CLEARING THE AIR | Volume 2 - 2 of 8

NEMLA4 CHANGES

The National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA4) has introduced several significant amendments to the provisions of the National Environmental Management Act 107 of 1998 (NEMA).

In this regard, NEMLA4 has brought about changes to the following sections of NEMA to date: 1, 2, 24, 24C, 24G, 24N, 24O, 24P, 24PA, 24R, 28, 31B, 31BA, 31BB, 31C, 31D, 31E, 31F, 31G, 31H, 31I, 31J, 31K, 31L, 31M, 31N, 31O, 31P, 31Q, 34E, 34G, 42B, 42C, 43, 49A, 49B, 50A and Schedule 3.

Allow us to simplify these changes for you.

A number of changes to the definitions in section 1 of NEMA have been made by NEMLA4. Notably, definitions for ‘latent environmental impact’, ‘mining activity’, ‘mitigate’ and ‘rehabilitate’ have been included in NEMA, let’s show you how;

• ‘latent environmental impact’ when used in sections 24P and 24PA, means impacts which are existing and defined, but not yet developed and will manifest post-closure ;

• 'mining activity' means an activity which requires a permission, right, permit, or consent in terms of the Mineral and Petroleum Resources Development Act, 2002, including hydraulic fracturing and reclamation;

• mitigate’ when used in section 24P and 24PA, means to alleviate, reduce, or make less severe; and

• ‘rehabilitate' when used in sections 24P and 24PA, means to restore to the approved end use of land.

A new principle introduced into section 2 of NEMA, is the full participation of previously disadvantaged professionals, with specific emphasis on black professionals and indigenous knowledge practitioners within the environmental management sector.

NEMLA4 makes extensive amendments to section 24 of NEMA. Significant changes include amongst others:

• clarification that the Minister of Mineral Resources and Energy is the competent authority where the listed or specified activity is a ‘mining activity’ as defined in section 1 of NEMA;

• the simultaneous submission of applications is required where an environmental authorisation involves an activity that requires a licence or permit in terms of any of the specific environmental management acts (SEMAs) and this must be indicated in each application for all other licences, authorisations, and permits applied for;

• when applying for a mining activity which also involves an activity that requires a licence, permit, or authorisation in terms of any of the SEMAs, one must simultaneously apply for an environmental authorisation after the acceptance, where such acceptance is applicable, of the application in terms of the Mineral and Petroleum Resources Development Act, 2002;

• if the competent authority or licensing authority is the same authority to consider and decide the application for an environmental authorisation and the application under a SEMA, an integrated decision must be issued;

• a section 24G application for “rectification” may be made for undertaking or conducting a waste management activity without a waste management licence;

• a section 24G application for “rectification” may be made by a person in control of land or a successor in title to land, even if the person was not the one who unlawfully undertook the listed activity and/or waste management activity;

• the administrative fine associated with the section 24G application has been increased to a maximum of R10 million (that’s double the previous amount!);

• the entire replacement of section 24P on financial provision for remediation of environmental damage in order to align with the Financial Provision Regulations;

• the addition of a specific provision relating to the financial provision for mining, which includes, amongst other things, retention of liability and intervals for the review of liability and rehabilitation mitigations measures;

• the Minister responsible for mineral resources and the Minister responsible for water affairs may use all or part of the financial provision to rehabilitate or manage the environmental impact.

BUT WAIT THERE’S A LITTLE MORE...

Noticeable changes to the duty of care provision in section 28 of NEMA include that a municipal manager of a municipality is now empowered in terms of section 28(4)(2) to direct a polluter or person causing degradation to the environment to, amongst others, cease the activity, investigate the impact thereof, and implement measures in relation thereto.

Section 31 of NEMA has been amended to provide further clarification regarding the regulatory functions, mandates, and cooperation between the various competent authorities.

Section 42 of NEMA now provides further clarification on the delegation of functions between the various competent authorities.

The most notable change to section 43 of NEMA is that it now confirms that an appeal suspends an environmental authorisation, exemption, or any other decision made in terms of NEMA or the SEMAs, or any provision or condition attached thereto, unless the appeal is concerned with a directive or enforcement notice that is aimed at addressing significant harm to the environment.

NEMLA4 further makes amendments to the offences and penalties sections of NEMA. The most significant change is the increase to the maximum fines that could be imposed for the offences listed in section 49A of NEMA.

Section 50A now provides further clarification on the relationship between the Minister of Forestry, Fisheries and the Environment and the Minister responsible for mineral resources and their respective agreements including the One Environmental System.

If you want to speak to experienced lawyers who are on top of every law (and change) to impact your operation, we’d love to help you!