A seemingly minor legislative update is causing major concern in the South African industry, as manufacturers scramble to understand what the new National Environmental Management Laws Amendment Act (NEMLAA) might mean for their businesses.
The change in question seems small at first glance: it’s just one word in a dense, 100-page document published by the South African government. But as Ross Holland of Holland and Associates Environmental Consultants explained, that single word has far-reaching implications.
“Not everyone necessarily has all of the permits that they are technically supposed to have according to the law.”
“The new act amends various parts of various pieces of environmental legislation,” he explained. “When it was promulgated in June 2022, it didn’t have an implementation date. All it said was that the legislation would come into effect at a date to be decided by the Minister. Then in June 2023, another Government Gazette was published that basically said: ‘Surprise! As of the date of publication of this Gazette, the NEMLAA now applies.’ There was little notice or fanfare.”
Since then, the timber industry has been grappling with the implications. “My impression so far is that if you are a fully legal operator of a timber treatment facility, you probably have nothing to fear,” he said. “But of course, there is a variety of practice across the industry, and not everyone necessarily has all of the permits that they are technically supposed to have according to the law.”
What caught Ross’s keen legal eye was a one-word change on line 15 of page 16 of the document.
“It’s a clause in Subsection 24G of the Act,” he said. “It refers to a circumstance where you’ve been found to be unlawful in terms of Section 24F, which deals with environmental authorisation. Under the old law, it said that ‘the Minister responsible for mineral resources or MEC concerned, as the case may be, may (our italics) direct the applicant to immediately cease the activity pending a decision…’.”
“Instead of saying that the Minister may instruct you to stop, it now says the Minister must do so.”
There was always a degree of jeopardy in that old wording. “The risk was that the Minister could request you to stop your operation,” Ross explained. “Historically, that was typically administered to construction activities. If the authorities caught you when you were halfway through building a facility, you’d be served with a Stop Works Directive and you would have to cease work until you’d been through that rectification process, in terms of S24G of the Act. If the outcome of that Application gave you the permit you needed, you’d then be allowed to continue.”
But that’s no longer the case, Ross pointed out. “The subtlety with the NEMLAA is that instead of saying that the Minister may instruct you to stop, it now says the Minister must.”
The risk for the timber treatment industry is that its businesses deal with chemicals that fall under the definition of dangerous goods, according to the regulations. Added to that, the wording of the Dangerous Goods Listed Activities that are most likely to be triggered by timber treatment regulate not only the construction of the facility, but also its related operations.
“The operations aspect is highly significant, as you might have built your plant 10 years ago, for example,” Ross said. “Now, if you are found to be in contravention of the Act, you will be told to cease operations until you’ve been through the rectification process. That’s a massive penalty because it could take 18 months to two years to go through the whole Section 24G process. That would be a death sentence for most businesses.”
As the small but significant change to Section 24G demonstrates, matters of law are seldom simple. The changes brought in by NEMLAA do offer a potential narrow window of opportunity to make representations to the Minister that a stop order would cause serious harm to the environment, and should thus be waived, Ross observed. However it is unclear at this stage how this will be administered, and to what extent prospective job losses would be deemed to constitute “environmental harm”.
Nonetheless, the solution is for timber treatment operators to ensure that their treatment plants and all related operations adhere strictly to the relevant environmental laws and regulations, and to seek professional advice if required.
Ross concluded that to avoid a potentially costly mis-step, timber treaters should also conduct the requisite environmental due diligence investigations before investing in new plants or plant expansions.