Atmospheric Emission Licence Manual for Licensing Authorities 1

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Department of Environmental Affairs

Chief Directorate: Air Quality Management and Climate Change

Atmospheric Emission Licence: Manual for Licensing Author it ies

June 2009


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DIRECTORATE: AIR QUALITY MANAGEMENT IMPLEMENTATION SUPPORT

Contact Directorate: Air Quality Management Implementation Support

Postal address Private Bag X 447, Pretoria, 0001

Physical address Corner Pretorius and Van Der Walt Streets, Fedsure Forum Building, PretoriaTelephone (012) 310 3069


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CONTENTS

1. INTRODUCTION…………………………………………………………………………………………1

1.1. Purpose of the manual…………………………………………………………………………………..1

1.2. Structure of the manual………………………………………………………………………………….1

2. INDUSTRIAL EMISSIONS REGULATORY REGIME……………………………………………….2

2.1. Regulation under Atmospheric Pollution Prevention Act, 1965……………………………………..2

2.2. Regulation under National Environmental Management: Air Quality Act, 2004…………………...2

2.3. Transition from APPA to AQA…………………………………………………………………………..3

2.4. Promotion of access to information requirements for AELA…………………………………………3

2.5. Administrative justice requirements for AELA…………………………………………………………6

3. STEPS INVOLVED IN ISSUING AN AEL…………………………………………………………….9

3.1. Two routes through which an AEL may be granted………………………………………………….9

3.2. Route 1: Joint EIA/AEL processes……………………………………………………………………10

3.3. Route 2: AEL process…………………………………………………………………………………..17

4. TECHNICAL DECISION POINTS…………………………………………………………………….20

4.1. Deciding whether to grant a licence or not…………………………………………………………..214.2. Type of licence to issue………………………………………………………………………………..21

4.3. Technical contents of the AEL…………………………………………………………………………21

5. GUIDE TO THE CONTENTS OF AN AEL AND DRAFTING OF AN AEL………………………25

5.1. AEL application form……………………………………………………………………………………25

5.2. AEL template…………………………………………………………………………………………….52

6. BEYOND LICENSING: COMPLIANCE MONITORING AND ENFORCEMENT………………..75

6.1. Link between issuing of an AEL and compliance monitoring and

enforcement activities…………………………………………………………………………….........75

6.2. Role of EMIs in compliance monitoring and enforcement activities……………………………….75

7. AEL PROCESSING FEE CALCULATOR ADMINISTRATION PROTOCOL……………………76

7.1. Purpose of the protocol………………………………………………………………………………...76

7.2. Policy objective and legal basis……………………………………………………………………….76

7.3. AEL processing fee establishment and implementation overview………………………………...77


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7.4. AEL processing fee bands and scoring criteria……………………………………………………...78

7.5. Final scoring of the application………………………………………………………………………..83

7.6. Allocation to processing fee bands……………………………………………………………………83

7.7. AEL processing fee determination…………………………………………………………………….83

7.8. Invoicing………………………………………………………………………………………………….83

8. AIR QUALITY MANAGEMENT IMPLEMENTATION SUPPORT………………………………...83


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1. INTRODUCTION

1.1. Purpose of the manual

The purpose of the manual is to assist licensing authorities in performing the atmospheric emission

licence function under the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of2004) (AQA). The manual seeks to provide licensing authorities with a basis to the processes,procedures, intergovernmental relationships and key decisions in issuing an Atmospheric EmissionLicence. It is not the purpose of the manual to provide detail of technical or industrial processes which

result in emissions to the atmosphere.

The manual must be read with the following regulatory tools:

(a) The National Environmental Management: Air Quality Act, 2004;

(b) The National Framework for Air Quality Management in the Republic of South Africa;

(c) National Ambient Air Quality Standards;

(d) Listed Activities and Associated Minimum Emission Standards; and

(e) Atmospheric Emission Licence Fee Calculator.

1.2. Structure of the manual

The manual is divided into the following main sections:

• Section 2 provides an overview of the past and current approaches on industrialemissions regulation. It also provides an insight into the historical approach to the

regulation of emissions in South Africa and the current legislative frameworks andprocedures which guide the process. This section also sets out the legal requirementsfor licensing authorities when it comes to affording citizens of the country their right ofaccess to information, namely, the Promotion of Access to Information Act, 2000 (ActNo. 2 of 2000). The section further sets out the administrative justice legal requirements,

namely, the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

• Section 3 sets out the step-by-step guide in the atmospheric emission licence process.

• Section 4 highlights the critical technical decisions in the atmospheric emission licence

process.

• Section 5 sets out the guide in drafting a legally robust atmospheric emission licence.

• Section 6 sets out the compliance monitoring and enforcement measures that may beundertaken after an atmospheric emission licence is issued.

• Section 7 deals with the atmospheric emission licence processing fee calculatoradministration protocol. This section sets out the step-by-step guide in the determination

of the prescribed processing fee.

• Section 8 contains the contact details of the Directorate: Air Quality ManagementImplementation Support. The function of the Directorate is to assist and provide support

to all licensing authorities when performing the licensing function.


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2. INDUSTRIAL EMISSIONS REGULATORY REGIME

2.1. Regulation under Atmospheric Pollut ion Prevention Act , 1965

Before the promulgation of the AQA, air pollution was regulated in terms of the Atmospheric PollutionPrevention Act, 1965 (Act No. 45 of 1965) (APPA). The Department of Water and Environmental Affairs(DWEA) was responsible for administering the APPA. The main aim of APPA was the control of noxiousand offensive gases emitted by industrial processes (through registration certificate), the control ofsmoke and wind borne dust pollution, and emissions from diesel vehicles. The Chief Air PollutionControl Officer (CAPCO) was responsible for the implementation of the APPA.

Under APPA, all industries undertaking scheduled processes were controlled by the CAPCO throughBest Practicable Means (BPM) using permits (known as Registration Certificates). Scheduledprocesses, as set out in the Second Schedule to the APPA, are processes which emit noxious oroffensive gases. The APPA approach, with regard to industrial emissions, was largely based on point-source emission control. Hence, the BPM represents an attempt to restrict emissions while havingregard to local conditions, the prevailing extent of technical knowledge, the available control options,and the cost of abatement. The decision as to what constitutes the BPM for each individual case wasreached following discussions with the industry. A scheduled process registration certificate was thenissued.

Over the years major shortcomings in the regulation of industrial emissions under APPA were

discovered. In summary the following, among others, is a list of the APPA shortcomings:

• APPA was not in line with the Constitution allocation of function between the three spheres ofgovernment when it comes to air pollution control;

• APPA largely focuses on point source emission control that does not fully address the

cumulative impacts of air pollution;

• Lack of transparency in decision-making; and

• Inadequate compliance and enforcement mechanisms.

As a result, the AQA was promulgated in 2004 signalling a new approach on air quality governance.

2.2. Regulation under AQA

In the light of the above, the publication in May 2000 of the White Paper on Integrated Pollution andWaste Management for South Africa – A Policy on Pollution Prevention, Waste Minimisation, Impact

Management and Remediation (the IP&WM Policy), marked a turning point for pollution and wastegovernance in South Africa. From an air quality perspective, the IP&WM policy effectively sidelined APPA as it presented a complete paradigm shift from the APPA approach. Consequently, the AQA wasthus developed to reform and update air quality legislation in South Africa. The AQA, amongst itsobjectives, is to reflect the overarching sustainable development principles in the National

Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA).

The AQA was signed by the President and gazetted on 24 February 2005. On 11 September 2005 the AQA came into force, with the exclusion of sections 21, 22, 36 to 49, 51(1)(f), 51(3), 60 and 61, most ofwhich deal with the licensing of industrial emissions. The AQA presents a shift from source-based airpollution control to a receiving environment approach. Key features of the new approach to air quality

governance include:


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• Sharing of air quality governance responsibilities between national, provincial and local

government;

• Establishment of ambient air quality standards;

• Air quality management planning and reporting by all spheres of government;

• Various regulatory tools or measures made available to government for implementing andenforcing air quality management interventions in order to achieve and maintain acceptable

ambient air quality;

• Promotion of cost-optimised mitigation and management measures; and

• Access to information and public consultation.

With regard to industrial emissions, the AQA replaces the permitting of “scheduled processes” byCAPCO with the licensing of “listed activities” by metropolitan municipalities, district

municipalities and provincial environmental departments .

The ‘list of activities’ which require licences is more comprehensive than those considered under APPA and makes provision for fugitive sources. To guide the licensing process, those listed activities have associated national minimum emission standards for the criteria pollutants. These nationalminimum emission standards have been developed with the aim of managing air quality to withinacceptable levels in mind and have also considered the potential for cumulative air pollutantconcentrations occurring due to multiple sources. These emissions standards have also beendeveloped with ‘best available technology’ in mind and have involved extensive consultation withaffected and interested parties to ensure that they represent an acceptable and achievable standard for

emissions of criteria pollutants.

2.3. Transition from APPA to AQA

In order to ensure that there is a seamless transition from the APPA to AQA regarding regulation ofindustrial emissions, the DWEA has embarked on a number of “transition projects”. One of thoseprojects was the APPA Registration Certificate Review Project. The main aim of the project was toidentify the “big polluters” and begin the process of reviewing their registration certificates. The reviewprocess had two major objectives, firstly, to convert the registration certificates to have the “look andfeel” of the atmospheric emission licence and at the same time tightening the conditions of those

permits, secondly, in the process of the review capacitate the licensing authorities.

As a result, when APPA is finally repealed (11 September 2009), the reviewed registration

certificates will be converted and renewed into atmospheric emission licences under AQA. Forthose industries which were not part of the APPA Registration Certificate Review Project, theresponsibility to renew such registration certificates to atmospheric emission licences rests withthe relevant industries when the trigger is pulled by 11 September 2009. In this regard, licensingauthorities are urged to familiarise themselves with section 61 of the AQA. This section deals with thetransitional arrangements in respect of registration certificates issued in terms of APPA.

2.4. Promotion of access to information requirements for AELA1

Section 32(1) and (2) of the Constitution provides everyone with the right of access to anyinformation held by the state. The Promotion of Access to Information Act, 2000 (Act No. 2 of 2000)

1 This section is based on thePAIA and the Booklet on how to use the Promotion of Access to Information Act, 2000, produced by theSouth African Human Rights Commission.


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(PAIA) gives effect to the human right of access to information. One of the aims of PAIA is to enhancetransparency, accountability and effectiveness of government. PAIA is also applicable to publicbodies, which includes national, provincial and local government. Public bodies are legally obliged toprovide any information requested, in terms of PAIA, by a member of the public subject to certainexceptions.

2.4.1. Type of info rmation that can be requested

There is host of information that the AELA may be requested to provide, for example, minutes of airquality officers’ forum meetings; air quality management plan; allocated budget for air qualitygovernance; emissions inventory; ambient monitoring stations results; list of all listed activities beingundertaken within the AELA jurisdiction; applications for listed activities; atmospheric emission licencesand compliance monitoring inspection reports.

2.4.2. Public bodies structures

(a) Information officer

The PAIA designates the information officers at the three spheres of government. The informationofficer, at national government, is the Director-General of a specific department; at provincialgovernment, the Director-General in the Premier’s Office is the information officer of the wholeprovince; and at local government the Municipal Manager of a particular municipality is theinformation officer. The information officer is the officer to whom a request for access to information hasto be submitted. He or she will then decide whether to grant or refuse access to a record.

(b) Relevant author ity

In terms of PAIA, at national government the relevant authority of a specific department is theMinister of that department; at provinc ial government the Member of Executive Council (MEC) ofa particular department is the relevant authority; and at local government the Mayor or Speaker isthe relevant authority. This is authority to whom an appeal lodged by aggrieved person. The internalappeal process is the process whereby a requester is dissatisfied with the decision of the informationofficer or in an instance where his or her request was ignored and no response given within 30 days orextended period of 30 days.

2.4.3. Process : request for access to information

Step 1

Form A must be completed for a request to the relevant AELA. The form must be submitted to the

information officer together with payment of a request fee in the amount of R35, 00. Please note: arequester is not obl iged to give reason/s why he or she is requesting the information from the AELA.

Step 2

After receipt of the request, the information of ficer must respond to the request within 30 days. Theinformation can extend the 30 day period only once for a further 30 days , after written notification

together with reasons for such extension to the requester.

Where the request has been granted, the information officer must indicate to the requester that therequester has to pay the access fee, if any, for the time spent on search and preparation of the

information, and must state the form in which access will be given.


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In a case where information is refused, the information officer must give the requester reasons forsuch a refusal and cite the specific section relied upon under the grounds for refusal in terms of

PAIA.

Step 3

Where a request for access is simply ignored or the information officer fails to respond to therequest within 30 days or within the extended period of a further 30 days , such non-response isdeemed to be a refusal.

Where the AELA has a relevant authority in place, the requester can then lodge an internal appeal with the relevant authority, against the failure to respond by the information officer. The internalappeal must be lodged with the relevant authority within 60 days from the date upon which theinformation officer should have made a decision regarding the request. The requester mustcomplete Form B to lodge an internal appeal with the relevant authority. However, where the AELAdoes not have a relevant authority in place, the requester must make application to court against the

decision of the information officer.

Thegrounds of appeal against the decision of the information officer are, namely, where the requesteris aggrieved by the decision of the information officer not to release the requested information; thedecision of the information officer to release the information but severing parts thereof to the extent thatthe integrity of the information is compromised, in that the information no longer makes sense; theamount of access fees that the requester would have to pay; the form of access granted; or the

extension of time to deal with the request.

If the requester is dissatisfied with the decision of the relevant authority, or if the relevant authority doesnot respond to the internal appeal, the requester can apply to the court in terms of PAIA.

2.4.4. Grounds for refusal of access to informationDespite the legal obligation of AELA to give access to any information requested, the information officercan in certain circumstances refuse access to certain information. The following are, among others,grounds for refusal which an information officer of the AELA can rely on to refuse access toinformation:

(a) Mandatory protection of commercial information of a third party;

(b) Mandatory protection of certain confidential information, and protection of certain otherconfidential information of a third party;

(c) Mandatory protection of research information of third party, and protection of researchinformation.

However, PAIA provides for the “ public interest override” clause. It is a clause that states that any ofthe above information must be disclosed if the disclosure would be in the public interest. This mayinclude:

(a) Where it would reveal evidence of a failure to comply with the law;

(b) Where it would reveal a public safety or environmental risk;

(c) Any matter where the public interest clearly outweighs the harm that might be done in disclosing

such a matter.


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2.5. Adminis trative justice requirements for AELA

Section 33(1) and (2) of the Constitution provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair , and that everyone whose rights have been adverselyaffected by administrative action has the right to be given written reasons. Giving effect to the

administrative action right, the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) (PAJA)was promulgated. PAJA is applicable to administrative actions taken on a daily basis by governmentofficials. Therefore, licensing authorities decisions regarding the atmospheric emission licence processare subject to and must comply with the PAJA requirements.

Examples of environmental decisions that must comply with PAJA

The decision to refuse or grant an environmental authorisation is an administrative decision

in that it affects the rights of people and it is mandated by statute.

Other decisions that may constitute administrative actions in terms of PAJA are –

• appeal decisions in relation to environmental authorisations;

• the development of policies or guidelines that will impact on how environmentalauthorisation decisions are taken;

• a directive to cease an activity.2

The following are administrative decisions that may not be covered by PAJA, namely-

• notifications, proposals or recommendations that do not directly affect individual rights;

• decisions that are not final, e.g. preliminary steps in multi-staged decisions, unless thosepreliminary steps have serious consequences in themselves;

• internal administrative actions.

2.5.1. PAJA requirements

PAJA gives effect to the right to administrative action that is lawful, reasonable and procedurally fair andto the right to written reasons. Hence, administrative actions must comply with the following

requirements:

• Procedural fairness;

• Lawfulness; and

• Reasonableness.

2.5.2. Procedural fairness

The most important element of procedural fairness is giving every person who may be affected by thedecision an opportunity to be heard prior to the decision being taken. Affected person will have a

reasonable opportunity to be heard if that person -

2 SeeEvans and others v Llandudno / Hout Bay Transitional Metropolitan Substructure and another 2001 (2) SA 342 (C)


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• is given sufficient notice of the pending decision;

• is given sufficient information to make an informed response; and

• response has been considered before the decision is taken.

2.5.3. Lawfulness

The air quality officer’s decision must be lawful. This means that –

• the decision-maker must be authorised by legislation to make the decision or there must be a

valid delegation to that person to make the decision; and

• the decision must give effect to the general purpose of the authorising legislation.3

2.5.4. Reasonableness

The administrative decision must be reasonable or rational. This means that the air quality officer’s

decision must be reasonable in the prevailing circumstances. Practically, this means that the air qualityofficer must –

• take into account all relevant factors;

• struck a reasonable equilibrium between the different factors; and

• select reasonable means to pursue the identified legislative goal in the light of the facts before

him or her.4

Substantive fairness

Substantive fairness refers to the reasonableness of the decision. The decision must becapable of being justified in terms of the documents submitted; the submissions received;and the relevant statutes and policies in place. In an environmental authorisation there

must be a clear link between the facts; the reasoning; and the outcome, including

conditions set.

In summary, a person who may be adversely affected by an administrative decision must be given –

• adequate notice of that decision;

• a reasonable opportunity to make representations;

• a clear statement of the administrative action;

• notice of any right of review or internal appeal; and

• notice of the right to request reasons.5

3 In Corium (Pty) Ltd and others v Myburgh Park Langebaan (Pty) Ltd and others 1995 (3) SA 51 (C), the court held that theadministrator had acted unlawfully in issuing a permit, as the relevant development “was repugnant to the objects, purposes andpolicies of both the Physical Planning Act and the ECA.”

4

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others2004 (7) BCLR 687 (CC) at pages 713, para50.

5 Section 3(2) of PAJA.


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It is important for a licensing authority to consider the requirements of section 38(3) of the AQA. Thissection provides an alignment between the PAJA requirements and AQA licensing requirements.

An administrator may, in certain circumstances, depart from any of these PAJA minimum requirements,

including in situations of urgency.6

A person whose rights have been materially and adversely affected by administrative action has 90days to request written reasons for the action. Reasons must be supplied within 90 days of receipt of arequest.7

Where an administrative action is taken on review, the reviewing court may consider whether:

• the administrator acted lawfully (i.e. whether he or she was properly authorized to act);

• the administrator was biased or could reasonably be suspected of being biased;

• the administrator acted arbitrarily or capriciously;

• the action was taken for an ulterior purpose or motive or was taken in bad faith;

• the outcome was materially influenced by an error of law;

• the act was taken in a procedurally fair manner;

• the act was rational (i.e. whether there was a rational connection between the decision and theinformation before the decision-maker and whether there was a rational connection between the

purpose of the empowering provision and the decision).

Exhausting internal remedies

In terms of the PAJA requirements, one must firstly exhaust all internal remedies before taking thematter to the High Court on judicial review. Although the court can exempt a person from thisrequirement “in exceptional circumstances” and if it is “in the interests of justice”,8 generally, a personwill not be able to approach a court to review the issue or refusal of an environmental authorisation until

that person has lodged an appeal and the appeal proceedings have been concluded.9

Can a decision-maker rely on advice and a summary of relevant documents?

In Earthl ife Africa (Cape Town) v Director-General of Environmental Affairs and Tourism 10 asummary of the relevant file, rather than the full file, was sent to the decision-maker. The effect of thiswas that the submission made by Earthlife Africa was not considered by the decision-maker as the

summary of the file did not contain a summary of the submission. The court held that this was improperand that a summary must at least contain “a fair synopsis of all the points raised by the parties so thatthe repository of power can consider them in order to come to a decision.”

In theEarthlife Africa case, the court also held that it was unfair to only give an interested and affectedparty the right to comment on a draft environmental impact report (EIR) rather than on the final EIR,which went to the decision-maker.

6 Section 3(4) of PAJA.

7 Section 5 of PAJA.

8 Section 7(2)(c) of PAJA9 SeeEarthlife Africa (Cape Town) v Director-General of Environmental Affairs and Tourism 2006 (10) BCLR 1179 (C)

10 2006 (10) BCLR 1179 (C) at pages 1198 and 1199 paras 74 and 75


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All relevant information must be disclosed to the person making representations. A person does nothave to be given everything but must be given sufficient information to present and controvert evidencein a meaningful way. The person presenting should know “‘the gist’ or substance of the case that it has

to meet.”11

The use of policies and guidelines in making decisions on environmental authorisationsThe Supreme Court of Appeal has endorsed the adoption of policy guidelines by state organs to assistdecision makers in the exercise of their discretionary powers. Such guidelines are particularly usefulwhere the decision is a complex one, requiring a balancing of a range of competing interests orconsiderations. However, these policy guidelines must not be applied rigidly and inflexibly, and those

affected by the guidelines should be aware of them.12

On critical issues where a number of provinces do not have their own guidelines or policies, there maybe a need for national guidelines. If national guidelines are published, they need not be adopted byprovinces that choose to issue their own guidelines. However, unpublished guidelines or draft guidelines

or policies cannot be taken into account in making a decision.13

Socio-economic conditions and commercial interests

An administrator can take into account socio-economic factors as well as environmental factors.14 However, no person can bring review proceedings under environmental legislation to protect a

commercial rather than an environmental interest.15

3. STEPS INVOLVED IN ISSUING AN ATMOSPHERIC EMISSION LICENCE (AEL)

3.1. Two ‘routes’ through which an AEL may be granted

The AEL process is guided by the following important principle:

The process for consideration of all issues related to an AEL has, for most cases, beenlinked to the Environmental Impact Assessment process. Thus, in most cases the process

is a ‘interrelationship’ with the EIA process and thus involves two ‘authorities’:

• The EIA Competent Authori ty (EIA-CA)

• The Atmospheric Emission Licensing Authority (AELA)

Thus, the principle route through which an AEL is issued will be via a joint process, run in associationwith an EIA process. The interrelationship between the EIA and AEL processes is set out, in Figure 8, in

the National Framework for Air Quality Management.

11 Earthlife Africa case at page 1192 para 51

12 MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd and Another 2006 (5) SA 483 (SCA) at page491, para 19.

13 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 (7) BCLR 687 (CC) at page 717, para61

14

BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs 2004 (5) SA 124 (W). 15 All the Best Trading cc t/a Parkville Motors and others v SN Nayagar Property Development and Construction and others 2005 (3)

SA 396 (T).


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There are two possible ‘routes’ through which an AEL may be obtained, namely:

• AEL process running parallel with the EIA process (joint process); and

• AEL process (carried out without the EIA process).

3.2. Route 1: Join t EIA / AEL Processes

3.2.1. When is it applicable?

This process must be followed in all applications for an AEL for a new facility which will involve a listedactivity, and in all applications for a change or amendment to the existing AEL.

From an air quality perspective, this process is applicable in the following cases:

• Section 37 AQA: development of a new facility;

• Section 37 AQA: new ‘process’ within an existing facility which will result in a ‘listed activity’

being carried out;

• Section 46(3) AQA: change to emission rates, raw materials which may increase emission

levels of key pollutants for listed activities; and

• Section 46(3) AQA: any other changes or amendment of the existing AEL.

3.2.2. AEL appli cation process

In these cases the applicant must submit an application to:

• The EIA-CA for an environmental authorisation; and

• The AELA for an atmospheric emission licence.

For the AEL process, the relevant metropolitan municipality or district municipality is the licensingauthority, except in a situation where the municipality has delegated its licensing function to theprovince, the province has intervened in terms of section 139 of the Constitution or where themunicipality is the applicant for an AEL. In such circumstances, the relevant provincial environmental

department is the licensing authority.

For the EIA process, the competent authority is either the DWEA or provincial environmentaldepartment depending on the size and nature of the proposed development. However, regarding

proposed activities around mining areas, the Department of Minerals is the competent authority for suchEIA applications16.

3.2.3. EIA-AEL procedural relationship

There are three main principles which underpin the relationship between the EIA and AEL processes.

Firstly, the EIA process must proceed and inform the AEL process. This is a logical sequence forvarious reasons:

16 In terms of the National Environmental Management Amendment Act, 2008 (Act No. 62 of 2008), the Minister of Minerals andEnergy will be the competent authority for a period of 18 months from the date of commencement of the Amendment Act. Thereafter,the Minister of Environmental Affairs and Tourism will be competent authority for EIA around mines.


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• The EIA process considers all potential environmental impacts – not only the impacts ofatmospheric emissions. As a result, the EIA activity could result in significant impacts (otherthan those on the atmosphere) which could result in a negative Record of Decision (RoD) thusno need to issue an AEL;

•

The EIA process may require the submission of a Specialist Air Quality Impact AssessmentStudy which should provide information on all the various requirements of AQA and will provide

the AELA with all the critical information needed when assessing the AEL application;

• TheEIA environmental authorisation may contain conditions which may be pertinent to the

AEL; and

• The EIA process will require comprehensive opportunities for public participation and inputwhich will also contribute to the understanding of public concerns and comments on the

atmospheric impacts of the proposed development or activity.

Secondly, there must only be one information gathering process for the two processes. Thus all

information required for the AEL process must be gathered through the EIA process – be it technicalinformation or input from public participation. This will ensure that a duplication of effort is avoided andalso that the information required by the AELA is gathered through the much more comprehensive

process followed under the EIA process. This is particularly the case for public participation.

Thirdly, there should be a jo int review of information related to atmospheric impacts by the EIA-CAand the AELA. This is a recommendation from the National Framework and is one which maystrengthen the effectiveness of the EIA-AEL procedural relationship and may promote good workinginter-governmental relations. Due to the nature of the activity, the legal onus is on the applicant to ensure that all interested and affected parties are involved in the review and consideration of the

relevant information during the EIA process.

Note: AELA must play an ‘active’ role in the EIA process

Whilst the EIA process happens first, it is important that the AELA plays a full and activepart in consideration of the EIA decision and review of information submitted as part of

the ‘atmospheric impact’ element of the EIA application. In other words, the AELA must beconfident that it can proceed to issue the AEL once an Environmental Authorisation has

been granted. There should be no instances where an EIA has been approved and the

AELA then finds that the EIA has not considered an atmospheric issue or impact

sufficiently to allow an AEL to be granted. It is thus up to the AELA to ensure that itparticipates actively in the EIA consideration and approval process to ensure that the EIA

process ‘covers’ all the issues which must be addressed in order for an AEL to be issued

once the EIA Environmental Authorisation has been granted.

3.2.4 Key steps of the EIA-AEL procedural relationship

The diagram below describes the interrelationship between the EIA-AEL processes and is taken fromthe National Framework for Air Quality Management in South Africa.


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The steps below expand on the diagram in order to provide detailed guidance for the AELA. They focuson the role of the AELA.

Step 1: Applications

It is the legal responsibility of the applicant to compile and submit two applications:

• An EIA application – which should be submitted to the relevant EIA-CA, in accordance with theEIA regulations; and

• An AEL application – which should be submitted to the relevant AELA, in accordance with the

AQA requirements.

Step 2: Initial communication between EIA-CA and AELA

Note: It is the legal responsibility of the applicant, in terms of the EIA regulations, to give notice, inwriting of the proposed application to any organ of state which has jurisdiction in respect of any aspect

of the activity.Upon receipt of an application, the EIA-CA and/or AELA should check whether the respectiveapplications comply with the legal requirements in terms of NEMA EIA Regulations and AQA and must

also check whether the AELA or EIA-CA visa-a-versa received an application.

In either of these cases, the AELA should contact the relevant EIA-CA to check whether an EIAapplication has been submitted, if the EIA-CA has not already contacted the AELA in this regard.

At this initial stage, it is recommended that the EIA-CA and AELA discuss the joint process that is to befollowed and the stages at which communication must take place between them. It will also be importantto discuss the legislated turnaround timeframes involved for each step of the process, and to identify the

stages at which the AELA must participate in consideration and review of information. At this stage, itwould also be in the spirit of co-operative governance to share information and/or application documentsto ensure that both have an opportunity to view and understand all the information submitted via bothprocesses.

Step 3: Consideration of the applications

At this stage, the EIA-CA and AELA will each review the information submitted by the applicant withintheir respective applications.

In terms of the AEL, the AELA must check the contents of the applications in order to:

• Confirm that all necessary information has been provided;

• Identify any missing information and request provision of this information by the applicant; and

• Identify any information that it may need to check/verify at a later site visit.

The AELA should then discuss its findings with the EIA-CA prior to acknowledging receipt of theapplication and/or requesting any outstanding information (this will allow the EIA-CA to note theadditional information required and to keep abreast of any shortfalls in the AEL application process

which may also inform the EIA application).

Upon receipt of additional information requested, the AELA should also forward such information to theEIA-CA for information.


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Similarly, if the EIA application is missing information which may relate to the impact on the atmosphereand would therefore be of use to the AELA, such information, once requested and received by the EIA-

CA should be forwarded to the AELA.

Note: The legislated turnaround timeframes for EIA-CA & AELA to acknowledge receipt of the

application, if the application is in order or reject the application, if it is not in order, is 14 days ofreceipt of the application.

Step 4: EIA phase I

This phase includes the basic assessment report, scoping reports, environmental impact assessmentreports, specialist reports and reports on specialised processes and initial public participation.

At this stage, the process follows the initial phase of the EIA process in accordance with the EIAregulations whereby the applicant carries out the following:

• Submission of a basic assessment reports (a basic assessment is a stand alone process

followed when it is not necessary to do an EIA.);

• Compilation of scoping reports, Plan of Study for Environmental Impact Report and

identification of required specialised studies;

• Initial public participation;

• Review and finalisation of scoping report and plan of study for Environmental Impact Report;

and

• Submission of above to the EIA-CA.

Upon receipt of the above, the EIA-CA is expected to inform the AELA that it has received the requireddocuments and between them, the two authorities should arrange a date / time to review parts of these

documents.

It is recommended that during this initial phase, the AELA should carry out a site visit to verify theinformation that has been provided in the AELA and EIA applications, and to be familiar with the site andthe potential air quality issues. Such a site visit may also allow the AELA to represent fully all issueswhich relate to the AEL application and to determine whether the applicant have fully captured andconsidered all relevant issues and information.

Step 5: Joint consideration of the scoping reports and plan of study

At this stage, the EIA-CA and the AELA should sit together to cooperatively consider the ScopingReports and the Plan of Study with a view to determining whether the reports should be accepted (thusallowing the applicant to proceed to the next phase of the EIA process) or whether amendments to thereports are required, such as the provision of additional information or verification of information

provided.

From the point of view of the AELA, it must be confident that the reports provide the basis for answeringall the concerns which must be addressed before both the EIA Environmental Authorisation and

AEL can be issued . The specific factors to be taken into account in the AEL process are set out insection 39 of the AQA and paragraph 5.5.3 of the National Framework. These requirements mustbe kept in mind by the AELA throughout its involvement in the EIA process so that it can informthe EIA-

CA if additional information or analysis of the EIA application is required in order to provide the insightrequired by the AEL that the applicant has satisfied the AEL requirements in their application. The AELA


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will also have to raise and check whether these requirements have be complied with, later in the EIAprocess once the specialised reports, impact report and management plan have been produced (see

step 7 below).

In addition, at this step the AELA must ensure that the rather ‘obvious’ step of identifying a Specialist

Ai r Qual it y Impact Assessment Report for completion in the next step of the EIA process has beenflagged by the applicant within the Plan of Study and that the proposed contents of this report willaddress all the factors the AELA must take into consideration before both the EIA Environmental Authorisation and AEL can be issued. The National Framework, in paragraph 5.5.3, sets out the key

requirements of the specialist report.

Following the consideration of the reports, the EIA-CA and AELA may require amendments to be madeand once satisfied that these have been carried out, they can accept the reports and notify the applicant

of such decision.

Note: The legislated turnaround timeframes for EIA-CA is 30 days of receipt, to either accept orreject the scoping report or plan of study.

Step 6: EIA Phase II

At this stage, the applicant proceeds to the second phase of the EIA process. The tasks include:

• Prepare an environmental impact assessment report;

• Prepare environmental management plan;

• Prepare specialist studies (including a specialist air quality impact assessment study); and

• Conduct phase II of the public participation process.

Once completed, these reports must be submitted to the EIA-CA. The EIA-CA should inform the AELAthat is has received the reports, and as indicated earlier, times and dates for joint consideration of thesereports are agreed. Therefore, as recommended by the National Framework, it would be in the spirit of

co-operative governance for both authorities to jointly review the reports.

Step 7: Joint consideration of the environmental impact assessment report, environmental

management plan and specialists studies

This step is similar in nature to step 5 above, i.e. the EIA-CA and AELA jointly consider the detailedenvironmental impact assessment report, environmental management plan and specialist air quality

impact assessment report.

Important for the AEL process is for the AELA to ensure that it is satisfied that the reports and specialiststudy under consideration contain all the information required to enable it to fully assess the impact ofthe proposed activity to the atmosphere, and that it complies with the requirements contained in section39 of AQA. Please note: if the AEL feels that, based on the EIA information, it would not issue an AEL –then the EIA should not be granted as there should never be an instance where an EIA is issued but an AEL is later refused. Thus, the AELA must be satisfied at this point that all the information it needs tomake a decision on the AEL application has been submitted by the applicant.

It is also important for the EIA-CA and AELA to assess whether the specialist air quality impactassessment report comply with the requirements set out in paragraph 5.5.3 of the National Framework,

and the NEMA EIA regulations.


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Note: The legislated turnaround timeframes for EIA-CA is 60 days of receipt, to either accept orreject the environmental impact assessment report, environmental management plan or

specialist studies .

Step 8: Environmental authorisation decision

The EIA-CA, in terms of the NEMA EIA Regulations, has 45 days, after accepting the reports andstudies, to either grant the environmental authorisation in respect of all or part of the activity applied for;or refuse the environmental authorisation in respect of all or part of the activity.

Step 9: Issuing or refusal of an AEL

In terms of section 40(3) of the AQA, if the step above results in the issuing of an Environmental Authorisation, then the AELA has 60 days from the date of issue of the Environmental Authorisation to

make a decision in respect of the AEL application.

If an EIA Environmental Authorisation is not granted then the application for the AEL becomes

irrelevant , as the development or activity will not have been given the necessary environmentalauthorisation to proceed.

In a situation where the Environmental Authorisation is granted then the AELA can proceed toconsider the AEL application. The AELA has two options:

(a) Issue a provisional AEL (which in time will be converted to a final AEL); or

(b) Issue a final AEL.

The provisional AEL must, in terms of section 41(2) of the AQA, be issued subject to certainconditions and requirements as the AELA may determine, and/or as the Minister or MEC has

prescribed for the listed activity of the kind in question. It is the responsibility of the AELA to ensurethat whatever condition or requirement relevant to air quality, which where agreed to during the EIAprocess, are included in the provisional AEL.

In terms of section 40(4) of the AQA and in accordance with the administrative justice requirements, the

AELA must, within 30 days , once it has reached a decision on the AEL application:

(a) Notify the applicant of the decision, and give written reasons if the application wasunsuccessful;

(b) In a manner determined by the AELA, notify any persons who have objected to theapplication; and

(c) At the request of any person who has objected to the application, give written reasonsfor its decision or make public its reasons.

In deciding whether to grant or refuse an application, the AELA must assess the application againstthe sections 39 and 40 of the AQA. Section 39 sets out the relevant matters that must be taken intoaccount by the AELA when considering an application. Section 40 provides a checklist of matters that

must guide the decision of the AELA during the licensing process.

The process through which the application is considered and how the information in the application formis used in drafting the contents of the AEL is technical in nature, and thus Section 5 of the Manual

provides the technical guidance on the AEL licensing process.


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3.3. Route 2: AEL Process (without EIA process)

3.3.1. When is it applicable?

This process is applicable in the following cases:

• Transfer of an existing AEL to new owners (section 44 of the AQA); and

• Renewal of an existing AEL where the renewal does not result in the variation or amendment of

the existing AEL (section 47 of the AQA).

3.3.2. Appl ication procedure

In each of the abovementioned cases, the applicant must submit its completed application form to therelevant AELA.

3.3.3 Key steps in the AEL licensing procedure

3.3.3.1 Transfer of an existing AEL to new owners (section 44 of the AQA)

Step 1: Application for the transfer

In terms of section 44, the applicant must apply, in the prescribed application form, to the relevant AELA. In this type of application, section 44 is applicable. The application must be accompanied by

additional documentation and the prescribed processing fee.

Step 2: Checking of application for compliance with formal requirements

Upon receiving the application, the AELA must check the following:

- Whether the application is accompanied by the prescribed transfer processing fee;

- Proper description of previous owners and new owners; and

- Proper description of new owners, contact details, physical postal addresses.

If the application does not comply with the abovementioned requirements and / or contains insufficientinformation, the AELA must inform the applicant. Any additional information that the AELA may requiremust be requested at this stage. The AELA must indicate in the letter to the applicant that, failure tocomply with the above requirements and / or legal request from the AELA, may result in refusal of the

application.

The suggested turnaround time for AELA to acknowledge receipt and/or requesting any furtherinformation from the applicant is 14 days after the receipt of the application.

Step 3: Notification of the interested person and the public regarding the application for atransfer

In terms of section 44(4) of the AQA, the applicant is required to take certain steps to bring theapplication to the attention of the interested person and the public. Section 44(4)(b) fully sets out therequirements.

It is important to note that the AELA cannot process the application until such requirements havebeen fulfilled . It may be vital for the AELA to insist on the applicant submitting proof regarding

compliance with section 44(4)(b) requirements.


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Step 4: Consideration o f the application

The AELA must proceed to consider the application after the following requirements are compliedwith:

- Application form properly completed;

- Outstanding additional information submitted;

- Proof whether the application was brought to the attention of interested and affected parties;

- Proof whether objections were lodged or not; and

- Prescribed transfer processing fee paid.

When considering an application for a transfer, the AELA is required to take into account whether theperson to whom the licence is to be transferred is a fit and proper person as contemplated in section49 of the AQA . In determining whether a person is a fit and proper person, the provisions of section 49

are applicable.

Step 5: Decision

If all of the abovementioned requirements are met, the AELA must transfer the AEL to the new owners.This is implemented by recording the necessary changes and issuing the new owner with an amended

AEL with effect from date of issue.

What happens if the applicant does not meet the fit and proper person test?

Unfortunately, the AQA does not provide clear answers. However, they may be two opt ions availableto the AELA. Firstly, the AELA can refuse the application. The basis of refusing the application can be

the failure of the new owner to meet the requirements of a fit and proper person. However, the AELAruns the risks of being challenged on the administrative justice requirements. Secondly, the AELA mayapprove the application subject to certain strict conditions that the new owner may have to comply with.This must be additional conditions to the existing licence conditions. The AELA must determine suchadditional conditions. Again, if there were objections to the application, the AELA runs the risks of beingchallenged on the administrative justice requirements by an interested and/or affected party.

The AELA must weight its options.

The suggested turnaround time to issue an amended AEL is 10 days after the submiss ion of allrequired information.

3.3.3.2 Renewal of an existing AEL (section 47 of the AQA)

NOTE: It is important for all AELA to note that the type of application anticipated here are allapplications that are due for renewal after expiry , and those applications in terms of thetransitional arrangements as contemplated in section 61 of the AQA. All holders of provisionalregistration certificates / AEL, at the time of the repeal of the APPA, i.e. 11 September 2009, have aperiod of two years to apply fo r a renewal of their licences to AEL . All holders of final registrationcertificates, at the time of the repeal of the APPA, i.e. 11 September 2009, have a period of threeyears to renew their registration certificates into AEL . Failure by the applicant to comply with

section 61 will result in those licences being invalid after 2 and 3 years respectively.


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Step 1: Application for a renewal

Before the expiry date of the licence, the applicant must submit to the relevant AELA an application torenew its AEL. Sections 38, 40, 43 and 47 of the AQA are applicable to the application for a renewal ofthe licence. These sections set out the legal requirements that the applications for renewal must comply

to.Step 2: Checking of application for compliance with legal requirements

Upon receiving the application, the AELA must check the following:

- Whether the application is accompanied by the prescribed processing fee;

- Whether all relevant sections of the application form has been completed; and

- Proof that the relevant provincial air quality officer has been notified of the application.

If the application does not comply with any of the abovementioned requirements and/or contains

insufficient information, the AELA must inform the applicant accordingly. Any additional information thatthe AELA may require must be requested at this stage. The AELA must indicate in the letter to theapplicant that, failure to comply with the above requirements and / or legal request from the AELA, may

result in the refusal of the application.

The suggested turnaround time for AELA to acknowledge receipt and/or requesting any furtherinformation from the applicant is 14 days after the receipt of the application.

Step 3: Notification of t he relevant organs of state, interested persons and the public regarding

the appl ication

In terms of section 38(3) of the AQA, the applicant is required to take certain steps to bring theapplication to the attention of the relevant organ of state, interested persons and the public.

It is important to note that the AELA cannot process the application unti l such requirements havebeen fu lfilled and that no objections have been received against the application. It may be vital for the AELA to insist on the applicant submitting proof regarding compliance with section 38(3)(b)requirements.

Step 4: Consideration of the application

The AELA must proceed to consider the application after the following requirements are compliedwith:

- Application form properly completed;

- Outstanding additional information submitted;

- Proof whether the application was brought to the attention of interested and affected;

- Proof whether objections were lodged or not; and

- Prescribed processing fee paid.

If the AELA is satisfied that all the required information has been submitted, then it can proceed toconsider and take a decision on the application.


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Step 5: Decision

The AELA has two options, namely, (a) to grant an application ; or (b) refuse an application.

In terms of section 40(2) of the AQA, any decision of the AELA to grant an application must beconsistent with certain factors. AELA are urged to carefully consider those issues as set out in section

40(2) of the AQA.

It is important for the AELA to note that if they refuse an application for renewal that its decision mustbe based on technically sound reasons . Failure to comply with these requirements will result in itsdecision being challenged on judicial r eview. Section 40(2) requirements provide a good basis for such

technical reasons.

The suggested turnaround time to issue a renewed AEL is 60 days after the submission of allrequired information.

4. ECHNICAL DECISION POINTS

Within the AEL process – there are three key technical decision points where the AELA mustconsider all relevant guidance, policies, norms and standards and conditions relevant to the application.

These are:

• Whether to issue a license or not;

• If the answer is ‘Yes’ – decide what type of license should be issued (provisional or final AEL);

• If a license is to be issued – make technical decisions related to:

o The emission standards applicable to the listed activity;

o Compliance timeframes with applicable emission standards; and

o Specific conditions to be included in the licence.

This sequence of decisions is illustrated in the Figure below and detailed guidance on ‘how’ to make

these decisions is provided in the following sections.

Set Emission LimitsSet timeframes for

complianceDraft other conditions

AEL application has beenReceived and Considered

Should the AEL be

awarded?

DecisionPoint

If no – follow prescribed

procedures for communicating

and informing applicant ofdecision No Yes

Decision

PointWhat type of licenseShould be granted

Provisional

AEL

AELDecision

Point

Figure: Technical decision points involved in the AEL process


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4.1. Deciding whether to grant a licence or not

The precursor to this decision will have been determined through the joint EIA/AEL process. Theprinciple is as follows:

• If an EIA Environmental Authorisation is granted, then the AEL will be granted (unless therehas been a serious flaw in the EIA process which has overlooked significant atmospheric

impacts which are then raised later in the AEL process);

• If an EIA Environmental Author isation is refused, then an AEL will not be issued; and

• Continuous non-compli ance with existing AEL conditions where the application for renewalof an existing licence may be refused. Such a decision will be based on the findings of thecompliance monitoring and inspection reports.

4.2. Type of licence to issue

There are two options:

• Provisional AEL; and

• Final AEL.

Aprovisional AEL is issued to a new activity (not in existence yet) and will be converted later into final AEL when the commissioned facility has been in full compliance with the conditions and requirements of

the provisional AEL for a period of at least 6 months.

The final AEL includes specific conditions to be complied with within a specific timeframe. The AEL, interms of the National Framework, is valid for a period of 5 years .

4.3. Technical content of the AEL

4.3.1. Setting emiss ion standards

This is the crux of an AEL that involves specific sequence of thought and consideration of technicaldocuments and information. Thus, there are two important legal documents that must be considered

when setting emission standards in an AEL:

• Listed Activities and national minimum emission standards (section 21 notice in terms of

AQA); and

• National ambient air quality standards (section 9 notice in terms of AQA).

The AEL is a key regulatory tool for managing the ambient air quality in a particular area. Thus, whensetting emission standards for an activity, it is important to understand the levels of the pollutants in theambient air and national ambient air quality standards. Therefore, it is important to understand thepotential impact of the existing and/or potential emissions from the applicant’s activity on the ambientstandards and how these relate to other potential sources in the area.


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Figure: Setting emission standards for an AEL must consider both the national minimumemission s tandards for the criteria pollutant concerned plus ambient levels, national ambient air

quality standards for the criteria pollutant concerned.

In summary, where ambient concentrations of a particular criteria pollutant exceed the national ambientair quality standard – an acceptable intervention on the part of the AELA will be the review of AELs inthe area, with the main aim of revising the emission standards for the problematic polluters and to make

those stricter, and strict enforcement of the AEL conditions.

With this context in mind, there are a series of technical decision-making steps the AELA must followwhen setting emission standards for certain criteria pollutants:

Step 1: Refer to the Listed Activities and Associated National Minimum Emission Standards(Section 21 Notice). This is a legal document that has the force of law.

From the section 21 notice, the AELA must identify the relevant activity and the emission standards foreach criteria pollutant relevant to the activity being considered and note any other conditions associated

with such pollutants.

This is the starting point in the emission standards setting decision and these standards can now be

technically examined within the context of ambient air conditions and standards.

The section 21 notice is arranged by listed activity and for each activity outlines:

• Description of the listed activity;

• Minimum emission standards for point source emissions:

o Identifies substances or mixture of substances resulting from the listed activity;o Establish emission standards for these substances or mixture of substances – for both new

and existing plants;o Establish the methods for the measurement of the emissions;

o Provides for the compliance timeframes for both the new and existing plants with theemission standards;

Emission StandardsFor criteria pollutants

Existing ambient levels of thepollutant &

Ambient Air Quality Standards&

Air Quality Management Plan


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• Transitional and other special arrangements. This includes specific requirements for certain listed

activities.

The figure below provides an example of a section 21 notice and the annotations indicate theinformation to be used in setting emission standards within the AEL.

1. Category of Listed Activity

Number : 4 Category Title Metallurgical Industry

2. Listed Activity

Being an activi ty which results in atmospheric emissions and which the Minister reasonably believes have or

may have a significant detrimental effect on the environment, including heath, social conditions, economic

condit ions, ecological conditions or cultural heritage as contemplated in section 21(1)(a) of the Act

Number : 4.17 Category Title Precious and base metal production and refining

Description The production or processing of precious and associate base metals

Size: All installations

3. Minimum Emission Standards for Point Source Emissions

Being the minimum emission standards for emissions from a single identifiable source and fixed location of

atmospheric emission in respect of substances or mixture of substances resulting from a listed activity

including the permissible amount, volume, emission rate or concentration of that substance or mixture of

substances that may be emitted and the manner in which measurements of such emissions must be carried

out as contemplated in section 21(3) of the Act

Substance or mixture of substances

Mg/Nm 3 under standard

conditions of 273 Kelvinand 101.3 kPa

Manner in which measurement ofemissions must be carried out

Common Name Chemical Symbol New PlantExistingPlan

Particulate Matter Not applicable 50 50

Sulphur Dioxide SO2 400 400

Chlorine Cl2 50 50

Nitrogen Oxides Nox 300 500

Hydrogen Chloride HCl 30 30

Total Fluorides HF 30 30

Appropriate Method selected fromTable 1

4. Transitional and Others Special Arrangements

Being transitional and other special arrangements in respect of activities which are carried out at the time of

list ing as contemplated by Section 21(3)(b) of the Act

Requirement ApplicationCompliance

Date

Facilities possessing nickel and its compounds shall report theemissions thereof (including the health impact of suchemissions) to the licensing authority annually

All facilities operating these activitiesFrom date ofpublication

Use these figures to set initial draftemission standards (which may be lateramended by consideration of ambient

air levels and standards.Include the ‘measurement’ instructions

as a condition of the AEL.

Include this informationas conditions and to set

compliance timeframes.


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Step 2(a): Are there any provincial emission standards which have been set for the criteria pollutantunder consideration that are stricter than the national standards?

If so – these should be used and taken forward into the next step of the process.

If not – then the national standards are applicable.

Step 2(b): Are there any local emission standards which have been set for the criteria pollutant underconsideration that are stricter than the national and provincial standards?

If so – these should be used and taken forward into the next step of the process.

If not – then the national standards are applicable.

Step 3: With all the relevant information for the listed activity/key pollutants to hand – collate allrelevant ambient air quality documentation and extract information related to the existing ambient

concentrations and any standards which have been set for these pollutants.

These documents should include:

• National Ambient Air Quality Standards;

• If the activity is undertaken at a declared priority area, then the AELA must consider theobjectives of the gazetted Air Quality Management Plan in relation to the AEL;

• If the AEL application is for a ‘review’ AEL, an Atmospheric Impact Report should be requestedfrom the applicant by the AELA and should include all the prescribed legal requirements in

terms of section 30 of the AQA; and

• The AEL application.

Step 4: For each listed activity and there are criteria pollutants to be regulated - compareemission standards with ambient information to determine the permissible emission standards

for the AEL in question.

The key decision to make is whether the emission standards is adequate in the context of theambient concentrations of the criteria pollutants, or whether these concentrations and the likely

cumulative impact of the applicant’s emissions warrant strict permissible emission s tandards.

4.3.2. Setting of compliance timeframes

The section 21 notice provides for the compliance timeframes for the national minimum emissionstandards for all the listed activities. Where the AEL incorporate the section 21 notice national emissionstandards, the compliance timeframes as set out in the section 21 notice must be recorded in the AEL.

4.3.3. Specific conditions

Specific conditions relevant to the listed activity in question may be included in the AEL, taking guidancefrom the section 21 notice. These conditions typically include monitoring and reporting requirements.


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5. GUIDE TO THE CONTENTS OF AN AEL AND DRAFTING OF AN AEL

The purpose of this section is to provide a practical exercise to draft an AEL, based on the informationsubmitted by the applicant in the application form. As a result, this section includes copies of the AEL

templates and set of comments to explain:

• The information to be included in the AEL;

• The reason for this information – and how it will be used by the AELA; and

• The source of this information (who should provide it).

5.1. AEL Appl ication Form

The AEL application form must be completed by the applicant and submitted to the AELA. All supportinginformation required in the application form must be provided by the applicant. The information in the

application form is then used by the AELA to draft the AEL as set out in Section 5.2.

Please note: All comments and examples are provided in blue and aims to explain the informationrequired and what it means.


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REPUBLIC OF SOUTH AFRICA

APPLICATION FORM FOR AN ATMOSPHERIC EMISSION LICENCE / PROVISIONAL ATMOSPHERIC EMISSION LICENCE IN TERMS OF CHAPTER 5 OF THE NATIONAL

ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT, 2004 (ACT NO. 39 OF 2004)

This page must be completed and signed by the highest on-site authorising person.

Name of Enterprise:

Declaration of accuracy of information provided:

Application for an atmospheric emission licence / provisional atmospheric emission licence as

envisaged in chapter 5 of the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of

2004).

I, , declare that the information provided

in this application or attached to the application is, to the best of my knowledge, in all respects factually

true and correct. I am aware that the supply of false or misleading information in the application form is

a criminal offence in terms of section 51(1)(f) of the Act.

Signed at on this day of

SIGNATURE

CAPACITY OF SIGNATORY


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Please complete all sections. Mark with an X in spaces where applicable. If the space providedis insufficient, the required information may be submitted in the form of a memorandum. Attachrequired maps and sketches. Graphics must be clear, labelled and, where applicable, should

include a true north arrow and scale.

1. TYPE OF APPLICATION

Application for:

New application: means an application, in terms of section 37 of the Act, for an entirely new facility to beconstructed;

Renewal application: means an application, in terms of section 47 of the Act, to renew the RC / AEL that hasexpired. This type of application also caters for the applications to be lodged during the transitional arrangementperiod (section 61: transitional arrangements in respect of registration certificates issued in terms of the APPA);

Transfer application : means an application, in terms of section 44 of the Act, to transfer an existing AEL to newowners;

Review application : means an application, in terms of section 45 of the Act, to review an existing AEL. This typeof application is mostly as a result of either an increase in production or change in releases i.e. change in controlequipment.

New Application Transfer Application

Renewal Application Review Application

Current Atmospheric Emission Licence Number (if

applicable):

List of all current Registration Certificate numbers held

by the applicant i.e. 1131/1; 464/1; 464/2; 464/3


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2. ENTERPRISE INFORMATION

Entity Name: Full Name of Company

Trading as: Only if trading under a different name

Type of Entity, e.g. Company/CloseCorporation/Trust, etc:

Company/Close Corporation/TrustRegistration Number (RegistrationNumbers if Joint Venture):

Registered Address:

Postal Address:

Telephone Number (General):

Fax Number (General):

Industry Type/Nature of Trade: Petrochemical sector, pulp and paper sector or platinumindustry

Name of the Landowner/s or Landlord/s: Registered owner of the land

Name of Mortgage Bondholder/s (if any):

Deeds Office Registration Number ofMortgage Bond:

Land Use Zoning as per Town PlanningScheme:

Industrial/residential/commercial

Land Use Rights if outside Town PlanningScheme:

Responsible Person Name or EmissionControl Officer (if applicable)

Responsible Person Designation

Telephone Number

Cell Phone Number

Fax Number

E-mail Address

After Hours Contact Details


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3. SITUATION AND EXTENT OF PLANT

3.1. Location and Extent of Plant

3.2. Descript ion of Surrounding Land Use (within 5 km radius)

Provide a description of the surrounding land use within a 5 km radius, specifically noting the names and

proximity of residential and commercial areas in relation to the site of the works.

The industry is to provide a general description of the land use surrounding the facility.

E.g. the residential area of Pudimo is located approximately 2 km to the north of Company X facility with

commercial farming to the south about 500m away. Company X falls within an industrial site with Company Zand Company Y located directly east and west of the site, respectively.

Attach map(s), satellite image(s) and/or aerial photograph(s) detailing location of premises in relation tosurrounding community.

The maps should preferably be in both electronic format and hard copy format showing the entire site with the

areas surrounding the site, thus a regional map / aerial photo.

Physical Address of the

Licenced Premises:

Description of Site (Where NoStreet Address):

e.g.: Portion 163 of the Klipplaatdrift 601 IQ District of Vereeniging

Property Registration Number

(Surveyor-General Code):

Coordinates (latitude,longitude) of ApproximateCenter of Operations (DecimalDegrees):

Latitude: e.g. 27.930428 S

Longitude: e.g. -26.689485 E

Coordinates (UTM) of Approximate Center ofOperations:

UTM reference – Grid Zone: e.g. WGS 84

North-south:

East-west:

Extent (km²): e.g.: 0.516 km²

Elevation Above Mean SeaLevel (m)

e.g.: 1445m

Province: e.g.: Gauteng

District/MetropolitanMunicipality:

e.g.: Sedibeng District Municipality

Local Municipality: e.g.: Emfuleni Local Municipality

Designated Priority Area (ifapplicable):

e.g.: Vaal Triangle Priority Area


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4. NATURE OF PROCESS

4.1. Process Descript ion

Please provide a detailed description of the entire production process including reference to the overall balancesheet of inputs, outputs and emissions at the site of the works.

This is a process description to enable the AEL to understand exactly the entire process at the site entail andwhere sources of atmospheric emissions might be.

4.2. Listed Activities

List all Listed Activities, as published in terms of section 21 of the National Environmental Management: AirQuality Act, 2004 (Act No. 39 of 2004), proposed to be conducted at the premises in terms of this application:

This section talks to section 21 notice. The applicant must indicate here the activities, as listed in the section 21notice, which it would like undertake. These are activities that are not currently being carried out at the facility.The section must contain the activities that the applicant is applying for to undertake. Examples are includedbelow.

Listed Activi tyNumber

Category of Listed Activit y Listed Activi ty Name Listed Activi ty Descript ion

i.e. 1.1 Combustion installations Solid and liquid fuelscombustion installation

Solid and liquid fuels (incl.biomass) combustion installationsused primarily for steam raising orelectricity generation

i.e. 4.3 Metallurgical industry Primary aluminium production Primary aluminium production

i.e. 5.3 Mineral processing industry Cement production The production and cooling ofPortland cement clinker and thegrinding and blending of clinker toproduce finished cement

Despite the repeal of the Atmospheric Pollution Prevention Act, 1965 (Act No. 45 of 1965), list all Scheduled

Process(es), as was or were set out in the Second Schedule of the repealed Atmospheric Pollution Prevention

Act, 1965, currently conducted at the premises:

APPARegistration

Certificate

Number

Date ofRegistration

Certificate

ScheduledProcess Number

Scheduled Process Description

1131/1 03/04/1997 1 Sulphuric Acid Processes

464/1 16/03/1992 30 Iron and Steel Processes

464/2 15/04/1998 55 Galvanizing Processes


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4.3. Unit Processes

List all unit processes associated with the listed activities in operation at the premises by the atmosphericemission licence holder, highlighting unit processes proposed in respect of this application:

This means either a continuous process occurring non-stop or a batch process reflecting an intermittent process

(i.e. not continuous). Examples included in the table below.

Unit Process Function of Unit Process Batch orContinuous

Process

Chemical Recovery Recovery of chemicals used in the pulping of wood chips. Continuous

Boilers Burning of coal and production of steam Continuous

Sulphur Recovery Plant Decrease sulphur content Batch

Flaring Combustion of excess gas Batch

4.4. Hours of Operation

Provide the hours of operation of all unit processes associated with the listed activity / ies in operation at thepremises by the Atmospheric Emission Licence Holder, highlighting processes proposed in respect of thisapplication: Examples included in the table below. Note that even though the process might be a batch processthe plant is available 24-hours per day.

Unit Process / Plant Operating Hours

(e.g. 07h00 – 17h00)

No. Days Operation per Year

Sulphur Recovery Plant 01h00-24h00 365 days

Boilers 01h00-24h00 361days

Sulphur Recovery Plant 01h00-24h00 365 days

4.5. Graphical Process Information

Attach the following for the entire operation being undertaken at the site of the works:

• Simplified block diagram with the name of each unit process in a block; showing links between all unitprocesses or blocks. An example fo r a paper mi ll is included below :


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• Process flow chart(s) clearly indicating inputs, outputs and emissions at the site of works, including points ofpotential fugitive emissions and emergency releases. An example for a paper mi ll is included:


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• Site layout diagram (plan view and to scale) indicating location of unit processes, plants, buildings, stacks,stockpiles and roads (include true north arrow and scale). This must be preferably in electronic and hardcopy format indicating the site with all the processes, stacks, roads, stockpile areas, crushinglocations, bag houses, ESP’s etc. on the map.

NB: Indicate clearly on the above graphics the listed activity or activities applied for in this application.

Alternatively, provide additional graphics for the listed activity or activities applied for.

5. RAW MATERIALS AND PRODUCTS

Provide production and by-production rates, raw material information and emissions information.

5.1. Raw Materials Used

This requires a list of all raw materials used at a site and the quantities over a specific period. Anexample is provided in the table below.

5.2. Production Rates

This requires a list of all products resulting from the on-site processes used at a site and the quantitiesover a specific period. Products refer to any product resulting f rom a process. Thus, even if the productis directly fed into another process, it is still listed under products (viz. if Coke is produced at a site andused in the blast furnaces at the same site, it is a product. If coke is imported from another place to beused in the blast furnaces it will fall under raw materials). An example from an Iron and Steel Plant isprovided in the table below.

Raw Material Type MaximumPermitted

Consumption Rate(Volume)

DesignConsumption Rate

(Volume)

ActualConsumptionRate (Volume)

Units(quantity/period)

Fine lime stone 16 060 21 855 20 278 Tons/month

Total Ore 197 100 153 537 134 928.2 Tons/month

Silica 10 kg/ton 922.3368 855.7901 Tons/month

Dolomite 16 060 10253.39 18 326.66 Tons/month

Productio n Name MaximumProduction

Capacity Permitted(Volume)

Design ProductionCapacity (Volume)

Actual Product ionCapacity (Volume)


Coke Making Plant

Metallurgical Coke Metallurgical Coke Metallurgical Coke Metallurgical Coke MetallurgicalCoke

Ferro Alloy Coke Ferro Alloy Coke Ferro Alloy Coke Ferro Alloy Coke Ferro Alloy Coke

Blast Furnaces

Molten iron 3 600 4 200 3 454 tons/day


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This requires a list of all by-products resulting from the on-site processes and the quantities over aspecific period. By-product is a side product resulting from a process but not the main objective of thatprocess. An example from an Iron and Steel Plant is prov ided in the table below.

5.3. Energy Sources Used

This includes all energy sources ut ilised on -site, including energy purchased and off-gas from processesused within the facility.

By-Product Name MaximumProduction

Capacity Permitted(Volume)

DesignProduction

Capacity(Volume)

Actual Product ionCapacity (Volume)


Coke Making Plant

Raw Tar None specified 5 693 Tons/month

Tar Sludge None specified 90 Tons/month

Coke Breeze None specified 2 723 Tons/month

Blast Furnace

Furnace and Casthouse Dust

None specified 2 582 Tons/month

Stock house Dust None specified 1 131 Tons/month

Wet Scrubber Mud None specified 1 224 Tons/month

Granulated

Atmospheric Emission Licence Manual for Licensing Authorities 1

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