New ‘One Environmental System’ To Stamp Out Overregulation
The National Environmental Management Act (NEMA): EIA Regulations, which came into effect on 8 December 2014, impact on industrial, development and mining projects which require environmental impact assessment authorisations. The regulations form part of the introduction of a “one environmental system” in South Africa, which seeks to streamline environmental authorisation permitting processes. In doing so, the new regulations aim to bring certainty to many sectors, particularly mining. It is hoped the regulations will enable competitiveness and help to attract investment to the country.
The one environmental system covers the issuance of environmental authorisations and waste management licences by the Minister of Mineral Resources, in accordance with NEMA and the National Environmental Management: Waste Act, 2008. This relates to both mining and related activities. More critically, it requires the synchronisation of the process for the issuing of permits, licences and authorisations within a 300-day period.
For many years, concerns have been raised regarding the impact of lengthy periods associated with environmental authorisations. This situation was compounded by the fact that authorisations were required from various government departments, including the Department of Environmental Affairs (DEA) and the Department of Mineral Resources (DMR). Viewed as a stumbling block to the growth of the country’s mining sector, it is now hoped that the new regulations will open up the exploration and junior mining space.
Law firm Cliffe Dekker Hofmeyr’s director for Environmental Practice, Sandra Gore, explains that environmental management in South Africa, particularly in the mining sector, has often been criticised as being overregulated. This, combined with the requirement for several environmental consents under a range of legislation from various government departments, made the process costly and time-consuming, she says. Gore notes that the previous system often resulted in significant delays for mining projects, and consequential financial losses.
“The requirement for mines to obtain environmental authorisations for mining and prospecting activities has been welcomed by environmentalists, as NEMA contains far more comprehensive requirements for impact assessments in an application for an environmental authorisation, and mitigation measures to address anticipated environmental impacts,” explains Gore. “Streamlining the number of environmental consents required and the reduced time period for processing the applications have also generally been welcomed by mining companies.”
Having the timeframes legislated for the developer, as well as the reviewing authority, provides certainty as to when the development or project can commence, believes Dee Fischer, chief director for Integrated Environmental Management Support at the DEA. “It improves the overall planning of the development. The appeal process is now also time-bound, which similarly assists with providing the developer with
certainty regarding the appeal timeframes.”
Briony Liber, partner and principal environmental scientist at global consulting engineers and scientists SRK Consulting, concurs that the new regulations bring a combination of certainty around regulated permitting timeframes. She adds they also present an opportunity to optimise on the project planning and development process in an integrated and consultative manner that takes risk management into account.
“Over the last decade, EIAs have shifted to compliance rather than dealing with risk,” Liber comments. “With the arrival of the new 2014 EIA regulations, the importance of building relationships, integrative planning, applying the mitigation hierarchy to design out impacts and whittling down alternatives to a permittable project has again come full circle, and is encouraged ahead of commencing the permitting process, which is now the only part of the new authorisation system to be regulated.”
30 day conundrum
The Cape Town-based Centre for Environmental Rights (CER) argues, however, that the new 300-day timeframe imposed will have far-reaching and devastating consequences for the environment.
Its attorney and programme head for mining, Catherine Horsfield, explains that while some of the organisation’s proposed changes submitted to the department on the initial draft regulations were taken up in the final 2014 EIA regulations, most pertaining to timeframes were not.
The CER’s concerns centre on the reduced timeframes, not just for public participation around EIAs, but also for complex scientific assessment of potential negative impacts, and the design of programmes to manage those impacts.
“It is not controversial to say that some environmental impacts cannot be assessed in days and months,” the CER said in a statement. “Think about our great seasonal rivers, which flood in summer and run dry in winter. Or think how levels of dust (particulate matter) in the air change in Gauteng and Mpumalanga from winter to summer. Even more critically, current assessments of the way in which climate change will impact South Africans predict radical challenges for our water, land and food security. This is not the time for short-term thinking, and yet that is exactly what the current regulations demand.”
Liber stresses that companies should be proactive and not make the mistake of assuming that the 300-day permitting timeframe means an EIA can be undertaken in just 300 days.
She explains that this is particularly important for new entrants in the mining space or junior mining companies. Stumbling blocks may be encountered in the permitting process, notes Liber, specifically where sufficient project planning, seasonal and long-term baseline data collection and stakeholder consultation has not been done.
“While the permitting period is a known quantity, this does not mean that all environmental and social studies can be left until 300 days before an authorisation decision is required,” says Liber. “Therefore, we recommend that environmental and social input be included as early on as concept phase, and definitely throughout the prefeasibility studies leading into the feasibility phase.”
She explains: “The 300 days are completely regulated, so there is little to no room to undertake new studies or deal with any unknowns in that period. As a result, it is critical that applications are not submitted until the proponent has frozen the project description through a process of studying alternatives, engaging with stakeholders and eliminating any material impacts that may prevent the project from proceeding.”
The lion protecting the lamb
Meanwhile, Gore reveals that the authority given now to officials in the DMR to issue environmental authorisations has been criticised, as it is seen by environmentalists as the “lion protecting the lamb”. “DMR representatives have, however, argued that it is the best-placed government department to balance the assessment of the socio-economic needs for a mining project against the environmental impacts of the project,” she notes.
“However, the DMR is notorious for its slow processing of applications and a lack of understanding of the environmental legislation. Whether it has the ability to handle the administrative burden of processing EIA applications under a legislative framework unfamiliar to its employees in the tight time periods prescribed remains to be seen.”
In response to its capacity capability with regard to the new regulations, Joel Raphela, the deputy director-general for Mineral Regulation at the DMR, says training is ongoing, and relevant officials were trained even prior to the implementation of the new regulations. “This is despite the fact that there is not much difference from implementing environmental management programmes/plans previously prepared under the Mineral and Petroleum Resources Development Act (MPRDA). It should be noted that previous MPRDA requirements were originally derived from NEMA, and the requirements of the two sets of regulations have always been very similar.”
Simon van Wyk of Aurecon, an engineering, management and specialist technical services company, believes the EIA process is still a very effective tool in evaluating the sustainability of development proposals.
“To measure the extent to which EIAs substantially address sustainability, the sustainability criteria must go beyond adherence to procedural requirements and address substantive considerations, such as the sustainable use of resources, poverty and inequality,” he says. In fact, in his paper entitled The Role EIAs Are Presently Playing and Can Potentially Play in Promoting Sustainability in South Africa, Van Wyk describes EIAs as a critical tool to create a sustainable development vision.
“However, the often sole reliance on project-level EIA saddles EIAs with the very difficult challenge of having the project promote sustainability, often within a planning vacuum that has not addressed sustainability. Day-to-day practice should immediately be improved to better address sustainability within the current planning legislative framework, to provide a more credible context within which to undertake and consider EIA applications,” he wrote.