Minimum Emission Standards compliance postponement - industry applications: day 1

Meeting report

Air Quality: University of Pretoria presentation

Prof Gerrit Kornelius, Senior Researcher, University of Pretoria, said that the objects of the Air Quality Act were the protection and enhancement of the quality of the air in the Republic, providing reasonable measures for preventing pollution and ecological degradation, securing ecologically sustainable development while promoting justifiable economic and social development, and generally to give effect to section 24(b) of the constitution to enhance the quality of the ambient air for the sake of securing an environment that was not harmful to the health and well-being of the people

The“quality of the air” referred to the ambient air. The definition in the Act excluded air regulated by the Occupational Health and Safety Act, so ambient air meant the air that the community was exposed to. This was quantified by the National Ambient Air Quality Standards (NAAQS), which identify air pollutants and provide. exposure limits. There was a relationship between air quality and emissions

In summary, the air quality management process began with a baseline survey -- what was the ambient air quality now? This would be compared to the NAAQS limit values. The sources contributing to the exceedance of the NAAQS limits (emission inventory) would be determined, and source reduction measures would be prioritised. A reduction plan would be implemented. This process would take about 10-15 years

The first step of the implementation framework was to apply “reasonable” emission controls to everybody (minimum national standards), followed by applying additional controls to sources in non-conformance areas. The third step was then to prevent deterioration.

The air quality management (AQM) measures’ listed activities included licensing authorities (metros, district municipalities of provinces) for “national priorities”, as per Cabinet decisions, and licensing contents. In terms of Section 21, new plants had five years to meet the air emission quality standards, and in another five years ( by 2020) existing plants must meet the air quality emission standards.

The initial draft listing terms of reference included that all processes scheduled under the Air/Atmospheric Pollution Prevention Act (APPA) should be included, categorisation should be by industry sector, rather than by process, there should be no ‘technology forcing,’ the Best Practicable Environmental Option (BPEO) should be used to select new plant emission limits, and time constraints precluded the detailed costs/benefits analysis (CBA) for selecting emission limits. BPEO, as defined in the National Environmental Management Act (NEMA) means the option that provides the most benefit or causes the least damage to the environment as a whole, at a cost acceptable to society, in the long-term as well as in the short term.

The initial draft list included a distinction between ‘existing plant’ and ‘new plant.’ New plant emission limits were mostly based on the EU Integrated Pollution Prevention and Control directive, which was based on the BPEO for Europe. There was a proposal for five years to meet existing plant limit values, and a postponement option for this. The final version included a requirement for existing plant to meet new plant requirements in 10 years from April 2010. In sub-Saharan Africa, ambient particulate pollution was ranked 25th, and household air pollution 7th, as risk factors in attributable burdens to diseases.

A case study had been carried out to consider the cost implications of a postponement, taking into account factors such as sulphur dioxide emissions on the Mpumalanga Highveld and the benefits of flue gas desulfurisation, and assigning costs to externalities such as capital and operating costs, water and lime supply, and health, ecological, vegetation and visiblity impacts. Against this, the benefits in terms of factors such as health and mortality had to be quantified.

The conclusions of the study were:

• Not allowing postponements under AQA section 21 would not ensure compliance with ambient air quality standards by itself.
• The contribution of listed activities (s21) to ambient exposure was location-dependent.
• Enforcement of ‘new plant’ emission standards was not necessarily the most economically efficient method of reducing ambient exposure.
• Offsets, especially those targeted on energy supply in low-income residential areas, may provide a similar reduction in impacts, rather than enforcement of the MES. (Offsets were defined as ‘measures that counterbalance, counteract, or compensate for an adverse impact of an activity’)
• Offset guidelines could be more specific.
• The DEA’s strategy to address air pollution in dense low-income settlements should be prioritised.
• The addition of certain categories to listed activities should be considered.

Department of Environmental Affairs: Presentation

Ms Nosipho Ngcaba, Director General, Department of Environmental Affairs, said the drivers and trends affecting air quality in South Africa were population growth, urbanisation migration, economic factors, transportation, energy use, biomass burning, mining activities and residential fuel use. It provided some emission estimates based on the State of Air Report, 2005 – 2016.

Its recommendations for a possible regulatory framework were that:

• Legal provisions the for the postponement of compliance timeframes must be stipulated in the section 21 notice of NEMA;
• New plant must comply with new plant emission standards immediately;
• Existing plants must comply with new plant standards on 1 April 2020;
• The AQA provides for the existing plants to apply for postponement with the compliance timeframes;
• The application for postponement must include an air pollution impact assessment, a detailed justification and reasons for the applications; and a concluded public participation process
• The National Air Quality Officer (NAQO), with the concurrence of the Licensing Authority, may grant postponement of the compliance timeframes for an existing plant for a period not exceeding five years per postponement;
• From time to time, any postponement granted may be reviewed should ambient air quality conditions in the affected area of the plant not conform to ambient air quality standards;
• The National Air Quality Officer (NAQO), with the concurrence of the Licensing Authority on good grounds, may withdraw any postponement following representations from the affected plant; and representations from the affected communities

The DEA said there were 34 applications received in 2014. From 2015 to 2017, it had received 20 new applications.

It was recommended that the Portfolio Committee should note the status of the applications for postponement of compliance timeframes for all facilities whose applications had been considered and finalised by the National Air Quality Officer (NAQO) – with the concurrence of the Atmospheric Emission Licensing Authorities – between 1 April 2014 and 31 March 2015. The Committee should also note the compliance between the status quo of postponement decisions and reasons for granting decisions, the compliance status quo of postponement holders, and should note current applications.

Compliance and Enforcement

The approach to compliance and enforcement within the waste and pollution sector used to bring facilities into compliance required an understanding of the role of the DEA compared to that of the local authorities, and the current initiatives and status quo of compliance and enforcement activities in relation to air quality legislation -- including MES -- since the coming into effect of the MES.

With a facilitated approach to compliance and enforcement, the focus was on bringing facilities into the regulatory net, rather than to shut them down and prosecute. Coordinated and strategic planning was essential to ensure compliance without compromising the integrity of the legislative framework, but at the same time recognising the importance of fiscal growth and other government priorities, such as job security.

Compliance and enforcement within the waste and pollution sector was very complex. Historical pollution required time to remediate, and with outdated technology, significant capital was required to align to new the requirements. Complex science involved requiring specialised equipment and tools.

Compliance, promotion and compliance verification would involve baseline inspections. Voluntary compliance would be promoted, with opportunities given to make representations and to rectify. Compliance verification would assess the need for additional assistance. Follow-up inspections would be carried out, and if continued non-compliance was detected, the matter would be referred for prosecution.

On site compliance monitoring inspections would be carried out by Environmental Management Inspectors (EMIs) from the DEA, provincial environmental departments and municipalities. Facilities would be required to conduct emission monitoring continuously and/or periodically and submit emission monitoring reports to the licensing authorities (district municipalities and provinces) for review.

The DEA said that on-site inspections had been conducted at 21 facilities jointly by EMIs from three spheres of government since April 2015. Of these, 16 had not been in full compliance with MES. Five had been Eskom power stations, five had been health care risk waste (HCRW) facilities, and six were various other facilities. Old technologies and poor quality of coal were cited as reasons for non-compliance. Reports of non-compliance were referred either to the Enforcement CD or C&WM, in line with waste protocol.

A criminal investigation had been carried out at AEL Mining as part of the Highveld and Vaal air quality priority area blitz. A search warrant had been executed on Monday, 14 December 2015, and a criminal case docket registered with Sebenza under case regarding contraventions in terms of Section 51(1)(e) of NEM AQA, for non-compliance in respect of emissions. A criminal case docket was submitted to the Director of Public Prosecutions (DPP) on 23 June 2016 for decision, and an Alternative Dispute Resolution (ADR) was agreed upon on 24 August 2017 and finalised

In July 2015, a complaint was received from Compliance and Monitoring and Ethekwini Municipality regarding non-compliance by SAPPI-Saiccor with their Atmospheric Emission Licence (AEL). A search and seizure operation was conducted on 7 September 2015, and a criminal case was registered with SAPS under Umkomaas CAS 241/03/2017, and referred to the DPP on 24 March 2017. The case referred to Section 51(1)(e) of the NEM AQA – failure to comply with the conditions of the AEL – and Section 49A(1)(f) – an act or omission which detrimentally affected or was likely to detrimentally affect the environment.

The challenges in relation to compliance and enforcement included:

• The number of business rescue processes.
• Building and retaining specialised technical and legal compliance and enforcement experience within government.
• Enabling growth and development while enforcing environmental compliance.
• Overlapping mandates/legislation – better co-ordination/information collection and sharing.
• The transitional period from the Air/Atmospheric Pollution Prevention Act (APPA) registration certificates to the more stringent AELS permits.
• The staggered time periods for compliance with standards.
• The lengthy process when non-compliance was detected, when there were old, dirty technologies and significant monetary resources were required to correct them.
• Capacity to monitor compliance and enforce, where local authorities were responsible for issuing AELs

Additional work was required in 2017/2018in respect of postponement decisions. The DEA supported the apportionment study in the Vaal and Highveld priority areas, which provided justification for taking compliance and enforcement action. It would assist and capacitate local authorities as and when required.

Discussion

Mr T Hadebe (DA) asked the Department of Environmental Affairs for its take on the cost-benefit factors involved in the postponement which, according to the presentation, would have resulted in a net value loss of R166 billion. He commented that the money used for Eskom, which had been required from the government, could have been used for early childhood development programmes or increasing the rate of electrification. He criticised the stance taken by the DEA when it allowed postponements to industries, as it displayed a very bad precedent. The Department needed to ensure compliance by industries.

Ms S Mchunu (ANC) said the University’s report had stated that the enforcement of new plant emissions was not necessarily the most economic method to reduce ambient emissions. This was contrary to the stance taken by the DEA, so she wanted clarification on the different views. She felt that the compliance and enforcement presentation lacked flesh and detail, and needed more explanation. She wanted to know if, from the research that had been done, the standard implementation had had any effect on jobs, and would result in job losses or opportunities,.

Mr R Purdon (DA) said his first concern was whether the district and metro municipalities had the capacity to monitor compliance and enforcement, as he personally did not believe they had. He wanted an honest explanation as to whether there was capacity in the high priority areas. What backing did the National Air Quality Officer have -- was it a committee, a small team, a board etc, and how did it work? He wanted to understand the different targets for the different units and their limitations, which varied greatly.

The Chairperson said that the results of the study had not considered the health impact of air pollution significantly. It talked to the economics and the money that should be spent to attend to air pollution, and the health considerations were the overriding factors in respect of air pollution. He was concerned that the health considerations had not found their way into the presentation of the University of Pretoria. On the trends, there was criticism that ever since the declaration and introduction of the priority areas to reduce the levels of pollution, nothing much had happened, as the pollution had not gone down. What was the point of the declaration in the first place if no change had come about from it? On the applications received, the Act allowed for a five-year postponement, but he had noticed the requested applications up till 2031 which had been granted, and he wanted to know what gave the Department of Environmental Affairs the authority to give extensions up till 2031. Lastly, what was the cut-off date for the extensions -- would it keep on being repeated, or would there be a cut-off date for it?

DEA’s response

Ms Ngcaba responded that with regard to the local authorities and their capacity and due to the Constitution, schedule 4, part B, stated that air pollution fell within the competence of municipalities. Ambient air quality standards were created through legislation, and laws had to be amended. Legally, new laws did not apply retrospectively and therefore existing plants, by right, were designed in a certain fashion and had a certain life span, and therefore one had to fashion the transition on an understanding of when Eskom would plan to decommission certain plants due to the economic feasibility, and that formed the basis of the postponement applications.

The cost-benefit analysis was not done and undertaken at a time when the legislation was put together, but there were models that the University had spoken about to determine it. It would have been illogical to approach industries and state that due to their business, someone specific was suffering in an area. However, the DEA was building the system and their focus was to establish a system to lead the DEA to accumulate evidence to prove the source of diseases affecting the surroundings/individuals. The system was still being built and therefore the postponements currently did not lead to bad precedents. The key was that the law allowed for the postponements. On the stance of the Department’s view of postponement applications, she said that the DEA was legally obliged to consider any application for postponement which they received.

The National Air Quality Officer worked with an entire team of people and qualified specialists, and the Deputy Director General (DDG) oversaw the entire process.

Prof Kornelius said that if his presentation came across as doing mathematical sums, with no concern for the health aspect, then he needed to apologise, but the high concern for the health impacts had been the reason for the presentation. The study he had referred to had quantified the health impacts, and that was because decisions needed to be taken on a rational basis. One alternative to addressing the health impact would be to put a blanket standard emission compliance requirement for the whole country, but if money had to be spent, would there not be a cost-effective way for the same money to achieve a better mitigation of air pollution. In the case, however, where the cost exceeded the health benefits, the offsets should be altered to benefit the people most affected by air pollution. Regarding the people who entered the industry and came out sick, occupational exposure was considered under the Occupational Health and Safety Act, and there were different standards which applied to people’s exposure in industries. The consideration of job losses and opportunities were not currently something which could be answered with the current model. Unfortunately, that would require economy-wise modelling, and was not just a matter of imposing minimum emission standards.

Mr D Luyenge (ANC) asked about the use of indigenous knowledge as it related to pollution. There were methods that rural and elderly people had used before to make sure that the pollution of the air was fought, using their expertise. He wanted to know if there was any way those skills and knowledge were being utilised.

Prof Korneliussaid that he could not answer that question, as it was completely outside his field of knowledge and he did not wish to supply false information.

Centre for Environmental Rights (CER): MES postponement

Ms Robyn Hugo, Programme Head: Pollution and Climate Change, CER, said that despite detailed participation in the extensive, collaborative multi-stakeholder process setting minimum emission standards (MES) over some five years, both Eskom and Sasol had initially applied to be exempt from the MES, which the Minister had rejected as being legally impermissible. Both had then applied for wide-ranging postponements, and had met with vigorous and detailed objections, where the negative health impacts of granting postponements were shown to be devastating and applications did not comply with the requirements.

In May 2014, Sasol had sued the Minister and the National Air Quality Officer (NAQO), seeking to set aside the MES while postponement decisions were pending. The DEA had opposed, defending the MES. In February 2015, the postponements were largely granted by the NAQO, and Sasol had then withdrawn its litigation.

Some requirements for MES postponement were:

• An air pollution impact assessment.
• Ambient air quality standards (AAQS) in the area were complied with, and would remain in compliance even if the postponement was granted.
• A demonstration that the facility’s current and proposed air emissions were not causing, and would not cause, any adverse impacts on the surrounding environment.
• A detailed justification and reasons for the application.
• A public participation process.
• The application was submitted at least one year before the compliance date.

The MES postponements required offsets.

A condition of the Eskom (apart from Matimba and Medupi) and Sasol postponements was air quality offsets. In addition, Eskom had to implement an offset programme to reduce particulate matter (PM) pollution in the ambient receiving environment. A defined offset implementation plan was expected by 31 March 2015. Sasol was also required to implement an offset plan to reduce PM and sulphur dioxide (SO2) pollution in the ambient receiving environment. A defined offset implementation plan was expected from Sasol by 30 June 2015.

Over a year later, an air quality offset guideline was published, recommending offsets where MES postponements were granted. Despite that, offsets could be implemented as an alternative to compliance with the law. After the postponements were granted, the relevant atmospheric emission licences (AELs) were varied to incorporate the relaxed emission standards and the air quality offsets.

Almost three years later, air pollution remains high in the priority areas (HPAs). The DEA’s draft mid-term review (MTR) of the HPA air quality management plan (AQMP) confirmed that, despite 10 years since the HPA’s declaration, there was little, if any, improvement. Air quality remained poor, with numerous exceedances of the health-based AAQS. The 2017 DEA state of the air report indicated that many South Africans may be breathing air that was harmful to their health and well-being, especially in the priority areas.

The NAQO decision to grant MES postponements to Eskom and Sasol had had a significant negative impact on the HPA’s prospects of ever meeting its main goal of reducing air pollution to meet the AAQS. As the two largest emitters in the HPA, ensuring that both entities complied at least with the MES should make a significant contribution towards lowering excessive pollution in the HPA.

The October 2017 air pollution report showed that air pollution remained high in the HPA, 10 years after its declaration. The HPA has to date dismally failed in its purpose to improve air quality so that it at least meets the AAQS. HPA residents were having their constitutional rights to an environment not harmful to health and wellbeing violated. The significant air pollution meant that people were dying prematurely and suffering from respiratory and cardiac illnesses that inhibited their prosperity and wellbeing.

The CER had set out various demands, its minimum requirement being for the DEA to meet its constitutional obligations under section 24 (the environment right) and for all authorities to meet their obligations under the Air Quality Act (AQA). This was focussed on the HPA, but the demands applied more broadly. Although a response to these demands had been promised by the DEA by 11 October 2017, no responses had been forthcoming to date.

Eskom had in the past indicated that it would extend the lives of its coal-fired power stations (CFPSs), but on other occasions, had said that it may decommission a few stations early. Its Air Quality Improvement Plan assumed a 60-year life for its CFPSs, although these had a 50-year design lifespan, and the Department of Energy’s Integrated Resource Plan for Electricity also assumed a 50-year life for them. Eskom’s 2017 Integrated Report indicated that no decision on the possible decommissioning of CFPSs had been made, and Eskom had no decommissioning plans or funding for the environmental impact assessments required for decommissioning.

Feasibility studies were under way to reassess the lifespan of power stations, to inform the available options, such as coal reserves, lean preservation, mothballing or decommissioning of stations. The CER had been refused access to key components of the life-extension feasibility study, and to the whole socio-economic impact assessment for the early closure of CFPS’s. It was clear from its own analysis of Eskom’s compliance with their AELs over the period 1 April 2015 to 31 March 2016, conducted by Prof Cairncross, that they were not meeting even the relaxed emission standards.

On 31 May 2017, the Centre had written to senior DEA officials and provided Prof Cairncross’s report. This report had also beenpresented at a meeting with the Department and licensing authorities, and had not beendisputed. However, it did not appear any meaningful action had been taken against Eskom. On the contrary, Eskom seemed quite confident that it would be granted additional postponement applications.

The CER said that although the provision for MES postponements was intended to provide industries with an opportunity to come into compliance with the MES within, at most, a five-year period, in practice it appeared that this provision had been abused. Sasol and Eskom, as the country’s two biggest polluters, had already applied for additional postponements, and intended to continue making further applications, despite being in priority areas in which high air pollution levels negatively impacted on human health and peoples’ constitutional environmental rights. Eskom was not even complying with its relaxed emission standards, and there was no clear indication when it would close its non-compliant CFPSs.

To limit further violations of constitutional rights, the DEA should take the steps identified in “Broken Promises,” starting with undertakings to review existing postponements in priority areas, and not granting further postponements.

The Chairperson said that due to the meeting of the House, the meeting had to be adjourned. 

The Committee resumed later where Sasol made a presentation. PMG did not cover this section of the meeting.