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Air Quality By-law, 2020
- Published in Western Cape Provincial Gazette no. 8261 on 3 July 2020
- Commenced on 3 July 2020
- [Up to date as at 29 July 2020]
PreambleThe Council of the Bergrivier Local Municipality acting in terms of section 156(2) of the Constitution of the Republic of South Africa, 1996. Read with section 13(a) of the Local Government Municipal Systems Act, 2000 (Act No. 32 of 2000) and section 11(1) of the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) has made the Air Quality By-law hereunder.And Whereas the Bergrivier Local Municipality seeks to ensure the management of air quality and the control of air pollution within the area of jurisdiction of the Bergrivier Local Municipality and to ensure that air pollution is avoided or, where it cannot be altogether avoided, minimised and remedied.And now therefore, be it enacted by the Council of Bergrivier Local Municipality, as follows:
Part I – Intepretation and objectives
1. DefinitionsIn this By-law, except as otherwise expressly provided, or unless the context otherwise requires:-"adverse effect" means any actual or potential impact on the environment that impairs, or would impair the environment or any aspect of it to an extent that is more than trivial or insignificant;"air pollutant" means any substance (including but not limited to dust, smoke, fumes and gas) that causes or may cause air pollution;"air pollution" means any change in the environment caused by any substance emitted into the atmosphere from any activity, where that change has an adverse effect on human health or well-being or on the composition, resilience and productivity of natural or managed ecosystems, or on materials useful to people, or will have such an effect in the future;"air pollution control zone" means the geographical area to which Part Ill of the By-law is declared to apply;"Air Quality Act" means the National Environment Management: Air Quality Act, 2004 (Act No. 39 of 2004);"atmosphere" means air that is not enclosed by a building, machine, chimney or other such structure;"atmospheric emission" or "emission" means energy or substance or combination of substances emanating from a point, non- point or mobile source that results in air pollution;"authorised person" means any person authorised by the Municipality to implement any provision of this By-law;"best practicable means" means the most effective measures that can reasonably be taken to prevent, reduce or minimize air pollution, having regard to all relevant factors including among others, local conditions and circumstances, the likelihood of adverse effects, the current state of technical knowledge and the financial implications relative to the degree of environmental protection expected to be achieved by application or adoption of the measures;"boiler" means a fuel-burning apparatus or container for heating water;• Less than 10 megawatt (MW) (small boilers) falls under the mandate of the Local Municipality.• More than 10 megawatt (MW); less than 50 megawatt (MW) (controlled emitters) falls under the mandate of the District Municipality.• More than 50 megawatt (MW) (Listed activity) falls under the mandate of the District Municipality."By-law" means the Bergrivier Local Municipality Air Quality By-law;"chimney" means any structure or opening of any kind from or through which air pollutants may be emitted;"compression ignition powered vehicle" means a vehicle powered by an internal combustion compression ignition, diesel or petrol driven engine;"Constitution of South Africa" means the Constitution of the Republic of South Africa, 1996;"controlled emitter" means any appliance or activity declared as a controlled emitter in terms of section 23 of the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004);"dark smoke" means in respect of Part I of this bylaw:• smoke which has a density of 60 Hartridge smoke units or more, provided that in relation to emissions from turbo-charged compressed ignition powered engines, it means a density of 66 Hartridge smoke units or more; or• smoke which has a light absorption co-efficient of more than 2.125m, provided that in relation to emissions from turbo-charged compressed ignition powered engines, it means a light absorption coefficient of more than 2.51 m;"dust" means any solid matter in a fine or disintegrated form which is capable of being dispersed or suspended in the atmosphere;"dwelling" means any building or other structure, or part of building or structure, used as a dwelling, and any outbuildings ancillary to it, but excludes shacks and informal settlements;"environment" means the surroundings within which humans exist and that are made up of–(a)the land, water and atmosphere of the earth,(b)micro-organisms, plant and animal life;(c)any part or combination of (a) and (b) and the interrelationships among and between them; and(d)the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and well-being;"EMI" means Environmental Management Inspector"free acceleration test" means the method described in section 22 employed to determine whether vehicles are being driven or used in contravention of section 20(1);"fuel-burning equipment" means any furnace, boiler, incinerator, or other equipment, including a chimney;(a)designed to burn or capable of burning liquid, gas or solid fuel;(b)used to dispose of any material waste by burning; or(c)used to subject liquid, gas or solid fuel to any process involving the application of heat; but excluding listed activities and controlled emitters;"fumes" means any pungent or toxic vapour, gas or smoke including but not limited to diesel fumes, spray painting fumes and exhaust fumes;"guideline" means the West Coast District Municipality Guideline on transportation, storage and handling of manganese and other potentially hazardous ores and concentrates;"Hartridge Smoke meter" means a type of exhaust gas measurement meter"light absorption meter" means a measuring device that uses a light-sensitive cell or detector to determine the amount of light absorbed by an air pollutant;"listed activity" means a list of activities contemplated in section 21(1) (a) of the National Environment Management: Air Quality Act, 2004 (Act no. 39 of 2004);"living organism" means any biological entity capable of transferring or replicating genetic material, including sterile organisms and viruses;"MEC" means the member of the Executive Council of a Province who is responsible for air quality management in the Province;"mobile source" means a single identifiable source of atmospheric emission which does not emanate from a fixed location;"Municipality" means the Bergrivier Local Municipality and includes any political stature, political office bearer, duly authorised agent thereof, or a service provider fulfilling a responsibility under this By-law assigned to it in terms of the Local Government Municipal Systems Act. 2000 (Act 32 of 2000) or any other law, as the case may be, or any employee thereof acting in connection with this By-law by virtue of a power vested in the Municipality and delegated, to such political structure political office bearer, agent or employee;"Municipal Manager" means a person appointed as such by the Municipality in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act.117 of 1998);"non-point source" means a source of atmospheric emissions which cannot be identified as having emanated from a single identifiable source or fixed location, and includes veld, forest and open fires, mining activities, agricultural activities and stockpiles;"nuisance" means an unreasonable interference or likely interference caused by air pollution with:(a)the health or well-being of any person or living organism; or(b)the use or enjoyment by an owner or occupier of his or her property;(c)the ordinary comfort, convenience, peace or quiet of another person; and(d)the natural state of the environment;"offensive odours" means any smell which is considered to be malodorous or a nuisance to a reasonable person;"open burning" means the combustion of material by burning without a chimney to vent the emitted products of combustion to the atmosphere, and "burning in the open" has a corresponding meaning;"operator" means a person who owns or manages an undertaking, or who controls an operation or process, which emits air pollutants;"person" means a natural person or a juristic person;"point source" means a single identifiable source and fixed location of atmospheric emission, and includes smoke stacks and residential chimneys;"proclaimed township" means any land unit zoned and utilized for residential purposes;"premises" means any building or other structure together with the land on which it is situated and any adjoining land occupied or used in connection with any activities carried on in that building or structure, and includes any land without any buildings or other structures and any locomotive, ship, boat or other vessel which operates or is present within the area under the jurisdiction of the Municipality or the precincts of any harbour;"public road" means a road which the public has the right to use;"smoke" means the gases particulate matter and products of combustion emitted into the atmosphere when material is burned or subjected to heat and includes the soot grit and gritty particles emitted in smoke;"SANAS" means the South African National Accreditation System;"Systems Act" means the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);"the NEMA" means the National Environmental Management Act, 1998 (Act No.107 of 1998);"vehicle" means any motor, car, motor carriage, motor cycle, bus motor lorry or other conveyance propelled wholly or partly by any volatile spirit, steam, gas or oil, or byany means other than human or animal power.
2. Application, principles and objectives
3. Municipality’s right of access to premises
Part II – Duty of careProvisions in this section must be aligned with the West Coast District Municipality Guideline on transportation, storage and handling of manganese and other potentially hazardous ores and concentrates.
4. Duty to take care
Part III – Air pollution control zone
5. Declaration of air pollution control zone
Part IV – Designation of the air quality officer and the Environmental Management Inspector
6. Designation or appointment of the air quality officer and the Environmental Management Inspector
7. Duties and functions of the air quality officer and the environmental management officers
Part V – Smoke emissions from premises other than dwellings
8. ApplicationFor the purposes of this Part, "premises" does not include dwellings.
10. Installation of boilers and fuel-burning equipment
11. Operation of boilers and fuel-burning equipment
12. PresumptionIn any prosecution for an offence under section 9 smoke shall be presumed to have been emitted from premises if it is shown that any fuel or material was burned on the premises and the circumstances were such that the burning would be reasonably likely to give rise to the emission of smoke, unless the owner, occupier or operator, as the case may be, shows that no smoke was emitted.
13. Installation and operation of measuring equipment
14. Monitoring and sampling
16. Burning permits
Part VI – Smoke emissions from dwellings
17. Smoke emission from dwellings
Part VII – Emission caused by open burning
18. Emission caused by open burning
19. Emission caused by tyre burning and burning of rubber products and cables in open spaces
Part VIII – Emissions from compression ignition powered vehicles
21. Stopping of vehicles for inspection testing and testing
22. Testing procedure
23. Repair notice
Part IX – Emissions that cause a nuisance
25. Compliance notice
26. Steps to abate a nuisanceAt any time, the Municipality may at its own cost take whatever steps it considers necessary in order to remedy the harm caused by the nuisance and prevent a recurrence of it, and may recover the reasonable costs so incurred from the person responsible for causing the nuisance.
Part X – Offensive odours
27. Prohibition of emissions that cause offensive odours
28. Abatement notice
Part XI – Dust nuisance
29. Control of dust
30. Sand blasting emissions
Part XII – Fume nuisance
31. Control of fumes
Part XIII – Pesticide spraying emissions
32. Pesticide spraying emissions
Part XIV – Licensing of listed activites
33. Consequence of listingAs stated below from the National Environmental Management: Air Quality Act, no.39 of 2004 as amended:Section 22. " No person may without a provisional atmospheric emission licence or an atmospheric emission licence conduct an activity-(a)listed on the national list anywhere in the Republic; or(b)listed on the list applicable in a province anywhere in that province".For all activities requiring licensing within the West Coast District area, inclusive of Bergrivier Municipal area, West Coast District Municipality and/ or the relevant National Department is the competent authority for such licensing.This also pertains to activities as contemplated within Chapter 5 of the National Environmental Management: Air Quality Act, (Act no. 39 of 2004).
34. Application for atmospheric emission licenceNo person shall undertake a listed activity, as published in terms of section 21 of the National Environmental Management: Air Quality Act, 39 of 2004, without being in possession of an atmospheric emission licence issued by the competent authority as section 33 in this By-law indicates.
Part XV – Controlled emitters
35. Installation of controlled emittersFor all installations of controlled emitters within the West Coast District area, inclusive of Bergrivier Municipal area, West Coast District Municipality and/ or the relevant National Department is the competent authority for such approvals.
36. Operation of controlled emitters
37. Monitoring and sampling
38. Dust emissions from listed activities and controlled emitters
Part XVI – General provisions
40. SeverabilityIf a section, subsection, sentence, clause or phrase of this By-law is declared invalid by a competent court, the invalid portion shall be severed and shall not affect the validity of the remaining portions of the By-law.
41. Control of noiseThe occupier or owner of any premises must take all reasonable steps to maintain the noise level from any activity on any premises to comply with the relevant National guidelines and standards as stated in 34 of the Air Quality Act, 39 of 2004.
42. Municipality and State boundThis By-law is binding on the State and the Municipality.
44. Offenses and penalties
46. SavingsAnything done or deemed to have been done under any other law remains valid to the extent that it is consistent with this By-law or until anything done under this By-law overrides it.
47. Conflict with other legislationIn the event of any conflict between any provision of this By-law and National and Provincial legislation, standards, policies or guidelines, the National and Provincial legislation, standards, policies or guidelines shall prevail.
48. Repeal of By-lawsThe provisions of any By-laws previously promulgated by the Municipality or by any of the disestablished Municipalities now incorporated in the Municipality are hereby repealed as far as they relate to matters provided for in this By-law.
49. Short title and commencementThis By-law shall be known as the Air Quality By-law of Bergrivier Local Municipality and comes into operation on the date of publication thereof in the Provincial Gazette.
- Entire By-law
- Part I – Intepretation and objectives
- Part II – Duty of care
- Part III – Air pollution control zone
- Part IV – Designation of the air quality officer and the Environmental Management Inspector
- Part V – Smoke emissions from premises other than dwellings
- Part VI – Smoke emissions from dwellings
- Part VII – Emission caused by open burning
- Part VIII – Emissions from compression ignition powered vehicles
- Part IX – Emissions that cause a nuisance
- Part X – Offensive odours
- Part XI – Dust nuisance
- Part XII – Fume nuisance
- Part XIII – Pesticide spraying emissions
- Part XIV – Licensing of listed activites
- Part XV – Controlled emitters
- Part XVI – General provisions
History of this By-law
3 July 2020 this versionPublished in Western Cape Provincial Gazette no. 8261By-law commences.