Unpredictable and predictable features in living room of environmental impact assessments

By Pieter van der Merwe, Rock Environmental Consulting (Pty) Ltd.
Environmental legislation has gained the reputation of frequently changing and of becoming somewhat complicated. The challenges South Africa is facing in protecting its environment sustainably are present in all sectors of the South African economy. In the agricultural sector, the pork industry is no exception.  However, working and being involved in this field during the course of the previous 12 years or more, tends to shave off the sharp ends and one tends to simplify or rationalise matters more easily – but with caution. It remains obvious that each proposed development site has its unique environmental setting, characteristics, predictability and unpredictability.

While the impact on the bio-physical environment can be predicted or determined to a considerable extent, the views and concerns raised by the public are considerably unpredictable. The human factor, saturated and influenced by backgrounds, exposure, viewpoints, assumptions and opinions, create a make-up of unpredictability in the application and EIA process for piggeries.
During the course of the EIA process, the pendulum constantly oscillates between unpredictability and predictability.  The public participation exercise, an integral part of the EIA process, is therefore one of the unpredictable elements which require a careful approach and accuracy. It is a known fact that many EIA processes end up being rejected by the competent authority due to errors in the public participation process. Objectors that are clued up with the requirements and administration of this process often use the public participation process as a means of objecting to the project or even appealing the authorisation.
There are a few golden rules to deal with, with these unpredictable aspects, namely:
•    The public participation exercise must be transparent and the environmental assessment practitioner (EAP) must be seen and respected as being independent while placing all the facts on the table.
•    An advertisement in the press and on site (by means of site notice) must be accurate and must comply with the legal requirements in terms of its contents.
Although the community or certain members of the community can be abrasive and even intimidating or unfair, it is important to provide ample opportunity to such members to be properly heard and have their comments, concerns and objections recorded accurately. The general “temperature” of the community regarding the proposed piggery project, whether it’s upgrading or a green field site, should be communicated to the applicant continuously.
•    The EAP and the client should not avoid conflict or proper communication, but must take matters up head on. This is important in order to address all matters and concerns. Conducting an open day where interested and affected parties can view the lay-out plan is set up and other details of the project and make use of the opportunity to gain more information. This is a functional method of keeping the community or any interested and affected parties well informed. An ill-informed public have the potential of delaying the application process through objections based on assumptions or inaccurate information that is deliberately or accidently spread through the community.
•    Members of the community or interested and affected parties often assume that a public meeting will or should be held or they will insist that public meetings must be held. As the EAP one has to refer and adhere to the environmental legislation, which does not stipulate that a public meeting must be held. However, legislation merely requires that one has to engage with the public or interested and affected parties but does not specify what this engagement implies. Experience showed that an open day session where documentation or information can be viewed and discussed is the best method. Through this method of engagement all members of the public have the opportunity to be heard. Some of the “shy” members are often dominated by a few members with stronger personalities or opinions and therefore lose sufficient opportunity to raise their views and concerns.
In hind sight, there were applications where strong community reaction was anticipated. However, to everybody’s amazement, no objections or concerns were lodged and vice versa.
Contrary to the above, the aspect of time frames for the execution of the EIA process from the onset of the application up to the decision making stage has more recently evolved into a highly predictable element. In the past, time frames from the onset of the application up to decision making was a source of immense frustration as no time frames or times lines was committed to by government. To the same effect, applications were lodged by an EAP for its clients, which were for different reasons not followed through or concluded, creating desks and corridors in departments congested with documentation, much to the frustration of the officials.
The new time frames for the EIA process and more in particular the applicable Basic Assessment Report (BAR) compilation process required for piggeries, implies that an Environmental Authorisation (EA) – positive or negative will be obtained 282 days after the submission of the application form and Draft BAR. The 282 days period consists of the following mile stones in calendar days, which has to be achieved by both the EAP and the competent authority, e.g. Gauteng department of agriculture and rural development:
•    Public participation can commence immediately after appointment of the EAP. Thirty (30) calendar days are allowed for this step.
•    After 30 days, the application form is submitted together with the draft BAR which is made available for comments for a period of 30 days.
•    The legislation stipulates that after submitting the draft BAR for comments, the final BAR must be submitted to the competent authority within 44 days from the submission of the draft BAR. In essence the EAP has to address comments and collate information within 14 days of the lapsing of the 30 day comment period. It is important to note that if all comments and responses or other information could not be included in the draft BAR, the period can be extended to a maximum of 50 additional days; which implies that a maximum of 90 days are allowed form the date of submission of the application form. In other words, once the application form is submitted with the draft BAR, “the clock starts ticking” towards the 282 days (9,4 months) referred to for conclusion of the process.
•    Once the final BAR is submitted after the 44 day period, it is submitted to the competent authority and made available to registered interested and affected parties or stakeholders for the period of 30 days. The competent authority must acknowledge receipt within 14 days of receipt of the final BAR.
•    From the date of acknowledgement of receipt up to decision making on the application and submitted final BAR, the CA has 107 days to their disposal. Once a decision is reached, the CA must inform the applicant within five days of reaching a decision.
•    Once the environmental authorisation is issued (positive or negative) all registered interested and affected parties must be notified of the decision within 14 days of the date of the authorisation.
•    If an appeal is to be lodged by either an objector or the applicant it needs to reach the CA within 14 day’s.
One of the stringent measures pertaining to EIA time management is that if no correspondence or response is received by the competent authority, as expected from the applicant or the EAP, the file is closed. The only way to “re-open” the file is to start the process all over again. That’s painful!
This predictability of the time frames was a major step forward and made the EIA process administratively traceable and manageable.
Although members of the fraternity are of the opinion that more changes are needed in the process, one has to acknowledge that all administrative and assessment processes, from law to accounting to engineering have unpredictable and predictable elements attached to it. The pendulum of the clock constantly oscillates from left to right and back. From the predictable to the unpredictable. Tik …tok …tik …tok …
Maybe we have to remember that the pendulum of predictability and unpredictability remains an integral and most important part of the clock and its mechanisms in the quiet living room of our environment and the assessment and management of impacts.
In the words of Richard Branson: “Think yes, not no” and in the word of Mia Hamm: “Celebrate what you’ve accomplished, but raise the bar a little higher each time you succeed”.

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