Consequences of unlawfully conducting a listed activity resulting in atmospheric emission: Offenders Beware

A majority of the sections of the long awaited National Environmental Management Laws Amendment Act 2 of 2022 (“NEMLA”) came into force on 30 June 2023. With the coming into effect of the NEMLA, the new provisions of section 22A of the National Environmental Management Air Quality Act 2004 (“NEMAQA”) also came into force with effect from 30 June 2023.

The new section 22A of the NEMAQA provides for the consequences of unlawfully conducting a listed activity resulting in atmospheric emissions. The section grants power to a licensing authority to fine any applicant who operated, at any time prior to the commencement of the NEMAQA, a scheduled process in terms of the Atmospheric Pollution Prevention Act, without a provisional registration or registration certificate, or who conducted or is conducting, without a provisional atmospheric emission licence or an atmospheric emission licence, an activity listed in terms of section 21 of the Act and which results in atmospheric emission. The amount of the fine is any amount not exceeding R10 million and is to be imposed before an application for an atmospheric emission licence may be considered.

Furthermore, the licensing authority is empowered to, amongst others, direct an applicant to immediately cease an activity pending a decision on the application submitted, to investigate, evaluate and assess the impact of the activity on the environment, including the ambient are and/or to remedy any adverse effect of the activity on the environment, including the ambient air and on human health.

The previous section 22A was inserted by the Air Quality Amendment Act 20 of 2014 and provided that the consequences of unlawfully conducting a listed activity resulting in atmospheric emission were to be dealt with under section 24G of the National Environmental Management Act 107 of 1998 which deals with the commencement of a listed activity without an environmental authorisation.

Section 22A of the NEMAQA is intended to bring offenders in line with the provisions of the Act and to render an activity lawful from the date on which an air emissions licence is granted. However, the rectification process may come at a hefty penalty for offenders.

(Written by Andries Kabeng)