CLEARING THE AIR | Major changes expected to South Africa’s Environmental Legal Regime stemming from NEMLA4-NEMQA #5of8

The National Environmental Management: Air Quality Act 39 of 2004 (NEMAQA) is also due for a few amendments once the National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA4) comes into effect. 

Perhaps most significantly, section 22A of NEMAQA, which sets out the consequences of conducting listed activities unlawfully, will be substituted; and be warned – the new consequences are not to be sniffed at. Going forward, section 22A(1) will require a licensing authority to fine the applicant an amount not exceeding R10 million before considering an application for an atmospheric emission licence (AEL), where the applicant unlawfully commenced with a listed activity. 

Put simply, and by way of analogy: the whole thing’s a bit like trying to win an egg-and-spoon race by starting before the whistle – except instead of just suffering from crippling shame and having the scorn of your peers heaped upon your head when you’re caught out, the government cripples you financially before they let you have another go.

It’s also important to note that as a result of the insertion section 36(2A), where a listed activity falls within the boundaries of more than one metropolitan municipality, more than one district municipality, or both a metropolitan and district municipality, a provincial organ of state must be regarded as the licensing authority.

Section 47A will also be inserted into NEMAQA, and it provides for provisions related to the revocation or suspension of AELs. Under this section, AELs may be revoked or suspended in circumstances where a “licence holder has contravened a provision of this Act or a condition of the licence and such contravention may have or is having, a significant detrimental effect on the environment, including health impacts.”

Lastly, section 53 of NEMAQA will be amended by the deletion of section 53(k). Thereafter, it’ll no longer be stated that the Minister may make regulations related to “appeals against decisions of officials in the performance of their functions in terms of the regulations”. 

That does it for this section. The amendments in the pipeline are set to have what we hope is a significant effect on our air quality, so hold your breath; or don’t, as the case may be.