amendments must be made available to the Registered I&APs for an

additional commenting period of at least 30 days. The notice that a revised BAR,

EIAR, EMPr or report on proposed substantive amendments will be subjected to an

additional public participation period, must, however, be communicated to the

Department within the original time period within which the BAR, EIAR or report on

proposed substantive amendments had to be submitted to the Department. The

63 Regulation 7(5) of the 2014 EIA Regulations refers.


revised report, together with any comments received on the revised report, must,

however, be submitted within 50 days of the expiry of the original period within

which the final BAR, EIAR, EMPr or report on proposed substantive amendments

had to be submitted to the Department.64

4.15. If an additional public participation process will be followed in terms of a revised

report as set out in 4.14 above, the requirements in terms of giving notice as per

4.7.1, 4.7.2, 4.7.3 and 4.7.4 above need not be complied with again during the

additional public participation process on condition that–

4.15.1. such process has been preceded by a public participation process which

included compliance with the requirements for giving notice set out in 4.7.1,

4.7.2, 4.7.3 and 4.7.4 above; and

4.15.2. written notice is given to the Registered I&APs regarding where the revised

report or plan may be obtained, the manner in which and the person to

whom representations on these reports or plans may be made and the date

on which such representations are due, which date must allow for at least

30 days to submit comments.65

Identifying and approaching specific stakeholders

4.16. Over and above the placement of general notices in the media calling for

potential I&APs to participate, certain stakeholders should be specifically

approached. The following means of identifying stakeholders should be used

when appropriate:

4.16.1. social profiles or probes provide a comprehensive summary of the key

characteristics of the people of a community or area and can serve as a

starting point for identifying stakeholders;

4.16.2. brainstorming sessions with the proponent and/or authorities, based on

previous experience, to identify key stakeholders who may be interested

or affected by the proposal;

4.16.3. established lists and databases, held by consultancies, authorities or

research institutions, may hold additional contact details of residents, Non-

64 Regulations 19(1)(b), 23(1)(b) and 32(1)(b) of the 2014 EIA Regulations refer. 65 Regulation 41(5) of the 2014 EIA Regulations refers.


Government Organisations, Community Based Organisations or

constituents; and

4.16.4. network or chain referral systems according to which key stakeholders are

asked to assist in identifying other stakeholders.

Appropriate participation measures

4.17. Appropriate participation measures should be put in place to deal with the range

of cultural and language requirements of I&APs. The language used by the I&APs

must be taken into account when serving a notice, selecting a newspaper,

holding a public meeting and writing a report.

Note: Where environmental reporting is done in a specific official language,

executive summaries in the other official languages should be made

available, on request.

4.18. Where I&APs include historically disadvantaged communities or people with

special needs (e.g. a lack of skills to read or write, disability, or any other

disadvantage), the following should, amongst others, be considered:

4.18.1. the project and public participation process could be announced on an

appropriate local radio station in a local language, at an appropriate time;

4.18.2. Participatory Rural Appraisal (PRA) and Participatory Learning and Action

(PLA) approaches and techniques could be used to build the capacity of

these stakeholders to engage and participate more effectively;

4.18.3. existing community structures, committees and leaders should specifically be

approached;

4.18.4. public meetings should be held at times and venues suitable to the

community;

4.18.5. determine the need for separate meetings with vulnerable and marginalised

groups;

4.18.6. appropriate access to information must be provided; and

4.18.7. reasonable assistance to people with special needs should be provided.


Level of public participation to be undertaken

4.19. The minimum requirements for public participation outlined in the 2014 EIA

Regulations will not necessarily be sufficient for all applications. The circumstances

of each application are different. The following should be taken into account

when deciding on the level of public participation and the process to be followed:

4.19.1. Scale of anticipated impacts:

(a) Are the impacts of the project likely to extend beyond the boundaries

of the local municipality?

(b) Are the impacts of the project likely to extend beyond the boundaries

of the province?

(c) Is the project a greenfields development (a new development in a

previously undisturbed area)?

(d) Does the area already suffer from socio-economic problems (e.g. job

losses) or environmental problems (e.g. pollution), and is the project

likely to exacerbate these?

(e) Is the project expected to have a wide variety of impacts (e.g. socio-

economic and environmental)?

4.19.2. Public sensitivity of the project:

(a) Is widespread public concerns expected about the potential negative

impacts of the project?

(b) Is there a high degree of conflict among I&APs?

(c) Will the project impact on private land other than that of the

applicant?

(d) Does the project have the potential to create unrealistic expectations

(e.g. that a new factory would create a large number of jobs)?

4.19.3. Potential affected parties:

(a) Has very little previous public participation taken place in the area?

(b) Did previous public participation processes in the area result in conflict?

(c) Are there existing organisational structures (e.g. local forums) that can

represent I&APs?

(d) What is the literacy level of the community in terms of their ability to

participate meaningfully during the public participation process?

(e) Is the area characterised by high social diversity (i.t.o. socio-economic

status, language or culture)?

(f) Were people in the area victims of unfair expropriations or relocation in

the past?

(g) Is there a high level of unemployment in the area?

(h) Do the I&APs have special needs (e.g. a lack of skills to read or write,

disability, etc.)?


4.20. Based on the above consideration, the use of the following public participation

mechanisms, over and above the minimum requirements, should also be

considered:

4.20.1. public meetings and open days;

4.20.2. conferences;

4.20.3. press releases;

4.20.4. questionnaires or opinion surveys;

4.20.5. information desks and/or information lines (helplines); and

4.20.6. meetings/workshops with constituencies (e.g. National Standing

Committees, Non-Government Organisations/Community Based

Organisations).

All relevant facts to be made available, participation to be facilitated, and

reasonable opportunity to comment

4.21. The person conducting the public participation process must ensure that66–

4.21.1. information containing all relevant facts in respect of the application or

proposed application is made available to potential interested and affected

parties; and

4.21.2. participation by potential or registered interested and affected parties is

facilitated in such a manner that all potential or Registered I&APs are

provided with a reasonable opportunity to comment on the application or

proposed application.

Combination of public participation processes

4.22. Where an Environmental Authorisation is required in terms of the 2014 EIA

Regulations and an authorisation, permit or licence is also required in terms of a

specific environmental management Act (“SEMA”), a combined public

participation process must be followed as agreed to by the relevant authorities67.

4.23. With respect to every application for Environmental Authorisation in terms of

NEMA and every application for an authorisation, permit or licence in terms of a

66


67 While regulation 41(7) of the 2014 EIA Regulations refers to “may”, Section 50A of NEMA and Sections 41(5) and 163A of

the National Water Act states that the processes “must” be synchronised, aligned and integrated refers.


SEMA, there must be coordination and cooperation between the Competent

Authority/Licensing Authority in terms of NEMA/SEMA and any other organs of state

from which an authorisation, permit or licence in terms of any other legislation is

required68. As such, the EAP must prior to undertaking public participation, engage

with the authorities to determine the need for a combined process to be followed.

4.24. Where the authorities have entered into an agreement in terms of Section 24K

and/or 24L of NEMA, and the authorities have indicated that such an agreement is

applicable to an application, the application must be dealt with in accordance

with the combined process, including any combined public participation, agreed

to between the authorities69.

4.25. Where the Department has granted permission for the combination of

applications, a combined public participation process must be followed70.

Details of the Public Participation Process undertaken and Comments and Responses

to be recorded in reports

4.26. The applicant must ensure that the comments of I&APs are recorded in reports

and plans and that such written comments, including responses to such comments

and records of meetings, are attached to the reports and plans that are submitted

to the Department.

4.27. Where a person desires but is unable to access the written comments referred to

in 4.26 above due to–

4.27.1. a lack of skills to read or write;

4.27.2. disability; or

4.27.3. any other disadvantage;

reasonable alternative methods of recording comments must be provided for.71

4.28. A BAR, SR, EIAR and Closure Plan must contain, amongst others72–

4.28.1. details of the public participation process undertaken, including copies of

the supporting documents and inputs (including copies of comments received

and minutes of meetings held); and

68

Regulation 7(3) of the 2014 EIA Regulations and 24(4)(a)(i) of NEMA refer.

69 Regulation 7(1) of the 2014 EIA Regulations and Sections 24L and K of NEMA refer. 70 Regulation 11 of the 2014 EIA Regulations refers. 71

Regulations 44(1) and (2) of the 2014 EIA Regulations refer.

72 Appendix 1: Regulation 3(1)(h); Appendix 2: Regulation 2(h); Appendix 3: Regulation 3(h); and Appendix 5: Regulation

1(1)(i) of the 2014 EIA Regulations refer.


4.28.2. a summary of the comments received and issued raised by I&APs (including

the date of receipt of the comments) and the responses of the EAP to those

comments and an indication of the manner in which the issues were

incorporated, or the reason for not including them), into the report.

4.29. A Specialist Report and Audit Report must contain, amongst others73–

4.29.1. a description of any consultation process that was undertaken during the

course of preparing the Specialist/Audit Report; and

4.29.2. a summary and copies of any comments received during any consultation

process undertaken during the course of preparing the Specialist/Audit

Report, and responses thereto.

4.30. Proof of all notices given to I&APs, notice board displayed and advertisements

placed in terms of the 2014 EIA Regulations must be submitted to the Department

together with the rest of the public participation information, with the following to

be submitted to the Department:

4.30.1. a copy of the newspaper advertisement (“newspaper clipping”) and, if

applicable, notice in the Gazette that was placed, indicating the name

of the newspaper and, if applicable, the name of the Gazette, and the

date of publication (of such quality that the wording in the

advertisement/notice is legible);

4.30.2. a site map showing where the site notice was displayed, a dated

photographs showing the notice displayed on site and a copy of the text

displayed on the notice;

4.30.3. in terms of the written notices given, a copy of the written notice sent, as

well as–

(a) if registered mail was sent, a list of the registered mail sent

(showing the registered mail number, the name of the person

the mail was sent to, the address of the person and the date the

registered mail was sent);

(b) if normal mail was sent, a list of the mail sent (showing the name

of the person the mail was sent to, the address of the person, the

date the mail was sent, and the signature of the post office

worker or the post office stamp indicating that the letter was

sent);

(c) if a facsimile was sent, a copy of the facsimile report;

(d) if an electronic mail was sent, a copy of the electronic mail sent;

and

(e) if delivered by hand (a “mail drop”), a signed register of “mail

drops” received (showing the name of the person the notice

was handed to, the address of the person, the date, and the

signature of the person).

73 Appendix 6: Regulation 1(1)(o) and (p); and Appendix 7: Regulation 3(1)(g) and (j) of the 2014 EIA Regulations refer.


Information to be made available at the site, to anyone on request on the holder’s

website

4.31. In terms of the 2014 EIA Regulations the Department must attach to any

Environmental Authorisation it grants a condition that the Environmental

Authorisation, EMPr, any independent assessments of financial provision for

rehabilitation and environmental liability, Closure Plans (where applicable), Audit

Reports, and all compliance monitoring reports be made available for inspection

and copying74–

4.31.1. at the site of the authorised activity;

4.31.2. to anyone on request; and

4.31.3. where the holder of the environmental authorisation has a website, on such

publicly accessible website.

Public participation in terms of applications for Amendment

4.32. In terms of amendment where the amendment will not change the scope of the

valid Environmental Authorisation nor increase the level or nature of the impacts,

or if the amendment relates to the change of ownership or transfer or rights and

obligations, public participation is not required, but the Department could as part

of a request for additional information ask for public participation information.75

4.33. In terms of an amendment where the amendment will result in a change to the

scope of a valid Environmental Authorisation where such change will result in an

increased level or nature of impact, the report on the amendment must76–

4.33.1. be subjected to a public participation process as set out in 4.10, 4.11, 4.12,

4.13, 4.14 and 4.15 above, and as had been agreed to by the Department,

and which is appropriate to bring the proposed amendment to the attention

of potential and Registered I&APs, including organs of State which have

jurisdiction in respect of any aspect of the relevant activity, and the

Department; and

74 Regulation 26(h) of the 2014 EIA Regulations refer. 75 Regulations 29 and 30 of the 2014 EIA Regulations refer. 76 Regulations 31 and 32 of the 2014 EIA Regulations refer.


4.33.2. reflect the incorporation of comments received, including any comments of

the Department, when the report is submitted within-

(a) 90 days of receipt by the Department of the application for

amendment; or

(b) on condition that notice is given to the Department within 90 days

of receipt by the Department of the application for amendment

(as set out in 4.13 and 4.14 above), 140 days of receipt by the

Department of the application for amendment if significant

changes have been made or significant new information has been

added to the report and that the revised report will be subjected to

another public participation process of at least 30 days.

Public participation in terms of amendments to an EMPr

4.34. Where the findings of an Environmental Audit Report indicate insufficient

mitigation of environmental impacts associated with the undertaking of the

activity, or insufficient levels of compliance with the Environmental Authorisation or

EMPr and, where applicable the Closure Plan; the holder must77–

4.34.1. when submitting the Environmental Audit Report to the Department submit

recommendations to amend the EMPr or Closure Plan in order to rectify the

shortcomings identified in the Environmental Audit Report, which

recommendations must have been subjected to a public participation

process, which process has been agreed to by the Department and was

appropriate to bring the proposed amendment of the EMPr and, where

applicable the Closure Plan, to the attention of potential and Registered

I&APs, including organs of State which have jurisdiction in respect of any

aspect of the relevant activity and the Department; and

4.34.2. within 7 days of the date of submission of an Environmental Audit Report to

the Department, notify all potential and Registered I&APs of the submission

of that report, and make such report immediately available–

(a) to anyone on request; and

(b) on a publicly accessible website, where the holder has such a

website.

77 Regulation 34 of the 2014 EIA Regulations refers.


4.35. Where the holder of an Environmental Authorisation identifies amendments

to the impact management outcomes or objectives of the EMPr or

amendments to the closure objectives of the Closure Plan before an audit is

required in terms of the Environmental Authorisation, such holder must78–

4.35.1. notify the Department of its intention to amend the EMPr or Closure

Plan at least 60 days prior to submitting such amendments to the

EMPr or Closure Plan to the Department for approval; and

4.35.2. invite comments on the proposed amendments from potentially

I&APs, including the Department, by using–

(a) any of the methods highlighted in 4.7 above for a period of

at least 30 days; and

(b) reasonable alternative methods, as agreed to by the

Department, to invite comments may be used in those

instances where a person desires but is unable to

participate in the process due to–

(i) illiteracy;

(ii) disability; or

(iii) any other disadvantage.

4.36. If comments are submitted to the holder of the Environmental Authorisation,

in terms of 4.35.2 above, the holder must submit such comments to the

Department, including responses to such comments, together with the

proposed amended EMPr or Closure Plan.

5. Alternatives

5.1. “Alternatives”, in relation to a proposed activity, means different means of

meeting the general purpose and requirements of the activity, which may include

alternatives to the–

5.1.1. property on which or location where the activity is proposed to be

undertaken;

5.1.2. type of activity to be undertaken;

5.1.3. design or layout of the activity;

5.1.4. technology to be used in the activity; or

5.1.5. operational aspects of the activity;

and includes the option of not implementing the activity79.

78 Regulation 37 of the 2014 EIA Regulations refers. 79 As defined in the 2014 EIA Regulations.


The identification of alternatives is a minimum requirement with respect to every

application for Environmental Authorisation

5.2. The procedures for the investigation, assessment and communication of the

potential consequences or impacts of activities on the environment must,

amongst others, with respect to every application for Environmental Authorisation:

5.2.1. ensure that the general objectives of integrated environmental

management laid down in Section 23 of NEMA and the National

Environmental Management Principles set out Section 2 of NEMA are taken

into account80; and

5.2.2. include an investigation of the potential consequences or impacts of the

alternatives to the activity on the environment and assessment of the

significance of those potential consequences or impacts, including the

option of not implementing the activity81.

Note: As highlighted in the note under 4.1.1 above, 4.2 above applies to an

application for “Environmental Authorisation” in terms of NEMA and

any of the SEMAs, e.g. an Atmospheric Emission Licence, a Waste

Management Licence, a Water Use Licence, etc.

5.3. The general objective of integrated environmental management, amongst others,

is to “identify, predict and evaluate the actual and potential impact on the

environment, socio-economic conditions and cultural heritage, the risks and

consequences and alternatives and options for mitigation of activities, with a view

to minimising negative impacts, maximising benefits, and promoting compliance

with the principles of environmental management” set out in NEMA82.

5.4. The National Environmental Management Principles, amongst others, state that

“Environmental management must be integrated, acknowledging that all

elements of the environment are linked and interrelated, and it must take into

account the effects of decisions on all aspects of the environment and all people

in the environment by pursuing the selection of the best practicable

environmental option”83. NEMA defines the “best practicable environmental

option” as “the option that provides the most benefit or causes the least damage

to the environment as a whole, at a cost acceptable to society, in the long term

as well as in the short term”.

80

Section 24(4)(a) of NEMA refers.

81 Sections 24(4)(b) and 24(4A) of NEMA refer. 82

Section 23 of NEMA refers.

83 Section 2 of NEMA refers.


5.5. When the Department considers an application for an Environmental

Authorisation, the Department must take into account all relevant factors, which

may include, amongst others, “…any feasible and reasonable alternatives to the

activity which are the subject of the application and any feasible and reasonable

modifications or changes to the activity that may minimise harm to the

environment”84.

5.6. The NEMWA also specifies that when considering an application for a Waste

Management Licence, the Licensing Authority must take into account all relevant

matters, including the “need for, and desirability of, the waste management

activity and alternatives”85.

5.7. The NEMAQA also states that when considering an application for an Atmospheric

Emission Licence, the Licensing Authority must also take into account “the best

practicable environmental options available that could be taken”86.

5.8. Ultimately an EIA is a decision-making process with the specific aim of selecting

the option that will provide the most benefit and cause the least damage in the

short and long term. The quality of an EIA, as with all decisions, therefore depends

on the quality of the alternatives from which to choose.

5.9. In light of the above, the very consideration of an application in terms of EIA is

about the consideration of alternatives related to the application – the

consideration of alternatives being the key consideration of EIA. Although the

NEMA refers to “must include” “where applicable” when referring to the

requirement to consider alternatives87, NEMA states that where an EIA has been

identified as the environmental instrument to be utilised in informing an application

for Environmental Authorisation, the consideration of alternatives, “is applicable”88.

All EIAs must therefore consider alternatives.

5.10. The identification, evaluation, consideration and comparative assessment of

alternatives directly relate to the management of impacts. Related to every

identified impact, alternatives, modifications or changes to the activity must be

identified, evaluated, considered and comparatively considered to:

5.10.1. in terms of negative impacts, firstly avoid a negative impact altogether, or if

avoidance is not possible alternatives to better mitigate, manage and

remediate a negative impact and to compensate for/offset any impacts

that remain after mitigation and remediation; and

5.10.2. in terms of positive impacts, maximise impacts.

84 Section 24O of NEMA refers. 85 Section 48 of NEMWA refers. 86 Section 39 of NEMAQA refers. 87

Section 24(4(b) of NEMA refers.

88 Section 24(4A) of NEMA refers.


5.11. It must be noted that the Department may grant Environmental Authorisation for

an alternative not specifically applied for, and to the extent that Environmental

Authorisation is granted for such an alternative, such an alternative must be

regarded as having been applied for89.

Alternatives and Exemptions

5.12. NEMA and Chapter 5 of the 2010 NEMA EIA Regulations (which have not been

repealed) do allow for exemptions from provisions of the 2014 EIA Regulations or of

a provision of NEMA itself, except from the requirements to obtain Environmental

Authorisation and the minimum requirements applicable to every application for

Environmental Authorisation90. While it is therefore, technically, possible for an

applicant to apply to be exempted from the requirement to consider alternatives,

the legislation places an obligation on the Department to take into account any

feasible and reasonable alternatives to the activity and any feasible and

reasonable modifications or changes to the activity that may minimise harm to the

environment or maximise benefits. While the merits of each exemption application

will be considered, it is therefore unlikely that the Department will grant exemption

from the requirement to identify feasible and reasonable alternatives to better

deal with the identified impacts. It is, however, important to understand exactly

what the legislation requires in terms of alternatives and specifically the difference

between having to identify and evaluate alternatives and having to consider and

comparatively assess alternatives. The next section provides more detail in this

regard.

5.13. In terms of the NEMA EIA Regulations all Basic Assessment Reports91, Scoping

Reports92 and Environmental Impact Assessment Reports93 must contain a full

description of, amongst others, details of all the alternatives considered; the

environmental attributes associated with the alternatives focusing on the

geographical, physical, biological, social, economic, heritage and cultural

aspects; the impacts and risks identified for each alternative. Appendices 1, 2 and

3 to the 2014 EIA Regulations prescribed the information to be contained in

respectively a Basic Assessment Report, Scoping Report, and an Environmental

Impact Assessment Report. These Appendices in detail set out, amongst others,

the information to be provided in terms of the alternatives identified and

considered. The Appendices highlight that if no alternatives were considered

feasible or reasonable, motivation must be provided why no feasible and

reasonable alternatives exist. If no feasible and reasonable alternatives were

found, no comparative assessment of alternatives, beyond the comparative

assessment of the preferred alternative and the option of not proceeding, is

required as part of assessment.

89 Regulation 20(2) and 24(2) of the 2014 NEMA EIA Regulations refer. 90 Sections 24(4)(a) and 24M of NEMA refer. 91 Appendix 1 to the 2014 NEMA EIA Regulations refers. 92 Appendix 2 to the 2014 NEMA EIA Regulations refers. 93 Appendix 3 of the 2014 NEMA EIA Regulations refers.


Note: If an applicant intends applying for exemption from the requirement

to identify and evaluate alternatives, the reasoned motivation why no

feasible or reasonable alternatives exist and why exemption should be

granted from having to consider alternatives, would probably consist

of information on the identification and evaluation of alternatives –

meaning that the same information required by the provisions from

which exemption is sought, will have to be provided as part of the

exemption application – nullifying the reason for the exemption

application. Furthermore, if the exemption application is decided prior

to proceeding with the process and appealed, the appeal will

suspend the process until the appeal is decided.

5.14. With regard to alternatives, Appendices 1, 2 and 3 to the 2014 EIA Regulations,

amongst others:

5.14.1. indicate that the objective of the basic assessment process is to, through a

consultative process─

(a) identify the alternatives considered;

(b) describe the need and desirability of the proposed alternatives;

(c) through the undertaking of an impact and risk assessment process

inclusive of cumulative impacts which focused on determining the

geographical, physical, biological, social, economic, heritage, and

cultural sensitivity of the sites and locations within sites and the risk of

impact of the proposed activity and alternatives on the these aspects

to determine;

(d) the nature, significance, consequence, extent, duration, and

probability of the impacts occurring to; and

(e) the degree to which these impacts–

(i) can be reversed;

(ii) may cause irreplaceable loss of resources; and

(iii) can be managed, avoided or mitigated;

5.14.2. through a ranking of the site sensitivities and possible impacts the activity

and alternatives will impose on the sites and location identified through the

life of the activity and alternatives to–

(a) identify and motivate the preferred alternatives, including the

preferred–

(i) site alternative;

(ii) activity alternative; and

(iii) technology alternative;

(b) identify suitable measures to manage, avoid or mitigate identified

impacts; and

(c) identify residual risks that need to be managed and monitored; and


(d) prescribed that the following information related to alternatives must

be contained in respectively a Basic Assessment Report, Scoping

Report, and an Environmental Impact Assessment Report;

5.14.3. a motivation for the preferred alternatives, including the preferred—

(a) site alternative;

(b) activity alternative; and

(c) technology alternative;

5.14.4. a full description of the process followed to reach the proposed preferred

alternatives, including—

(a) details of all the alternatives considered;

(b) the environmental attributes associated with the alternatives focusing

on the geographical, physical, biological, social, economic, heritage

and cultural aspects;

(c) the impacts and risks identified for each alternative, including the

nature, significance, consequence, extent, duration and probability

of the impacts, including the degree to which these impacts—

(i) can be reversed;

(ii) may cause irreplaceable loss of resources; and

(iii) can be managed, avoided or mitigated;

5.14.5. the methodology used in determining and ranking the nature, significance,

consequences, extent, duration and probability of potential environmental

impacts and risks associated with the alternatives;

5.14.6. positive and negative impacts that the proposed activity and alternatives

will have on the environment and on the community that may be affected

focusing on the geographical, physical, biological, social, economic,

heritage and cultural aspects;

5.14.7. the possible mitigation measures that could be applied and level of residual

risk;

5.14.8. the outcome of the site selection matrix;

5.14.9. if no alternatives, including alternative locations for the activity were

investigated, the motivation for why no alternatives are considered feasible

and reasonable;

5.14.10. a concluding statement indicating the preferred alternatives, including

preferred location of the activity; and

5.14.11. an environmental impact statement which contains, amongst others, a

summary of the positive and negative impacts and risks of the proposed

activity and identified alternatives.


5.15. In this regard–

5.15.1. the methodology;

5.15.2. criteria used to identify, investigate and assess alternatives (these must be

consistently applied to all alternatives); and

5.15.3. a reasoned explanation why an alternative was or was not found to be

reasonable and feasible;

must be provided.

5.16. While all identified alternatives must be evaluate, only those found to be

“feasible” and “reasonable” must further considered and be comparatively

assessed. The “feasibility” and “reasonability” of and the need for alternatives must

be determined by considering, amongst others:

5.16.1. the general purpose and requirements of the activity;

5.16.2. need and desirability;

5.16.3. opportunity costs;

5.16.4. the need to avoid negative impact altogether;

5.16.5. the need to minimise unavoidable negative impacts;

5.16.6. the need to maximise benefits; and

5.16.7. the need for equitable distributional consequences.

Note: Also refer to DEA’s Guideline on Need and Desirability (October 2014)94.

5.17. It must, however, be remembered that information generated during the

assessment, might require that further alternatives be considered. Alternatives must

be identified as early as possible in the process, as well as considered throughout

the process. The identification of alternatives should be broad, objectively done

and well documented.

94 General Notice No. 891 published in Government Gazette No. 38108 on 20 October 2014 refers


Types of Alternatives

5.18. Although alternatives are to be considered as early as possible in the process, the

necessity to consider modifications and changes, in order to prevent and/or

mitigate negative environmental impacts or to maximise positive impacts

identified during the later stages of the assessment process, may also arise.

Whereas discrete alternatives are therefore generally identified during the early

stages of a project (pre-feasibility and feasibility) and comparatively assessed

during the assessment stage; incremental modifications and changes to activities

might also have to be considered when a development proposal is amended in

an incremental manner throughout the EIA process to address impacts and issues,

as and when they are identified. Both the identification, investigation, and

assessment of alternatives, and the generation and consideration of modifications

and changes to activities must be well documented.

5.19. While “alternatives” is defined as “in relation to a proposed activity, means

different means of meeting the general purpose and requirements of the activity,

which may include alternatives to the– (a) property on which or location where

the activity is proposed to be undertaken; (b) type of activity to be undertaken;

(c) design or layout of the activity; (d) technology to be used in the activity; or (e)

operational aspects of the activity; and includes the option of not implementing

the activity, a range of alternatives, however, exist not all of which are necessarily

appropriate for each EIA. Further to the types of alternatives below, alternatives

that maximise resource use efficiency (e.g. energy and water-use efficiency) and

minimise waste production must be sought. An “alternative” that does not

respond to a specific impact, is not an alternative.

TYPE OF

ALTERNATIVE

EXPLANATION/EXAMPLES

Location

Refers to both alternative properties as well as alternative sites on

the same property.

Note: In terms of the Minimum Requirements for Waste Disposal by

Landfill, location alternatives must be considered during the EIA

process.

Activity

Incineration of waste rather than disposal at a landfill site/ Provision

of public transport rather than increasing the capacity of roads.

Design or

Layout

Design: E.g. Different architectural and or engineering designs

Site Layout: Consideration of different spatial

configurations of an activity on a particular site (e.g.

Siting of a noisy plant away from residences).


Technologic

al

Consideration of such alternatives is to include the option of

achieving the same goal by using a different method or process

(e.g. 1000 megawatt of energy could be

generated using a coal-fired power station or wind turbines.

Demand

Arises when a demand for a certain product or service can be

met by some alternative means (e.g. the demand for electricity

could be met by supplying more energy or using energy more

efficiently by managing demand).

Input

Input alternatives are applicable to applications that may use

different raw materials or energy sources in their process (e.g.

Industry may consider using either high sulphur coal or natural gas

as a fuel source).

Routing

Consideration of alternative routes generally applies to linear

developments such as power line servitudes, transportation and

pipeline routes.

Scheduling

and Timing

Where a number of measures might play a part in an overall

programme, but the order in which they are scheduled will

contribute to the overall effectiveness of the end result.

Scale and

Magnitude

Activities that can be broken down into smaller units and can be

undertaken on different scales (e.g. for a housing development

there could be the option 10, 15 or 20 housing units. Each of these

alternatives may have different impacts).

“No-Go

Option”

This is the option of not proceeding with the activity.

The assessment of alternatives must at all times include the “no-

go” option as a baseline against which all other alternatives must

be measured. The option of not proceeding with the activity (or

part of the activity) must always be assessed and to the same

level of detail as the other feasible and reasonable alternatives.

The “no-go” option is taken to be the existing rights on the

property and this includes all the duty of care and other legal

responsibilities that apply to the owner of the property. For

example, one cannot state that the “no-go” option for a vacant

piece of land will result in further degradation or alien plant

invasion, as it is already a legislated requirement that the

landowner control alien invasive plants on their land, and Section

28 of the NEMA’s “Duty of Care”, states that reasonable measures

must be taken to prevent pollution or degradation from

occurring, continuing or reoccurring. All the applicable permits

must be in place for a land use to be an existing right (the no-

go/default) e.g. the zoning of Agriculture does not mean land

can be cultivated as the no-go option, as other approvals must

first be obtained.


6. Amendments

6.1. Only a valid Environmental Authorisation may be amended by the relevant

Competent Authority95.

Note: Because the late submission of an amendment application might

result in the Department not being able to process the amendment

application prior to the Environmental Authorisation lapsing, a holder

wishing to amendment an Environmental Authorisation should apply

for an amendment at least three months prior to the expiry of the

validity period of the Environmental Authorisation96.

6.2. The relevant Competent Authority may issue an amendment to a valid

Environmental Authorisation either by way of a new Environmental Authorisation or

new Environmental Authorisations or an addendum to the relevant Environmental

Authorisation, or replace the existing valid Environmental Authorisation with an

Environmental Authorisation in term of the 2014 EIA Regulations97.

6.3. An Environmental Authorisation may be amended or replaced without following a

procedural requirement contained in the 2014 EIA Regulations if the purpose is to

correct an error and the correction does not change the rights and duties of any

person materially98.

6.4. Where an Environmental Authorisation granted in terms of the 2014 EIA Regulations

does not include operational aspects and the activity has been commenced with,

the period for which such Environmental Authorisation is granted may only be

extended through an amendment for a maximum further period of five years99.

6.5. If a proposed amendment will result in a change to the scope of a valid

Environmental Authorisation where such change will result in an increased level or

nature of impact where such level or nature of impact was not assessed and

included in the initial application for environmental authorisation, or taken into

consideration in the initial environmental authorisation, an application for

amendment of the Environmental Authorisation100–

6.5.1. may be submitted if the change does not on its own, constitute a listed

activity; or

6.5.2. may not be submitted if the change does, on its own, constitute a listed

activity, but following an application for Environmental Authorisation for the

listed activity, the Competent Authority may replace the existing valid

Environmental Authorisation with a new Environmental Authorisation101.

95


96 Regulations 28(1) and (2) of the 2014 EIA Regulations refer.

97 Sections 27(2) of the 2014 EIA Regulations refers. 98

Regulation 27(4) of the 2014 EIA Regulations and Section 47A(1)(b) of NEMA refer.

99 Regulation 27(3) of the 2014 EIA Regulations refers.

100 Regulation 31 of the 2014 EIA Regulations refers.

101 Section 25(4) of the 2014 EIA Regulations refers.


7. Environmental Assessment Practitioners (EAPs) and Specialists

7.1. A proponent or applicant must appoint an EAP at own cost to manage the

application. In addition to the appointment of an EAP, a Specialist may be

appointed, at the cost of the applicant, if the level of assessment is of a nature

requiring the appointment of a specialist.

7.2. An EAP and Specialist must meet the general requirements set out in Regulation 13

of the 2014 EIA Regulations. As with the 2010 NEMA EIA Regulations, one of the

general requirements is that the EAPs and Specialist must be “independent”.

"Independent" means102–

7.2.1. that such EAP or Specialist has no business, financial, personal or other

interest in the activity or application in respect of which that EAP or Specialist

is appointed in terms of the 2014 EIA Regulations; or

7.2.2. that there are no circumstances that may compromise the objectivity of that

EAP or Specialist in performing such work;

excluding -

(a) normal remuneration for a specialist permanently employed by the EAP; or

(b) fair remuneration for work performed in connection with that activity or

application.

7.3. In the event where the EAP or Specialist is not independent, the proponent or

applicant must, prior to conducting public participation, appoint another EAP or

Specialist which meets all the general requirements including being independent,

to externally review all work undertaken by the EAP or Specialist, at the applicant's

cost103.

7.4. Nothing in the legislation states that an EAP or Specialist must be independent

from each other. An EAP or Specialist will be “independent” as long as in the

person’s respective capacity as the EAP or Specialist the person has, other than

normal remuneration for a Specialist permanently employed by the EAP or fair

remuneration for work performed in connection with that activity or application,

no business, financial, personal or other interest in the activity or application, and

there are no circumstances that may compromise the objectivity of that EAP or

Specialist in performing such work.

102 As defined in the 2014 EIA Regulations. 103 Regulations 13(2) and (3) of the 2014 EIA Regulations refer.


8. Transitional Arrangements

Transitional arrangements were provided for in the amendments made to NEMA and

are provided in Chapter 8 of the 2014 EIA Regulations.

Continuation of actions undertaken and authorisations issued under ECA Regulations

and previous NEMA Regulations (2006 and 2010 NEMA EIA Regulations)104

8.1. Any actions undertaken in terms of the EIA Regulations promulgated in terms of

the Environment Conservation Act, 1989 (Act No. 73 of 1989) (“ECA EIA

Regulations”)105 or in terms of the previous EIA Regulations promulgated in terms of

NEMA in 2006 (“2006 NEMA EIA Regulations”)106 or the 2010 NEMA Regulations and

which can be undertaken in terms of a provision of the 2014 EIA Regulations must

be regarded as having been undertaken in terms of the provision of the 2014 EIA

Regulations.

8.2. Any exemption from obtaining an Environmental Authorisation in terms of the ECA

EIA Regulations must be regarded to be an Environmental Authorisation issued in

terms of the 2014 EIA Regulations.

8.3. Any Authorisation issued in terms of the ECA EIA Regulations or the 2006 NEMA EIA

Regulations or the 2010 NEMA EIA Regulations, must be regarded to be an

Environmental Authorisation issued in terms of the 2014 EIA Regulations.

Note: Any appeal submitted after 8 December 2014 against an

Environmental Authorisation issued in terms of the ECA EIA Regulations

or the 2006 NEMA EIA Regulations or the 2010 NEMA EIA Regulations,

must be submitted and considered in terms of the National Appeal

Regulations.

Pending applications and appeals (ECA and NEMA)107

8.4. An application submitted in terms of the ECA EIA Regulations or 2006 NEMA EIA

Regulations or 2010 NEMA EIA Regulations which is pending when the 2014 EIA

Regulations take effect, including pending applications for activities directly

related to prospecting or exploration of a mineral or petroleum resource or

extraction and primary processing of a mineral or petroleum resource, must

despite the repeal of those Regulations be dispensed with in terms of the

Regulations applicable at the time of the submission of the original application as

if those Regulations were not repealed.

104 Regulations 50 and 52 of the 2014 EIA Regulations refer. 105 Government Notice No. R. 1182 and R. 1183 published in Government Gazette No. 18621 on 5 September 1997 refer. 106 General Notice No. R. 747 published in Government Gazette No. 37951 on 29 August 2014 refers. 107 Regulations 51 and 53 of the 2014 EIA Regulations refer.


8.5. If a situation arises where an application in terms of an activity or activities

identified under ECA or the 2006 NEMA Listing Notices or the 2010 NEMA Listing

Notices is still pending when the 2014 EIA Listing Notices take effect, and the

activity or activities in question no longer requires Environmental Authorisation in

terms of the 2014 NEMA Listing Notices, the Competent Authority must consider

such an application to be withdrawn108.

8.6. Where an application submitted in terms of the ECA EIA Regulations or the 2006

NEMA EIA Regulations or the 2010 NEMA EIA Regulations is still pending when the

2014 EIA Listing Notices take effect and a component of the activity which was not

identified under the activities identified under ECA or the 2006 NEMA Listing

Notices or the 2010 NEMA Listing Notices, but is identified in terms of the 2014

NEMA Listing Notices, the Competent Authority must dispense of such application

in terms of the ECA EIA Regulations or the 2006 NEMA EIA Regulations or the 2010

NEMA EIA Regulations (whichever is applicable) and may also authorise the

activity identified in the NEMA EIA Listing Notices as if it was applied for, on

condition that all impacts of the newly identified activity have been considered

and assessed and that the requirements of 2014 EIA Regulations have also been

considered.

8.7. Any appeal submitted after 8 December 2014 against an Environmental

Authorisation issued in terms of the ECA EIA Regulations or the 2006 NEMA EIA

Regulations or the 2010 NEMA EIA Regulations, must be submitted and considered

in terms of the National Appeal Regulations.

Approved EMPrs and EMPs, Pending applications and appeals (MPRDA)109

8.8. All EMPrs or Environmental Management Plans (“EMPs) approved in terms of the

MPRDA before 8 December 2014 are deemed to be approved in terms of

NEMA110.

8.9. An application submitted in terms of the previous MPRDA Regulations and which

was pending on 8 December 2014 must despite the repeal of the MPRDA

Regulations be dispensed with in terms of the MPRDA and the MPRDA Regulations

as if the MPRDA has not been amended and as if the MPRDA Regulations were

not repealed111.

Note: “Application" with regard to 7.8 above means an application for a

permit, right, approval of an EMPr or amendment to such permit, right

or EMPr112.

108 Regulations 51 and 53 of the 2014 EIA Regulations refer. 109 Regulation 54 of the 2014 EIA Regulations refers. 110 Section 12(4) of Act No. 62 of 2008 refers. 111 Section 12 of Act No. 62 of 2008 and Section 26 of Act No. 25 of 2014 refer. 112 Section 26 of Act No. 25 of 2014 refers.


8.10. Any appeal lodged in terms of MPRDA against a decision in respect of

environmental aspects, that was pending on 8 December must be dealt with in

terms of the MPRDA113.

8.11. An application submitted after the date of effect of the 2014 EIA Regulations for

an amendment of an EMPr which was issued in terms of the MPRDA must be dealt

with in terms of the amendment provisions set out in Chapter 5 of the 2014 EIA

Regulations.

Environmental Authorisation granted, but component not previous listed now listed

and activity has not yet been commended with (ECA, NEMA and MPRDA)

8.12. Where an Environmental Authorisation was issued in terms of the ECA EIA

Regulations, the 2006 NEMA EIA Regulations or the 2010 NEMA EIA Regulations or

an authorisation in the MPRDA prior to 8 December 2014 a component which

was not identified under the activities identified under ECA or the 2006 NEMA

Listing Notices or the 2010 NEMA Listing Notices is identified in terms of the 2014

NEMA Listing Notices–

8.12.1. if the newly listed activity directly relates to prospecting or exploration of a

mineral or petroleum resource, or extraction and primary processing of a

mineral or petroleum resource, the Minister responsible for mineral

resources114; or

8.12.2. if the newly listed activity does not directly relate to prospecting or

exploration of a mineral or petroleum resource, or extraction and primary

processing of a mineral or petroleum resource, the Competent Authority

who issued the Environmental Authorisation,

may on application–

(a) for an amendment, where the amendment will not change the scope

of the valid Environmental Authorisation/authorisation nor increase the

level or nature of the impact, which impact was initially assessed and

considered when the original application for Environmental

Authorisation/authorisation was made, issue an amendment to the

Environmental Authorisation/authorisation either by way of a new

Environmental Authorisation or new Environmental Authorisations or an

addendum to the relevant Environmental Authorisation/authorisation,

or replace the existing valid Environmental Authorisation/authorisation

with an Environmental Authorisation in term of the 2014 EIA

Regulations115; or

(b) for Environmental Authorisation for the newly listed activity, replace the

existing valid Environmental Authorisation/authorisation with a new

Environmental Authorisation116.

113 Section 26 of Act No. 25 of 2014 refers. 114 Section 27(1) of the 2014 EIA Regulations refers. 115 Sections 27(2) and 29(a) of the 2014 EIA Regulations refer. 116 Section 25(4) of the 2014 EIA Regulations refers.


9. Guidelines

9.1. In terms of applications that were pending on 8 December 2014 the previous set of

Guidelines published117 by the Department still apply:

Guideline on Transitional Arrangements (March 2013)

Guideline on Appeals (March 2013)

Guideline on Alternatives (March 2013)

Guideline on Public Participation (March 2013)

Guideline on Exemption Applications (March 2013)

Guideline on Need and Desirability (March 2013)

Guideline on Generic Terms of Reference for EAPs and Project Schedules

(March 2013)

Note: While the Department published a Guideline on Need and Desirability

during March 2013, which was developed together with the national

Department of Environmental Affairs (“DEA”), DEA has published a

similar Guideline on Need and Desirability in terms of the

Environmental Impact Assessment (EIA) Regulations, 2010 (October

2014) as a national guideline118. While DEA’s guideline refers to the

2010 EIA Regulations, the 2014 EIA Regulations contain similar

requirements whereby the need for and desirability of the activity

have to be taken into account119 and the reports must to

describe/motivate the need and desirability of the activity and the

alternatives120. As such, DEA’s Guideline on Need and Desirability

(October 2014) must be taken into account when addressing need

and desirability in terms of the 2014 EIA Regulations.

9.2. While not formally published in terms of Section 24J of NEMA, the following

information documents must also be taken into account in terms of applications

that were pending on 8 December 2014:

Information Document on the Guidelines, Policies and Decision-Making

Instruments Relevant to EIA Applications in the Western Cape (October

2011)

Information Document on Biodiversity Offsets (October 2011)

117 Published in terms of Section 24J of NEMA in Notice No. 50621 in Provincial Gazette No. 7106 of 22 March 2013. 118 General Notice No. 891 published in Government Gazette No. 38108 on 20 October 2014 refers 119 Regulation 8 of the 2010 NEMA EIA Regulations and Regulation 18 of the 2014 EIA Regulations refer. 120 Regulations 22(2)(g), 28(1)(i), and 31(2)(f) of the 2010 NEMA EIA Regulations and Regulations 2(c) and 3(1)(f) of Appendix

1, Regulations 1(b) and 2(f) of Appendix 2, and Regulations 2(b) and 3(f) of Appendix 3 to the 2014 EIA Regulations refer.


10. Requests submitted to the Department for comments when the Department is not the

Competent Authority

10.1. When the Department is not the Competent Authority to deal with a specific

application, the Department must be consulted with as an I&AP121 by the EAP, but

also requested by the Competent Authority to provide comments to the

Competent Authority122.

10.2. The formulation of comments in response to requests in terms of 10.1 is being

coordinated between the different components in the Department. As such,

requests for comments in terms of 10.1 above must be directed at:

Andre Oosthuizen

Directorate: Development Facilitation

Department of Environmental Affairs & Development Planning, Western

Cape Government

1 Dorp Street, 11th Floor, Utilitas Building, Cape Town, 8001

Telephone : 021 483 4282

Fax : 021 483 8311

E-mail : [email protected]

121 Regulation 41 of the 2014 EIA Regulations refers. 122 Section 24O of NEMA refers.

mailto:[email protected]


11. “Incidents” and “Emergency Situations”123

11.1. Section 30 of NEMA deals with the “Control of Incidents” with “incident” defined

as “an unexpected, sudden and uncontrolled release of a hazardous substance,

including from a major emission, fire or explosion, that causes, has caused or may

cause significant harm to the environment, human life or property. Section 30 of

NEMA came into effect on 18 December 2013.

11.2. Section 30A of NEMA deals with “Emergency Situations” which is defined as “a

situation that has arisen suddenly that poses an imminent and serious threat to the

environment, human life or property, including a ‘disaster’ as defined in section 1

of the Disaster Management Act, 2002 (Act No. 57 of 2002), but does not include

an incident referred to in Section 30 of this Act”. “Disaster is defined in the Disaster

Management Act, 2002 (Act No. 57 of 2002) as “a progressive or sudden,

widespread or localised, natural or human-caused occurrence which– (a) causes

or threatens to cause - (i) death, injury or disease; (ii) damage to property,

infrastructure or the environment; or (iii) disruption of the life of a community; and

(b) is of a magnitude that exceeds the ability of those affected by the disaster to

cope with its effects using only their own resources”. Section 30A of NEMA comes

into effect on 18 December 2014.

12. Guidance by the Competent Authority

12.1. Similar to the 2010 NEMA EIA Regulations124, the 2014 EIA Regulations125 again

allows for a person intending to submit an application for Environmental

Authorisation (“proponent”) or an applicant or EAP to approach the Department

for advice on the nature and extent of any of the processes to be followed to

comply with NEMA and the 2014 EIA Regulations, or any relevant information or

decision support tool that must be taken into account or used.

12.2. Proponents and EAPs are therefore encouraged to, while also having to apply

their own minds, approach the Department for guidance prior to submitting an

application.

Yours faithfully

PIET VAN ZYL

HEAD OF DEPARTMENT

DATE: 9 December 2014

123 Section 29 of Act No. 30 of 2014 refers. 124 Regulation 5 of the 2010 NEMA EIA Regulations refers. 125 Regulation 8 of the 2014 EIA Regulations refers.

2014 ENVIRONMENTAL IMPACT ASSESSMENT (EIA) …

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