ATC131029: Report of the Portfolio Committee on Water and Environmental Affairs on the National Environmental Management: Air Quality Amendment Bill 2013 [B 27- 2013] [National Assembly – section 76], dated 29 October 2013.

Report of the Portfolio Committee on Water and Environmental Affairs on the National Environmental Management: Air Quality Amendment Bill 2013 [B 27- 2013] [National Assembly – section 76], dated 29 October 2013.

The Portfolio Committee on Water and Environmental Affairs (the Portfolio Committee) having deliberated and considered the subject matter of the National Environmental Management: Air Quality Amendment Bill [B 27- 2013] (National Assembly – section 76) (the Amendment Bill), referred to the Portfolio Committee and classified by the Joint Tagging Mechanism (JTM)  as a section 76 Bill, agrees with the classification as a section 76 Bill and reports the Amendment Bill with amendments [B27A – 2013].

The Portfolio Committee further notes that after having considered the subject of the Amendment Bill, decided to support the following amendments:

1.             Clause 2 will amend section 13 of the Act, to empower the Minister to establish the National Air Quality Advisory Committee to advise him or her on any air quality related matter. The clause will also allow the Minister to prescribe by regulation any other matter related to the Advisory Committee.

2.             Clause 3 inserts a new section 22A in the Act, to provide for the consequences of unlawfully conducting a listed air emission activity without the necessary authorisation. This clause will address three scenarios, namely, to provide for those activities related to air quality emissions: where atmospheric emissions take place without an Environmental Impact Assessment (EIA), which must be addressed through section 24G of the National Environmental Management Act, 1998 (NEMA); where those activities operated without the necessary air quality licence under the Atmospheric Pollution Prevention Act, 1965 (APPA) which must be addressed through section 22A; and where those activities operated had an EIA environmental authorisation  granted but no air quality licence was issued, which must be  addressed through section 22A. This clause, which emulates section 24G of the NEMA, sets out the process and the information required for such an application. The clause also provides the licensing authority with various options when considering such an application. The clause also provides for the payment of an administrative fine not exceeding five million rand before the processing of the application. Furthermore, the submission of such an application does not indemnify the person from criminal prosecution.

3.             Clause 4 will add a new subsection (4) to section 29 of the Act, to provide for monitoring, evaluation and reporting requirements on the implementation of the approved pollution prevention plan.

4.             Clause 5 will also insert new subsections in section 36 of the Act. The additions propose that in instances where the licensing authority fails to take a decision within the time period set out in the Act, an applicant may request the MEC or Minister, as the case may be, to take the decision, and in the event that the MEC does not have the capacity or the MEC does not deal with the matter within the reasonable period of time, the Minister may be requested to take the decision. When considering this subsection the Portfolio Committee  was mindful of sections 125(2)(b) (Executive authority of provinces) and 156(1)(b) (powers and functions of municipalities) of the Constitution of the Republic of South Africa of 1996, which provides that the Province or the Municipality, respectively, is vested with the power to implement all national legislation within the functional areas listed in Schedule 4 of the Constitution, except where the Constitution or an Act of Parliament provides otherwise.

The licencing authority to issue an atmospheric emission licence is usually vested in the relevant local authority.  However, this clause will designate the Minister to be the licensing authority: where the applicant for atmospheric emission license is a  provincial organ of state who has been delegated by the municipality the power to issue atmospheric emission licenses; where the air emission activity falls within  two provinces; whenever the air emission activity forms part of a national priority project approved by Cabinet; where the air emission activity is also related to the activities listed under the NEMA, (1998) and the National Environmental Management: Waste Act, 2008, designating  the Minister as the competent authority; or where the air emission activity is related to a prospecting, mining, exploration or production activity in an area for which the right has been applied for. When the Minister decides on an atmospheric licence in a mining area, he or she must do so after consultation with the relevant Municipality. The clause will further allow for the issuing of integrated environmental authorizations for related activities under the NEMA (1998) and a specific environmental management Act.

5.             Clauses 6, 7 and 8 will amend sections 38, 39 and 40 of the Act, respectively, in order to delete references to section 22 of the Environment Conservation Act, 1989, as the Environmental Impact Assessment Regulations, 1997 and related notices have been repealed. Clause 8 will further amend section 40, to clarify the intention of this section and to provide that where the air activity relates to a prospecting, mining, exploration and production activity in the area for which the right has been applied for, the Minister after consultation with the relevant licensing authority must decide the application within the timeframes set out in the NEMA (1998).

6.             Clause 9 will insert a new subsection (3) in section 41 of the Act, to provide for a period of validity of one year for a 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.

7.             Clause 10 will amend section 49 of the Act, to provide clarity that the licensing authority must take into consideration either of the listed criteria when deciding an application for an atmospheric emission licence.

8.             Clause 11 will amend section 51 of the Act, to ensure that non-compliance with the controlled fuels standards established in terms of section 28 of the Act is a criminal offence.

9.             Clause 12 will amend section 53 of the Act, 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.

10.          Clauses 13, 14 and 15 will repeal sections 62, 63 and Schedule 2 to the Act, as they are no longer relevant.

11.          The Portfolio Committee is of the view that no aspect of the amendments being processed requires preparatory work before these amendments are put into operation. Therefore, the Amendment Bill will come into effect on the date of publication in the Gazette, by the President in terms of section 81 of the Constitution of the Republic of South Africa, of 1996

The Portfolio Committee further notes that some aspects of the Climate Change Policy, adopted last year, must be implemented through the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004). To this end, the Portfolio Committee requests the Department of Environmental Affairs to comprehensively investigate and provide the Portfolio Committee with a report on possible options to address the desired emission reduction outcomes before the end of January 2014.

Report to be considered.