How will NEMLA affect your operation?

Following much debate since its introduction to Parliament in 2017, the National Environmental Management Laws Amendment (NEMLA) Act was finally published on the 24th of June, 2022. Although it has been published, NEMLA will only come into effect on a date to be chosen by the President. At this stage, there is no indication of when that date might be.

NEMLA is a 100-page document that contains numerous amendments to the National Environmental Management Act (NEMA), as well as to the specific acts that govern air quality, protected areas, biodiversity, coastal management and waste. Yellow Tree has carefully read NEMLA and has attended two government meetings in which the implications of NEMLA for air quality listed activities have been discussed. In the realm of air quality, the amendments that are most likely to affect industry are discussed in the table below.  A list of other changes that are not covered in this article has been compiled by Yellow Tree and is available on request.

It must be remembered that all administrative actions that are taken by government officials are subject to the Promotion of Administrative Justice Act (PAJA). The application of PAJA to NEMLA has been stressed by the Department of Forestry, Fisheries and the Environment (DFFE), particularly with respect to the closure of facilities and with respect to the suspension and revocation of AELs. PAJA seeks to ensure that administrators follow fair procedures when making decisions by:

  1. Notifying those who may be affected before the decision is made,
  2. Allowing those who may be affected enough time to reply either for or against the decision,
  3. Notifying those that are affected about the decision once it has been made,
  4. Notifying those that are affected by the decision of their rights to review or appeal,
  5. Notifying those that are affected that they can request reasons for the decision.

The new laws regarding the mandatory ceasing of unlawful activities, and the power to revoke and suspend AELs, ensure that compliance with environmental laws is taken seriously. However, these laws could be abused by licensing authorities – especially considering that shutting down an activity could result in severe loss for the company. As such, the DFFE is in the process of drafting strict protocols for licensing authorities regarding how they exercise these new powers, and these protocols will consider the stringent provisions of PAJA.

Aside from NEMLA, it was noted at the 2022 Air Quality Management Governance Lekgotla (4th of October 2022) that a cabinet directive was recently issued to air quality licensing authorities. The directive stated that, in the interest of service delivery and good governance, any local municipality that is not able to process AEL applications in the requisite 60 days must relinquish their licensing powers to the provincial government. This directive was implemented to protect industry.

It is important to remember that AEL licensing fees are regulated and are subject to a specific fee schedule. The fee structure (from G.N. 250 of 2016) is shown below:

No facility should pay more than these fees.

The most crucial learnings from this article are that:

  1. NEMLA obligates authorities to shut down your site if you unlawfully commence an EIA listed activity. Before you make any changes to your site, ensure that you do not require environmental authorisation (EA) to do so.
  2. NEMLA obligates authorities to shut down your site if you operate without an AEL. Ensure that you renew your AEL timeously, and that you do not commence any new air quality listed activities without first obtaining an AEL.
  3. NEMLA gives your licensing authority the power to revoke or suspend your AEL if you do not comply with certain conditions that are contained in the AEL. Ensure that you know what each and every condition in your AEL requires of you. Ensure that you meet the emissions limits in your AEL. Yellow Tree can advise you on the right abatement equipment to meet these limits.
  4. While NEMLA has been gazetted, it is not yet in operation and will only come into operation on a date that is yet to be set by the president.

Our passionate team at Yellow Tree is knowledgeable and is here to support you. Please contact us if your emissions are above the limits and you would like us to help you.