Air Quality Bill: Negotiating Mandates

Meeting report

LAND AND ENVIRONMENTAL AFFAIRS SELECT COMMITTEE
13 October 2004
AIR QUALITY BILL: NEGOTIATING MANDATES

Chairperson: Rev P Moatshe (ANC)

Documents handed out:
Free State Negotiating Mandate on Air Quality Bill
Kwazulu Natal Negotiating Mandate on Air Quality Bill
Limpopo Province Negotiating Mandate on Air Quality Bill
Mpumalanga Negotiating Mandate on Air Quality Bill
Northern Cape Negotiating Mandate on Air Quality Bill
North West Province Negotiating Mandate on Air Quality Bill
Western Cape Negotiating Mandate on Air Quality Bill
Eastern Cape Negotiating Mandate on Air Quality Bill

Other relevant documents:
Air Quality Bill (B62B-2003)
Air Quality Bill (B62D-2003)

SUMMARY
Eight Provinces submitted negotiating mandates on the Air Quality Bill. The Gauteng Province referred to its final negotiating mandate that it had submitted at a previous Committee meeting. Kwazulu-Natal, Limpopo, North West, Western Cape and Gauteng Province approved the Bill without amendments. Free State, Mpumalanga, Northern Cape and Eastern Cape supported the Bill with concerns or amendments.

Several mandates raised concerns with the financial implications of the Bill. They were uncertain how the Department planned to raise funds to implement specific provisions of the Bill. There was a heated debate between Mpumalanga and the Department over the absence in the Bill of a definition of 'controlled fuels.' The Department insisted that it was necessary for certain items of the Bill to delegate discretionary decision making powers to the Minister and the MEC.

MINUTES
The Department delegation consisted of Ms J Yawitch, Deputy Director General: Environmental Quality and Protection; P Lukey, Chief Director: Regulations Services; Ms Z Adhikari, Parliamentary Liaison Officer: Department of Environmental Affairs and Tourism; Mr N Mabalane, Director: Air Quality and Mr H Smuts, State Law Advisor.

After a provincial representative read out his/her negotiating mandate, the Department delegation responded to it. After each response, the Committee was permitted to ask questions.

Eastern Cape Negotiating Mandate:
The Eastern Cape had several concerns (see attached document). The first was with the 'burden of proof' implied to the state by the wording of certain items of the Bill, and the prevalence of discretionary powers to the Minister and MEC.

Mr Lukey replied that the wording of certain amendments had now been changed to reduce this 'burden of proof.' He said that discretionary powers, implied by the word 'may,' should remain. If 'must' replaced 'may' then the Minster and the MEC would be obliged to process every contested minutiae of the Bill. Their time and energy would be wasted on labyrinthine bureaucratic meddling.

There was 'no provision for appeal against a decision taken by the minister.' Mr Lukey indicated that the Bill fell under the 'umbrella' of the National Environmental Management Act, which contained an appeal facility against decisions taken in terms of the Bill. Also, there was the Promotion of Administrative Justice Act that contained a public appeal function against administrative decisions.

The Eastern Cape felt business interests were put at risk by the regulations of the Bill. The Department did not agree. Mr Lukey said that reactive measures to environmentally hazardous business practices were discretionary on the part of the Minister and the MEC, who had a duty to provide 'reasonable governance'. Final judgement on shutting businesses down would come from the law courts.

What were the financial implications of the Bill? How did the Department aim to achieve funding for these finances? Mr Lukey said the primary source of funding would come from licensing. The Director General had written to the National Treasury requesting a money Bill to provide the Department with a licensing function. The Department intended to charge business with an annual license fee based on the polluter pays principle.

What was the distinction between heavy and dirty fuels? Mr Lukey said the Department wanted to reserve its right to list by definition all fuels considered heavy or dirty which were liable to controls. Definitional flexibility was required so that unidentified emissions could not be safe from regulations.

Finally, Eastern Cape was concerned with Clause 13 of the Bill, which provided for the establishment of a National Air Quality Advisory Committee. There was no provision made for 'tenure of office, number of people and qualifications or disqualifications.'

Mr Lukey replied that the National Environmental Advisory Forum (NEAF) would decide if this Committee was necessary or not. If so, the Minister would decide on its composition and qualification of members.

Free State Negotiating Mandate:
The Long Title of the Bill contained the words 'ecological degradation.' Subsequently the words did not appear again in the Bill.

Mr Lukey explained that these words were inherently pertinent to other words in the Bill. Anything impacting the environment was an ecological theme.

There was a problem with Clause 9(c), and the use of the word 'may'. Mr Lukey explained that the Minster must act on 'ambient standards' and may act for 'emissions standards'. If she were obliged to the latter she would have to act on all emissions into the air, which was impossible. Bush fires, for example, were an emission standard. The Minister could not possibly be obliged to deal with bush fires.

Free State pointed out a typographical error to Clause 21(1) and the problematic use of the word 'been' in Clause 49. The Department acknowledged both errors and said it was correcting them.

The Department pointed out that Free State concerns with Clauses 1, 39e and 42(1) were redundant. Those concerns did not involve amended items of the Bill. They were with sections that had already been approved. The Committee Clerk noted that he would only make changes to amended sections of the Bill and to typographical errors. He would not alter items already approved by the National Assembly.

Clause 48e was problematic. Emission control officers were not constitutionally permitted to police emissions. Mr Lukey said these officers were created simply as employees of the companies, who were experts on air quality. They could advise companies when their emissions were unsafe. They would report emissions abuse to the Department, which would then take policing steps.

The Department denied a request to substitute 'person' with 'applicant' in Clause 49. The Committee agreed.

The Free State wanted incentives in Clause 53(l) to include incentives for the use of clean motor vehicle emissions. Mr Lukey said the Bill provided for the provision of such incentives.

Mpumalanga Negotiating Mandate:
Why was there no definition for 'controlled fuels' under Chapter 1 of the Bill?

Mr Lukey responded that the omission had no substantial impact on implementation of the Bill.

Mr Watson (Mpumalanga) was unhappy with the response. Why was the Department 'circumventing' his question? The Department saw fit to define controlled emitters, why could it not define the other?

Mr Lukey explained that the Department identifies a controlled fuel once it has decided to implement a control. The State Law Advisor said the Department was not able to confine controlled fuels to a definition, since there were many derivatives that had not yet been identified. Ms Yawitch said that Clause 26 mentioned controlled fuels, which had been approved by the National Assembly. The Committee waved proceedings forward much to the chagrin of Mr Watson.

Why did Clause 34 confer powers only to the Minister, but was silent about the MEC?

Mr Lukey replied that the control of noise was the domain of the local authorities. The Minister was required only to set national norms and standards.

Northern Cape Negotiating Mandate:
The Northern Cape was concerned with companies making profits at the expense of people.

Mr Lukey said the entire legislation of the Bill provided for this. The Judge had to decide which profits were made at public expense, and imposed penalties accordingly. Ms Yawitch said the Bill provided the MEC, and provinces, with sufficient means to affect pollution penalty plans.

The second concern was with finances. The Department referred to its earlier response to Finances. Ms Yawitch added that the Department was hoping to be able to finance capacity building in the provinces and local municipalities.

Discussion
Mr M Mzizi (IFP; Gauteng) asked if the Department was challenging industrial dumping of hazardous substances and the burning of waste.

Mr Lukey agreed that this was a major challenge to the Department. For precisely the reasons of dumping and burning of waste substances the Bill had been amended to allow unlimited definitional range to substances for regulation. Paint residues were being used more popularly as a source of fuel for example. Although it was positive that waste was being recycled, the health impact of burning waste was massive.

Mr Mzizi wondered why it should be necessary to establish a National Air Quality Advisory Committee if there were other mechanisms available to advise the work of the Minister and the MEC. Could this Committee be temporary if necessary?

Mr Lukey agreed that the NEAF informed ministerial and MEC decisions. The proposed new Committee would deal solely with Air Quality issues and take on some of the work of the NEAF, which was sometimes overburdened by the scale and broad detail of its responsibilities. It was possible that the Committee would only be required part time, in which case the Minister could limit its existence.

Ms B Dlulane asked if this Committee was expressly provided for in the Bill as requested by the Eastern Province. Mr Lukey said that Clause 13.2 provided an express duty on the Minister to constitute the Committee if the Committee was deemed necessary.

The meeting was adjourned.