ENVIRONMENTAL, HEALTH AND SAFETY AND FOODSTUFFS LEGAL UPDATE REPORT (SOUTH AFRICA) JULY 2022
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Monthly SHE and Foodstuffs Legal Newsletter of what happened in July 2022
Dear Clients,
Below please find a summary of selected relevant environmental, health and safety and foodstuffs legal developments that took place during July 2022.
NATIONAL LEGISLATION
1) National Forests Amendment Act, 1 of 2022
The Amendment Act was passed, but it will only enter into force on a date to be proclaimed by the President in the Government Gazette.
The purpose of the amendment is to provide clear definitions of natural forests and woodlands, and furthermore to regulate public trusteeship of the nation’s forestry resources. It also aims to further the promotion and enforcement of sustainable forest management, and to increase the measures provided for in the Act to control and remedy deforestation. A new chapter (6A) will be inserted dealing with appeals against decisions taken under delegated powers and duties.
Offences relating to sustainable forest management are a fifth category offence, which currently only carries a sentence of a fine up to R 50 000, but no imprisonment. The Amendment Act will change this by allowing for a fine not exceeding R10 million or imprisonment for a period of up to 10 years or to both such fine and imprisonment.
2) Occupational Health and Safety Act
- General Safety Regulations – Exemption of Class XXI employers from Reg 3 (4)
Reg 3(4) of the General Safety Regulations requires an employer to have trained first aiders if there are more than ten employees. An exemption from this requirement was published in GN R 2240 of 2022 for the Class XXI (Medical services, Animal hospitals etc) sector.
According to the exemption Class XXI constitutes:
2100: Dentistry; the business of medical practitioner, masseur or radiologist, including nursing and ambulance associations; chiropodists; the business of conducting electro medical institutes.
2110: The business of running hospitals; maternity or nursing homes; medical research laboratories; asylums, sanatoria; clinics; malaria health committees; the business of veterinary surgeon; dog breeder; bird fancier; domestic pet dealer; the business of conducting animal hospitals and homes.
The exemption states, however, that this does not preclude an inspector demanding the provision of employee’s trained in first aid in areas where an inspector is of the opinion that the health and safety of employees in their course of employment or in connection with the use of plant and machinery is threatened.
- Commercial Diving Regulations
- Diving Entities Registration Renewal
A Direction was published in terms of which diving entities previously identified by the Department of Employment and Labour must re-apply to be issued with a new certification as required by Reg 3(11) of the new Commercial Diving Regulations released in May 2022.
Diving entities are commercial divers, diving supervisors, diving instructors and commercial diving schools.
Commercial diving schools must submit their applications to the Department within six months of the Direction (ie. December 2022). Commercial divers, diving supervisors and diving instructors certified before the promulgation of the Commercial Diving Regulations should submit applications within twenty-four months (July 2024).
- Medical practitioners – exemption
An exemption was granted to medical practitioners who currently do not have the qualification in occupational medicine to continue carrying out medical examinations in terms of the Commercial Diving Regulations. This exemption is valid for a period of three years only from the date of publication of the exemption (ie. 6 July 2022).
- Schedule of Fees to register Entities with the Department of Employment and Labour
The fee schedule applicable to various entities, registration of some equipment and a construction work permit, among others, was revised.
3) Mineral and Petroleum Resources Development Act
- Regulations for Petroleum Exploration and Production, 2015
A minor amendment was made to Reg 2(1) which deals with the manner in which an application for any permission, right or permit made in terms of the Act must be lodged by submitting an appropriate compatible electronic completed form contained in Annexure I, together with the prescribed annexures in compatible electronic format with the Regional Manager in whose region the land, area or block is situated or to the designated agency, as the case may be.
4) Private Security Industry Regulation Act
- Draft Regulations relating to the Training of Security Service Providers in the Private Security Industry
Draft Regulations were published for public comment.
- Draft Regulations relating to the Use of Remotely Piloted Aircraft System in the Private Security Industry
- Draft Regulations were published for public comment.
5) National Environmental Management Act
- DRAFT National Regulations for the Management of Mercury in South Africa
DRAFT Regulations were published for public comment. They are intended to give effect to the Minamata Convention on Mercury of which South Africa is a party, and which it ratified in 2019. It is therefore expected that these Regulations, although possibly with modifications, will be passed in due course.
It is proposed to prohibit the manufacture, import or export of mercury-added products listed in Part I of Annexure 1 of the Regulations. A mercury-added product is defined as “a product or product component that contains mercury or a mercury compound that was intentionally added”. The items listed in Part I of Annexure 1 are mainly identified listed electronic/electrical products (lamps, batteries (except for certain button batteries), but also cosmetics, skin lightening soaps, pesticides, biocides and topical antiseptics).
In addition, those mercury-added products set out in Annexure 2 may not be manufactured, imported or exported. These are: chlor-alkali production; acetaldehyde production in which mercury compounds are used as catalyst. The following mercury using processes are also covered: vinyl chloride monomer production; sodium or potassium methylate or ethylate; production of polyurethane using mercury containing catalysts. This does, however, exclude products that are essential for military use and for the protection of the local population, and products for research, calibration of instrumentation, or for use as reference standard.
Similarly, new manufacturing processes involving mercury or mercury compounds that were not used prior to 1 April 2023 are not allowed, unless written authorisation was granted by the Minister.
The export of mercury or mercury compounds or the mixtures of mercury listed in Annexure 1 is prohibited, except for its disposal, environmentally sound interim storage, research or laboratory analysis use. It is further not allowed to export, for the purpose of reclaiming mercury, mercury compounds or mixtures of mercury not listed in Annexure 1. The Prior Informed Consent Procedure set out in Annexure 4 must be implemented for such export through the South African Focal Point of the Convention.
Reg 6 sets out various import restrictions, although there are some exceptions, like mercury-added products.
It will not be allowed to use mercury or mercury compounds listed in Part I of Annexure 2 in manufacturing processes (ie. chlor-alkali production; acetaldehyde production in which mercury or mercury compounds are used as catalyst) after the phase-out date specified in the Annexure (ie. 1 April 2025 and 1 April 2023 respectively).
Measures must be taken to restrict the use mercury or mercury compounds in the processes listed in Part II of Annexure 2 (ie. vinyl chloride monomer production; sodium or potassium methylate or ethylate; production of polyurethane using mercury containing catalysts).
It will also not be permitted to use mercury or mercury compounds in a facility that did not exist prior to 1 April 2023 and that uses the manufacturing processes listed in Annexure 2.
No person will be allowed to develop any facility using any other manufacturing process in which mercury or mercury compounds are intentionally used that did not exist prior to 1 April 2023, except where it can be demonstrated by submitting an application to the Minister that the manufacturing process provides significant environmental and health benefits above the associated risks, and that there are no other technically and economically feasible mercury-free alternatives providing such benefits.
The use of mercury and mercury compounds in the manufacturing processes listed in Part II of Annexure 2 may only be allowed by submitting an application to the Minister.
Reg 8 deals with the environmentally sound interim storage (up to three months) of mercury stocks and imposes various requirements. Prior to permanent disposal mercury waste must undergo conversion and where intended to be disposed of in above-ground facilities, conversion and solidification. Mercury waste that underwent solidification, and, where applicable solidification, may only be permanently disposed of in the following licenced facilities, namely: salt mines adapted for this, or deep underground hard rock formations, or suitable above-ground facilities.
A person undertaking one of the various identified activities must register this with the Minister within 120 days of the Regulations entering into force. An annual report must then also be submitted before 31 March of every year. The audit must be performed by an external auditor. Information to be covered in the audit is set out in Reg 10(2).
A mercury phase-out plan must be submitted to the Minister for approval within one year of the commencement of the Regulations. This may alternatively be submitted by an association, which is defined as “a group of persons importing, exporting, manufacturing or distributing the same or substantially similar identified products”. The phase-out plan is in respect of mercury-added products listed in Part I of Annexure 1 (ie. identified listed electronic/electrical products, batteries, pesticides, cosmetics etc). What is confusing is that the table under Part I states that 1 April 2023 is the date when the manufacture, import or export will not be allowed. The plan must, however, only be submitted within one year of the commencement of the Regulations, which at the very earliest would be August 2023.
Moreover, a person or association must submit a phase-down plan to the Minister within one year of the Regulations entering into force. This is in respect of Part II Annexure 1 mercury-added products (in this case only dental amalgam).
Lastly, a mercury management plan must be submitted to the Minister within one year of the Regulations entering into force. This is for the following Part II Annexure processes: manufacturing processes using mercury or mercury compounds [ie. chlor-alkali production; acetaldehyde production in which mercury compounds are used as catalyst], as well as these mercury using processes [ie. vinyl chloride monomer production; sodium or potassium methylate or ethylate; production of polyurethane using mercury containing catalysts].
- DRAFT Regulations to Domesticate the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade
DRAFT Regulations were published for public comment. Once in force they will repeal the 2021 Regulations to Domesticate the Requirements of the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
Both Regulations state that 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 Regulations. The respective DNA of the importing and exporting country must provide its consent. In South Africa it would be the Department of Forestry, Fisheries and the Environment.
- Proposed Regulations pertaining to the Exploration and Production of Onshore Oil and Gas requiring Hydraulic Fracturing
Interested parties are invited to submit comments until 22 August 2022 on these draft Regulations which were released for public comment. Sadly, this reopens the discussion about hydraulic fracturing in sensitive and water scarce areas like, for instance, the Karoo. In contrast to the draft Regulations published a few years ago the current version identifies some areas or specific locations where hydraulic fracturing may not take place. They further are more comprehensive in so far as matters like standards, well design and construction, cement requirements, compression tests, casing string tests, blowout prevention, well examination, operations, drilling fluids etc are concerned.
The draft Regulations refer in several instances to the Minimum Requirements mentioned below, and the two documents will have to be read together.
- Consultation on the intention to prescribe Minimum Requirements for the Submission of Applications for an Authorization, Right, Permit or Licence for the Onshore Exploration of Oil and Gas intending to utilize Hydraulic Fracturing
Interested parties are invited to submit comments until 22 August 2022 on minimum requirements that should form part of an application for an authorization, right, permit or licence for the onshore exploration of oil and gas intending to utilize hydraulic fracturing. The notice itself does not provide any further information other than calling for consultation.
An EIA, environmental management programme and overall base line monitoring plan in terms of the above Proposed Regulations pertaining to the Exploration and Production of Onshore Oil and Gas requiring Hydraulic Fracturing will have to comply with these Minimum Requirements.
As such the two documents will have to be read together.
- Proposed Regulations pertaining to Financial Provisioning for the Mitigation and Rehabilitation of Environmental Damage caused by Reconnaissance, Prospecting, Exploration, Mining or Production Operations
Yet another set of draft Regulations dealing with this was published for public comment. Should they enter into force they will repeal the Financial Provisioning Regulations, 2015.
- Consultation on the intention to amend the 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 the Act, when applying for Environmental Authorisation
In October 2020 the Minister published protocols (procedures) for the specialist assessment and minimum report content requirements for environmental impacts on terrestrial animal and plant species. This means that the protocols are 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 the protocols in the Government Gazette (30 October 2020), in which case Appendix 6 will apply.
The protocol was now amended by removing the reference to “terrestrial” wherever it occurs. As such the protocol now applies to both freshwater and terrestrial animal species.
- Section 24H Registration Authority Regulations – Amendment
Section 24H of the National Environmental Management Act deals with the registration authority of EIA practitioners and Regulations were passed in 2016. These were now amended (once again).
6) Draft Game Meat Strategy for South Africa
This draft strategy was published for public comment.
7) Integrated Coastal Management Act
- General Discharge Authorisation
This General Discharge Authorisation (GDA) is applicable to effluent discharges from land-based sourced into coastal waters, except for those areas set out in Annexure 2 of the GDA. It furthermore applies to those ports listed in Annexure 3, as well as proclaimed fishing harbours, apart from those located within a marine protected area governed under the Protected Areas Act.
A duty of care (in terms of section 28 of the National Environmental Management Act) applies to any impact caused by a person which has an adverse effect on the coastal environment. This duty is imposed on:
- the owner, occupier, person in control of or user of land or premises on which an activity that caused or is likely to cause an adverse effect occurred, is occurring or is planned
- an operator of a pipeline which ends in the coastal zone
- a producer or discharger of a substance which caused, is causing or is likely to cause, an adverse effect on the coastal environment.
A GDA is granted to any person discharging effluent where it meets all the following requirements:
- The effluent must be neutrally-buoyant or positively-buoyant with respect to the coastal waters into which the effluent is being discharged.
- In Table 1
- For offshore discharges, the effluent’s constituents do not exceed the General Limits specified in the Table, and
- in respect of discharges into coastal waters other than the offshore environment, the effluent does not exceed the Special Limits specified in the Table.
- Where the effluent volume exceeds
- 10 000 m3 per day in the case of an offshore discharge, the General Limits specified in Table 2 apply, or
- 2000 m3 per day in the case of discharges into coastal waters other than the offshore environment, the Special Limits specified in Table 2 apply.
- Where the influent water’s constituent quantities exceed the General Limits or the Special Limits of Table 1, and where applicable, Table 2, the difference between the constituent quantities of the influent water, and that of the effluent, must not exceed the General Limits or the Special Limits in Table 1, and where applicable, Table 2.
Prior notification must be given to the Department of Forestry, Fisheries and the Environment before discharging, and various information must be furnished (as set out in paragraph 4.2).
Discharges into the following receiving environments are not permitted in terms of the GDA:
- The bays set out in Annexure 2 (Saldanha Bay, False Bay, Table Bay, Hout Bay, Gansbaai, Mossel Bay, Plettenberg Bay, St Francis Bay).
- Estuaries, except for those inside a port as set out in Annexure 3 (ie. the ports of Port Nolloth, East London, Ngqura (Coega), Port Elizabeth, Cape Town, Mossel Bay, Durban, Richards Bay, Saldanha)
- Marine protected areas governed by the Protected Areas Act
- Special management areas declared in terms of section 23 of the Integrated Coastal Management Act.
Paragraph 6 sets out the various monitoring requirements. This must be read together with Table 1 (general and special effluent limits for organic and inorganic constituents in effluent) and Table 2 (general and special effluent limits for physico-chemical properties of the effluent).
Where it is a once-off discharge an analysis report must be submitted to the Department within 15 calendar days of the discharge.
For discharges, other than once-off, effluent quality must be monitored and sent to a SANAS accredited laboratory on a quarterly basis, but only for the first year. After that only bi-annual reports are required.
For both types of discharge the quantity must also be stated.
8) Biodiversity Act
- Draft African Penguin Biodiversity Management Plan
This Draft Plan was published for public comment.
9) Waste Act
- Notice of Extension of Reporting Period by Identified Producer Responsibility Organisations and Producers to the Extended Producer Responsibility Online System
In terms of the Extended Producer Regulations (Reg 8) Producer Responsibility Organisations, as well as producers that implement their own EPR schemes, are required to submit their interim performance report on or before 31 July 2022. The Department of Forestry, Fisheries and the Environment experienced technical challenges and delays, which according to the Notice were since resolved, and the online reporting system went live on 20 July 2022. The reporting period in terms of the Regulations was therefore extended until 31 August 2022.
10) National Water Act
- Review of the National Water Resources Strategy (Draft)
The draft review was published by the Department of Water and Sanitation for public comment.
11) Air Quality Act
- Consultation on the Draft 8th National Greenhouse Gas Inventory Report for SA
In terms of the UN Framework Convention on Climate Change South Africa is required to provide in its national inventory, on gas-by-gas basis, and its units’ mass, estimates of anthropogenic emissions of carbon dioxide, methane and nitrous oxide, by sources and removal by sinks. The public is therefore invited to submit comments to the Minister.
SANS STANDARDS
The SABS published the SANS 22329 Security and Resilience – Emergency Management – Guidelines for the Use of Social Media in Emergencies standard. This is based on the ISO 22329 standard. A copy can be purchased from the SABS webstore, if required.
PROVINCIAL LEGISLATION
No relevant provincial legislation was published during this month.
MUNICIPAL LEGISLATION
12) Rand West City Local Municipality
The following new by-laws were promulgated:
- Air Quality Management By-law
- Integrated Waste Management By-laws – this repeals the Solid Waste By-laws of the former Randfontein Local Municipality and the Waste Management By-laws of the former Westonaria Local Municipality
- Street and Miscellaneous Management By-laws.
13) Steve Tshwete Local Municipality
The Integrated Waste Management By-law was promulgated. This repeals all other waste related by-laws, especially the Transitional Local Council for Middelburg – Refuse (Solid Waste) and Sanitary By-Laws, 2000.
14) Matatiele Local Municipality
A new Nuisance By-law was published which replaces the 2016 version.
15) Greater Giyani Local Municipality
The Waste Management by-laws were promulgated.
16) Collins Chabane Local Municipality
The Waste Management by-laws were promulgated, but will onto take effect from a date to be determined by the municipality.
17) Cape Agulhas Local Municipality
The following new by-laws were published:
- By-law on Municipal Land Use Planning
- Zoning Scheme By-law.
18) City of Matlosana
The Electricity By-laws were amended to provide for small scale embedded generation (SSEG) installations.
19) Bushbuckridge Local Municipality
The Spatial Planning and Land Use Management By-law was published.
20) Sarah Baartman District Municipality
The Fire Services By-law was published.
21) Dr JS Moroka Local Municipality
The Prevention and Suppression of Nuisance By-law was published.
If you have any questions please feel free to contact us.
Kind regards
MARK DITTKE