| (1) | Metropolitan and district municipalities are charged with implementing the atmospheric emission licensing system referred to in section 22, and must for this purpose perform the functions of licensing authority as set out in this Chapter and other provisions of this Act, subject to subsections (2), (3) and (4). |
| (2) | If a metropolitan or district municipality has delegated its functions of licensing authority to a provincial organ of state in terms of section 238 of the Constitution, that provincial organ of state must for the purposes of this Act be regarded as the licensing authority in the area of that municipality. |
| (2A) | A provincial organ of state must be regarded as the licensing authority if a listed activity falls within the boundaries of— |
| (a) | more than one metropolitan municipality; |
| (b) | more than one district municipality; or |
| (c) | both a metropolitan and district municipality. |
[Section 36(2A) inserted by section 56(a) of the National Environmental Management Laws Amendment Act 2022, GG46602, dated 24 June 2022: Commencement by Proclamation 125 of 2023, GG48869, dated 30 June 2023]
| (3) | [Subsection (3) deleted by section 5(a) of Act No. 20 of 2014] |
(3A)
| (a) | In accordance with sections 125(2)(b) and 156(1)(b) of the Constitution whenever a licensing authority fails to take a decision on an application for an atmospheric emission licence within the time period set out in section 40(3) or (3A) of this Act, the person that applied for an atmospheric emission licence may apply to the Minister or MEC, as the case may be, to take the decision. |
| (b) | The person contemplated in paragraph (a) must notify the licensing authority in writing of the intention to exercise the option in paragraph (a) at least 30 days prior to the exercising of such option. |
| (c) | The application contemplated in paragraph (a) must, at least, contain all the documents submitted to the licensing authority in order to enable the Minister or MEC, as the case may be, to take a decision. |
| (d) | Before taking a decision as contemplated in paragraph (a), the Minister or MEC must request the licensing authority to provide him or her with a report within a specified time period on the status and causes of delay in the application. |
| (e) | After having received the report referred to in paragraph (d) or in the event that no response or no satisfactorily response or cooperation is received from the licensing authority within the specified time period the Minister or MEC, as the case may be, must, where appropriate— |
| (i) | inform the person that applied for an atmospheric emission licence in the event that the licensing authority has complied with the relevant prescripts; |
| (ii) | assist the licensing authority in accordance with sections 125(3) and 155(7) of the Constitution to fulfil its obligations under this Act; or |
| (iii) | direct the licensing authority to take the decision and such other steps as the Minister or MEC, as the case may be, may deem necessary, within a specified time period. |
| (f) | In the event that the licensing authority fails to take the decision within the specified time period or in any other manner fails to comply with the directive contemplated in paragraph (e)(iii), the Minister or MEC, as the case may be, must take the decision within a reasonable period of time. |
| (g) | The Minister or MEC, as the case may be, must, simultaneously with the submission of the annual report contemplated in section 40(1)(d)(i) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), submit a report to Parliament or Provincial Legislature, as the case may be, setting out the details regarding the exercise of the power referred to in this section during the previous financial year. |
[Subsection (3A) inserted by section 5(b) of Act No. 20 of 2014]
| (3B) | The MEC or Minister, as the case may be, must make a decision on the application contemplated in subsection (3A)(a), within a reasonable period of time from the date of receipt of the application. |
[Subsection (3B) inserted by section 5(b) of Act No. 20 of 2014]
| (3C) | In the event that the MEC fails to make a decision on the application, within a reasonable period of time, as contemplated in subsection (3B), the applicant may submit the application to the Minister for a decision in terms of subsection (3A)(a). |
[Subsection (3C) inserted by section 5(b) of Act No. 20 of 2014]
| (3D) | In the event that the MEC does not have capacity to exercise the power, or for any good reason is unable to do so or to do so within a reasonable period of time, the MEC may request, in writing, the Minister to exercise the power in terms of subsection (3A)(a). |
[Subsection (3D) inserted by section 5(b) of Act No. 20 of 2014]
| (4) | If a municipality applies for an atmospheric emission licence, a provincial organ of state designated by the MEC must be regarded as the licensing authority for the purpose of— |
| (b) | the implementation of this Act in relation to any licence that may be issued to the municipality. |
| (5) | Notwithstanding subsections (1) to (4), the Minister is the licensing authority and must perform the functions of the licensing authority if— |
| (a) | a provincial organ of state, which has been delegated the power to perform the licensing authority function in terms of subsection (2) by the metropolitan or district municipality, applies for an atmospheric emission licence; |
| (b) | the listed activity falls within the boundaries of more than one province; |
| (c) | the listed activity forms part of a matter declared as a national priority in terms of a Cabinet decision and notice referred to in section 24C(2B) of the National Environmental Management Act, 1998, as amended by the National Environmental Management Laws Second Amendment Act, 2013; |
| (d) | the listed activity relates to the activities listed in terms of section 24(2) of the National Environmental Management Act, 1998, or in terms of section 19(1) of the National Environmental Management: Waste Act, 2008, and the Minister has been identified as the competent authority; or |
[Section 36(5)(d) substituted by section 56(b) of the National Environmental Management Laws Amendment Act 2022, GG46602, dated 24 June 2022: Commencement by Proclamation 125 of 2023, GG48869, dated 30 June 2023]
| (e) | the listed activity relates to a prospecting, mining, exploration or production activity as contemplated in the Mineral and Petroleum Resources Development Act, 2002 (Act No. 28 of 2002), in the area for which the right has been applied for, and the Minister responsible for mineral resources has been identified as the competent authority in terms of section 24C of the National Environmental Management Act, 1998. |
| (6) | For the purposes of subsection (5)(d), the Minister, as the competent authority empowered under section 24C(2) of the National Environmental Management Act, 1998 and as the licensing authority empowered under section 43(1) of the National Environmental Management: Waste Act, 2008, may issue an integrated environmental authorisation for the activities listed under section 24(2) of the National Environmental Management Act, 1998 and section 19(1) of the National Environmental Management: Waste Act, 2008. |
[Subsection (6) inserted by section 5(c) of Act No. 20 of 2014]
| (7) | An integrated environmental authorisation contemplated in subsection (6) may be issued only if— |
| (a) | the relevant provisions of this Act, the National Environmental Management Act, 1998, and the National Environmental Management: Waste Act, 2008, have been complied with; and |
| (b) | the integrated environmental authorisation specifies the provisions in terms of which it has been issued. |
[Subsection (7) inserted by section 5(c) of Act No. 20 of 2014]
| (8) | The Minister and the licensing authority contemplated in subsections (1) to (4), or the MEC and the licensing authority contemplated in subsections (1) to (5), may agree that an application for an atmospheric emission licence with regard to any activity contemplated in section 22 may be dealt with by the Minister, MEC or the relevant licensing authority contemplated in subsections (1) to (5). |
[Section 36(8) substituted by section 56(c) of the National Environmental Management Laws Amendment Act 2022, GG46602, dated 24 June 2022: Commencement by Proclamation 125 of 2023, GG48869, dated 30 June 2023]
