National Environmental Management: Air Quality Bill: briefing


11 August 2004
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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report

This report was edited by PMG and written kind courtesy of Contact Trust:

11 August 2004

Ms E Thabethe (ANC)

Documents handed out
Department presentation on Air Quality Bill
Portfolio Committee's Public Hearing Input
Implications of the New Air Quality Bill
Air Quality Bill - B62A-2003 (amendments made by Select Committee in November 2003)
Air Quality Bill - B62B-2003 (Select Committee amendments incorporated into Bill)
Portfolio Committee Proposed Amendments to Bill

The Committee discussed proposed amendments to the Bill, based on presentations from the Department and submissions from various stakeholders.

The Chairperson said that passing this Bill was long overdue and the Committee was aiming at passing it for 23 August. While they could reassess whether this was feasible, it was important to move quickly.

Mr Olver, Department Director-General, introduced his staff: Ms Pam Yako, the Chief Operating Officer; Ms Joanne Yawitch, the Deputy Director-General in charge of Environmental Quality and Protection; Mr Joseph Matjila, the Chief Director in charge of Waste Pollution; Mr Peter Lukey, the Chief Director of Regulatory Services and Ms Koekie Maphanga, the head of the D-G's office. The presentation would be run by Ms Yawitch and Mr Lukey. He congratulated the Department and Committee on their hard work, as the Bill was based on submissions from many groups representing different sectors, such as the Legal Resources Centre, Groundwork, the South Durban Council Alliance, the Sasolburg Air Quality Monitoring Committee, the Chamber of Commerce, AngloGold, and many more. Together with these groups, the Committee had been exploring possible amendments, and had reached a point of consensus with 90% of the groups, which he considered remarkable.

The first section was to be a basic outline of the Bill, as if it was being presented for the first time. He wanted to then present a case study on the implications of the Bill for oil refineries, looking at repercussions for both industry and public health. The third section would be spent discussing proposed amendments to the Bill.

Mr Peter Lukey began by describing the pitfalls of the old, outdated legislation, and comparing it to the new Bill. The APPA was written in 1965 so was extremely out of touch with contemporary problems, as its guidelines had not been updated for years and maintained a post-industrial revolution focus. There was no drive towards promoting cleaner air in the original Bill. There was a constitutional right to a healthy environment and well-being, but that APPA had set no standards or targets in this regard. Essentially, everyone had a right to things that APPA was unable to promote, being outdated and unconstitutional.

He said it was time for a new Bill, one that prioritised the integration of the three spheres of health, environment and socio-economic development. He then went on to read through and discuss the synopsis of the new Bill, as listed in the appendix.

Mr Arendse (ANC) commented that he would be glad to see the Bill passed as it had taken so long to get to this point. He then queried whether giving local government the right to award licences would not enhance corruption, as they gain revenues from companies working in their region and would want to ensure they stayed, regardless of their emission standards.

Mr Greyling (ID) wondered who would monitor emission standards, and who would be paying for the monitoring facilities in each hotspot, like the one in Richard's Bay.

Mr Mokoena (ANC) queried whether it would be useful to create a law around old cars, taking vehicles that were older than five years off the road to stop pollution getting worse.

Mr Morgan (DA) asked how long a reasonable transition would be between APPA and the new Bill. He wondered how long large companies would be given to comply. He then queried where the income would be generated, and whether the burden would be too much for local government.

Ms Chalmers (ANC) asked for a repeat of the statement on meteorological conditions that Mr Lukey made. She wondered how the international legislation on credit-swapping would affect South Africa, if at all.

Mr Ellis (DA) noted how incredible it was that it had taken so long to get the Bill to this stage, and queried why this was the case.

Mr Olifant (ANC) said that on the tour they had seen a monitoring system in the township of Secunda, near Sasolburg, but nowhere else, despite having been told that they do exist. He wondered whether conglomerates should not be compelled to install more systems elsewhere.

Ms Mdaka (UDM) highlighted the plight of the workers and reminded the Committee that 'you only live once', and that it was important to protect the environment. She said that she had no objection to companies making a profit, but that health issues must be a priority, as it was not only the workers that suffered, but their families too. She said she had been very angered by certain presentations that had shown how exploitative the industry could be. She called for more on-site visits, as there were many limitations to working from Cape Town on these issues.

Mr Lukey responded to the above questions by first looking at the issue of licencing: the local authority is the licencing authority, unless it specifically asks the province to take over the function, if they believe themselves to not have enough of a problem to worry about it themselves, or if they are doing it incorrectly, or finally, if the local authority itself is the applicant for the licence.

He said the Bill's delay was due to two things, firstly due to the misconception that air pollution control stopped development. As this conventional wisdom has been challenged this notion has been turned upside down. He said that companies themselves are beginning to recognise the benefits of preventative legislation.

He said that the scrapping of cars was not feasible now, and drew on the example of Denmark that had followed this route. When promoting the use of new cars through lower taxation they found themselves with more cars on the road, contributing more pollution. He reminded the Committee that everyone was responsible for pollution, citing the smoggy haze that can be seen in Cape Town as being caused by diesel vehicles.

He went on to say that local authorities were becoming more savvy about unnecessary health care and related costs caused by poor air quality, so was confident of their support for the Bill. Air pollution was ever-changing and influenced by weather conditions, so it was vital to have a meteorological assessment of each area. The Bill could not be described as making Environmental Impact Assessments easier, but more effective. It carried enough checks and balances to monitor industry's assessments. It was not a self-regulating system as such, as for a start there were stern warnings within the Bill against deception or abuse of information. At the moment there was no incentive not to pollute, but once incentives were in place, decision-makers in industry would realise the advantages in complying and enforcement would not be such a daunting issue.

Department on proposed amendments
After the lunch break, Mr Lukey went through the amendments, offering some insight into the key areas that they proposed. He spoke about the concern that had been raised about the Bill not being linked clearly enough to the constitutional rights it was designed to promote, and this had been made more explicit in the amendments. He said that the wording of the act had been changed to reflect this emphasis.

The issue of timeframes had been broached in the amendments, and firmer wording had been used in order to clarify what an appropriate time span for implementation would be.

On the issue of discretion, a number of 'mays' were transformed into 'musts', particularly around licensing - the amendments demand a minimum set of emission standards be set for activities listed as requiring licences. There was a strong public call for this. The rest of the amendments were of a technical nature.

The Chair thanked Mr Lukey, and asked for clarification on what issues were raised by the stakeholders such as lobbying groups, NGOs and companies.

Mr Lukie responded that it was important to note that the NGOs and companies had come up with very different issues. He mentioned that the NGOs had been easier to deal with, as they had first met as a group and clarified their position together. He also said that they had been very firm about emission standards as their main focus, something that had been very important to industry as well. Thus this had been a relatively easy area to gain consensus.

Ms Yawitch said there had been anxiety about local governments being too stringent. She went on to say there had been a set of issues around exemption, specifically looking for clarification as to when problems around this got pushed to national level. She said that the Department had responded by saying that decisions could not be made at different levels. She said that this had highlighted issues around the allocation of responsibility, as the Department felt it was unfeasible to have certain industries or sectors dealt with on one level and others on another.

Mr Olifant (ANC) queried where people "should go when things aren't going as they should", as a type of "ombudsman structure", and what systems were in place to assist with complaints.

Mr Greyling asked about developing health studies for specific hot-spot areas, and suggested that such a research plan form part of the new Bill.

Mr Moss (ANC) pointed out that during the tours there had been times when there had been a smell of plastic in the air, but that on asking where it emanated from, they had been told it came from another factory. This story was repeated each time the question was asked. He wondered how it was possible to gauge which potentially harmful factory was actually responsible.

Mr Lukey responded to the above by acknowledging the difficulty with finger-pointing, based on an unwillingness to take responsibility. He said that the problem arose when there was no evidence with which to disprove the claims. He quoted an example of a South Durban refinery that was reporting half of what it turned out to be emitting, which does not build up community confidence. He said that proper environmental governance requires the appropriate cycle, the first step of which is information. He claimed that many of the issues were so obvious that there was no great need for extensive research, as the problems were already apparent. It was a matter of disseminating information and ensuring appropriate responses to the problem.

In terms of health studies, he said that this would be considered as an integral part of the implementation process, rather than as an aspect of the Bill. He said that exploration of the information gap had already begun, as there was no justification for channelling resources into areas that had no need for them. He acknowledged there were a number of areas, such as Witbank, that required attention.

In response to the ombudsman question, he said that there needed to be a named individual who would be responsible for these issues at each level of government.

Ms Yawitch added that, on the issue of health studies, there was a need to deliver an integrated approach to the problem and work across departments for best practice. She acknowledged that health studies were vitally important, but claimed them to be both costly and lengthy, and reminded the Committee that what was in the Bill had to fit under the department's mandate in law. Her sense was that it would be best to prescribe that health issues be examined at the local level in the implementation stage, in terms of the framework and plan that were the responsibilities of the provinces and local governments to carry out.

Mr Olifant responded that it was incorrect to always examine the human element integral to health issues in terms of cost.

The Chair asked about the Department of Labour's role in this area, and asked for amendments to be included in the Bill to highlight this link.

Mr Greyling emphasised that the Department of Health would not be obliged to carry out any studies unless it was included in the Bill. He asked about retrospective liability, in terms of any health issues that may be unearthed, and related compensation.

Mr Lukey asked the Committee to bear in mind that once the Bill was passed a national framework would be put in place and an implementation plan that would be developed in consultation with the Health and Labour Departments. This was being done in the name of co-operative governance, but to start demanding such inclusions now would mean dramatic delays.

He said that the vital thing was for government to "provide the information to empower people in law to suit them", in order to demand their rights from companies that until now could simply say "we're in compliance", when faced with a potential class action suit. The change in legislation would have dramatic repercussions for health and related issues.

Mr Arendse raised the concern that once the Bill was processed it would be packed away, and notions of involving other departments would fall away.

Mr Lukey said that the national framework would have to be passed in two years once the Bill had been passed, which would entail engaging with other departments for integrated implementation.

Mr Moss asked whether companies could be held accountable for unhealthy levels of emissions from before the passing of the Bill.

Mr Lukey said no, the reality was that it was essentially government's fault if they did that, back when the law had not guarded against such activity.

Ms Yawitch suggested that an easy amendment could be written in to draw attention to the relationship between air pollution and health. She reminded the Committee that similar legislation overseas had been very effective very quickly, and that international best practice had been used as a guideline for this Bill.

Mr Lukey finished off by emphasising how impossible it was to regulate the industry with an outdated law. There was no way to be firm when the legislation was so lenient. He reminded the Committee that the Bill in discussion was revolutionary, and that the amendments being discussed were "small fry" in comparison to the impact that the Bill itself would have.

The Chair reminded the Committee that they would reconvene at 2 pm the next day.

The meeting was adjourned.


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