Environment laws update January 2016

This SA environment laws update of January 2016 includes air quality, offset, NEMA amendments, and waste management plans.

Waste Exclusion Regulations may be scrapped
The Department of Environmental Affairs (DEA) has drafted regulations relating to the exclusion of waste, or a portion of waste, from a given waste stream, from provisions of the National Environmental Management: Waste Act as well as to exempt waste from the provisions of the Act.

However, after further consultation it appears that the provision for exemption by the Minister is being removed from the Act itself, and provisions for exclusion of waste from NEM Waste Act is being reconsidered.

Pricing strategy for waste management charges
The National Pricing Strategy for Waste Management Charges was published in the Government Gazette for comment, after stakeholder consultations took place during 2014.

The state has no intention of collecting taxes by this instrument, unless the management of identified waste streams through industry-managed schemes was not successful.

The pricing strategy details the methodologies that could be used to manage problematic waste and to reduce waste going to landfill which included levies and taxes.

Industry waste management plans
A notice of the intention to require industry waste management plans, and the requirements thereof, was published for stakeholder comment.

The industries being targeted are very broad and it is likely that when required there will be significant impacts along each of the industry value chains; Electrical and electronic equipment; Lighting; Paper and packaging.

Environmental offset
As the concept of offsetting residual environmental impact gains traction, the Department of Environmental Affairs held a workshop to discuss a draft discussion document on environmental offsetting for the potential development of an overarching environmental offsetting framework for South Africa.

Criticism relates to how offsets would be measured, what initiatives could be considered offsets, the concept of additionality (offsets not to be used to replace legal compliance but to offset residual environmental impact) as well as where offset projects could be initiated and under what circumstances.

CAIA will be tracking the development of policy in this regard and will engage with the Department on the matter after further calls for input by its members.

Chemicals Management Bill
The DEA is considering drafting a Chemicals Management Bill as indicated in its discussion document on the matter. CAIA intends to engage with the DEA on the perceived challenges that have initiated this process, as CAIA believes that over-regulation cannot be supported.

Industry supports the domestication of multilateral environmental agreements and the establishment of a higher-level committee than the Multi-stakeholder Committee for Chemicals Management to ensure that the perceived impacts of chemicals on human health and the environment are adequately investigated and addressed through increased compliance monitoring and enforcement.

A request for information on chemicals produced, used, imported or exported by South Africa was published in the Government Gazette as the Department intends to update the National Chemicals Profile of South Africa.

Air quality and greenhouse gases
Carbon budgets are used in sub-sectors of the chemicals industry that were identified as significant emitters of greenhouse gases (GHGs).

The voluntary first phase from 2016 to 2020 is aimed at testing the system and provides a company with the opportunity to consider the implications of the mandatory second phase from 2021.

The Department of Environmental Affairs is continuing with the development of policy in this regard, as well as the development of the policy aimed at reducing overall national greenhouse gasses missions through Desired Emission Reduction Outcomes and a Mix of Measures for Sectors and Subsectors of the Economy.

The former is a top-down approach of allocating GHG emissions to sectors and sub-sectors of the economy based on a national emissions target for a five-year period.

The latter that includes the Carbon Tax, as a proposed instrument, identifies economic and regulatory measures to support the reduction of GHG emissions in South Africa. If introduced, South Africa will be the only country to have two instruments aimed at reducing GHG emissions – namely carbon budgets (emission caps) and the carbon tax.

After engagement with the National Treasury and the DEA, satisfactory alignment of the two instruments is still lacking. More information on the proposed Carbon Tax can be found in the section relating to the National Treasury.

In order to compile a national GHG inventory for South Africa and to track and report on the country’s emissions and reductions objectives, the DEA will be publishing the National GHG Reporting Regulations during 2016 for 2015 emissions to be the first required under mandatory reporting regulations.

After significant engagement both bilaterally and multilaterally on the draft regulations published in the Government Gazette, the DEA has produced a new version that is different in a number of aspects to the original draft. It is likely that the new version will not be published for comment and will remain mostly unchanged.

Greenhouse gas emissions are to be reported to the online National Atmospheric Emissions Inventory System that currently houses the portal for the reporting of other emissions under licence as required by the National Atmospheric Emission Reporting Regulations.

Linked to the reporting of emissions is the DEA’s development of the notice that will declare GHG as priority pollutants. A regulation, still under development to be published for comment in December 2015, relates to the requirement to prepare and submit pollution prevention plans for declared priority pollutants.

CAIA proposed a revision of both the declaration notice as well as the pollution prevention plans regulations for the Department’s consideration. A number of alignment issues exist in current and

National Environmental Management Laws Amendment Bill
The NEMLA4 (National Environmental Management Laws Amendment Bill, 2015) draft Bill was published for comment during 2015. The amendment bill seeks to address challenges with a number of pieces of environmental legislation including the National Environmental Management Act, and its components; Protected Areas Act; Biodiversity Act; Air Quality Act; Integrated Coastal Management Act; Waste Act; NEMA Amendment Act; NEMA Laws Amendment Act 2014.

Multiple amendments deal with the integration of the Department of Environmental Affairs and other competent authorities to enable the efficient functioning of the One Environmental System.

Problematic amendments to the National Environmental Management: Waste Act relating to the definition of “waste” by the incorporation of Schedule 3 in the Act may be at least partially resolved to the point where the Waste Classification and Management Regulations can be used to classify waste as hazardous or general.

Department of Water and Sanitation laws

National Raw Water Pricing Strategy and the waste discharge charge system
The National Raw Water Pricing Strategy was consulted on during 2014 and includes the capping of the agriculture sector’s charges and the introduction of a number of new charges including the waste discharge charge system.

It was recently published as a draft along with the draft Norms and Standards for the determination of raw water tariffs for municipal (residential) consumption that makes up 24% of potable water use in South Africa.

Water classes and resource quality objectives
A further development is the republication of the Resource Quality Objectives that were published during 2014, but this time along with the water classes of different catchments.

The RQOs will be used to determine the quality state (including quantity) of a water resource that must be maintained by the Department of Water and Sanitation; and will most likely also be linked to the Waste Discharge Charge System; the charge that will be dependent on the quality of effluent that is discharged into a receiving water resource.

Environmental Levy on Electricity
The additional 2c/kWh increase of the electricity levy will not be implemented this financial year.

Energy reporting and energy management plans regulations
The state will require industry to report energy consumption data and energy management information to the Department, to determine where gains can be made in terms of energy efficiency, and in so doing create an enabling environment for less pressure to be placed on Eskom. Industry should establish accurate company baselines for reduction initiatives.

Carbon Tax
National Treasury has released the draft Carbon Tax Bill for public comment after multilateral engagements with business, and via the Davis Tax Committee.

• Sources; Government Gazette. PMG. CAIA.
• This post refers to some environment laws, and does not constitute a legal register, or legal advice. South African health and safety law updates are posted separately on Sheqafrica.com

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