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Air Quality Management By-law, 2020
- Published in KwaZulu-Natal Provincial Gazette no. 2203 on 13 August 2020
- Assented to on 27 February 2020
- Commenced on 13 February 2021
- [Up to date as at 31 May 2021]
PreambleWHEREAS the Municipality has competence in terms of section 156 (2) of the Constitution of the Republic of South Africa to make and administer By-laws for the effective administration of the matters which it has the right to administer;WHEREAS the Municipality has competence in terms of Part B of Schedule 4 of the Constitution relating to air pollution;WHEREAS the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) provides measures for the protection and enhancement of the quality of air and the prevention of air pollution and ecological degradation;WHEREAS the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) binds all organs of state to provide reasonable measures for the protection and enhancement of the qualty of ambient air for the sake of securing an environment that is not harmful to the health and well being of people;AND WHEREAS the Municipality seeks to manage air quality within its area of jurisdiction to ensure that air pollution is avoided and, where it cannot be altogether avoided, is minimised and remedied;NOW THEREFORE the Municipal Council of the eThekwini Metropolitan Municipality, acting in terms of section 156 read with Schedule 4, Part B of the Constitution of the Republic of South Africa, and read with section 11 of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), hereby makes the following By-law:
Interpretation and objectives
1. DefinitionsIn this By-law, unless the context indicates otherwise—"Act" means the National Environment Management: Air Quality Act, 2004 (Act No. 39 of 2004);"adverse effect" means any actual or potential impact on the environment that impairs or would impair the environment or any aspect of it to an extent that is more than trivial or insignificant;"air pollutant" includes soot, dust, fly ash, cinders, solid particles of any kind, aerosols, odorous substances, smoke, fumes and gas that causes or may cause air pollution;"air pollution" means any change in the environment caused by any substance emitted into the atmosphere from any activity, where that change has an adverse effect on the environment, human health or well-being, or will have such an effect in the future;"air quality officer" means the air quality officer designated as such in terms of section 14 of the Act;"ambient air" means "ambient air" as defined in section 1 of the Act;"atmosphere" means air that is not enclosed by a building, machine, chimney or other similar structure;"atmospheric emission" or "emission" means any emission or entrainment process emanating from a point, non-point or mobile source that results in air pollution;"authorised official" means a person authorised to implement the provisions of this By-law, including but not limited to-(a)peace officers as contemplated in section 334 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977);(b)municipal or metropolitan police officers as contemplated in the South African Police Service Act, 1995 (Act No. 68 of 1995); and(c)such employees, agents, delegated nominees, representatives and service providers of the Municipality as are specifically authorised by the Municipality in this regard: Provided that for the purposes of search and seizure, where such person is not a peace officer, such person must be accompanied by a peace officer;"best practicable environmental option" means the option that provides the most benefit, or causes the least damage to the environment as a whole, at a cost acceptable to society in the long term as well as in the short term;"chimney" means any structure or opening of any kind from which or through which air pollutants may be emitted;"compression ignition powered vehicle" means a vehicle powered by an internal combustion, compression ignition, diesel or similar fuel engine;"dark smoke" means—(a)in respect of Chapter 5 and Chapter 6 of this By-law, smoke which when measured using a light absorption meter, obscuration measuring equipment or other similar equipment, has an obscuration of 20% or greater;(b)in respect of Chapter 4 of this By-law—(i)smoke emitted from the exhaust outlets of naturally aspirated compression ignition engines which has a density of 50 Hartridge smoke units or more or a light absorption co-efficient of more than 1.6m-1 or 18.57 percentage opacity;(ii)smoke emitted from the exhaust outlets of turbo charged compression ignition engines which has a density of 56 Hartridge smoke units or more or a light absorption co-efficient of more than 1.91m-1 or 21.57 percentage opacity;"dust" means any material composed of particles small enough to pass through a 1 mm screen and large enough to settle by virtue of their weight into the sampling container from the ambient air."dwelling" means any building or structure, or part of a building or structure, used as a place of residence and any outbuildings ancillary to it, but excludes informal settlements;"environment" means the surroundings within which humans exist and that are made up of—(a)the land, water and atmosphere of the earth;(b)micro-organisms, plant and animal life;(c)any part or combination of (a) and (b) and the interrelationships among and between them; and(d)the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and well-being;"fuel-burning equipment" means any furnace, boiler, heater, burner, incinerator, or other equipment, including a chimney—(a)designed to burn or capable of burning liquid, gas or solid fuel;(b)used to dispose of any material or waste by burning; or(c)used to subject liquid, gas or solid fuel to any process involving the application of heat; andexcludes standby generators and temporary standby generators producing a combined generation capacity of equal to or less than 50kVa per premises;"light absorption meter" means a measuring device that uses a light sensitive cell or detector to determine the amount of light absorbed by an air pollutant;"listed activity" means any activity listed in terms of the Act;"mobile source" means a single identifiable source of atmospheric emission which does not eminate from a single location;"municipal council" or "council" means the eThekwini municipal council, a municipal council referred to in section 157(1) of the Constitution;"Municipality" means eThekwini Municipality, a category A Municipality as envisaged in terms of section 155(1) of the Constitution of South Africa;"Municipal Manager" means the official of the Municipality appointed as contemplated in section 54A of the Municipal Systems Act;"Municipal Systems Act" means the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);"NAEIS" means National Atmospheric Emission Inventory System;"NEMA" means the National Environmental Management Act, 1998 (Act No. 107 of 1998);"non-point source" means a source of atmospheric emission which cannot be identified as having emanated from a single identifiable source or fixed location and includes veld, forest and open fires, mining activities, agricultural activities and stockpiles;"nuisance" means an unreasonable interference or likely interference caused by air pollution with the—(a)health or well-being of any person or living organism;(b)health or well being of the environment; or(c)the use and enjoyment by an owner or occupier of his or her property or environment;"obscuration" means the ratio of visible light attenuated by air pollutants suspended in the effluent air streams to incident visible light, expressed as a percentage;"open burning" means the combustion of material by burning without a chimney to vent the emitted products of combustion to the atmosphere, and "burning in the open" and "burning of material" has a corresponding meaning;"operator" means a person who owns or manages an undertaking, or who controls an operation or process, which emits air pollutants;"person" means a natural person or a juristic person;"premises" includes—(a)any building or other structure;(b)any adjoining land occupied or used in connection with any activities carried on in that building or structure;(c)any vacant land; and(d)any locomotive, ship, boat or other vessel which operates in the precincts of any harbour,within the area of the jurisdiction of the Municipality;"proclaimed township" means any land unit zoned and utilized for residential purposes;"point source" means a single identifiable source and fixed location of atmospheric emission, and includes smoke stacks and residential chimneys;"smoke" means the gases, particulate matter and products of combustion emitted into the atmosphere when material is burned or subjected to heat and includes the soot, grit and gritty particles emitted in smoke;"specialist study" means any scientifically based study relating to air quality conducted by an expert or recognized specialist of appropriate qualifications and competency in the discipline of air quality management;"spray area" means an area or enclosure referred to in section 24 which must be used for spray painting, and "spray booth" has a corresponding meaning; and"vehicle" means any motor car, motor carriage, motor cycle, bus, motor lorry or other conveyance propelled wholly or partly by any volatile spirit, steam, gas or oil, or by any means other than human or animal power.
2. Interpretation of By-law
3. Objects of By-lawThe objects of this By-law are to-(a)give effect to the right contained in section 24 of the Constitution by regulating air pollution within the area of the Municipality’s jurisdiction;(b)give effect to the Act and ensure that ambient air quality standards are maintained;(c)provide, in conjunction with any other applicable law, an effective legal and administrative framework within which the Municipality can manage and regulate activities that have the potential to adversely impact the environment, public health and well being; and(d)ensure that air pollution is avoided, or where it cannot be altogether avoided, mitigated or minimised.
4. Application of By-law
5. Powers of authorised officialsFor the purpose of discharging his or her duty in terms of this By-law, an authorised official may exercise the powers of an environmental management inspector as set out in NEMA.
Duty of care
6. Reasonable measures to prevent air pollution
Local emission standards, norms and standards and air pollution control zones
7. Legal mandate
8. Substances identification process
9. Publication of local emission standardsThe Municipality must follow a consultative process in terms of chapter 4 of the Municipal Systems Act for the purposes of publication of the local emission standards.
10. Declaration of air pollution control zone
Smoke emissions from premises other than dewllings
11. ApplicationFor the purposes of this chapter, "premises" does not include dwellings.
12. Prohibition of dark smoke from premises
13. Emissions from compressed ignition powered vehicles
14. Installation and operation of fuel-burning equipment
15. Installation and operation of obscuration measuring equipment
16. Monitoring and samplingAn occupier or owner of premises, and the operator of any fuel-burning equipment, who is required to install obscuration measuring equipmentin terms of section 15(1) must —(a)record all monitoring and sampling results and maintain a copy of this record for at least five years after obtaining the results;(b)if requested to do so by an authorised official, produce the record of the monitoring and sampling results for inspection;(c)if requested to do so by an authorised official, conduct stack emission monitoring to validate calculated data for applicable priority pollutants as identified in terms of the Act; and(d)if requested to do so by an authorised official, provide a written report, in a form and by a date specified by the authorised official, of part or all of the information in the record of the monitoring and sampling results.
17. Reporting requirements
18. Temporary exemption
Smoke emissions from dwellings
19. Prohibition of emission of dark smoke from dwellings
Emissions caused by dust, open burning and burning of material
20. Authorisation for open burning and burning of material
21. Prohibition of tyre burning and burning of rubber and other material for the recovery of metal
22. Dust emissionsAny person who —(a)conducts any activity which results in dust emissions; or(b)causes or permits dust emissions to occur,must adopt the best practicable environmental option to the satisfaction of the Municipality, to prevent and abate dust emissions into the atmosphere that may be harmful to public health and well-being or is likely to cause a nuisance to persons residing or present in the vicinity of such land, activity or premises.
23. Sugar cane burning emissions
Emissions that cause a nuisance
24. Prohibition of emissions that cause a nuisance
25. Abatement notice
26. Steps to abate nuisanceThe Municipality may at its own cost take whatever steps it considers necessary in order to remedy the harm caused by the nuisance and prevent a recurrence of it, and may recover the reasonable costs incurred from the person responsible for causing the nuisance.
Offences and penalties
27. Offences and penalties
28. Reporting of emissions in the NAEISAny person who is conducting activities that are listed in Schedule "A" of this By-law or any person that is conducting activities below the threshold that is listed in the Act's list of activities that result in atmospheric emission which have or may have a significant detrimental effect on the environment including health, social conditions, economic conditions, ecological conditions or cultural heritage must register with NAEIS and submit emission data within a period determined by the Municipality.
32. IndemnityThe Municipality and its employees are not liable for any loss or harm suffered by any person, or any damage caused to any property or premises, as a result of the Municipality acting in terms of this By-law: Provided that the Municipality and its employees must, when exercising such function or performing such duty, take reasonable steps to prevent any harm, loss or damage from occuring.
33. Short title and commencementThis By-law is called the eThekwini Municipality: Air Quality Management By-law, 2018 and takes effect six months from the date of publication thereof in the Provincial Gazette or on such earlier date as may be determined by the publication of a commencement notice in the Provincial Gazette.
- Entire By-law
- Chapter 1 – Interpretation and objectives
- Chapter 2 – Duty of care
- Chapter 3 – Local emission standards, norms and standards and air pollution control zones
Chapter 4 – Smoke emissions from premises other than dewllings
- 11. Application
- 12. Prohibition of dark smoke from premises
- 13. Emissions from compressed ignition powered vehicles
- 14. Installation and operation of fuel-burning equipment
- 15. Installation and operation of obscuration measuring equipment
- 16. Monitoring and sampling
- 17. Reporting requirements
- 18. Temporary exemption
- Chapter 5 – Smoke emissions from dwellings
- Chapter 6 – Emissions caused by dust, open burning and burning of material
- Chapter 7 – Emissions that cause a nuisance
- Chapter 9 – Offences and penalties
- Chapter 9 – General matters
History of this By-law
13 February 2021By-law commences.
13 August 2020 this versionPublished in KwaZulu-Natal Provincial Gazette no. 2203
27 February 2020Assented to by council.