Environmental considerations for surviving Covid-19

​​The Covid-19 pandemic is having a devastating impact on businesses and economies across the globe.  Life as we know it has been fundamentally changed and companies have been forced to overhaul their business models in a desperate attempt to survive the crisis.

While the pandemic has created a myriad of uncertainties, it is abundantly clear that the concept of 'business-as-usual' is an aspiration that may never materialise in the way that we know it.  This is the start of a new era, and the time has come for business to adapt or die.  To quote Charles Darwin, "it is not the strongest of the species that survives, nor the most intelligent, but the one that is most adaptable to change".

The national lockdown required industry to implement an array of measures within a very short period of time to help flatten the curve.  The choices that businesses have and will continue to make as part of their strategies to adapt in this rapidly evolving environment will ultimately mean the difference between the survival or ultimate extinction of a business.

The Department of Mineral Resources and Energy recently issued mandatory 'Guidelines for a Mandatory Code of Practice on the Mitigation and Management of Covid-19' which seek, among other things, to assist employers in establishing and maintaining a Covid-19 prevention, mitigation and management programme at mines (our client alert on these Guidelines is available here).  Although a number of directions have been published by the Department of Environment, Forestry and Fisheries, similar guidance in respect of environmental matters has not yet been released.

The purpose of this alert is to provide practical assistance on environmental compliance to ensure the continued survival of your business during life after lockdown.

What you need to know

1. Understand the directions and how they impact your business

A number of directions have been published which may impact your business as far as environmental matters are concerned.  These are briefly summarised here.  Certain of the directions provide for deemed extensions of authorisations and licences that have or will lapse under the various levels of the national lockdown.

Other directions, such as those which affect the processing of licence applications or appeals, will likely cause delays in obtaining the required licence or the challenging of a particular decision.  This may have a knock-on effect and result in costly consequences for a business, even under the less restrictive Alert Level 3. This would no doubt be the case if, for example, a required approval is not in place in order to commence with intended operations by a specific date.  In addition, frustrated applicants and appellants alike are not likely to be successful in obtaining recourse from courts which would ordinarily be available during these unprecedented times.


2. Avoid non-compliance with environmental laws and approvals

Despite the difficulties faced by many industries as a result of Covid-19, this does not entitle a permit or licence holder to take a compliance holiday.  Although extensions in relation to the lapsing of exemptions, validity periods of environmental authorisations and the reporting of Greenhouse Gas emissions have been allowed, no relaxations have been permitted yet when it comes to general compliance with environmental laws or permits. This position is supported by the directions published by the Minister of Environment, Forestry and Fisheries in relation to the biodiversity sector, which classified compliance and enforcement services by Environmental Management Inspectors and other inspection personnel as 'essential services'.

Careful consideration must, therefore, be given to the measures that businesses have taken so far and intend to take as the lockdown eases, to ensure that environmental obligations are not breached.  Failure to do so will expose your business to the risk of administrative and or criminal enforcement action, as well as the payment of significant fines.  In certain circumstances, non-compliance with environmental obligations could result in the revocation of a licence which could be key to the continued operation of a facility.  To avoid these risks, ensure that an environmental compliance assessment is undertaken to establish whether any of the response measures that have been or are intended to be taken are not in conflict with applicable environmental laws or the conditions of environmental permit and licence conditions.

If non-compliance with environmental permits or laws has taken place, then ensure that appropriate action is taken: (i) document the non-compliance; (ii) ensure that steps have been taken to address the non-compliance and minimise risk to the environment to the extent possible under lockdown.  The steps taken must constitute 'reasonable measures' for purposes of complying with environmental duty of care obligations; (iii) record the reasons for the non-compliance, in particular whether the non-compliance was associated with or caused by the Covid-19 related restrictions imposed under the varying levels of lockdown; and (iv) notify authorities where necessary and also consider voluntary notification in other instances.  Taking pro-active steps and self-reporting demonstrates good faith and may have a positive influence on how the relevant competent authority will respond to environmental non-compliance.

3. Ascertain whether there were or will be changes in the generation of waste

Businesses must consider waste management and disposal obligations in respect of new, excess or increased waste products that may be generated during and after the lockdown.  Directions that were published by the Minister of Health, Dr Zweli Mkhize, on 8 April 2020 (as amended), require, among other things, that all waste from quarantine facilities must be isolated and classified as high-risk medical waste and incinerated at an approved waste site (Health Directions).

On 23 April 2020, Dr Mkhize issued directions requiring that mines must make provision for quarantine facilities for employees showing signs of Covid-19.  These operations would therefore be required to comply with the Health Directions and all other applicable legislation that regulates health care risk waste (HCRW).  Mines must ensure that waste management service providers who are appropriately authorised to manage HCRW have been appointed and that the waste management facility where the HCRW is intended to be incinerated has the necessary waste management licence and air emissions licence in place.  Failure to comply with applicable legislation, such as the National Environmental Management: Waste Act 59 of 2008, with regards to the management of HCRW could result in criminal and/or administrative enforcement action being taken, as well as the imposition of significant fines.

Businesses should ensure they have a plan B in place to ensure that alternative waste service providers and disposal facilities are available should problems be experienced with the collection of waste.  Delays in the recycling sector have already been experienced as a result of the operating capacity of recycling facilities previously being limited to 50%. Pre-empting these kinds of scenarios is necessary to prevent quantities of stored waste potentially resulting in a breach of permit conditions or other legal requirements.

The operators of incinerators should further review their licence conditions to ascertain what is permitted to be burnt on site and possibly apply for an amendment to include HCRW generated by their operation.

4. Assess supply chain readiness and whether possible additional permits may be required

The Health Directions provide that equipment used in a quarantine facility must be sterilised before the equipment may be used again.  This is in addition to the mandatory start-up procedure in a mine's Code of Practice for cleaning and industrial sanitising of surfaces with which employees come into contact. The Minister of Employment and Labour has also issued directions under the Occupational Health and Safety Act, 1993 which are relevant to other sectors and prescribe various measures pertaining to the use of sanitisers and disinfectants, among other things.

Complying with these obligations will require additional products and chemicals to be used, stored and handled on site.  Thought should be given to supply chain readiness to ensure that the required chemicals and sanitisers (which are required to have an alcohol content of at least 70%) do not run out, as well as whether or not additional permits will be required for the storage of additional chemicals on site.

5. Ramping up water, sanitation and hygiene practices

According to the World Health Organisation, good water, sanitation and hygiene services serve as barriers to human-to-human transmission of Covid-19.  Thought must be given to scaling up hygiene controls and effective sanitation in the workplace to better manage the spread of the virus.  Existing permits and licences should be examined to ensure that they cater for expanded water, sanitation and hygiene services at an operation.  The need for additional permits or for the amendment of existing permits should be determined.

 

Managing regulatory compliance is a challenge for any business during this time.  Let us support you in ensuring that your business is able to successfully adapt to Covid-19.  As a first step, please download our 'COVID-19 Survival Checklist' here.

SUMMARY OF ENVIRONMENTAL-RELATED DIRECTIONS
Directions Date Requirement
Directions pertaining to environmental approvals, appeals and associated processes
GG43190 GN 439 - Directions prescribing measures to address, prevent and combat the spread of Covid-19

 

[NOTE:  These Directions were repealed by the latest set of Directions published on 5 June 2020 - see below.]
Applicable from 31 March 2020 until 4 June 2020
  • Applicable to relevant national, local and provincial authorities and appeal authorities, applicants, appellants, environmental assessment practitioners, companies and interested and affected parties or commenting authorities, among others.
  • The following are extended by the number of days of the duration of the lockdown period, including any extensions to such duration, with effect from 27 March 2020 until the termination of the lockdown period.
Extended timeframes & restrictions on receiving and processing certain applications

 

  • Timeframes prescribed in terms of the NEMA Environmental Impact Assessment Regulations, 2014 (EIA Regulations, 2014), or as contained in any environmental authorisation (EA) issued in terms of these regulations, any validity period of an EA or an extension of a validity period, or a period relating to the submission of an environmental audit report if this period lapses or falls within the lockdown period.
  • Timeframes prescribed in terms of the National Environmental Management: Waste Act, 2008 (NEMWA) and the National Environmental Management: Air Quality Act, 2004 (NEMAQA) that relate to licences and EAs.
  • Timeframes prescribed in terms of the National Appeal Regulations, 2014.
  • Authorities will not receive or process the following from 27 March 2020: (i) applications; (ii) appeals; (iii) applications for the transfer of waste management licences; and (iv) applications for the amendment of any order to remediate contaminated land in terms of NEMWA.  Arrangements that are made publicly available by authorities and which differ from those included in these directions must, however, be followed.
  • Exemptions from the application of a provision of NEMWA which expire between 27 March 2020 and the termination of the lockdown period, including any extension, are extended.
  • Authorisations for the export of waste tyres which expire between 27 March 2020 and the termination of the lockdown period are extended.
Emissions Reporting

 

  • An extension from 31 March to 30 April 2020 must be read into Regulation 8 of the National Atmospheric Emissions Reporting Regulations for the duration of the lockdown period.
GG 43412 GN 650 - Directions regarding measures to address, prevent and combat the spread of Covid-19 relating to national environmental management permits and licences 5 June 2020

 

These Directions apply during Alert Level 3.
  • Applicable to all national, local and provincial authorities who are responsible for or involved in the listed processes (i.e. actions undertaken in terms of the NEMA EIA Regulations, 2014; the NEMWA, NEMAQA and Appeals); all proponents, applicants, appellants, environmental assessment practitioners, specialist companies, interested and affected parties, commenting authorities, stack emission testers or other professionals obtaining the services or involved in the listed processes; as well as other parties obtaining the services or involved in the listed processes or holders of authorisations and licences related to the listed matters.
Extended timeframes

 

  • The timeframes contemplated in the above repealed Directions for which services and actions are not undertaken from 5 June 2020, as referred to in any Annexures to these Directions, remain extended by the number of days calculated from 27 March 2020 until further notice.
  • Authorisations for the export of waste tyres which expired between 27 March and 5 June 2020 remain valid: (a) subject to a new application being submitted (as set out in Annexure 1) by 5 August 2020; and (b) until a decision on such new application has been issued.
  • Timeframes or periods extended in terms of the repealed Directions, for any services and actions referred to in the Annexures which were suspended on 27 March 2020 and are now resumed in terms of these Directions, are extended or deemed to be extended by an additional 21 days or such further date as may be determined by the relevant authority.
  • The prescribed timeframes of any services and actions referred to in the Annexures initiated after 5 June 2020 are extended or deemed to be extended by a period of 30 days, on condition that where a service or action can be concluded within a shorter timeframe, it may be concluded within such shorter timeframe and on condition that the relevant authority may determine that a specific action must be performed by a specific date.
Applications and actions under the EIA Regulations, 2014

 

  • Authorities responsible for the processing of applications contemplated in the EIA Regulations, 2014, which are allowed to do so in accordance with the Disaster Management Act Regulations, will be receiving such applications from 5 June 2020 and will receive and process applications and issue decisions in the manner as set out in Annexure 2.  Additional requirements in respect of the provision, supporting or obtaining of services contemplated above apply as indicated in Annexure 3.
Applications and actions under NEMWA and the Waste Tyre Regulations

 

  • Authorities responsible for the processing of applications contemplated in NEMWA, which are allowed to do so in accordance with the DMA Regulations, will be receiving such applications from 5 June 2020 and will receive and process applications and issue decisions to the extent and in the manner as set out in Annexure 4.  Additional requirements in respect of the provision, supporting or obtaining of services contemplated above apply as indicated in Annexure 3.
  • Authorities responsible for the processing of applications for the amendment of orders to remediate contaminated land in terms of section 38 of NEMWA will be receiving such applications from 5 June 2020 and will receive and process applications and issue decisions to the extent and in the manner set out in Annexure 5.
  • Authorities responsible for the processing of applications for the export of waste tyres in terms of the Waste Tyre Regulations will be receiving such applications from 5 June 2020 and will receive and process applications and issue decisions to the extent and in the manner as set out in Annexure 1.

Applications and actions under NEMAQA

 

  • Authorities responsible for the processing of applications contemplated in NEMAQA, which are allowed in accordance with the DMA Regulations, will be receiving such applications from 5 June 2020 and will be receiving and processing applications and issue decisions to the extent and in the manner as set out in Annexure 6.  Additional requirements in respect of the provision, supporting or obtaining of services contemplated above apply as indicated in Annexure 7.
Appeals

 

  • Authorities responsible for the processing of appeals contemplated in the National Appeal Regulations, which are allowed to do so in accordance with the DMA Regulations, will be receiving such appeals from 5 June 2020 and will receive and process appeals and issue decisions to the extent and in the manner as set out in Annexure 8.
Directions pertaining to the management of waste
GG 43217 GN 457 - Directions regarding measures to address, prevent and combat the spread of Covid-19 8 April 2020

 

Applicable for the duration of the declared national state of disaster.
  • All Health Care Risk Waste generated from the use of health equipment material and medical supplies should be treated in compliance with the provisions of the National Environmental Health Norms and Standards published in GG 39561 of 24 December 2015.
Disposal of waste

 

  • All waste from a quarantine facility must be isolated and classified as high-risk medical waste and must be incinerated at the approved waste site.
  • All waste inside the quarantine facility must be isolated prior to being disposed of and handled.
  • All equipment used in the quarantine facility must be sterilised first before it can be used again.
GG 43325 GN539 - Directions regarding measures to address, prevent and combat the spread of Covid-19 in relation to recycling of waste 14 May 2020

 

Applicable for the period of Alert Level 4.
  • Applicable to recycling establishments as well as informal recyclers and waste pickers.  Activities that are regulated are the reducing, re-using, recycling and recovering of waste.
  • Recycling operations limited to 50% capacity.
  • Provision for the issuing of permits to informal recyclers and waste pickers by Municipalities.
  • Prescribed PPE, health and hygiene requirements.
Directions pertaining to biodiversity and forestry
GG43323 GN 537 - Directions regarding measures to address, prevent and combat the spread of Covid-19 relating to the Biodiversity Sector (as amended by GG 43355 GN 596 of 26 May 2020) 14 May 2020

 

Applicable for the period of Alert Level 4.
  • Applicable to Issuing authorities and applicants and holders of permits, registrations and certificates ("permit/permits").
  • Timeframes contained in terms of NEMBA or provincial conservation legislation regarding permit applications or permits issued in terms of those statutes which lapsed or will lapse during Alert Level 4 are extended with effect from 27 March 2020 until further notice.
  • Confirmation that issuing authorities will receive and process applications and issue biodiversity permits (with certain exceptions), although skeleton staff are generally only available.  The manner in which these processes will take place is prescribed.
  • Restrictions are prescribed for certain biodiversity-related activities.
  • Confirmation that essential services in the biodiversity sector include compliance and enforcement services by EMIs, permitting and inspection personnel.
GG 43409 GN 647 - Directions regarding measures to address, prevent and combat the spread of Covid-19 relating to the Biodiversity Sector 5 June 2020

 

These Directions apply during Alert Level 3.
  • Applicable to issuing authorities responsible for the listed processes and all applicants and holders of permits, registrations and certificates relating to the listed matters.
Extended timeframes

 

  • The timeframes of permits, registrations and certificates that have expired during the period of lockdown and Alert Level 4 are hereby extended, or will be deemed to be extended, for a period of 30 working days from 5 June 2020. Holders of these permits, registrations and certificates must apply to the relevant issuing authorities for renewal of such permits, registrations and certificates within 10 working days of 5 June 2020.
  • The timeframes of permits, registrations and certificates that have expired during Alert Level 3, or which will expire during Alert Level 3, are hereby extended, or will be deemed to be extended, for a period of 30 working days after the end of Alert Level 3. Holders of these permits, registrations and certificates must apply to the relevant issuing authorities for renewal of such permits, registrations and certificates within 10 working days after the end of Alert Level 3.
Applications for and issuing of permits, registrations and certificates

 

  • Any activity carried out during Alert Level 3 involving biodiversity resources, which requires a permit, registration or certificate in terms of NEMBA or any applicable provincial conservation legislation, must be carried out in terms of such a permit, registration or certificate.
  • Persons must submit applications for permits, registrations and certificates in terms of NEMBA or any applicable provincial conservation legislation during Alert Level 3 in the manner as set out in Annexure 1. Issuing authorities will receive and process applications, and issue permits, registrations and certificates during Alert Level 3, as set out in Annexure 1, unless publicly stated otherwise.
Activities

 

  • All activities that were permitted with restrictions as contained in the Alert Level 4 Directions related to the Biodiversity Sector (GN 537 in GG 43323 of 14 May 2020, as amended) are regarded as permitted activities with no restrictions under these Directions, unless otherwise indicated in these Directions.
  • Additional activities relating to live and dead specimens are expressly permitted.
  • Persons may apply for new registrations, or for the inclusion of new species within existing permits and registrations.
GG 43411 GN 649 - Directions for Alert Level 3 regarding measures to address, prevent and combat the spread of Covid-19 relating to the Forestry Sector 5 June 2020

 

These Directions apply during Alert Level 3.
  • Applicable to issuing authorities responsible for the processes listed in Annexure 1 and all applicants and holders of licences related to the matters dealt with in Annexure 1.  Annexure 1 addresses the services to be provided by issuing authorities in terms of the National Forests Act, 1984.
  • Issuing authorities will receive and process applications in the manner indicated in Annexure 1 to these Directions.