Electricity and Control February 2024

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Understanding the impact of amended environmental legislation: NEMLAA4 Paula-Ann Novotny, Senior Associate at Webber Wentzel

I n the continually evolving arena of environmental legislation, the National Environmental Management Amendment Act 2 of 2022 (NEMLAA4) emerges as transformative, poised to introduce a substantial shift in South Africa’s environmental legislative landscape. Since the inception of the One

The scope of such applications has also been extended to include successors-in-title and persons in control of land where unlawful activity has occurred as applicants. Altered dynamics in appeals NEMLAA4 brings changes to the suspension of approvals during appeals, permitting applications to the appeal authority to lift suspensions pending the outcome of the appeal. On the other end, appeals against administrative enforcement action will not automatically suspend the directive or pre-compliance, but applications to suspend such directions are now similarly permissible on good cause shown. Empowered inspectors and designation Ministers now hold the authority to designate staff members as well as regulatory state organs as environmental inspectors, fortifying regulatory control and ensuring specialised oversight within the enforcement framework. Amendments to the SEMAs Amendments to the Specific Environmental Management Acts relating to Air quality, Waste management and land contamination, Protected areas, and Biodiversity relate primarily to particular processes to be followed, specific provisions and restrictions, and clarification on respective licensing authorities. Although NEMLAA4 marks a substantial leap forward, certain proposed amendments are yet to come into effect, presenting potential future shifts in South Africa’s environmental legal framework. These include pending amendments to the Air Quality Act and the Waste Act. Embracing environmental transformation NEMLAA4 represents a pivotal juncture in South Africa’s environmental management journey, ushering in new stringent compliance and reinforced enforcement. The far reaching amendments, effective from 30 June 2023, signal a commitment to responsible environmental stewardship and delineate a path towards sustainable industrial practices. As future amendments linger, industries and stakeholders should prepare for evolving compliance standards and remain adaptable to the dynamic legislative landscape, to support a harmonious coexistence between industrial progress and environmental preservation.

Paula–Ann Novotny, Webber Wentzel.

Environmental System (OES) in 2014, NEMLAA4 stands as the most significant legislative overhaul, addressing prevailing issues, deterring non-compliance, and augmenting enforcement mechanisms within the mining and industrial sectors. A holistic view NEMLAA4, promulgated into law on 30 June 2023 (barring certain sections noted below), introduces sweeping changes that ripple across various statutes, predominantly the National Environmental Management Act, 107 of 1998 (NEMA), and four Specific Environmental Management Acts (SEMAs): Air Quality Act 39 of 2004, Waste Act 59 of 2008, Protected Areas Act 57 of 2003, and Biodiversity Act 10 of 2004. A pivotal amendment under NEMLAA4 is the restructuring of financial provisioning (FP) for Rehabilitation and Closure (R&C). While initially targeted at the mining sector, this reform extends to empower the Minister to impose FP on other industries. The distinction between general R&C principles (Section 24P) and mining-specific principles (Section 24PA) marks a shift in specificity, outlining stringent regulations governing funding, vehicles for financial provisioning, fund usage, and drawdown approval processes. Expanded municipal enforcement NEMLAA4 broadens the authority to issue Section 28 directives – addressing breaches of the environmental duty of care – to municipal managers. This amplification of enforcement powers casts a wider net, intensifying regulatory oversight beyond national and provincial departments. Rectification processes reinforced Historically, Section 24G of NEMA allowed post commencement rectification for unlawful activities, often exploited by entities initiating activities without the requisite .licences. NEMLAA4 bolsters these rectification processes, imposing public participation requirements, mandatory cessation of unlawful operations, and escalated administrative penalties, raising fines up to R10 million. Key provisions and amendments Financial provisioning revamp

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32 Electricity + Control FEBRUARY 2024