No. 1109
1 August 2003
NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL
Mohammed Valli Moosa, the Minister of Environmental Affairs and
Tourism, hereby publishes the draft National Environmental Management: Air
Quality Bill for public information in terms of Rule 241(1)(b) of the
National Assembly and Rule 186 (1) (a) of the National Council of
Provinces.
The draft bill aims to bring the system of air pollution control in
line with the Constitution of the Republic of South Africa. It replaces the
outdated Air Pollution Prevention Act, 1965 (APPA), (Act No. 45 of 1965)
with a more effective regulatory regime. It establishes national norms and
standards for air quality management. It provides a framework for air
quality planning and reporting and numerous regulatory instruments for the
control of air pollution and as well as compliance and enforcement regime.
The draft bill will be tabled in Parliament during August 2003 for
consideration. Written comments and inputs are invited from interested and
affected parties as well as the general public. These must be submitted to:
1. Mr. S Mfenyana
Secretary to Parliament
Parliament of South Africa
PO Box 15
CAPE TOWN
8000
Fax: (021) 403 2604 And/or
2. Rev. P Moatshe
Chairperson of the Select Committee on Land and Environmental
Affairs
Parliament of South Africa
PO Box 15
CAPE TOWN
8000
Fax: (021) 403 2850
Copies of the bill can be obtained from:
- Government Printers - Cape Town & Pretoria
- Ms K Maphanga
Department of Environmental Affairs and Tourism
Private Bag X 447
PRETORIA
0001
Fax: (012) 320 0205
E-mail: Kmaphanga@ozone.pwv.gov.za
THE CLOSING DATE FOR COMMENTS IS 30 AUGUST 2003
MEMORANDUM ON THE OBJECTS OF THE BILL
NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL, 2003
1. INTRODUCTION
The Bill aims to bring the system of air pollution control in line with
the Constitution allocation of function between the three spheres of
government. It replaces the outdated Air Pollution Prevention Act (Act 45
of 1965) with a more effective regulatory regime, including the
establishment of national norms and standards, a framework for air quality
management planning and reporting regime and numerous regulatory
instruments for the control of air pollution and compliance and
enforcement.
The National Environmental Management: Air Quality Bill was approved by
Cabinet on 16 April 2003 and published for comment on 22 April 2003. The
closing date for the submission of comments was 30 may 2003. Comments were
received from approximately 70 institutions and individuals. Certain
amendments have been effected to the Bill relating to definitions, minimum
standards for emission from listed activities, atmospheric impact reports,
the role of province in licensing special cases and transparency provisions
for exemptions.
2. GENERAL BACKGROUND AND OVERVIEW
The current approach to air quality management in South Africa is
informed and regulated by the Atmospheric Pollution Prevention Act, 1965
(Act. 45 of 1965) (APPA). For many years, this Act has been regarded as
being outdated for a number of reasons, not least of these being that it
cannot accommodate the constitutional allocation of functions in respect of
the role of provincial and local government, it has inadequate compliance
and enforcement mechanisms to implement the Act effectively and there is
lack of transparency in decision-making. Furthermore, the APPA approach is
based largely on point-source emission control that does not fully address
the cumulative impacts of air pollution. As a result, certain areas of
South Africa are exposed and vulnerable to exceptionally poor air quality
in terms of both local and international standards.
The poor air quality in various areas of South Africa has various
impacts that can be measured in terms of economic costs. As these costs are
seldom paid for, or even recognised, by the polluters themselves, they are
often referred to as externalities. As such, these are costs that are
imposed on society and are paid for by both the victims of poor air quality
and the public services.
The drafting team has gone through the comments in detail and has
revised and amended sections of the Bill where this has been regarded as
appropriate. In this regard, apart from a number of minor editorial changes
and non-substantive revisions, the following areas received the most
attention and subsequent revision: (i) Definitions - some definitions have
been refined and some new definitions have been added; (ii) Listed
Activities - provision has been made for the setting of minimum standards
for emissions from listed activities; (iii) Atmospheric Impact Report - a
new tool has been provided by which government is able to request relevant
information from specific industries in respect of their emissions; (iv)
Licensing authority - provision has been made for province to be the
licensing authority in special cases including - at the request of local
authority, in respect of existing registered industries, when the LA is the
applicant and through joint LA-province agreement; (v) License Review -
this section has been expanded with appropriate cross-reference to license
variation; (vi) Exemptions - transparency provisions have been added; (vii)
intergovernmental delegations have been provided for; (viii) Transitional
Ambient Air Quality standards have been spelt out.
3. CHAPTER BY CHAPTER ANALYSIS
Chapter 1, the introductory chapter, of the Bill defines the specific
terminology used, sets out the objectives of the bill and makes reference
to the environmental management principles set forth in the National
Environmental Management Act (Act 107 of 1998) (NEMA). Amendments to this
chapter include the deletion of, among others steam as a pollutant, the
redefinition of vehicle emissions as a non-point source of air pollution,
and competent authority was also defined.
Chapter 2 deals with what is regarded as the `backbone' of the new
approach to air quality management, namely, the establishment of national
ambient air quality standards. It also clarifies the setting of norms and
standards within the various spheres of government. These standards will be
a key mechanism in ensuring that the constitutional right in respect of an
environment that is not harmful to health and well-being is progressively
realised through the implementation of benchmark performance standards.
Furthermore, ambient air quality standards will provide the goals and
objectives for all air quality management plans and will also provide the
yardstick against which the efficacy of these plans can be measured. To
this end, the chapter provides for the identification of priority
pollutants and the setting of ambient standards in respect of these
pollutants. The chapter also allows for the setting of speck emission
standards for any problem pollutant. This chapter was amended to include
setting of emission standards from point sources. The provision for the
provincial MEC to set provincial ambient standards was deleted, on the
basis that national ambient standards will be sufficiently protective of
health and the environment
Chapter 3 provides for the establishment of a multi-stakeholder
National Air Quality Advisory Committee to advise the Minister on the
implementation of the Bill. This chapter also deals with air quality
management. In order not to duplicate the planning and reporting
responsibilities of government, Chapter 3 indicates how air quality
planning must be integrated with existing activities, i.e. the plans
required in terms of NEMA must incorporate a consideration of air quality
whereas integrated development plans compiled by municipalities must also
take air quality into account. The name of the committee was changed from
National Air Quality Management Committee to National Air Quality Advisory
Committee. The composition of the committee will be determined in fine with
the provisions for setting up the National Environmental Advisory Forum
(NEAF) as prescribed in NEMA.
Chapter 4 describes the various regulatory toots or measures made
available to government for implementing and enforcing air quality
management plans and achieving acceptable ambient air quality. The tools
have been designed in such a way as to ensure an optimal mix of regulatory
approaches that will ensure that the diversity of air pollution issues can
be managed in the most effective manner, with the least possible
administrative burden and use of resources. These include the following:
- Priority areas - Air pollution `hot spots' may be identified for
focused attention including specific air quality management plans and the
provision for specific regulations relating to the area;
- Listed Activities - The identification of `problem' processes means
that they will require an Atmospheric Emission License before they can
operate. This section also deals with the control of offensive odours;
- Controlled emitters - The setting of emission standards for
identified `classes' of emitters (e.g. motor vehicles, hazardous waste
incinerators, etc.);
- Control of Noise - measures can be prescribed for the control of
noise.
- Control of odours - measures can be prescribed for the control of
offensive odours.
The chapter was amended to include the provision for the submission of
atmospheric impact reports as an additional tool enabling air quality
officers to manage air quality from existing industrial activities, as well
as provisions for the control of dust. The control of vibration was removed
from the bill as this was deemed not to be an air quality matter
Chapter 5 deals with licensing of listed activities. It defines with
reference to section 24 of NEMA procedures to be followed and the authority
responsible for granting such a licence. This chapter also makes provision
for and defines the following;
- Fit and proper persons - This provision allows government to turn
down license applications from applicants who have continuously
demonstrated bad air quality management practices in the past
- Emission control officers - This provision allows government to
demand that qualified air quality management practitioners are employed by
`problem' industries;
This chapter was amended to provide for DEAT to delegate the conversion
of existing Registration certificates issued in terms of APPA to provinces.
Chapter 6 deals with South Africa's international obligations in
respect of air quality management. In keeping with the `good neighbour'
aspect of NEPAD and our SADC obligations, the Bill allows the Minister to
investigate cases where South African processes may be impacting on our
neighbours. In this regard, the Bill also provides for regulations in
respect of the control of processes impacting on our neighbours and the
global atmosphere in general. This section is viewed as being significant
as it will enable national government to implement swift responses required
to harness the investment opportunities provided by some of the
international instruments.
Chapter 7 deals with offences and penalties. The Bill as a whole is
underpinned by the adoption of a comprehensive approach to the management
of offences and penalties
Chapters 8 provide for general regulations and transitional
arrangements. With regard to the latter, the Bill provides for a number of
arrangements aimed at smoothing the transition from the air quality
management approach under APPA.
4. ORGANISATIONAL AND PERSONNEL IMPLICATIONS
National and provincial government have concurrent jurisdiction with
respect to 'environment and 'pollution control, and 'air pollution' is a
local government matter for which municipalities have executive authority.
The current system under APPA effectively marginalizes both province and
local government from the area of air quality management. The Bill will not
increase the administrative burden for the Department of Environmental
Affairs and Tourism as it seeks devolve functions to municipalities.
However, it will have organisational and personnel implications for
municipalities, as most of them are currently not performing the Section 4
B air pollution control functions assigned to them by the Constitution.
5. FINANCIAL IMPLICATIONS
The Bill will increase the financial resources available for
administering air quality management through the system of permit fees at
local and provincial levels of government. It is anticipated that these
additional resources will cover the costs of administering the Bill in
these spheres of government. There will be no increase in budgetary
requirements for air quality management at the level of national
government.
NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL
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; 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.
PREAMBLE
Whereas -
everyone has a right to an environment that is not harmful to his or
her health or well-being; everyone has the right to have the environment
protected, for the benefit of present and future generations, through
reasonable legislative and other measures that prevent pollution and secure
ecologically sustainable development while promoting justifiable economic
and social development; sustainable development requires the integration of
social, economic and environmental factors in the planning, implementation
and evaluation of decisions to ensure that development serves present and
future generations;
air pollution carries a high social, economic and environmental cost
that is seldom borne by the polluter;
many inhabitants of South Africa live and work in areas where the air
is harmful to their health and well being;
the burden of health impacts associated with polluted ambient air falls
most heavily on the poor; economic growth in many areas with high growth
potential is being hampered by poor air quality in these areas;
atmospheric emissions of ozone depleting substances, greenhouse gases
and other substances have deleterious effects on the environment both
locally and globally;
contaminated ambient air cannot be remedied and thus, pollution
minimisation through, particularly cleaner production, is key to ensuring
that air quality is improved;
ambient air quality standards define air that is not harmful to the
public's health and well-being or the environment;
air that conforms to ambient air quality standards facilitates and
enhances sustainable development;
new and innovative approaches to legislation are required to protect
and enhance the air quality in the Republic.
IT IS NOW ENACTED by the Parliament of the Republic of South Africa as
follows: -
TABLE OF CONTENTS
CHAPTER 1
INTERPRETATION, OBJECT AND APPLICATION OF ACT
1. Interpretation
2. Objects of this Act
3. State's general duty
4. Application of this Act
5. Application of National Environmental Management Act
6. Conflicts with other legislation
CHAPTER 2
NATIONAL FRAMEWORK AND NATIONAL, PROVINCIAL AND LOCAL STANDARDS
Part 1: National framework
7. Establishment
8. National monitoring and information management standards
Part 2: National, provincial and local ambient air quality and emission
standards
9. National standards
10. Provincial standards
11. Local standards
Part 3: General
12. Ambient air quality and emission measurements
CHAPTER 3
INSTITUTIONAL AND PLANNING MATTERS
13. National Air Quality Advisory Committee
14. Appointment of air quality officers
15. Air quality management plans
16. Contents of air quality management plans
17. Reporting of implementation of air quality management plans
CHAPTER 4
AIR QUALITY MANAGEMENT MEASURES
Part 1: Priority areas
18. Declaration of priority areas
19. Management of priority areas
20. Regulations for implementing and enforcing priority area air
quality management plans
Part 2: Listing of activities resulting in atmospheric emissions
21. Listing of activities
22. Consequences of listing
Part 3: Controlled emitters
23. Controlled emitters
24. Standards for controlled emitters
25. Consequences of declaration
Part 4: Other measures
26. Pollution prevention plans
27. Atmospheric impact reports
28. Recognition programmes
Part 5: Measures in respect of dust, noise and offensive odours
29. Control of dust
30. Rehabilitation when mining operations cease
31. Control of noise
32. Control of offensive odours
CHAPTER 5
LICENSING OF LISTED ACTIVITIES
33. Licensing authority
34. Application for atmospheric emission licences
35. Procedure for licence applications
36. Factors to be taken into account by licensing authorities
37. Decisions
38. Successful applications
39. Issuing of atmospheric emission licences
40. Contents of provisional atmospheric emission licences and
atmospheric emission licences
41. Transfer of atmospheric emission licences
42. Review of atmospheric emission licences
43. Variation of atmospheric emission licences
44. Renewal of atmospheric emission licences
45. Emission control officers
46. Criteria for fit and proper persons
CHAPTER 6
INTERNATIONAL AIR QUALITY MANAGEMENT
47. Trans-boundary air pollution
CHAPTER 7
OFFENCES AND PENALTIES
48. Offences
49. Penalties
CHAPTER 8
GENERAL MATTERS
Part 1: Regulations
50. Regulations by Minister
51. Regulations by MECs responsible for air quality
52. General
Part 2: Consultation process
53. Consultation
54. Public participation
Part 3: Delegations and exemptions
55. Delegations
56. Exemptions
CHAPTER 9
MISCELLANEOUS
57. Repeal of legislation
58. Transitional arrangements in respect of registration certificates
59. Transitional provision regarding listed activities
60. Transitional provision regarding ambient air quality standards
61. Short title and commencement
CHAPTER 1
INTERPRETATION AND FUNDAMENTAL PRINCIPLES
Interpretation
1. (1) In this Act, unless the context indicates otherwise -
"air pollution" means any change in the composition of the air, caused
by smoke, soot, dust (including fly ash), cinders, solid particles of any
kind, gases, fumes, aerosols and odorous substances;
"air quality management plan" means a plan referred to in section 14;
"ambient air" includes all air except that regulated by the
Occupational Health and Safety Act, 1993 (Act 85 of 1993);
"Atmospheric Pollution Prevention Act" means the Atmospheric Pollution
Prevention Act, 1965 (Act 45 of 1965);
"atmospheric emission" or "emission" means any emission or entrainment
process emanating from a point, non-point or mobile source that results in
air pollution;
"atmospheric emission licence" means a licence contemplated in Chapter
5 and includes a provisional atmospheric emission licence;
"air quality officer" means an officer appointed in terms of section 14
as an air quality officer;
"controlled emitter" means any appliance or activity declared as a
controlled emitter in terms of section 23;
"Department" means the Department of Environmental Affairs and Tourism;
"environment" has the meaning assigned to it section 1 of the National
Environmental Management Act;
"Environment Conservation Act" means the Environment Conservation Act,
1989 (Act 73 of 1989);
"Gazette"-
(a) when used in relation to the Minister, means the Government
Gazette; and
(b) when used in relation to the MEC responsible for air quality in a
province, means the Provincial Gazette of that province;
"greenhouse gas" means gaseous constituents of the atmosphere, both
natural and anthropogenic, that absorb and re-emit infrared radiation, and
includes carbon dioxide, methane and nitrous oxide;
"licensing authority" means an authority referred to in section 33 (1),
(2), (3) or (4) responsible for implementing the licensing system set out
in Chapter 5;
"listed activity" means any activity listed in terms of section 21;
"MEC responsible for air quality" means the member of the Executive
Council of a province who is responsible for air quality management in the
province;
"Minister" means the Minister of Environmental Affairs and Tourism;
"mobile source" means a single identifiable source of atmospheric
emission which does not emanate from a fixed location;
"municipality" means a municipality established in terms of the Local
Government: Municipal Structures Act, 1998 (Act 117 of 1998);
"Municipal Systems Act" means the Local Government: Municipal Systems
Act, 2000 (Act 32 of 2000);
"National Environmental Management Act" means the National
Environmental Management Act, 1998 (Act 107 of 1998);
"national framework" means the framework which must be established in
terms of section 7 (1);
"non-point source" means a source of atmospheric emissions which cannot
be identified as having emanated from a single identifiable source or fixed
location, and includes veld, forest and open fires, mining activities,
agricultural activities and stockpiles;
"offensive odour" means any smell which is considered to be malodorous
or a nuisance to the reasonable person;
"organ of state" has the meaning assigned to it in section 239 of the
Constitution;
"ozone depleting substance" means a substance having chemical or
physical properties which, by its release into the atmosphere, can cause a
depletion of the stratospheric ozone layer;
"point source" means a single identifiable source and fixed location of
atmospheric emission, and includes smoke stacks and residential chimneys;
"pollution" has the meaning assigned to it in section 1 of the National
Environmental Management Act;
"precautionary principle" means the principle set out in section
2(4)(a)(vii) of the National Environmental Management Act;
"priority area" means an area declared in terms of section 18;
"priority area air quality management plan" means a plan referred to in
section 19; "this Act" includes -
(a) the national framework;
(b) any regulation made in terms of section 54 or 51; and
(c) any other subordinate legislation issued in terms of this Act.
(2) In this Act, a word or expression derived from a word or expression
defined in subsection (1) has a corresponding meaning unless the context
indicates that another meaning is intended.
Object of this Act
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.
State's general duty
3. In fulfilling the rights contained in section 24 of the
Constitution, the state -
(a) through the organs of state implementing this Act, must seek to
protect and enhance the quality of air in the Republic; and
(b) must implement this Act to achieve the progressive realisation of
those rights.
Application of this Act
4. (1) This Act applies -
(a) in the Republic, including its territorial waters, exclusive
economic zone and continental shelf as described in the Maritime
Zones Act, 1994 (Act No. 15 of 1994); and
(b) to all activities in the Republic affecting the quality of air.
(2) This Act binds all organs of state -
(a) in the national and local spheres of government; and
(b) in the provincial sphere of government, subject to section 146 of
the Constitution.
Application of National Environmental Management Act
5. (1) This Act must be read with any applicable provisions of the
National Environmental Management Act.
(2) The application of this Act must be guided by the national
environmental management principles set out in section 2 of the National
Environmental Management Act.
Note: The NEMA Amendment Bill currently before Parliament must be
amended to include a reference to this Bill in the definition of "specific
environmental management Act".
Conflicts with other legislation
6. (1) In the event of any conflict between a section of this Act and -
(a) provincial legislation, the conflict must be resolved in terms of
section 146 of the Constitution; and
(b) a municipal by-law, the section of this Act prevails.
(2) In the event of any conflict between subordinate legislation issued
in terms of this Act and -
(a) an Act of Parliament, the Act of Parliament prevails;
(b) provincial legislation, the conflict must be resolved in terms of
section 146 of the Constitution; and
(c) a municipal by-law, the subordinate legislation issued in terms of
this Act prevails.
(3) For the proper application of subsection (2) (b) the Minister must
in terms of section 146 (6) of the Constitution submit all subordinate
legislation issued in terms of this Act and which affects provinces, to the
National Council of Provinces for approval.
CHAPTER 2
NATIONAL FRAMEWORK AND NATIONAL, PROVINCIAL AND LOCAL STANDARDS
Part 1: National framework
Establishment
7. (1) The Minister must, as soon as reasonably practicable, by notice
in the Gazette, establish a national framework for achieving the object of
this Act, which must include -
(a) strategies, objectives and plans to attain compliance with ambient
air quality standards;
(b) strategies, objectives and plans to give effect to the Republic's
obligations in terms of international agreements;
(c) national norms and standards for the control of emissions from
point, non-point and mobile sources;
(d) national norms and standards for air quality monitoring;
(e) national norms and standards for air quality management planning;
(f) national norms and standards for air quality information
management;
(g) mechanisms to provide for co-operative governance in respect of air
quality management; and
(h) any other matter which the Minister considers necessary for
achieving the object of this Act.
(2) National norms and standards established in terms of subsection (1)
must be aimed at ensuring -
(a) opportunities for public participation in the protection and
enhancement of air quality;
(b) public access to air quality information;
(c) the prevention of air pollution and degradation of air quality;
(d) the reduction of discharges likely to impair air quality, including
the reduction of air pollution at source;
(e) the promotion of efficient and effective air quality management;
(f) effective air quality monitoring;
(g) regular reporting on air quality; and
(h) compliance with the Republic's obligations in terms of
international agreements.
(3) The national framework -
(a) binds all organs of state in all spheres of government; and
(b) may assign and delineate responsibilities for the implementation of
this Act amongst -
(i) the different spheres of government; and
(ii) different organs of state.
(4) An organ of state must give effect to the national framework when
exercising a power or performing any duty in terms of this Act or any other
legislation regulating air quality management.
(5) The national framework -
(a) may differentiate between different geographical areas;
(b) may provide for the phasing in of its provisions;
(c) may be amended from time to time; and
(d) must be reviewed by the Minister at intervals of not more than five
years.
(6) (a) Before publishing the national framework, or any amendment to
the framework, the Minister must follow a consultative process in
accordance with sections 53 and 54.
(b) Paragraph (a) need not be complied with if the framework is amended
in a non-substantive way.
National monitoring and information management standards
8. The national framework must establish national standards for -
(a) the monitoring by municipalities of -
(i) ambient air quality; and
(ii) point, non-point and mobile source emissions;
(b) the monitoring by provinces of-
(i) ambient air quality; and
(ii) the performance of municipalities in implementing this Act;
and
(c) the collection and management of data necessary to assess -
(i) compliance with this Act;
(ii) compliance with ambient air quality and emission standards;
(iii) performance of organs of state in respect of air quality
management plans and priority area air quality management
plans;
(iv) impact of, and compliance with, air quality management
plans and priority area air quality management plans;
(v) compliance with the Republic's obligations in terms of
international agreements; and
(vi) access to information by the public.
Part 2: National, provincial and local ambient air quality and emission
standards
National standards
9. (1) The Minister, by notice in the Gazette -
(a) may 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; and
(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.
(2) Section 7 (3) (a), (4), (5) and (6), with the necessary changes as
the context may require, applies to a notice published in terms of this
section.
Provincial standards
10. (1) The MEC responsible for air quality in a province 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; and
(b) in respect of each of those substances or mixtures of substances,
establish provincial 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 in the
province or in any geographical area within the province.
(2) If national standards have been established in terms of section 9
for any particular substance or mixture of substances, an MEC may not alter
any such national standards except by establishing stricter standards for
the province or for any geographical area within the province.
(3) A notice in terms of this section may -
(a) differentiate between different geographical areas within the
province;
(b) provide for the phasing in of its provisions; or
(c) be amended from time to time.
(1) (4) (a) Before publishing a notice in terms of this section, or any
amendment to the notice, the MEC must follow a consultative process in
accordance with sections 53 and 54.
(b) Paragraph (a) need not be complied with if the notice is amended in
a non-substantive way.
Local standards
11. (1) 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; and
(b) in respect of each of those substances or mixtures of substances,
establish local standards for emissions from point, non-point or
mobile sources in the municipality.
(2) If national or provincial standards have been established in terms
of section 9 or 10 for any particular substance or mixture of substances, a
municipality may not alter any such national or provincial standards except
by establishing stricter standards for the municipality or any part of the
municipality.
(3) Before a municipality passes a by-law referred to in subsection
(1), it must follow a consultative process in terms of Chapter 4 of the
Municipal Systems Act.
Part 3: General
Ambient air quality and emission measurements
12. For the purpose of this Chapter, the Minister may by regulation in
terms of section 50 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 manner and form in which such measurements must be reported and
the organs of state to whom such measurements must be reported.
CHAPTER 3
INSTITUTIONAL AND PLANNING MATTERS
National Air Quality Advisory Committee
13. (1) The Minister may establish a National Air Quality Advisory
Committee as a subcommittee of National Environmental Advisory Forum
established in terms of the National Environmental Management Act to advise
the Minister on the implementation of this Act.
(2) When establishing the Committee, the Minister must determine -
(a) the composition of the Committee, including the appointment, tenure
and termination of members of the Committee;
(b) the conditions of appointment of members of the Committee;
(c) the functions and functioning of the Committee; and
(d) any other matter relating to the Committee.
Appointment of air quality officers
14. (1) The Minister must designate an officer in the Department as the
national air quality officer to be responsible for co-ordinating matters
pertaining to air quality management in the national government.
(2) The MEC responsible for air quality in a province must designate an
officer in the provincial administration as the provincial air quality
officer to be responsible for co-ordinating matters pertaining to air
quality management in the province.
(3) Each municipality must designate an air quality officer from its
administration to be responsible for co-ordinating matters pertaining to
air quality management in the municipality.
(4) An air quality officer must perform the duties or exercise the
powers assigned or delegated to that officer in terms of this Act.
(5) An air quality officer may delegate a duty or power referred to in
subsection (4) to an official in the service of that officer's
administration, subject to any limitations or conditions as may be
prescribed by the Minister by regulation in terms of section 50.
(6) Air quality officers must co-ordinate their activities in a manner
as may be set out in the national framework or prescribed by the Minister
by regulation in terms of section 50.
Air quality management plans
15. (1) Each national department or province responsible for preparing
an environmental implementation plan or environmental management plan in
terms of Chapter 3 of the National Environmental Management Act must
include in that plan an air quality management plan.
(2) Each municipality must include in its integrated development plan
envisaged in Chapter 5 of the Municipal Systems Act, an air quality
management plan.
Contents of air quality management plans
16. (1) An air quality management plan must -
(a) within the domain of the relevant national department, province or
municipality, seek -
(i) to give effect, in respect of air quality, to Chapter 3 of
the National Environmental Management Act to the extent that
that Chapter is applicable to it;
(ii) to improve air quality;
(iii) to address the effects of emissions from the use of fossil
fuels in residential applications;
(iv) to address the effects of emissions from industrial
sources;
(v) to implement the Republic's obligations in respect of
international agreements; and
(vi) to give effect to best practise in air quality management;
(b) describe how the relevant national department, province or
municipality will give effect to its air quality management plan;
and
(c) comply with any other requirements as may be prescribed by the
Minister by regulation in terms of section 50.
Reporting on implementation of air quality management plans
17. The annual report which an organ of state must submit in terms of
section 16(1)(b) of the National Environmental Management Act must contain
information on the implementation of its air quality management plan,
including information on -
(a) air quality management initiatives undertaken by it during the
reporting period;
(b) the level of its compliance with ambient air quality standards;
(c) measures taken by it to secure compliance with those standards;
(d) its compliance with any priority area air quality management plans
applicable to it; and (e) its air quality monitoring activities.
CHAPTER 4
AIR QUALITY MANAGEMENT MEASURES
Part 1: Priority areas
Declaration of priority areas
18. (1) The Minister or the MEC responsible for air quality in a
province may, by notice in the Gazette, declare an area as a priority area
if -
(a) ambient air quality standards are being or are likely to be
exceeded in the area, or any other situation exists which is
causing, or is likely to cause, a significant negative impact on air
quality in the area; and
(b) the area requires specific air quality management action to rectify
the situation.
(2) The Minister may declare an area in terms of subsection (1) as a
priority area if-
(a) the negative impact on air quality in the area -
(i) affects the national interest; or
(ii) is contributing, or is likely to contribute, to air
pollution in another country;
(b) the area extends beyond provincial boundaries; or
(c) the area falls within a province and the province requests the
Minister to declare the area as a priority area.
(3) The MEC responsible for air quality in a province may in terms of
subsection (1) declare an area falling within the province as a priority
area.
(4) The MECs responsible for air quality in two or more adjoining
provinces may by joint action in terms of subsection (1) declare an area
falling within those provinces as a priority area.
(5) Before publishing a notice in terms of subsection (1), the Minister
or the relevant MEC or MECs must follow a consultative process in
accordance with sections 53 and 54.
(6) The declaration of an area as a priority area may be withdrawn if
the area is in compliance with ambient air quality standards for a period
of no less than one year.
Management of priority areas
19. (1) If the Minister has in terms of section 18 declared an area as
a priority area, the national air quality officer must -
(a) after consulting the air quality officers of any affected province
and municipality, prepare a priority area air quality management
plan for the area; and
(b) within six months of the declaration of the area, or such longer
period as the Minister may specify, submit the plan to the Minister
for approval.
(2) If the MEC responsible for air quality in a province has in terms
of section 18 declared an area as a priority area, the air quality officer
of the relevant province must -
(a) after consulting the national air quality officer and the air
quality officer of any affected municipality, prepare a priority
area air quality management plan for the area; and
(b) within six months of the declaration of the area, or such longer
period as the MEC may specify, submit the plan to the MEC for
approval.
(3) If the MECs responsible for air quality in two or more adjoining
provinces have by joint action in terms of section 18 declared an area as a
priority area, the air quality officers of the relevant provinces must
jointly -
(a) after consulting the national air quality officer and the air
quality officers of the affected municipalities, prepare a priority
area air quality management plan for the area; and
(b) within six months of the declaration of the area, or such longer
period as the relevant MECs may specify, submit the plan to the MECs
for approval.
(4) Before approving a priority area air quality management plan, the
Minister or the relevant MEC or MECs -
(a) must follow a consultative process in accordance with sections 53
and 54.
(b) may require the relevant air quality officer to amend the plan
within a period determined by the Minister or the relevant MEC or
MECs.
(5) The Minister or the relevant MEC or MECs must publish an approved
plan in the Gazette within 90 days of approval.
An approved plan takes effect from the date of publication.
(6) A priority area air quality management plan -
(a) must be aimed at co-ordinating air quality management in the area;
(b) must address air quality in the area; and
(c) may for this purpose provide for the establishment of a committee
representing relevant role players.
(7) A priority area air quality management plan lapses when the
declaration of the area as a priority area is withdrawn in terms of section
18 (6).
Regulations for implementing and enforcing priority area air quality
management plans
20. The Minister or the MEC responsible for air quality in a province
may in terms of section 50 or 51 make regulations necessary for
implementing and enforcing approved priority area air quality management
plans, including -
(a) funding arrangements;
(b) measures to facilitate compliance with such plans;
(c) penalties for any contravention of or any failure to comply with
such plans; and
(d) regular review of such plans.
Part 2: Listing of activities resulting in atmospheric emissions
Listing of activities
21. (1) The Minister or the MEC responsible for air quality in a
province may, by notice in the Gazette -
(a) publish a list of activities which results in atmospheric emissions
which have or are likely to have a significant detrimental effect on
the environment, including health, social conditions, economic
conditions, ecological conditions or cultural heritage; or
(b) amend the list by -
(i) adding to the list additional activities contemplated in
subsection (1);
(ii) removing activities from the list; or
(iii) making other changes to particulars on the list.
(2) A list published by the Minister applies nationally and a list
published by an MEC applies in the relevant province only.
(3) A notice referred to in subsection (1) -
(a) may establish minimum emission standards in respect of a substance
or mixture of substances resulting from a listed activity and
identified in the notice, including -
(i) the permissible amount or concentration of that substance
or mixture of substances that may be emitted; and
(ii) the manner in which measurements of such emissions must be
carried out.
(b) may contain transitional and other special arrangements in respect
of activities which are carried out at the time of their listing;
and
(c) must determine the date on which the notice takes effect.
(4) (a) Before publishing a notice in terms of subsection (1), or any
amendment to the notice, the Minister or MEC must follow a consultative
process in accordance with sections 53 and 54.
(b) Paragraph (a) need not be complied with if the notice is amended in
a non-substantive way.
Consequences of listing
22. No person may without an atmospheric emission licence issued in
terms of Chapter 5 -
(a) anywhere in the Republic carry out an activity listed on the
national list or commence with the construction of infrastructure
for the carrying out of such a listed activity; or
(b) in a province carry out an activity listed on the list applicable
in that province or commence with the construction of infrastructure
for the carrying out of such a listed activity. Part 3: Controlled
emitters
Controlled emitters
23. (1) The Minister or the MEC responsible for air quality in a
province 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, presents or is likely to present a threat to health or the
environment.
(2) Before publishing a notice in terms of subsection or any amendment
to the notice, the Minister or MEC must -
(a) follow a consultative process in accordance with sections 53 and
54;
(b) apply the precautionary principle; and
(c) consider
(i) any sound scientific information;
(ii) any risk assessments; and
(iii) the Republic's obligations in terms of any applicable
international agreements.
(3) Subsection (2) need not be complied with if the notice is amended
in a non-substantive way.
Standards for controlled emitters
24. (1) When the Minister or the MEC responsible for air quality in a
province declares an appliance or activity, or any appliance or activity
falling within a specified category, as a controlled emitter in terms of
section 23, the notice referred to in that section must establish emission
standards for such appliance or activity, which must include standards
setting the permissible amount or concentration of any specified substance
or mixture of substances that may be emitted from the controlled emitter.
(2) The Minister must by regulation in terms of section 50 prescribe
the manner in which measurements of emissions from controlled emitters must
be carried out.
Consequences of declaration
25. (1) No person may manufacture, sell or use any appliance or conduct
an activity declared as a controlled emitter unless that appliance or
activity complies with the standards established in terms of section 24.
(2) Subsection (1) applies -
(a) nation-wide in respect of an appliance or activity declared by the
Minister; or
(b) in a relevant province only, in respect of an appliance or activity
declared by the MEC responsible for air quality in that province.
Part 4: Other measures
Pollution prevention plans
26. (1) The Minister or the MEC responsible for air quality in a
province may, by notice in the Gazette -
(a) declare any substance contributing to air pollution as a priority
air pollutant; and
(b) require persons falling within a category specified in the notice
to prepare, submit to the Minister or MEC for approval and implement
pollution prevention plans in respect of a substance declared as a
priority pollutant in terms of paragraph (a).
(2) The Minister or MEC may, by written notice to a person carrying out
a listed activity and which involves the emission of a substance declared
as a priority pollutant, require that person to prepare, submit to the
Minister or MEC for approval and implement a pollution prevention plan,
whether or not that person falls within a category specified in terms of
subsection (1)(b).
(3) Pollution prevention plans must comply with requirements as may be
prescribed by the Minister or MEC by regulation in terms of section 50 or
51.
Atmospheric impact reports
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 caused, or is likely to cause, 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 an atmospheric emission licence is undertaken in terms
of section 42.
Recognition programmes
28. An air quality officer may establish a programme for the public
recognition of significant achievements in the area of pollution
prevention.
Part 5: Measures in respect of dust, noise and offensive odours
Control of dust
29. The Minister or the MEC responsible for air quality in a province
may, make in terms of section 50 or 51 make regulations prescribing -
(a) measures for the control of dust in specified places or areas,
either in general or by specified machinery or in specified
instances;
(b) steps that must be taken to prevent nuisance by dust; or
(c) other measures aimed at the control of dust.
Rehabilitation when mining operations cease
30. If a mine having regard to its known ore reserves is likely to
cease mining operations within a period of five years, the owner of that
mine must promptly notify the Minister, in writing -
(a) of the likely cessation of those mining operations; and
(b) of any plans that are in place or in contemplation for -
(i) the rehabilitation of the area where the mining operations
were conducted after mining operations have stopped; and
(ii) the prevention of pollution of the atmosphere by dust after
those operations have stopped.
Control of noise
31. The Minister or the MEC responsible for air quality in a province
may, by regulation in terms of section 50 or 51, prescribe measures for the
control of noise, either in general or by specified machinery or activities
or in specified places or areas, including for determining -
(a) a definition of noise; and
(b) the maximum levels of noise.
Control of offensive odours
32. (1) The Minister or the MEC responsible for air quality in a
province may, by regulation in terms of section 50 or 51, prescribe
measures for the control of offensive odours emanating from specified
activities.
(2) The occupier of any premises must take all reasonable steps to
prevent the emission of any offensive odour caused by any activity on such
premises.
CHAPTER 5
LICENSING OF LISTED ACTIVITIES
Licensing authority
33. (1) Metropolitan and district municipalities are charged with
implementing the atmospheric emission licensing system referred to in
section 22, and must for this purpose perform the functions of licensing
authority as set out in this Chapter and other provisions of this Act,
subject to subsections (2), (3) and (4).
(2) If a metropolitan or district municipality has delegated its
functions of licensing authority to a provincial organ of state in terms of
section 238 of the Constitution, that provincial organ of state must for
the purposes of this Act be regarded as licensing authority in the area of
that municipality.
(3) If a province has in terms of section 139 of the Constitution
intervened in a metropolitan or district municipality on the ground that
that municipality cannot or does not fulfil its obligations as licensing
authority in terms of this Act, a provincial organ of state designated by
the province must for the duration of the intervention be regarded as
licensing authority in the area of that municipality.
(4) If a municipality applies for an atmospheric emission licence, a
provincial organ of state designated by the province must be regarded as
the licensing authority for the purpose of-
(a) that application; and
(b) the implementation of this Act in relation to any licence that may
be issued to the municipality.
Application for atmospheric emission licences
34. (1) A person must apply for an atmospheric emission licence by
lodging to the licensing authority of the area in which the listed activity
is or is to be carried out, an application on the form prescribed by the
licensing authority.
(2) An application for an atmospheric emission licence must be
accompanied by -
(a) a processing fee as may be reasonably prescribed by the Minister by
regulation in terms of section 50; and
(b) any documentation and information as may be reasonably prescribed
by the licensing authority.
Procedure for licence applications
35. (1) The licensing authority -
(a) may, to the extent that it is reasonable to do so, require the
applicant, at the applicant's expense, to obtain and provide it by a
given date with -
(i) other information, in addition to the information contained
in or submitted in connection with the application;
(ii) an assessment in terms of section 24 of the National
Environmental Management Act or section 21 of the Environment
Conservation Act of the likely effect of the proposed licence
on air quality; and
(iii) an independent review of such assessment, by a person
acceptable to the licensing authority;
(b) may conduct its own investigation on the likely effect of the
proposed licence on air quality;
(c) may invite written comments from any organ of state which has an
interest in the matter; and
(d) must afford the applicant an opportunity to make representations on
any adverse statements or objections to the application.
(2) Section 24 of the National Environmental Management Act and section
21 of the Environment Conservation Act applies to all applications for
atmospheric emission licences, and both an applicant and the licensing
authority must comply with the requirements of those sections.
(3) An applicant must take appropriate steps to bring the application
to the attention of relevant organs of state, interested persons and the
public. Such steps must include the publication of a notice in newspapers
circulating in the area in which the listed activity applied for is or is
to be carried out -
(a) describing the nature and purpose of the licence applied for;
(b) giving particulars of the listed activity, including the place
where it is or is to be carried out;
(c) 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
(d) containing such other particulars as the licensing authority may
require.
Factors to be taken into account by licensing authorities
36. When considering an application for an atmospheric emission
licence, the licensing authority must take into account all relevant
matters, including -
(a) the pollution being or likely to be caused by the carrying out of
the listed activity applied for and the effect or likely effect of
that pollution on the environment, including health, social
conditions, economic conditions, cultural heritage and ambient air
quality;
(b) any practical measures that could be taken -
(i) to prevent, control, abate or mitigate that pollution; and
(ii) to protect the environment from harm as a result of that
pollution;
(c) the record of decision issued in terms of section 24 of the
National Environmental Management Act or section 21 of the
Environment Conservation Act;
(d) any relevant tradable emission scheme;
(e) whether the applicant is a fit and proper person determined in
accordance with the criteria set out in section 46;
(f) the applicant's submissions;
(g) any submissions from organs of state, interested persons and the
public; and
(h) any guidelines issued by the Minister or the MEC responsible for
air quality in the relevant province relating to the performance by
licensing authorities of their functions.
Decisions
37. (1) The licensing authority may -
(a) grant an application; or
(b) refuse the application.
(2) Any decision by a licensing authority to grant an application must
be consistent with -
(a) this Act and any other applicable national or provincial
legislation;
(b) any applicable national or provincial environmental management
policies;
(c) any decision in terms of section 24 of the National Environmental
Management Act or section 21 of the Environment Conservation Act;
(d) the national environmental management principles set out in section
2 of the National Environmental Management Act;
(e) any transitional and other special arrangements contemplated in
section 21(3)(b);
(f) any minimum standards for atmospheric emissions of identified
substances or mixtures of substances as contemplated in section
21(3);
(g) any applicable pollution prevention plan contemplated in section
26;
(h) the objectives of any applicable air quality management plan; and
(i) any ambient air quality or emission standards that have been
determined in terms of this Act.
(2) After a licensing authority has reached a decision in respect of a
licence application, it must promptly -
(a) notify the applicant;
(b) in a manner determined by the licensing authority, notify any
persons who have objected to the application; and
(c) at the request of any person referred to in paragraph (a) or (b),
give written reasons for its decision or make public its reasons.
Successful applications
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.
(2) A provisional atmospheric emission licence is subject to such
conditions and requirements -
(a) as the licensing authority may determine; and
(b) as the Minister or the MEC responsible for air quality in the
relevant province has prescribed by regulation in terms of section
50 or 51 for listed activities of the kind in question.
Issuing of atmospheric emission licences
39. (1) The holder of a provisional atmospheric emission licence is
entitled to an atmospheric emission licence when the commissioned facility
is in full compliance with the conditions and requirements of the
provisional atmospheric emission licence for a period of at least six
months.
(2) An atmospheric emission licence is subject to such conditions and
requirements -
(a) as are specified in terms of section 40
(b) as the licensing authority may determine; and
(c) as the Minister or the MEC responsible for air quality in the
relevant province has prescribed by regulation in terms of section
50 or 51 for listed activities of the kind in question.
Contents of provisional atmospheric emission licences and atmospheric
emission licences
40. (1) An atmospheric emission licence must specify-
(a) the activity in respect of which it is issued;
(b) the premises in respect of which it is issued;
(c) the person to whom it is issued;
(d) the period for which the licence is issued;
(e) the name of the licensing authority;
(f) the periods at which the licence may be reviewed;
(g) the maximum allowed concentration of pollutants that may be
discharged in the atmosphere -
(i) under normal working conditions; and
(ii) under normal start-up, maintenance and shut-down
conditions;
(h) any other operating requirements relating to atmospheric
discharges, including non-point source or fugitive emissions;
(i) point source emission measurement and reporting requirements;
(j) on site ambient air quality measurement and reporting requirements;
(k) penalties for non-compliance;
(l) greenhouse gas emission measurement and reporting requirements; and
(m) any other matters which are necessary for the protection or
enforcement of air quality.
(2) An atmospheric emission licence may -
(a) specify conditions in respect of odour and noise;
(b) require the holder of the licence to comply with all lawful
requirements of an environmental enforcement officer 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 a certified statement indicating -
(i) the extent to which the conditions and requirements of the
licence have or have not been complied with;
(ii) particulars of any failure to comply with any of those
conditions or requirements;
(iii) the reasons for any failure to comply with any of those
conditions or requirements; and
(iv) any action taken, or to be taken, to prevent any recurrence
of that failure or to mitigate the effects of that failure.
Transfer of atmospheric emission licences
41. (1) If ownership of an activity for which 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 person may apply for permission for the transfer of an
atmospheric emission licence by lodging to the licensing authority of the
area in which the listed activity is carried out, an application on the
form prescribed by the licensing authority.
(3) An application for an atmospheric emission licence must be
accompanied by -
(a) a processing fee as may be reasonable prescribed the Minister by
regulation in terms of section 50; and
(b) any documentation and information as may be reasonable prescribed
by the licensing authority.
(4) When considering an application for the transfer of an atmospheric
emission licence, the licensing authority must take into account all
relevant matters, including whether the person to whom the licence is to be
transferred is a fit and proper person determined in accordance with the
criteria set out in section 46.
Review of atmospheric emission licences
42. (1) A licensing authority must review a provisional atmospheric
emission licence or an atmospheric emission licence at intervals specified
in the licence, or when circumstances demand that a review is necessary.
(2) The licensing authority must inform the licence holder and the
relevant provincial air quality officer, in writing, of any proposed
review.
(3) For purposes of the review, an air quality officer may require the
licence holder to compile and submit an atmospheric impact report
contemplated in section 27.
Variation of atmospheric emission licences
43. (1) A licensing authority may, by written notice to the holder of
an atmospheric emission licence, vary the licence -
(a) if it is necessary or desirable to prevent deterioration of ambient
air quality;
(b) if it is necessary or desirable for the purposes of achieving
ambient air quality standards;
(c) if it is necessary or desirable to accommodate demands brought
about by impacts on socio-economic circumstances and it is in the
public interest to meet those demands;
(d) at the written request of the holder of the licence;
(e) if it is transferred to another person in terms of section 41; or
(f) if it is reviewed in terms of section 42.
(2) A variation includes -
(a) the attaching of an additional condition or requirement to a
licence;
(b) the substitution of a condition or requirement;
(c) the removal of a condition or requirement; or
(d) the amendment of a condition or requirement.
(3) If a licensing authority receives a request from the holder of a
licence in terms of subsection (1)(d), the licensing authority must require
the holder of the licence to take appropriate steps to bring the request to
the attention of relevant organs of state, interested persons and the
public if -
(a) the variation of the licence will authorise an increase in the
environmental impact regulated by the licence;
(b) the variation of the licence will authorise an increase in
atmospheric emissions; and
(c) the proposed variation has not, for any reason, been the subject of
an authorisation in terms of any other legislation and public
consultation.
(4) Steps in terms of subsection (3) must include the publication of a
notice in newspapers circulating in the area in which the listed activity
authorised by the licence is, or will be, carried out -
(a) describing the nature and purpose of the request;
(b) giving particulars of the listed activity, including the place
where it is carried out;
(c) stating a reasonable period within which written representations on
or objections to the request may be submitted, and the address or
place where representations or objections must be submitted; and
(d) containing such other particulars as the licensing authority may
require.
(5) Sections 35 and 37, read with the necessary changes as the context
may require, apply to the variation of an atmospheric emission licence.
Renewal of atmospheric emission licences
44. (1) An atmospheric emission licence may, on application by the
holder of the licence, be renewed by a licensing authority.
(2) The holder of an atmospheric emission licence must before the
expiry date of the licence apply for the renewal of the licence to the
licensing authority of the area in which the listed activity is carried
out, by lodging to the licensing authority an application on the form
prescribed by the licensing authority.
(3) An application for the renewal of a licence must be accompanied by
-
(a) a processing fee as may be reasonably prescribed Minister by
regulation in terms of section 50;
(b) proof that the relevant provincial air quality officer has been
notified of the application; and
(c) any documentation and information as may be reasonably prescribed
by the licensing authority.
(4) The holder of a provisional atmospheric emission licence may not
apply for the renewal of the provisional licence more than once.
(5) Sections 35, 37 and 40, read with the necessary changes as the
context may require, apply to an application for the renewal of an
atmospheric emission licence.
Emission control officers
45. (1) An air quality officer may require the holder of an atmospheric
emission licence to designate an emission control officer, having regard to
the size and nature of the listed activity for which the licence was
granted.
(2) 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; and
(b) take all reasonable steps to ensure compliance by the holder of the
licence with the licence conditions and requirements.
(3) Nothing in this section affects the obligations and liability of
the holder of a licence to comply with the conditions and requirements of
the licence.
Criteria for fit and proper persons
46. In order to determine whether a person is a fit and proper person
for the purposes of an application in terms of this Chapter, a licensing
authority must take into account all relevant facts, including -
(a) whether that person has contravened or failed to comply with this
Act, the Atmospheric Pollution Prevention Act or any other
legislation applicable to air quality;
(b) whether that person has held an atmospheric emission licence or
other authority under this Act, the Atmospheric Pollution Prevention
Act or any such other legislation that has been suspended or
revoked;
(c) whether that person is or was a director or manager of a company or
firm to whom paragraph (a) or (b) applies; and
(d) whether the management of the listed activity which is the subject
of the application will or will not be in the hands of a technically
competent person.
CHAPTER 6
INTERNATIONAL AIR QUALITY MANAGEMENT
Trans-boundary air pollution
47. (1) The Minister may investigate any situation which creates, or
may reasonably be anticipated to contribute to -
(a) trans-boundary air pollution; or
(b) air pollution that violates, or is likely to violate, an
international agreement binding on the Republic in relation to the
prevention, control or correction of pollution, as a result of a
substance or substances being released into the air from a source.
(2) If, after such investigation, the Minister is of the opinion that
the release of a substance into the air from a source in the Republic may
have a significant detrimental impact on air quality, the environment or
health in a country other than the Republic, the Minister may in terms of
section 50 prescribe regulations for the purposes of preventing,
controlling or correcting the releases within the Republic.
(3) Before publishing regulations referred to in subsection (2), the
Minister must consult with -
(a) the Cabinet member responsible for foreign affairs; and
(b) the MEC responsible for air quality in each of the provinces
concerned.
(4) Regulations referred to in subsection (2) may include provisions
regarding -
(a) the quantity or concentration of the substance that may be released
into the air;
(b) the manner in which and conditions under which the substance may be
released into the air, either alone or in combination with any other
substance;
(c) the maintenance of records for the administration of any regulation
made under this section;
(d) the conduct of sampling, analyses, tests, measurements or
monitoring of the substance and the submission of the results to the
Minister; and
(e) the conditions, test procedures and laboratory practices to be
followed for conducting sampling, analyses, tests, measurements or
monitoring of the substance.
(5) The Minister may, through the Cabinet member responsible for
foreign affairs, advise the government of any country that would be
affected by or benefit from the identification, notice or regulation before
it is published.
CHAPTER 7
OFFENCES AND PENALTIES
Offences
48. (1) A person is guilty of an offence if that person -
(a) contravenes a provision of section 22, 24, 25, 26, 27, 30, 32(2),
or 44;
(b) contravenes or fails to comply with a condition or requirement of
an atmospheric emission licence or a provision of Chapter 5;
(c) supplies false or misleading information in any application for an
atmospheric emission licence, or for the transfer, variance or
renewal of such a licence;
(d) supplies false or misleading information to an air quality officer;
(e) contravenes or fails to comply with a condition subject to which
exemption from a provision of this Act was granted in terms of
section 56.
(2) A person operating a controlled emitter is guilty of an offence if
specified pollutants at concentrations above the standards for such
pollutants are emitted from that controlled emitter.
(3) A person operating a listed activity is guilty of an offence if
specified pollutants at concentrations above the emission limits specified
in an atmospheric emission licence is emitted from that activity.
Penalties
49. (1) A person convicted of an offence referred to in section 48 is
liable to a fine, or to imprisonment for a period not exceeding ten years,
or to both such fine and such imprisonment.
(2) A fine in terms of subsection (1) -
(a) may not exceed an amount prescribed in terms of legislation
regulating maximum fines for criminal offences; and
(b) must be determined with due consideration of-
(i) the severity of the offence in terms of its impact, or
potential impact, on health, well-being, safety and the
environment;
(ii) the monetary or other benefits which accrued to the
convicted person through the commission of the offence; and
(iii) the extent of the convicted person's contribution to the
overall pollution load of the area under normal working
conditions.
CHAPTER 8
GENERAL MATTERS
Part 1: Regulations
Regulations by Minister
50. The Minister may or must make regulations in respect of any matter
which the Minister may or must make in terms of this Act, including
regulations, not inconsistent with this Act, regarding -
(a) any matter necessary to give effect to the Republic's obligations
in terms of an international agreement relating to air quality;
(b) matters relating to environmental management co-operation
agreements, to the extent that those agreements affect air quality;
(c) emissions, including the prohibition of emissions, from point, non-
point and mobile sources of emissions, including motor vehicles;
(d) the regulation of noise;
(e) open fires or incinerators;
(f) ozone depleting substances;
(g) codes of practice;
(h) records and returns;
(i) labelling;
(j) trading schemes;
(k) powers and duties of air quality officers;
(l) appeals against decisions of officials in the exercise of their
powers and functions in terms of the regulations;
(m) incentives to encourage change in behaviour towards air pollution
by all sectors in society;
(n) requirements in respect of monitoring;
(o) the avoidance or reduction of harmful effects on air quality from
activities not otherwise regulated in terms of this Act; or
(p) any other matter necessary for the implementation of this Act.
Regulations by MECs responsible for air quality
51. The MEC responsible for air quality management in a province may
make regulations for the province, not inconsistent with this Act, in
respect of any matter which the MEC may or must make in terms of this Act,
including a matter referred to in section 50 (c) to (p).
General
52. (1) Regulations made in terms of section 50 or 51 may -
(a) restrict or throughout prohibit any act either absolutely or
conditionally;
(b) apply -
(i) generally to the Republic or a province, as the case may
be, or only in a specified area or category of areas; or
(ii) generally to all persons or only to a specified category of
persons; or
(b) differentiate between different -
(i) areas or categories of areas; or
(ii) persons or categories of persons;
(c) incorporate by reference any code of practice or national and
international standard relating to air quality.
(2) Regulations made in terms of section 50 or 51 may provide that any
person who contravenes or fails to comply with a provision thereof is
guilty of an offence and liable on conviction to -
(a) imprisonment for a period not exceeding five years;
(b) an appropriate fine; or
(c) both a fine and imprisonment.
(3) (a) Before publishing any regulations in terms of section 50 or 51,
or any amendment to the regulations, the Minister or MEC must follow a
consultative process in accordance with sections 53 and 54.
(b) Paragraph (a) need not be complied with if the regulations are
amended in a non-substantive way.
Part 2: Consultation process
Consultation
53. (1) Before exercising a power which, in terms of a provision of
this Act, must be exercised in accordance with this section and section 54,
the Minister or MEC responsible for air quality in the province must follow
a consultative process as may be appropriate in the circumstances.
(2) The Minister must, as may be appropriate in terms of subsection (1)
-
(a) consult all Cabinet members whose areas of responsibility will be
affected by the exercise of the power;
(b) in accordance with the principles of co-operative governance as set
out in Chapter 3 of the Constitution, consult the MEC responsible
for air quality in each province that will be affected by the
exercise of the power; and
(c) allow public participation in the process in accordance with
section 54.
(3) The MEC responsible for air quality in a province must, as may be
appropriate in terms of subsection (1) -
(a) consult all members of the Executive Council whose areas of
responsibility will be affected by the exercise of the power;
(b) in accordance with the principles of co-operative governance as set
out in Chapter 3 of the Constitution, consult the Minister and all
other national organs of state that will be affected by the exercise
of the power; and
(c) allow public participation in the process in accordance with
section 54.
Public participation
54. (1) The Minister or MEC must give notice of the proposed exercise
of the relevant power -
(a) in the Gazette; and
(b) in at least one newspaper distributed nationally, or if the
exercise of the power will affect only a specific area, in at least
one newspaper distributed in that area.
(2) The notice must -
(a) invite members of the public to submit to the Minister or MEC,
within 30 days of publication of the notice in the Gazette, written
representations on or objections to the proposed exercise of the
power; and
(b) contain sufficient information to enable members of the public to
submit meaningful representations or objections.
(3) The Minister or MEC may in appropriate circumstances allow any
interested person or community to present oral representations or
objections to the Minister or MEC, or a person designated by the Minister
or MEC.
(4) The Minister or MEC must give due consideration to all
representations or objections received or presented before exercising the
power.
Part 3: Delegations and exemptions
Delegations
55. (1) The Minister may delegate to an official of the Department and
the MEC responsible for air quality in a province may delegate to an
official in the MEC's department -
(a) any of the powers or duties assigned to the Minister or MEC in
terms of this Act, excluding the power to publish or amend a
regulation in terms of section 50 or 51 or a notice in terms of
section 7 (1), 9 (1), 10 (1), 18 (1), 21 (1), 23 (1) or 26 (1); or
(b) any powers or duties reasonably necessary to assist the Minister in
exercising a power or complying with a duty assigned to the Minister
in terms of this Act.
(2) The Minister or MEC must regularly review and, if necessary, amend
or withdraw a delegation in terms of subsection (1).
(3) A delegation to an official in terms of subsection (1)-
(a) is subject to any limitations and conditions as the Minister or MEC
may impose;
(b) is subject to any limitations and conditions the Minister or MEC
may impose;
(c) may either be to a specific individual or to the holder of a
specific post in the relevant department;
(d) may authorise that official to sub-delegate, in writing, the
delegated power or duty to another official in the department, or to
the holder of a specific post in the department; and
(e) does not divest the Minister or MEC of the responsibility
concerning the exercise of the delegated power or the performance of
the delegated duty.
(4) The Minister or MEC may confirm, vary or revoke any decision taken
by an official as a result of a delegation or sub-delegation in terms of
this section, subject to any rights that may have become vested as a
consequence of the decision.
Exemptions
56. (1) Any person or organ of state may, in writing, apply for
exemption from the application of a provision of this Act to the Minister.
(2) An application in terms of subsection (1) must be accompanied by
reasons.
(3) The Minister may require an applicant applying for exemption to
take appropriate steps to bring the application to the attention of
relevant organs of state, interested persons and the public. Such steps
must include the publication of a notice in newspapers -
(a) giving reasons for the application; and
(b) containing such other particulars concerning the application as the
Minister may require.
(4) The Minister may -
(a) from time to time review any exemption granted in terms of this
section; and
(b) on good grounds withdraw any exemption.
(5) The Minister may on such conditions and limitations determined by
the Minister delegate any of the powers contained in this section to -
(a) the MEC responsible for air quality in a province; or
(b) a metropolitan or district municipality.
CHAPTER 9
MISCELLANEOUS
Repeal of legislation
57. (1) The Atmospheric Pollution Prevention Act is hereby repealed
subject to subsection (2) and (3) and section 58.
(2) Anything done or deemed to have been done under a provision
repealed by subsection (1) and which can be done in terms of a provision of
this Act must be regarded as having been done under the provision of this
Act.
(3) Anything done or deemed to have been done under a provision
repealed by subsection (1) and which can be done in terms of the
constitutional or statutory powers of a municipality, remain in force in
the area of a municipality until repealed by the municipality of that area.
Transitional arrangements in respect of registration certificates
58. (1) At the commencement of this Act all existing provisional and
permanent registration certificates issued in respect of processes
identified in Schedule 2 of the Atmospheric Pollution Prevention Act must
be deemed to be provisional atmospheric emission licences issued in terms
of this Act for a period of two years from the commencement of this Act.
(2) The national air quality officer must issue written confirmation to
holders of such registration certificates of the change in status of their
atmospheric emission authorisation within 90 days of the commencement of
this Act.
(3) The holders of a written confirmation referred to in subsection (2)
must make an application for an atmospheric emission licence within one
year of the commencement of this Act.
(4) Failure to make the necessary application within the period
provided under subsection (3) renders the provisional atmospheric emission
licence contemplated in subsection (1) null and void.
(5) The holder of a provisional atmospheric emission licence
contemplated in subsection (1) is entitled to an atmospheric emission
licence when the facility for which the licence is issued is in full
compliance with the requirements of the provisional atmospheric emission
licence.
(6) Despite subsection (5) the licensing authority may require a review
of the provisional atmospheric emission licence in terms of section 42 or a
variation as provided for in section 43 before the atmospheric emission
licence contemplated in of subsection (5) is granted.
Transitional provision regarding listed activities
59. Pending the publication of listed activities as contemplated in
section 21, the processes identified in Schedule 2 of the Atmospheric
Pollution Prevention Act must for the purposes of this Act be regarded to
be listed activities.
Transitional provision regarding ambient air quality standards
60. Pending the establishment of ambient air quality standards in terms
of sections 9, 10 or 11, the ambient air quality guidelines made in terms
of the Atmospheric Pollution Prevention Act continue to apply as follows:
(a) ambient concentrations of ozone (03) may not exceed -
(i) an instant peak of 1.25 parts per million measured at 25ø-
degrees Celsius and normal atmospheric pressure;
(ii) a one hour average of 0.12 parts per million measured at
25ø- degrees Celsius and normal atmospheric pressure;
(b) ambient concentrations of the oxides of nitrogen (NO2) may not
exceed -
(i) an instant peak of 1.4 parts per million measured at 25ø-
degrees Celsius and normal atmospheric pressure;
(ii) a one hour average of 0.8 parts per million measured at 25ø-
degrees Celsius and normal atmospheric pressure;
(iii) a twenty four (24) hour average of 0.4 parts per million
measured at 25ø- degrees Celsius and normal atmospheric
pressure and the 24 hour limit may not be exceeded more than
three times in one year;
(iv) a one month average of 0.3 parts per million measured at
250 Celsius and normal atmospheric pressure;
(v) an annual average of 0.2 parts per million measured at 250
Celsius and normal atmospheric pressure;
(c) ambient concentrations of nitrogen dioxide (NO2) may not exceed -
(i) an instant peak 0.5 parts per million measured at 250
Celsius and normal atmospheric pressure;
(ii) a one hour average of 0.2 parts per million measured at 250
Celsius and normal atmospheric pressure;
(iii) a twenty four hour average of 0.1 parts per million
measured at 250 Celsius and normal atmospheric pressure and
the 24 hour limit may not be exceeded more than three times
in one year;
(iv) a one month average of 0.08 parts per million measured at
25ø- degrees Celsius and normal atmospheric pressure;
(v) an annual average of 0.05 parts per million measured at 25ø-
degrees Celsius and normal atmospheric pressure;
(d) ambient concentrations of Sulphur dioxide (SO2) may not exceed -
(i) a ten minute average instant peak of 0.191 parts per
million measured at 25ø- degrees Celsius and normal
atmospheric pressure;
(ii) an instant peak 500 micrograms per cubic meter (g/m3)
measured at 25o Celsius and normal atmospheric pressure
(iii) a twenty four hour average of 0.048 parts per million or
125 micrograms per cubic meter (pg/m3) measured at 25ø-
degrees Celsius and normal atmospheric pressure;
(iv) an annual average of 0.019 parts per million or 50
micrograms per cubic meter (g/m3) measured at 250 Celsius and
normal atmospheric pressure;
(e) ambient concentrations of lead (Pb) may not exceed a one month
average of 2.5 micrograms per cubic meter (g/m3);
(f) ambient concentrations of particulate matter with a particle size
of less than 10 microns (p.) in size (PM 10 may not exceed -
(i) a twenty four hour average of 180 micrograms per cubic
meter (g/m3) and the 24 hour limit may not be exceeded more
than three times in one year;
(ii) an annual average of 60 micrograms per cubic meter (g/m);
(g) ambient concentrations of total suspended solids may not exceed -
(i) a twenty four hour average of 300 micrograms per cubic
meter (g/m3) and the 24 hour limit may not be exceeded more
than three times in one year;
(ii) annual average of 100 micrograms per cubic meter (g/m3).
Short title and commencement
61. This Act is called the National Environmental Management: Air
Quality Act, 2003, and takes effect on a date determined by the Minister by
notice in the Gazette.