Hogan Lovells Publications
"The National Environmental Management: Air Quality Amendment Act 20 of 2014 (the Amendment Act)
Hogan Lovells Environmental Alert
5 June 2014
The Amendment Act, which was published and came into effect on 19 May 2014, introduces new sections, develops and provides clarity on some of the existing provisions within the National Environmental Management: Air Quality Act 39 of 2004 (the NEM:AQA).
The main developments and amendments introduced by the Amendment Act are as follows:
- A definition for commissioning has been provided as the commencement of a listed activity.
- In terms of section 13 of the NEM:AQA a mandatory task has been placed on the Minister of Environmental Affairs (the Minister) to establish a National Air Quality Advisory Committee.
- The biggest amendment is the insertion of section 22A, which provides for consequences of unlawful conduct of listed activities resulting in atmospheric emission. Section 22A is similar to section 24G under the National Environmental Management Act 107 of 1998 (the NEMA), with a change in the wording and terms used that are applicable to the NEM:AQA. Section 22A provides for a rectification procedure for the commencement of a listed activity without the required authorisation under the NEM:AQA or the repealed Atmospheric Pollution Prevention Act 45 1965. It provides for the same requirements as section 24G of NEMA with respect to the:
- directive that the licensing authority may give;
- the factors that the licensing authority must consider in considering an application in terms of section 22A; and
- the decisions that the licensing authority may take after considering the application in terms of section 22A.
- As with section 24G of the NEMA, section 22A has a provision for an administrative fine to be paid by the applicant under section 22A(4). The provisions relating to or supporting the provision for the payment of an administrative fine, provide for the same process as in section 24G of the NEMA with respect to:
- the considerations that the licensing authority may take into account in determining the fine to be paid;
- the confirmation that the submission of an application in terms of section 22A does not derogate environmental management inspectors or the South African Police Services' (SAPS) authority to investigate the transgression;
- the confirmation that the submission of an application in terms of section 22A does not derogate the National Prosecuting Authority's (NPA) legal authority to institute any criminal prosecution; and
- that the decision on the atmospheric emission licence may be suspended pending the investigation by the SAPS and the outcome of the prosecution by the NPA.
- The maximum amount for an administrative fine as in section 24G of NEMA, under the NEMA: AQA may not exceed R5 million.
- In terms of section 29, persons who are dealing with a substance contributing to air pollution as a priority pollutant and who are required to prepare a Pollution Prevention Plan (PPP), an additional requirement to monitor, evaluate and report on the implementation of the PPP must be done.
- As the metropolitan and district municipalities are listed as the licensing authorities in terms of section 36 of the NEM:AQA, the Amendment Act introduces a new section 36(3A) that provides relief measures to an applicant under the NEM:AQA with respect to delayed response or decision from the metropolitan and district municipalities. This new section allows the applicant, after notifying the licensing authority, to apply to the Minister or the MEC to take the decision. But it does not state a specific time in which the Minister or the MEC must respond, it only states that the Minister or MEC must take the decision within reasonable time.
- Section 36(5) specifies certain activities which, despite the licensing authority being listed as the metropolitan and district municipalities, fall within the exclusive jurisdiction of the Minister, with the Minister being the licensing authority at all times. It further introduces the concept of an integrated environmental authorisation, brought about by the fact that the Minister is the competent authority empowered under section 24C(2) of the NEMA and is the licensing authority empowered under section 43(1) of the National Environmental Management: Waste Act 59 of 2008 (the NEM:WA). Section 36(5) empowers the Minister to issue an integrated environmental authorisation for the activities listed under section 24(2) of the NEMA and section 19(1) of the NEM:WA.
- Section 38 has been amended and places a specific time (immediately after the submission of the application to the licensing authority) as to when the applicant should bring the application to the attention of the relevant organs of state, interested persons and the public.
- Section 40(3A) confirms the developments and amendments being made under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) and the NEMA that where the listed activity relates to a prospecting, mining, exploration or production activity contemplated in the MPRDA in the area for which the right has been applied, the minister responsible for mineral resources has been identified as the competent authority in terms of section 24C of the NEMA.
- Section 41 provides clarity and specifies the time period for the validity of a provisional atmospheric emission licence as one year from the date of the commissioning of the listed activity.
- Non-compliance with section 28 of the NEMA, which regulates the manufacturing, selling or use of controlled and prohibited controlled fuels, has been listed as an offence in terms of section 51 and therefore subject to the penalties under section 52.
In conclusion, the Amendment Act may bring about changes and clarity to operations subject to the NEM:AQA because of the rectification application and process for the commencement of a listed activity without the required licence in terms section 22A; the relief provided to applicants with respect to the delayed responses, in applications, by the licensing authorities in terms of section 36; and the time period placed on the validity of a provisional atmospheric emission licence, which has been a grey area.