NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY AMENDMENT ACT [ACT NO. 20 OF 2014] 1
BACKGROUND The National Environmental Management: Air Quality Amendment Act, 2014 was assented to and published on 19 May 2014 by the President of the Republic of South Africa. The Amendment Act came into operation on 19 May 2014. The Amendment Act amend and insert certain provisions in the National Environmental Management: Air Quality Act, 2004. 2
OBJECTIVES OF AMENDMENT ACT The National Environmental Management: Air Quality Amendment Act, 2014 amends certain provisions under the National Environmental Management: Air Quality Act, 2004, so as to provide for further alignment with the provisions of the National Environmental Management Act, 1998 (Act No. 107 of 1998); to close regulatory gaps within the atmospheric emission licensing system and to delete certain obsolete provisions. 3
DEFINITIONS Section 1: seeks to revise and correct the definitions of the Department and Minister necessitated by name changes in government. The definition for Environment Conservation Act is deleted as due to the amendments, it will no longer be used in the Act. Revise the definition of licensing authority as a result of Minister empowered to issue AELs for certain activities. Inserts the definition of commissioning as a consequence of providing for a validity period of the provisional AELs. 4
NATIONAL AIR QUALITY ADVISORY COMMITTEE Section 2: amends section 13 of the Act to empower the Minister to establish the National Air Quality Advisory Committee. The Committee will advise the Minister on any air quality related as the Minister may determine from time to time. The Minister may prescribe through regulations any other matter relating to the Committee. 5
CONSEQUENCES OF UNLAWFUL CONDUCT OF LISTED ACTIVITIES Section 3: inserts section 22A to the Act to allow the licensing authority to deal with the following three scenarios, namely, to provide for the rectification of those activities related to air quality emissions: - where atmospheric emissions take place without an Environmental Impact Assessment, which must be addressed through section 24G of the National Environmental Management Act, 1998 (NEMA); - where those activities operated without the necessary registration certificate under the Atmospheric Pollution Prevention Act, 1965 which must be addressed through section 22A; and - where those activities operated had an EIA environmental authorisation granted but no atmospheric emission licence was issued, which must be addressed through section 22A. 6
CONSEQUENCES OF UNLAWFUL CONDUCT OF LISTED ACTIVITIES Licensing authority may direct an applicant to - immediately cease the activity pending a decision on the submitted application; - investigate, evaluate and assess the impact of the activity on the environment including ambient air; - remedy the adverse effect of the activity on the environment, including ambient air; - cease, modify or control any act, activity, process or omission causing atmospheric emission; - eliminate any source atmospheric emission; - compile specialist studies. 7
CONSEQUENCES OF UNLAWFUL CONDUCT OF LISTED ACTIVITIES The licensing authority has discretion to issue or refuse an atmospheric emission licence. The amendment provides for the payment of an administrative fine not exceeding R5 Million before the processing of the application. The amendment also makes it clear that criminal prosecution may still be instituted despite the fact that a person has applied for an atmospheric emission licence. The amendment further allows the licensing authority to defer a decision until such time that the criminal investigation has 8 been concluded.
POLLUTION PREVENTION PLANS The current provisions of section 29 do not provide for any monitoring, evaluation and reporting requirements. Section 4: amends section 29 to provide for monitoring, evaluation and reporting requirements on the implementation of the approved pollution prevention plan. 9
LICENSING AUTHORITY Section 5: inserts new subsections in section 36 of the Act to provide for the MEC or Minister to take a decision in the place of the licensing authority, where the licensing authority fails to take a decision on an application for atmospheric emission licence within the time period set out in the Act. The amendments also empower the MEC to request the Minister to take a decision on an application for an atmospheric emission licence, where the MEC does not have the capacity to process the application. The amendments recognises the sections 125(2)(b) (Executive authority of provinces) and 156(1)(b) (powers and functions of municipalities) of the Constitution. 10
LICENSING AUTHORITY Section 5: further amend section 36 to provide for situations where the Minister will be the licensing authority, namely- - where the applicant for atmospheric emission licence is the provincial organ of state, who has been delegated by the municipality the power to issue the atmospheric emission licences; - where the atmospheric emission activity falls within the jurisdiction of two provinces; - Whenever the atmospheric emission activity forms part of a national priority project approved by Cabinet; - Where the atmospheric emission activity is related to EIA listed activity under NEMA or a waste management activity under the National Environmental Management: Waste Act, 2008 and the Minister is the licensing or competent authority; or - Where the atmospheric emission activity is related to a mining activity. 11
LICENSING AUTHORITY The amendments also provide for the issuing of an integrated environmental authorisation for those related activities, where possible. The amendments further provides for the Minister and the relevant licensing authorities to enter into an agreement and agree on certain activities that may be authorised either by the Minister or the relevant licensing authority. 12
APPLICATION FOR ATMOSPHERIC EMISSION LICENCE Sections 6, 7 & 8: amend sections 38, 39 and 40 to provide for further alignment with the environmental impact assessment provisions under the National Environmental Management Act, 1998 by removing references to repealed section 22 to the Environment Conservation Act, 1989. Section 8 further insert a new subsection (3A) to provide that where the atmospheric activity relates to a mining activity, the Minister after consultation with the relevant licensing authority must decide the application within the timeframes set out in the NEMA. Section 9: amends section 41 to provide for a period of validity of one year for provisional atmospheric emission licence from the date of commissioning, and with an option of extension for another year based on good cause shown to the licensing authority. 13
CRITERIA FOR FIT AND PROPER PERSONS Section 10: amends section 49 to clarify the intention that the licensing authority must take into consideration either of the listed criteria when deciding an application for an atmospheric emission licence. Section 11: amends section 51, to ensure that non-compliance with the controlled fuels standards established in terms of section 28 of the Act is a criminal offence. Section 12: amends section 53, to provide the Minister with a legal mandate to develop regulations on the procedure and criteria to be followed in the determination of the administrative fine contemplated in the new section 22A and on climate change matters. 14
TRANSITIONAL PROVISIONS Sections 13, 14 & 15: amend sections 62 (transitional provision regarding listed activities), 63 (transitional provision regarding ambient air quality standards) and Schedule 2 (transitional ambient air quality standards) to repeal certain obsolete transitional arrangements provisions. The national listed activities and emission standards and ambient air quality standards were published and are currently implemented. 15
IMPLICATIONS National Air Quality Advisory Committee - The Committee must be established as soon as possible through a notice in the Gazette. [National Department]. - Develop regulations on the composition of the Committee, appointment procedure and process, tenure, functions, composition, conditions of appointment, and termination of service of members of the Committee. [National Department]. 16
IMPLICATIONS Implementation of atmospheric emission system - Develop regulations on the procedure and criteria to be followed in the determination of administrative fine in terms of section 22A. [National Department]. - Systems for the collection of section 22A administrative fine. [Licensing Authorities] - Systems to process section 22A application. [Licensing Authorities]. 17
IMPLICATIONS Implementation of atmospheric licensing system - Systems to process applications from other licensing authorities. [National and Provincial Departments]. - Systems to process individual applications and integrated environmental authorisation at the National Department. - Systems to process mining applications with regulated timeframes. [National Department]. - Coordination systems between all licensing authorities. 18
THANK YOU 19