Air Quality

Jurisdiction: South Africa · Bergrivier
Date: 3 July 2020
Language: English
Type: Legislation
Download: Download PDF (363.9 KB)

Air Quality By-law, 2020

Published in Western Cape Provincial Gazette 8261 on 3 July 2020
Commenced on 3 July 2020
[This is the version of this document from 3 July 2020 and includes any amendments published up to 14 July 2023.]

Preamble

The Council of the Bergrivier Local Municipality acting in terms of section 156(2) of the Constitution of the Republic of South Africa, 1996. Read with section 13(a) of the Local Government Municipal Systems Act, 2000 (Act No. 32 of 2000) and section 11(1) of the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) has made the Air Quality By-law hereunder.And Whereas the Bergrivier Local Municipality seeks to ensure the management of air quality and the control of air pollution within the area of jurisdiction of the Bergrivier Local Municipality and to ensure that air pollution is avoided or, where it cannot be altogether avoided, minimised and remedied.And now therefore, be it enacted by the Council of Bergrivier Local Municipality, as follows:

Part I – Intepretation and objectives

1. Definitions

In this By-law, except as otherwise expressly provided, or unless the context otherwise requires:-"adverse effect" means any actual or potential impact on the environment that impairs, or would impair the environment or any aspect of it to an extent that is more than trivial or insignificant;"air pollutant" means any substance (including but not limited to dust, smoke, fumes and gas) that causes or may cause air pollution;"air pollution" means any change in the environment caused by any substance emitted into the atmosphere from any activity, where that change has an adverse effect on human health or well-being or on the composition, resilience and productivity of natural or managed ecosystems, or on materials useful to people, or will have such an effect in the future;"air pollution control zone" means the geographical area to which Part Ill of the By-law is declared to apply;"Air Quality Act" means the National Environment Management: Air Quality Act, 2004 (Act No. 39 of 2004);"atmosphere" means air that is not enclosed by a building, machine, chimney or other such structure;"atmospheric emission" or "emission" means energy or substance or combination of substances emanating from a point, non- point or mobile source that results in air pollution;"authorised person" means any person authorised by the Municipality to implement any provision of this By-law;"best practicable means" means the most effective measures that can reasonably be taken to prevent, reduce or minimize air pollution, having regard to all relevant factors including among others, local conditions and circumstances, the likelihood of adverse effects, the current state of technical knowledge and the financial implications relative to the degree of environmental protection expected to be achieved by application or adoption of the measures;"boiler" means a fuel-burning apparatus or container for heating water;Less than 10 megawatt (MW) (small boilers) falls under the mandate of the Local Municipality.More than 10 megawatt (MW); less than 50 megawatt (MW) (controlled emitters) falls under the mandate of the District Municipality.More than 50 megawatt (MW) (Listed activity) falls under the mandate of the District Municipality."By-law" means the Bergrivier Local Municipality Air Quality By-law;"chimney" means any structure or opening of any kind from or through which air pollutants may be emitted;"compression ignition powered vehicle" means a vehicle powered by an internal combustion compression ignition, diesel or petrol driven engine;"Constitution of South Africa" means the Constitution of the Republic of South Africa, 1996;"controlled emitter" means any appliance or activity declared as a controlled emitter in terms of section 23 of the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004);"dark smoke" means in respect of Part I of this bylaw:smoke which has a density of 60 Hartridge smoke units or more, provided that in relation to emissions from turbo-charged compressed ignition powered engines, it means a density of 66 Hartridge smoke units or more; orsmoke which has a light absorption co-efficient of more than 2.125m, provided that in relation to emissions from turbo-charged compressed ignition powered engines, it means a light absorption coefficient of more than 2.51 m;"dust" means any solid matter in a fine or disintegrated form which is capable of being dispersed or suspended in the atmosphere;"dwelling" means any building or other structure, or part of building or structure, used as a dwelling, and any outbuildings ancillary to it, but excludes shacks and informal settlements;"environment" means the surroundings within which humans exist and that are made up of–(a)the land, water and atmosphere of the earth,(b)micro-organisms, plant and animal life;(c)any part or combination of (a) and (b) and the interrelationships among and between them; and(d)the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and well-being;"EMI" means Environmental Management Inspector"free acceleration test" means the method described in section 22 employed to determine whether vehicles are being driven or used in contravention of section 20(1);"fuel-burning equipment" means any furnace, boiler, incinerator, or other equipment, including a chimney;(a)designed to burn or capable of burning liquid, gas or solid fuel;(b)used to dispose of any material waste by burning; or(c)used to subject liquid, gas or solid fuel to any process involving the application of heat; but excluding listed activities and controlled emitters;"fumes" means any pungent or toxic vapour, gas or smoke including but not limited to diesel fumes, spray painting fumes and exhaust fumes;"guideline" means the West Coast District Municipality Guideline on transportation, storage and handling of manganese and other potentially hazardous ores and concentrates;"Hartridge Smoke meter" means a type of exhaust gas measurement meter"light absorption meter" means a measuring device that uses a light-sensitive cell or detector to determine the amount of light absorbed by an air pollutant;"listed activity" means a list of activities contemplated in section 21(1) (a) of the National Environment Management: Air Quality Act, 2004 (Act no. 39 of 2004);"living organism" means any biological entity capable of transferring or replicating genetic material, including sterile organisms and viruses;"MEC" means the member of the Executive Council of a Province who is responsible for air quality management in the Province;"mobile source" means a single identifiable source of atmospheric emission which does not emanate from a fixed location;"Municipality" means the Bergrivier Local Municipality and includes any political stature, political office bearer, duly authorised agent thereof, or a service provider fulfilling a responsibility under this By-law assigned to it in terms of the Local Government Municipal Systems Act. 2000 (Act 32 of 2000) or any other law, as the case may be, or any employee thereof acting in connection with this By-law by virtue of a power vested in the Municipality and delegated, to such political structure political office bearer, agent or employee;"Municipal Manager" means a person appointed as such by the Municipality in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act.117 of 1998);"non-point source" means a source of atmospheric emissions which cannot be identified as having emanated from a single identifiable source or fixed location, and includes veld, forest and open fires, mining activities, agricultural activities and stockpiles;"nuisance" means an unreasonable interference or likely interference caused by air pollution with:(a)the health or well-being of any person or living organism; or(b)the use or enjoyment by an owner or occupier of his or her property;(c)the ordinary comfort, convenience, peace or quiet of another person; and(d)the natural state of the environment;"offensive odours" means any smell which is considered to be malodorous or a nuisance to a reasonable person;"open burning" means the combustion of material by burning without a chimney to vent the emitted products of combustion to the atmosphere, and "burning in the open" has a corresponding meaning;"operator" means a person who owns or manages an undertaking, or who controls an operation or process, which emits air pollutants;"person" means a natural person or a juristic person;"point source" means a single identifiable source and fixed location of atmospheric emission, and includes smoke stacks and residential chimneys;"proclaimed township" means any land unit zoned and utilized for residential purposes;"premises" means any building or other structure together with the land on which it is situated and any adjoining land occupied or used in connection with any activities carried on in that building or structure, and includes any land without any buildings or other structures and any locomotive, ship, boat or other vessel which operates or is present within the area under the jurisdiction of the Municipality or the precincts of any harbour;"public road" means a road which the public has the right to use;"smoke" means the gases particulate matter and products of combustion emitted into the atmosphere when material is burned or subjected to heat and includes the soot grit and gritty particles emitted in smoke;"SANAS" means the South African National Accreditation System;"Systems Act" means the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);"the NEMA" means the National Environmental Management Act, 1998 (Act No.107 of 1998);"vehicle" means any motor, car, motor carriage, motor cycle, bus motor lorry or other conveyance propelled wholly or partly by any volatile spirit, steam, gas or oil, or byany means other than human or animal power.

2. Application, principles and objectives

(1)The purpose and objectives of this by-law is:

(a)To give effect to the right contained in section 24 of the Constitution of the Republic of South Africa 1996 and the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004), by controlling air pollution within the area of the Municipality's jurisdiction;

(b)To ensure that air pollution is avoided or minimised if it cannot be avoided and remedied.

(2)The Municipality is aware of the Constitutional right of every person to have an environment that is not harmful to his or her health or well-being. The Municipality therefore adopts this By-law with the aim of protecting and promoting the health and well-being of all people in the Bergrivier Municipal area by providing, in conjunction with applicable laws, a legal and administrative framework within which the Municipality can develop and manage its obligations.

(3)In the implementation and enforcement of this By-law, the Municipality may take into consideration the realities of the Bergrivier Municipal area, the different customs, cultures, circumstances, geographical areas, kinds of property levels of development and conventions and the Municipality may use the devices provided for in this By-law, including the application of different norms, standards and guidelines, the granting of exemptions and the utilisation of liaison forums as contemplated in section 45 of this By-law.

3. Municipality’s right of access to premises

(1)The Municipality shall, have access to or over any premises for the purpose of –

(a)doing anything authorised or required to be done by the Municipality under this By-law or the National Environmental Management: Air Quality Act, 2004 (Act 39 of 2004) or any other law regulating air quality matters;

(b)inspecting and examining atmospheric emissions or anything connected therewith;

(c)enquiring into and investigating any possible sources of atmospheric emissions or the suitability of immovable property for any work, scheme or undertaking that results in atmospheric emissions;

(d)ascertaining whether there is or has been contravention of the provisions of this By-law or the National Environmental Management: Air Quality Act, 2004 (Act 39 of 2004); and

(e)enforcing compliance with the provisions of this By-law or the National Environmental Management: Air Quality Act, 2004 (Act 39 of 2004).

(2)The Municipality may, by notice in writing, email, telephonically or verbally served on the owner or occupier of any premises, require such owner or occupier to provide, on the day and at the hour specified in such notice, access to such premises to an authorised person and for a purposed referred to in sub-section (1).

(3)The Municipality, may gain access to, or over any property without notice and may take whatever steps or action as may, in its opinion, be necessary or desirable in consequence of the existence of, or the occurrence of any emergency or disaster, or for the purpose of sub-section (1)(d).

Part II – Duty of care

Provisions in this section must be aligned with the West Coast District Municipality Guideline on transportation, storage and handling of manganese and other potentially hazardous ores and concentrates.

4. Duty to take care

(1)Any person who is wholly or partially responsible for causing air pollution or creating a risk of air pollution occurring must take all reasonable measures:

(a)to prevent any potential air pollution from occurring; and

(b)to mitigate and, as far as reasonably possible, to remedy any air pollution that has occurred.

(2)The Municipality may monitor the impact and effectiveness of the measures taken in terms of subsection (1) and, if necessary, issue instructions to a person contemplated in subsection (1) with regard to specific measures to be undertaken.

(3)The Municipality may direct any person who fails to take the measures required under subsection (1) and (2) –

(a)to investigate, evaluate and assess the impact of specific activities and report thereon;

(b)to commence taking effective control measures to reduce the air pollution before a given date;

(c)to diligently continue with those measures; and

(d)to complete the measures before a specified reasonable date.

(4)Should a person fail to comply, or inadequately comply, with a directive under subsection (3), the Municipality may take reasonable measures to remedy the situation. The person not complying to subsection (3) will be liable for the remedial costs.

(5)If any person fails to take the measures required of him or her under subsection (1) or (2), the Municipality may recover all reasonable costs incurred as a result of it acting under subsection (4), from any or all of the following persons–

(a)any person who is or was responsible for, or who directly or indirectly contributed to, the air pollution or the potential air pollution;

(b)the owner of the land at the time when the air pollution or the potential for air pollution occurred, or that owner's successor in title;

(c)the person in control of the land or any person who has or had a right to use the land at the time when –

(i)the activity or the process in question is or was performed or undertaken; or

(ii)the situation came about; or

(d)any person who negligently failed to prevent –

(i)the activity or the process being performed or undertaken; or

(ii)the situation from coming about.

(6)If more than one person is liable under subsection (5), the liability may be apportioned among the persons concerned according to the degree to which each was responsible for the harm to the environment resulting from their respective failures to take the measures required under subsection (1), (2) and (3);

(7)Transportation, on and off-loading, storage and further distribution of ores, concentrates and other dusty materials within the Bergrivier Municipal area and transportation through the Bergrivier Municipal area, must be done in such a manner so as to avoid the spread of particulate matter. The West Coast District Municipality Guideline on transportation, storage and handling of manganese and other potentially hazardous ores and concentrates, must be used in conjunction with this By-law for any applications of this nature.

Part III – Air pollution control zone

5. Declaration of air pollution control zone

(1)The whole area within the jurisdiction of the Municipality is hereby declared an air pollution control zone.

(2)Within an air pollution control zone the Municipality may from time to time by notice in the Provincial Gazette:

(a)prohibit or restrict the emission of one or more air pollutants from all premises or certain premises;

(b)Prohibit or restrict the combustion of certain types of fuel;

(c)Prescribe different requirements in an air pollution control zone relating to air quality in respect of:

(i)different geographical portions;

(ii)specified premises;

(iii)classes of premises; or

(iv)premises used for specified purposes.

(3)The Municipality may develop and publish policies and guidelines, including technical guidelines, relating to the regulation of activities which directly and indirectly cause air pollution within an air pollution control zone.

(4)Subject to sections 15 and 45, the Municipality may in writing exempt certain premises, classes of premises or premises used for specified purposes from the operation of measures adopted by the Municipality under this section.

Part IV – Designation of the air quality officer and the Environmental Management Inspector

6. Designation or appointment of the air quality officer and the Environmental Management Inspector

(1)The Municipal Manager must designate or appoint an employee of the Municipality as the air quality officer responsible for co-ordinating matters pertaining to air quality management within the Municipal area.

(2)The Council may request the MEC responsible for environment in the Province to appoint Environmental Management Inspector/ s in terms of section 31C of the National Environmental Management Act, Act 107 of 1998.

7. Duties and functions of the air quality officer and the environmental management officers

(1)The air quality officer must –

(a)co-ordinate the development of the air quality management plan for inclusion in the Integrated Development Plan of the Municipality, in accordance with Chapter 5 of the Systems Act;

(b)prepare an annual report of the Bergrivier Municipality on air quality;

(c)exercise the duties and powers assigned to him or her under this By-law under the directions of the Council; and

(d)submit the annual report referred to in paragraph (b) to the air quality officer appointed by the MEC responsible for environment in the Province.

(2)The annual report referred to in subsection (1)(b) must, amongst others, include the progress of the Bergrivier Municipality towards the implementation of the air quality management plan.

(3)The Environmental Management Inspector’s duties –

(a)in terms of Chapter 7 of the NEMA, the functions of the Environmental Management Inspectors (EMI’s) are to monitor compliance with, and enforce the NEMA and specific environmental management legislation. The MEC designates officials to be EMI’s and allocate the mandates to the EMI’s. Section 31 (G) of NEMA indicates some of the functions of the EMI, and this to be related to his or her designated mandate (NEMA: Section 31 D).

(b)General powers of an EMI as follows, but not limited to:they may question a person,issue a written notice,inspect any documents andtake photographs and samples,remove any waste or matter deposited or discharged in contravention of the law,seizure of items,powers to stop, enter and search vehicles, vessels and aircraft,routine inspections andthe power to issue compliance orders (NEMA: Section 31 H, I, J, K and L).

(c)Officials designated as EMI’s in terms of the NEMA are able to enforce all necessary legislation and By-laws within the Municipal area.

Part V – Smoke emissions from premises other than dwellings

8. Application

For the purposes of this Part, "premises" does not include dwellings.

9. Prohibition

(1)Subject to subsection (2) smoke must not be emitted from any premises for an aggregate period exceeding three minutes during any continuous period of thirty minutes.

(2)This section does not apply to smoke which is emitted from fuel-burning equipment, which occurs while the equipment is being started or while the equipment is being overhauled or repaired, or awaiting overhaul or repair, unless such emission could have been prevented using the best practicable means available.

(3)If smoke is emitted in contravention of subsection (1) the owner, operator and/ or the occupier of the premises shall be guilty of an offence.

10. Installation of boilers and fuel-burning equipment

(1)No person shall install, alter, extend or replace any boiler or fuel-burning equipment on any premises without the prior written authorization of the Municipality, which may only be given after consideration of the relevant plans and specifications.

(2)Any boiler or fuel-burning equipment installed, altered, extended or replaced on any premises in accordance with plans and specifications submitted to and approved, for the purposes of this section, by the Municipality shall be presumed until the contrary is proved to comply with the provisions of subsection (1).

(3)Where boilers or fuel-burning equipment has been installed, altered, extended or replaced on any premises in contravention of subsection (1):

(a)the owner and occupier of the premises and the installer of the fuel-burning equipment shall be guilty of an offence;

(b)the Municipality may, on written notice to the owner and occupier of the premises, order the removal of the fuel-burning equipment from the premises at the expense of the owner and/ or operator and within the period stated in the notice.

11. Operation of boilers and fuel-burning equipment

(1)No person shall use or operate any boiler or fuel-burning equipment on any premises contrary to the authorization referred to in section 10.

(2)Where boilers or fuel-burning equipment has been used or operated on the premises in contravention of subsection (1):

(a)the owner and occupier of the premises and the operator of the fuel-burning equipment shall each be guilty of an offence;

(b)The Municipality may on written notice to the owner and occupier of the premises:

(i)revoke its authorization under section 10; and

(ii)order the removal of the fuel-burning equipment from the premises at the expense of the owner and operator and within the period stated in the notice.

(3)All generators to be sound proofed for example by cladding or silencers fitted. Generators not to cause any nuisance to the public, residents or any person and to be situated in such a way as to not cause vibration. Adequate ventilation to be ensured at all times and compliance at all times to the Western Cape Noise Control Regulations, 2013 in line with the SANS 10103:2008 requirements.

12. Presumption

In any prosecution for an offence under section 9 smoke shall be presumed to have been emitted from premises if it is shown that any fuel or material was burned on the premises and the circumstances were such that the burning would be reasonably likely to give rise to the emission of smoke, unless the owner, occupier or operator, as the case may be, shows that no smoke was emitted.

13. Installation and operation of measuring equipment

(1)An authorised person may give notice to any operator of fuel-burning equipment or any owner or occupier of premises on which fuel-burning equipment is used or operated, or intended to be used or operated, to install, maintain and operate measuring equipment at his or her own cost; if:

(a)unauthorised and unlawful emissions of smoke from the relevant premises have occurred consistently or regularly

(b)fuel-burning equipment has been or is intended to be installed on the relevant premises which is reasonably likely in the opinion of an authorised person to emit smoke;

(c)the person on whom the notice is served has been convicted more than once under this Part V and has not taken adequate measures to prevent further contravention of the provisions of this Part; or

(d)the authorised person considers that the nature of the air pollutants emitted from the relevant premises is reasonably likely to create a hazard or nuisance to human health or the environment.

14. Monitoring and sampling

(1)An occupier or owner of premises, and the operator of any boiler or fuel-burning equipment, who is required to install air pollution measuring equipment in terms of section 13(1) must:

(a)record all monitoring and sampling results and maintain a copy of this record for at least four years after obtaining the results;

(b)if requested to do so by an authorised person, produce the record of the monitoring and sampling results for inspection;

(c)if requested to do so by an authorised person, provide a written report (in a form and by a date specified by the authorised person) of part or all of the information in the record of the monitoring and sampling results; and

(d)ensure that the air pollution measuring equipment is calibrated at a SANAS accredited laboratory, at least once per year or at intervals as specified by the manufacturer of the equipment. Provide records of such calibration on request by the authorised person.

15. Exemption

(1)Subject to section 31 and on application in writing by the owner or occupier of premises or the operator of fuel-burning equipment, the Municipality may grant a temporary exemption in writing from one or all the provisions of this Part.

(2)Any exemption granted under subsection (1) must state at least the following:

(a)a description of the fuel-burning equipment and the premises on which it is used or operated

(b)the reasons for granting the exemption;

(c)the conditions attached to the exemption, if any;

(d)the period for which the exemption has been granted; and

(e)any other relevant information

16. Burning permits

(1)Process for the application for burning permits within the Bergrivier Municipal Area are as follows:

(a)The West Coast District Municipality Fire and Rescue Services Department to be contacted to request a burning permit application form. Costs will be applicable to all non-members to the Greater Cederberg Fire Protection Association. Members will not be required to pay an application fee.

(b)The completed form to be submitted to the West Coast District Municipality Fire and Rescue Services Department in which it will be evaluated and a response generated to the applicant.

(c)The following will be evaluated but not necessarily limited to:necessary firebreaks in place,required and necessary training to the personnel andnecessary equipment to ensure safe execution of the planned fires.

Part VI – Smoke emissions from dwellings

17. Smoke emission from dwellings

(1)Subject to section 4, no person shall emit or permit the emission of smoke from any dwelling that may cause a nuisance.

(2)Any person who emits or permits the emission of smoke in contravention of subsection (1) commits an offence.

(3)Subject to sections 15 and 45 on application in writing by the owner or occupier of any dwelling, the Municipality may grant temporary exemption in writing from one or all of the provisions of this Part.

Part VII – Emission caused by open burning

18. Emission caused by open burning

(1)Subject to subsection (4), any person who carries out open burning of any material on any land or premises is guilty of an offence, unless prior written authorization from the Municipality, which may include the imposition of further conditions with which the person requesting authorization must comply, has been obtained.

(2)The Municipality may not authorize open burning under subsection (1) unless it is satisfied that:

(a)the applicant in terms of subsection (1) has investigated and assessed every reasonable alternative for reducing, re-using or recycling the material in order to minimize the amount of material to be burnt in the open, to the satisfaction of the Municipality;

(b)no warning has been published for the region in terms of section 10(1) (b) of the National Veld and Forest Fire Act, 1998 (Act 101 of 1998);

(c)the open burning will not pose a nuisance or potential hazard to human health or safety, private property or the environment; and

(d)the prescribed fee (if applicable) has been paid to the Municipality.

(3)Any person who undertakes or permits to be undertaken open burning in contravention of subsection (1) commits an offence.

(4)The provisions of this section shall not apply to:

(a)recreational outdoor barbecue or braai activities on private premises;

(b)small controlled fires in informal settlements for the purposes of cooking heating water and other domestic purposes; or

(c)any other defined area or defined activity to which the Municipality has declared this section not to apply.

19. Emission caused by tyre burning and burning of rubber products and cables in open spaces

(1)No person may carry out or permit the burning of any tyres, rubber products, cables or any other products on any land or premises for any purpose, for the purposes of recovering the scrap metal or fibre reinforcements, or of disposing of tyres, of the rubber products or cables as waste.

(2)Any person who contravenes subsection (1) commits an offence.

Part VIII – Emissions from compression ignition powered vehicles

20. Prohibition

(1)No person may drive or use or cause to be driven or used, a compression ignition powered vehicle that emits dark smoke.

(2)If dark smoke is emitted in contravention of subsection (1) the owner and the driver of the vehicle shall each be guilty of an offence.

(3)For purposes of this section the registered owner of the vehicle shall be presumed to be the driver unless the contrary is proven.

21. Stopping of vehicles for inspection testing and testing

(1)In order to enable an authorised person to enforce the provisions of this Part, the driver of a vehicle must comply with any reasonable direction given by an authorised person:

(a)to stop the vehicle; and

(b)to facilitate the inspection or testing of the vehicle.

(2)Failure to comply with a direction given under subsection (1) is an offence.

(3)When a vehicle has stopped in compliance with a direction given under subsection (1), the authorised person may:

(a)when instructed to do so by the authorised person, the driver must start the vehicle, place it in neutral gear, engage the clutch and disengage the exhaust brake;

(b)the authorised person or the driver of the vehicle must in less than one second smoothly and completely depress the accelerator throttle pedal of the vehicle;

(c)while the throttle pedal is depressed, the authorised person must measure the smoke emitted from the vehicle's emission system with a Hartridge Smoke meter in order to determine whether or not it is dark smoke; and

(d)the authorised person or the driver of the vehicle may only release the throttle pedal of the vehicle, when directed to do so by the authorised person.

(3)If, having conducted the free acceleration test, the authorised person is satisfied that the vehicle:

(a)is not emitting dark smoke, then the authorised person must furnish the driver of the vehicle with a certificate indicating that the vehicle is not being driven or used in contravention of section 20(1); or

(b)is emitting dark smoke, the authorised person must issue the driver of the vehicle with:

(i)a notice to pay a fine in terms of section 341 of the Criminal Procedure Act, Act 51 of 1977;

(ii)a repair notice in accordance with section 23.

22. Testing procedure

(1)An authorised person must use the free acceleration test method in order to determine whether a compression ignition powered vehicle is being driven or used in contravention of section 20(1).

(2)The following procedure must be adhered to in order to conduct a free acceleration test:

(a)when instructed to do so by the authorised person, the driver must start the vehicle, place it in neutral gear, engage the clutch and disengage the exhaust brake;

(b)the authorised person or the driver of the vehicle must in less than one second smoothly and completely depress the accelerator throttle pedal of the vehicle;

(d)the authorised person or the driver of the vehicle may only release the throttle pedal of the vehicle, when directed to do so by the authorised person.

(3)If, having conducted the free acceleration test, the authorised person is satisfied that the vehicle:

(b)is emitting dark smoke, the authorised person must issue the driver of the vehicle with:

(i)a notice to pay a fine in terms of section 341 of the Criminal Procedure Act, Act 51 of 1977;

(ii)a repair notice in accordance with section 23.

23. Repair notice

(1)A repair notice must direct the owner of the vehicle to take the vehicle to a place identified in the notice for re-testing.

(2)The repair notice must contain the following information:

(a)the make, model and registration number of the vehicle;

(b)the name, address and identity number of the driver of the vehicle; and, if the driver is not the owner, the name and address of the vehicle owner;

(c)the measures required to remedy the situation; and

(d)the time period within which the owner of the vehicle must comply with the repair notice.

(3)A person who fails to comply with the requirements and conditions of the notice in terms of sub section (1) commits an offence.

(4)It shall not be a defence in proceedings under subsection (3) to state that the driver of the vehicle failed to bring the repair notice to the attention of the owner of that vehicle.

Part IX – Emissions that cause a nuisance

24. Prohibition

(1)No person shall, within the area of jurisdiction of the Municipality –

(a)cause a nuisance inside an approved spray area or spray booth; spray or apply any coat, plate or epoxy coat to any vehicle, article or object;

(b)outside an approved spray area or spray booth, allow any spray, coat, plate or epoxy coat to be applied to any such vehicle, article or object.

(2)The spray area or spray booth referred to in subsection (1) must be constructed and equipped in such a manner that complies with the General Safety Regulations promulgated in terms of the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993) and must be approved by the authorised person, for emissions, mechanical ventilation, noise and any other relevant department as may be required by any other law.

(3)Any person conducting sand blasting, shot blasting, grinding, finishing or similar activity which customarily produce emissions of dust that may be harmful to public health or cause a nuisance shall take control measures to prevent emissions into the atmosphere.

(4)Any person undertaking an activity referred to in (3) must implement the following control measures:

(a)dust extraction control measures; and

(b)any alternative control measure approved by the air quality officer or his or her delegated representative.

(5)An occupier or owner of any premises –

(a)must prevent the existence in, or emission of any nuisance from his or her premises;

(b)storage of material that may give rise to odour must be kept in a manner to prevent such a nuisance; and

(c)from which a nuisance emanates, or where a nuisance exists, is guilty of an offence.

25. Compliance notice

(1)An authorised person may serve a notice on any person whom he or she reasonably believes is likely to commit or has committed an offence under section 24, calling upon that person;

(a)to abate the nuisance within a period specified in the notice;

(b)to take all necessary steps to prevent a recurrence of the nuisance; and

(c)to comply with any other conditions contained in the notice.

(2)For the purposes of subsection (1), an authorised person may form a reasonable belief based on his or her own experience that an air pollutant was emitted from premises occupied or owned by the person on whom the compliance notice is to be served.

(3)A compliance notice under subsection (1) may be served:

(a)upon the owner of any premises, by:

(i)delivering it to the owner;

(ii)transmitting it by registered post to the owner's last known address; or

(iii)delivering it to the address where the premises is situated if the owner's address is unknown;

(b)upon the occupier of the premises, by:

(i)delivering it to the occupier; or

(ii)transmitting it by registered post to the occupier at the address at which the premises is situated.

(4)Any person who fails to comply with a compliance notice served on that person in terms of subsection (1) commits an offence. As stipulated in Section 31 (N) of the NEMA; failure to comply with a compliance notice must be reported to the MEC and necessary steps to be taken as well as fines and imprisonment may be applicable.

(5)In addition to any other penalty that may be imposed, a court may order a person convicted of an offence under subsection (4) to take steps the court considers necessary within a period determined by the court in order to prevent a recurrence of the nuisance.

26. Steps to abate a nuisance

At any time, the Municipality may at its own cost take whatever steps it considers necessary in order to remedy the harm caused by the nuisance and prevent a recurrence of it, and may recover the reasonable costs so incurred from the person responsible for causing the nuisance.

Part X – Offensive odours

27. Prohibition of emissions that cause offensive odours

(1)No person shall, within the area of jurisdiction of the Bergrivier Municipality undertake any listed activity and/ or part of any listed activity or controlled emitter in terms of Section 21 and 23 of the National Environmental Management: Air Quality Act, 39 of 2004; without the required approval and license issued by West Coast District Municipality.

(2)No person shall, within the area of jurisdiction of the Bergrivier Municipality conduct any listed activity and/ or part of any listed activity or controlled emitter which cause an offensive odour that is in contravention of the Atmospheric Emission Licence conditions or minimum emission standards published in terms of Section 21 and 23 of the National Environmental Management: Air Quality Act, 39 of 2004.

(3)Any person conducting listed and/ or controlled emitter activities that produce emissions of offensive odours that may be harmful to public health and/ or well-being or cause a nuisance that is in contravention of Atmospheric Emission Licence conditions or minimum emission standards published in terms of Section 21 and 23 of the National Environmental Management: Air Quality Act, 39 of 2004, must take control measures to prevent odorous emissions into the atmosphere.

(4)Any person conducting any non-listed activity that produce emissions of offensive odours that may be harmful to public health and/ or well-being or cause a nuisance, must take control measures to prevent odorous emissions into the atmosphere as stated in Section 35(2) of the National Environmental Management: Air Quality Act, 39 of 2004.

(5)Any person undertaking an activity referred to in subsection (3) and (4) must implement the necessary measures such as, but not limited to, monitoring or any other measure determined by the authorised person to identify the substance(s) causing the offensive odour.

(6)Any person undertaking an activity referred to in subsection (3) and (4) must implement the necessary offensive odour control measures and any alternative control measure approved by the air quality officer or his or her delegated representative.

(7)If an occupier or owner of any premises from which an offensive odour emanates, or where an offensive odour exists, refuses to control the offensive odour or refuses to implement the control measures referred to in subsection (4) is guilty of an offence.

28. Abatement notice

(1)An authorised person may serve an abatement notice on any person whom he or she reasonably believes is likely to act contrary to or has acted contrary to section 27, calling upon that person –

(a)to abate the offensive odour within a period specified in the notice;

(b)to take all necessary steps to prevent a recurrence of the offensive odour; and

(c)to comply with any other conditions contained in the notice.

(2)An abatement notice under subsection (1) may be served –

(a)upon the owner of any premises, by-

(i)delivering it to the owner; or

(ii)transmitting it by registered post to the last known address of the owner; or

(iii)delivering it to the address where the premises is situated, if the address of the owner is unknown.

(b)upon the occupier of premises, by –

(i)delivering it to the occupier; or

(ii)transmitting it by registered post to the occupier at the address at which the premises is situated.

Part XI – Dust nuisance

29. Control of dust

(1)The occupier or owner of any premises, including mining and mining related activities, must take all reasonable steps to prevent the creation of nuisance by dust caused by any activity on such premises as stated in Section 32 of the National Environmental Management: Air Quality Act, 39 of 2004. All trucks must be covered with tarpaulin covers when transporting material as to prevent wind-blown dust to all people, premises and the surrounding environment on route, and to ensure compliance to Section 24 of the Constitution of South Africa.

(2)Any person who emits or permits the emission of dust in contravention of subsection (1) commits an offence.

30. Sand blasting emissions

(1)Any person conducting sand blasting activities which usually produce emissions of dust that may be harmful to public health, well-being or cause a nuisance; shall take control measures to prevent emissions into the atmosphere.

(2)Any person who undertakes any sand blasting activity that causes dust emissions must implement the following control measure:

(a)dust extraction control measure; or any alternative dust control measure approved in writing by the air quality officer

(3)A person that contravenes subsections (1) and (2) commits an offence.

Part XII – Fume nuisance

31. Control of fumes

(1)The occupier or owner of any premises must take all reasonable steps to prevent the nuisance by fumes caused by any activity on such premises.

(2)Any person who emits or permits the emission of fumes in contravention of subsection (1) commits an offence.

Part XIII – Pesticide spraying emissions

32. Pesticide spraying emissions

(1)No person may carry out or permit the spraying of pesticides, except as permitted by section 3 of the Fertilisers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 (Act No. 36 of 1947).

(2)Any person who contravenes subsection (1) is guilty of an offence, as set out in section 18(1)(c) of the Fertilisers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 (Act No. 36 of 1947).

(3)A person who carries out or permits the spraying of pesticides within the Municipal jurisdiction; must also comply with the following controlled measures:

(a)prior written authorisation of the Council must be obtained, such authorisation may be granted by the Council with conditions, including-

(i)the area of land on which the pesticide may be applied; and

(ii)the period of time in which the pesticide may be applied.

(b)prior to spraying commences; the applicant must notify in writing the owners and occupiers of all adjacent properties within 150 metres of the treatment area of:

(i)the details of the proposed treatment area;

(ii)the reason for the pesticide use;

(iii)the active ingredient;

(iv)the date and approximate time of the pesticide use;

(v)in the event of inclement weather conditions, an alternative date or dates on which the pesticide use may occur;

(vi)the time, if any, indicated on the product label specifying when the area can safely be re-entered after application; and

(vii)the right of owners and occupiers of adjacent properties to lodge written objections to the proposed spraying of pesticides with the Council within seven days of being notified.

(4)Any person who contravenes subsection (3) is guilty of an offence.

(5)The applicant may apply to the Council for an exemption if the spraying of the pesticide is for:

(a)the management of pests that transmit human diseases or adversely impact agriculture or forestry;

(b)the management of pests that threaten the integrity of sensitive eco-systems; or

(c)the need for the use of the pesticide is urgent.

(6)The provisions of this section are not applicable to:

(a)residential areas of farms;

(b)buildings or inside buildings;

(c)domestic use of pesticides; or

(d)any other defined area or defined activity to which the Council has declared this section not to apply.

Part XIV – Licensing of listed activites

33. Consequence of listing

As stated below from the National Environmental Management: Air Quality Act, no.39 of 2004 as amended:“

Section 22.

No person may without a provisional atmospheric emission licence or an atmospheric emission licence conduct an activity-

(a)listed on the national list anywhere in the Republic; or

(b)listed on the list applicable in a province anywhere in that province”.

For all activities requiring licensing within the West Coast District area, inclusive of Bergrivier Municipal area, West Coast District Municipality and/ or the relevant National Department is the competent authority for such licensing.This also pertains to activities as contemplated within Chapter 5 of the National Environmental Management: Air Quality Act, (Act no. 39 of 2004).

34. Application for atmospheric emission licence

No person shall undertake a listed activity, as published in terms of section 21 of the National Environmental Management: Air Quality Act, 39 of 2004, without being in possession of an atmospheric emission licence issued by the competent authority as section 33 in this By-law indicates.

Part XV – Controlled emitters

35. Installation of controlled emitters

For all installations of controlled emitters within the West Coast District area, inclusive of Bergrivier Municipal area, West Coast District Municipality and/ or the relevant National Department is the competent authority for such approvals.

36. Operation of controlled emitters

(1)No person may use or operate any controlled emitter or any premises contrary to the authorisation referred to in section 35.

(2)Where any controlled emitter has been used or operates on the premises in contrary to subsection (1), the Local Municipality must report this to the competent authority, to take the necessary further legal actions.

37. Monitoring and sampling

(1)An occupier or owner of listed activities, and the operator of controlled emitters, must install emission measuring equipment and/ or must do emissions monitoring if and when required by an authorised person and 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 person, produce the record of the monitoring and sampling results for inspection; and

(c)if requested to do so by an authorised person, provide a written report, in a form and by a date specified by the authorised person, of part or all of the information in the record of the monitoring and sampling results.

38. Dust emissions from listed activities and controlled emitters

(1)Any person conducting a listed activity or controlled emitter that produces emissions of dust that may be harmful to public health, well-being and/ or cause a nuisance must take control measures to prevent or minimize emissions into the atmosphere.

(2)Any person who undertakes any listed activity or controlled emitter that causes dust emissions must implement one or more of the following control measures:

(i)pave;

(ii)use dust alleviating methods or palliatives or suppressants;

(iii)uniformly apply and maintain surface gravel;

(iv)erect physical barriers and signs to prohibit access to the disturbed areas;

(v)use ground covers;

(vi)re-vegetation which is similar to adjacent undisturbed native conditions; or

(vii)any alternative control measure approved in writing by the air quality officer.

(3)The control measures must be consistent with the provisions of any applicable legislation.

(4)Any person who contravenes subsection (1) commits an offence.

Part XVI – General provisions

39. Appeal

(1)A person whose rights are affected by a decision delegated by the Municipality may appeal against that decision by giving written notice of the appeal and the reasons therefore in terms of section 62 of the Local Government: Municipal Systems Act (Act 32 of 2000) to the Municipal Manager within 21 days of the date of the notification of the decision.

(2)Pending confirmation, variation or revocation of the decision against which the appeal is lodged, any person appealing the said decision, unless the Municipality provides otherwise:

(a)must nonetheless substantively comply with any obligations that may have been imposed as a result of the decision that is the subject of the appeal; and

(b)may not exercise any rights that may have accrued as a result of the decision that is the subject of the appeal application, provided that no other person may exercise any right that may arise either.

40. Severability

If a section, subsection, sentence, clause or phrase of this By-law is declared invalid by a competent court, the invalid portion shall be severed and shall not affect the validity of the remaining portions of the By-law.

41. Control of noise

The occupier or owner of any premises must take all reasonable steps to maintain the noise level from any activity on any premises to comply with the relevant National guidelines and standards as stated in 34 of the Air Quality Act, 39 of 2004.

42. Municipality and State bound

This By-law is binding on the State and the Municipality.

43. Conflict

(1)In the event of a conflict within any other By-law which directly or indirectly regulates air pollution, the provisions of this By-law shall prevail.

(2)In the event of a conflict with the Atmospheric Pollution Prevention Act, 1965 (Act 45 of 1965) and the National Environmental Management: Air Quality Act, 2004 (Act 39 of 2004) the provisions of these acts will prevail within the area of jurisdiction of the municipality.

44. Offenses and penalties

(1)Any person who contravenes any provision of this By-law commits an offence and shall, upon conviction, be liable to a fine or in default of payment, to imprisonment, or to such imprisonment without the option of a fine, or to both such fine and such imprisonment, and in the case of a successive or continuing offence, to a fine for every day such offence continues, or in default of payment thereof, to imprisonment.

(2)It is an offence to:

(a)supply false information to an authorised person in respect of any issue pertaining to the By-law, or;

(b)refuse to co-operate with the request of an authorised person made in terms of this By-law.

(3)Failure to comply with a notice, direction or instruction referred to in this By-law constitutes a continuing offence.

(4)In addition to imposing a fine or imprisonment, the court may order any person convicted of an offence under this By-law:

(a)to remedy the harm caused;

(b)to pay damages for harm caused to another person or to property, which order shall have the force and effect of a civil judgment; and

(c)to install and operate at the person's own expense air pollution measuring equipment in accordance with the provisions of section 13.

45. Exemptions

(1)Any person may, in writing, apply for exemption from the application of a provision of this By-law to the Council.

(2)An application in terms of subsection (1) must be accompanied by substantive reasons.

(3)The Council may require an applicant applying for exemption to take appropriate steps to bring the application to the attention of relevant interested and affected persons and the public.

(4)The steps contemplated in subsection (3) must include the publication of a notice in at least two newspapers, one circulating provincially and one circulating within the jurisdiction of the District-

(a)giving reasons for the application; and

(b)containing such other particulars concerning the application as the Council may require.

46. Savings

Anything done or deemed to have been done under any other law remains valid to the extent that it is consistent with this By-law or until anything done under this By-law overrides it.

47. Conflict with other legislation

In the event of any conflict between any provision of this By-law and National and Provincial legislation, standards, policies or guidelines, the National and Provincial legislation, standards, policies or guidelines shall prevail.

48. Repeal of By-laws

The provisions of any By-laws previously promulgated by the Municipality or by any of the disestablished Municipalities now incorporated in the Municipality are hereby repealed as far as they relate to matters provided for in this By-law.

49. Short title and commencement

This By-law shall be known as the Air Quality By-law of Bergrivier Local Municipality and comes into operation on the date of publication thereof in the Provincial Gazette.

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