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PROPOSED AMENDMENTS TO THE NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL [B 62B-2003] |
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Revision 1 of 10 August 2004. |
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Ref. |
Affected Section |
Proposed Amendment |
Discussion |
Justification |
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1. |
Long Title |
To reform the law regulating air quality in order to [protect and enhance the quality of air in the Republic, taking into account the need for sustainable development;] protect the environment by providing reasonable measures for the prevention of pollution and ecological degradation and for securing ecologically sustainable development while promoting justifiable economic and social development; to provide for national norms and standards regulating air quality monitoring, management and control by all spheres of government; for specific air quality measures; and for matters incidental thereto. |
During the portfolio committee hearings much concern was voiced about the perceived lack of a direct linkage between the Bill and s.24 of the Constitution. Despite the departmental response that this was the intention of the Bill and that the linkage was implied as well as being inherent to all new environmental legislation, this did not appear to give the required comfort. As such, in order to make the linkage explicit, relevant components of the environmental right contained in the Constitution have been reiterated in the Bill’s long title and objectives (s.2). |
This amendment is aimed at ensuring a clear and direct link between the Bill and s.24 of the Constitution to address concerns that the Bill does not speak directly to the Constitutional environmental right. |
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2. |
Preamble |
PREAMBLE WHEREAS the quality of ambient air in many areas of the Republic is not conducive to a healthy environment for the people living in those areas let alone promoting their social and economic advancement; And whereas the burden of health impacts associated with polluted ambient air falls most heavily on the poor; And whereas air pollution carries a high social, economic and environmental cost that is seldom borne by the polluter; And whereas atmospheric emissions of ozone depleting substances, greenhouse gases and other substances have deleterious effects on the environment both locally and globally; And whereas everyone has the constitutional right to an environment that is not harmful to their health or well-being; And whereas everyone has the constitutional right to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that— (b) promote conservation; and (c) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development; And whereas minimisation of pollution through vigorous control, cleaner technologies and cleaner production practices is key to ensuring that air quality is improved; And whereas additional legislation is necessary to strengthen the Government’s strategies for the protection of the environment and, more specifically, the enhancement of the quality of ambient air, in order to secure an environment that is not harmful to the health or well-being of people; |
It was clear from the public hearings that the intentions of the Bill were not fully appreciated or understood. |
The proposed preamble makes the justification for, and the intent of, the Bill clear. |
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3. |
1.(1) |
‘‘atmospheric emission licence’’ means [a] an atmospheric emission licence contemplated in Chapter 5 [and includes a provisional atmospheric emission licence];…‘‘provisional atmospheric emission licence’’ means a provisional atmospheric emission licence contemplated in Chapter 5; |
As "atmospheric emission licence" and "provisional atmospheric emission licence" denote different instruments it is better to define them separately. |
Clarity |
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4. |
2. |
The object of this Act is — [(a) to protect and enhance the quality of air in the Republic; and (b) to reduce the risks to human health and the environment while taking into account the need for sustainable development] (a) to protect the environment by providing reasonable measures for— (i) the protection and enhancement of the quality of air in the Republic; (ii) the prevention of air pollution and ecological degradation; and (iii) securing ecologically sustainable development while promoting justifiable economic and social development; and (b) generally to give effect to section 24 (b) of the Constitution in order to enhance the quality of ambient air for the sake of securing an environment that is not harmful to the health and well-being of people. |
During the portfolio committee hearings much concern was voiced about the perceived lack of a direct linkage between the Bill and s.24 of the Constitution. Despite the departmental response that this was the intention of the Bill and that the linkage was implied as well as being inherent to all new environmental legislation, this did not appear to give the required comfort. As such, in order to make the linkage explicit, relevant components of the environmental right contained in the Constitution have been reiterated in the Bill’s long title and objectives. |
Section 24 contains two distinguishable rights. The first one in paragraph (a) recognises that everyone has the right to an environment that is not harmful to their health and well-being. No legislation is required for the enforcement of this right and any infringement is justiciable without the assistance of legislation giving specific content to this right. The second right in paragraph (b) is quite different in that it requires the State to protect the environment through reasonable legislative and other measures to prevent pollution etc. In other words, unlike the first right, the second one places a positive duty on the State to act. However, it stops short of placing a duty on the State to ensure an environment that is not harmful to the health and well-being of people; in other words to guarantee that the first right will not be not violated. The aim of this Bill is to give effect to the State’s constitutional duty in terms of the second right and to provide reasonable measures for the protection of the environment in relation to air quality. Implementation of these reasonable measures will of course result in cleaner air and promote fulfilment of the first right, but this Bill, on its own, cannot ever ensure that these measures will be so effective that a person’s right to an environment that is not harmful to his or her health and well-being will never be infringed. |
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5. |
7.(1) |
The Minister must, [as soon as reasonably practicable] within two years of the date on which this section took effect, by notice in the Gazette, establish a national framework for achieving the object of this Act… |
Numerous concerns were raised from various quarters around the absence of specific time frames in the Bill. Of these, time frames in relation to the publication of the National Framework appeared to be of concern. |
Notwithstanding the difficulty associated with setting fixed times for the publication of a document that requires a participatory process in its development (i.e. a duration that cannot be accurately predicted or strictly controlled as the level of possible public debate cannot be predicted), the department has proposed a fixed timeframe that it believes can be practically met. |
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6. |
9.(1)(a) |
The Minister, by notice in the Gazette— (a) must identify substances or mixtures of substances in ambient air which, through ambient concentrations, bioaccumulation, deposition or in any other way, present [or are likely to present] a threat to health, well-being or the environment or which the Minister reasonably believes present such a threat;… |
Various commentators raised concerns that certain terms used in the Bill create an inordinate burden on the state to ‘prove’ possible health and environmental impacts. They further pointed out that the phrase "is likely to..." may be contrary to the precautionary principle contained in NEMA. |
Legal precedent appears to indicate that the word 'likely' implies 'probable' rather than 'possible' as is the intent of the precautionary principle. As such, the phrase "which the Minister reasonably believes present such a threat" is believed to address this problem. |
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7. |
9.(1)(b) |
The Minister, by notice in the Gazette— … (b) must, in respect of each of those substances or mixtures of substances, establish national standards for [—(i)] ambient air quality, including the permissible amount or concentration of each such substance or mixture of substances in ambient air; [or (ii) emissions from point, non-point or mobile sources] and (c) may, in respect of each of those substances or mixtures of substances, establish national standards for emissions from point, non-point or mobile sources. |
There was much debate both within the public hearings and the press on the issue of ambient versus emission standards. In this regard, the perceived provision for ambient or emission standards was a cause for concern. Although the intention is that ambient standards must be set for prioritised pollutants and that emission standards may also be set for these pollutants, various commentators felt that the way this was expressed in the Bill amounted to a choice between ambient or emission standards. |
Despite legal opinion that the department’s intention was correctly expressed in the Bill, this section has been reworked to ensure complete clarity. |
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9. |
10.(1)(a) |
The MEC may, by notice in the Gazette— (a) identify substances or mixtures of substances in ambient air which, through ambient concentrations, bioaccumulation, deposition or in any other way, present [or are likely to present] a threat to health, well-being or the environment in the province or which the MEC reasonably believes present such a threat… |
Various commentators raised concerns that certain terms used in the Bill create an inordinate burden on the state to ‘prove’ possible health and environmental impacts. They further pointed out that the phrase "is likely to..." may be contrary to the precautionary principle contained in NEMA. |
Legal precedent appears to indicate that the word 'likely' implies 'probable' rather than 'possible' as is the intent of the precautionary principle. As such, the phrase "which the MEC reasonably believes present such a threat" is believed to address this problem. |
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10. |
11.(1)(a) |
A municipality may in terms of a by-law— (a) identify substances or mixtures of substances in ambient air which, through ambient concentrations, bioaccumulation, deposition or in any other way, present [or are likely to present] a threat to health, well-being or the environment in the municipality or which the municipality reasonably believes present such a threat… |
Various commentators raised concerns that certain terms used in the Bill create an inordinate burden on the state to ‘prove’ possible health and environmental impacts. They further pointed out that the phrase "is likely to..." may be contrary to the precautionary principle contained in NEMA. |
Legal precedent appears to indicate that the word 'likely' implies 'probable' rather than 'possible' as is the intent of the precautionary principle. As such, the phrase "which the municipality reasonably believes present such a threat" is believed to address this problem. |
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10(a) |
11. |
(3) A notice issued under this section may— (a)provide for the phasing in of its provisions; and (b) be amended. |
Recognised omission. |
Omission. |
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11. |
12. |
For the purpose of this Chapter, the Minister [may] must prescribe the manner in which— (a) ambient air quality measurements must be carried out; (b) measurements of emissions from point, non-point or mobile sources must be carried out; and (c) the form in which such measurements must be reported and the organs of state to whom such measurements must be reported. |
Various concerns were raised about certain discretionary provisions where mandatory action was seen to be more appropriate. |
The department again reviewed all the discretionary provisions against the following tests: (i) that in-action in respect of discretionary provisions should not undermine the efficient, effective and immediate implementation of the Bill; and (ii) that mandatory action should not create an inordinate administrative burden in cases where the action was not fundamental to the efficient, effective and immediate implementation of the Bill. Using these tests, the department has proposed the amendment of various discretionary provisions to mandatory provisions. These include details in respect of the measurement and reporting of ambient air and emissions |
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12. |
18(1)(a) |
The Minister or MEC may, by notice in the Gazette, declare an area as a priority area if the Minister or MEC reasonably believes that— (a) ambient air quality standards are being, or may [are likely to] be, exceeded in the area, or any other situation exists which is causing, or may [is likely to] cause, a significant negative impact on air quality in the area… |
Various commentators raised concerns that certain terms used in the Bill create an inordinate burden on the state to ‘prove’ possible health and environmental impacts. They further pointed out that the phrase "is likely to..." may be contrary to the precautionary principle contained in NEMA. |
Legal precedent appears to indicate that the word 'likely' implies 'probable' rather than 'possible' as is the intent of the precautionary principle. As such, the phrase "reasonably believes" is believed to address this problem whilst at the same time ensuring that the open-ended word "may" will not be open to whimsy. |
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13. |
18.(5) |
The Minister or MEC may, by notice in the Gazette, withdraw the declaration of an area as a priority area [may be withdrawn] if the area is in compliance with ambient air quality standards… |
Concerns raised in respect of ‘who’ could withdraw a declaration. |
Required clarification. |
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14. |
18.(5) |
… if the area is in compliance with ambient air quality standards for a period of at least [one year] two years.. |
Concern that the stipulated period of one year is not sufficient to measure the sustainability of compliance. |
This amendment allows for compliance for at least 2 winter seasons when pollution problems are often at their worst. |
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15. |
19.(6) |
A priority area air quality management plan must— (a) [must] be aimed at co-ordinating air quality management in the area; (b) [must] address issues related to air quality in the area; and (c) (c) [may, for the purposes of applying the priority air quality management plan,] provide for the [establishment of] implementation of the plan by a committee representing relevant role players. |
Concern that stakeholders may be excluded from the implementation of priority air quality management plans. |
There are unlikely to be any instances when the implementation of a priority air quality management plan will not require the involvement of non-governmental stakeholders. |
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16. |
21.(1) |
The Minister [or] must, and the MEC may, by notice in the Gazette— (a) publish a list of activities which result in atmospheric emissions… |
Various concerns were raised about certain discretionary provisions where mandatory action was seen to be more appropriate. |
The department again reviewed all the discretionary provisions against the following tests: (i) that in-action in respect of discretionary provisions should not undermine the efficient, effective and immediate implementation of the Bill; and (ii) that mandatory action should not create an inordinate administrative burden in cases where the action was not fundamental to the efficient, effective and immediate implementation of the Bill. As this is the primary ‘command and control’ element of the Bill, the listing of activities should be mandatory. |
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17. |
21.(1)(a) |
The Minister must, or MEC may, by notice in the Gazette— (a) publish a list of activities which result in atmospheric emissions and which the Minister or MEC reasonably believes have or may [are likely to] have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage; [or] and… |
Various commentators raised concerns that certain terms used in the Bill create an inordinate burden on the state to ‘prove’ possible health and environmental impacts. They further pointed out that the phrase "is likely to..." may be contrary to the precautionary principle contained in NEMA. |
Legal precedent appears to indicate that the word 'likely' implies 'probable' rather than 'possible' as is the intent of the precautionary principle. As such, the phrase "reasonably believes" is believed to address this problem whilst at the same time ensuring that the open-ended word "may" will not be open to whimsy. |
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17(a) |
21.(1)(b) |
when necessary, amend the list by—(i) adding to the list activities in addition to those contemplated in [subsection (1)] paragraph (a); |
Recognised omission and editorial problem |
Omission and editorial correction. |
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18. |
21.(3)(a) |
A notice referred to in subsection (1)— (a) [may] must establish minimum emission standards in respect of a substance or mixture of substances resulting from a listed activity and identified in the notice… |
Various concerns were raised about certain discretionary provisions where mandatory action was seen to be more appropriate. The discretion in respect of emission standards for listed activities was identified as an area of great concern. |
The department again reviewed all the discretionary provisions against the following tests: (i) that in-action in respect of discretionary provisions should not undermine the efficient, effective and immediate implementation of the Bill; and (ii) that mandatory action should not create an inordinate administrative burden in cases where the action was not fundamental to the efficient, effective and immediate implementation of the Bill. Mandatory emission standards will provide a ‘level playing field’ for all listed activities. |
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19. |
21.(3)(a)(i) |
the permissible amount, volume, emission rate or concentration of that substance or mixture of substances that may be emitted… |
Concern that the text did not cover the full range of technical emission control components. |
This provides for regulatory flexibility and technical accuracy. |
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20. |
22. |
No person may without a provisional atmospheric emission licence or an atmospheric emission licence [issued in terms of Chapter 5] conduct an activity… |
Numerous concerns were raised about perceived impractical, confusing and/or conflicting transitional arrangements. As such, s.58 has been carefully reviewed and a far simpler transition process is proposed. This simplification requires the deletion of the chapter reference and the inclusion of a provisional licence. |
Coherence. |
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21. |
22. |
No person may without a provisional atmospheric emission licence or an atmospheric emission licence [issued in terms of Chapter 5] conduct an activity— (a) listed on the national list [or commence with the construction of infrastructure for the conducting of such a listed activity] anywhere in the Republic; or (b) listed on the list applicable in a province [or commence with the construction of infrastructure for the conducting of such a listed activity] anywhere in that province. |
Concerns were raised that as the EIA process already effectively holds up construction, a further delay is not seen as being reasonable. |
Concerns around further delays are seen to be justified. Furthermore, ‘proof of performance’ tests can now be allowed for. |
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22. |
23.(1) |
The Minister or MEC may, by notice in the Gazette, declare any appliance or activity, or any appliance or activity falling within a specified category, as a controlled emitter if such appliance or activity, or appliances or activities falling within such category, result in atmospheric emissions which through ambient concentrations, bioaccumulation, deposition or in any other way, present [or are likely to present] a threat to health or the environment or which the Minister or MEC reasonably believes present such a threat. |
Various commentators raised concerns that certain terms used in the Bill create an inordinate burden on the state to ‘prove’ possible health and environmental impacts. They further pointed out that the phrase "is likely to..." may be contrary to the precautionary principle contained in NEMA. |
Legal precedent appears to indicate that the word 'likely' implies 'probable' rather than 'possible' as is the intent of the precautionary principle. As such, the phrase "reasonably believes" is believed to address this problem. |
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23. |
23.(2) |
Before publishing a notice in terms of subsection (1) or any amendment to the notice, the Minister or MEC must— …(c) take into account the Republic’s obligations in terms of any applicable international agreement; and [(c)] (d) consider— (i) any sound scientific information; and (ii) any risk assessments. [; and (iii) the Republic’s obligations in terms of any applicable international agreements.] |
A concern was raised that the Minister need only ‘consider’ the Republic’s obligations in terms of any applicable international agreement and not specifically take these obligations into account. |
The Minister should take the Republic’s obligations in terms of any applicable international agreement into account. |
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24. |
24(1) |
A notice contemplated in section 23(1) must establish emission standards, which must include standards setting the permissible amount, volume, emission rate or concentration of any specified substance or mixture of substances that may be emitted from the controlled emitter. |
Concern that the text did not cover the full range of technical emission control components. |
This provides for regulatory flexibility and technical accuracy. |
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24(a) |
27. |
An air quality officer may require any person to submit to the air quality officer an atmospheric impact report in a prescribed form if— (a) the air quality officer reasonably suspects that the person has on one or more occasions contravened or failed to comply with this Act or any conditions of a licence and that such contravention or failure has had, or may [is likely to] have, a detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage, or has contributed to [or is likely to contribute to] the degradation of ambient air quality; or (b) a review of a provisional atmospheric emission licence or an atmospheric emission licence is undertaken in terms of section 42. |
Various commentators raised concerns that certain terms used in the Bill create an inordinate burden on the state to ‘prove’ possible health and environmental impacts. They further pointed out that the phrase "is likely to..." may be contrary to the precautionary principle contained in NEMA. |
Legal precedent appears to indicate that the word 'likely' implies 'probable' rather than 'possible' as is the intent of the precautionary principle. As such, the existing phrase "reasonably suspects" is believed to address this problem whilst at the same time ensuring that the open-ended word "may" will not be open to whimsy. |
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25. |
31. |
(1) The Minister [or MEC] may prescribe [measures] essential national standards—(a) for the control of noise, either in general or by specified machinery or activities or in specified places or areas; or (b) for determining— (i) a definition of noise; and (ii) the maximum levels of noise. (2) When controlling noise the provincial and local spheres of government are bound by any prescribed national standards. |
The Chief State Law Advisor raised concerns around whether the Minister could prescribe "measures" in respect of schedule 5B functions. |
This amendment is an attempt to address the Chief State Law Advisor’s concerns around the 5B allocation of noise. |
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26. |
36. |
When considering an application for an atmospheric emission licence, the licensing authority must take into account all relevant matters, including— (a) any applicable minimum standards set for ambient air and point source emissions that have been determined in terms of this Act; |
Concerns were raised that local authorities do not have direct accountability for ensuring that standards are met. |
Amendment to ensure the accountability of the licensing authority. |
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27. |
36.(b) |
[(b)] (c) [any practical measures] the best practicable environmental options available that could be taken—(i) to prevent, control, abate or mitigate that pollution… |
Various concerns were raised around what was perceived to be vague and weak wording. |
The perceived vague and weak wording has been replaced with a direct reference to the NEMA principle. |
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28. |
36.(b)(ii) |
… (ii) to protect the environment, including health, social conditions, economic conditions, cultural heritage and ambient air quality, from harm as a result of that pollution;… |
Concern around the omission of health considerations. |
Recognised omission. |
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30. |
37.(3) |
(3) If an authorisation notice is issued in terms of section 24 of the National Environmental Management Act or section 22 of the Environment Conservation Act in respect of an application, the licensing authority must decide the application within 60 days of the date on which the notice has been issued. [(3)] (4) After a licensing authority has reached a decision in respect of a licence application, it must [promptly] within 30 days |
Numerous concerns were raised from various quarters around the absence of specific time frames in the Bill. Of these, time frames in relation to licensing turn-around times appeared to be of concern. There is a difficulty in predicting the possible duration of the licensing process as this will be different for each license and will be largely dependent on the EIA process. In this regard, the duration of the EIA process is dependent on the size, scope, complexity and type of possible environmental impacts of individual developments. |
As the EIA process is seen to be the greatest variable in the licensing process, the department has proposed a fixed licensing turn-around time that is related to the issue date of a positive EIA RoD. |
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31. |
38.(1) |
If an application for an atmospheric emission licence has been granted in terms of section 37(1)(a), the licensing authority must first issue a provisional atmospheric emission licence to enable the [installation and] commissioning of the listed activity. |
Concerns were raised that as the EIA process already effectively holds up construction, a further delay is not seen as being reasonable. |
Concerns around further delays are seen to be justified. Furthermore, ‘proof of performance’ tests can now be allowed for. |
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32. |
40.(1)(g) |
the maximum allowed amount, volume, emission rate or concentration of pollutants that may be discharged into the atmosphere |
Concern that the text did not cover the full range of technical emission control components. |
This provides for regulatory flexibility and technical accuracy. A typographical error has also been corrected – "in" to "into". |
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33. |
40. |
(2) [An atmospheric emission] A licence may… |
Needless specification. |
Editorial. |
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33(a) |
40.(2)(b) |
require the holder of the licence to comply with all lawful requirements of an environmental [officer] management inspector carrying out his or her duties in terms of the National Environmental Management Act, including a requirement that the holder of the licence must, on request, submit to the [officer] inspector a certified statement indicating… |
Required alignment with NEMA amendment. |
Allignment. |
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34. |
41. |
(1) If ownership of an activity for which a provisional atmospheric emission licence or an atmospheric emission licence was issued is transferred, the [atmospheric emission] licence may, with the permission of a licensing authority, be transferred by the holder of the licence to the new owner of the activity. (2) (a) A person [who wishes to apply] applying for permission for the transfer of [an atmospheric emission] a licence must lodge the application with the licensing authority of the area in which the listed activity is carried out. (b) The application must be in the form required by the licensing authority. (3) An application for [an atmospheric emission] the transfer of a licence must be accompanied by … |
Required editorial changes and correction of a recognised omission. |
Consistency. |
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35. |
41. |
(4) (a) An applicant must take appropriate steps to bring the application for the transfer of an atmospheric emission licence to the attention of interested persons and the public. (b) Such steps must include the publication of a notice in at least two newspapers circulating in the area in which the listed activity applied for is carried out— (i) describing the reasons for the transfer of an atmospheric emission licence; (ii) giving particulars of the listed activity, including the place where it is carried out; (iii) stating a reasonable period within which written representations on or objections to the application may be submitted, and the address or place where representations or objections must be submitted; and (iv) containing such other particulars as the licensing authority may require. |
Concerns that the public was not informed of intentions to renew or transfer licenses and, by extension, the exclusion of public comment in this regard. |
This amendment is aimed at addressing concerns that the public cannot participate in this important administrative action. |
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36. |
42.(2) |
The licensing authority must inform the licence holder and the relevant provincial air quality officer, in writing, of any proposed review and the reason for such review. |
Concerns that the licensing authority could demand whimsical reviews. |
This is seen as a reasonable request from industry. |
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39. |
45.(2)(a) |
An emission control officer must have requisite air quality management competence in respect of the listed activity in question, and must— (a) work towards the development and introduction of [environmentally compatible processes] cleaner production technologies and practices; [and] … |
Concern about the meaning of "environmentally compatible processes". |
This amendment replaces a vague concept with one that is universally recognized and understood. |
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40. |
45.(2) |
(c) promptly report any non-compliance with any licence conditions or requirements to the licensing authority through the most effective means reasonably available. |
Suggestion that ‘whistle-blower’ allowances be made. |
Acceptable suggestion. |
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41. |
46.(c) |
that person [is or was] has a director or senior manager who is or was a director or manager of a company or firm to whom paragraph (a) or (b) applies… |
Concerns that this provision relates to a person whereas licenses are issued to companies (i.e. juristic persons). |
Amendment addresses issue. |
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43. |
50.(c) |
emissions, including the prohibition of specific emissions, from point, non-point and mobile sources of emissions, including motor vehicles |
Recognised omission. |
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43(a) |
50.(d) |
[(d) the regulation of noise;] |
The Chief State Law Advisor raised concerns around whether the Minister could prescribe "measures" in respect of schedule 5B functions. |
This amendment is an attempt to address the Chief State Law Advisor’s concerns around the 5B allocation of noise. |
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44. |
50.(e) |
open fires and [or] incinerators |
Recognised correction. |
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45. |
52.(1)(d) |
incorporate by reference any code of practice or any national [and] or international standard relating to air quality. |
Recognised omission. |
Omission. |
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46. |
56. |
(b) No exemption from a provision of section 22 or 25 may be granted in terms of paragraph (a). |
The entire exemption provision is regarded as problematic as there is a concern that, among others, license applicants will attempt to use this provision as a licensing short-cut. This will effectively undermine air quality governance and create an unacceptable administrative burden on the Minister. |
The concern that the exemption provisions will be abused is shared by the department and, as such, has been carefully considered to ensure that exemptions enhance governance effectiveness and not the contrary. |
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46(a) |
57.(1) |
The [Atmospheric Pollution Prevention Act] legislation mentioned in the Table in Schedule 1 is hereby repealed or amended to the extent set out in the third column of the Table, subject to subsections (2) and (3) of this section and section 58. |
Alignment with NEMA amendment. |
Alignment. |
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47. |
58. |
Numerous concerns were raised about perceived impractical, confusing and/or conflicting transitional arrangements. As such, s.58 has been carefully reviewed and a far simpler transition process is proposed. |
The entire s.58 has been removed and replaced by a simplified transitional process. |
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47(a) |
59. |
Pending the [publication of listed] listing of activities [as contemplated in] by the Minister in terms of section 21, the processes identified in the Second Schedule of the Atmospheric Pollution Prevention Act [are] must for the purposes of this Act be regarded [to be listed] as activities listed by the Minister in terms of that section. |
Required editorial changes. |
Editorial. |
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48. |
60. |
Until ambient air quality standards have been established in terms of section 9, 10 or 11, the ambient air quality [guidelines] standards contained in Schedule [1] 2 apply. |
Concerns around whether the interim standards are standards or guidelines. |
Necessary clarification. |
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48(a) |
61. |
(1) This Act is called the National Environmental Management: Air Quality Act, [2003] 2004, and takes effect on a date determined by the Minister by notice in the Gazette.(2) Different dates may be determined in terms of subsection (1) for different provisions of the Act. |
As the Minister will be determining commencement dates and not the President as was the case with the Biodiversity Act, section 13 (3) of the Interpretation Act will not be available for the staggered implementation of the Act should this be required. For this reason a new subsection (2) has been added to section 61 to provide for the determination of different commencement dates for different provisions of the Act. Alternatively the reference to the Minister in the present section 61 should be replaced by "President". |
Provision for staggered commencement. |
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49. |
Schedule 1. |
[various technical corrections] |
Concerns around various technical inaccuracies |
Recognised corrections. |