Monthly Newsletter March 2020

ENVIRONMENTAL, HEALTH AND SAFETY AND FOODSTUFFS LEGAL UPDATE REPORT

(SOUTH AFRICA)

MARCH 2020

Dear Clients,

Below please find a summary of selected relevant environmental, health and safety and foodstuffs legal developments that took place during March 2020.

NATIONAL LEGISLATION

1) Merchant Shipping Bill
This lengthy and detailed Bill was published for comment and input. Should it enter into force it will repeal the 1951 Merchant Shipping Act.

2) National Railway Safety Regulator Act

• DRAFT Proposed Determination regarding Category and Type of Notifiable Railway Occurrences to be Managed in the Operator’s Safety Management System
This DRAFT directive published for comment is intended to be read in conjunction with the SANS 3000 series of standards. A previous draft was published for comment in February 2019.

The following types of railway operators shall put into place systems and procedures for the recording and reporting of notifiable occurrences:
• Network Operators
• Train Operators
• Station Operators, and/or
• A combination of network, train and station operator.

Mandatory notifiable occurrences which are reportable to the Chief Executive Officer are:
• Operational railway safety occurrences
• Security related railway occurrences
• Railway occurrences related to the transportation of dangerous goods
• Crowd related railway occurrences
• Industrial action related railway occurrences.

Operational and security related railway occurrences must also be reported to the CEO.

Precursors/leading indicators of railway occurrences must be reported, so too fatalities and injuries.

Procedures for reporting railway occurrences must be put in place.

Operators must track occurrences in order to assist them in assessing their own safety performances. These include incidents that could serve as leading indicators that could be used to identify shortcomings in procedures or products, or they could be used to identify specific problem areas.

Railway occurrences (as set out in categories A to O as provided in Table 1 of the Regulations) which result in injuries or fatalities, or significant damage to property and the environment, must be reported telephonically to the CEO within 15 minutes from the time the operator becomes aware of the occurrence. This must be confirmed in writing within 12 hours.

Quarterly reports must be submitted by an operator.

• Determination on Verbal Safety-Critical Communication Protocol
The protocol, which was published on 20 March 2020, outlines the minimum requirements for the management of verbal safety-critical communication (VSCC), the framework to be implemented for safety related personnel in the execution of their operational activities. It seeks to explain the level of VSCCs required for safety related personnel within the railway industry in South Africa.

A notice was brought out in the Government Gazette on 25 March 2020 stating that the protocol will enter into force on 1 April 2020 and that it must be implemented by railway operators within two years.

3) Compensation for Occupational Injuries and Diseases Act
The Return of Earnings form must be submitted between 1 April and 31 May 2020 to avoid penalties and interest charges.

A new Tariff of Assessment and the Minimum Assessment for 2020 were published.

4) Protected Areas Act
Draft amendments to various Regulations governing different marine protected areas were published for comment.

5) National Environmental Management Act

• Procedures to be followed for the Assessment and Minimum Criteria for Reporting of Identified Environmental Themes
These minimum standards deal with general requirements for undertaking an initial site sensitivity verification and for protocols for the assessment and minimum reporting requirements of environmental impacts for environmental themes for activities requiring an environmental authorisation.

Identified environmental themes are:

– Agriculture
– Avifauna
– Biodiversity
– Noise
– Defence
– Civil aviation.

6) National Water Act

• Water Restrictions – Irrigation, Urban, Industrial and Mining Purposes – Polokwane Water
Supply System, Mutshedzi, Nzhelele, Nwanedi and Luphephe, Albasini, Middle Letaba, Nsami, Modjadji, Tzaneen, Doorndraai and Glen Alpine subsystem/dams
Water restrictions for irrigation, urban, industrial and mining purposes were already imposed for the above subsystem by the Department of Water and Sanitation in February 2019. Further restrictions were now imposed which replace those from last year.

7) Electricity Regulation Act

Schedule 2 which sets out various exemptions for certain categories of generation facilities and resellers from having to apply for and hold a licence in terms of the Act was substituted. Unfortunately the threshold for having to obtain a licence was not increased and thus remains unchanged at 1 MW.

8) Mineral and Petroleum Resources Development Act

• Regulations – Amendment
The 2004 Regulations were amended. The main changes, in short, are as follows:

– Part II (Social and Labour Plan):
* Regulations 41 – 46 were amended
* New Regulations 46A, 46B and 46C were added

– Part III (Environmental Regulations for Mineral Development):
* Regulations 47, 56 – 59, 61 – 62 were amended
* Regulations 48 to 55 were repealed
This is due to these matters now being regulated by the National Environmental Management Act

– Part IV (Pollution Control and Waste Management Regulation)
* Regulations 63 – 73 were repealed
This is due to these matters now being regulated by the National Environmental Management Act

– Part V (Regulation on Notice of Profitability and Curtailment of Mining Operations affecting Employment)
* Regulation 73A was added (notice of profitability and curtailment of mining operations)

– Part VI (Regulation on Application for Use of Surface of Land contrary to the objects of the Act)
* Regulation 73B was added (Application for use of surface of land contrary to the objects of the Act)

– Form Y was added to Annexure II of the Regulations (Notice in terms of section 52(1) – this deals with profitability     and curtailment of mining operations affecting employment)

– Form Z was added to Annexure II of the Regulations (this deals with proposed changes to land use, what effects this will have etc) – the form is referred to in Regulation 73B.

9) Air Quality Act

• Amendment – Listed Activities (requiring an atmospheric emission licence)
GN 893 of 2013 lists numerous activities requiring a licence in terms of the Act.

Subcategory 1.1 (solid fuel combustion installations) was amended by adding a new subparagraph ((iv)). It is, however, unsure what change this new subparagraph brings as it is the same as the existing subparagraph (iii). The subcategory therefore now reads as follows:

Category 1: Combustion Installations

(1) Subcategory 1.1: Solid Fuel Combustion Installations

(a) The following special arrangement shall apply –

(i) Continuous emission monitoring of PM, SO2 and NOx is required, however, installations less than 100 MW heat input per unit must adhere to periodic emission monitoring as stipulated in Part 2 of this Notice.

(ii) Where co-feeding with waste materials with calorific value allowed in terms of the Waste Disposal Standards published in terms of the Waste Act, 2008 (Act No.59 of 2008) occurs, additional requirements under subcategory 1.6 shall apply.

(iii) Additional requirements under subcategory 1.6 shall continue to apply even after the waste ceases to be waste in terms of section 1 of the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008), as amended by the National Environmental Management: Waste Amendment Act, 2014 (Act No. 26 of 2014).
      [Subpara. (iii) added by GN 551 of 2015]

(iii) Existing plants shall comply with a new plant emission standard of 1000 mg/Nm3 for sulphur dioxide (SO2).
                                                          [Subpara. (iii) added by GN 1207 of 2018]
[Note: this should have been numbered as subpara (iv) and not (iii). It is reproduced here as published in the Gazette.]

(iv) Existing plants shall comply with a new plant emission limit of 1000 mg/Nm3 for sulphur dioxide (SO2).
                                                          [Subpara. (iv) added by GN 421 of 2020]
[Note: it is unsure what the difference between subpara (iii) and (iv) should be as they are identical apart from subpara (iii) using the term “standard” with subpara (iv) using “limit”. It also should have been numbered as subpara (v) and not (iv) in GN 421 of 2020.]

10) Covid-19
Various Regulations and Directives were published by the government. Separate update notices were sent out by us to Legal Register users as soon as these appeared. New laws as well as changes to already promulgated Covid-19 legislation are published virtually on a daily basis and thus cannot be discussed in this update report.

PROVINCIAL LEGISLATION

11) Western Cape Province
The Draft Western Cape Museums Ordinance Amendment Bill was published for public comment.

12) North West Province
The Business Licencing Regulations in terms of the North West Business Licensing Act, 2019, were published.

13) Limpopo Province

• Bioregional Plans
Bioregional plans were published by the province for the Capricorn and Sekhukhune District Municipalities.

No other relevant provincial legislation was published during this month.

MUNICIPAL LEGISLATION

14) Makhuduthamaga Local Municipality
The Spatial Planning and Land Use By-law was published.

15) Drakenstein Local Municipality
The following two new by-laws were published:
• Problem Buildings By-law (this repealed the 2012 by-law)
• Building Control By-law.

16) Swartland Local Municipality
The following two new by-laws were published:
• Municipal Land Use Planning By-law
• Filming By-law.

17) uMhlathuze Local Municipality
The Animal Pounds By-law was promulgated.

18) Victor Khanye Local Municipality
The Fire Brigade Services By-laws were published.

19) Swellendam Local Municipality
The draft Integrated Zoning Scheme By-law was published for comment.

20) Moqhaka Local Municipality
The following draft by-laws were published for comment:
• Keeping of Bees By-law
• Public Parks By-law.

If you have any questions please feel free to contact us.

Kind regards

MARK DITTKE

Please click on this link to get a print version of this newsletter: Monthly Newsletter March 2020