Department of Environmental Affairs

Chief Directorate: Air Quality Management and Climate Change

Atmospheric Emission Licence: Manual for Licensing Authorities

June 2009

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, Pretoria Telephone (012) 310 3069

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…………………………………………………………..21

4.2. 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

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 of 2004) (AQA). The manual seeks to provide licensing authorities with a basis to the processes, procedures, intergovernmental relationships and key decisions in issuing an Atmospheric Emission Licence. 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 industrial emissions regulation. It also provides an insight into the historical approach to the regulation of emissions in South Africa and the current legislative frameworks and procedures which guide the process. This section also sets out the legal requirements for licensing authorities when it comes to affording citizens of the country their right of access to information, namely, the Promotion of Access to Information Act, 2000 (Act No. 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 be undertaken after an atmospheric emission licence is issued.

• Section 7 deals with the atmospheric emission licence processing fee calculator administration 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 Management Implementation 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 Pollution Prevention Act, 1965

Before the promulgation of the AQA, air pollution was regulated in terms of the Atmospheric Pollution Prevention 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 noxious and offensive gases emitted by industrial processes (through registration certificate), the control of smoke and wind borne dust pollution, and emissions from diesel vehicles. The Chief Air Pollution Control Officer (CAPCO) was responsible for the implementation of the APPA.

Under APPA, all industries undertaking scheduled processes were controlled by the CAPCO through Best Practicable Means (BPM) using permits (known as Registration Certificates). Scheduled processes, as set out in the Second Schedule to the APPA, are processes which emit noxious or offensive 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 having regard 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 was reached following discussions with the industry. A scheduled process registration certificate was then issued.

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 of government 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 and Waste 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 waste governance 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 was thus developed to reform and update air quality legislation in South Africa. The AQA, amongst its objectives, 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 of which deal with the licensing of industrial emissions. The AQA presents a shift from source-based air pollution 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 and enforcing 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” by CAPCO 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 national minimum emission standards have been developed with the aim of managing air quality to within acceptable levels in mind and have also considered the potential for cumulative air pollutant concentrations occurring due to multiple sources. These emissions standards have also been developed with ‘best available technology’ in mind and have involved extensive consultation with affected 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 of industrial emissions, the DWEA has embarked on a number of “transition projects”. One of those projects was the APPA Registration Certificate Review Project. The main aim of the project was to identify the “big polluters” and begin the process of reviewing their registration certificates. The review process had two major objectives, firstly, to convert the registration certificates to have the “look and feel” 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. For those industries which were not part of the APPA Registration Certificate Review Project, the responsibility to renew such registration certificates to atmospheric emission licences rests with the relevant industries when the trigger is pulled by 11 September 2009. In this regard, licensing authorities are urged to familiarise themselves with section 61 of the AQA. This section deals with the transitional 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 any information held by the state. The Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) 1 This section is based on the PAIA and the Booklet on how to use the Promotion of Access to Information Act, 2000, produced by the

South 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 enhance transparency, accountability and effectiveness of government. PAIA is also applicable to public bodies, which includes national, provincial and local government. Public bodies are legally obliged to provide any information requested, in terms of PAIA, by a member of the public subject to certain exceptions.

2.4.1. Type of information that can be requested

There is host of information that the AELA may be requested to provide, for example, minutes of air quality officers’ forum meetings; air quality management plan; allocated budget for air quality governance; emissions inventory; ambient monitoring stations results; list of all listed activities being undertaken within the AELA jurisdiction; applications for listed activities; atmospheric emission licences and 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 information officer, at national government, is the Director-General of a specific department; at provincial government, the Director-General in the Premier’s Office is the information officer of the whole province; and at local government the Municipal Manager of a particular municipality is the information officer. The information officer is the officer to whom a request for access to information has to be submitted. He or she will then decide whether to grant or refuse access to a record.

(b) Relevant authority

In terms of PAIA, at national government the relevant authority of a specific department is the Minister of that department; at provincial government the Member of Executive Council (MEC) of a particular department is the relevant authority; and at local government the Mayor or Speaker is the relevant authority. This is authority to whom an appeal lodged by aggrieved person. The internal appeal process is the process whereby a requester is dissatisfied with the decision of the information officer or in an instance where his or her request was ignored and no response given within 30 days or extended 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: a requester is not obliged to give reason/s why he or she is requesting the information from the AELA.

Step 2

After receipt of the request, the information officer must respond to the request within 30 days. The information 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 the requester 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 for such 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 the request within 30 days or within the extended period of a further 30 days, such non-response is deemed 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 internal appeal must be lodged with the relevant authority within 60 days from the date upon which the information officer should have made a decision regarding the request. The requester must complete Form B to lodge an internal appeal with the relevant authority. However, where the AELA does not have a relevant authority in place, the requester must make application to court against the decision of the information officer.

The grounds of appeal against the decision of the information officer are, namely, where the requester is aggrieved by the decision of the information officer not to release the requested information; the decision of the information officer to release the information but severing parts thereof to the extent that the integrity of the information is compromised, in that the information no longer makes sense; the amount 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 does not 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 information

Despite the legal obligation of AELA to give access to any information requested, the information officer can 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 to information:

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

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

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

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

(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. Administrative 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 adversely affected 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 government officials. Therefore, licensing authorities decisions regarding the atmospheric emission licence process are 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 environmental authorisation 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 those preliminary 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 and to 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 the decision 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 See Evans 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 quality officer 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 be capable 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 the

administrator had acted unlawfully in issuing a permit, as the relevant development “was repugnant to the objects, purposes and policies 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, para 50.

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. This section 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 90 days to request written reasons for the action. Reasons must be supplied within 90 days of receipt of a request.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 the information 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 the matter to the High Court on judicial review. Although the court can exempt a person from this requirement “in exceptional circumstances” and if it is “in the interests of justice”,8 generally, a person will 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 Earthlife Africa (Cape Town) v Director-General of Environmental Affairs and Tourism10 a summary of the relevant file, rather than the full file, was sent to the decision-maker. The effect of this was 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 improper and that a summary must at least contain “a fair synopsis of all the points raised by the parties so that the repository of power can consider them in order to come to a decision.”

In the Earthlife Africa case, the court also held that it was unfair to only give an interested and affected party 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 PAJA 9 See Earthlife 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 not have to be given everything but must be given sufficient information to present and controvert evidence in 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 authorisations

The Supreme Court of Appeal has endorsed the adoption of policy guidelines by state organs to assist decision makers in the exercise of their discretionary powers. Such guidelines are particularly useful where the decision is a complex one, requiring a balancing of a range of competing interests or considerations. 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 may be a need for national guidelines. If national guidelines are published, they need not be adopted by provinces 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, been linked 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 Authority (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 association with 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 page

491, 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, para

61 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: Joint 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 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.

3.2.2. AEL application 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 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 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 for various reasons:

16 In terms of the National Environmental Management Amendment Act, 2008 (Act No. 62 of 2008), the Minister of Minerals and

Energy 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 of atmospheric emissions. As a result, the EIA activity could result in significant impacts (other than those on the atmosphere) which could result in a negative Record of Decision (RoD) thus no need to issue an AEL;

• The EIA process may require the submission of a Specialist Air Quality Impact Assessment Study 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;

• The EIA environmental authorisation may contain conditions which may be pertinent to the AEL; and

• The EIA process will require comprehensive opportunities for public participation and input which 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 technical information or input from public participation. This will ensure that a duplication of effort is avoided and also 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 joint review of information related to atmospheric impacts by the EIA-CA and the AELA. This is a recommendation from the National Framework and is one which may strengthen the effectiveness of the EIA-AEL procedural relationship and may promote good working inter-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 active part 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 be confident 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 it participates 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 from the 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 focus on 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 the EIA 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, in writing 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 respective applications 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 EIA application 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 be followed and the stages at which communication must take place between them. It will also be important to 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, it would also be in the spirit of co-operative governance to share information and/or application documents to ensure that both have an opportunity to view and understand all the information submitted via both processes.

Step 3: Consideration of the applications

At this stage, the EIA-CA and AELA will each review the information submitted by the applicant within their 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 the application and/or requesting any outstanding information (this will allow the EIA-CA to note the additional 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 the EIA-CA for information.

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Similarly, if the EIA application is missing information which may relate to the impact on the atmosphere and 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 of receipt of the application.

Step 4: EIA phase I

This phase includes the basic assessment report, scoping reports, environmental impact assessment reports, 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 EIA regulations 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 required documents 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 the information that has been provided in the AELA and EIA applications, and to be familiar with the site and the potential air quality issues. Such a site visit may also allow the AELA to represent fully all issues which relate to the AEL application and to determine whether the applicant have fully captured and considered 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 Scoping Reports and the Plan of Study with a view to determining whether the reports should be accepted (thus allowing the applicant to proceed to the next phase of the EIA process) or whether amendments to the reports 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 answering all 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 in section 39 of the AQA and paragraph 5.5.3 of the National Framework. These requirements must be kept in mind by the AELA throughout its involvement in the EIA process so that it can inform the EIA-CA if additional information or analysis of the EIA application is required in order to provide the insight required 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 EIA process 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 Air Quality Impact Assessment Report for completion in the next step of the EIA process has been flagged by the applicant within the Plan of Study and that the proposed contents of this report will address 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 made and 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 or reject 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 AELA that is has received the reports, and as indicated earlier, times and dates for joint consideration of these reports 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 detailed environmental 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 specialist study under consideration contain all the information required to enable it to fully assess the impact of the proposed activity to the atmosphere, and that it complies with the requirements contained in section 39 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 to make 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 impact assessment 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 or reject 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 and studies, 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 environmental authorisation to proceed.

In a situation where the Environmental Authorisation is granted then the AELA can proceed to consider 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 certain conditions 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 ensure that whatever condition or requirement relevant to air quality, which where agreed to during the EIA process, 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 was unsuccessful;

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

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

In deciding whether to grant or refuse an application, the AELA must assess the application against the sections 39 and 40 of the AQA. Section 39 sets out the relevant matters that must be taken into account 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 form is 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. Application procedure

In each of the abovementioned cases, the applicant must submit its completed application form to the relevant 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 insufficient information, the AELA must inform the applicant. Any additional information that the AELA may require must be requested at this stage. The AELA must indicate in the letter to the applicant that, failure to comply 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 further information 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 a transfer

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

It is important to note that the AELA cannot process the application until such requirements have been 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 of the application

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

- 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 the person to whom the licence is to be transferred is a fit and proper person as contemplated in section 49 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 options available to 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 AELA runs the risks of being challenged on the administrative justice requirements. Secondly, the AELA may approve 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 such additional conditions. Again, if there were objections to the application, the AELA runs the risks of being challenged 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 submission of all required 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 all applications that are due for renewal after expiry , and those applications in terms of the transitional arrangements as contemplated in section 61 of the AQA. All holders of provisional registration certificates / AEL, at the time of the repeal of the APPA, i.e. 11 September 2009, have a period of two years to apply for a renewal of their licences to AEL. All holders of final registration certificates, at the time of the repeal of the APPA, i.e. 11 September 2009, have a period of three years 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 to renew its AEL. Sections 38, 40, 43 and 47 of the AQA are applicable to the application for a renewal of the 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 that the AELA may require must be requested at this stage. The AELA must indicate in the letter to the applicant 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 further information from the applicant is 14 days after the receipt of the application.

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

In terms of section 38(3) of the AQA, the applicant is required to take certain steps to bring the application 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 until such requirements have been fulfilled 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 complied with:

- 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 to consider 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 be consistent 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 must be based on technically sound reasons. Failure to comply with these requirements will result in its decision being challenged on judicial review. 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 all required information.

4. ECHNICAL DECISION POINTS

Within the AEL process – there are three key technical decision points where the AELA must consider 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 Limits Set timeframes for compliance

Draft other conditions

AEL application has been Received and Considered

Should the AEL be awarded?

DecisionPoint

If no – follow prescribed procedures for communicating and informing applicant of decision No Yes

DecisionPoint

What type of licenseShould be granted

Provisional AEL

AELDecisionPoint

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. The principle is as follows:

• If an EIA Environmental Authorisation is granted, then the AEL will be granted (unless there has 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 Authorisation is refused, then an AEL will not be issued; and

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

4.2. Type of licence to issue

There are two options:

• Provisional AEL; and

• Final AEL.

A provisional 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, in terms of the National Framework, is valid for a period of 5 years .

4.3. Technical content of the AEL

4.3.1. Setting emission standards

This is the crux of an AEL that involves specific sequence of thought and consideration of technical documents 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, when setting emission standards for an activity, it is important to understand the levels of the pollutants in the ambient air and national ambient air quality standards. Therefore, it is important to understand the potential impact of the existing and/or potential emissions from the applicant’s activity on the ambient standards 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 minimum emission standards 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 ambient air quality standard – an acceptable intervention on the part of the AELA will be the review of AELs in the 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 follow when 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 for each 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 the

emission standards;

Emission Standards For criteria pollutants

Existing ambient levels of the pollutant &

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 the information 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 activity 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

conditions, 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 Kelvin and 101.3 kPa

Manner in which measurement of emissions must be carried out

Common Name Chemical Symbol New Plant Existing Plan

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 from Table 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 listing as contemplated by Section 21(3)(b) of the Act

Requirement Application Compliance Date

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

All facilities operating these activities From date of publication

Use these figures to set initial draft emission standards (which may be later amended by consideration of ambient

air levels and standards. Include the ‘measurement’ instructions

as a condition of the AEL.

Include this information as 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 pollutant under 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 under consideration 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 all relevant 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 the objectives 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 requested from 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 - compare emission 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 the ambient concentrations of the criteria pollutants, or whether these concentrations and the likely cumulative impact of the applicant’s emissions warrant strict permissible emission standards.

4.3.2. Setting of compliance timeframes

The section 21 notice provides for the compliance timeframes for the national minimum emission standards for all the listed activities. Where the AEL incorporate the section 21 notice national emission standards, 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 guidance from 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 information submitted 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 Application Form

The AEL application form must be completed by the applicant and submitted to the AELA. All supporting information 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 information required 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 provided is insufficient, the required information may be submitted in the form of a memorandum. Attach required 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 be constructed;

Renewal application: means an application, in terms of section 47 of the Act, to renew the RC / AEL that has expired. This type of application also caters for the applications to be lodged during the transitional arrangement period (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 new owners;

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

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/Close Corporation/Trust, etc:

Company/Close Corporation/Trust Registration Number (Registration Numbers 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 platinum industry

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

Name of Mortgage Bondholder/s (if any):

Deeds Office Registration Number of Mortgage Bond:

Land Use Zoning as per Town Planning Scheme:

Industrial/residential/commercial

Land Use Rights if outside Town Planning Scheme:

Responsible Person Name or Emission Control 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. Description 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 Z and 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 to surrounding 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 No Street Address):

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

Property Registration Number (Surveyor-General Code):

Coordinates (latitude, longitude) of Approximate Center of Operations (Decimal Degrees):

Latitude: e.g. 27.930428 S

Longitude: e.g. -26.689485 E

Coordinates (UTM) of Approximate Center of Operations:

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

North-south:

East-west:

Extent (km²): e.g.: 0.516 km²

Elevation Above Mean Sea Level (m)

e.g.: 1445m

Province: e.g.: Gauteng

District/Metropolitan Municipality:

e.g.: Sedibeng District Municipality

Local Municipality: e.g.: Emfuleni Local Municipality

Designated Priority Area (if applicable):

e.g.: Vaal Triangle Priority Area

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4. NATURE OF PROCESS

4.1. Process Description

Please provide a detailed description of the entire production process including reference to the overall balance sheet 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 and where 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: Air Quality 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 21 notice, 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 included below.

Listed Activity Number

Category of Listed Activity Listed Activity Name Listed Activity Description

i.e. 1.1 Combustion installations Solid and liquid fuels combustion installation

Solid and liquid fuels (incl. biomass) combustion installations used primarily for steam raising or electricity 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 of Portland cement clinker and the grinding and blending of clinker to produce 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:

APPA Registration Certificate Number

Date of Registration Certificate

Scheduled Process 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 atmospheric emission 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 or Continuous

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 the premises by the Atmospheric Emission Licence Holder, highlighting processes proposed in respect of this application: Examples included in the table below. Note that even though the process might be a batch process the 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 unit processes or blocks. An example for a paper mill is included below:

32

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

33

34

• 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 hard copy format indicating the site with all the processes, stacks, roads, stockpile areas, crushing locations, 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. An example 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 quantities over a specific period. Products refer to any product resulting from a process. Thus, even if the product is directly fed into another process, it is still listed under products (viz. if Coke is produced at a site and used in the blast furnaces at the same site, it is a product. If coke is imported from another place to be used in the blast furnaces it will fall under raw materials). An example from an Iron and Steel Plant is provided in the table below.

Raw Material Type Maximum Permitted

Consumption Rate (Volume)

Design Consumption Rate

(Volume)

Actual Consumption Rate (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

Production Name Maximum Production

Capacity Permitted (Volume)

Design Production Capacity (Volume)

Actual Production Capacity (Volume)

Units (quantity/period)

Coke Making Plant

Metallurgical Coke Metallurgical Coke Metallurgical Coke Metallurgical Coke Metallurgical Coke

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

35

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

5.3. Energy Sources Used

This includes all energy sources utilised on-site, including energy purchased and off-gas from processes used within the facility.

By-Product Name Maximum Production

Capacity Permitted (Volume)

Design Production

Capacity (Volume)

Actual Production Capacity (Volume)

Units (quantity/period)

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 Cast house 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 Slag None specified 63 602 Tons/month

Slag None specified 8 220 Tons/month

Coke Breeze None specified 6 770 Tons/month

Energy Source

Sulphur Content of Fuel (%) (if applicable)

Ash Content of Fuel (%) (if applicable)

Maximum Permitted

Consumption Rate

(Volume)

Design Consumption

Rate (Volume)

Actual Consumption Rate (Volume)

Units (quantity/period)

Electricity purchased from Eskom, Works 11kV

N/A N/A None

Specified N/A 1702300 MWH/YR

Natural Gas 15 ppm (max) N/A None

Specified 5430000 GJ/Year

COG Consumed (After cleaning)

1.5 mg/Nm3 N/A None

Specified 9542000 GJ/YR

COG Flared 1.5 mg/Nm3 N/A None

Specified 2021000 GJ/YR

36

5.4. Sources of Atmospheric Emission

5.4.1. Point Source Parameters

Point sources mean a single identifiable source at a fixed location from where pollutants may be discharged to atmosphere, i.e. a stack or chimney.

Unique Stack

ID

Source Name

Latitude (decimal degrees)

Longitude (decimal degrees)

Height of Release Above

Ground (m)

Height Above Nearby

Building (m)

Diameter at Stack Tip / Vent Exit

(m)

Actual Gas Exit

Temperature (°C)

Actual Gas Volumetric Flow (m³/hr)

Actual Gas Exit Velocity (m/s)

B1 Boilers 1, 2 & 3

E28o26”35” S26o12”25’ 61.0 36.0 4.00 171.0 235242 5.2

B2 Boilers 4, 5 & 6 E28o26”34” S26o12”23’ 45.7 20.7 1.98 358.5 53206 4.8

37

5.4.2. Point Source Emissions

Continuous emissions are routine emissions thus non-stop processes. The emissions reflects the conditions when everything is working correctly thus under normal operating conditions. Therefore the highest hourly and highest daily concentrations can differ (see explanations in table). Annual averages take the average of all measured/calculated emissions over a year.

Routine but intermittent emissions are processes that run throughout the year but only for a certain periods per day (i.e. batch processes that run every 3 hours for example).

Emergency only – this includes accidental emissions, leakages, control technology outages etc.

Maximum Hourly Release Rate Maximum Daily Release Rate Average Annual Release Rate As Per 5.4.1 Code

Pollutant Name

(mg/Nm³)

(mg/Am³)

(g/s)

(mg/Nm³)

(mg/Am³)

(tons/day)

(mg/Nm³)

(mg/Am³)

(tpa)

Emission Hours

(e.g. 07h00 – 17h00)

Type of Emission

(Continuous / routine but

intermittent / emergency

only)

B1 PM 50 1519.4 32 50 1314.9 369 50 258.3 129526 24 hours Continuous

B2 SO2 80 48 80 554 80 194058 24 hours Continuous

38

5.4.3. Point Source Current Emissions Monitoring

Industry must provide information on emission monitoring requirements as set out in currently held atmospheric emission licence(s) (as applicable) for existing operations at the site of works.

As per 5.4.1 ID Emission Sampling / Monitoring Method Sampling Frequency Sampling Duration Measured Parameters

39

5.4.4. Point Source Emission Estimation Information

Industry is required to provide the methods used in determining the emission rates. Thus, if an engineering calculation or emission factor was used the methodology should be referenced. This is to provide the AELA with an insight into the credibility of the data. If recognised international methods are used to collect the samples these should be reflected. An example is provided below.

As Per 5.4.1 Code

Basis for Emission Rates

B1 Dust based on ISO Kinetic sampling monthly over the period March to November 2007. Using US EPA Method xxx or ISO method yyy

SO2, NO based on Mass balance calculations.

40

5.4.5. Area and/or Line Source Parameters

Area and line sources refer to all non-point sources (i.e. sources releasing atmospheric emissions from a non-identifiable point or fixed location). Area sources include sources such as storage piles, tailings dams, waste/discard dumps, crushing and screening activities, tipping points (loading and unloading of material), scraping and grading etc.

Line sources include sources such as roads (paved and unpaved), vents on building rooftops.

Unique Area

Source ID

Source Name Source Description Latitude (decimal

degrees) of SW corner

Longitude (decimal

degrees) of SW corner

Height of Release Above

Ground (m)

Length of Area (m)

Width of Area (m)

Angle of Rotation from True North

(°)

Coke SP Coke Making Plant Stockpiles

Raw material storage 270 43’ 32” 300 00’ 09” Ground level 770 250 10

RTV1 Electric Arc Furnace Roof Emissions

Secondary emissions at Electric Arc Furnace

29°50’50” 30°38’54’ 55 m 162 14 90

Road 1 Road to storage area

Paved on-site road 29°49’13” 30°38’54’ Ground level 55 10 - (the road might change direction thus cannot provide angle)

41

5.4.6. Area Source Emissions

The maximum hourly release rate and maximum daily rate can differ if a source is only operational for a couple of hours per day (i.e. vehicles on plant roads). Also the plant might only be operational for 6 days per week.

Continuous emissions will be for non-stop sources i.e. any activities that occur continuously for 24 hours a day. Emissions from rooftop vents for example can be intermittent for emissions are only released during furnace tapping.

As per 5.4.5 ID

Pollutant Name Maximum Daily Release Rate

(tons/day)

Average Annual Release Rate (tons/annum)

Emission Hours (e.g. 07h00 – 17h00)

Type of Emission (Continuous / intermittent)

Wind Dependent (yes/no)

Coke SP Particulates (TSP)

Particulates (PM10)

0.025

0.0056

9.16

2.06

Wind dependant, can occur any time Intermittent Yes

RTV1 Particulates 1.08 394.2 1 hour every day Intermittent No

Road 1 Particulates 0.0005 0.182 07h00 – 07h00 Intermittent No

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5.4.7. Area Source – Management and Mitigation Measures

Provide information on management and mitigation measures specified in currently held Atmospheric Emission Licences (as applicable) for existing operations at the site of the works.

An example is provided below.

As per 5.4.5 ID

Description of Specific Measures Compliance to Specific

Measures (Yes/No)

Timeframe for Implementation of Specific Measures

Method of Monitoring Measure Effectiveness

Contingency Measure

Coke SP Water sprays at stockpile on windy days Yes 3 months Dust fallout less than 1200 mg/m²/day None

RTV1 Secondary fume extraction system Yes 5 years No visible fumes emanating from the vents none

Road 1 Continuous water sprays on roads No 3 months Dust fallout less than 1200 mg/m²/day none

43

5.4.8. Area Source Emission Estimation Information

Similar to point source emissions, the method of quantifying the area and line source emissions should be provided viz. US.EPA AP42 for Unpaved roads.

As per 5.4.5 ID

Basis for Emission Rates

Coke SP US.EPA AP42 emission factors for Wind Erosion 1995. Based on hourly average wind speed for the site and the size of the stockpile, the moisture content, clay content, particle size distribution and the bulk density.

RTV1 Treated as a buoyant line source. Time weighted emissions.

Road 1 US.EPA AP42 emission factors for Paved Roads 2003. All roads calculated based on type of vehicles, weight of vehicles, traffic and silt content of roads. Silt content was measured on the main plant road as 8.4 g/m².

44

5.4.9. Spatial Representation of Processes and Sources

Attach site layout diagram(s) (plan view and to scale, include true north arrow and scale) indicating:

• location of unit processes, plants, buildings, stacks, stockpiles and roads.

• location of point and area sources listed with unique stack ID and unique area ID, respectively, specified.

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.

45

6. APPLIANCES AND MEASURES TO PREVENT AIR POLLUTION

6.1. Appliances and Control Measures

Provide information on appliances and measures implemented to prevent air pollution for the entire operation at the site of the works, highlighting information for process(es) proposed in respect of this application.

This includes all control equipment in place at the sources reported in Table 6.4.1 and 6.4.2. Examples are provided below.

Appliances Air Pollution Control Technology

Associated Unique Stack

ID

Appliance / Process

Equipment Number

Appliance Type /

Description

Appliance Serial

Number

Appliance Manufacture

Date

Product Name and

Model

Technology Type

Commission Date

Date of Significant

Modification / Upgrade

Design Capacity

Permitted Minimum Control

Efficiency (%)

Permitted Minimum Utilisation

(%)

B1 09789 Electrostatic

Precipitators

1025 1983 Lurgi Type

Electrostatic

precipitators

ESP 1990 1999 99.6%

B2 12345 Fabric Filter

Bags

1030 1976 AbbFlakt

Optipulse

Pulse jet

Fabric Filter

Bags.

FFP 1996 2001 Design for

50 mg/Sm3.

23100

PPS/PI bags

Per unit. Air

to cloth ratio

of 0.015

99.9%

46

6.2. Start Up, Maintenance and Shut Down Conditions

List potential start up, maintenance, shut down, upset conditions and associated responses related to the operations at the site of the works, highlight possible releases and responses for the proposed listed activity or activities in respect of the current application.

This section requires the applicant to indicate to the AELA which unit processes will be shut down for maintenance, for how long, the type of pollutant that will emitted during that period and the back up plans they have in place to minimise air pollution. This information will assist the AELA to include the necessary conditions in the AEL.

Unit Process Description of Occurrence of Potential Releases

Pollutant(s) Released Briefly Outline Back Up Plan

47

6.3. Environmental Management System

Atmospheric Emission Licence holders are required to establish an Environmental Management System (EMS) that gives effect to the principle of continuous improvement. The EMS must as a minimum provide for the actions listed below. Specify dates by which the following actions have been / will be taken for the entire operation at the site of the works:

Item Action Date Completed / Due Date

1 Identify and quantify potential for environmental impacts

2 Prioritise the identified impacts

3 Identify appropriate preventative and corrective actions

4 Develop responsive management controls, systems and procedures

5 Identify improvement projects to be added to the five-year Environmental Improvement Programme

48

6.4. Energy Conservation Measures

List activities to improve energy utilisation and efficiency which are currently implemented at the site of works, highlighting proposed measures to be implemented in respect of the proposed listed activity or activities.

Energy Conservation Measure

Date Implemented / to be Implemented

Target Date by which to Achieve Target

Progress Monitoring & Reporting Method

49

6.5. Cleaner Production Targets

List cleaner production measures which are currently implemented at the site of works, highlighting proposed measures to be implemented in respect of the proposed listed activity or activities.

Cleaner Production Measure

Date Implemented / to be Implemented

Target Date by which to Achieve Target

Progress Monitoring & Reporting Method

50

6.6. Cleaner Production Targets

6.6.1. Complaints Register

Is a complaints register maintained at the site works?

Yes

No

To be initiated, by date:

In the event that a complaints register is maintained, please provide a copy of complaints received and corrective actions taken over the past two years.

6.6.2. Non-Compliance with Current AEL Conditions

If atmospheric emission licence(s) are currently held, summarise instances of non-compliance with the conditions of such atmospheric emission licence(s) which have occurred over the past two years:

Unique Stack ID Pollutant Released Emission Limit Exceeded

Root Cause Analysis Measures Implemented to Prevent Recurrence

Date by which Measures were / will be Implemented

Steel plant Dust 120 mg/Nm³ Repair and upgrade electrostatic precipitators

ESP repaired 27 May 2006

51

7. DISPOSAL OF WASTE AND EFFLUENTS ARISING FROM AIR POLLUTION MITIGATION MEASURES

Provide the following information for any waste and effluent arising from any air pollution mitigation measures that are currently in place at the site of the works:

Unique Stack or Area ID (As per 5.4.1 or 5.4.5 above)

Waste / Effluent Type Hazardous Components Present

Method of Disposal Licence Status (Provisional or Final)

Boilers Boiler fly ash water Water reused in the system Boilers

Copeland Scrubber water Sodium and Volatile Organic Compounds

Evaporated & burned Copeland

Provide information on any waste and effluent which will arise from air pollution mitigation measures proposed for implementation for the listed activity or activities dealt with in this application:

Unique Stack or Area ID

(As per 5.4.1 or 5.4.5 above)

Waste / Effluent Type Hazardous Components Present

Method of Disposal Licence Status

(Provisional or Final)

52

5.2. AEL Template

The AEL is to be drafted by the AELA based on the information supplied by the applicant in the AEL Application Form as provided in the previous section. Even though most of the information is exactly the same it is important that the AELA understands the information and is comfortable with the level of detail provided.

The AELA can as ask the applicant for additional information or to clarify certain information as provided in the Application Form where necessary.

The AEL Template includes many of the sections contained in the AEL Application Form with the main difference being the sections pertaining to the AEL specific conditions. The AEL template provided in this section is of a fictional power station. Please note: All examples are provided in blue.

53

REPUBLIC OF SOUTH AFRICA

ATMOSPHERIC EMISSION LICENCE IN TERMS OF SECTION 43 OF THE NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT, 2004 (ACT NO. 39 OF 2004)

This Atmospheric Emission Licence issued to Energy for Africa (Pty) Ltd in terms of section 41(1)(a) of the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) (“the Act”), in respect of Listed Activity No. 1.1. The Atmospheric Emission Licence has been issued on the basis of information provided in the company’s application dated 28 February 2008 and information that became available during processing of the application.

The Atmospheric Emission Licence is valid until 31 March 2013.

The reason issuance of the current licence is renewal.

The Atmospheric Emission Licence is issued subject to the conditions and requirements set out below which form part of the Atmospheric Emission Licence and which are binding on the holder of the Atmospheric Emission Licence (“the holder”).

1. ATMOSPHERIC EMISSION LICENCE ADMINISTRATION

Name of the Licensing Authority Waterberg District Municipality

Atmospheric Emission Licence Number AEL 1025/1

Atmospheric Emission Licence Issue Date

28 February 2008

Atmospheric Emission Licence Type Final

Review Date, not later than 31 March 2011

54

2. ATMOSPHERIC EMISSION LICENCE HOLDER DETAILS

Enterprise Name Energy for Africa (Pty) Ltd

Trading as: Waterberg Power Station

Enterprise Registration Number (Registration Numbers if Joint Venture)

2000/018327/02

Registered Address Unit 3, Pelican Office Park, Lenchen Road, Centurion, 0149

Postal Address Private Bag 3, Centurion, 0149

Telephone Number (General) (012) 555-1396

Industry Sector Power Generation

Name of Emission Control Officer Mathew Mashilo or Not Appointed

Telephone Number 012 232-1212 or Not Applicable

Cell Phone Number 089 325-6699 or Not Applicable

Fax Number 015 232-1255 or Not Applicable

Email Address mmashilo@efa.co.za or Not Applicable

After Hours Contact Details 089 325-6699

Land Use Zoning as per Town Planning Scheme Agricultural/Heavy Industry

55

3. SITUATION AND EXTENT OF PLANT

3.1. Location and Extent of Plant

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

A coal mine is located directly east and south east of the power stations with commercial mixed farming on the land to the north, the east and the south. A game farm is located to the east with the town of Lephalale approximately 20 km to the west. On the farm there are homesteads and farm houses with a lodge on the game farm.

Physical Address of the Licenced Premises

No 244 JS, Lephalale, Waterberg District, Limpopo Province

Description of Site (Erf) Power Station, Portion 11 of Leeuspoort No. 213 JS

Property Registration Number (Surveyor-General Code)

Include number as provided in the application form

Coordinates (Latitude, Longitude) of Approximate Center of Operations (Decimal Degrees)

Latitude: 23°37’20”S

Longitude: 28°33’50”E

Extent (km²) 1 349,0638 ha

Elevation Above Mean Sea Level (m) 1017 m.a.ms.l

Province Limpopo Province

Metropolitan / District Municipality Waterberg District Municipality

Local Municipality Lephalale Local Municipality

Designated Priority Area (If Applicable) Not Applicable

56

Location of the Waterberg Power Station and the surrounding areas

57

4. GENERAL CONDITIONS

4.1. Process and Ownership Changes

The holder of the atmospheric emission licence must ensure that all unit processes and apparatus used for the purpose of undertaking the listed activity in question, and all appliances and mitigation measures for preventing or reducing atmospheric emissions, are at all times properly maintained and operated.

No building, plant or site of works used by the licence holder shall be materially extended, altered or added to the listed activity without the prior approval of the licensing authority.

Any changes in processes or production increases, by the licence holder, will require prior approval by the licensing authority.

Any changes to the type and quantities of input materials and products, or to production equipment and treatment facilities will require prior written approval by the licensing authority.

The licence holder must, in writing, inform the licensing authority of any change of ownership of the enterprise. The licensing authority must be informed within 30 (thirty) days after the change of ownership.

The licence holder must immediately on cessation or decommissioning of the listed activity inform, in writing, inform the licensing authority.

4.2. General Duty of Care

The holder of the licence must, when undertaking the listed activity, adhere to the duty of care obligations as set out in section 28 of the National Environmental Management Act, 1997 (Act No. 107 of 1998) (NEMA).

The licence holder must undertake the necessary measures to minimise or contain the atmospheric emissions. The measures are set out in section 28(3) of the NEMA.

Failure to comply with the above condition is a breach of the duty of care, and the licence holder will be subject to the sanctions set out in section 28 of the NEMA.

4.3. General Requirements for Sampling and Compliance

Measurement, calculation and/or sampling and analysis shall be carried out in accordance with any nationally or internationally acceptable standard. A different method may be acceptable to the licensing authority as long as it has been consulted and agreed to the satisfactory documentation necessary in confirming the equivalent test reliability, quality and equivalence of analyses.

The licence holder is responsible for quality assurance of methods and performance. Where the holder of the licence uses external laboratories for sampling or analysis, accredited laboratories and service shall be used whenever possible.

The licence holder is responsible for ensuring compliance with the conditions of this licence by any person acting on his, her or its behalf, including but not limited to, an employee, agent, sub-contractor or person rendering a service to the holder of the licence.

The licence does not relieve the licence holder to comply with any other statutory requirements that may be applicable to the carrying on of the listed activity.

A copy of the licence must, at all times, be kept at the premises where the listed activity is undertaken. The licence must be made available to the environmental management inspector representing the licensing authority who requests to see it.

The licence holder must inform, in writing, the licensing authority of any change of its details including the name of the emission control officer, postal address and/or telephonic details.

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4.4. Statutory Obligations and Principles

The licence holder must comply with the obligations as set out in Chapter 5 of the Act.

The principles and legal requirements as set out in section 2 of the NEMA are also applicable to the atmospheric emission licence.

4.5. Annual Payment of Atmospheric Emission Licence Processing Fee

The licence holder must, for the period of validity of the licence, pay the processing fee annually to the licensing authority. The processing fee must, for the period of validity of the licence, be paid at the end of November each year.

5. NATURE OF PROCESS

5.1. Process Description

Waterberg Power Station has a contract with Grootgeluk Mine to supply the station with 10 million tons of coal per annum. All the coal is conveyed to the power station coal scathes and stored in coal bunkers. Coal is then conveyed to the mills where it is milled to pulverised fuel which is used for combustion in the boiler. The combustion in the boiler heats water to superheated steam which drives the turbines. The turbines again drive the generator which generates 600MW of electricity, of which 25MW is used internally and 575MW is sent out to the national transmission network. The station uses coal and water as primary energy sources, generates electricity and produces ash in a solid waste state, as well as fly ash of which 99% gets collected in electrostatic precipitators. The ash slurry is pumped to the ash dams. The remaining dust is emitted via the smoke stacks as particulate emissions.

5.2. Listed Activities

List of all Listed Activities, as published in terms of Section 21 of the AQA, authorised to be undertaken at the premises by the licence holder:

Listed Activity Number

Category of Listed

Activity

Listed Activity Name Listed Activity Description

1.1 Combustion Installations

Solid and liquid fuels combustion installation

Solid and liquid fuels (incl. biomass) combustion installations used primarily for steam raising or electricity generation

5.3. Unit Processes

List of all unit processes associated with the listed activities to be undertaken at the site of work.

Unit Process Unit Process Function Batch or Continuous Process

Boilers 1 – 6 Generation of steam in six pulverised coal fired Stein Muller boilers rated at 507kg/s steam per boiler. The generation of up to 600 MW of electricity per unit.

Continuous process

Coal import from Grootegeluk Mine to coal bunkers. Six per boiler.

Continuous process

59

Pulverised fuel plant which consist of the Babcock and Loesche mills to grind the coal to pulverised fuel which is used for combustion in the boiler. Two forced draught fans and two primarily air fans per boiler used to blow pulverised fuel into the boiler. Induced draught fans are used to extract the flue gas out of the boiler.

Continuous process

Ash produced by the boiler are collected in a controlled way respectively in the boiler ash boxes and sluiced into the ash sump. Electrostatic precipitators (ESP’s) are used to clean the flue gas fly ash which is collected in the dust hoppers and pumped to the ash plant.

Continuous process

All ash collected in the ash plant in the form of slurry are pumped to the ash dams using two slurry pumps per unit.

Continuous process

Water collected in the ash dams are recycled back to the station by the use of ash water return pumps and sluice booster system.

Continuous process

5.4. Hours of Operation

Provide the hours of operation of all unit processes associated with the listed activities to be undertaken at the site of work. Please note that even though the process might be a batch process the plant is available 24 hours per day.

Unit Process Operating Hours No. of Operation Days per Year

Boiler 1 24 Hours 365 days

Boiler 2 24 Hours 365 days

Boiler 3 24 Hours 365 days

Boiler 4 24 Hours 365 days

Boiler 5 24 Hours 365 days

Boiler 6 24 Hours 365 days

60

5.5. Graphical Process Information

Attach the following diagrams and flow charts:

(a) Simplified block diagram with the name of each unit process showing links between all unit processes or blocks

61

(b) Process flow chart indicating inputs, outputs and emissions at the site of works, including points of potential fugitive emissions and emergency releases.

BOILER

STEAM

WATERAIR

COAL

HIGH PRESSURE TURBINE

STEAM REHEATING

LOW PRESSURE TURBINE

CONDENSERCOOLING TOWER

GENERATOR

COOLING WATER

COOLING TOWER

Flue Gas

Ash

62

(c) Site layout diagram indicating location of unit processes, plants, buildings, stacks, stockpiles and roads

63

SPECIFIC CONDITIONS

6. RAW MATERIALS AND PRODUCTS

6.1. Raw Materials Used

6.2. Production Rates

Regulated Raw Materials

Raw Material Type Maximum Permitted Consumption Rate (Volume)

Units (quantity/period)

Coal (2007) 2 928 759 ton/annum

(3 units)

Heavy Fuel oil

(2007)

6 627 551 litres/annum

(3 units)

Non-regulated Raw Materials

Raw Material Type Maximum Permitted Consumption Rate (Volume)

Units (quantity/period)

Water (2007) 496 Ml/annum

Regulated Products

Product Name Maximum Permitted Production Capacity (Volume)

Units (quantity/period)

Energy 600MW tons/day

Non-regulated Products

Product / By-Product Name Maximum Permitted Production Capacity (Volume)

Units (quantity/period)

Tar Sludge 5 693 tons/month

Ash (2007) 761 477 tons/annum

Slag 8 220 tons/annum

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6.3. Energy Sources Used

Energy Source Actual Consumption Rate (Volume)

Units (quantity/period)

Fuel Characteristics (%)

Coal (2007) 456 700 ton/annum 1.9 %

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6.4. Sources of Atmospheric Emission

6.4.1. Point Source Parameters

Latitude (decimal degrees)

Longitude (decimal degrees)

Point Source Code

Source Name

South East

Height of Release Above Ground

(m)

Height Above Nearby

Building (m)

Diameter at Stack

Tip / Vent Exit

(m)

Actual Gas Exit

Temperature (°C)

Actual Gas Volumetric

Flow (m³/hr)

Actual Gas Exit Velocity

(m/s)

Emission Hours

Type of Emission

(Continuous / Batch)

North Stack

North Smoke Stack 23.6335 S 28.5678 E 152 85.5 4.17 140 3 665 262 19. 57 24Hrs Continuous

South Stack

South Smoke Stack

23.3252 S 28.5432 E 152 85.5 4.17 140 3 665 262 19. 57 24Hrs Continuous

6.4.2. Area and/or Line Source Parameters

Area Source Code

Source Name Source Description Latitude (decimal

degrees) of SW corner

Longitude (decimal

degrees) of SW corner

Height of Release Above

Ground (m)

Length of Area (m)

Width of Area (m)

Emission Hours

Type of Emission

(Continuous /

intermittent)

CS Coal stockyard Coal fines/dust 24.4655 S 28. 2975 E 0-15 550 130 24Hrs Intermittent

CSTP Coal Staithes (transfer points)

Coal fines/dust 23.4575 S 28. 2511 E 15 250 14 24Hrs Intermittent

CCB Coal conveyors to bunkers in station

Coal fines/dust 23. 6355 S 28. 7500 E 10 330 3 24Hrs Intermittent

BB Bunkers Coal fines/dust 23. 225 S 28. 3335 E 6 330 3 24Hrs Intermittent

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7. APPLIANCES AND MEASURES TO PREVENT AIR POLLUTION

7.1. Appliances and Control Measures

Appliances Air Pollution Control Technology Associated Source Code Appliance

/ Process Equipment

Number

Appliance Serial

Number

Appliance Type /

Description

Appliance Manufacture

Date

Product Name and

Model

Commission Date

Date of Significant

Modification / Upgrade

Technology Type

Design Capacity

Permitted Minimum Control

Efficiency (%)

Permitted Minimum Utilisation

(%)

North Stack

123456 Electrostatic Precipitator

1986 Lurgi ESP 1990 None ESP <-50mg/Sm³

99.6% 99.6%

South Stack

789011 Electrostatic Precipitator

1976 Lodge Cottrell ESP

1980 2006 ESP <-50mg/Sm³

98% 98%

7.2. Point Source – Maximum Permissible Emission Rates (Under Normal Working Conditions)

This is an AELA decision based on the Section 21 notice (National listed activities and minimum emission standards). This document will provide the necessary base and guidance on the applicable emission standards for that activity, compliance timeframes for new and existing plants, reporting requirements, acceptable measurement methods, frequency of monitoring and other special arrangements.

Maximum Permissible Release Rate

Point Source Code

Pollutant Name

(mg/Nm³) Date to be Achieved By

Average Period

(Instantaneous, Hourly, Daily, Monthly,

Annually)

Maximum Gas Volumetric Flow

(m³/hr)

Maximum Gas Exit Velocity (m/s)

Permitted Emission Hours

Permitted Duration of Emissions

North Stack

Particulates 75 11/09/2010 Daily 3 665 262 19. 57 24 Hours Continuous

CO 100 11/09/2010 Hourly 3 665 262 19. 57 24 Hours Continuous

SO2 2000 11/09/2010 Hourly 3 665 262 19. 57 24 Hours Continuous

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NOx 800 11/09/2010 Hourly 3 665 262 19. 57 24 Hours Continuous

South Stack

Particulates 75 11/09/2010 Daily 3 665 262 19.57 24 Hours Continuous

CO 100 11/09/2010 Hourly 3 665 262 19. 57 24 Hours Continuous

SO2 2000 11/09/2010 Hourly 3 665 262 19. 57 24 Hours Continuous

NOx 800 11/09/2010 Hourly 3 665 262 19. 57 24 Hours Continuous

Point Source – Operating Requirements

This is an AELA decision based on technical expertise for that particular process. Background research by the AELA on the process to be permitted will assist.

7.3. Point Source – Maximum Permissible Emission Rates (Under Start Up, Maintenance and Shut-Down Conditions) This is an AELA decision based on the Section 21 notice (National listed activities and minimum emission standards). This document will provide the necessary base and guidance on the applicable emission standards for that activity, compliance timeframes for new and existing plants, reporting requirements, acceptable measurement methods, frequency of monitoring and other special arrangements.

Maximum Permissible Release Rate

Point Source Code

Pollutant Name

(mg/Nm³) Date to be Achieved By

Average Period

(Instantaneous, Hourly, Daily, Monthly,

Annually)

Maximum Gas Volumetric Flow

(m³/hr)

Maximum Gas Exit Velocity (m/s)

Permitted Emission Hours

Permitted Duration of Emissions

North Stack

Particulates 85 11/09/2010 Daily 3 665 262 19. 57 4 days per start-up, maintenance and shut-down event.

Intermittent

CO 150 11/09/2010 Hourly 3 665 262 19. 57 3 days per start-up, maintenance and shut-down event.

Intermittent

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SO2 2500 11/09/2010 Hourly 3 665 262 19. 57 3 days per start-up, maintenance and shut-down event.

Intermittent

NOx 900 11/09/2010 Hourly 3 665 262 19. 57 3 days per start-up, maintenance and shut-down event.

Intermittent

South Stack

Particulates 85 11/09/2010 Daily 3 665 262 19.57 4 days per start-up, maintenance and shut-down event.

Intermittent

CO 150 11/09/2010 Hourly 3 665 262 19. 57 3 days per start-up, maintenance and shut-down event.

Intermittent

SO2 2500 11/09/2010 Hourly 3 665 262 19. 57 3 days per start-up, maintenance and shut-down event.

Intermittent

NOx 900 11/09/2010 Hourly 3 665 262 19. 57 3 days per start-up, maintenance and shut-down event.

Intermittent

Point Source – Operating Requirements

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7.4. Point Source – Emission Monitoring and Reporting Requirements

This is an AELA decision based on the Section 21 notice (National listed activities and minimum emission standards). This document will provide the necessary base and guidance on the applicable emission standards for that activity, compliance timeframes for new and existing plants, reporting requirements, acceptable measurement methods, frequency of monitoring and other special arrangements.

Point Source Code

Emission Sampling / Monitoring Method

Sampling Frequency

Sampling Duration

Parameters to be Measured Parameters to be Reported

Reporting Frequency

North Stack Gaseous monitors Continuous 24 Hours SOx, NOx, CO2, O2 As per section 7.8. of the licence condition.

Damage to or failure of monitoring equipment.

North Stack Particulate matter monitors Continuous 24 Hours Dust As per section 7.8. of the licence condition.

Damage to or failure of monitoring equipment.

North Stack Flue gas mass or volume flow

Continuous 24 Hours Mass flow rate As per section 7.8. of the licence condition.

Damage to or failure of monitoring equipment.

South Stack Gaseous monitors Continuous 24 Hours SOx, NOx, CO2, O2 As per section 7.8. of the licence condition.

Damage to or failure of monitoring equipment.

South Stack Particulate matter monitors Continuous 24 Hours Dust As per section 7.8. of the licence condition.

Damage to or failure of monitoring equipment.

South Stack Flue gas mass or volume flow

Continuous 24 Hours Mass flow rate As per section 7.8. of the licence condition.

Damage to or failure of monitoring equipment.

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7.5. Area Source – Management and Mitigation Measures This is another AELA important decision. The authority must apply its mind with regard to the practical measures that may undertaken by the applicant to mitigate dust from stockpiles, gravel roads and other fugitives. The applicant in the application form may have suggested measures. It is important for AELA to do its won research to determine whether what is suggested by the applicant is enough or practically achievable. Therefore, the starting point should be the suggested measures by the applicant in the application and build from there.

Area Source Code

Area Source Description Description of Specific Measures

Required Control

Efficiency (%)

Timeframe for Achieving Required Control Efficiency

Method of Monitoring Measures

Effectiveness

Contingency Measures

MM Mills – pulverised fuel leaks. Sealing – sealed air fans prevent pulverised fuel leaks.

98 6 months after issue of the licence.

As per the acceptable measurement methods provided in the section 21 notice.

Dust masks, water sprays to suppress dust, repair leaks.

BPFF Boiler – pulverised fuel leaks on lines.

Pulverised fuel lines must be tiled to prevent erosion wear.

99 6 months after issue of the licence.

As per the acceptable measurement methods provided in the section 21 notice.

Dust masks, repair leaks, water sprays to suppress dust.

BBA Boiler – coarse ash from wet hopper & sluice ways blockage.

Sealing – seal water provide ash hoper sealing. Ash clinkers from the boiler.

99 6 months after issue of the licence.

As per the acceptable measurement methods provided in the section 21 notice.

Dust masks, emergency water supply to top up seal water, combustion monitoring to prevent boiler clinkers, water sprays to suppress dust.

BEF Electrostatic precipitators – fly ash from hopper blockage & hydrovacs.

Electrical heaters provide ash warming so that ash will always be warm and flow to the Hydrovacs. Poker rods used to dislodge blockages.

98 12 months after issue of the licence.

As per the acceptable measurement methods provided in the section 21 notice.

Dust masks, emergency sluice water supply to hydrovacs, water sprays to suppress dust.

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SSP Bulk sulphur storage plant – gaseous emissions.

Safe operation procedures must be adhered to.

99 From date of issue of the licence.

As per the acceptable measurement methods provided in the section 21 notice.

Dust masks, emergency sluice water supply to hydrovacs, water sprays to suppress dust.

AD Ash dam – fugitive dust Timely rehabilitation and correct water management of ash dam.

98 From date of issue of the licence.

As per the acceptable measurement methods provided in the section 21 notice.

Timely rehabilitation and correct water management of ash dam.

7.6. Energy Conservation Measures The licence holder shall evaluate its activities to improve energy utilisation and efficiency.

Energy Conservation Measure

Implementation Date Target Date to Achieve Target Progress Monitoring & Reporting Method

Coal – Station Thermal Efficiency Programme (STEP) Report is used to measure efficiency and losses.

10 days after issue of the licence.

Efficient and effective usage of coal.

30 days after issue of licence. Monthly monitoring, quarterly reporting on effectiveness of the measure.

Water – Consumption is calculated daily in order to determine the losses and to prevent such going forward.

10 days after issue of the licence.

To minimise wastage of water going forward.

30 days after issue of licence. Monthly monitoring, quarterly reporting on effectiveness of the measure.

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7.7. Cleaner Production Targets

Cleaner Production Measure Implementation Date Target Date to Achieve Target Progress Monitoring & Reporting Method

Electrostatic precipitators 01 January 2011 To be determined To be determined To be determined

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7.8. Routine Reporting and Record-Keeping

Complaints Register

The licence holder must maintain a complaints register at its premises, and such register must be made available for inspections. The complaints register must include the following information on the complainant, namely, the name, physical address, telephone number, date and the time when the complain was registered. The register should also provide space for noise, dust and offensive odours complaints.

Furthermore, the licence holder is to investigate and report to the licencing authority in a summarised format on the total number of complaints logged and indicate the number of complaints attributable to it. The licensing authority must also be provided with a copy of the complaints register. The record of a complaint must be kept for at least 5 (five) years after the complaint was made.

Monthly Reporting

The licence holder must record and report any non-compliance with permitted emission standards to the licensing authority. Any non-compliance must be reported to the licensing authority on a monthly basis, and must be reported within 15 (fifteen) days of the reporting month end. The non-compliance must be reported in the following format:

(a) Source code / name;

(b) Emission standard exceeded;

(c) Root cause analysis;

(d) Calculation of impacts/emissions associated with the non-compliance incidents and dispersion modelling of pollutants, where applicable;

(e) Measures implemented or to be implemented to prevent recurrence; and

(f) Date by which measure will be implemented.

Annual Reporting

The licence holder must complete and submit to the licensing authority an annual report. The report must include information for the year under review. The report must be submitted to the licensing authority not later than 60 (sixty) days after the end of each reporting period. The annual report must include, amongst others, the following items:

(a) Pollutant emissions trend;

(b) Compliance audit report(s);

(c) Major upgrades projects (i.e. abatement equipment or process equipment); and

(d) Greenhouse gas emissions.

The holder of the licence must keep a copy of the annual report for a period of at least 5 (five) years.

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7.9. Investigation and Reviews

This is another decision by the AELA and can include additional information that is required, where the information provided is not adequate, where the quantification methods were unclear, where information was not provided etc. This can also include feasibility studies and other investigations that the AELA deems necessary to bring the industry in line with best practices in that particular industry sector.

Example is provided below:

Investigation Purpose Completion Date

Boiler Stack Monitoring Point source emission compliance monitoring.

12 months after issue of licence.

Coal stockpile maintenance and management

To minimise fugitive dust impacts off-site.

4 months after issue of licence.

Gravel roads maintenance and management

To minimise fugitive dust impacts off-site.

2 months after issue of licence

8. DISPOSAL OF WASTE AND EFFLUENT ARISING FROM AIR POLLUTION MITIGATION MEASURES

The disposal of any waste and effluent arising from any air pollution mitigation measure must comply with the applicable regulations and requirements of the relevant authorities.

Source Code / Name Waste / Effluent Type

Hazardous Components

Present

Method of Disposal

Permit Status

Fly ash from electrostatic precipitators and fabric filter plant hoppers and course (bottom) ash from boiler hoppers.

Ash Alkaline dust containing heavy metal trace elements, as well as silica and quartz.

Combined with recycled water and sent to on site ash dam.

Ash dam not currently licensed – application made to DWAF to register and license ash dam on 4th September 2006.

Recycled effluent water from ash removal system.

Ashing water Effluent alkaline water containing heavy metal trace elements, as well as silica and quartz.

Recycled water used to quench and sluice ash in ash pipelines to ash dam.

Application made to DWAF to register and license effluent water use and storage 4th September 2006.

9. PENALTIES FOR NON-COMPLIANCE WITH LICENCE AND STATUTORY CONDITIONS AND/OR REQUIREMENTS

Failure to comply with any of the licence and relevant statutory conditions and/or requirements is an offence, and licence holder, if convicted, will be subjected to those penalties as set out in section 52 of the AQA.

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6. BEYOND LICENSING: COMPLIANCE MONITORING AND ENFORCEMENT

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

One of the most important concepts to understand about governance in general, is that it involves a ‘cycle’ of steps. For example, governance does not end with the issuing of a licence, but has to be followed by compliance monitoring and enforcement activities. If a licence is issued without any follow-up, namely compliance monitoring and enforcement, it will have little impact on the regulated community. In the same vein, affected communities and individuals will have no faith in the environmental regulatory regime.

It is important to emphasise that in order to ensure that the regulation of emissions is carried out to its desired level of impact, there also needs to be communication between the steps of ‘licensing’, ‘monitoring compliance’ and ‘enforcement’. Lessons learned or findings from compliance monitoring and enforcement activities should be fed back to the process of issuing an AEL in order to help the AELA to improve the quality of the revised AEL. In particular, feedback from these activities can assist in ensuring that an AEL is drafted in a manner that makes it easier to monitor compliance and enforce - thus improving its overall effectiveness.

This means that the Air Quality Practitioners , responsible for drafting and issuing AEL, within the AELA should establish and maintain good working relations with the Environmental Management Inspectors (EMIs), who are legally responsible for compliance monitoring and enforcement actions. Practically, there should be joint meetings every month to discuss issues of concern, joint compliance monitoring site inspections and joint enforcement action initiatives. It is also a good idea to have a standard operating procedure .

6.2. Role of EMIs in compliance monitoring and enforcement activities

In terms of the NEMA, the AQA is regarded as one of the “specific environmental management acts” (SEMAs). Hence, the NEMA provides that all SEMAs are enforced by EMIs. NEMA requires the designation of EMIs after they have undergone training to that effect. The legal mandates, functions and general powers of EMIs are set out in Part-2 of NEMA. As result, the AQA as a SEMA falls within the legal mandate of the EMIs to monitor compliance and to undertake enforcement activities. Therefore, the AEL issued by the AELA are enforced by the EMIs.

Practically, the AELA must ensure that EMIs are designated and/or appointed within its administrations. Depending on the complexity of the activities within the AELA jurisdiction, the AELA must determine the number of EMIs to be designated and/or appointed. Importantly, the AELA must ensure that the EMIs within their jurisdiction are designated to monitor compliance and enforce the AQA.

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7. AEL PROCESSING FEE CALCULATOR ADMINISTRATION PROTOCOL

7.1. Purpose of the protocol

The administration of ‘listed activities’ through the AEL licensing function established in the AQA will be costly to government. The imposition of an AEL Processing Fee represents a just and efficient mechanism for recuperating these administrative costs from polluters . Chapter 5 of the AQA provides the legal basis for the AEL Processing Fee system. The administrative process described in this administration protocol should be read with Chapter 5 of the AQA and AEL Processing Fee Calculator Regulations. The processing fee is intended to cover the costs of the AEL application process and the associated ongoing administrative costs related to the licence. It is, therefore, important for the administrative fees system to be fair, uniform, and consistent across the country . This will strengthen government’s credibility in the area of air quality governance and will also assist industries in planning ahead.

The administration protocol sets out:

• An overview of the policy objectives, legal basis and administrative processes for implementing the AEL Processing Fee System; and

• A guide on the use of the AEL Processing Fee Calculator by the AELA in determining the processing fee.

7.2. Policy objective and legal basis

7.2.1. Policy objective

The policy objective is to give effect to the polluter pays principle. The polluter pays principle as set out in the NEMA suggests that if a polluter imposes either:

• An administrative burden on the Republic; or

• An environmental burden on society (external costs), then the polluter should compensate the Republic and society for these costs.

The management and effective implementation of the AQA will impose significant costs on government. Some, but not all, of these costs arise due to the management requirements for licensed activities and the AEL processing fee system is aimed at recovering this portion of the costs directly related to the administration of licensed activities. This administration includes those activities required for the evaluation of AEL applications and the ongoing compliance monitoring and AEL management activities.

7.2.2. Legal basis

The legal basis for the AEL processing fee stems from the AQA. Specifically:-

• Section 37(2)(a): new AEL application;

• Section 44 (3)(a): transfer application; and

• Section 47(3)(a): renewal application.

There is precedence for the licensing processing fee in South Africa. The fee is akin to the basic/administrative charge (or Tier 1) under the Waste Discharge Charge System (WDCS) of the

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Department of Water Affairs and Forestry17. The basic charge is, according to DWAF, intended to cover the administrative costs of the system, which include water quality monitoring, the management of financial systems and customer relations.

The objectives of the AEL Processing Fee are similar.

The National Treasury has also established a clear policy framework for the use of user charges (fees) and environmental taxes and the AEL processing fee is in line with this policy framework.

7.3. AEL processing fee establishment and implementation overview

The implementation of the AEL processing fee system requires the establishment of the processing fee framework by the DWEA and the administration of this by licensing authorities.

7.3.1. National requirements

The AEL processing fee framework established by the DWEA consists of:

• Operating protocol: a standard operating protocol for licensing authorities;

• Processing fee bands: each applicant will be scored and allocated to one of five processing fee bands;

• Scoring criteria and guidelines: criteria and guidelines for scoring these criteria will be reviewed on an annual basis. This includes the weighting of the banding scores and criteria;

• Associated parameters: the determination of the processing fees requires some additional parameters that may change from time to time. E.g. the interest rate used to determine the annual payments for the processing fee; and

• AEL processing fee calculator: spreadsheet calculator for use in scoring applicants by the licensing authorities.

7.3.2. Implementation by licensing authorities

The AEL processing fee administration process to be carried out by licensing authorities consists of:

• Scoring of applications - the receipt of applications for licensing activities and the scoring of these applications as per the criteria set out in the AEL processing fee calculator. Licensing authorities must apply their minds in applying the criteria in scoring the applications.

• Allocation to bands - the allocation of the scored applications to a processing fee band. This is largely automatic once the scoring has been conducted but licensing authorities will need to apply their minds to the score and ensure that the applicant has been scored fairly.

• Processing fee determination - the actual determination of the processing fee. Again, this is largely automatic but the licensing authority will need to apply its mind to the final processing fee levied and ensure that due care was taken in arriving at the AEL processing fee.

• Invoicing applications - the licensing authority will then prepare and issue an invoice for the applicant.

17 Republic of South Africa, Department of Water Affairs and Forestry, 2003: Water Quality Management

Series. Sub-Series No. MS11. Towards a Strategy for a Waste Discharge Charge System . First Edition. Pretoria.

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• Annual invoicing - the licensing authority will invoice the applicant on an annual basis for the fees payable for the licence. This will require record-keeping of payments due for each licence holder.

• Receipt of revenue - the licensing authority will ensure that invoices are paid by the applicant. It is important to note that licensing authorities should include the annual payment of the processing fees as a licence condition. This approach is fully aligned with the AQA, specifically section 51(1)(e) of AQA which makes it an offence for licence holders who contravenes or fails to comply with a condition or requirement of an atmospheric emission licence.

7.4. AEL processing fee bands and scoring criteria

Each licence application will be allocated to one of five bands for the purposes of processing fee determination. The band in which the applicant falls will directly determine the scale of processing fee to be levied. The criteria in the section below are those to be used to determine the band of licence applications.

Each criterion can be scored on a scale ranging from 1-5 in all cases except one where a 1-3 scale is used. Guidance is provided to licensing authorities on how to choose which score an applicant should be given for each criterion. There is still some measure of judgement that licensing authorities will need to use in scoring applications but the guidelines ensures that there is a high degree of consistency across the Republic.

The DWEA is responsible for reviewing the criteria; scoring guidelines; and the weighting of the criteria on an annual basis. This process allows for feedback from the licensing authorities and improvement of the banding process. Although care will be taken to not make too dramatic changes to the process as this will cause confusion amongst regulated communities and may lead to unequal treatment of the regulated community depending on the timing of their applications. As a result, the amendment of any criteria, scoring guidelines and banding will be fully aligned with any possible amendments to section 21 national listing of activities and associated minimum emission standards.

7.4.1. Description of processing fee bands

The descriptions of the applicable processing fee bands are set out in Table 1 below. It should be noted that the final band score of an applicant is determined by the combination of a number of criteria, each with their own weighting (i.e. contribution to the final score).

Table 1: AEL Processing Fee Bands

APPLICATION BANDS DESCRIPTION

BAND 1 Simple and routine application with low ongoing compliance monitoring responsibilities.

BAND 2 Relatively routine application with relatively low ongoing compliance monitoring responsibilities.

BAND 3 Moderately complex application or moderately onerous ongoing compliance monitoring responsibilities.

BAND 4 Highly complex application with high ongoing compliance monitoring responsibilities.

BAND 5 Very high complex application with high workload and frequent compliance monitoring responsibilities.

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The bands have been evenly distributed along a range from 0 - 100 as shown below.

Table 2: AEL Processing Fee Band Sizes

APPLICATION BANDS BAND SIZE

BAND 1 0 19

BAND 2 20 39

BAND 3 40 59

BAND 4 60 79

BAND 5 80 100

The score of any application is therefore established as follows:

Criteria AScore

Criteria BScore

Criteria CScore

Criteria DScore

Criteria EScore

weight

weight

weight

weight

weight

Total Score

LICENSE FEE BAND

7.4.2. AEL processing fee scoring criteria

The criteria for the scoring of applications for the purposes of allocating them to processing fee bands are explained below. Each table shows the indicator scores for the criteria, guidelines for determining which score is applicable, and the value that each score gets.

7.4.2.1. Scale of emissions

This refers to the scale of the emissions from the facility. The scale of the emissions will often correlate with the size and complexity of the facility. The scale of emissions is an important contributor to the impact and the risk profile of the facility and hence affects the level of compliance monitoring required. The guideline values are based on the total emissions, of all criteria pollutants emitted from the particular facility.

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INDICATOR SCORING GUIDELINES SCORE

Minor Total emissions (excluding GHG) of less than 100 tones/annum 10%

Small Total emissions (excluding GHG) between 101 – 1000 tones/annum 25%

Medium Total emissions (excluding GHG) between 1001 – 10 000 tones/annum 50%

Large Total emissions (excluding GHG) between 10 001 – 100 000 tones/annum 75%

Very large Total emissions (excluding GHG) of more than 100 000 tones/annum 100%

7.4.2.2. Complexity of the application

The complexity of the application indicator refers to the complexity of the industrial process or listed activity, the emissions occurring and the abatement options for these emissions. The complexity of the polluting process or listed activity is a key determinant in the level of effort and resources required in the licensing authority and are also an important determinant in the complexity and costs of compliance monitoring.

INDICATOR SCORING GUIDELINES SCORE

Routine One unit, one process or listed activity 10%

Straightforward Two units, one process or listed activity 20%

Medium Two units, two processes or listed activities 50%

Complex More than two units, more than two processes or listed activities 75%

Extremely Complex Multiple units, multiple processes or listed activities 100%

7.4.2.3. Nature of applicant: SMME status

The nature of the applicant is an important factor in the affordability of the processing fee, and is also a means for government to assist those applicants that have been identified in national government policy as requiring support. The economic size of the enterprise is used here as the key indicator as the small, medium, and micro enterprise (SMME) sector is an important component of the government’s economic policy. The criterion takes into account the total gross asset value (fixed property excluded) of the enterprise.

This criterion is fully aligned with the Department of Trade and Industry (the DTI) policy and legislation on SMMEs, namely National Small Business Act, 1996 (Act No. 102 of 1996). In fact, the guidelines for this criterion were imported from the National Small Business Act, 1996. It must be acknowledged that while the SMMEs are subject to the same environmental controls as other companies’ high AEL processing fees can be potentially crippling to SMMEs.

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INDICATOR SCORING GUIDELINES SCORE

Micro Enterprise If the enterprise totals gross asset value (fixed property excluded) is less than R0. 10 million (One Million Rand) 0%

Very Small Enterprise If the enterprise totals gross asset value (fixed property excluded) is less than R1. 50 million (One Million and Five Hundred Thousand Rand) 10%

Small Enterprise If the enterprise totals gross asset value (fixed property excluded) is less than R3. 75 million (Three Million and Seven Hundred and Fifty Thousand Rand) 30%

Medium Enterprise If the enterprise totals gross asset value (fixed property excluded) is less than R15. 00 million (Fifteen Million Rand) 80%

Large Enterprise If the enterprise totals gross asset value (fixed property excluded) is more than R15. 00 million (Fifteen Million Rand) 100%

7.4.2.4. Type of application

This criterion comes from Chapter 5 of the AQA. Sections 37(2)(a), 44(3)(a) and 47(3)(a) of the AQA requires the payment of the processing fee before the applicant is issued with the AEL. These are new, transfer and renewal applications respectively. The approach is that new application requiring an Environmental Impact Assessment (EIA) to be undertaken before a licence is issued, will take more time from the licensing authority than an application for a transfer. For example, the former will require attending meetings with competent authorities for EIAs, reviewing and commenting on air quality specialist studies and reviewing the EIA Record of Decision. This criterion considers such issues.

INDICATOR SCORING GUIDELINES SCORE

Application for a transfer Application for the transfer of the licence in terms of section 44(3)(a) of the AQA 10%

Application for a renewal Application for the renewal of the licence in terms of section 47(3)(a) of the AQA 25%

New application without a Full EIA (Basic Assessment)

New application for a licence with basic assessment in terms of section 37(2)(a) of the AQA 50%

New application with EIA (Full Assessment)

New application for a licence with a full EIA in terms of section 37(2)(a) of the AQA 100%

7.4.2.5. Risk

The risk that the listed activity poses to the surrounding communities and the environment is not a direct measure of the costs of licence application administration since a risky activity can also be a simple one. However, the more risky an activity the greater the duty of care imposed on the licensing authority, and therefore the greater the time and resources required to ensure that a suitable is developed. Also, the

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more risky an activity the greater the required compliance monitoring and inspection frequency and level of detail which will increase the costs to the licensing authority.

INDICATOR SCORING GUIDELINES SCORE

Low risk from BOTH ambient air quality and nature of emissions

Low risk from BOTH proximity to residential area and hazardous nature of emissions 10%

Medium risk from EITHER ambient air quality or nature of emissions

Medium risk from EITHER proximity to residential area or hazardous nature of emissions 25%

Medium risk from BOTH ambient air quality and nature of emissions

Medium risk from BOTH proximity to residential areas and hazardous nature of emissions 50%

High risk from EITHER ambient air quality or nature of emissions

High risk from EITHER proximity to residential areas or hazardous nature of emissions 75%

High risk from BOTH ambient air quality and nature of emissions

High risk from BOTH ambient air quality and nature of emissions 100%

7.4.2.6. Geographical location

As with the risk the location of the listed activity affects the licensing authority duty of care in terms of licensing authority. The greater the pre-existing pollution burden is in an area the more complicated it will be to develop licence conditions. The licensing authority will need to take into account a greater range of variables, such as the likely pollution from other sources, and is likely to also engage in a higher level of consultation and interaction with stakeholders who are sharing the particular air-shed. Similarly, due to higher pressure on the air-shed, greater attention will need to be paid to emissions monitoring and enforcement since there is less leeway for exceedances.

INDICATOR SCORING GUIDELINES SCORE

Acceptable Acceptable ambient air quality 10%

Potentially poor Potentially poor ambient air quality 50%

Poor Poor ambient air quality (includes any declared Provincial or National Priority Areas)

100%

7.4.2.7. Compliance monitoring and inspection

Compliance monitoring and inspections imposes a significant resource and cost burden on licensing authorities. The compliance monitoring and inspections requirements can differ widely from one application to the other and largely dependent on the level of self monitoring that will be conducted by the applicant. This indicator is meant to capture those listed activities requiring or undertaking independent third party monitoring and audits, and those listed activities requiring regular compliance monitoring and inspections activities by the licensing authorities.

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INDICATOR SCORING GUIDELINES SCORE

Self monitoring and one random inspection required

Self monitoring and one random inspection required 5%

Annual compliance monitoring and inspection required

Annual compliance monitoring and inspection required 15%

Bi-annual compliance monitoring and inspections required

Bi-annual compliance monitoring and inspections required 50%

Quarterly compliance monitoring and inspections required

Quarterly compliance monitoring and inspections required 75%

Frequent compliance monitoring and inspections required

Frequent compliance monitoring and inspections required 100%

7.5. Final scoring of the application

Once the licensing authority has scored the application using the criteria and guidelines set out above, the Processing Fee Calculator will automatically allocate the application a final score. However, the licensing authorities must apply their minds to the score and ensure that the applicant has been scored fairly.

7.6. Allocation to processing fee bands

The allocation of the scored applicant to a processing fee band is a largely automatic once the scoring has been conducted. However, the licensing authorities must apply their minds to the score and ensure that the applicant has been scored fairly.

7.7. AEL processing fee determination

Again, the actual determination of the AEL processing fee is automatic once the final score has been determined. The licensing authorities must, however, apply its mind in the final processing fee levied and ensure that due care was taken in arriving at the processing fee.

7.8. Invoicing

After the determination of the processing fee, the licensing authorities must prepare and issue an invoice for the applicant. The Processing Fee Calculator automatically prepares an invoice but the licensing authorities must ensure that the correct details of the applicant are captured as well as the processing fee levied.

8. AIR QUALITY MANAGEMENT IMPLEMENTATION SUPPORT

The national department in preparation for the official hand over of the AEL Licensing Function to the relevant AELA, on 11 September 2009, have established a dedicated Directorate: Air Quality Management Implementation Support. The purpose of this directorate is to assist and support all AELA when performing the AEL Licensing Function. The staff can be contacted on (012) 310 3069.

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