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National Environmental Management Act, 1998 (Act No. 107 of 1998)

Chapter 5 : Integrated Environmental Management

24. Environmental authorisations

 

(1) In order to give effect to the general objectives of integrated environmental management laid down in this Chapter, the potential consequences for or impacts on the environment of listed activities or specified activities must be considered, investigated, assessed and reported on to the competent authority or the Minister responsible for mineral resources, as the case may be, except in respect of those activities that may commence without having to obtain an environmental authorisation in terms of this Act.

 

(1A) Every applicant must comply with the requirements prescribed in terms of this Act in relation to—
(a) steps to be taken before submitting an application, where applicable;
(b) any prescribed report;
(d) any procedure relating to public consultation and information gathering;
(e) the submission of an application for an environmental authorisation and any other relevant information; and
(f) the undertaking of any specialist report, where applicable.

 

(2) The Minister, or an MEC with the concurrence of the Minister, may identify—
(a) activities which may not commence without environmental authorisation from the competent authority;
(b) geographical areas based on environmental attributes, and as specified in spatial development tools adopted in the prescribed manner by the Minister or an MEC, with the concurrence of the Minister, in which specified activities may not commence without environmental authorisation from the competent authority;

[Section 24(2)(b) amended by section 5(a) of Act No. 30 of 2013]

(c) geographical areas based on environmental attributes, and specified in spatial tools or environmental management instruments, adopted in the prescribed manner by the Minister or an MEC, with the concurrence of the Minister, in which specified activities may be excluded from the requirement to obtain an environmental authorisation from the competent authority;

[Section 24(2)(c) amended by section 5(a) of Act No. 30 of 2013]

(d) activities contemplated in paragraphs (a) and (b) that may be excluded from the requirement to obtain an environmental authorisation from the competent authority, but that must comply with prescribed norms or standards; or

[Section 24(2)(d) amended by section 5(a) of Act No. 30 of 2013]

(e) activities contemplated in paragraphs (a) and (b) that, based on an environmental management instrument adopted in the prescribed manner by the Minister or an MEC, with the concurrence of the Minister, may be excluded from the requirement to obtain an environmental authorisation from the competent authority:

[Section 24(2)(e) inserted by section 5(b) of Act No. 30 of 2013]

Provided that where an activity falls under the jurisdiction of another Minister or MEC, a decision in respect of paragraphs (a) to (d) must be taken after consultation with such other Minister or MEC.

 

(2A)        

(a) In accordance with the risk averse and cautious approach contemplated in section 2(4)(a)(vii) and subject to paragraphs (e) and (f), the Minister may by notice in the Gazette prohibit or restrict the granting of an environmental authorisation by the competent authority for a listed or a specified activity in a specified geographical area for such period and on such terms and conditions as the Minister may determine, if it is necessary to ensure the protection of the environment, the conservation of resources or sustainable development.
(b) Where the Minister has exercised his or her powers in terms of paragraph (a), the competent authority must—
(i) not accept any further application for an environmental authorisation for the identified listed or specified activity in the identified geographical area until such time that the prohibition has been lifted; and
(ii) deem all pending applications to have been withdrawn.
(c) The exercise of the Minister’s powers in terms of paragraph (a) does not affect the undertaking of activities authorised by means of an environmental authorisation prior to the prohibition or restriction becoming effective.
(d) Where the prohibition or restriction affects the exercise of a power that an MEC has in terms of this Act, the prohibition or restriction contemplated in paragraph (a) may be published in the Gazette after consulting the MEC concerned.
(e) The Minister may by notice in the Gazette
(i) lift a prohibition or restriction made in terms of paragraph (a) if the circumstances which caused the Minister exercise his or her powers in terms of paragraph (a) no longer exist; or
(ii) amend any period, term or condition applicable to a prohibition or restriction if the circumstances which caused the Minister to exercise his or her powers in terms of paragraph (a) have changed.
(f) Before the exercise of his or her powers in terms of paragraph (a), the Minister must—
(i) consult all Cabinet members whose areas of responsibility will be affected by the exercise of the power;
(ii) in accordance with the principles of co-operative governance set out in Chapter 3 of the Constitution, consult an MEC who will be affected by the exercise of the power; and
(iii) publish a notice in the Gazette inviting members of the public to submit to the Minister, within 30 days of publication of the notice in the Gazette, written representations on the proposed prohibition or restriction.’’

[Section 24(2A) inserted by section 5(c) of Act No. 30 of 2013]

 

(3) The Minister, or an MEC with the concurrence of the Minister, may compile information and maps that specify the attributes of the environment in particular geographical areas, including the sensitivity, extent, interrelationship and significance of such attributes which must be taken into account by every Competent authority.

 

(4) Procedures for the investigation, assessment and communication of the potential consequences or impacts of activities on the environment—
(a) must ensure, with respect to every application for an environmental authorisation
(i) co-ordination and co-operation between organs of state in the consideration of assessments where an activity falls under the jurisdiction of more than one organ of state;
(ii) that the findings and recommendations flowing from an investigation, the general objectives of integrated environmental management laid down in this Act and the principles of environmental management set out in section 2 are taken into account in any decision made by an organ of state in relation to any proposed policy, programme, process, plan or project;
(iii) that a description of the environment likely to be significantly affected by the proposed activity is contained in such application;
(iv) investigation of the potential consequences for or impacts on the environment of the activity and assessment of the significance of those potential consequences or impacts; and
(v) 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 procedures; and
(b) must include, with respect to every application for an environmental authorisation and where applicable—
(i) 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 activity;
(ii) investigation of mitigation measures to keep adverse consequences or impacts to a minimum;
(iii) investigation, assessment and evaluation of the impact of any proposed listed or specified activity on any national estate referred to in section 3(2) of the National Heritage Resources Act, 1999 (Act No. 25 of 1999), excluding the national estate contemplated in section 3(2)(i)(vi) and (vii) of that Act;
(iv) reporting on gaps in knowledge, the adequacy of predictive methods and underlying assumptions, and uncertainties encountered in compiling the required information;
(v) investigation and formulation of arrangements for the monitoring and management of consequences for or impacts on the environment, and the assessment of the effectiveness of such arrangements after their implementation;
(vi) consideration of environmental attributes identified in the compilation of information and maps contemplated in subsection (3); and
(vii) provision for the adherence to requirements that are prescribed in a specific environmental management Act relevant to the listed or specified activity in question.

 

(4A) Where environmental impact assessment has been identified as the environmental instrument to be utilised in informing an application for environmental authorisation, subsection (4)(b) is applicable.

 

(5) The Minister, or an MEC with the concurrence of the Minister, may make regulations consistent with subsection (4)—
(a) laying down the procedure to be followed in applying for, the issuing of, and monitoring compliance with, environmental authorisations;
(b) laying down the procedure to be followed in respect of—
(i) the efficient administration and processing of environmental authorisations;
(ii) fair decision-making and conflict management in the consideration and processing of applications for environmental authorisations;
(iii) [Section 24(5)(b)(iii) deleted by the National Environmental Management Amendment Act No. 62 of 2008] ;
(iv) applications to the competent authority by any person to be exempted from the provisions of any regulation in respect of a specific activity;
(v) appeals against decisions of competent authorities;
(vi) the management and control of residue stock piles and deposits;

[Section 24(5)(b)(vi) amended by section 2(a) of Act No. 25 of 2014]

(vii) consultation with land owners, lawful occupiers and other interested or affected parties;
(viii) mine closure requirements and procedures, the apportionment of liability for mine closure and the sustainable closure of mines with an interconnected or integrated impact resulting in a cumulative impact;
(ix) financial provision; and
(x) monitoring and environmental management programme performance assessments;
(bA) laying down the procedure to be followed for the preparation, evaluation, adoption and review of prescribed environmental management instruments, including—
(i) environmental management frameworks;
(ii) strategic environmental assessments;
(iii) environmental impact assessments;
(ix) environmental management programmes;
(v) environmental risk assessments;
(vi) environmental feasibility assessments;
(vii) norms or standards;
(viii) spatial development tools;
(viiiA) minimum information requirements; or
(ix) any other relevant environmental management instrument that may be developed in time;

[Section 24(5)(bA) amended by section 2(b) of Act No. 25 of 2014]

(bB) laying down the procedure for the preparation, evaluation and adoption of the instruments referred to in subsection (2)(c), (d) and (e), including criteria or conditions to be included in such instruments;

[Section 24(5)(bB) inserted by section 5(d) of Act No. 30 of 2013]

(c) prescribing fees, after consultation with the Minister of Finance, to be paid for—
(i) the consideration and processing of applications for environmental authorisations; and
(ii) the review of documents, processes and procedures by specialists on behalf of the competent authority;
(d) requiring, after consultation with the Minister of Finance, the provision of financial or other security to cover the risks to the State and the environment of non-compliance with conditions attached to environmental authorisations;
(e) specifying that specified tasks performed in connection with an application for an environmental authorisation may only be performed by an environmental assessment practitioner registered in accordance with the prescribed procedures:
(f) requiring that competent authorities maintain a registry of applications for, and records of decisions in respect of, environmental authorisations;
(g) specifying that a contravention of a specified regulation is an offence and prescribing penalties for the contravention of that regulation;
(h) prescribing minimum criteria for the report content for each type of report and for each process that is contemplated in terms of the regulations in order to ensure a consistent quality and to facilitate efficient evaluation of reports;
(i) prescribing review mechanisms and procedures including criteria for, and responsibilities of all parties in, the review process; and
(j) prescribing any other matter necessary for dealing with and evaluating applications for environmental authorisations.

 

(6) An MEC may make regulations in terms of subsection (5) only in respect of listed activities and specified activities or areas in respect of which the MEC is the competent authority.

 

(7) Compliance with the procedures laid down by the Minister or an MEC in terms of subsection (4) does not absolve a person from complying with any other statutory requirement to obtain authorization from any organ of state charged by law with authorising, permitting or otherwise allowing the implementation of the activity in question.

 

(8)
(a) Authorisations obtained under any other law for an activity listed or specified in terms of this Act does not absolve the applicant from obtaining authorisation under this Act unless an authorisation has been granted in the manner contemplated in section 24L.
(b) Authorisations obtained after any investigation, assessment and communication of the potential impacts or consequences of activities, including an exemption granted in terms of section 24M or permits obtained under any law for a listed activity or specified activity in terms of this Act, may be considered by the competent authority as sufficient for the purposes of section 24(4), provided that such investigation, assessment and communication comply with the requirements of section 24(4)(a) and, where applicable, comply with section 24(4)(b).

 

(9) Only the Minister may make regulations in accordance with subsection (5) stipulating the procedure to be followed and the report to be prepared in investigating, assessing and communicating potential consequences for or impacts on the environment by activities, for the purpose of complying with subsection (1), where the activity—
(a) has a development footprint that falls within the boundaries of more than one province or traverses international boundaries; or
(b) will affect compliance with obligations resting on the Republic under customary international law or a convention.

 

(10)
(a) The Minister, or an MEC with the concurrence of the Minister, may—
(i) develop or adopt norms or standards for—
(aa) a listed activity or specified activity contemplated in subsection (2)(a) and (b);
(bb) any part of the listed or specified activity referred to in item (aa);
(cc) any sector relating to item (aa);
(dd) any geographical area relating to item (aa); or
(ee) any combination of the activities, sectors, geographical areas, listed activities or specified activities referred to in items (aa), (bb), (cc) and (dd);

[Section 24(10)(a)(i) amended by section 5(e) of Act No. 30 of 2013]

(ii) prescribe the use of the developed or adopted norms or standards in order to meet the requirements of this Act;
(iii) prescribe reporting and monitoring requirements; and
(iv) prescribe procedures and criteria to be used by the competent authority for the monitoring of such activities in order to determine compliance with the prescribed norms or standards.
(b) Norms or standards contemplated in paragraph (a) must provide for rules, guidelines or characteristics—
(i) that may commonly and repeatedly be used; and
(ii) against which the performance of activities or the results of those activities may be measured for the purposes of achieving the objects of this Act.
(c) The process of developing norms or standards contemplated in paragraph (a) must, as a minimum, include—
(i) publication of the draft norms or standards for comment in the relevant Gazette;
(ii) consideration of comments received; and
(iii) publication of the norms or standards to be prescribed.
(d) The process of adopting norms or standards contemplated in paragraph (a) must, as a minimum, include—
(i) publication of the intention to adopt existing norms or standards in order to meet the requirements of this Act for comment in the relevant Gazette;
(ii) consideration of comments received; and
(iii) publication of the norms or standards to be prescribed.