The National Environmental Management: Air Quality Act, 2004 (Act no. 39 of 2004) (NEMAQA) listed in Government Notice No. 248, Gazette No 33064 stipulates that that any facility producing air pollution – which in terms of the Act is referred to as an atmospheric emission – must ensure that they have in place an effective air quality management plan. The NEMAQA has reviewed, categorised and documented all industrial processes that have an adverse impact on ambient air quality and categorised them as Listed Activities. They are all captured in Section 21 of the NEMAQA (commonly referred to as the “Section 21 Listed Activities”). The following are categories of Listed Activities which companies must check against to find out if they require applying for an AEL. The following are ten categories that comprise the Section 21 Listed Activities:
| CATEGORY | BROAD ACTIVITY DESCRIPTION |
| 1 | Combustion Installation |
| 2 | Petroleum Industry, the production of gaseous and liquid fuels as well as petrochemicals from crude oil, coal, gas or biomass |
| 3 | Carbonization and Coal Gasification |
| 4 | Metallurgical Industry |
| 5 | Mineral Processing, Storage and Handling |
| 6 | Organic Chemicals Industry |
| 7 | Inorganic Chemicals Industry |
| 8 | Disposal of hazardous and general waste |
| 9 | Pulp and Paper Manufacturing Activities, including By-Products Recovery |
| 10 | Animal matter processing |
*Please take note that the above broad categories are divided further into subcategories which are more specific in the description of the listed activities.
If the industrial process of your company falls within any one of the above categories and sub-categories, the company must apply for an AEL if it is not already issued with an AEL/Registration Certificate. Registration Certificates were issued during the APPA and have been turned into AELs as per transitional arrangements of the NEMAQA. No person may conduct a listed activity, that triggers the respective threshold, without an AEL. The consequences of this unlawful practice are stipulated in Section 22A of the Act, which outlines a separate process which must be followed. Once the licensing authority accepts the Section 22A application, a fine may be issued to the facility for operating illegally and after payment is made, a new AEL application process can commence.
There are two possible ‘routes’ through which an AEL may be obtained, namely:
Route 1: AEL process running parallel with the EIA process (joint process)
This process must be followed in all applications for an AEL for a new facility which will involve a listed activity, 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.
In these cases the applicant must submit an application to:
- The EIA-CA (Competent Authority)for an environmental authorisation; and
- The AELA (AEL Authority) for an atmospheric emission licence.
For the AEL process, the relevant metropolitan municipality or district municipality is the licensing authority, except in a situation where the municipality has delegated its licensing function to the province, the province has intervened in terms of section 139 of the Constitution or where the municipality 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 environmental department 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 such EIA applications.
The table below summarises the key steps to be taken and timeframe for this application process:
| Process | Steps | Timeframes |
| SITE VISIT AND BASELINE ASSESSMENT | Step 1: Undertake a site visit with the clientto determine the baseline conditions of the site. Undertake a brief baseline screening using GIS Systems. | First Week of appointment (Dependent on availability) |
| PRE-APPLICATION PROCESS | Step 2: Submission of enquiry form and/or pre-application meeting with the competent authority (CA) | 1 week (Dependent on availability) |
| PUBLIC PARTICIPATION – PHASE 1 | Step 3: Commence with the Public Participation Process (this includes the notification of I&APs, adjacent neighbours, placement of signboards, advertisements, BID) | Allocate 21 days for I&APs to register |
| SPECIALIST STUDIES | Step 4: In accordance with the requirements laid out by the competent authority – specialists will be appointed to undertake the required studies | Allow 6 – 8 weeks for completion |
| SCOPING PHASE 1 | Step 5: Compilation of the draft scoping report including the baseline assessment undertaken in step 1 | 2 weeks – if information is received timeously |
| ADMINISTRATION | Step 6: Submission of application forms to the competent authority (CA) | Allow 2 weeks for acceptance. |
| PUBLIC PARTICIPATION PHASE 2 | Step 6: Submission of the Scoping Report for commenting period | Allocate 30 days for I&APs to comment |
| SCOPING PHASE 2 | Step 7: Finalisation of scoping report inclusive of comments received. Step 8: Submission of final scoping report to the competent authority (CA) | The CA has 43 days to accept or reject the Scoping Report. |
| ENVIRONMENTAL IMPACT REPORTING AND ASSESSMENT | Step 9: compilation of the draft environmental impact report (EIR) and draft environmental management Programme (EMPr) | 2 weeks – if information is received timeously |
| PUBLIC PARTICIPATION PHASE 3 | Step 10: Submission of the draft environmental impact report (EIR) and draft environmental management Programme (EMPr) for commenting period | Allocate 30 days for I&APs to comment |
| FINALISATION | Step 11: Collation of comments and responses and finalisation of draft reports. | 1 – 2 weeks (provided no major changes) |
| ADMINISTRATION AND SUBMISSION | Step 12: Submission of Final EIR and EMPr to the competent authority (CA) | Allow 14 days for acknowledgement |
| ACCEPTANCE/ REJECTION AND APPEALS | Step 13: Issuing of the environmental authorization Step 14: Issuing of the mining permit Step 15: Notification of I&APs of decision Step 16: Handling of appeals | CA has 107 days to accept/reject the final BAR. Appeals may take up to 3 months. |
| LICENSE / RIGHT | Step 17: Submission of application to relevant authority for the approval of licenses / rights. | May take up to 3 months. |
Route 2: AEL process (carried out without the EIA process)
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).
In each of the abovementioned cases, the applicant must submit its completed application form to the relevant AELA.
Key steps to be taken for the transfer of an existing AEL to new owners (section 44 of the AQA):
| STEPS | DESCRIPTION |
| STEP 1 APPLICATION FOR THE TRANSFER | The applicant must apply to the relevant AELA on the prescribed application form in terms of section 44. The prescribed processing fee and additional documentation must be accompanied by the application. |
| STEP 2 CHECK THE APPLICATION FOR FORMAL REQUIREMENTS | The AELA should confirm the following: The prescribed fee for transfer processing; Information of previous owners and new owners; and Contact details and physical mailing addresses of new owners. If the application contains insufficient information, the AELA must notify the applicant. Any additional information required by the AELA should be requested at this stage. In the letter to the applicant, the AELA must indicate that the failure of the application may result in failure to comply with the above requirements and / or legal request from the AELA. The proposed time for AELA to acknowledge receipt and / or request further information from the applicant is 14 days after receipt of the application. |
| STEP 3 NOTIFICATION OF INTERESTED AND AFFECTED PARTIES REGARDING THE TRANSFER APPLICATION | In accordance with section 44 (4) of the AQA, the applicant must follow certain steps to bring the interested party and the public’s attention to the application. Section 44 (4) (b) contains the requirements in full. It is important to note that the AELA cannot process the application until such requirements are met. It may be necessary for the AELA to insist that the applicant provide proof of compliance with the provisions of section 44 (4) (b). |
| STEP 4 CONSIDERATION OF THE APPLICATION | The AELA must continue to assess the application after the following requirements have been met: Application forms completed correctly; Outstanding information submitted; Proof whether the application has been brought to the attention of the interested and affected parties; Proof whether objections were submitted or not; and Prescribed payment processing fee. The AELA must consider whether the person to whom the license is to be transferred is a proper and suitable person as regarded in section 49 of the AQA. |
| STEP 5 DECISION | The AELA must transfer the AEL to the new owners if all the above requirements are met. The proposed time to issue an amended AEL is 10 days after submission of all essential information. |
Key steps to be taken for the renewal of an existing AEL (section 47 of the AQA)
| STEPS | DESCRIPTION |
| STEP 1 APPLICATION FOR THE RENEWAL | The applicant must apply to the relevant AELA before the expiry date of the license. Sections 38, 40, 43 and 47 of the AQA are relevant for a renewal of the licence. |
| STEP 2 CHECK THE APPLICATION FOR CONSENT WITH LEGAL OBLIGATIONS | The AELA should confirm the following: The prescribed fee for processing; The application form has been completed; and Evidence that the applicable provincial air quality officer has been informed of the application. If the application contains insufficient information, the AELA must notify the applicant. Any additional information required by the AELA should be requested at this stage. In the letter to the applicant, the AELA must indicate that the failure of the application may result in failure to comply with the above requirements and / or legal request from the AELA. The proposed time for AELA to acknowledge receipt and / or request further information from the applicant is 14 days after receipt of the application. |
| STEP 3 NOTIFICATION OF INTERESTED AND AFFECTED PARTIES REGARDING THE TRANSFER APPLICATION | In accordance with section 38 (3) of the AQA, the applicant must follow certain steps to bring the interested party and the public’s attention to the application. Section 38 (3) (b) contains the requirements in full. It is important to note that the AELA cannot process the application until such requirements are met. It may be necessary for the AELA to insist that the applicant provide proof of compliance with the provisions of section 38 (3) (b). |
| STEP 4 CONSIDERATION OF THE APPLICATION | The AELA must continue to assess the application after the following requirements have been met: Application forms completed correctly; Outstanding information submitted; Proof whether the application has been brought to the attention of the interested and affected parties; Proof whether objections were submitted or not; and Prescribed payment processing fee. |
| STEP 5 DECISION | The AELA has two possibilities, namely (a) to grant an application; or (b) refuse an application. Any decision of the AELA to grant an application must be compatible with definite factors with reference to section 40 (2) of the AQA. The AELA are requested to cautiously reflect these issues set out in section 40 (2) of the AQA. It is imperative for the AELA to note that if an application is refused for renewal, its decision must be established on technically sound reasons. The proposed time for issuing a renewed AEL is 60 days after the submission of all required information. |