NATIONAL
ENVIRONMENT MANAGEMENT: AIR QUALITY ACT 39 OF 2004
(English text signed by the
President)
[Assented
To: 19 February 2005]
[Commencement
Date: To be proclaimed]
ACT
To
reform the law regulating air quality in order to protect the environment by
providing reasonable measures for the prevention of pollution and ecological
degradation and for securing ecologically sustainable development while
promoting justifiable economic and social 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.
WHEREAS the quality of ambient air in many areas of the Republic is not
conducive to a healthy environment for the people living in those areas let
alone promoting their social and economic advancement;
And whereas the burden of health impacts associated with polluted
ambient air falls most heavily on the poor;
And whereas air pollution carries a high social, economic and
environmental cost that is seldom borne by the polluter;
And whereas atmospheric emissions of ozone-depleting substances,
greenhouse gases and other substances have deleterious effects on the
environment both locally and globally;
And whereas everyone has the constitutional right to an environment
that is not harmful to their health or well-being;
And whereas everyone has the constitutional right to have the
environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that -
(a)
prevent
pollution and ecological degradation;
(b)
promote
conservation; and
(c) secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and social development;
And whereas minimisation of pollution through vigorous control, cleaner
technologies and cleaner production practices is key to ensuring that air
quality is improved; And whereas additional legislation is necessary to
strengthen the Governments strategies for the protection of the environment
and, more specifically, the enhancement of the quality of ambient air, in order
to secure an environment that is not harmful to the health or well-being of
people,
BE
IT THEREFORE ENACTED by the Parliament of the
Sections
5. Application of National
Environmental Management Act
6. Conflicts with other
legislation
NATIONAL FRAMEWORK AND NATIONAL,
PROVINCIAL AND LOCAL STANDARDS
8. National monitoring and
information management standards
Part 2:
National, provincial and local ambient air quality and emission standards
12. Ambient air quality and emission
measurements
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 on implementation of air
quality management plans
AIR QUALITY MANAGEMENT MEASURES
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
24. Standards for controlled emitters
25. Consequences of declaration
27. Use and prohibition of controlled fuels
28. Consequences of declaration
29. Pollution prevention plans
30. Atmospheric impact reports
Part 6:
Measures in respect of dust, noise and offensive odours
33. Rehabilitation when mining operations
cease
35. Control of offensive odours
LICENSING OF LISTED ACTIVITIES
37. Application for atmospheric emission
licences
38. Procedure for licence applications
39. Factors to be taken into account by
licensing authorities
40. Decisions of licensing authority
42. Issuing of atmospheric emission licences
43. Contents of provisional atmospheric
emission licences and atmospheric emission licences
44. Transfer of provisional atmospheric
emission licences and atmospheric emission licences
45. Review of provisional atmospheric
emission licences and atmospheric emission licences
46. Variation of provisional atmospheric
emission licences and atmospheric emission licences
47. Renewal of provisional atmospheric
emission licences and atmospheric emission licences
49. Criteria for fit and proper persons
INTERNATIONAL AIR QUALITY MANAGEMENT
50. Transboundary air pollution
OFFENCES AND PENALTIES
GENERAL MATTERS
54. Regulations by MECs responsible for air
quality
Part 3:
Delegations and exemptions
62. Transitional provision regarding listed
activities
63. Transitional provision regarding ambient
air quality standards
64. Short title and commencement
CHAPTER 1
INTERPRETATION AND FUNDAMENTAL
PRINCIPLES
1. Definitions
(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 15;
air
quality officer means an officer appointed in terms of section 14 as
an air quality officer;
ambient
air excludes
air regulated by the Occupational Health and Safety Act, 1993 (Act No. 85 of
1993);
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 an atmospheric emission licence contemplated in Chapter 5;
Atmospheric Pollution Prevention
Act
means the Atmospheric Pollution Prevention Act, 1965 (Act No. 45 of 1965);
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 No. 73 of 1989);
Gazette when used in relation to -
(a) the Minister,
means the Government Gazette;
and
(b) the MEC, means the
Provincial Gazette of the
province concerned;
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 36(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 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 No. 117 of 1998);
Municipal Systems Act means the Local
Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);
National Environmental Management
Act
means the National Environmental Management Act, 1998 (Act No. 107 of 1998);
national
framework
means the framework 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 a
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;
priority
area
means an area declared as such in terms of section 18;
priority
area air quality management plan means a plan referred to in section 19;
provisional
atmospheric emission licence means a provisional atmospheric emission licence
contemplated in Chapter
5;
this
Act
includes -
(a) the national
framework;
(b) any regulation
made in terms of this Act; 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.
2. Object of
Act
The object of this Act is
-
(a)
to protect
the environment by providing reasonable measures for -
(i) the protection and enhancement of the quality of air in the
Republic;
(ii) the prevention of air pollution and ecological degradation;
and
(iii) securing ecologically sustainable development while
promoting justifiable economic and social development; and
(b)
generally to
give effect to section
24(b) of the Constitution in order to enhance the quality of ambient air
for the sake of securing an environment that is not harmful to the health and
well-being of people.
3. General duty
of State
In fulfilling the rights
contained in section
24 of the Constitution, the State -
(a)
through the
organs of state applying this Act, must seek to protect and enhance the quality
of air in the Republic; and
(b)
must apply
this Act in a manner that will achieve the progressive realisation of those
rights.
4. Application
of Act
(1)
This Act also applies to the
exclusive economic zone and continental shelf of the Republic referred to in sections
7 and 8,
respectively, of the Maritime Zones Act, 1994 (Act No. 15 of 1994).
(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.
5. Application
of National Environmental Management Act
(1)
This Act must be read with any
applicable provisions of the National Environmental Management Act.
(2)
The interpretation and application of
this Act must be guided by the national environmental management principles set
out in section
2 of the National Environmental Management Act.
6. Conflicts
with other legislation
(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;
(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
7. Establishment
(1)
The Minister must, within two years
of the date on which this section took effect, by notice in the Gazette, establish a national
framework for achieving the object of this Act, which must include -
(a) mechanisms,
systems and procedures to attain compliance with ambient air quality standards;
(b) mechanisms,
systems and procedures to give effect to the Republics obligations in terms of
international agreements;
(c) national norms and
standards for the control of emissions from point and non-point 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; and
(g) 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 Republics 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 a 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;
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 56
and 57.
(b) Paragraph (a) need not be complied with if
the framework is amended in a non-substantive way.
8. National
monitoring and information management standards
The national framework
must establish national standards for -
(a)
municipalities
to monitor -
(i) ambient air quality;
and
(ii) point, non-point and mobile source emissions;
(b)
provinces to
monitor -
(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) the performance of organs of state in respect of air quality
management plans and priority area air quality management plans;
(iv) the impact of, and
compliance with, air quality management plans and priority area air quality
management plans;
(v) compliance with
the Republics obligations in terms of international agreements; and
(vi) access to
information by the public.
9. National
standards
(1)
The Minister, by notice in the Gazette -
(a) must identify substances or mixtures of
substances in ambient air which, through ambient concentrations,
bioaccumulation, deposition or in any other way, present a threat to health,
well- being or the environment or which the Minister reasonably believes
present such a threat; and
(b) must, in respect
of each of those substances or mixtures of substances, establish national
standards for ambient air quality, including the permissible amount or
concentration of each such substance or mixture of substances in ambient air;
and
(c) may, in respect of
each of those substances or mixtures of substances, establish national
standards for 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, apply to a notice published in terms of this section.
10. Provincial standards
(1)
The MEC 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 a threat to health,
well- being or the environment in the province or which the MEC reasonably
believes present such a threat; 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, the 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 issued under this section
may -
(a) differentiate between
different geographical areas within the province;
(b) provide for the
phasing in of its provisions; and
(c) be amended.
(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 56
and 57.
(b) Paragraph (a) need not be complied with if the
notice is amended in a non-substantive way.
11. Local standards
(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 a threat to health,
well- being or the environment in the municipality or which the municipality
reasonably believes present such a threat; 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)
A notice issued under this section
may -
(a) provide for the
phasing in of its provisions; and
(b) be amended.
(4)
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
12. Ambient air quality and
emission measurements
For the purpose of this
Chapter, the Minister must 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 form in
which such measurements must be reported and the organs of state to whom such
measurements must be reported.
INSTITUTIONAL AND PLANNING MATTERS
13. National Air Quality
Advisory Committee
(1)
The Minister may establish a National
Air Quality Advisory Committee as a subcommittee of the 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 -
(a) must determine the
composition of the Committee, including the appointment, tenure and termination
of service of members of the Committee;
(b) must determine the
conditions of appointment of members of the Committee;
(c) must determine the
functions and functioning of the Committee; and
(d) may determine any
other matter relating to the Committee.
14. Appointment of air
quality officers
(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 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)
(a) An air quality officer must perform
the duties or exercise the powers assigned or
delegated to that officer in terms
of this Act.
(b) An air quality officer may delegate a power
or assign a duty to an official in the service of that officers
administration, subject to such limitations or conditions as may be prescribed
by the Minister.
(5)
Air quality officers must co-ordinate
their activities in such a manner as may be set out in the national framework
or prescribed by the Minister.
15. Air quality management
plans
(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 contemplated in Chapter
5 of the Municipal Systems Act, an air quality management plan.
16. Contents of air quality
management plans
(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 identify and reduce the negative impact on human health
and the environment of poor air quality;
(iv) to address the
effects of emissions from the use of fossil fuels in residential applications;
(v) to address the
effects of emissions from industrial sources;
(vi) to address the
effects of emissions from any point or non- point source of air pollution other
than those contemplated in subparagraph (iii) or (iv);
(vii) to implement the
Republics obligations in respect of international agreements; and
(viii) to give effect to
best practice 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 such
other requirements as may be prescribed by the Minister.
17. Reporting on
implementation of air quality management plans
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
18. Declaration of priority
areas
(1)
The Minister or MEC may, by notice in
the Gazette, declare an area as
a priority area if the Minister or MEC reasonably believes that -
(a) ambient air
quality standards are being, or may be, exceeded in the area, or any other
situation exists which is causing, or may 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 act under subsection
(1), 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 MECs of 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.
(4)
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 56
and 57.
(5)
The Minister or MEC may, by notice in
the Gazette, withdraw the
declaration of an area as a priority area if the area is in compliance with
ambient air quality standards for a period of at least two years.
19. Management of priority
areas
(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 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 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 56
and 57;
(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)
(a) The Minister or the relevant MEC or
MECs must publish an approved plan in the
Gazette within 90 days of approval.
(b) The approved plan takes effect from the
date of its publication.
(6)
A priority area air quality
management plan must -
(a) be aimed at
co-ordinating air quality management in the area;
(b) address issues
related to air quality in the area; and
(c) provide for the
implementation of the plan by 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(5).
20. Regulations for
implementing and enforcing priority area air quality management plans
The Minister or MEC may prescribe
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.
21. Listing of activities
(1)
The Minister must, or the MEC may, by
notice in the Gazette -
(a) publish a list of
activities which result in atmospheric emissions and which the Minister or MEC
reasonably believes have or may have a significant detrimental effect on the
environment, including health, social conditions, economic conditions,
ecological conditions or cultural heritage; and
(b) when necessary,
amend the list by -
(i) adding to the list activities in addition to those
contemplated in paragraph (a);
(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 the MEC applies to the relevant
province only.
(3)
A notice referred to in subsection
(1) -
(a) must 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, volume, emission rate 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 56
and 57.
(b) Paragraph (a) need not be complied with if
the notice is amended in a non-substantive way.
22. Consequences of listing
No person may without a provisional
atmospheric emission licence or an atmospheric emission licence conduct an
activity -
(a)
listed on
the national list anywhere in the Republic; or
(b) listed on the
list applicable in a province anywhere in that province.
23. Controlled emitters
(1)
The Minister or MEC 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, present a threat to health or the environment or which the Minister
or MEC reasonably believes presents such a threat.
(2)
Before publishing a notice in terms
of subsection (1) or any amendment to the notice, the Minister or MEC must -
(a) follow a
consultative process in accordance with sections 56
and 57;
(b) apply the
precautionary principle contained in section
2(4)(a)(vii) of the National Environmental Management Act;
(c) take into account
the Republics obligations in terms of any applicable international agreement;
and
(d) consider -
(i) any sound scientific information; and
(ii) any risk assessments.
(3)
Subsection (2) need not be complied
with if the notice is amended in a non-substantive way.
24. Standards for controlled
emitters
(1)
A notice contemplated in section 23(1)
must establish emission standards, which must include standards setting the
permissible amount, volume, emission rate or concentration of any specified
substance or mixture of substances that may be emitted from the controlled
emitter.
(2)
The Minister must prescribe the
manner in which measurements of emissions from controlled emitters must be
carried out.
25. Consequences of
declaration
(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) nationwide 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: Controlled fuels
26. Controlled fuels
(1)
The Minister or MEC may, by notice in
the Gazette, declare a
substance or mixture of substances which, when used as a fuel in a combustion
process, result in atmospheric emissions which through ambient concentrations,
bioaccumulation, deposition or in any other way, present a threat to health or
the environment or which the Minister or MEC reasonably believes present such a
threat, as a controlled fuel.
(2)
Before publishing a notice in terms
of subsection (1) or any amendment to the notice, the Minister or MEC must -
(a) follow a
consultative process in accordance with sections 56
and 57;
(b) apply the
precautionary principle contained in section
2(4)(a)(vii) of the National Environmental Management Act;
(c) take into account
the Republics obligations in terms of any applicable international agreement;
and
(d) consider -
(i) any sound scientific information; and
(ii) any risk assessments.
(3)
Subsection (2) need not be complied
with if the notice is amended in a non-substantive way.
27. Use and prohibition of
controlled fuels
A notice contemplated in section 26(1)
may -
(a)
establish
standards for the use of the controlled fuel in combustion processes;
(b)
establish
standards for the manufacture or sale of the controlled fuel;
(c)
establish
specifications, including maximum or minimum levels or concentrations of the
constituents of substances or mixtures of substances, for the composition of
controlled fuels;
(d)
prohibit the
manufacture, sale or use of the controlled fuel;
(e)
differentiate
between different geographical areas;
(f)
provide for
the phasing in of its provisions; and
(g)
be amended.
28. Consequences of
declaration
(1)
No person may manufacture, sell or
use a controlled fuel unless that manufacture, sale or use complies with the
standards established in terms of section 27.
(2)
No person may manufacture, sell or
use a prohibited controlled fuel unless that manufacture, sale or use complies
with any conditions of manufacture, sale or use established in terms of section 27.
(3)
Subsections (1) and (2) apply -
(a) nationwide in
respect of a substance or mixture of substances declared by the Minister; or
(b) in a relevant
province only in respect of a substance or mixture of substances declared by
the MEC responsible for air quality in that province.
29. Pollution prevention
plans
(1)
The Minister or MEC 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 air pollutant in terms of
paragraph (a).
(2)
The Minister or MEC may, by written
notice to a person conducting a listed activity which involves the emission of
a substance declared as a priority air 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 such requirements as may be prescribed by the Minister or MEC.
30. Atmospheric impact
reports
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 had, or may have, a detrimental effect on the environment,
including health, social conditions, economic conditions, ecological conditions
or cultural heritage, or has contributed to the degradation of ambient air
quality; or
(b)
a review of
a provisional atmospheric emission licence or an atmospheric emission licence
is undertaken in terms of section 45.
31. Recognition programmes
An air quality officer may establish
a programme for the public recognition of significant achievements in the area
of pollution prevention.
32. Control of dust
The Minister or MEC may
prescribe -
(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.
33. Rehabilitation when
mining operations cease
If it is determined that 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.
34. Control of noise
(1)
The Minister may prescribe essential
national standards -
(a) for the control of
noise, either in general or by specified machinery or activities or in
specified places or areas; or
(b) for determining -
(i) a definition of noise; and
(ii) the maximum levels of noise.
(2)
When controlling noise the provincial
and local spheres of government are bound by any prescribed national standards.
35. Control of offensive
odours
(1)
The Minister or MEC may 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
36. Licensing authority
(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 the licensing authority in the area of that
municipality.
(3)
If the MEC 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 MEC must for the duration of the intervention be
regarded as the 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 MEC
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.
37. Application for
atmospheric emission licences
(1)
A person must apply for an
atmospheric emission licence by lodging with the licensing authority of the
area in which the listed activity is or is to be carried out, an application in
the form required by the licensing authority.
(2)
An application for an atmospheric
emission licence must be accompanied by -
(a) the prescribed
processing fee; and
(b) such documentation
and information as may be required by the licensing authority.
38. Procedure for licence
applications
(1)
The licensing authority -
(a) may, to the extent
that it is reasonable to do so, require the applicant, at the applicants
expense, to obtain and provide it by a given date with other information, in
addition to the information contained in or submitted in connection with the
application;
(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
22 of the Environment Conservation Act apply to all applications for
atmospheric emission licences, and both an applicant and the licensing
authority must comply with those sections and any applicable notice issued or
regulation made in relation to those sections.
(3)
(a) An applicant must take appropriate
steps to bring the application to the attention
of relevant organs of state,
interested persons and the public.
(b) Such steps must include the publication of
a notice in at least two newspapers circulating in the area in which the listed
activity applied for is or is to be carried out -
(i) describing the nature and purpose of the licence applied
for;
(ii) giving particulars of the listed activity, including the
place where it is or is to be carried out;
(iii) 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
(iv) containing such
other particulars as the licensing authority may require.
39. Factors to be taken into
account by licensing authorities
When considering an application for
an atmospheric emission licence, the licensing authority must take into account
all relevant matters, including -
(a)
any
applicable minimum standards set for ambient air and point source emissions
that have been determined in terms of this Act;
(b)
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;
(c)
the best
practicable environmental options available that could be taken -
(i) to prevent, control, abate or mitigate that pollution; and
(ii) to protect the environment, including health, social
conditions, economic conditions, cultural heritage and ambient air quality,
from harm as a result of that pollution;
(d)
section 24 of the National Environmental Management Act
and section
22 of the Environment Conservation Act and any applicable notice issued or
regulation made pursuant to those sections;
(e)
any relevant
tradable emission scheme;
(f)
whether the
applicant is a fit and proper person as contemplated in section 49;
(g)
the
applicants submissions;
(h)
any
submissions from organs of state, interested persons and the public; and
(i)
any
guidelines issued by the Minister or MEC relating to the performance by
licensing authorities of their functions.
40. Decisions of licensing
authority
(1)
The licensing authority may -
(a) grant an
application; or
(b) refuse an
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) section 24 of the National Environmental Management Act
and section
22 of the Environment Conservation Act and any applicable notice issued or
regulation made pursuant to those sections;
(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 29;
(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.
(3)
If an authorisation notice is issued
in terms of section
24 of the National Environmental Management Act or section
22 of the Environment Conservation Act in respect of an application, the
licensing authority must decide the application within 60 days of the date on
which the notice has been issued.
(4)
After a licensing authority has
reached a decision in respect of a licence application, it must within 30 days
-
(a) notify the
applicant of the decision, and give written reasons if the application was
unsuccessful;
(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 contemplated in paragraph (b), give written reasons for its decision
or make public its reasons.
41. Successful applications
(1)
If an application for an atmospheric
emission licence has been granted in terms of section 40(1)(a), the licensing authority must first issue a provisional
atmospheric emission licence to enable the 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
MEC has prescribed for listed activities of the kind in question.
42. Issuing of atmospheric
emission licences
(1)
The holder of a provisional
atmospheric emission licence is entitled to an atmospheric emission licence
when the commissioned facility has been 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
43;
(b) as the licensing
authority may determine; and
(c) as the Minister or
MEC has prescribed for listed activities of the kind in question.
43. Contents of provisional
atmospheric emission licences and atmospheric emission licences
(1)
A provisional atmospheric emission
licence and 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 amount, volume, emission rate or 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)
A 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 management inspector 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 inspector 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.
44. Transfer of provisional
atmospheric emission licences and atmospheric emission licences
(1)
If ownership of an activity for which
a provisional atmospheric emission licence or an atmospheric emission licence
was issued is transferred, the 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) A person applying for permission for
the transfer of a licence must lodge the
application with the licensing
authority of the area in which the listed activity is carried out.
(b) The application must be in the form
required by the licensing authority.
(3)
An application for the transfer of a
licence must be accompanied by -
(a) the prescribed
processing fee; and
(b) such documentation
and information as may be required by the licensing authority.
(4)
(a) An applicant must take appropriate
steps to bring the application for the transfer
of an atmospheric emission
licence to the attention of interested persons and the public.
(b) Such steps must include the publication of
a notice in at least two newspapers circulating in the area in which the listed
activity applied for is carried out -
(i) describing the reasons for the transfer of an atmospheric
emission licence;
(ii) giving particulars of the listed activity, including the
place where it is carried out;
(iii) 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
(iv) containing such
other particulars as the licensing authority may require.
(5)
When considering an application for
the transfer of a 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 as contemplated in section 49.
45. Review of provisional
atmospheric emission licences and atmospheric emission licences
(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 and the reason for such 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 30.
46. Variation of provisional atmospheric emission
licences and atmospheric emission licences
(1)
A licensing authority may, by written
notice to the holder of a provisional atmospheric emission licence or 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 44; or
(f) if it is reviewed
in terms of section
45.
(2)
The variation of a licence includes -
(a) the attaching of
an additional condition or requirement to the 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 at least two 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 or will be 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 38
and 40,
read with the necessary changes as the context may require, apply to the
variation of a licence.
47. Renewal of provisional
atmospheric emission licences and atmospheric emission licences
(1)
A provisional atmospheric emission
licence or an atmospheric emission licence may, on application by the holder of
the licence, be renewed by a licensing authority.
(2)
The holder of a 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 in the form required by the
licensing authority.
(3)
An application for the renewal of a
licence must be accompanied by -
(a) the prescribed
processing fee;
(b) proof that the
relevant provincial air quality officer has been notified of the application;
and
(c) such documentation
and information as may be required 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 38, 40 and 43, read with
the necessary changes as the context may require, apply to an application for
the renewal of a licence.
48. Emission control
officers
(1)
An air quality officer may require
the holder of a provisional atmospheric emission licence or 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 cleaner production technologies and practices;
(b) take all
reasonable steps to ensure compliance by the holder of the licence with the
licence conditions and requirements; and
(c) promptly report
any non-compliance with any licence conditions or requirements to the licensing
authority through the most effective means reasonably available.
(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.
49. Criteria for fit and
proper persons
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 whether -
(a)
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)
that person
has held a provisional atmospheric emission licence, an atmospheric emission
licence or other authority that has been suspended or revoked;
(c)
that person
has been a director or senior manager who is or was a director or manager of a
company or firm to whom paragraph (a) or (b) applies; and
(d)
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
50. Transboundary air
pollution
(1)
The Minister may investigate any
situation which creates, or may reasonably be anticipated to contribute to -
(a) air pollution
across the Republics boundaries; 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.
(2)
If the investigation contemplated in
subsection (1) reveals 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 prescribe measures to prevent, control or correct the releases
within the Republic.
(3)
Before publishing regulations under
subsection (2), the Minister must consult with -
(a) the Cabinet member
responsible for foreign affairs; and
(b) the MEC concerned.
(4)
Regulations contemplated 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 regulation before it is
published.
CHAPTER 7
OFFENCES AND PENALTIES
51. Offences
(1)
A person is guilty of an offence if
that person -
(a) contravenes a
provision of section
22, 25
or 35(2);
(b) fails to submit or
to implement a pollution prevention plan as required by section 29(1)(b)
or (2);
(c) fails to submit an
atmospheric impact report required in terms of section 30;
(d) fails to notify
the Minister as required by section 33;
(e) contravenes or
fails to comply with a condition or requirement of an atmospheric emission
licence;
(f) supplies false or
misleading information in any application for an atmospheric emission licence,
or for the transfer, variation or renewal of such a licence;
(g) supplies false or
misleading information to an air quality officer;
(h) contravenes or
fails to comply with a condition subject to which exemption from a provision of
this Act was granted in terms of section 59.
(2)
A person operating a controlled
emitter is guilty of an offence if the emissions from that controlled emitter
do not comply with the standards established under section 24(1).
(3)
A person performing a listed activity
is guilty of an offence if air pollutants at concentrations above the emission
limits, specified in an atmospheric emission licence, are emitted as a result
of that activity.
52. Penalties
(1)
A person convicted of an offence
referred to in section
51 is liable to a fine, or to imprisonment for a period not exceeding ten
years, or to both a fine and such imprisonment.
(2)
A fine contemplated in 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 persons contribution to the
overall pollution load of the area under normal working conditions.
CHAPTER 8
GENERAL MATTERS
53. Regulations by Minister
The Minister may make
regulations that are not in conflict with this Act, regarding -
(a)
any matter
necessary to give effect to the Republics 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 specific emissions, from point, non-point and
mobile sources of emissions, including motor vehicles;
(d)
open fires
and incinerators;
(e)
ozone-depleting substances;
(f)
codes of
practice;
(g)
records and
returns;
(h)
labelling;
(i)
trading
schemes;
(j)
powers and
duties of air quality officers;
(k)
appeals
against decisions of officials in the performance of their functions in terms
of the regulations;
(l)
incentives
to encourage change in behaviour towards air pollution by all sectors in
society;
(m)
requirements
in respect of monitoring;
(n)
the
avoidance or reduction of harmful effects on air quality from activities not
otherwise regulated in terms of this Act;
(o)
any matter
that may or must be prescribed in terms of this Act; or
(p)
any other
matter necessary for the implementation or application of this Act.
54. Regulations by MECs
responsible for air quality
The MEC may make regulations for the
province concerned, not inconsistent with this Act, in respect of any matter
for which the MEC may or must make regulations in terms of this Act, including
a matter referred to in section 53(c)
to (p).
55. General
(1)
Regulations made in terms of this Act
may -
(a) restrict or
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;
(c) differentiate
between different -
(i) areas or categories of areas; or
(ii) persons or categories of persons; and
(d) incorporate by
reference any code of practice or any national or international standard
relating to air quality.
(2)
Regulations made in terms of this Act
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 regulation
made in terms of this Act, or any amendment to
the regulations, the
Minister or MEC must follow a consultative process in accordance with sections 56
and 57.
(b) Paragraph (a) need not be complied with if
the regulations are amended in a non-substantive way.
56. Consultation
(1)
Before exercising a power which, in
terms this Act, must be exercised in accordance with this section and section 57,
the Minister or MEC must follow such consultative process as may be appropriate
in the circumstances.
(2)
When conducting the consultations
contemplated in subsection (1), the Minister must -
(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 57.
(3)
When conducting the consultations
contemplated in subsection (1), the MEC must -
(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 57.
57. Public participation
(1)
Before exercising a power which, in
terms of this Act, must be exercised in accordance with this section, 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 concerned.
58. Delegations
(1)
The Minister or MEC, as the case may
be, may delegate or assign to an official in their respective departments -
(a) any power or duty of the Minister or MEC
contained in this Act, excluding the power to publish or amend a regulation in
terms of section
53 or 54
or a notice in terms of section 7(1), 9(1), 10(1), 18(1), 21(1), 23(1) or 29(1); or
(b) any power or duty
reasonably necessary to assist the Minister or MEC in exercising a power or
performing a duty of the Minister or MEC.
(2)
The Minister or MEC must regularly
review and, if necessary, amend or withdraw a delegation or assignment under
subsection (1).
(3)
A delegation or assignment to an
official under subsection (1)-
(a) is subject to
such limitations and conditions as the Minister or MEC may impose;
(b) may either be to a
specific individual or to the holder of a specific post in the relevant
department;
(c) may authorise that official to subdelegate
or further assign, in writing, the power or duty concerned to another official
in the department, or to the holder of a specific post in the department; and
(d) does not divest
the Minister or MEC of the responsibility concerning the exercise of the
delegated power or the performance of the assigned duty.
(4)
The Minister or MEC may confirm, vary
or revoke any decision taken by an official as a result of a delegation or
subdelegation in terms of this section, subject to any rights that may have
become vested as a consequence of the decision.
59. Exemptions
(1)
(a) Any person or organ of state may, in
writing, apply for exemption from the
application of a provision of this
Act to the Minister.
(b) No exemption from a provision of section 9, 22 or 25 may be
granted in terms of paragraph (a).
(2)
An application in terms of subsection
(1) must be accompanied by reasons.
(3)
(a) 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.
(b) The steps contemplated in paragraph (a)
must include the publication of a notice in at least two newspapers circulating
nationally -
(i) giving reasons for the application; and
(ii) 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
60. Repeal of legislation
(1)
The legislation mentioned in the
Table in Schedule 1 is hereby repealed or amended to the extent set out in the
third column of the Table, subject to subsections (2) and (3) of this section
and section 61.
(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
that 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,
remains in force in the area of a municipality until repealed by the
municipality of that area.
61. Transitional arrangements in respect of
registration certificates issued in terms of Atmospheric Pollution Prevention
Act
(1)
(a) Despite the repeal of the
Atmospheric Pollution Prevention Act by section 60 of
this Act, a provisional
registration certificate issued in terms of that Act and which was a valid
certificate immediately before the date on which section 60
took effect, continues to be valid for a period of two years from that date,
subject to paragraph (c).
(b) During the period for which a provisional
registration certificate continues to be valid, the provisions of this Act,
read with the necessary changes as the context may require, apply in respect of
-
(i) the
holder of such a certificate as if that person is the holder of a provisional
atmospheric emission licence issued in terms of section 41(1)
of this Act for the activity for which the certificate was issued; and
(ii) the certificate as if the certificate is a provisional
atmospheric emission licence.
(c) If during the two-year period referred to
in paragraph (a) -
(i) a
provisional atmospheric emission licence is issued to the holder of a
provisional registration certificate following a revision in terms of section 45 or
an application for renewal in terms of section 47,
the certificate expires on the date of issue of the provisional licence; or
(ii) an atmospheric emission licence is issued to the holder of a
provisional registration certificate in terms of section 42(1),
the certificate expires on the date of issue of the licence.
(2)
(a) Despite the repeal of the
Atmospheric Pollution Prevention Act by section 60 of
this Act, a registration
certificate issued in terms of that Act and which was a valid certificate
immediately before the date on which section 60
took effect, continues to be valid for a period of four years from that date,
subject to paragraph (d).
(b) During the period for which a registration
certificate continues to be valid, the provisions of this Act, read with the
necessary changes as the context may require, apply in respect of -
(i) the
holder of such a certificate as if that person is the holder of an atmospheric
emission licence issued in terms of section 42(1)
of this Act for the activity for which the certificate was issued; and
(ii) the certificate as if the certificate is an atmospheric
emission licence.
(c) The holder of a registration certificate
must within the first three years of the four-year period referred to in
paragraph (a), lodge a renewal application in terms of section 47
with the licensing authority of the area in which the activity for which the
certificate was issued is carried out.
(d) (i) If the holder of a registration
certificate fails to comply with paragraph (c),
the certificate expires at
the end of the three years referred to in paragraph (c).
(ii)
If during the four-year period
referred to in paragraph (a) an atmospheric emission licence is issued to the
holder of a registration certificate following an application for renewal in
terms of paragraph (c), the certificate expires on the date of issue of the
licence.
(iii)
If during the period before the holder
of a registration certificate lodges an application for renewal in terms of
paragraph (c), an atmospheric emission licence is issued to the holder of the certificate
following a revision in terms of section 45,
the certificate expires on the date of issue of the licence. In such event
compliance with paragraph (c) falls away.
(3)
Despite the repeal of the Atmospheric
Pollution Prevention Act by section 60 of
this Act, any application for a registration certificate made in terms of that
Act which was not decided when section 60
took effect, must be proceeded with in terms of this Act as if such application
was an application for an atmospheric emission licence in terms of section 37.
62. Transitional provision
regarding listed activities
Pending the listing of activities by
the Minister in terms of section 21,
the processes identified in the Second Schedule of the Atmospheric Pollution
Prevention Act must for the purposes of this Act be regarded as activities
listed by the Minister in terms of that section.
63. Transitional provision regarding
ambient air quality standards
Until ambient air quality standards
have been established in terms of section 9, 10 or 11, the
ambient air quality standards contained in Schedule 2
apply.
64. Short title and
commencement
(1)
This Act is called the National
Environmental Management: Air Quality Act, 2004, and takes effect on a date
determined by the Minister by notice in the Gazette.
(2)
Different dates may be determined in
terms of subsection (1) for different provisions of the Act.
(Section 60)
No. and year
of Act
|
Short title |
Extent of repeal or
amendment |
|
Act
No. 45 of 1965 |
Atmospheric
Pollution Prevention Act, 1965 |
The
whole |
|
Act
No. 17 of 1973 |
Atmospheric
Pollution Prevention Amendment Act, 1973 |
The
whole |
|
Act
No. 21 of 1981 |
Atmospheric
Pollution Prevention Amendment Act, 1981 |
The
whole |
|
Act
No. 15 of 1985 |
Atmospheric
Pollution Prevention Amendment Act, 1985 |
The
whole |
|
Act
No. 107 of 1998 |
National
Environmental Management Act, 1998 |
The
amendment of section 1 by the substitution for the definitions of specific
environmental management Act and specific environmental management Acts of
the following definition: specific
environmental management Act means - (i) the National
Environmental Management: Biodiversity Act, 2003; (ii) the National
Environmental Management: Protected Areas Act, 2003; or (iii) the National
Environmental Management: Air Quality Act, 2004, and includes any regulations or other
subordinate legislation made in terms of any of those Acts;. |
(Section 63)
1. Ambient concentrations of
ozone (O3) may not exceed -
(a)
an instant
peak of 0.25 parts per million measured at 25șC and normal atmospheric
pressure; or
(b)
a one-hour
average of 0.12 parts per million measured at 25șC and normal atmospheric
pressure.
2.
Ambient concentrations
of the oxides of nitrogen (NOX) may not exceed -
(a)
an instant
peak of 1.4 parts per million measured at 25șC and normal atmospheric pressure;
(b)
a one-hour
average of 0.8 parts per million measured at 25șC and normal atmospheric
pressure;
(c)
a 24-hour
average of 0.4 parts per million measured at 25șC and normal atmospheric
pressure and the 24-hour limit may not be exceeded more than three times in one
year;
(d)
a one-month
average of 0.3 parts per million measured at 25șC and normal atmospheric
pressure; or
(e)
an annual
average of 0.2 parts per million measured at 25șC and normal atmospheric
pressure.
3.
Ambient concentrations
of nitrogen dioxide (NO2) may not exceed -
(a)
an instant
peak of 0.5 parts per million measured at 25șC and normal atmospheric pressure;
(b)
a one-hour
average of 0.2 parts per million measured at 25șC and normal atmospheric
pressure;
(c)
a 24-hour
average of 0.1 parts per million measured at 25șC and normal atmospheric
pressure and the 24-hour limit may not be exceeded more than three times in one
year;
(d)
a one-month average
of 0.08 parts per million measured at 25șC and normal atmospheric pressure; or
(e)
an annual
average of 0.05 parts per million measured at 25șC and normal atmospheric
pressure.
4.
Ambient concentrations
of sulphur dioxide (SO2) may not exceed -
(a)
a ten-minute
average instant peak of 0.191 parts per million measured at 25șC and normal
atmospheric pressure;
(b)
an instant
peak of 500 micrograms per cubic meter (”g/m3) measured at 25șC and
normal atmospheric pressure;
(c)
a 24-hour average
of 0.048 parts per million or 125 micrograms per cubic meter (”g/m3)
measured at 25șC and normal atmospheric pressure;
(d)
an annual
average of 0.019 parts per million or 50 micrograms per cubic meter (”g/m3)
measured at 25șC and normal atmospheric pressure.
5. Ambient concentrations of lead (Pb) may
not exceed a one-month average of 2.5 micrograms per cubic meter (”g/m3).
6. Ambient concentrations of particulate
matter with a particle size of less than 10 microns (”) in size (PM10)
may not exceed -
(a)
a 24-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; or
(b)
an annual
average of 60 micrograms per cubic meter (”g/m3).
7.
Ambient concentrations
of total suspended solids may not exceed -
(a)
a 24-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; or
(b)
an annual
average of 100 micrograms per cubic meter (”g/m3).