1. NATIONAL ENVIRONMENTAL MANAGEMENT LAWS AMENDMENT BILL [B14 – 2017] PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS MEETING OF 30 JANUARY 2018

2. PURPOSE OF THE PRESENTATION
The purpose of the presentation is to provide the Portfolio Committee on Environmental Affairs with an overview of the National Environmental Management Laws Amendment Bill [B ] (NEMLA 4 BILL).

3. PURPOSE OF NEMLA 4 BILL
The main purpose of NEMLA 4 is to amend the following Acts:
National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA);
National Environmental Management: Protected Areas Act, 2003 (Act No. 57 of 2003) (NEMPAA);
National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEMBA);
National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) (NEMAQA);
National Environmental Management: Integrated Coastal Management Act, (Act No. 24 of 2008) (NEMICM);
National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008) (NEMWA);
National Environmental Management Amendment Act, 2008 (Act No. 62 of 2008) (NEMAA);
In order to provide for clarity on certain matters and textual amendments.  

4. AMENDMENTS TO NEMA Clause 1: Amendment of section 1
The clause amends the definition of “financial provision” to clarify that it is applicable to an applicant and a holder of an environmental authorisation as well as a holder of a right or permit granted in terms of the MPRDA. Clause also amend the definitions of “Constitution” to correct the citation of the Act and “environmental mineral resources inspector” to include “petroleum” in the designation;
Clause 2: Amendment of section 2
This clause provides an additional NEMA principle, namely that the environment sector must advance and promote the full participation of black professionals;
Clause 3: Amendment of section 24
This clause seeks to facilitate flexibility in the use of environmental management instruments and how they cater for the impact management. The clause also add a new subsection to provide clarity that the Minister or an MEC may develop regulations regarding the procedure to be followed for the preparation, evaluation, adoption and review of environmental management instruments. The clause further seeks to empower the Minister to keep a national register of all environmental management instruments adopted in terms of NEMA;

5. AMENDMENTS TO NEMA Clause 4: Amendment of section 24C
The clause seeks to provide clarity that the Minister of Mineral Resources is the competent authority for activities directly related to prospecting or exploration of a mineral or petroleum resource or primary processing of a mineral or petroleum resource. The clause also provides for the simultaneous submission of environmental authorisation application and any other related licence or permit required under any of the specific environmental management Act;
Clause 5: Amendment of section 24G
The clause clarifies that a successor in title of a person or property may also lodge a section 24G application. The same principle is also applicable to the unlawful commencement of a waste management activity;
Clause 6: Amendment of section 24N
The clause is intended to provide clarity that the information that must be contained in the environmental management programme must be prescribed through regulations;

6. AMENDMENTS TO NEMA Clause 7: Amendment of section 24O
This clause seeks to amend section 24O(2) to also require an environmental assessment practitioner to consult every State department that administers a law relating to a matter affecting the environment;
Clause 8: Amendment of section 24P
This clause provides clarity that an applicant, a holder of an environmental authorisation and a holder of a right issued or a permit granted in terms of the MPRDA must set aside financial resources for progressive rehabilitation, mitigation, remediation, mine closure and the management of post closure environmental impacts. The clause also provides clarity that the environmental liability must be assessed annually, but the audit report only needs to be submitted to the Minister every three years. The clause further provides clarity that the requirement to maintain and retain the financial provision remains in force until a closure certificate is issued and that the portion of financial provision as may be required to rehabilitate latent, residual or any other environmental impacts of the closed mine must be ceded to the Minister responsible for mineral resources and that the Minister responsible for mineral resources must retain such portion in perpetuity;

7. AMENDMENTS TO NEMA Clause 9: Amendment of section 24R
The clause repeals section 24R(2) to eliminate duplication, a similar provision is also contained in section 24P(5);
Clause 10: Amendment of section 24S
The clause repeals section 24S to ensure that residue deposits and residue stockpile are managed under NEMA instead of NEMWA;
Clause 11: Amendment of section 28
This clause seeks to provide clarity that environmental authorities may issue a section 28(4) directive to any owner of land or premises, a person in control of land or premises or a person who has a right to use the land or premises on which or in which any activity or process is or was performed or undertaken; or any other situation exists, which causes, has caused or is likely to cause significant pollution or degradation of the environment. The clause also empowers a municipal manager to issue a section 28(4) directive, and further empowers the Director-General, Director-General of Mineral Resources or provincial head of department to issue a directive on each category of responsible persons, thus making them independently liable for the undertaking of reasonable measures. This clause further amends sections 28(9) and (11) to provide for joint and several liability in respect of the responsible persons;

8. AMENDMENTS TO NEMA Clause 12: Amendment of section 31BB
This clause seeks to empower the empower the Minister responsible for mineral resources to designate any staff member of the Department of Mineral Resources or any organ of state, subject to the conclusion of an agreement between the Minister and the relevant organ of state, as an environmental mineral and petroleum inspector;
Clause 13: Amendment of section 31D
This clause seeks to empower environmental management inspectors to monitor compliance and enforce any provincial environmental management legislation, and to ensure that environmental management inspectors and environmental mineral resource inspectors exercise their respective powers in accordance with any applicable duty;
Clause 14: Amendment of section 31E
The clause provides clarity that the environmental mineral and petroleum inspectors will receive the same standard of approved training as is received by the environmental management inspectors before designation. The clause also empowers the Minister responsible for environmental affairs to prescribe through regulations the Code of Conduct applicable to environmental management inspectors and environmental mineral and petroleum inspectors;

9. AMENDMENTS TO NEMA Clause 15: Amendment of section 31F
This clause seeks to provide clarity that environmental management inspectors who exercise powers and perform duties in terms of the NEMA are issued, and on request produce, identity cards as proof of their designation. The amendment also seeks to include environmental mineral and petroleum inspectors as well as provincial legislation in the exercise of powers and performance of duties;
Clause 16: Amendment of section 31G
The clause seeks to empower environmental management inspectors who receive a complaint alleging non-compliance to gather further information that will turn a mere suspicion into a reasonable suspicion;
Clause 17: Amendment of section 31H
This clause is intended to allow the environmental management inspectors to question persons without the requirement of a reasonable suspicion, in order to for the gathering of information of an alleged non-compliance through the asking of relevant questions prior to a reasonable suspicion being formed. The clause also seeks to empower environmental management inspectors to monitor compliance and enforce not only national pieces of environmental legislation, but also any provincial environmental management legislation. The clause further seeks to empower environmental management inspectors to issue lawful instructions;

10. AMENDMENTS TO NEMA Clause 18: Amendment of section 31I
This amendment is a consequential amendments to ensure that environmental management inspectors are allowed to issue lawful instructions, rather than mere requests, in accordance with the provisions of the NEMA;
Clause 19: Amendment of section 31J
This amendment is a consequential amendment to ensure that environmental management inspectors are also empowered to monitor compliance and enforce any provincial environmental management legislation;
Clause 20: Amendment of section 31K
This clause seeks to provide clarity that the conducting of a "search" is not the primary purpose of undertaking a routine inspection, but rather the entry onto certain premises for the purposes of ascertaining compliance. The amendment also extends the power to environmental mineral and petroleum inspectors to apply for a warrant to enter residential premises for the purposes of conducting an inspection. The clause further empower environmental management inspectors to detain an item or items for a temporary period of time in order to conduct further analysis or verification as to whether or not such item complies with the relevant legal requirements, in certain circumstances;

11. AMENDMENTS TO NEMA Clause 21: Amendment of section 31L
This clause seeks to provide clarify that an environmental management inspector as well as an environmental mineral and petroleum inspector must issue a compliance notice which substantially comply with the prescribed form;
Clause 22: Amendment of section 31M
The amendment is a consequential amendment to clarify that a person who wants to object to a compliance notice may do so, by making representations, to the relevant appeal authority, namely, the Minister responsible for environmental affairs, the Minister responsible for mineral resources, the Minister responsible for water affairs or a municipal council;
Clause 23: Amendment of section 31O
This clause seeks to empower members of the South African Police Services are also empowered to monitor compliance and enforce any provincial environmental management legislation;
Clause 24: Amendment of section 31P
This clause seeks to provide clarify that a holder of a permit, licence, permission, certificate, authorisation or any other document must produce such documents on the lawful instruction by an environmental management inspector or an environmental mineral and petroleum inspector;

12. AMENDMENTS TO NEMA Clause 25: Amendment of section 31Q
This amendment is a consequential amendment to clarify that the confidentiality of information is also applicable to provincial environmental management legislation;
Clause 26: Amendment of section 34E
The clause seeks to provide clarity that any seized live specimens "may", instead of "must", be deposited with a suitable institution, rescue centre or facility; as the circumstances require. The clause also provides clarity that seized live specimens may be disposed of in terms of section 30(a) of the Criminal Procedure Act, 1977;
Clause 27: Amendment of section 34G
This clause seeks to provide clarity that Minister's regulatory power to specify offences and prescribe the amount for purposes of admission of guilt fines contextualizes section 57(5) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977);
Clause 28: Amendment of section 42B
The clause seeks to provide clarify that the Minister of mineral resources may also delegate to his or her powers under NEMA to an organ of state subject to an agreement between the Minister responsible for environmental affairs and the organ of state;

13. AMENDMENTS TO NEMA Clause 29: Inserts new sections 42C and 42D
This clause inserts new sections 42C and 42D, to empower the Minister responsible for water affairs and municipal manager of a municipality to delegate his or her powers under the NEMA to an official in the Department responsible for water affairs or municipality, respectively;
Clause 30: Amendment of section 43
The clause seeks to provide clarity that a person may also appeal a section 28(4) directive issued by a delegated official. The amendment also provides clarity that the submission of an appeal will not automatically suspend a section 28(4) directive, unless there is good cause shown to the satisfaction of the Minister;
Clause 31: Amendment of section 47
This clause repeals section 47(2) and (2A) to avoid duplication of legal requirements, requiring the Minister responsible for environmental affairs or MEC to table all regulations developed in terms of the NEMA in Parliament or relevant provincial legislature since all regulations are currently being tabled in Parliament in terms of section 17 of the Interpretation Act, 1957;

14. AMENDMENTS TO NEMA Clause 32: Amendment of section 49A
This clause provides a new subsection to provide that where a norm and standard specifically provides for a provision to be an offence, then those specific provisions will be considered to be offences. The clause seeks to provide clarity that it is an offence for any person not to comply with an instruction, rather than a request, of an environmental management inspector;
Clause 33: Amendment of section 49B
This clause seeks to provide the maximum monetary penalty for certain serious offences;
Clause 34: Amendment of Schedule 3
This clause amends Schedule 3 to provide for textual amendments to ensure the citation of appropriate offences listed in certain national and provincial legislation;

15. AMENDMENTS TO NEMPAA AND NEMBA
Clause 35: Amendment of section 57 of NEMPAA
This clause seeks to provide clarity that the Chief Financial Officer must be a member of the board of the South African National Parks;
Clause 36: Amendment of section 89 of NEMPAA
The clause seeks to provide clarity that it is an offence to undertake a restricted activity in a marine protected area;
Clause 37: Amendment of section 1 of NEMBA
This clause amends the definition of "control", and inserts a new definition of "eradicate" in order to provide clarity on the actions, measures or methods to be undertaken when dealing with listed invasive species;
Clause 38: Amendment of section 2 of NEMBA
These clause seeks to extend the scope of the objects of the Act to clarify that the object of the Act is to provide that the use of indigenous biological resources in a manner that is ecologically sustainable, including taking into account the well-being of any faunal biological resource;

16. AMENDMENTS TO NEMPAA AND NEMBA
Clause 39: Amendment of section 3 of NEMBA
This clause seeks to provide clarity that in order for the State to give full effect to section 24 of the Constitution of the Republic of South Africa, 1996, the State must be in a position to remain the custodian of wild animals that escape from land under its control;
Clause 40: Amendment of section 13 of NEMBA
The clause seeks to provide clarity that the Chief Financial Officer must be a member of the board of the South African National Biodiversity Institute;
Clauses 41 and 42: Amendment of sections 73 and 75 of NEMBA
The clauses empower the Minister to develop regulations on the steps to be undertaken to control or eradicate listed invasive species;
Clause 43: Amendment of section 97 of NEMBA
The clause empowers the Minister to make regulations in relation to the protection of the well-being of a faunal biological resource during the carrying out a restricted activity involving faunal biological resource;

17. AMENDMENTS TO NEMBA
National Environmental Management Laws Amendment Bill [B14─2017]
Invasive alien species are plants, animals and microbes that are introduced into countries, and then out-compete the indigenous species.
Invasive alien species are not only the single biggest threat to the country’s biological diversity, but also pose a direct threat to South Africa’s water security, the ecological functioning of natural systems and the productive use of land.
Invasive alien plants also intensify the impact of fires and floods, and worsen soil erosion, siltation and sedimentation.
Invasive aquatic plants can double the area they invade every ten days, and cause a 40% increase in evaporation, among other impacts.
Invasive alien species are causing several billions of Rands of damage to South Africa’s economy every year. Left alone, they will spread and grow, with an exponential ecological, economic and social impacts.

18. AMENDMENTS TO NEMBA
National Environmental Management Laws Amendment Bill [B14─2017]
The escalating loss of biological diversity, ecosystem services and natural capital can be reversed through integrated, systematic and structured restoration interventions, such as Working for Water, Working on Fire and their associated programmes.
It is clear that conventional control options will not suffice, and the Department has initiated two programmes to utilize the biomass, and thus reduce the cost of the control of the invasive species:
The Eco-Furniture Programme, which primarily uses logs to make solid-wood products such as office furniture, school desks, coffins and many others. This programme been temporarily administered through the SANParks, with some challenges; and

19. AMENDMENTS TO NEMBA
National Environmental Management Laws Amendment Bill [B14─2017]
The Value-Added Industries Programme, which seeks to find further ways to utilise the rest of the biomass of invasive alien plants that are cleared in terms of the Working for Water programme and the Biosecurity mandate of the Department. The programme has a particular focus on using composite (wood-chip) invasive biomass to make products, with a particular focus on building materials, and especially the “Light House”, and wood-plastic composite as a building materials. This programme is temporarily administered through the Working on Fire programme.
The Eco-Furniture and Value-Added Industries programmes are temporarily administered by SANParks and Working for Fire programme respectively, whilst researching the Treasury requirement of a dedicated special-purpose vehicle with a Trading Account, and dedicated supply-chain management capacity, to administer the programmes.
The Department proposes that the capacity to manage the broad VAI programme (including Eco-Furniture Programme) should be concentrated in a public entity of the Department.
The public entity may later be a home for the Working for Fire programme, including the Department’s Green Economy initiative, and other appropriate programmes.

20. AMENDMENTS TO NEMBA
Clauses 44 and 45: Amendment of sections 99 and 100 of NEMBA
This clause seeks to provide clarity that the MEC for environmental affairs in each province must also follow the consultative process set out in sections 99 and 100 of the NEMBA when exercising a power under the Act;

21. AMENDMENTS TO NEMAQA Clause 46: Amendment of section 13
This clause seeks to provide clarity that the Minister with a discretion to establish a National Air Quality Advisory Committee;
Clause 47: Amendment of section 22A
The clause seeks to provide for the consequences of unlawful conducting of listed air activities. This clause also sets out the process and procedures to be followed in addressing the non-compliance with the law;
Clause 48: Amendment of section 36
The clause seeks to provide clarity that a province must be regarded as a licensing authority where a listed air activity falls within the boundaries of more than one metropolitan municipality or more than one district municipality. The amendment also seeks to provide clarity that the Minister is only the licensing authority if the Minister is identified as such in terms of NEMA, NEMWA and NEMAQA, and also extend the scope to allow for co-operative agreement to be reached between the Municipality, MEC and the Minister on who the licencing authority will be on any application;
Clause 49: Amendment of section 53
This clause deletes paragraph (k) in section 53 to ensure that appeal regulations developed under section 43 of NEMA are also applicable to appeals against air quality decisions;

22. AMENDMENTS TO NEMICM Clause 50: Amendment of section 60
This clause clarifies the retrospective effect of section 60, namely, the issuing of notices for the removal of structures that were erected prior to the commencement of the Act;
Clause 51: Amendment of section 74
The clause seeks to provide legal clarity that an appeal against a decision issued by delegated officials must be lodged at the appropriate sphere of government and appeal authority;

23. AMENDMENTS TO NEMWA Clause 52: Amendment of section 1
The clause provides for textual amendments to the definition of "waste" so as to provide legal clarity on the interpretations and to prevent unintended consequences. The clause also inserts new definitions;
Clause 53: Amendment of section 4
This clause provides clarity that residue stockpiles and residue deposits are no longer regulated under NEMWA, but under NEMA;
Clause 54: Amendments of section 34A
The clause seeks to provide clarity that the Waste Management Bureau is established as a juristic person with a Board, and that in absence of a functional board, the powers and duties of the Board revert to the Minister;
Clause 55: Amendment of section 34C
The clause sets out the Minister’s supervisory powers over the Waste Management Bureau;

24. AMENDMENTS TO NEMWA
Clause 56: Amendment of sections 34F, 34G, 34H, 34I, 34J, 34K, 34L
The clause sets out the general powers of the Bureau, governing Board of the Bureau, composition and membership, qualifications for members of the governing Board, appointment procedure for members of the governing Board, term of office of members of the Board and conditions of appointment of members of the governing Board;
Clause 57: Inserts new sections 34M, 34N, 34O, 34P, 34Q, 34R, 34S, 34T, 34U, 34V, 34W, 34X, 34Y, 34Z
This clause sets out the governance matters of the Board;
Clauses 58 and 59: Amendments of sections 37 and 38
The clause to provide clarity that a site assessment report must be submitted together with a remediation plan;
Clause 60: Amendment of section 41
This clause provides clarity that the Minister must only keep a national register of all contaminated land;

25. AMENDMENTS TO NEMWA Clause 61: Amendment of section 43
This clause seeks to provide clarity that the Minister responsible for mineral resources, as the identified licensing authority, is responsible for the implementation of the waste management licensing system in so far as the waste management activities is directly related to prospecting or exploration of a mineral or petroleum resource; extraction and primary processing of a mineral or petroleum resource. The amendment also proposes that in instances where the MEC responsible for environmental affairs fails to take a decision to issue a waste management licence within prescribed timeframes, an applicant may request the Minister to take the decision;
Clause 62: Repeal of section 43A
This clause repeals section 43A to provide clarity that residue stockpiles and residue deposits are no longer regulated under NEMWA, but under NEMA;
Clause 63: Amendment of section 52
This clause provides for the consequential textual amendment to refer to licensing authorities, collectively including the Minister, Minister of Mineral Resources and MECs;
Clause 64: Amendment of section 54
This clause provides for the payment of processing fee for the variation of a waste management licence;

26. AMENDMENTS TO NEMWA Clause 65: Amendment of section 67
This clause is a consequential amendment deleting the offence regarding residue stockpiles and residue deposits, and also creates an offence if a person contravenes a provision of a norm or standard;
Clause 66: Repeal of section 69
This clause is also a consequential amendment deleting the Minister’s power to develop regulations regarding residue stockpiles and residue deposits, since the stockpiles and deposits are no longer regulated under NEMWA, but under NEMA;
Clause 67: Amendment of section 69A
The clause is a consequential amendment deleting the Minister’s power to make regulations pertaining to the Waste Management Bureau, since it is no longer necessary for the Minister to make such regulations as it will now be a fully-fledged public entity;
Clause 68: Amendment of section 71
This clause seeks to provide clarity that the fines that can be imposed in terms of regulations under the NEMWA have been amended to be in line with fines that can be imposed in terms of the National Environmental Management Act, 1998 and the other specific environmental management Acts;

27. AMENDMENTS TO NEMWA
Clauses 69, 70, 71 and 72: Amendments of sections 74, 75, 76 and 77
This clause is a consequential amendment empowering the Minister of Mineral Resources to issue an exemption in so far such an exemption relate to a provision administered by the Minister of Mineral Resources;
Clause 73: Substitution of certain expressions
The clause replaces the expression of the "Minister of Water Affairs and Forestry" with the Minister responsible for water affairs throughout the NEMWA;
Clause 74: Substitution of Schedule 3
This clause replaces Schedule 3 with a new Schedule on sources of waste. This Schedule is read with the revised definition of "waste" contained in section 1 of the Act;

28. AMENDMENTS TO NEMAA Clause 75: Amendment of section 12
The clause seeks to provide legal clarity that an environmental management plan or programme applied for and approved in terms of the MPRDA, on or before 8 December 2014, is deemed to have been approved and issued in terms of NEMA;
The clause also provides clarity that environmental management plan or programme approved under the MPRDA after 8 December 2014, if the application for the exploration, prospecting, or mining right, permits or licence was received before that date, is deemed to have been approved and an environmental authorisation issued under the NEMA;
This clause further provides clarity that an environmental appeal lodged in terms of a decision made under the MPRDA, must be finalised in terms of the MPRDA, regardless whether the decision was made before or after 8 December 2014;
The transitional arrangement is not applicable to ancillary activities not authorised in terms of the NEMA or NEMWA;

29. AMENDMENTS TO NEMAA
Clause 76: Transitional provision for environmental management programmes
This clause inserts a new section to provide clarity that an environmental management plan or programme issued and approved in terms of the MPRDA, on, before or after 8 December 2014, is deemed to have been approved and an environmental authorisation issued in terms of NEMA, excluding ancillary activities not authorised in terms of the NEMA or NEMWA.
The clause empowers the Minister of Mineral Resources to instruct a holder of a right or permit to take action to upgrade any deficiencies in the environmental management plan or programme.
The clause also provides clarity that all pending applications and appeals lodged in terms of the MPRDA, before 8 December 2014 must be processed in terms of the relevant provisions of the MPRDA, and any ancillary activities must be processed in terms of NEMA or NEMWA.
The clause further provides for the continuation of the environmental regulations (financial provisions regulations and the management and control of residue stockpiles and residue deposits regulations) developed under the MPRDA, until such time that similar regulations are developed under NEMA or NEMWA;

30. NEMLA BILL
Clause 77: Transitional provision for residue stockpiles and deposits
This clause provides for clarity that the residue stockpiles and residue deposits approvals or waste management licences issued in terms of the NEMWA, remain valid until they lapse or are replaced under NEMA;
The clause further provide clarity that the regulations pertaining to the management and control of residue stockpiles and residue deposits from a prospecting, mining, exploration or production operation developed under the NEMWA remain valid and regarded as being developed under NEMA;

31. NEMLA BILL
Clause 78: Transitional provision for Waste Management Bureau
The clause provides clarity that anything done by the Waste Management Bureau under the repealed Part 7A of the NEMWA remains valid until any subsequent new provisions overrides it.