The chemical industry has consistently maintained that regulatory best practice comprises unambiguous requirements set out in legislation, supported by compliance assessment and sanctions for non-compliance.
The international regulatory principles employed in the multilateral trading system, of which South Africa is now a part, and which are referred to as the foundation for a technical regulatory system in the Department of Trade and Industry’s Discussion Paper on Modernising the South Africa Technical Regulatory Infrastructure, are useful benchmarks.
Although these principles were developed primarily for products, they can just as easily be applied to regulations like those dealing with environmental impact assessments (EIAs).
The non-discriminatory principle provides for the equal treatment of like activities based on their impact.
The necessity principle allows for the use of discriminatory regulations if they are considered necessary for the efficient attainment of legitimate policy goals of environmental control under specific defined circumstances — for example, activities in protected areas.
The principle of less restrictiveness requires that regulations should not become an unnecessary barrier to investment.
The proportionality principle implies that the cost of regulations should be in proportion to the benefits they are expected to bring.
The principle of mutual recognition provides for different regional jurisdictions to recognise, where appropriate, the equivalence of each other’s requirements and conformity assessment procedures.
The transparency principle requires that regulations are published before they come into force and that a reasonable time should be allowed for comment, and for the consideration of these comments.
Administrative procedures supporting implementation of regulations should be effective and efficient.
The current EIA regulations fails to comply with a number of these principles and this presents not only a significant hurdle to new investment but also does not encourage improvement in safety, health and environmental performance. The regulations add to the cost of doing business without necessarily achieving the desired environmental goals.
CAIA therefore welcomes the publication of the new draft regulations as evidence that the government is attempting to address the concerns raised by industry, particularly in the application of the current regulations. The concerns include:
Activities are listed in a very mechanical and inflexible manner, which results in the real driver for an EIA — the potential for significant detrimental impact — taking second place to a mechanistic application of the definition of a listed activity.
The screening process for those identified activities which will not have a significant impact has not been well developed; the exemption process is a cumbersome method of screening, and often not well understood by the parties.
Clarity is needed regarding the application of conciliatory measures in terms of the National Environmental Management Act (NEMA). Can conciliation be called for during an EIA, or only after a decision has been made? Is the purpose of the EIA itself to ‘conciliate” — to take into account the views of stakeholders, and then present them to the authority for a decision? Does a request for conciliation before an EIA has run its course therefore pre-empt the process?
The issue of overlapping competencies among the Department of Environmental Affairs and Tourism (DEAT), the Department of Water Affairs and Forestry (DWAF), and the Department of Minerals and Energy (DME) needs to be addressed. There are two broad areas of concern: activities which may fall under the jurisdiction of either DWAF (for example, dams, river diversions and waste water treatment plants) or DEAT (for example, roads), but which may form part of a mining activity governed by DME.
Supporting guidelines in respect of public participation and cumulative assessment are required.
The exemption process is a cumbersome approach for activities that technically fall within the definition of a listed activity but have no significant detrimental impact.
As the current regulations do not accommodate the quick and efficient processing of an application, the scoping process (rather than the exemption process) is often used as a ‘mini EIA”.
While the concerns of environmental lobbyists are understood, the success of any regulation cannot be measured by the time it takes to process an authorisation application. Industry’s submissions to the government have not been about reducing the rigour of the process, but rather to make it more efficient and effective.
Although the review of the regulations has not yet been completed, a preliminary assessment shows that the draft regulations are much more onerous for the chemical industry than the current ones in that the scope of chemical installations covered has been significantly increased. This may be an unintended consequence of the new drafting and we are looking forward to discussing it with the department.
We agree with the sentiments expressed by the Director General of DEAT, Chippy Olver, that the government ‘must ensure efficient and effective environmental governance”. In our view, this goal is not necessarily achieved by long bureaucratic processes that fail to address the environmental impacts effectively.
The draft regulations essentially introduce two new elements to the existing process: the introduction of a screening process and the classification of activities into additional categories.
The details of these changes are being carefully reviewed. It is unlikely that the introduction of these regulations will reduce the capacity requirements at provincial level, so lack of sufficient capacity remains a problem.
Although we understand the challenge of establishing a one-stop shop, we are disappointed that no movement in this area has been made. This remains one of our overriding concerns because the need to undertake different impact assessments for different authorities adds considerably to cost.
The screening process is seen as a critical gate for the practical, efficient and effective application of the regulations if they are to meet the principles of integrated environmental management laid down in terms of NEMA. It is also the critical stage at which the future administrative load on officials, as well as the cost to the applicant, will be determined and should therefore receive the necessary resources upfront.
We support the introduction of a screening step, to ensure that the spirit and purpose of the EIA regulations are met — that activities with a potentially detrimental affect on the environment are assessed and appropriate preventative or mitigatory measures implemented.
An efficient and effective screening process needs to ensure that for projects, where the impacts are already known — for example, a specific class of activity like a bulk chemical storage tank — are not subjected to an unnecessarily long process. Clear timeframes for response from the authorities should also be provided in the regulations.
The draft regulations have been circulated to CAIA members and comments are being collated for formal submission to DEAT. We look forward to the opportunity to engage further with the department on the draft regulations, with a view to contributing to the development of a sound regulatory approach that not only achieves environmental objectives but also does not delay much-needed investment and development.
Dr Laurraine Lotter is executive director of the Chemical and Allied Industries’ Association