PREFACE

2. The change of land use from:

(a) residential use to industrial or commercial use (suspended until further notice: Government Notice No. R 18783 of 27 March 1998);

(b) light industrial use to heavy industrial use (suspended until further notice: Government Notice No. R 18783 of 27 March 1998);

(c) agriculture or undetermined use to any other land use;

(d) use for grazing to any other form of agricultural use; and

(e) use for nature conservation or zoned open space to any other land use.

6. The genetic modification of any organism with the purpose of fundamentally changing the inherent characteristics of that organism.

3.2.2 SUBMISSION OF PLAN OF STUDY FOR SCOPING

After submitting the application to the relevant authority, the applicant and/or consultant may be requested to submit a Plan of Study for Scoping or a Scoping Report, as the case may be.

3.2.2.1 CONTENTS OF PLAN OF STUDY FOR SCOPING

This Plan of Study for Scoping must include the following:

Description of activity

A brief description of the activity to be undertaken must included in the Plan of Study for Scoping. This description may include the following information:

• name of applicant and address;

• nature of activity or development;

• description of the site, design, size, scale and all relevant phases of the proposed development; and

proposed location on a map at an appropriate scale, showing boundaries of the proposed site, major existing infrastructure, adjacent land uses, and any important environmental features (e.g. rivers).

Description of tasks to be performed

A description of all tasks to be performed during scoping must be included. This description may include:

• the preparation of a Plan of Study for Scoping (outline of the scope);

• discussion with the relevant authorities and key interested parties, by collating available information and identifying information gaps;

• the identification of the issues and alternatives;

• the evaluation of concerns in order to assign priority to the more important issues;

• developing a strategy for addressing and resolving each key issue;

• providing feedback on the way comments have been incorporated; and

• preparing a Scoping Report to review and decision-making

Time-table of tasks

A timetable setting out when the above-mentioned tasks will be completed.

Authority consultation

An indication of the stages at which the relevant authority will be further consulted must be determined. It is suggested that the relevant authority be further consulted during the following stages of the process:

• accepting the Plan of Study for Scoping;

• accepting the Scoping Report;

• considering the application on the information contained in the Scoping Report;

• accepting the Plan of Study for EIA;

• review compliance of EIA; and

consideration of application;

Method of identifying issues and alternatives

A description of the proposed method of identifying the issues and alternatives must be provided. This description may include the following aspects:

• consultation with the relevant authorities and key interested parties at an early stage in identifying the broad range of issues and alternatives; and
• methods used such as rating and ranking techniques as well as existing criteria to determine whether the issues and alternatives are significant.

3.2.2.2 AUTHORITY REVIEW OF PLAN OF STUDY FOR SCOPING

The Plan of Study for Scoping must be submitted to the relevant authority for review before the applicant is required to submit a Scoping Report.

What should authority review determine at this stage?

Authority review in this regard should determine whether:

• the procedure followed thus far is adequate to continue;
• the legal and procedural requirements were complied with;
• further information is required, additional issues and alternatives be investigated;
• provision has been made for sufficient consultation with interested and affected parties;
• the information in the plan of study for scoping is accurate, unbiased and credible;
• adequate attention has been given to identify issues and alternatives and credible methods have been used in the identification of these;
• the Plan of Study for Scoping is acceptable, on which the decision to continue with the scoping procedure may be based.

Decision of authority

The relevant authority will in writing:

• accept the Plan of Study for Scoping and request the applicant and/or consultant to submit a Scoping Report; or
• request the applicant and/or consultant to provide additional information before accepting the Plan of Study for Scoping.

3.2.3 SUBMISSION OF A SCOPING REPORT

After the Plan of Study for Scoping has been accepted by the relevant authority, the applicant and/or consultant will be requested to submit Scoping Report.

3.2.3.1 CONTENTS OF SCOPING REPORT

A Scoping Report must contain the following:

Brief project description

Depending on the nature of the project and its site, the project description may include:

• a brief description of the activity to be undertaken, as required for the Plan of Study for Scoping;

• a site plan of the project illustrating location of existing buildings and facilities, proposed components of the project, and any infrastructure required to service the project (roads, rails, etc.)

• where appropriate, schematic drawing and discussion of the project’s production processes and technology;

• estimates of the type of solid waste, liquid effluent, and gaseous emissions expected from the project, and a brief discussion of plans for their treatment and disposal;

• identification of the expected volume of water required for the project, and an indication of its source and availability;

• biophysical description of the site, including the physical (relevant physical features and characteristics, such as landscape features, dynamics and patterns), biological (such as ecological processes and functions, species presence and seasonality, species interrelationships, and habitat), and social characteristics (such as patterns of land use, resource use, present landuses and patterns of other human disturbance). Only the environmental elements within the study area that are relevant to the project need to be identified and evaluated; and

• an estimate of the start and completion date of construction, and the number of construction and operational employees.

Brief description of how the environment may be affected

Using the basic information on the project and the existing environment, potential links between them should be identified (how, where and when could the project’s activities interact and affect environmental components). It should compare the location and timing of project activities with the location, sensitivity, seasonal presence, and abundance of the environmental components. The effects on human health, socio-economic conditions, physical and cultural resources should be included.

Environmental effects are often seen as isolated or separate from one another. In reality, however, they interact over time and space, therefore having time and geographical boundaries. Project-environment interactions can be identified by using map overlays and matrix tables.

Description of environmental issues identified

"Environmental issues" may either be:

• definable impacts (e.g. air pollution),

• the cause of an impact (e.g. burning minedumps), or

• a generally expressed concern (e.g. social disruption of communities) which need to be translated into specific impacts to be investigated. At this stage a broad range of issues are being identified by all the interested parties. Some of these issues may be significant, insignificant or inaccurate. It is however important to focus on the relevant and important issues and to eliminate the insignificant or inaccurate issues from the investigation.

Description of all alternatives identified

The identification of alternatives provide a basis for choice among options available to the decision-maker. When considering the identification and selection of alternatives the following questions should be addressed:

• How should alternatives be identified?

Informal discussions with authorities and the interested parties at the early planning and scoping stages should generate possible alternatives prior to using the following methods:

• The most commonly used methods relate to identification of sites by using a series of overlay maps that indicate the different environmental and socio-economic factors. This approach however requires a prior value judgement in defining the criteria for acceptability or suitability.
• Other possible ways of identifying reasonable alternatives include brainstorming, the nominal group technique and the Delphi technique.
• The creative process of design.

• What is the reasonable range of alternatives that should be considered?

Most guidelines use terms such as ‘reasonable", "practicable", feasible" or "viable" to define the range of alternatives that should be considered. Alternatives can be categorised into the following:

• Demand alternatives e.g. using energy more efficiently rather that building more generating capacity;
• Activity alternatives e.g. providing public transport rather than increasing the road capacity;
• Location alternatives e.g. either for the entire proposal of for components of the proposal e.g. the location of a processing plant for a mine;
• Process alternatives e.g. the re-use of process water in an industrial plant, waste-minimising or energy efficient technology, different mining methods;
• Scheduling alternatives - where a number of measures might play a part in an overall programme, but the order in which they are scheduled will contribute to the overall effectiveness of the end result; and
• Input alternatives e.g. use of alternative raw materials or energy sources.

The option not to act is often used as a base case against which to measure the relative performance of the other alternatives. The relative impacts of the other alternatives are expressed as changes to the base case. The option not to act might also be taken forward in its own right for evaluation against the other alternatives.

• What level of investigation should be applied to each alternative?

Not all alternatives will be investigated in the same detail. An analysis of the range of alternatives should be undertaken to decide which ones should be carried forward for further investigation and which ones should be discarded. In most EIAs a few alternatives (usually not more than three) are identified as the preferred alternatives and are investigated in more detail.

Description of the public participation process

A description of the public participation process followed, including a list of interested parties and their comments should be included as an appendix. A description of the public participation process may include:

• the identification of parties that will be affected by the proposed activity or development;

• the identification of parties that have an interest in the proposal(s) or the environment(s) under consideration;

• the establishment and record of the procedure by which the identified and non-identified interested and affected parties were afforded the opportunity to participate at all appropriate stages of the preparation of the environmental Scoping Report;

• the provision for interested and affected parties to express their views about the scope of the Environmental Impact Report, including alternatives and issues that were investigated;

• a list of issues that were identified as being of concern to interested and affected parties;

• notification criteria, which entails the reason for their participation in the various stages of the process, where the report can be obtained, where it can be examined (libraries), where and to whom the comments on such reports should be send to, the specified period for receiving comments, and

• a record of all the views of and correspondence with interest and affected parties is to form an addendum to the report.

3.2.3.2 REVIEW OF SCOPING REPORT

The Scoping Report must be reviewed by the interested parties (public), by specialists and all the relevant authorities. Reports should

therefore be easily accessible to all involved.

Specialist review

It is not practical to subject all Scoping Reports to specialist review. Specialist review may be undertaken in the following circumstances:

• highly technical assessment; and
• when the relevant authority lacks the expertise to assess the report.

Authority review

Authority review in this regard should determine whether:

• the procedure followed thus far has been adequate to continue;
• the legal and procedural requirements have been complied with;
• there has been sufficient consultation with interested and affected parties;
• the information in the Scoping Report is accurate, unbiased and credible;
• adequate attention has been given to the reasonable range of alternatives and credible methods have been used in the identification of these;
• adequate attention has been given to the main issues identified; and
• the information, required processes and the Scoping Report are adequate and acceptable for considering the application.

Public review

• Public review at this stage may involve an assessment of the procedure followed and a review of the Scoping Report.

• Comments of the interested parties should be requested within a stated time period so that the decision-making process is not delayed. Public review should not be seen as a delaying tactic but rather as a way that interested parties can be sure that their concerns have been adequately addressed and the information in the Scoping Report is adequate.

• Public access to the Scoping Report is provided in good faith and organisations or individuals should not abuse this trust. There should be public accountability and recourse to the courts in cases of misuse of information.

3.2.3.3 CONSIDERATION OF APPLICATION

The relevant authority must accept the information and the Scoping Report before it ma decide to:

• issue an authorisation to undertake the activity with or without conditions;

• that the information contained in the Scoping Report should be supplemented by an EIR; or

• decline the application.

In cases where the application has been authorised or refused, a Record of Decision must be issued by the relevant authority to the applicant. The Record of Decision must include the following:

• a brief description of the proposed activity, the extent or quantities involved, the surface areas involved, the infra structural requirements and the implementation programme for which the authorisation is issued;

• the specific place where the activity is to be undertaken;

• the name, address and telephone number of the applicant;

• the name, address and telephone number of any consultant involved;

• the date of, and persons present at a site visit, if any;

• the decision of the relevant authority;

• the conditions of the authorisation, including measures to mitigate, control or manage environmental impacts or to rehabilitate the environment;

• the importance attached to the key factors that led to the decision;

• the date of expiry or the duration of the authorisation;

• the name of the person to whom an appeal my be directed as contemplated in regulation 11;

• the signature of a person who represents the relevant authority; and

• the date of the decision.

This Record of Decision may also be made available to the interested parties on request. An example of a Record of Decision is provided in Appendix 2.

3.2.3.4 APPEAL

The applicant or an interested party may lodge an appeal against the decision made by the relevant authority. Depending on the circumstances of the case, the relevant authority to whom the appeal is made may be the provincial MEC or the Minister of Environmental Affairs and Tourism. The appeal procedure is described in more detail in section 3.2.5.4 of this document.

It should however be mentioned that very few EIA processes internationally allows for an appeal procedure is substituted by a formal mediation procedure undertaken by a "Review Panel". The applicant and the consultant are responsible to make provision in the various review stages of the EIA process to resolve any conflict that may occur.

The interested parties are also responsible to co-operation with the applicant and the consultant in trying to resolve any conflict and should not misuse the appeal procedure to delay decision-making in this regard. EIAs should be regarded as "tools" for making decisions on the environmental impacts and the full spectrum of decisions should therefore be possible, including the decision to stop development/activities.

3.2.4 PLAN OF STUDY FOR EIA

If the relevant authority decides that the information contained in the Scoping Report should be supplemented by an EIR, the applicant must submit a Plan of Study for an EIA.

3.2.4.1 CONTENTS OF PLAN OF STUDY FOR EIA

Description of the environmental issues identified during scoping

This description entails the environmental issues identified during scoping that may require further investigation and assessment. A broad range of issues may have been identified during scoping.

It could, therefore, be necessary to evaluate these and to highlight the significant issues for further investigation and assessment. There are various methods that could be used to assist the consultant to determine whether issues are significant and thus require examination:

• consultation with specialist consultants;

• rating or ranking techniques; or

• existing criteria (e.g. water quality criteria).

Persuading interested parties that their particular issue is not significant is sometimes a difficult task to address during the scoping stage. It is also not always possible to reach consensus on whether "perceived" issues are significant. Therefore it is important that the consultant also provide a brief explanation on the Plan of Study for EIA, as to why certain issues raised during scoping may have been determined insignificant and were thus eliminated from the study.

A description of the feasible alternatives

This entails a description of the feasible alternatives that have been identified during scoping that may be further investigated.

Additional information required

An indication of additional information required to determine the potential impacts of the proposed activity on the environment should be provided.

Method of identifying impacts

A description of the proposed method of identifying these impacts should be provided. Impact identification methods include:

• checklists;
• matrices;
• networks;
• overlays and geographical information systems (GIS);
• computer expert systems; and
• professional experience.

Method of assessing the significance of impacts

A description of the proposed method of assessing the significance of these impacts should be included. The rating and ranking of impacts is often a controversial aspect because of the inherent difficulties involved in attaching values to impacts.

Project Phases

For the purposes of assessing the impacts identified, the project has to be divided into four phases from which impacting activities can be identified:

• Pre-construction phase

This includes all activities on and off site up to the start of construction. Not including the transport of materials, but including initial site preparation.

• Construction phase

All activities on and off site, including the transport of materials.

• Operational phase

All activities, including operation and maintenance of structures.

• Decommissioning phase

Any activity related to the physical dismantling of the structures.

The activities arising from each phase should be including in an assessment table. This is to facilitate the identification of those activities which require certain management actions to mitigate the impacts arising from them.

3.2.4.2 AUTHORITY REVIEW OF PLAN OF STUDY FOR EIA

The Plan of Study for an EIA must be reviewed and accepted by the relevant authority before the applicant commences work on the specialist studies and before submission of an environmental impact report. Authority review may include the following:

Compliance with the regulations

The coverage and approaches adopted in the assessment should be reviewed against the requirements in the regulations.

Organisation of the information

Is the information logically arranged in sections?

Presentation of information

• Is the information objective?
• Has information and analysis been offered to support all conclusions drawn?
• Has information and analysis been presented so as to be comprehensive to the non-specialist?
• Are the important data and results integrated?
• Has information that is not relevant been avoided?
• Has prominence been given to relevant issues, significant negative impacts and substantial environmental benefits?

Public participation

Does the information identify and address the main concerns of the interest parties?

Quality of the Plan of Study for EIA

The Plan of Study for EIA should be considered adequate if there are not omissions or deficiencies identified that may affect the results and conclusions of the assessment. In particular, the following aspects shall be considered:

• Whether the information and descriptions in the Plan of Study for EIA are factually correct;

• Whether the assessment methodologies are consistent with methodologies recognised and accepted by national/international organisations;

• Whether the identification and description of potential impacts are complete;

• Whether the Plan of Study for EIA has considered and compared all feasible alternatives, positive and negative impacts and scenarios with or without the proposed activity;

• Whether additional changes or information required by the relevant authority during the review of the scoping stage have been incorporated.

3.2.5 SUBMISSION OF ENVIRONMENTAL IMPACT REPORT

After the relevant authority has accepted the Plan of Study for EIA, an Environmental Impact Report must be finalised.

3.2.5.1 CONTENTS OF ENVIRONMENTAL IMPACT REPORT

An Environmental Impact Report must contain the following:

A description of each feasible alternative

The description of each feasible alternative, should include the following:

• the extent and significance of each identified environmental impact; and
• the possibility for mitigation of each identified environmental impact.

Assessment of impacts

The assessment of impacts should be done according to a synthesis of the following assessment criteria:

• Nature of the impact

This is an appraisal of the type of effect the activity would have on the affected environment. This description should include what is being affected and how.

• Extent

Here it should be indicated whether the impact will be local extending only as far as the activity, will be limited to the site and its immediate surroundings, will have an impact on the region or will have an impact on a national scale or across international borders.

• Duration

Here it should be indicated whether the lifetime of the impact will be:

• short term (e.g. 0-5 years);
• medium term (e.g. 5-15 years);
• long term where the impact will cease after the operational life of the activity either because of natural process or by human intervention; or
• permanent where mitigation either by natural process or by human intervention will not occur in such a way or in such a time span that the impact can be considered transient.

n Intensity

Here it should be established whether the impact is destructive or benign and should be indicated as:

• low, where the impact affects the environment in such a way that natural, cultural and social functions and processes are not affected;

• medium, where the affected environment is altered by natural, cultural and social functions and processes continue albeit in a modified way; and

• high, where natural, cultural or social functions or processes are altered to the extent that it will temporarily or permanently cease.

• Probability

This should describe the likelihood of the impact actually occurring indicated as:

• improbable, where the possibility of the impact to materialise is very low either because of design or historic experience;

• probable, where there is a distinct possibility that the impact will occur;

• highly probable, where it is most likely that the impact will occur; or

• definite, where the impact will occur regardless of any prevention measures.

Determination of significance

The significance of impacts can now be determined through a synthesis of the aspects produced, in terms of their nature, duration, intensity, extent and probability and be described as:

• low, where it will not have an influence on the decision;

• medium, where it should have an influence on the decision unless it is mitigated; or

• high, where it would influence the decision regardless of any possible mitigation.

Mitigation

Mitigation seeks to find better ways of doing things, minimise or eliminate negative impacts, enhance project benefits and protect public and individual rights to compensation.

In this regard, the applicant has a responsibility to avoid or minimise impacts, and plan for managing impacts. The potential to mitigate each of the negative impacts identified in terms of its nature its extent, its duration, its intensity, its probability and its significance should therefore include descriptions of the mitigation measures and the extent to which it will influence the significance and status of each impact.

Understanding the problem is the key to effective mitigation: The following questions could therefore be asked:

• what the problem is;
• when the problem will occur and when it should be addressed;
• where the problem should be addressed;
• how the problem should be addressed; and
• who stands to gain or lose.

Mitigation options include:

• alternative ways of meeting the need;
• changes in planning and design;
• improving monitoring and management;
• monetary compensation; and
• replacing of e.g. wetlands by construction other wetlands, relocating villages or people displaced by projects and rehabilitating sites.

Often a combination of compensation, relocation and rehabilitation is needed.

It is also important to specify when and how mitigating measures should be done, also including an indication of the effectiveness of these measures.

Addressing of key issues

The key issues should now be re-assessed to determine how they had been addressed.

A comparative assessment of the feasible alternatives

Appendices

Appendices containing description of:

• the environment concerned;
• the activity to be undertaken;
• the public participation process followed, including a list of interest parties and their comments.

• any media coverage given to the proposed activity; and

• any other information included in the accepted Plan of Study.

3.2.5.2 REVIEW OF ENVIRONMENTAL IMPACT REPORT (EIR)

Purpose of review

Reviewing is the step in the EIA process that:

• determines whether the Environmental Impact Report (EIR) on a identified activity is an adequate assessment of the environmental impacts, and of sufficient relevance and quality for decision-making;
• collects and collates the range of stakeholder opinion about the acceptability of the proposal and the quality of the EIA process undertaken;
• ensures that the EIR and process complies with the Plan of Study; and
• determines whether the application complies with the required regulations.

Steps involved in reviewing EIR

The applicant/consultant plays a leading role in preparing a systematic approach for reviewing the EIR. The following steps are involved:

• Setting the scale

The question that should be addressed at the start of the reviewing process is: how much time is available for review? The answer to this will depend mainly on the nature of the proposal. The nature of the proposal will again determine the extent and intensity of the review process. In line with the above, the applicant/consultant should determine the period for review.

• Notification criteria

Notification criteria should be determined. This entails the reason for review in the various stages of the process, where the report can be purchased or otherwise be obtained, where it can be examined (libraries), where and to whom the comments on such reports should be sent to.

• Reviewers

The EIR should be reviewed by the relevant authority, with the assistance of the other authorities involved, specialists, all interested parties and the public.

n Determine review criteria

The following may form the basis of general procedural review criteria:

• legal requirements;
• quality of scoping;
• quality of impact prediction;
• quality of determining impact significance;
• assessments of alternatives;
• quality of mitigation proposed; and
• public participation process.

The following may form the basis of reviewing the technical information:

• Effectiveness

• Enhance environmental protection
• Efficient use of resources

• Efficiency

Consider cost implications for developer and others

• Administrative implications

Capital implications, legal implications, technical implication and capacity implications.

• Acceptability

To the public, NGOs, CBOs, labour, industry, consultants, DEA&T and other authorities.

• Cost implications

Costs to households, to the government and to the developer.

• Macro-economic impact

• Contribution to economic growth
• Provision of employment
• Inflationary effects
• Regional development

n Review methods

The following review methods can be applied:

• Provide specific checklists and guidelines to all interested parties
• Only make use of accredited reviewers
• Only make use of independent Review Panels
• Legal approaches

• Comments and Response Report

This report either contains a clear statement that no serious shortcomings are noted, or an overview of these shortcomings and other concerns that exist, including how these could be remedied.

Evaluation of impacts

Impacts will be evaluated before and after mitigation in terms of the following factors:

• Factors on public health or risk of life

If the impacts may cause negative public health effects and/or pose an unacceptable risk of life, they are considered as key concerns.

• The scale of the negative environmental impacts

If the impacts are major, they are considered in conjunction with existing impacts of other projects should be considered as a key concern.

• The geographical extent of the impacts

Widespread environmental impacts are of greater concern that localised negative impacts.

• The duration and frequency of the negative environmental impacts

Normally more weight should be given to long term, persistent and/or frequent impacts in determining a project’s acceptability.

• The degree to which the negative impacts are reversible or irreversible

Irreversible impacts should be considered as key concerns.

• Ecological context

More weight should be given to impacts that occur in ecologically sensitive areas or rare undisturbed areas.

• International, national and provincial importance

Negative impacts which affect an issue of international, national or provincial importance should be regarded as significant.

• The degree and likelihood of uncertainty of negative environmental impacts

If the negative environmental impacts are uncertain, they should be treated more cautiously than impacts for which the effects are certain, and the precautionary principle should apply.

3.2.5.3 CONSIDERATION OF APPLICATION

When the review of the EIR is completed, the relevant authority will decide to either issue an authorisation with or without conditions, or reject the application. A Record of Decision will be issued by the relevant authority to the applicant. This Record of Decision will also be made available to the interested parties on request.

3.2.5.4 APPEAL

Appeal to the Minister or provincial MEC

Appeal should be directed to the Minister of the national Department of Environmental Affairs and Tourism or to the MEC for the provincial Department charged with the Environment who was responsible for authorising or rejected the proposed activity in terms of the Environment Conservation Act, 1989. Te Record of Decision issued by the relevant authority will also indicate to whom such an appeal should be directed.

Who may appeal

Section 35 of the Environment Conservation Act, 1989 makes provision for appeal by any person who feels aggrieved by a decision made by the relevant authority in terms of these regulations. "Any person" therefore includes the applicant, interested party or member of the public.

Appeal procedure

An appeal to the Minister or provincial authority under section 35(3) of the Act, must be done in writing within 30 days from the date on which the record of decision was issued to the applicant in terms of regulation 10(1).

An appeal must set out all the facts as well as the grounds of appeal, and must be accompanied by all relevant documents or copies of them that are certified as true by a commissioner of oaths.

Consideration of appeal

The Minister of relevant provincial MEC shall, after considering all relevant facts and supportive documents:

• uphold the original decision; or
• uphold the original decision with modifications; or
• reverse the original decision.

In circumstances where the original decision is not upheld, a revised record of decision should be issued.