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COVID-19: CERTAIN ENVIRONMENTAL PROCESS AND OTHER TIMEFRAMES EXTENDED, SOUTH AFRICA

By Ayanda Msimang,Wandisile Mandlana,Michael Vermaak,Claire Tucker Wednesday, April 01, 2020
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Acting in terms of regulation 10(8) of the Regulations issued under section 27(2) of the Disaster Management Act 57 of 2002, on 31 March 2020, the Minister of Environment, Forestry and Fisheries issued directions to address, prevent and combat the spread of COVID-19 and to alleviate, contain and minimise the effects of the national state of disaster (Government Notice R439).

The Ministerial directions are further intended to ensure fair processes, especially regarding various environmental-related licensing, public participation and appeal processes, certain reporting requirements and the provision of certain waste management services during the lockdown period.  

These directions will have retrospective and future compliance implications to anyone involved in a range of environmental-related licensing, appeal and other processes, or who has a current obligation to report greenhouse gas or other air emissions.

As with any process where environmental legislation sets prescriptive time periods for certain actions to be taken, there now needs to be additional caution to ensure that the full implications of the directions, the lockdown period and any possible extension thereto, are properly considered and understood to avoid inadvertent non-compliance with potentially serious consequences.

The directions apply to all relevant national, local and provincial authorities, to relevant appeal authorities and also to all applicants, appellants, environmental assessment practitioners, companies, interested and affected parties and commenting authorities involved in the processes that are addressed in the directions.  The directions further apply to other parties involved in such processes, or who are responsible to submit reports, and holders of authorisations or licences related to the matters dealt with in the directions.

However, where any of the relevant licensing, competent or appeal authorities affected by the Minister’s directions has ‘publicly indicated’ that differing arrangements apply, then such other arrangements prevail over any arrangement contained in the Minister’s directions.

Any potentially affected persons should therefore urgently establish whether, for example, any provincial environmental authorities that are responsible for issuing environmental authorisations under the National Environmental Management Act 107 of 1998, or authorities responsible for appeals against such decisions, have publicly put in place other arrangements, as these could apply during the during the lockdown period, instead of the Ministerial directions.

Ministerial Directions

Licences and environmental authorisations contemplated in the National Environmental Management Act 107 of 1998 (NEMA), the National Environmental Management: Waste Act 59 of 2008 (NEMWA) and the National Environmental Management: Air Quality Act 39 of 2004 (NEMAQA)

The Minister’s directions extend the following timeframes by the number of days that the lockdown period persists, which will include any possible extensions of the lockdown period, with effect from 27 March 2020 until the termination of the lockdown period:

  • Timeframes prescribed in the NEMA Environmental Impact Assessment Regulations, 2014 (EIA Regulations) or any timeframes contained in any environmental authorisation issued in terms of the EIA Regulations, including any condition in an environmental authorisation relating to the period of validity or the extension of the validity period, and to the requirement for audit report submissions, which periods lapse or fall within the duration of the lockdown period.
  • Timeframes prescribed in terms of NEMWA and NEMAQA relating to any relevant licences (which will include waste management licences and atmospheric emission licences) and environmental authorisations.
  • Timeframes prescribed under the NEMA National Appeal Regulations, 2014, which relate to various types of environmental appeals in terms of NEMA, NEMWA and NEMAQA.

Furthermore, authorities responsible for the processing of such applications or appeals will not receive or process applications/ appeals from 27 March 2020 until the termination of the lockdown period.

Relating to (i) certain exemptions contemplated in NEMWA; (ii) the transfer of waste management licences in terms of NEMWA; (iii) authorisations to export of waste tyres in terms of the Waste Tyre Regulations, 2017 under NEMWA; and (iv)applications for amendment of remediation orders for contaminated land in terms of NEMWA

  • Exemptions issued in terms of the relevant provisions of NEMWA and expiring during the lockdown period will remain in effect for the duration of the lockdown, and are extended by the number of days of the duration lockdown period.
  • Applications for the transfer of waste management licenses will not be received or processed by the relevant authorities for the duration of the lockdown period.
  • Authorisations for the exportation of waste tyres expiring during the lockdown period will remain in effect for the duration of the lockdown and are extended by the number of days of the duration lockdown.
  • Authorities responsible for processing applications to amend remediation orders for contaminated land will not receive or process such applications during the duration of the lockdown period.

Reporting requirements under the National Atmospheric Emission Reporting Regulations, 2015 and National Greenhouse Gas Emission Reporting Regulations in terms of NEMAQA

The directions provide that references to the date of ‘31 March’ in regulation 8 of the National Atmospheric Emission Reporting Regulations, 2015 and regulation 7(1) and (2) of the National Greenhouse Gas Emission Reporting Regulations, must for the duration of the lockdown period be read as referring to ‘30 April 2020’.