The National Environmental Manage-ment Laws Amendment Act (Nemla 3) came into force last month.

The new law forms part of a suite of new laws that will give rise to the ‘One Environmental System’ for South Africa relating to mining and related activities.

Government said in a statement that Nemla 3 and its associated regulations for the One Environmental System will, however, only be practically implemented from December 8, 2014, when this suite of legislation and subordinate legislation necessary for the implementation of the One Environmental System, such as the commencement of certain sections of the Mineral and Petroleum Resources Development Act (MPRDA) Amendment Bill, has been brought into force.

It is also dependent on related regulations being in place, including, but not restricted to, the National Appeal Regulations, the National Exemption Regulations, the new Environmental-Impact Assessment Regulations and listing notices, the Financial Provisioning and Mine Closure regulations under the National Environmental Manage-ment Act (Nema), as well as regulations under the National Water Act, the Residue Stockpile and Residue Deposits regulations under the Waste Act and the amendment of the MPRDA Regulations to remove regulations relating to the environment.

In 2007/8, the Department of Environmental Affairs (DEA) and the Department of Mineral Resources (DMR) agreed that environmental regulation would be removed from the purview of the MPRDA and would be wholly regulated under Nema. This was to be the One Environmental System for the mining industry.

The implementation of this version of the One Environmental System was given effect by amendments to Nema and the MPRDA in 2008. The 2008 Nema Amendment Act, was gazetted on January 9, 2009 and the MPRDA Amendment Act, on April 21, 2009 (collectively referred to as the 2008 Amendment Acts).

A three-phased transition was envisaged under the 2008 Amendment Acts.

In Phase 1 – the status quo – approval of both an environmental authorisation (EA) under Nema for triggered listed activities and an environmental management plan/programme under the MPRDA was a requirement that remained in place for 18 months following the enactment of the 2008 MPRDA Amendment Act or the enactment of Section 2 of the 2008 Nema Amendment Act, whichever was the later enactment.

The 2008 MPRDA Amendment Act was the later enactment. When it came into force on June 7, 2013, the three-phase transition started.

Phase 1 was to be followed by two further phases spanning a three-year period to move the environmental regulation entirely to Nema, under the auspices of the DEA.

Phase 2 was to start at the end of the 18-month period of Phase 1 and was to be in force a further 18 months. Nema was to be the Act managing the environmental management of mining and the DMR was meant to be responsible for implementing EAs (apart from appeals, which were to be decided by the DEA), while the DEA would be responsible for policy, legislation and regulations.

Phase 3 was then to start at the end of the 18-month period of Phase 2. Nema was to be the Act managing the environmental management of mining, while the DEA (after consultation with the DMR) was the authority responsible for implementing regulatory functions or permitting.

When Nemla 3 came into force on September 3 this year, it effectively did away with the three-phased transition of environmental regulation described above, says law firm Webber Wentzel senior associate Garyn Rapson.
The effect of this is that Phase 2 of the original 2008 plan is implemented immediately and Phase 3 never comes into force, he explains. Thus the DMR retains its competence to regulate environmental management of the mining industry.

Rapson says, however, the DEA remains the appeal authority for appeals lodged against decisions by the Minister of Mineral Resources (and his delegated officials) to grant EAs under Nema for prospecting/mining operations.

The lodgment of an appeal will now automatically suspend the EA, pending the outcome of the appeal. This is a key risk that must be taken into account by mining companies, he says. Delays to the ramp-up of operations, or midoperation if an amendment of an EA is sought and then appealed, should be expected. Essentially, “this is not good for business”, he highlights.
Amendments to other environmental legislation, which also came into force last month, increase the scope of the DMR's competence.

Although legally in force, the DEA and the DMR have made it clear that the One Environmental System will only be implementable from December 8, 2014, when all the complementary laws are in place.

Rapson explains that the key proposed legislative changes, which give effect to the new One Environmental System are Section 50A(2) of the NEM 2014 Laws Amendment Act, the second version of the MPRDA Amendment Bill, which was published in June 2013 and which contains further proposed amendments to the One Environmental System, the NEM Waste Act, the NEM Air Quality Act and the National Water Act.