Most of the sections of the long-awaited National Environmental Management Laws Amendment Act 2 of 2022 (NEMLA) came into force on 30 June 2023. The NEMLA Bill was first introduced to Parliament in 2017 and has gone through various deliberations and amendments before becoming law. The primary objective of the NEMLA is to amend the various environmental legislation in South Africa to eliminate uncertainties and ambiguities.

With NEMLA coming into effect, the new provisions of section 22A of the National Environmental Management Air Quality Act 2004 (NEMAQA/Act) also came into force on 30 June 2023. The new section 22A of the NEMAQA outlines the consequences of unlawfully conducting a listed activity. A listed activity is an activity which the Minister or MEC of Forestry, Fisheries and Environment believes is detrimental to the environment and is published in the government gazette as one that causes atmospheric emissions.

The new section 22A grants a licensing authority the power to fine any applicant who operated a scheduled process in terms of the Atmospheric Pollution Prevention Act without a provisional registration or registration certificate before the NEMAQA came into effect. The same applies to any applicant who conducted or is conducting an activity listed in terms of section 21 of the NEMAQA and which results in an atmospheric emission, without a provisional atmospheric emission licence or an atmospheric emission licence. The fine can be any amount up to but not exceeding R10 million and will be imposed before an application for an atmospheric emission licence may be considered.

These provisions are in line with the polluter pays principle included in the National Environmental Management Act 107 of 1998. Furthermore, the new Section 22A empowers a licensing authority to instruct an applicant to immediately halt an activity for the purpose of conducting an investigation, evaluating its impact on the environment, including ambient air, and addressing any adverse effects on the environment, ambient air, or human health.

The National Prosecuting Authority is authorised to assist with investigations and to prosecute individuals who have conducted a listed activity without a provisional atmospheric emission licence or an atmospheric emission licence. Further, if it comes to the attention of the licensing authority that an applicant is under criminal investigation, the licensing authority may defer a decision to issue a provisional or full atmospheric emission licence until such time that the investigation is concluded.

The previous section 22A was introduced into the new NEMAQA by the Air Quality Amendment Act 20 of 2014. It stipulates that the consequences of unlawfully conducting a listed activity resulting in atmospheric emissions are to be addressed under section 24G of the National Environmental Management Act 107 of 1998 (NEMA). This Act deals with the initiation of a listed activity without environmental authorisation.

The current section 22A of the NEMAQA is intended to bring offenders in line with the provisions of the legislation and to legalise an activity from the date when an air emissions licence is granted. However, the rectification process may come with a substantial penalty for offenders. Organisations are therefore advised to ensure compliance with section 22 of the NEMAQA before undertaking any listed activity specified in the Act.

Written by Andries Kabeng, legal consultant, Inlexso