AMENDMENTS OF THE EIA REGULATIONS, AND THE ASSOCIATED LISTING NOTICES 1, 2 AND 3
Notice Title: Amendments to the Environmental Impact Assessment Regulations, Listing Notice 1, Listing Notice 2, and Listing Notice 3 of the Environmental Impact Assessment Regulations, 2014 for Activities Identified in terms of Sections 24(2) and 24D of the National Environmental Management Act, 107 of 1998
Government Notice: GNR 517 in GG 44539 on 11 May 2021
Commencing date: 11 June 2021, with the exception of new Activity 21E of Listing Notice 1 that will come into effect within 6 months (i.e. 10 December 2021), and new Activity 21F of Listing Notice 1 of 2014 will come into effect on a date to be published in a Notice in the GG.
On 11 June 2021, the Minister of Forestry, Fisheries and Environment (“the Minister”) published a notice under sections 24(2), 24(5), and 44, read section 47 of the National Environmental Management Act 107 of 1998 (“NEMA”) amending the Environmental Impact Assessment Regulations, 2014 (“EIA Regulations”) and the Environmental Impact Assessment Regulations Listing Notice 1, Listing Notice 2, and Listing Notice 3 of 2014.
Some of the important amendments are listed below however for a copy of the Government Gazette Notice click here.
Closure and Decommissioning:
The amendments include amongst other a definition of Financial Provisioning Regulations [Financial Provisioning Regulations means the Financial Provisioning Regulations published in terms of section 44(aE), (aF), (aG), (aH) read with sections 24(5)(b)(ix), 24(5)(d), 24N, 24P and 24R of the Act] into the EIA Regulation, 2014 and Listing Notice 1 and Listing Notice 2. The plans, reports and calculations contemplated in the Financial Provisioning Regulations must be included in basic assessment reports and environmental impact assessment reports for mining applications.
Amendments to the EIA Regulations, 2014 and Appendixes thereto, require a closure plan only “in case of a closure activity”.
Amendments also include amongst other:
- The deletion of definition of decommissioning from Listing Notice 1.
- The deletion of Activity 22 of Listing Notice 1 that requires an EA for the decommissioning of any activity requiring a closure certificate in terms of section 43 of the MPRDA.
- Amending Activity 31 of Listing Notice 1 to exclude the activity for activities where such closure forms part of a mining application, in which case the requirements of the financial provisioning regulations apply.
Hydraulic fracturing and reclamation:
Amendments were made providing for the regulation of hydraulic fracturing and reclamation by including the following:
- an inclusion of a definition of “mining application” into the EIA Regulations, 2014 and Listing Notice 1 and Listing Notice 2 which has been defined to mean “an application for an environmental authorisation for a permission, right, permit or consent required in terms of the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002) and includes hydraulic fracturing and reclamation”;
- a definition of “hydraulic fracturing” into Listing Notice 1 and Listing Notice 2; and
- the inclusion of specific activities in the Listing Notices applicable to “hydraulic fracturing”
Access to Information:
Regulation 26(h) has been amended to require that environmental authorisation conditions must include a requirement that the following documents must be available for inspection and copying to anyone on request at the site of the authorised activity and on the holder of the environmental authorisation’s publicly accessible website (if available):
- environmental authorisation;
- approved EMPr;
- closure plan in the case of a closure activity;
- audit reports including the environmental audit report contemplated by regulation 34; and
- all compliance monitoring reports.
Auditing:
Regulation 54A(2) relating to the transitional arrangements has been amended and now provides that where a right or permit issued in terms of the MPRDA and the associated EMPr or EMP approved in terms of the MPRDA is still in effect after 8 December 2014, the auditing requirements contained in Part 3 of Chapter 5 of the EIA Regulations apply to the EMPr or EMP, and where─
- the audit or performance assessment cycle of the EMPr or EMP exceeds five years, an audit report must be submitted at least every five years commencing from the date of submission of the last audit, for the period during which the right or permit remains in effect; or
- no audit or performance assessment requirement was set in the EMPr or EMP, an audit report must be submitted to the competent authority no later than 7 December 2021 and at least every 5 years thereafter for the period during which the right or permit remains in effect.”
Amendments in terms of Section 102 of the MPRDA:
Activity 21D has been included into Listing Notice 1 which now requires that a basic assessment must be undertaken as part of a mining right amendment process in terms of section 102 of the MPRDA.
Exemptions in terms of Section 106(1) of the MPRDA:
Activity 21E has been included into Listing Notice 1 which now requires that a basic assessment must be undertaken by an organ of state that has been exempted in terms of section 106(1) of the MPRDA. This activity will however only come into effect 6 months after the publication of GNR 517 (i.e. 10 December 2021).
Reclamation of Residue Stockpiles and Deposits:
Reclamation of Residue Stockpiles and Deposits may in future require an environment authorisation in terms of NEMA as it has been included as Activity 21F into Listing Notice 1. This activity will however only come into effect on a date to be published by Notice in the GG.
How to ensure compliance at my operations?
An application submitted in terms of the EIA Regulations, or in terms of any amendments affected to these Regulations, which application was submitted on or after 8 December 2014, and which application is pending when these amendments take effect must be finalised in terms of those Regulations that were in place at the time of the submission of the application.
Unless otherwise indicated, the amendments contained in the Notice will apply to applications submitted on or after the date of publication of this Government Notice (i.e. 11 June 2021).
For more information or assistance please contact Jan Nel at jan@shangoni.co.za
