National Environmental Management: Air Quality Bill: hearings

Meeting report

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
4 February 2004
NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL: HEARINGS

This is an edited version of a report produced by kind courtesy of Contact Trust: www.contacttrust.org.za

Chair: Ms G Mahlangu (ANC)

Documents handed out:
Submission by Mr Skosana (Vuka Environment Dot Com, Richards Bay)
Submission by Ms Tsotetsi (Boipatong Environmental Group)
Submission by Mr Kornelius (Chemical and Allied Industries Association)
Submission by Mr Mare' (Pretoria Portland Cement)
Submission by Mr Birkinshaw (Tableview Residents' Association)
Submission by Ms Roux (Habitat Council)
Submission by Mr Mofokeng (South African Petroleum Industry Association)
Submission by Mr Peek (GroundWork)
Submission by Mr Leonard (GroundWork)
Submission by Mr Lennon (Eskom)

SUMMARY
The Committee held the second day of public hearings on the National Environmental Management: Air Quality Bill. The Department had sent a delegation including the Director General and other senior officials. A number of community-based organisations affected by air pollution were also present. The Portfolio Committee promised to carefully peruse submissions and meet again on 20 February for formal deliberations.

MINUTES

Pretoria Portland Cement submission
Mr Mare' commented on Clause 27 on Atmospheric Impact Reports. Clause 27(a) permitted an Air Quality Officer to exercise powers on a "reasonable suspicion". This appeared arbitrary and had the potential to be abused. In terms of Clause 33 of the Constitution, citizens were entitled to just administrative action. 27(b) did refer to Clauses 35 and 37 on administratively just procedures. They suggested that the Minister be obliged to draw up regulations setting out the powers and duties of Air Quality Officers in terms of Clause 50(1), that this be inserted as a subclause under Clause 14, and that it be cross-referenced to Clause 27(a).

With regard to Clause 37, he thought Subclause 2 was too vague and suggested that reasonable, fixed time limits be applied, as was contained in Clause 14 of the Competition Act 89/98.

On Clause 46, he argued that the reference to 'person' could be easily interpreted to mean both a juristic and a natural person. Clause 46 became unclear in the context of that clause and added that "if strictly interpreted, Clause 46 ( c) was very restrictive and applied only to a natural person applying for an emission licence in his own right and not as a member of a company". He suggested that Clause 46(c ) be amended to: "whether a director or manager of the applicant was or is a manager or a director of a company or firm to whom paragraph (a) or (b) applies".

The Association of Cement Producers had in the past offered to assist with training of Department officials in the interest of building capacity and improving air quality management generally.

Discussion
Mr Lukey replied that the presenter should refer to the NEMA 1st Amendment on the question of the powers of Environmental Officers.

Boipatong Environmental Group submission
For full details of the submission by Matshediso Tsotetsi, please see the document attached.

Discussion
Ms Ramotsamai responded that the issues raised by the Boipatong group were important to them. The strengthening of standards was a major priority.

Ms Ndzanga related that councillors were overburdened and needed their support. Lack of resources hampered the functioning of local councils.

The Chairperson said that in their report to Parliament after the hearings, they would visit hotspots like Boipatong. She would communicate with the presenter about when a visit would be possible.

Vuka Environment, Richard's Bay submission
For full details of the Mr Skosana submission, please see the document attached. He told Members that Mondi had been given a licence before the Environmental Impact Assessment (EIA) was completed.

Discussion
Prof Mbadi was sympathetic to the views of the community. He asked what products Foskor was producing.

Mr Skosana responded that it produced fertilizer, and was had previously been named Indian Ocean. He elaborated that the wind direction in Richard's Bay was North to South where schools and communities were situated.

Ms Ramotsamai wanted to know the response of the local municipality.

Mr Skosana said that the Director of Health was aware that Foskor was using old technology. He felt that the health authorities had given Foskor a 'window' to pollute.

Ms Ramotsamai asked for his feelings about the fact that powers in the Bill had been given to local authorities.

Ms Skosana responded that "it all depends". Financial support from companies could compromise the role of municipalities.

Mr Arendse said he had read the posters brought into the hearings by community based organisations. He asked whether the presenter agreed with the statement on the banners that SASOL was a major contributor to poor health.

The Chairperson did not allow the presenter to answer the question because it did not relate to his presentation.

Mr Zungu (Richard's Bay) recounted an anecdoted of when the big company bosses had chased them away them from sites of pollution.

Mr Lukey said any loss of life was most regrettable. In the view of the Department, the first incident was a mistake and the second one happened because of negligence. The Directorate of Enforcement would work out a budget to deal with air pollution.

Mr Lukey was pleased that communities were present and suggested that they needed to work together to be "the eyes and ears of the government".

Mr D'sa wanted to know where the issue of reporting accidental leakage or smoke was made clear (upsets) in this new Bill.

Mr Lukey responded that it was under 'licencing and penalties'. A licence gave government the power to look at the licence issued and make reviews. They needed to overhaul all environmental legislation and control enforcement.

Mr D'sa was adamant that the licencing of these accidental leaks or smoke was not mentioned clearly enough. Under licencing, it said the Minister "may" review.

Ms Andrews raised that anything could be put in the licence. They needed to know outcomes for the next five years.

Mr Le Roux raised that they were acting within other laws. This Bill was not going to change things drastically. He wanted to know if there were any provisions in the APPA that they could use.

The DG responded that they could not use an unconstitutional Act. Government had lost important court battles because of the old Act.

Mr Le Roux argued that it did not mean they were powerless.

CAIA submission
For full details of the submission of Mr Kornelius, please see the document attached

Mr Kornelius said that regulations should be in place and that best practises had to be shared. Smoke in households was causing problems and mechanisms to deal with the problem of poor air quality would need to be looked at. National emission standards were important for emission limits. The issue of Incentives had not been considered.

Discussion
With regard to incentives, Mr Lukey responded that there was a Money Bill coming up from the Minister of Finance which would be used.

Ms Chalmers wanted to understand the role of the SA Bureau of Standards (SABS) in setting standards.

Mr Lukey replied that the SABS had been requested to draw up air quality standards and to put together a technical committee. Such a technical document was released for public comment for six weeks. The use of the SABS was an experiment. The Department was looking at meeting standards in the future. The Bill proposed measures in this regard.

Mr September (ANC) said that the Committee had talked to the Department on a number of issues to facilitate implementation. He did not suggest far-reaching amendments.

Mr Cairncross (EJNF) commented that the process of setting standards had not been properly conceived. The Bill did not state that setting standards should protect human health.

Ms Nkosi (Highveld Community) asked if CAIA could make any assurance that their contractors were well equipped.

Mr D'sa commented that he had met with the Department yesterday to discuss standards. This Bill failed to address the legacy of poor apartheid planning.

Mr Peek also raised that the Bill made reference to the Constitution, but did not talk about improvement of health.

Mr Kornelius responded that all their products were subjected to responsible care.

Mr Lukey clarified that there had been no extra opportunities given to industry, as Mr D'sa had claimed. The Bill had been published as per normal practice. Standard setting was problematic and he agreed with Mr Cairncross. There had been a lack of clarity with regard to the terms of reference of the SABS. He disagreed that aspects of health were not considered in the Bill. He felt embarrassed that people were beginning to question the existence of this legislation.

Mr Cairncross suggested that people should have access to information about polluters. Some companies were arrogant and he felt that the Bill should address how to make information accessible.

Mr Kornelius responded that a large number of their members were voluntarily making information accessible.

Mr Lukey clarified that Clause 30 of the NEMA spoke of 'Instant Reporting'. This was not happening. Disaster management and information management systems that would need to be improved.

Tableview Residents' Association submission
For full details of the Mr Birkinshaw's submission, please see the document attached.

Discussion
Mr Lukey commented that the issue of air pollution and non-compliance could not be considered in a reactive way. He was nevertheless happy that serious issues were brought to the Committee.

Ms Chalmers wanted to know if the Bill would have 'teeth' to ensure that refineries put their houses in order.

Mr Lukey responded that under the Bill, non-compliance with licence conditions was an offence. There was a penalty to force a change in behaviour. The Cape Metro had the capacity to handle these matters.

Mr September asked if residents were involved in the placement of monitoring stations.

Mr Birkinshaw responded that the current situation was problematic for communities. The licence looked at SO2 emissions. He said that they had been forced to breathe benzine at levels eight times higher that the WHO guidelines. There was a need for rules to be put in place that industry could understand. He cited a situation where two days prior to the hearings, Caltex had lost power. "Only communities were not paid to be at the hearings".

Mr Peek said that the experts used the 'shut down approach' when they monitored air. He suggested that the Bill be specific.

Mr Cairncross argued that ambient air quality was not part of the broader system of monitoring. There were guidelines on where the monitoring station should be. They needed to look at the source to see what to compare it with. Permitting and licencing should be looked at. It was not good enough to look at ambient air and permits only - emission standard should also be looked at.

Mr D'sa said the Preamble of the Bill did not refer to health. Fines could be discretionary. He thought it lacking drive to give effect to Clause 24.

The Chairperson encouraged people to come up with suggestions.

Habitat Council submission
For the full details of Ms Roux 's submission, please see the document attached. She was concerned that there was no explicit provision made for an appeal procedure. She proposed the insertion of a precautionary principle and cautioned against licencing new incinerators. Incinerators were not a guarantee to create jobs. Public participation should be at the beginning of the process. Communities should be given opening to approach an Air Quality Officer. "We need to use s27 to review atmospheric licences. There must be guided discretion and accountable decision-making. We have to make sure that we have enforceable conditions".

Discussion
Mr Mare' (PPC) commented that the Just Administrative Act was appropriate to challenge anything.

Mr Lukey said that NEMA 2nd Amendment would look at the appeal procedure.

Ms Roux suggested that everything should be in writing.

Mr Lukey said that in terms of the Schedule to the Bill, this would be rolled over from the APPA. The Bill was the only way to provide the Minister with powers to develop national standards. He was horrified by the contents of Registration Licencing.

Mr Birkinshaw said that if Members were happy with the Bill, they had to speed its passage, but if there were concerns, it had to be looked at again.

Mr Lennon (Eskom) said that they supported the Bill and it could be implemented to an extent. They however encouraged a holistic approach to implementation. Issue of guidelines and standards were important.

Ms Roux suggested that the shortcomings be addressed in the first sitting of Parliament.

Ms Farina (SASOL) raised her dissatisfaction with the consultation process. There were concerns and problems raised that could be addressed later.

Ms Winstanley (Standing Committee on Environmental Affairs of the Associated Law Societies of South Africa) was unwilling to endorse the Bill in its current form. She said that it should not just be passed for strategic political reasons. There was a need for early public participation.

Mr Mare' supported looking at amendments later.

Comments by Minister of Environmental Affairs and Tourism
Minister Muhammad Valli Moosa (ANC) spoke in support of the Air Quality Bill and emphasised the need to take into consideration the concerns of the presenters. He also indicated that the imminent elections created a difficult predicament as the existing Committee would be dissolved in coming months. He voiced his preference that Parliament pass the Bill in order to facilitate the ability of the Department to put the proper budgetary requirements and other necessary considerations into place.

South African Petroleum Industry Association submission
For full details of Mr Ishmael Mofokeng's submission, please see the document attached. Although Mr Mofokeng stated that the Refinery Managers' Environmental Forum (RMEF) was in support of the Air Quality Bill, he raised several concerns regarding issues of licensing, consultation, and implementation. The timeframe for implementing the new licensing regime was too short, and the Bill did not specify a timeframe for issuing new licenses. The consultation process needed to be specified and extended. Finally, Mr Mofokeng voiced concerns over the budget, inadequate informational systems, the need for guidance from local and provincial authorities regarding implementation, the need for building capacity, and ambiguity over the definition of unreasonable odour and noise levels.

Discussion
Mr J Arendse (ANC) commented that the presenter made reference to its consultation with the Department of Environmental Affairs and Tourism (DEAT). Mr Arendse was concerned that sufficient consultation between the Department and members of civil society had not taken place. He asked the presenter to comment.

The Chair interjected that the Committee would raise the issue with the DEAT and, furthermore, she did not believe it suitable for the presenter to respond to this enquiry.

Professor L Mbadi (ANC) asked Mr Mofokeng to expand on his concerns regarding the issues of offensive odours and noise.

Mr Mofokeng responded that the Bill was unclear regarding how levels of odour would be evaluated in terms of being "reasonable and acceptable." He was concerned about the subjectivity of such measurements.

The DEAT responded that the judgement of odour would be a legal judgement. By common law, the judgement would be on what a reasonable person would agree to be "acceptable." Similarly, an odour deemed to be a nuisance, would be judged as "unreasonable."

Mr Arendse believed there were mechanisms to measure decibel levels.

The DEAT mentioned that the difficulty arose because there was no national definition of noise. He suggested that the government needed to set national norms and standards for inappropriate noise levels.

Mr Gregory Scott from the National Association for Clean Air mentioned that the World Health Organisation had established odour thresholds and that there were definite means to measure odour levels. The problem was determining the actual pollutant as most odours were the result of a combination of pollutants.

Groundwork's submission
After the lunch break, Mr Bobby Peek (Director) submitted that this Bill was not far-reaching enough. He drew the Committee's attention to GroundWork's 'National Report on Community-based Air Pollution Monitoring in South Africa', which detailed the history of the air pollution problem in South Africa, the impacts of pollutants, what was being done by communities, industrial practice and legislation.

Mr Peek expressed his disappointment that no changes to the Bill were presently being considered. They endorsed the development of a framework and supported the establishment of a National Air Quality Advisory Committee. On the other hand, he criticised how the Bill sought to reduce health risks, rather than to improve health. He expressed concern regarding the operation of a waste informational system, with special concern on how communities, and even national government, would receive important information on the handling of waste.

The Bill was lacking in timeframes. For instance, it did not state by when national standards would be established. Also, provisional certificates and licences needed to have timeframes specified. In conclusion, it was good to have a Bill on the table, but he thought it was necessary to improve it.

Health Care Without Harm submission
Mr L Leonard (Director) focused on the handling of waste by healthcare institutions. There had been a move away from incineranation in the USA, India, Greece, Germany, Japan, Turkey, the Netherlands, Costa Rica, and the Phillippines. It had been rejected for being both hazardous to health, and extremely costly. Incinerators did not make waste disappear, but reduced it to ash and atmospheric emissions. Studies had also shown the association of incinerators with the disruption of the body's hormonal and reproductive systems, and had caused cancers. Audits of waste streams at South African hospitals had showed that kilogrammes of mercury had been released into the hospital environment and the surrounding community each year through accidental equipment breakage. Mercury was especially dangerous to pregnant women and children.

Waste reduction and separation were the best alternatives. Manufacturers should be encouraged to stop producing substances that could not be recycled, reused or composted, and this would reduce the need for landfills. He lamented that the Bill gave no consideration to pollution minimisation. It should focus on the selection of clean production technologies and emphasise emission control devices. Authorities should be guided in decision-making on licensing.

Discussion
Mr P Lukey (DEAT) commended the submission and said that the licensing of disposal by incineration had to date been carried out under Section 20 of the Environment Conservation Act, by the Department of Water Affairs and Forestry (DWAF). That legislation was being amended in order to put decision-making power regarding waste disposal and treatment, back into the ambit of his Department. The Bill gave the DEAT the opportunity to implement a far more integrated approach.

Additionally, numerous initiatives had begun countrywide in order to address the problem of health care waste. This included a national pilot project in various Gauteng hospitals. The project had, to date, yielded "quite dramatic" results, in reducing the waste stream through good "housekeeping" measures. He was interested to hear of cleaner production through technology forcing.

Mr Leonard informed the Committee of Edenvale Hospital in Kwazulu-Natal, which until 2001 had made use of incinerators. Since then, they had been encouraged to reduce, reuse and recycle their waste, and their waste management fees had decreased from R90 000 per month, to R35 000 per month. A second, smaller hospital in Pietermaritzburg had reduced their waste management spend from R70 000 to R30 000. They had shut down their on-site incinerators. In choosing a suitable technology for waste management, it was necessary to perform a full evaluation of the waste stream.

Eskom submission
Ms W Poulton (Sustainability and Environment Manager) and Dr Steve Lennon (Managing Director: Resources and Strategy) pointed out that the African continent, being "energy-starved", consumed around 2% of global energy. South Africa was challenged to address that situation in manner that supported sustainable development. The country's primary tool was the Energy Policy of South Africa, which focused on five priority areas:
- increasing access to affordable energy services through the national electrification programme;
- improving energy governance with the restructuring of electricity supply and the electricity distribution industries;
- stimulating economic development;
- managing energy-related environmental impacts;
- and securing supply through diversity.

Mr Lennon informed the Committee that Eskom's particulate emissions (typically accountable for the vast majority of human health impacts) had decreased since 1988, to the extent that those emissions were far below the standards set by the Chief Air Pollution Control Officer. They also met very stringent international standards. At the same time, they had considerably increased the amount of electricity produced, through innovative new technologies and operating practices at power stations.

Ms Poulton suggested that the consultation process in preparing the Bill could have been improved. While it was important to consider implications for sustainable development in decision-making, there was also a need to consider the need for long-term improvements in air quality and environmental performance. The Electricity Supply Industry (ESI) should be accorded the status of a holistic, strategic industry, rather than to treat it as a host of individual power stations. If certain power stations were shut down, it could result in widespread blackouts throughout the country. The environmental impact could be more destructive than allowing a power station to continue operating under current conditions. Additionally, electricity underpinned many of the objectives of sustainable development.

Licensing for the ESI should occur at national level, where strategic issues were being considered, in consultation with local authorities, where local issues could also be outlined and planned for.

Discussion
Mr Lukey asked, since Eskom was in favour of strategic status for the ESI, if it was their opinion that the oil industry, and the petro-chemical industry, should also have strategic status.

Mr Lennon responded that the term "strategic status" should possibly be considered. It was necessary to cater for situations where the need to deliver a particular service would override certain short-term considerations, such as air quality. If a framework could be found across the economy as a whole, they would support it.

Mr Peek asked if all its power stations were running at maximum level, and if any one of them were to be shut down, that would have a detrimental impact on the country's industry. He asked if it was for that reason, that Eskom wanted the ESI to be viewed as a whole, rather than as individual plants.

Mr Lennon responded that presently, there was a reasonable excess capacity in the power sector that would allow them to shut down certain power stations. However, there were certain key power stations, or cohorts of power stations, that needed to be in operation at any one time. To shut down one of those would cause instability in the overall system.

Mr D D'Sa (Chairperson: Environmental Alliance, South Durban Community) asked if the economic costs communities suffered because of Eskom's operations, were factored into their constant allusions to economic costs, and how poor communities would benefit.

Mr Lennon responded that the impact of Eskom's activities on society as a whole should be examined. Since the early 1990's, Eskom's air pollution impact on society had been extremely small. On the other hand, its positive impacts, in terms of providing access to electricity and advanced forms of communication, were significant. Fence-line monitoring had been performed. It was now the macro-impacts of Eskom's operations that needed to be monitored.

Ms Chalmers (ANC) asked if it was possible to guard against the occurrence of blackouts. Secondly, she asked about Eskom's involvement in finding alternative energies, especially in rural communities.

Mr Lennon responded that it was not possible to say that blackouts would never occur. However, the manner in which South Africa's transmission infrastructure was defined and configured, would mean that South Africa was more "robust" than, for instance, the USA, in preventing power blackouts. With regard to alternative energies, he referred to Eskom's work in diversifying power supply. The Sadogen Programme was aimed at maximising the exploitation of renewable energies. A wind demonstration facility in Klipheuwel outside Cape Town was in operation. Eskom was designing a large-scale solar thermal power station, and a small-scale power-generating unit was already operating at the Development Bank in Johannesburg. There were also a large number of small solar home systems operational.

Mr C Olver (DDG) stated that the Department understood that the Bill did not go far enough and did not provide sufficient detail. The process had been "a long road for the Department", which started with consultations on the integrated waste management policy five years ago. That policy had set the policy framework, which had been put into a White Paper, and that had led to the drafting of the Air Quality Bill. Ordinarily, the kinds of submissions that had been made in these hearings would have led to the Department submitting detailed proposals around amendments. It had probably been remiss of the Department that they had not sufficiently entered into the constraints arising out of the constitutional issues. The Bill trod a very difficult path in trying to deliver what people had asked for, yet also attempting to respect the integrity of different spheres of government. As with any other good legislation, there would be a process of implementing, and coming back to amend the legislation after testing.

The Chairperson thanked those present for their valuable submissions and assured them that their concerns would be taken into consideration. The two parties present would to return to their caucuses for consultation. Formal deliberations would begin on 20 February 2004.

The meeting was adjourned.