National Environmental Management Air Quality Act (39 of 2004)
Author: Andy Gubb Wildlife & Environmental Society of South Africa
( Article Type: Explanation )
As with the Protected Areas and Biodiversity Acts, the National Environment Management: Air Quality Act (NEM AQA) must be interpreted and applied in accordance with the principals specified in the National Environmental Management Act (NEMA). The NEM: AQA serves to repeal the Atmospheric Pollution Prevention Act (45 of 1965) and various other laws dealing with air pollution.
According to the Act, the Department of Environment Affairs and Tourism, the provincial environmental departments and local authorities are separately and jointly responsible for the implementation and enforcement of various aspects of the Air Quality Act. Each of these spheres of government is obliged to appoint an air quality manager and to co-operate with each other and co-ordinate their activities through mechanisms provided for in the National Environmental Management Act.
The purpose of the Act is to set norms and standards that relate to:
- Institutional frameworks, roles and responsibilities
- Air quality management planning
- Air quality monitoring and information management
- Air quality management measures
- General compliance and enforcement.
Amongst other things, it is intended that the setting of norms and standards will achieve the following:
- The protection, restoration and enhancement of air quality in South Africa
- Increased public participation in the protection of air quality and improved public access to relevant and meaningful information about air quality
- The reduction of risks to human heath and the prevention of the degradation of air quality.
A key aspect of the new approach to air quality, as reflected in the Act, is the establishment of national ambient air quality standards. 
These standards provide the goals for air quality management plans and also provide the yardstick by which the effectiveness of these management plans is measured. The Act provides for the identification of priority pollutants and the setting of ambient standards with respect to these pollutants. The Act provides for the establishment of a multi-stakeholder National Air Quality Committee, which will advise the Minister on the implementation of the Act.
The Act ensures that air quality planning is integrated with existing activities. The implications of this are that plans that are required in terms of the National Environmental Management Act must incorporate consideration of air quality. In addition, integrated development plans, developed by municipalities, also have to take air quality into account.
The Act describes various regulatory tools that should be developed to ensure the implementation and enforcement of air quality management plans. These include:
- Priority Areas, which are air pollution ‘hot spots’
- Listed Activities, which are ‘problem’ processes that require an Atmospheric Emission Licence
- Controlled Emitters, which includes the setting of emission standards for ‘classes’ of emitters, such as motor vehicles, incinerators, etc.
- Control of Noise
- Control of Odours.
In order to facilitate implementation of and compliance with the Act, the Act provides for government to turn down licence applications from applicants who have a bad record of air quality management practices. It also provides for government to demand that ‘problem’ industries appoint qualified air quality management practitioners.
The Act also deals with South Africa’s international obligations in terms of air quality management. Provision is made for the control of processes impacting on South Africa’s neighbours and the global atmosphere in general. This section of the Act is viewed as significant in that it enables government to implement the swift responses that are requirements of some international investment opportunities.
The Act as a whole is underpinned by the adoption of a comprehensive approach to the management of offences and penalties, which includes the provision of transitional arrangements. The Act provides for flexibility so that permissible emission limits can be amended on a progressive basis in order to achieve air quality standards. As a consequence, it could take anything between 5 and 10 years for the Act to be fully implemented. Certain sections of the Act came into force on 11 September 2005, but the Minister excluded certain sections until such a time as local authorities had the capacity and skills to cope with the implementation of the legislation. Significantly, many of the excluded sections relate to listed activities and licensing of listed activities.
Critics of aspects of the Air Quality Act have pointed to the fact that the Act fails to focus specifically on human health, and the emphasis appears to be on how to allow industry to continue within the limits demanded by civil society. To this end, the Act would be strengthened if it included specific timeframes within which key actions are taken to achieve the objectives of the Act, e.g. the setting of standards and the length of time a facility may hold a provisional licence. The Act also does not provide for mechanisms that can be used by provinces if local municipalities fail to fulfil their licensing and monitoring functions adequately. There are serious reservations about the capacity of local authorities to fulfil their obligations in terms of the Act.
Concerns have been expressed about adequacy of public participation provisions with respect to the granting of a licence for a listed activity. A crucial omission from the Act is the lack of explicit provision for the process of an appeal against the decisions of licensing authorities.
Despite concerns and criticisms, the NEM AQA is a vast improvement on the Air Pollution Prevention Act and it provides a more comprehensive framework within which the critical question of air quality can be addressed.
