The processes have to wait until after the lockdown period, as no one will be at the departmental Offices to accept receipt of or to process environmental documentation.
On 31 March 2020, Minister Creecy published directions in terms of the recently promulgated Disaster Management Act Regulations, whose purpose, in curtailing the threat posed by the Covid-19 pandemic, is to ensure fair processes governing licensing, public participation and appeals; reporting requirements; and the provision of waste management services during the lockdown period (Directions).
The Directions extend the timeframes applicable in terms of the National Environmental Management Act, 1998 (NEMA), the Environmental Impact Assessment Regulations, 2014 (EIA Regulations) and identified specific environmental management Acts, specifically the National Environmental Management: Waste Act, 2008 (NEMWA) and the National Environmental Management: Air Quality Act, 2004 (NEMAQA).
Accordingly, the legislated timeframes set out below are extended by the number of days of the duration of the lockdown period, including any extensions to such duration, with effect from 27 March 2020 until the termination of the lockdown period. The lockdown period has initially been set for a 21-day period, from 27 March to 16 April 2020.
The lockdown curtails the ability for administrative processes to be undertaken given the restrictions on movement of people. The processes have to wait until after the lockdown period, as no one will be at the departmental Offices to accept receipt of or to process environmental documentation.
Environmental authorisations and licences in terms of NEMA, NEMWA and NEMAQA:
- The timeframes prescribed in the EIA Regulations are extended. This has implications for, inter alia, the effective conduct of public participation processes, given that the consultation and notification procedures prescribed in the EIA Regulations will not be able to be fully complied with during the lockdown period;
- The timeframes specified in a condition of an EA relating to the validity of an EA, the extension of the validity period of an EA, and the requirement to submit an environmental audit report, which lapse or fall within the lockdown period, are extended;
- The timeframes specified in NEMWA and NEMAQA relating to licences and environmental authorisations are similarly extended; and
- The timeframes prescribed in terms of the National Appeal Regulations, 2014 are extended.
It is confirmed that the environmental authorities responsible for the processing of applications or appeals contemplated above will not receive or process such applications or appeals from 27 March 2020 until the termination of the lockdown period.
We understand the extension provisions to apply to new applications and new appeals contemplated to be submitted, as well as pending applications and appeals. Lodging new applications or appeals during the lockdown period will not be possible as the competent authorities will not be able to acknowledge receipt of these documents.
Exemptions, waste tyre authorisations and amendments of remediation orders issued terms of NEMWA:
- Exemptions issued in terms of the NEMWA, which expire during the lockdown period, are extendedor deemed to be extended by the number of days of the duration of the lockdown period;
- Authorities responsible for the processing of applications for the transfer of waste management licences will not receive or process such applicationsduring the lockdown period;
- Authorisations for the export of waste tyres in terms of the Waste Tyre Regulations, 2017, which expire during the lockdown period, are extendedor deemed to be extended by the number of days of the duration of the lockdown period; and
- The environmental authorities responsible for the processing of applications for the amendment of any order to remediate contaminated land will not receive or process such applicationsduring the lockdown period.
Emissions Reporting: The National Atmospheric Emissions Regulations, 2015 and the National Greenhouse Gas Emission Reporting Regulations, 2017 prescribe a reporting deadline of “31 March” each calendar year. For the duration of the lockdown period, this date must be read as a reference to “30 April 2020“.
General: The Directions apply to all competent authorities and appeal authorities, as well as applicants, appellants, environmental assessment practitioners, companies, interested and affected parties, commenting authorities or other parties generally, involved in any or all of the above processes.
The Directions further provide that where any of the licensing authorities, competent authorities or appeal authorities affected by these Directions has publicly indicated that a different arrangement applies, such an arrangement will prevail over any arrangement indicated in these Directions.
The Western Cape Department of Environmental Affairs and Development Planning has been the first to issue a circular and notice to extend the timeframes applicable in terms of NEMA and the EIA Regulations affected by the lockdown period. To the extent that this notice differs from the Directions in any manner, it will preside in the Western Cape Province.
The extensions granted under the Directions provide some much-needed clarity in light of the unprecedented disruptions posed by the Covid-19 pandemic. We will continue to monitor and update clients on all developments in this respect.