Atmospheric Emission Licence

 

South African industries are a large cause of air pollutant emissions and major fossil fuel based energy users (Thambiran, T. and Diab, R.D., 2011).

 

Air emissions licenses (AELs) are obligatory under the National Environmental Management: Air Quality Act 139 of 2004 (AQA) for activities that result in atmospheric emissions which have a significant negative environmental impact, listed in GN 893 of November 22, 2013.

 

For the AEL process, the applicable district municipality or metropolitan municipality is the licensing authority, except where the municipality has assigned the licensing function to the province or the province has intercede in terms of section 139 of the Constitution. In such conditions, the provincial environmental department concerned is the licensing authority.

 

An environmental authorisation is also required for activities that need an AEL. Depending on the nature and size of the suggested development, the competent authority is either the provincial department of environmental affairs or the national DEA (now known as DEFF). This possible shared responsibility among the spheres of government presents a prospective coordination encounter, as the AEL process is closely linked to the EIA process.

 

An AEL can be obtained through two possible routes, namely: AEL process that runs parallel with the Environmental Impact Assessment (EIA) process (combined process); and AEL process (applied for separate from the EIA process).

 

The AEL licensing authority must ensure that they are actively contributing in the EIA approval and consideration process to confirm that the EIA process covers all atmospheric results that must be addressed in order for an AEL to be issued once the EIA environmental authorisation has been granted.

 

The DEA (DEFF) has advanced procedurally with the atmospheric emission licensing processes to secure more precise coordination between the authorisation processes. The License Authorities Manual entails a joint assessment of the Environmental Impact Report and the application documentation for Atmospheric Emissions Licence by the relevant Competent Authorities (CAs).

 

The AEL process that runs parallel with the EIA process

 

  1. Pre-application

 

The applicant has the legal responsibility to compose and submit two applications: An EIA application – which in agreement with the EIA regulations of 2014 [as amended in 2017], should be submitted to the relevant EIA-CA; and an AEL application – which in accordance with the AQA requirements, should be submitted to the relevant Air Emissions Licence Authority (AELA).

 

  1. Schedule an assessment of documentation with stakeholders

 

It is proposed that the EIA-CA and AELA consider the combined process to be followed and the phases at which communication should take place between them.

 

  1. Reflexion of the applications

 

Evaluate the information submitted by the applicant within their respective applications.

 

  1. EIA phase I

 

This phase includes the basic assessment report, specialist reports, public participation, scoping reports, specialized process reports and environmental assessment reports. The report must be submitted to the EIA-CA and AELA after it was distributed for PP within 44 days following the submission of the application form.

 

  1. Joint deliberation of the plan of study and scoping reports

 

The EIA-CA and the AELA must work together to collaborate on the Plan of Study and the Scoping Reports to determine whether the reports should be accepted. After deliberation of the reports, the EIA-CA and AELA may request amendments and when they are pleased that they have been implemented, they can accept the reports and notify the applicant. The EIA-CA and AELA has 43 days after receipt of the report to review the content of the report to accept or decline the report in writing

 

  1. EIA Phase II

 

  • Produce an environmental impact assessment report;
  • Formulate an environmental management plan/programme;
  • Arrange specialist studies (including a specialist air quality impact assessment study); and
  • Conduct phase II of the public participation process.
  • Submit report to the EIA-CA.

The final report must be issued to the CA in under 106 days after the distribution for PP (South Africa, 2017:232-233).

 

  1. Combined deliberation of the EIA report, environmental management plan/programme and specialists studies

 

The AELA must ensure they are pleased that the reports and specialist studies under consideration consist of all the information needed to enable it to thoroughly evaluate the impact of the proposed activity on the atmosphere and to adhere to the requirements contained in section 39 of AQA.

 

It is vital for the EIA-CA and AELA to determine whether the air quality impact study meets the requirements of paragraph 5.5.3 of the National Framework and the NEMA EIA Regulations. The EIA-CA and AELA must contemplate, reject or accept the report after it has been issued within 107 days. The CA and AELA must recognise the receipt of the report in less than 10 days.

 

  1. Environmental authorisation decision

 

The EIA-CA, in accordance with the NEMA EIA Regulations, has 45 days, after the studies and reports have been accepted, to grant environmental authorisation in respect of the whole or partial activity applied for; or decline the environmental authorisation.

 

  1. Granting or refusal of an AEL

 

In terms of section 40 (3) of the AQA, if the above step leads to the issuance of an Environmental Authorisation, the AELA has 60 days from the date of issue of the Environmental Authorisation to make a decision regarding the AEL application.

 

In a condition where the Environmental Authorisation is approved, the AELA may continue to consider the AEL application. The AELA has two options:

 

(a) Issue a provisional AEL (which eventually will be changed to a final AEL should the applicant comply with the requirements of a provisional AEL); or

 

(b)Issue a final AEL.

 

The provisional AEL must be issued in terms of section 41 (2) of the AQA subject to particular requirements and conditions as the AELA may regulate, and / or as prescribed by the MEC or Minister for the listed activity of the type concerned. It is the AELA’s responsibility to confirm that the requirements or conditions applicable to air quality agreed upon during the EIA process are incorporated in the provisional AEL (2009, DEA).

 

AEL process (applied for separate from the EIA process)

 

This process is relevant in the following circumstances:

  • An existing AEL that is relocated to new owners (section 44 of the AQA); and
  • Renewal of a current AEL which does not result in the amendment or modification of the current AEL.

 

An existing AEL transfer to new owners (section 44 of the AQA)

 

  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.

 

  1. 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.

 

  1. 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).

 

  1. 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.

 

  1. 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 ten days after submission of all essential information.

 

An existing AEL renewal (section 47 of the AQA)

 

  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.

 

  1. 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.

 

  1. 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).

 

  1. 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 can continue to consider the application and make a decision on it if they are satisfied that all the necessary information has been submitted.

 

  1. 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.

 

The South African Atmospheric Emission Licensing & Inventory Portal (SAAELIP)

 

The SAAELIP is an online portal for Licensing Authorities in all scopes of government to issue, manage and process Atmospheric Emission Licenses (AEL) as well as track, manage and receive emission inventory data under the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004). The portal offers Licensing Authorities with the competence to:

 

  • Process and issue AEL applications online;
  • Track AEL progress and administer assignments and tasks;
  • Observe and check the processing status of all online applications;
  • Arrange licensing associated inspections and track inspection outcomes;
  • Configure processing payments required for each application;
  • Conduct online compliance reporting;
  • Track historical versions of all applications
  • Audit submitted emission inventory data; and;
  • Ease communication on the status of the emission inventory with the data supplier.

The AEL Process Timeframes