National Environmental Management Amendment Act [No. 8 of 2004]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 469 Cape Town 14 July 2004 No. 26570
THE PRESIDENCY No. 842 14 July 2004
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 8 of 2004: National Environmental Management Amendment Act, 2004.

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Act No. 8,2004 NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT ACT, 2004
GENERAL EXPLANATORY NOTE:
r ] Words in bold type in square b ackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President.) (Assented to 9 July 2004.)
ACT To amend the National Environmental Management Act, 1998, so as to insert certain definitions and substitute others; to make further provision regarding environmental authorisations; to make certain textual alterations; to provide for the registration of associations of environmental assessment practitioners; and to provide for incidental matters.
Amendment of section 1 of Act 107 of 1998, as amended by section 1 of Act 56 of 2002
1. Section 1 of the National Environmental Management Act, 1998 (hereinafter 5 referred to as the principal Act), is hereby amended by-
(a ) the insertion after the definition of “Agenda 21” of the following definition: “ ‘assessment’, when used in Chapter 5 , means the process of collecting, organising, analysing, interpreting and communicating information that is relevant to decision-making”; 10
(b) the insertion after the definition of “best practicable environmental option” of the following definition:
“ ‘commence’, when used in Chapter 5, means the start of any physical activity on the site in furtherance of a iisted activity;”;
( e ) the insertion after the definition of “community” of the following definition: 15 I
‘‘ ‘competent authority’, in respect of a listed activity or specified activity, means the organ of s: environmental impact of that activity and, where appropriate, with granting or refusing an environmental authorisation in respect of that activity;”;
id) the insertion after the definition of “environment” of the following
“ ‘environmental assessment practitioner’, when used in Chapter 5 , means the individual responsible for the planning, management and coordination of environmental impact assessments, strategic environ- 25 mental assessments, environmental management plans or any other appropriate environmental instruments introduced throuzh regulations; ‘environmental authorisation’, when used in Chapter 5 , means the authorisation by a competent authority of a listed activity in terms of this __ Act;”; 30
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( e ) the insertion after the definition of “environmental management plan” of the
“ ‘evaluation’, when used in Chapter 5 , means the process of ascertain- -or significance of information, in the light of people’s values, preferences and judgements, in order to make a 5 decision;”;
following definition:
( f i the insertion after the definition of “international environmental instrument”
‘‘ ‘listed activity’, when used in Chapter 5, means an activity identified in terms of section 24(2)(a) and (dl;”; 10 ‘listed area’, when used in Chapter 5 , means a geographical area identified in terms of section 24(2)(b) and (c);”;
’‘ ‘MEC’ means the Member of the Executive Council to whom the Premier has assigned [the performance in the province of the 15 functions entrusted to a MEC by or under such a provision] responsibility for environmental affairs;”;
(h) the insertion after the definition of “regulation” of the following definitions: “ ‘review’. when used in Chapter 5, means the process of determining
resuhng information is adequate in order to make a decision; ‘specific environmental management Act’ means an Act of Parliament that regulates a specific aspect of the environment, as defined in this Act, and includes any regulations or other subordinate legislation made in terms of such an Ac ; 25 ‘specified activity’, when used in Chapter 5, means an activity as specified within a listed geographical area in terms of section 24(2)(b)
of the following definitions:
(g) the substitution for the definition of “MEC” of the following definition:
whether an assessment has been carried out
and (c);”.
Substitution of section 24 of Act 107 of 1998
2. The following section is hereby substituted for section 24 of the principal Act:
“Environmental authorisations
24. (1) In order to give effect to the general objectives of integrated environmental management laid down in this Chapter, the potential impact on the environment of listed activities must be considered, investigated, assessed and reported on to the competent authority charged by this Act with granting the relevant environmental authorisation.
(2) The Minister, and every MEC with the concurrence of the Minister, may identify- (a) activities which may not commence without environmental
authorisation from the competent authority; (h) geographical areas based on environmental attributes in which
specified activities may not commence without environmental authorisation from the competent authority;
(c) geographical areas based on environmental attributes in which specified activities may be xcluded from authorisation by the competent authority;
(d) individual or generic existing activities which may have a detrimental effect on the environment and in respect of which an application for an environmental authorisation must be made to the competent authority:
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.
(3) The Minister, and every 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.
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(4) Procedures for the investigation, assessment and communication 01 the potential impact of activities must ensure, as a minimum, with respecl to every application for an environmental authorisation-
investigation of the environment likely to be significantly affected bl the proposed activity and alternatives thereto; investigation of the potential impact of the activity and its alternative: on the environment and assessment of the significance of that potential impact; investigation of mitigation measures to keep adverse impacts to E minimum, as well as the option of not implementing the activity; public information and participation 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 such information and participation procedures; reporting on gaps in knowledge, the adequacy of predictive methods and underlying assumptions, and uncertainties encountered in compil- ing the required information; investigation and formulation of arrangements for the monitoring and management of impacts, and the assessment of the effectiveness of such anangements after their implementation; cowdination and cooperation between organs of state in the consider- ation of assessments where an activity falls under the jurisdiction of more than one organ of state; that the findings and recommendations flowing from such investiga- tion, 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 EO the proposed policy, programme, plan or project; and that environmental attributes identified in the compilation of informa- tion and maps as contemplated in subsection (3) are considered.
(5) The Minister, and every 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 and the institutional
arrangements in respect of- (i) the efficient administration and processing of environmental
authorisations; (ii) fair decision-making and conflict management in the consider-
ation and processing of applications for environmental authorisations;
(iii) the preparation and evaluation of environmental impact assess- ments, strategic environmental assessments, environmental man- agement plans and any other relevant environmental manage- ment instruments that may be developed in time;
(iv) applications to the competent authority by any person to be exempted from the provisions of any regulation in respect of a specific activity;
( c ) prescribing fees to be paid for-
tal authorisations;
on behalf of the competent authority;
(v) appeals against decisions of competent authorities;
(i) the consideration and processing of applications for environmen-
(ii) the review of documents, processes and procedures by specialists
(d) requiring 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;
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NATIONAL ENVIRONMENTAL MANAGEMENT AMENDMENT ACT. 2004
specifying that environmental impact assessments, or other specified tasks performed in connection with an application for an environmen- tal authorisation, may only be performed by an environmental assessment practitioner registered in accordance with the prescribed procedures: requiring that competent authorities maintain a registry of applications for, and records of decisions in respect of, environmental authorisations; specifying that a contravention of a specified regulation is an offence and prescribing penalties for the contravention of that regulation; 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; prescribing review mechanisms and procedures including criteria for. and responsibilities of all parties in, the review process; prescribing any other matter necessary for dealing with making and evaluating applications for environmental authorisations.
( 6 ) An ivlE(: may make regulations in termv of subssction ( 5 ) only in resrect IF listed activities or areas in respect : r i which the MEC is the competcnt duthority.
17) Compliance with the procedure laid down by the Minister or an MEC in terms of subsection (4) does not remove the need to obtain an authorisation, other than an environmental authorisation, for that activity from any organ of state charged by law with authorising, permitting or otherwise allowing the implementation of the activity.
(8) Authorisations or permits 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 and any such other authorisations or permits may only be considered by the competent authority if they are in compliance with subsection (4)(d).
(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 polential impacts for the purpose of complying with subsection (1) where the activity will affect- (a) more than one province or traverse international boundaries; or (b) compliance with obligations resting on the Republic under customary
international law or a convention.”.
Insertion of sections 24A to 241 in Act 107 of 1998
3. The following sections are hereby inserted in the principal Act after section 24:
“Procedure for listing activity or area
24A. Before identifying any activity or area in terms of section 24(2), the Minister or MEC, as the case may be, must publish a notice in the relevant Gazette- (a) specifying, through description, a map or any other appropriate
(b) inviting interested parties to submit written comments on the proposed manner, the activity or area that it is proposing to list;
listing within a period specified in the notice.
Procedure for delisting of activities or areas
24B. (1) The Minister may delist an activity or area identified by the
(2) An MEC may, with the concurrence of the Minister, delist an activity Minister in terms of section 24(2).
or area identified by the MEC in terms of section 2412).
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(3) The Minister or MEC. as the case may be, must comply with section 24A; read with the changes required by the context, before delisting an activity or area in terms of this section.
Procedure for identifying the competent authority
24C. (1) When listing activities in terms of section 24(2) the Minister, or the MEC with the concurrence of the Minister, must identify the competent authority responsible for granting environmental authorisations in respect of those activities.
(2) The Minister must be identified as the competent authority in terms of subsection (1) if the activity- ( a ) has implications for national environmental policy or international
environmental commitments or relations; (b) will take place within an area identified in terms of section 24(2)(6) or
(c) as a result of the obligations resting on the Republic in terms of any international environmental instrument, other than any area falling within the sea-shore, a conservancy, a protected natural environment, a proclaimed private nature reserve, a natural heritage site, or the buffer zone or transitiom: area of a biosphere reserve or w . , l d heritage site;
fc) will affect more than w e province or traverse international bound- aries;
(d) is undertaken, or is to be undertaken, by- (i) a national department;
(ii) a provincial department responsible for environmental affairs; or
(iii) a statutory body, excluding any municipality, performing an exclusive competence of the national sphere of government; or
(e) will take place within a national proclaimed protected area or other
(3) The Minister and an MEC may agree that applications for environmental authorisations with regard to any activity or class of activities- (a) contemplated in subsection (2) may be dealt with by the MEC; (b) in respect of which the MEC is identified as the competent authority
conservation area under control of a national authority.
may be dealt with by the Minister.
Publication of list
24D. The Minister or MEC, as the case may be, must publish in the relevant Gazette a notice listing activities and areas identified in terms of section 24(2) and listing the competent authorities identified in terms of section 24C and the date on which the list is to come into effect.
Minimum conditions attached to environmental authorisations
24E. Every environmental authorisation must as a minimum ensure that- (a) adequate provision is made for the ongoing management and
monitoring of the impacts of the activity on the en\’ wonment throughout the life cycle of the activity;
(b) the property, site or area is specified; and (c) provision is made for the transfer of rights and obligations when there
is a change of ownership in the property.
Offences relating to commencement or continuation of listed activity
24F. (1) Notwithstanding the provisions of any other Act, no person may commence an activity listed in terms of section 24(2)(a) or (0) unless the competent authority has granted an environmental authorisation for the activity, and no person may continue an existing activity listed in terms of section 24(2)jd) if an application for an environmental authorisation is refused.
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(2) It is an offence for any person to contravene subsection (1) or the conditions applicable to any environmental authorisation granted for a listed activity.
(3) It is a defence to a charge in terms of subsection (2) to show that the activity was commenced or continued in response to an emergency so as to protect human life, property or the environment.
(4) A person convicted of an offence in terms of subsection (2) is liable to a fine not exceeding R5 million or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment.
Rectification of unlawful commencement or continuation of listed activity
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24G. (1) On application by a person who has committed an offence in terms of section 24F(2) the Minister or MEC, as the case may be, may direct the applicant to- (a ) compile a report containing-.
(i) an assessment of the nature, extent, duration and significance of ;he impacts of the activity on the environment, including the cumulative effects;
(ii) a description of mitigation measures undertaken or to be undertaken in respect of the impacts of the activity on the environment;
(iii) a description of the public participation process followed during the course of compiling the report, including all comments received from interested and affected parties and an indication of how issues raised have been addressed;
(iv) an environmental management plan; and (bj provide such other information or undertake such further studies as the
(2) Upon the payment by the person of an administration fine not exceeding R1 million as determined by the competent authority, the Minister or MEC concerned must consider the report contemplated in subsection (1) and thereafter may- (a ) direct the person to cease the activity, either wholly or in part, and to
rehabilitate the environment within such time and subject to such conditions as the Minister or MEC may deem necessary; or
(b) issue an environmental authorisation to such person subject to such conditions as the Minister or MEC may deem necessary.
(3) A person who fails to comply with a directive contemplated in subsection (2)(a) or who contravenes or fails to comply with a condition contemplated in subsection (2)(b) is guilty of an offence and liable on conviction to a penalty contemplated in section 24F(4).
Minister or MEC may deem necessary.
Registration authorities
24H. (1) An association proposing to register its members as environ- mental assessment practitioners may apply to the Minister to be appointed as a registration authority in such manner as the Minister may prescribe.
(2) The application must contain- (a ) the constitution of the association; (b) a list of the members of the association; (c) a description of the criteria nd process to be used to register
environmental assessment practitioners; (dj a list of the qualifications of the members of the association
responsible for the assessment of applicants for regismtion; ( e ) a code of conduct regulating the ethical and professional conduct of
members of the association; and df) any other prescribed requirements.
(3) After considering an application, and any other additional informa- tion that the Minister may require, the Minister may- (a) by notice in the Gazette, appoint the association as a registration
authority; or
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(bj in writing addressed to the association, refuse the application, giving
(4) The Minister may, for good cause and in writing addressed to the association, terminate the appointment of an association as a registration authority. 5
(5) The Minister must maintain a register of all associations appointed as registration authorities in terms of this section.
Appointment of external specialist to review assessment
reasons for such refusal.
241. The Minister or MEC may appoint an external specialist reviewer,
(a) the technical knowledge required to review any aspect of an assessment is not readily available within the competent authority;
(b) a high level of objectivity is required which is not apparent in the documents submitted, in order to ascertain whether the information
whether it requires amendment.”.
Amendment of section 43 &’ 4ct 107 of 1998
4. The following section is hereby substituted for section 43 of the principal Act:
“Appeals
43. (1) Any affected person may appeal to he Minister against a decision taken by any person acting under a power delegated by the Minister under this Act or a specific environmental management Act.
(2) Any affected person may appeal to the relevant MEC against a decision taken by any person acting under a power delegated by the MEC under this Act or a specific environmental management Act.
(3) Any affected party may appeal to the Minister or MEC, as the case may be, against- (a) any decision to issue or to efuse to issue an environmental
(b) any provision or condition of an environmental authorisation or
(c) any directive issued in terms of Chapter 5. (4) An appeal under subsections (1) to (3) must be noted and must be
dealt with in the manner prescribed and upon payment of a prescribed fee. ( 5 ) The Minister or MEC, as the case may be, may consider and decide
an appeal or appoint an appeal panel to consider and advise the Minister or MEC on the appeal.
(6) The Minister or MEC may, after considering such an appeal, confirm, set aside or vary the decision, provision, condition or directive or make any ether appmpriate d e r , including m d e r that the prescribed fee paid by the appellant, or any part thereof, be refunded.
(7) An appeal under this section does not suspend an environmental authorisation or exemption, or any provisions or conditions attached thereto, or any directive, unless the Minister or MEC directs otherwise.”.
authorisation or to grant an exemption in terms of Chapter 5;
exemption issued or granted in terms of Chapter 5;
Amendment of section 47 of Act 107 of 1998
5. Section 47 of the principal Act is hereby amended by the deletion of subsections (31, (4L ( 5 ) and (6).
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Amendment of’ section 50 of Act 107 of 1998
6. Section 50 of the principal Act is hereby amended by the addition after subsection
“(3) Any application made in terms of section 21, 22 or 26 of the Environment
finalised when those sections are repealed, must be finalised as if those sections had not been repealed.
(4) In order to ensure that the transition between the legal requirements of sections 21, 22 and 26 of the Environment Conservation Act, 1989 (Act No. 73 of
the Gazette list activities included in Government Notice R1182 of 5 September 1997 that will remain valid until such time as an MEC promulgates a list of activities for that province.”.
(3) of the following subsections:
Conservation Act, 1989 (Act No. 73 of
1989), and the requirements of this Act is
Transitional provision
7. For a period of six months after the date on which this Act comes into peration, the 15 provisions of section 24G of the principal Act apply, with the necessary changes, in respect of any listed activity cornmenced or continued in contravc1itiorl oi‘a provision of the Environment Conservation Act, 1989 (Act No. 73 of 1989).
Amendment of Schedule 3 to Act 107 of 1998
8. Schedule 3 to the principal Act is hereby amended by the substitution for Part (a) 20 of the following Part:
(Section 34)
Part (a): National Legislation
No. and year of law
Section 18(l)(i) in so far as it Fertilizers, Farm Feeds, Agri- Act No. 36 of 1947
25 Relevant provisions Short title
cultural Remedies and Stock sections 7 and 7bis Remedies Act, 1947
30 relates to contl-aventions of
Act No. 71 of 1962
Section 9 Atmospheric Pollution Pre- Act No. 45 of 1965
Sections 2(1) and 2A Animals Protection Act, 1962
vention Act, 1965
Act No. 63 of 1970 35 o far as it re- Act, 1970 lates to contraventions of sec-
Act No. 15 of 1973 Section 19(l)(trj and (bj in so Hazardous Substances Act, 1973 40 far as it relates to contraven-
tions of sections 3 and 3A
Act No. 63 of 1977
Section 2(l)(aj and (b) Dumping at Sea Control Act, Act No. 73 of 1980
Section 27 Health Act, 1977
1980 45
Act No. 6 of 1981 Section 2(1) Marine Pollution (Control and Civil Liability) Act, 1981
Act No. 43 of 1983 Sections 6 and 7 Conservation of Agricultural Resources Act, 1983
Act No. 2 of 1986 50 Section 3 4 Marine Pollution (Prevention of Pollution from Ships) Act, 1986
Act No. 73 of 1989 Section 29(2)(a) and (4) Environment Conservation Act, 1989
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No. and year of law
Act No. 18 of 1998
1 Act No. 36 of 1998
Short title
Marine Living Resources Act, 1998
National Water Act, 1998
Short title and commencement
Section 58(1) in so far as it relates to contraventions of
section 58(2) in so far as it relates to contraventions of international conservation and management rneasures
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9. This Act is called the National Environmental Management Amendment Act, 2004, and commences on a date determined by the President by proclamation in the Gazette.