The attempt to align the registration certificates issued under the now repealed Atmospheric Pollution Prevention Act (APPA) No 45, of 1965, with the licensing provisions of the newly implemented National Environmental Management: Air Quality Act (AQA) No 39, of 2004, is potentially problematic, reports business law firm Cliffe Dekker Hofmeyr director Terry Winstanley.
“Before the sections that regulate licensing under the AQA came into effect, the Department of Environmental Affairs undertook a review of the registration certificates currently held under the APPA. It also sent proposed amended registration certificates to entities carrying out scheduled pro- cesses under this Act. The AQA has come into force in stages and the sections dealing with licensing became effective on April 1, 2010,” she says.
The APPA was primarily concerned with point source pollution. However, it also provided mechanisms for controlling some vehicle emissions.
“The APPA also prohibited anyone from undertaking a scheduled process found in this Act without a registration certificate,” says Winstanley.
The APPA was repealed as a result of its pollution control and monitoring limitations. “It was an old Act, a product of its time, and this was particularly evident in the vagueness of some of the older registration certifi- cates issued under it,” Winstanley says. The Act stipulated that air pollution had to be controlled using the test of best practicable means, which is a flexible standard and does not impose maximum emission limits.
Meanwhile, the AQA is concerned with regulating both point source emissions and ambient air quality.
“One of the tools it provides for controlling air pollution is the atmospheric emission licence, which must be held by anyone who carries out a process listed under the Act,” explains Winstanley.
She points out that many holders of the APPA registration certificates received new registration certificates issued under the APPA in March 2010. These registration certificates, now regarded as licences under the AQA, will remain valid under the Act for specified periods, depending on various circumstances.
However, the majority of these newly issued regis-tration certificates (issued under the APPA) impose conditions that exceed the powers granted under the APPA, as such powers are only available under the AQA.
“As a result, some of these conditions either simply cannot be met by the holders of the entitlements or require enormous capital outlays to achieve compliance,” adds Winstanley.
She says that licence holders are able to appeal against these conditions if they exceed the powers available under the APPA. However, there are time limits within which appeals must be lodged and, if these lapse, the licence holders will have to apply to municipalities for amendments to their licences.
Winstanley states: “Further, in assuming that these businesses continue to operate, which is most likely, they will be operating unlawfully. Both the amendment applications and the unlawfully operating facilities will create difficulties for the licence holders and the municipalities in which those operations are situated.”
She believes that municipalities, charged with the issuing of licences, from April 1, 2010, do not all have the technical capacity to undertake this responsibility.
“This is particularly applicable to smaller, rural and relatively new municipalities, where some industries undertaking listed and scheduled activities are situated. This capacity challenge will obviously have implications for the licensing process and the speed at which it takes place,” Winstanley concludes.