ENVIRONMENTAL, HEALTH AND SAFETY AND FOODSTUFFS LEGAL UPDATE REPORT
(SOUTH AFRICA), OCTOBER 2020
Dear Clients,
Below please find a summary of selected relevant environmental, health and safety and foodstuffs legal developments that took place during October 2020.
NATIONAL LEGISLATION
1) National Water Act
- Proposed Reserve Determination of Water Resources for the Crocodile West and Marico Catchment
A detailed draft document was published for comment.
- Breede-Gouritz Water Management Area – Proposal to include the Berg-Olifants Water Management Area
A proposal was published for public comment on 9 October 2020 to include the Berg-Olifants water management area in the Breede-Gouritz water management area. This would also include forming a new catchment management agency and naming it the Breede-Olifants catchment management agency.
A draft correction notice (GN 1152 of 30 October 2020) was published which aims to correct the earlier notice in paragraph C(i) by the deletion of the name Breede-Gouritz-Olifants Catchment Management Agency and replacing it by the Breede-Olifants Catchment Management Agency.
2) Private Security Industry Regulation Act
- Code of Conduct for Security Service Providers
DRAFT amendments to the Code were published:
- Amendments to some definitions
- Requirements for ensuring order and safety on premises used for sporting, recreational, entertainment or similar purposes.
3) National Environmental Management Act
- Consultation on Draft Regulations to domesticate the requirements of the Rotterdam Convention on the prior informed consent procedure for certain Hazardous Chemicals and Pesticides in International Trade
These draft Regulations were published for public comment. They aim to give national effect to the requirements of the Rotterdam Convention which South Africa has also signed.
Prior consent from the so-called designated national authorities (DNA) is required for the import or export of chemicals or pesticides listed in Annexure 1 of the draft Regulations. The DNA of each country must provide its consent.
- Procedures for the Assessment and Minimum Criteria for Reporting on Identified Environmental Themes in terms of sections 24(5)(a) and (h) and 44 of NEMA when applying for Environmental Authorisation
Protocols for the specialist assessment and minimum report content requirements for environmental impacts on terrestrial animal and plant species were published. These will now have to be used instead of Appendix 6 of the EIA Regulations, GN R 982 of 2014, except where the applicant provides proof to the competent authority that the specialist assessment affected by these protocols had been commissioned by the date of publication of these protocols in the Government Gazette (30 October 2020), in which case Appendix 6 will apply.
4) Biodiversity Act
- Alien and Invasive Species Lists
A notice was published by the Minister extending the commencement date of the Lists to 1 March 2021 instead of 25 October 2020. The 2016 lists will remain valid until then.
- Alien and Invasive Species Regulations
A notice was published by the Minister extending the commencement date of the Regulations to 1 March 2021 instead of 25 October 2020. The 2014 Regulations will remain valid until then.
5) Electricity Regulation Act
- Electricity Regulations on New Generation Capacity
The Regulations were amended to permit municipalities to generate or buy new generation capacity. This has long been a contentious issue, particularly for the City of Cape Town, who are keen to become more self-sufficient and less reliable on Eskom. The City went to court some time back to challenge the Minister for his refusal to permit municipalities to generate their own new generation electricity or to buy same from third parties.
6) Air Quality Act
- Submission of “Subsequent Pollution Prevention Plans” and the proposed process to manage Carbon Budgets for the period 1 January 2021 to 31 December 2022
This document (GN 580 of 22 October 2020) combines these two topics into one notice.
FIRST PART:
In terms of the National Pollution Prevention Plans Regulations, 2017, a pollution prevention plan must be submitted to the Department of Environment, Forestry and Fisheries if the following production processes are carried out:
(a) Coal mining;
(b) Production and/or refining of crude oil;
(c) Production and/or processing of natural gas;
(d) Production of liquid fuels from coal or gas;
(e) Cement production;
(f) Glass production;
(g) Ammonia production;
(h) Nitric acid production;
(i) Carbon black production;
(j) Iron and steel production;
(k) Ferro-alloys production;
(l) Aluminium production, excluding foundries;
(m) Polymers production;
(n) Pulp and paper production;
(o) Electricity production from fossil fuels, excluding the use of back-up generators.
The first pollution prevention plan must cover a period from the date of promulgation of the Regulations (ie. 21 July 2017) up to 31 December 2020 and the subsequent pollution prevention plans must cover periods of five calendar years each (Reg 3(2)). Reg 4(1) states that the first pollution prevention plan must be submitted to the Minister before or on 21 June 2018 and the subsequent pollution prevention plans must be submitted within five months of existing plans being reconciled.
The plans get reconciled at the end of each five year phase. To develop and finalise the new plans for the subsequent phase for the period 1 January 2021 to 31 December 2025, companies are given five months from the time the lifespan of the existing one ceases. The subsequent plans are therefore due for submission on 31 May 2021.
SECOND PART:
This deals with the proposed process to manage the carbon budgets for the period 1 January 2021 to 31 December 2022.
According to the Notice the Department is developing the Climate Change Act. Once completed, Regulations for Carbon Budget and Mitigation Plans (currently known as pollution prevention plans) will be published. The Regulations will integrate the two instruments (ie. carbon budgets and mitigation plans).
It was further advised that the Department is preparing the carbon budget allocation methodology to be applied for the mandatory carbon budget system which is anticipated to commence with the second phase of the carbon tax on 1 January 2023. This methodology will apparently be finalised during the current financial year. In the current phase of the carbon tax (2019 to 2022) companies receive a 5% carbon budget allowance under the carbon tax once they take up a carbon budget on a voluntary basis.
These budgets were allocated for 2016 to 2020 and will cease on 31 December 2020. The lifespan of the current pollution prevention plans under the National Pollution Prevention Plans Regulations, 2017, also ends on 31 December 2020.
Once the proposed Climate Change Act is promulgated the new carbon budget Regulations will be linked with the mitigation plans.
The Department therefore encourages companies to optionally use the period between 1 January 2021 and 31 December 2022 as a pilot period to test the linking of the carbon budgets and mitigation plans with the view that, by the time the carbon budgets become mandatory on 1 January 2023, they would have been using the new system already.
The Department also wishes to use the pilot period to test the new methodology for allocating the carbon budget and encourages companies to volunteer to use the new methodology once finalised.
As per the current carbon tax implementation, companies will still qualify for the 5% carbon
budget allowance during this pilot period and the Department will continue to provide a
clearance to companies for submission to the National Treasury/SARS in order for them to fulfil the requirement for the carbon budget allowance under the Carbon Tax Act.
In conclusion (of the second part): until the Climate Change Act and its Regulations for Carbon Budget and Mitigation Plans are promulgated it appears as if right now only industries currently falling under the National Pollution Prevention Plans Regulations, 2017, are affected. However, considering the fact that the deadline of 31 December 2020 is looming it is expected that this Act and the Regulations will be published very soon. As such steps should be taken once the proposed Regulations are promulgated (we will notify clients when this occurs).
7) Occupational Health and Safety Act
Draft Incorporation of Health and Safety Standard (National Code of Practice for the Training Providers of Lifting Machine Operators)
There is already a National Code of Practice for the Training Providers of Lifting Machine Operators (GN R 539 of 24 June 2015). This sets out various requirements pertaining to training providers, but more importantly defines which type of lifting equipment requires formal training by an accredited service provider.
A new DRAFT was published for public comment (the deadline is 23 December 2020). Once in force it would replace the 2015 Code.
One of the changes is that the list of identified lifting equipment and attachments was extended.
8) National Railway Safety Regulator Act
- Regulations regarding Infrastructure or Activity Affecting Safe Railway Operations
These Regulations were published.
9) Marine Living Resources Act
The following two DRAFT documents were published for comment. If enacted they would substantially transform the commercial fishing industry.
- Proposed Resource Split between Local Commercial and Small-Scale Fishing in the Traditional Linefish, Squid and Abalone Fishing Sectors
This draft document proposes splitting the total allowable catch or total applied effort between the three above sectors. Comment on the proposed split is possible until 23 November 2020.
The purpose is to grant access to marginalised groups. Commercial Rights Holders in the Traditional Linefish and Squid fishing sectors would be allowed to continue harvesting their allocations in these fishing sectors until their rights expire on 31December 2020.
The current Commercial Exemption Holders who hold exemptions in the Abalone fishing sector would be allowed to continue harvesting their allocations until the expiry of their exemptions. The individual Commercial Rights and/or Exemption Holders in the Traditional Linefish and Abalone fishing sectors may elect to operate in the Small-Scale Fisheries sector as declared members of the Small-Scale Fisheries Cooperatives as per the Small- scale Fisheries Regulations, 2016. Alternatively, the individual Commercial Rights and/or exemption Holders may register a Small-Scale Fisheries Cooperative which may be declared by the Minister as a Small-Scale Fisheries Cooperative once the registration process commences in the near future as per the Small-Scale Fishing Regulations.
The proposed resource split between Local Commercial and Small-Scale fishing in the traditional Linefish, Squid and Abalone fishing sectors is intended to take effect from 1 January 2021 unless otherwise notified.
- Proposed Reclassification of the White Mussel, Oyster and Hake Hand Line Fishing Sectors as Small-Scale Fishing Species
This draft document proposes to reclassify the White Mussel, Oyster and Hake Hand Line fishing sectors as Small-Scale fishing sector species. Comment on the proposed reclassification is possible until 23 November 2020.
If the reclassification is enacted no commercial fishing rights will be allocated in these three fishing sectors during the Fishing Rights Allocation Process proposed for 2020. The current Commercial Rights Holders who hold rights in the White Mussel, Oyster and Hake Hand Line
fishing sectors will be allowed to continue harvesting their allocations until expiry of their rights on 31 December 2020. These individual Commercial Rights Holders in the White Mussel, Oyster and Hake Hand Line fishing sectors may elect to operate in the Small-Scale Fisheries sector as declared members of the Small-Scale Fisheries Cooperatives as per the Regulations relating to Small-Scale Fishing, 2016.
Alternatively, the current individual Commercial Rights Holders may register a Small-Scale Fisheries Cooperative, which shall be declared by the Minister as a Small-Scale Fisheries Cooperative once the registration process commences in the near future as per the Small-Scale Fishing Regulations.
The proposed classification of the White Mussel, Oyster and Hake Hand Line fishing sectors as small-scale fishing species is proposed to effect on 1 January 2021 unless affected stakeholders are informed otherwise.
10) Spatial Planning and Land Use Management Act
Delineation of Karoo Regional Spatial Development Framework Region
This was published.
11) Foodstuffs, Cosmetics and Disinfectants Act
- Regulations relating to Health Messages on Container Labels of Alcoholic Beverages, 2007 – amendment
These Regulations were supposed to be amended on 22 December 2020 by GN 1458 of 22 December 2017 (GG 41350). A notice was published in GN 1143 of 26 October 2020 (GN 43844) repealing the pending 2017 amendment. The Regulations will thus, for now, remain unchanged in December 2020.
PROVINCIAL LEGISLATION
12) Eastern Cape Province
- Eastern Cape Biodiversity Conservation Plan (2019)
This was published on 19 October 2020 for implementation.
13) Gauteng Province
- Environmental Management Framework Regulations, 2010
Notice of publication for comment was given for the draft updated Gauteng Provincial Environmental Management Framework.
No other relevant provincial legislation was published during this month.
MUNICIPAL LEGISLATION
14) Nkomazi Local Municipality
The Spatial Planning and Land Use Management By-law was adopted by the municipality.
15) Nkangala District Municipality
A new Air Quality Management By-law was published although it will only take effect on a date to be published in the provincial Gazette. While not expressly repealing the 2016 by-law it will, by implication, do so once the date is published.
16) Mandeni Local Municipality
The following new relevant by-laws were promulgated:
- Community Services By-Laws, 2020 [please note: this was now, however, published in the KZN provincial Gazette 2232 of 15 October 2020, it was merely mentioned on page 447]
- Beach Amenities By-Law
- Fire and Emergency Management By-Law
- Keeping of Animals By-Law
- Open Space By-Law
- Waste Management By-Law.
At the same time the 2009 Fire Prevention By-law and 2011 Waste Management By-law were repealed.
17) Maphumulo Local Municipality
The Waste Management By-law was promulgated.
18) Bergrivier Local Municipality
The By-law relating to the Control of Vessels and Boating on the Berg River Estuary was promulgated.
19) Okhahlamba Local Municipality
Various new by-laws were promulgated, but for purposes of this update only the following are relevant:
- Outdoor Advertising By-law
- Events By-law
- Nuisance By-law
- Fire and Emergency Services By-law.
20) Buffalo City Metropolitan Municipality
The Land Use Management Scheme Regulations were published.
If you have any questions please feel free to contact us.
Kind regards
MARK DITTKE
For the print/download version click here: Environmental and Health & Safety Monthly Update – October 2020