It is trite that the NEMAQA is a departure from a purely "point source" approach to regulation of air emissions as envisaged in the APPA to include a more progressive regulation of ambient air quality in general. The much anticipated remaining provisions of the National Environmental Management: Air Quality Act 39 of 2004 ("NEMAQA") finally came into effect on 1 April 2010 in terms of Government Notice No. 220 of 26 March 2010. In addition, in terms of GN 248 of 31 March 2010 ("GN 248"), the list of activities resulting in atmospheric emissions which have or may have a significant detrimental effect on, inter alia, the environment and the minimum emission standards for these activities as contemplated in section 21 of the NEMAQA also commenced with effect from 1 April 2010.

The effect of the commencement of the remaining provisions of the NEMAQA and the publication of the listed activities in GN 248 is that now, inter alia, in terms of section 22 of the NEMAQA, a provisional atmospheric emission licence or an atmospheric emission licence is required for the conducting of these listed activities. The APPA and more specifically, the scheduled processes identified in the Second Schedule to the APPA are accordingly repealed.

We touch briefly on a number of relevant aspects.

Transitional arrangements as provided for in section 61 of the NEMAQA

In short, the transitional arrangements in section 61 of the NEMAQA differentiate between provisional and final registration certificates issued in terms of the APPA. A valid provisional registration certificate remains valid for a period of two years from 1 April 2010 subject to, inter alia, the issuance of a provisional or final atmospheric emission licence ("AEL"). A valid registration certificate remains valid for a period of four years from 1 April 2010 subject to, inter alia, the lodgement of a renewal application in terms of section 47 within the first three years of the stipulated four year period. An application for a provisional or final registration certificate which was pending at 1 April 2010 must, in terms of section 61(3), be proceeded with as if it was an application for an AEL in terms of section 37 including the submission of information, the potential applicability of section 24 of the NEMA , publication etc. as provided for in section 38 .

The licencing authority

Section 37 states that an application form for an AEL is to be submitted to the licencing authority. In terms of section 36(1) (and subject to sections 36(2) - (4)), the licencing authority is no longer the national sphere Department of Environmental Affairs ("DEA") but is now the local sphere metropolitan and district municipality. It appears therefore that pending applications submitted to the DEA will now be processed by the metropolitan and district municipalities.

New listed activities and minimum emission standards

GN 248 identifies the listed activities which require AEL and the minimum emission standards ("MES") which are to be complied with for the relevant activity. These listed activities differ significantly to the Scheduled processes in terms of the APPA and entities are encouraged to assess the applicability thereof to their own operations.

Regulation 2 deals with the applicability of the Notice and states that the MES's as contained therein shall apply to both permanently operated plants and for experimental (pilot) plants with a design capacity equivalent to the one of a listed activity. Insofar as compliance with the MES is concerned, transitional arrangements are also provided , as follows:

• new Plants must comply with the MES as contained in Part 3 on the date of publication of the Notice (i.e. 1 April 2010);

• existing Plants must comply with the MES for existing plants as contained in Part 3 within 5 years from the date of publication of the Notice (i.e. 31 March 2015);

• existing Plants must comply with the MES for new plants as contained in Part 3 within 10 years from the date of publication of the Notice (i.e. 31 March 2020).

In terms of regulation 6, an application can be submitted for the postponement of the compliance time frames as set out above and the procedure to follow should a person wish to submit a postponement application.

Whilst the NEMAQA is a welcome evolution in respect of air quality control, it is expected that the applicability and interpretation thereof and the listed activities will not, as with the commencement of any new legislation constituting "uncharted territory", so to speak, be without its challenges. We anticipate publishing more articles in respect of specific issues encountered in practice around the applicability and interpretation of the NEMAQA, as and when they arise.

Written by: Tandina Charters, Associate at Cameron Cross Inc.