EIA Process, Roles and Responsibilities

2.1 INTRODUCTION

The EIA process is managed by the Director of Environmental Affairs, Environmental Affairs Department. EIA requirements apply to both public and private-sector development projects, which are, prescribed under Section 24 of the Environmental Management Act (EMA) and listed in Appendix B of these guidelines.

As provided for in Section 26 of the EMA, a prescribed project cannot receive the required authorization to proceed from the relevant licensing authorities unless and until the Director has issued a certificate stating that an EIA is not required or, on the basis of an EIA report he/she has approved the project. Under the EMA, the Director is empowered to require changes to a project to reduce its environmental impact and to reject a project if, in his/her view, it will cause significant and irreparable injury to the environment. Decisions of the Director may be appealed to the Environmental Appeals Tribunal (EAT), established under Section 70 of the EMA.

All formal EIA submissions are made to the Director with appropriate scrutiny fee in accordance with section 29. The preparation of EIA submissions is the responsibility of the developer. There are two types of formal submissions which represent sequential stages in the EIA process. They are a Project Brief, and an EIA report. A Project Brief is an information document that focuses on critical issues and is used by the Director to determine whether an EIA is required or not.

The EAD provides procedural and technical advice to developers, as required, on how best to comply with EIA requirements. It maintains a directory of local, regional and international consultants capable of carrying out EIA studies. The EAD also maintains a register of all projects currently being appraised under the EIA requirements of the EMA.

While the EAD has statutory responsibility for ensuring compliance with EIA requirements, it relies substantially upon the expertise and advice of the inter-agency Technical Committee on the Environment (TCE) established under Section 16 of the EMA. The TCE has a rotating chairperson and the EAD provides secretarial support to it. Through the TCE, member agencies are informed about projects being appraised under the EIA requirements; participate in reviews of Project Briefs, EIA ToRs and EIA reports; develop project approval terms and conditions; develop and monitor project auditing programmes; and recommend courses of action to the Director. The Director acts on the advice of the TCE but is not bound by it. 
 

2.2 THE EIA PROCESS

The EIA process involves several stages or procedures. As depicted in Figure 2.1, it begins with a determination by a licensing authority as to whether a proposed project is prescribed under the EMA. If not, no further action concerning EIA requirements need be undertaken. If it is, then a Project Brief must be submitted to the Director. Following are stages of the EIA process:

Screening; a process of determining what projects should be subject to EIA requirements

Scoping; establishes the principle issues to be addressed in an EIA. This is performed by a project preparation team comprising of the developer and a multi-disciplinary team of experts. The team should ensure that there is public participation in the EIA process.

EIA study: Five major stages and the report
 

1.  Identification	what will happen as a result of the project?
2.  Prediction	what will be the extent of the change brought about by the project?
3.  Evaluation and Interpretation	do the changes matter?
4.  Mitigation	what can be done about the changes?
5.  Monitoring and Management	what are the monitoring and management plans?
6.  Report	how can decision makers be informed of what  needs to be done, given the various alternatives?

2.2.1 Project Brief
A Project Brief is a document informing the Director that a project is being considered.
Guidance on preparing Project Briefs is given in Appendix C of these guidelines.

For public-sector projects, the Project Brief corresponds to the Project Submission Document (PSD) used by the National Economic Council (NEC) for internal pre-appraisal. The PSD would be submitted to the Director at the completion of Stage 2 of NEC's project appraisal process.

When the Director receives a Project Brief, he refers it to the TCE for advice. Based on information in the Project Brief and established project screening criteria (Appendix D), the TCE assesses the need for an EIA and recommends a course of action to the Director. The Director then determines whether or not an EIA is required. The following guiding time frames, in maximum number of working days, will be observed  starting with the date the Director receives the document:
 

2.2.1.1   Determining the need for an EIA once a Project Brief               is received by the Director	15 days
2.2.1.2  Review of each draft of EIA terms-of-reference submitted to the Director	10 days
2.2.1.3  Review of first draft of an EIA report	50 days
2.2.1.4  Review of second and subsequent drafts of an EIA report	25 days

If an EIA is not required, the project is exempted from further compliance with the EIA requirements. In such instances, the Director issues a certificate to that effect and advises the developer and relevant licensing authority of the exemption with, if appropriate, recommendations for environmental management of the project. If an EIA is required, the Director informs the developer and/or appropriate government authorities that an EIA must be undertaken and an EIA report prepared.

2.2.2 Environmental Impact Assessment 
An EIA is a comprehensive assessment of the environmental impacts of a project and is based on terms-of-reference (ToR) prepared by the developer and approved by the Director. Guidance on preparing EIA reports is provided in Appendix C of these guidelines. EIA should be undertaken during pre-feasibility or early feasibility studies of a project. For public-sector projects, this will be during Stage 3 or 4 of NEC's project appraisal process. 

Before EIA terms-of-reference are prepared and approved, the issues to be covered in the study, and specified in the ToR are generally identified through scoping discussions between the DEA and the developer. Scoping is vital to ensure that all potentially significant impacts are included in the study, that evidently insignificant concerns are excluded and, thus that resources are conserved and used wisely. The Director may, on the advice of the TCE, require that a more formal scoping exercise be undertaken, perhaps involving consultations with the public, before terms-of-reference are approved.

Guidance on preparing EIA terms-of-reference is given in Appendix E of these guidelines. A model ToR for EIA is given in Appendix F.

Public consultation is mandatory when undertaking an EIA. At a minimum, the proponent must meet with the principal stockholders to inform them about the proposed activity and to solicit their views about it. More problematic activities should involve more extensive consultations. The methods and results of these consultations must be documented in the EIA. Detailed guidance on public consultation is given in Appendix G of these guidelines.

When a draft EIA is received by the Director, he initiates a review and refers the EIA to the TCE. This review is led by EAD staff with the assistance of members of the TCE who have an interest in the project or expertise needed to complete the review. Depending on the complexity and scope of the project, individual outside experts or an independent review panel may be retained to advise the EAD/TCE. Guidance on evaluating the adequacy of an EIA is given in Appendix H of these guidelines.

EAD staff and/or TCE members may also meet with non-governmental stockholders to verify or extend the proponent's public consultations. The EIA is also made available for public comments. If considered necessary by the TCE, the Director may also call for a public hearing (s) on the EIA to solicit direct comments from people who may be affected. Such hearings are provided for under section 26 of the EMA.

When the reviews are complete and consolidated, the Director meets with the developer and /or licensing authority to discuss the draft EIA and, if considered necessary by the TCE, require that corrections and/or additions be made before it is finalized. Subsequent drafts of the EIA are also reviewed by the TCE until a satisfactory report is produced.

The time periods within which reviews of first and subsequent drafts of EIA should be completed are outlined in these Guidelines.

Based on the review and the advice of the TCE, the Director determines:

2.2.2.1 that the project must be redesigned to eliminate or reduce adverse impacts, and/or to enhance environmental benefits, and that the EIA report must be redone and re submitted for the revised project; or

2.2.2.2 that there is reasonable cause to believe that, even if it redesigned or more detailed EIA studies are undertaken, the project will cause significant and irreparable injury to the environment, and that the project is rejected; or 

2.2.2.3 that the project will not result in significant injury to the environment and it is approved.

If the project is approved by the relevant licensing authorities, the Director requests the TCE to develop and implement a government audit programme to ensure the project complies with the results of the EIA process. Such programmes are provided for in Section 27 of the EMA. The compliance with the terms and conditions of the EIA results is discussed under 2.2.4 below.

2.2.3 Ensuring coordination among different institutions in the EIA process.
Coordination is ensured through the secretarial services provided by the Director to the NCE which reports through the chair to the Minister. The TCE will provide technical assistance to the NCE.

2.2.4 Managing Compliance with EIA Results
Compliance with the terms and conditions of project approvals under the EMA is managed through project audits developed by the TCE and approved by the Director.

It must be emphasized that the EAD's primary role in project auditing is to facilitate the development and implementation of audit programmes, and not to over-take the responsibilities of the licensing authorities.

The EAD relies upon the normal regulatory functions of licensing authorities with jurisdiction over different aspects of project implementation to carry out the bulk of the auditing work in accordance with their statutory responsibilities.

In developing an audit programme? it is expected that the TCE will employ practices and procedures to:

2.2.4.1 assign lead audit responsibilities to licensing authorities with primary responsibility for the regulation of projects;
2.2.4.2 organize technical and logistical support for audit programmes from among the TCE members;
2.2.4.3  prescribe schedules of reports from developers and lead agencies to the TCE; 
2.2.4.4  monitor and report on project audits to the Director; and,
2.2.4.5  where required, make recommendations to the Director for corrective action and/or penalties where developers are not complying with the environmental terms and conditions of project approvals.

2.2.5 Follow-up of EIA process
The participation of lead agencies in the follow up to the implementation of the EIA is important and for this reason an environmental management and monitoring plan should form part of the EIA Report to facilitate the monitoring and/or following up of the EIA process. Details of what needs to be done by whom and when are contained in this section of the report.
 

2.3 EIA ROLES AND RESPONSIBILITIES

EIA activities involve the participation of a number of actors with varying responsibilities. These actors and their responsibilities include:

2.3.1 Environmental Affairs Department 
2.3.1.1 facilitating the EIA process 
2.3.1.2 ensuring compliance with EIA provisions in the EMA 
2.3.1.3 managing the production and updating of guidelines on EIA practice and procedures 
2.3.1.4 assisting line agencies in the preparation of sector-specific guidelines on EIA practice and procedures 
2.3.1.5 updating the list of prescribed projects 
2.3.1.6 secretariat to the TCE
2.3.1.7 maintaining a register of projects being appraised under the EIA process 
2.3.1.8 maintaining a central library of EIA reports 
2.3.1.9 maintaining a directory of local, regional and international consultants capable of carrying out EIA studies. Criteria used in selecting the consultants will be outlined at the beginning of the directory. 

2.3.2 Technical Committee on the Environment 
2.3.2.1 evaluating Project Briefs, EIA terms-of-reference and EIA reports
2.3.2.2 developing project approval terms and conditions
2.3.2.3 reviewing and monitoring project auditing programmes 
2.3.2.4 recommending courses of action to the Director. 
2.3.2.5 reporting to NCE

2.3.3 Functions of the TCE
2.3.3.1 Functions are provided in appendix A 

2.3 4 Functions of the NCE
2.3.4.1 Functions are provided in appendix A . 

2.3.5 National Economic Council 
2.3.5.1 determining if public-sector projects are prescribed under the EMA and referring PSDs to the Director of Environmental Affairs 
2.3.5.2 assisting the EAD and TCE in updating the list of prescribed projects (ea. adding or deleting project types, establishing size thresholds for project referral to the Director) 
2.3.5.3 participating on the TCE
2.3.5.4 working with the EAD and TCE to develop and streamline their working relationship on EIA activities 

2.3.6 Sectoral/Line Ministries
2.3.6.1 ensuring that their own projects prescribed under the EMA adhere to the EIA requirements
2.3.6.2 ensuring that private-sector projects over which they have jurisdiction adhere to the EIA requirements
2.3.6.3 participating on the TCE
2.3.6.4 providing information and advice to project developers
2.3.6.5 advising project developers on regulations and monitoring requirements related to licensing their projects
2.3.6.6 incorporating DEA approval terms and conditions in project licences
2.3.6.7 ensuring that project licensing terms and conditions are met, including those specified by the Director of Environmental Affairs

2.3.7 Malawi Investment Promotion Agency/Chamber of Commerce/Local Authorities
2.3.7.1 review project beefs from the private sector
2.3.7.2 make recommendations to the DEA
2.3.7.3 monitoring compliance by investors

2.3.8 Local Training Institutions
2.3.8.1 developing and executing short-term training programmes on EIA
2.3.8.2 institutionalize environmental education

2.3.9 Non Governmental Organizations
2.3.9.1 monitoring compliance with EIAs
2.3.9.2 identifying projects with potential adverse environmental effects
2.3.9.3 participating on the TCE

2.3.10 Project Developers
2.3.10.1 preparing Project Briefs and EIA terms-of-reference and statements and where they are not able to do so, they should seek the services of the DEA.
2.3.10.2 implementing terms and conditions attached to DEA project approvals
2.3.10.3 reporting on compliance with terms and conditions of DEA approval to the DEA/TCE and licensing authorities

2.3.11 Public
2.3.11.1 contributing information and advice to EIA studies
2.3.11.2 commenting on the content of EIA reports
2.3.11.3 advising project developers and the DEA/TCE on practical approaches for avoiding, minimizing or compensating for adverse environmental impacts

2.3.12 Environmental Appeals Tribunal
2.3.12.1 special interest groups
2.3.12.2 sensitize public on benefits of EIA
2.3.12.3 lobby for compliance of EIA
2.3.12.4 provide information to the affected communities 
 

2.4 PUBLIC CONSULTATION AND ACCESS TO INFORMATION

Public consultation is an integral component of the EIA requirements as indicated in sever; places above. The principal elements are:

2.4.1 Developers are required to conduct public consultation during the Project brief and EIAs.

2.4.2 The Director of Environmental Affairs may, on the advice of the TCE, conduct his or her own public consultation to verify or extend the work of a developer.

2.4.3 Formal EIA documents are made available for public review and comment. Documents to which the public has access include Project Briefs, EIA terms-of-reference, draft and final EIA Reports, and decisions of the Director of Environmental Affairs regarding project approval. The Director on the advice of the TCE will develop practices and procedures for making these documents available to the public.

 It is very unusual that an EIA need contain proprietary or market-sensitive information (e.g. technological, financial) which a developer would prefer remain confidential.  Unless public knowledge of such information is crucial to project review, and as provided for under Section 25(5) of the EMA, the Director will comply with requests that such information does not appear in an EIA.

2.4.4  Certificates, approving projects will be published by the developer and displayed for public inspection.