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The eThekwini Air Quality Management By-law was published in the Provincial Gazette on the 13th of August 2020 and came into effect six months from this date (13th of February 2021). The purpose of this By-law is to give effect to the right contained in section 24 of the Constitution (everyone has the right to a healthy environment, and have the environment protected from pollution and ecological degradation, which promotes conservation and secures ecologically sustainable development) by regulating air pollution within the area of the Municipality’s jurisdiction; and  give effect to the National Environment Management: Air Quality Act, 2004 (Act No. 39of 2004) (NEMAQA) and ensure that ambient air quality standards are maintained; provide, an effective legal and administrative framework within which the Municipality can manage and regulate activities that have the potential to impact the environment, public health and wellbeing; and lastly, ensure that air pollution is avoided, mitigated or minimised.

According to Section 6 of the By-Law, any person who is wholly/partially responsible for causing air pollution or creating a risk of air pollution must prevent any potential air pollution from occurring; mitigate and remedy any air pollution that has occurred. If a person fails to comply with these measures, the Municipality may recover all reasonable costs incurred from any person that directly/indirectly contributed to the air pollution or the potential air pollution.

The Legal Mandate in Section 7 specifies that The Municipality may, by notice in the Provincial Gazette, publish local standards for emission from point (stacks/chimneys), non-point (ambient air) or mobile (vehicles) sources in the Municipality. There are no emissions limits in the eThekwini Air Quality Management By-law at present.

Section 10 stipulates that the whole area within the area of jurisdiction of the Municipality is hereby declared to be an air pollution control zone. Therefore, the Municipality can prohibit/restrict the emission of a selection of air pollutants from premises; prohibit/restrict the combustion of certain types of fuel; declare smokeless zones, in which smoke with an obscuration of more than 10 percent may not be emitted; and lastly publish guidelines regulating activities by person/s that are directly/indirectly causing air pollution in the zone.

Section 12 proscribes that dark smoke must not be emitted from any premises (not pertaining to dwellings) for a period as determined in terms of the NEMAQA. Dark smoke is defined as smoke which when measured using a light absorption meter, obscuration measuring equipment or other similar equipment, has an obscuration of 20% or greater. Where an authorised official has observed a fuel-burning equipment i.e., any furnace, boiler, heater, burner, incinerator, stack/chimney — emitting particulate emissions or dark smoke for a period of greater than that determined in terms of the NEMAQA, the authorised official may order the owner, occupier, or operator to immediately cease the operation of the fuel-burning equipment.

As per Section 13, it is an offence for a person to drive a vehicle on a public road if it emits dark smoke with an obscuration of greater than 20%. Furthermore, an authorised official may inspection/test dark smoke emissions from a vehicle. Should the test results reveal that the vehicle is emitting dark smoke the authorised official must issue the driver of the vehicle with a repair notice valid for 6 months, which indicates that the vehicle be repaired and retested within 6 months.

In accordance with Section 14, any person wishing to own/use any fuel-burning equipment on any premises must obtain fuel-burning equipment authorisation from the Municipality and pay the prescribed application fee. If this is done without authorisation, the municipality may order the removal of the fuel-burning equipment from the premises at the expense of the owner; or direct the person to pay an administrative fine not exceeding R10 000. The Municipality may take whatever steps it considers necessary to remedy the harm caused by using fuel-burning equipment on the premises and recover the costs from the responsible person/s. If there is a transfer in ownership of the fuel burning equipment, the new owner must apply to the Municipality for authorisation within 14 days of taking ownership. Where boiler/boilers are operated on the same premises, the Municipality may require the person to submit atmospheric emission reports to the Municipality.

Section 15 states that, the Municipality may give notice to any operator/owner of fuel-burning equipment at his/her own cost if dark smoke is emitted from the premises recurringly, or if the nature of the air pollutants emitted from the relevant premises is a hazard to human health or the environment.

The Reporting requirements for an owner/operator fuel burning equipment, as per Section 17, include:

(a) immediately register with the National Atmospheric Emission Inventory System and submit emission data within a period determined by the Municipality. (N.B. As per Section 28, any person who is conducting activities that are listed in Schedule “A” of this By-law or conducting activities below the threshold that is listed in the NEMAQA list of activities that result in harmful atmospheric emission must register with NAEIS and submit emission data)

(b) submit at least one calculated stack emission report per annum to the Municipality in a format as specified by the Municipality;

(c) provide any additional emission reports as may be requested by the Municipality;

(d) provide a maintenance plan per annum for all fuel-burning equipment;

(e) produce annual records of ash management and its disposal thereof;

(f) submit the first emission report to the Municipality within 12 months from the date of promulgation of this By-law (13 August 2021)

Schedule A
Acid Works
Alkali works
Ammonia work and transportation
Asphalt plant, permanent and mobile
Bitumen works,
Brick and tile works
Carbon black manufacturer
Cement products manufacturer
Chemical product processing
Chrome and Chromate works
Coal bulk storage and handling
Gas works
Hazardous substance
Metal products manufacturer
Ore processing
Pigment works
Vegetable oil extraction and processing
Waste material salvaging, collecting, sorting, shredding, storing,
Wood pulping

An owner or operator of fuel-burning equipment must keep a complaint’s register at the premises and make such register available for inspection by the Municipality.

Section 19 pertains to dwellings and stipulates that no person may emit or permit the emission of dark smoke from any dwelling which causes a health or environmental risk and/or nuisances.

Section 20 applies to open burning and/or burning of material and states that any person who intends to carry out open burning of any material on any premises, must apply to the Municipality for prior written authorisation and pay the prescribed fee. The provisions of this section do not apply to recreational outdoor barbecue or braai activities on private/public premises; small, controlled fires for cooking, heating water and other domestic purposes; sugar cane burning; and any other area or activity to which the Municipality has declared this section not to apply.

Section 21 concerns the prohibition of tyre burning and burning of rubber and other material for the recovery of metal. The Municipality may take whatever steps it considers necessary to remedy the harm caused by the burning of rubber and other material, including confiscation, and recover the reasonable costs incurred from the person responsible for causing such harm.

Section 22 stipulates that any person who conducts any activity which results in dust emissions; must adopt the best practicable environmental option to prevent and abate dust emissions into the atmosphere that may be harmful to public health and/or cause a nuisance.

Section 23 requires that any person who is in control of premises where sugarcane is cultivated and will be burnt and is not registered with any FPA (Fire Protection Agency) must limit the burning of sugarcane to certain hours and weather/atmospheric conditions.

Section 24 prohibits emissions that cause a nuisance from spray areas, spray booths, sand blasting, shot blasting, grinding, finishing, etc. Any person undertaking any of these activities must implement dust extraction control measures/control measures approved by the municipality. Section 25 permits abatement notices to be served to those causing a nuisance. If the notices are not complied with, the municipality may intervene to remedy any harm caused and may recover costs of the intervention from person/s responsible.  

According to Section 27, any person who contravenes any provision of this By-Law commits and offence and will be liable to a fine of an amount not exceeding R300 000 and/or imprisonment. In the case of a continuing offence, an additional fine of an amount not exceeding R5000 and/or imprisonment for a period not exceeding 10 days, will be imposed. In addition to imposing a fine or imprisonment, a court may order any person convicted to remedy the harm caused, pay damages for harm caused to another person or property, and install and operate equipment to mitigate the adverse effect of air emissions.

In terms of Section 29, any person may, in writing, apply to the Municipality for exemption from the application of a provision of this By-law if he/she gives substantive reasons for exemption.

Finally, Section 31 stipulates that a person whose rights are affected by a decision taken by the Municipality in terms of this By-law may appeal against that decision by giving written notice of the appeal and reasons to the municipal manager within 21 days of the date of the notification of the decision.

How can KCM assist you?

If you are within the eThekwini jurisdiction, are listed on schedule A above, your activity is named on the NEMAQA listed activities, even if you are below the threshold, and/or you operate fuel burning equipment of any size, you will need to register on NAEIS ASAP. Additionally, you need to submit an annual emissions report (based on emissions factors) to the Municipality.

Contact us via mail or call us on 061 568 5510 should you require assistance with either of the above.

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