The NEMLA Bill will finally become law on 24 June 2022, introducing major changes to South Africa's environmental law on a date to be determined and promulgated by the President.
Law No. 2 of 2022 – arguably the most important environmental legislation since the One Environmental System (OES) came into force in 2014 – has finally been promulgated and will soon become law (Act).
The law began life as the National Environmental Law Amendment Bill, known as the “NEMLA Bill” or “NEMLAA4,” when it was introduced in Congress in 2017. After more than five years, the bill has finally completed its difficult journey through Congress. The bill was rejected by Congress in 2018, expired, and was reinstated in 2019 with much debate and numerous changes. Even though it was passed by both the National Assembly and the National Council, we were on edge until the end. It took nearly four months for states to release their bills on March 1, 2022.
When the Act comes into force, it will formally introduce major changes to South Africa's environmental legislation. Many of these changes are aimed at resolving various issues related to OES deployment. The OES has overhauled the way it regulates environmental issues, particularly at mine sites. Overall, the changes imposed by the Act are aimed at deterring violations of environmental laws, by, among other things, introducing new offenses and increasing the amount of fines and administrative penalties for violating laws and licenses. It is clear that this period will continue to be extended. Enforcement powers to enable broader enforcement of environmental laws.
Over the coming weeks, we'll be exploring these proposed changes in a series of focused alerts. These alerts take into account proposed amendments to the National Environmental Management Act 1998 (NEMA), the National Environmental Management: Air Quality Act 2004 (NEMAQA) and the National Environmental Management: Waste Act 2008 (NEMWA). Explore what these changes mean for your business and the way it operates. Important changes considered include:
- Changes to remedial provisions under NEMA and NEMAQA: Expands the scope of section 24G remedial provisions under NEMA. “Successors in title” and “custodians” of land on which activities listed under NEMA or NEMWA have been unlawfully commenced can now submit remedial applications. Previously, only those found guilty of committing offenses, sometimes without the necessary environmental or waste management permits, could apply. It will also be mandatory for the competent authority to, inter alia, instruct the applicant to cease the illegal activity pending a decision on the rectification application. This is important because in many cases the applicant was not required to suspend activities pending the outcome of the amendment application. Additionally, the maximum administrative fine that must be paid for processing a section 24G application will be increased from R5 million to R10 million. Section 22A of NEMAQA will also be overhauled.
- Management of residue stockpiles and deposits: Residual stockpiles and deposits of residues are excluded from NEMWA and therefore are no longer considered wastes that require a waste management permit. Instead, residue stockpiles and deposits will be regulated according to NEMA regulations.
- Expanded enforcement powers: Local authority managers will also be given the power to issue NEMA Article 28(4) orders for breaches of the duty of care. The designated Environmental Minerals and Petroleum Inspector can also issue a Section 31L Compliance Notice. These proposed changes could result in an increase in administrative enforcement actions.
- Financial Provision (FP) Changes: The FP changes pave the way for the long-awaited eventual replacement FP regulations under NEMA. The definition of “financial provisions'' is amended to specifically refer to “holder'' (i.e. a person to whom rights/permissions have been granted under the Minerals and Petroleum Resources Development Act 2002 (MPRDA), holder). Relationship between old ordering rights (as defined in the MPRDA) and applicants (i.e., those who have submitted an application for an environmental permit under NEMA) This change brings NEMA FP requirements to both new applicants and EA holders. It is clear that it applies. The new definition will make clear that states should not bear the economic burden of reconstruction, closure, or post-mining operations. Closed Activities – This should be covered by the aforementioned categories of people. Article 24P applies generally to the remediation of environmental damage in relation to specific cases by the Minister of Environment, Forestry and Fisheries (Minister of the Environment) (or as may be prescribed by the MEC). (in agreement with the Minister of the Environment). If such an instance is provided, he must “determine” the FP before the EA is issued. A new section 24PA will be introduced to specifically regulate her FP requirements for mining. Failure to comply with certain requirements under section 24P or section 24PA is a criminal offense under NEMA and a Schedule 3 offense for which directors may be liable.
- Changes in the powers of the Minister of Minerals – Once the NEMLA Act is signed into law, the powers of the Minister of Mineral Resources and Energy (Minister of Minerals) will be reduced. For example, section 48 of the National Environmental Management: Protected Areas Act 2003 currently prohibits commercial exploration, mining, prospecting or production within protected environments without the permission of the Minister of the Environment and the Minister responsible for Minerals and Energy. doing. Office work. Under the Act, decisions to permit mining, etc. in protected environments fall within the exclusive authority of the Minister of the Environment. There will no longer be a need to obtain written permission from the Minister of Minerals.
Written by Garyn Rapson (Partner), Kirsty Kilner (Partner), and Carma Rossouw (Webber Wenzel Attorney Candidate)