NEMA AIR QUALITY BILL
COMMENTS BY THE LEGAL RESOURCES CENTRE ON BEHALF OF THE ORGANISATIONS CONTAINED IN ANNEXURE A

EXECUTIVE SUMMARY

This submission is made on behalf of civil society groups who represent inter alia poor and disadvantaged communities throughout South Africa who are adversely affected by high levels of air pollution where they live and work.  The submission is concerned that the proposed bill will fail to address these concerns and the level of adverse health impacts associated with current levels of pollution.

The bill does not have a clear regulatory goal and is characterized by very wide discretion being conferred on the executive. There are no time constraints for implementing the bill and therefore it is not clear that there will be successful implementation. Detail is referred to regulation which makes the bill susceptible to being challenged, and its implementation delayed, in terms of administrative law whereas an act of parliament can only be challenged as unconstitutional.

The bill does not have the key features of a Clean Air Act or a focus on protection of health. These would include the mandatory setting of ambient air quality standards and source emission standards as well as mandatory provisions for enforcement, measuring and monitoring.  Citizen enforcement is not a feature of the bill.

Despite the imperative of setting up a pollution release and transfer inventory in terms of the White Paper on Environmental Management Policy and the White Paper on Integrated Pollution Control and Waste Management, this feature is absent from the bill.

The bill incorrectly focuses on regulating ambient air as the central strategy for improving air quality.  The setting of mandatory emission standards for big pollution sources,  which is essential in order to foster attainment of ambient air goals, is not mandated by the bill. In most other jurisdictions where air quality has been brought under control including the European Union, first the big emission sources were targeted with technology based standards and when the worst had been cleaned up, a gradual shift took place towards ambient air quality management. Ambient air quality management carries with it the expense of collecting and verifying data which may be cumbersome and slow to implement.  Attainment of ambient air quality standards also does not guarantee health especially when there is a wide range of pollutants present in the atmosphere not all of which are even being measured.

The bill contains no guidance or criteria for regulatory standards to establish ambient air quality standards or emission standards and the existing best practicable means for controlling pollution from scheduled industries is repealed and weaker provisions are put in its place.

While the provision for priority areas is useful, it requires the support of proper information, collection and verification before it will be feasible for the national air quality office to implement management plans within 6 months.

Provisions for the listing of new sources are unduly onerous and difficult to implement. The distinction between listed and controlled emitters is not clear and since the latter do not necessarily require environmental impact assessments, polluters may wish to be classified as controlled emitters to avoid EIA’s.

The provisions relating to pollution, trading and transfers are insufficiently adequate to protect air quality in that they lack guidelines and do not ensure that tradable discharge permits are used as a mechanism to effect compliance with ambient air standards.

A number of provisions of the Atmospheric Pollution Prevention Act have been repealed leaving a legislative vacuum. These provisions include e.g. the best practicable means test, the more extensive definition of “noxious or offensive gases”, the mandatory application of the best practicable means to the issue of registration certificates, the period of validity of provisional certificates, section 23 ie the power to enter upon premises and a number of other provisions and powers currently exercised by local authorities in terms of the Atmospheric Pollution Prevention Act.

Until the above shortcomings are rectified the bill should not proceed to be promulgated.

1.	Introduction
Air pollution can and does have a significant adverse effect on the public health and the environment. South Africa has high levels of air pollution, exceeding internationally recognised health based guidelines for a number of pollutants, in many of its cities and industrial areas caused by a large number of pollution sources and  weather conditions that can make air pollution worse by trapping it close to the ground. Poor communities invariably have the highest levels of air pollution and associated ill health effects. 
Source and ambient emission standards do not exist even though they may have been in existence internationally for up to 30 years and many technology solutions for minimising air pollution are affordable and readily available.
The economic costs of poor air quality can be multi levelled. Ill health, premature mortality, absence from work and loss of future income can be significant.  Existing high levels of pollution in industrial areas can lead to the slowing  down of licensing and impact assessment processes, due inter alia to the fact that existing health threats need to be considered when assessing cumulative impacts.  This in turn can lead to less investment, due to high cost and investment uncertainties.  These costs are prohibitive of development both at a health and investment level. They need to be addressed by a pollution control law which will have clear measurable goals and time frames, and which will address these concerns.  It is submitted that the Bill fails to do this.
What we need is an act with teeth and clear standards. The bill is too much of a framework, without the picture inside.

2	Regulatory context.
2.1	The Constitution guarantees an environment which is not detrimental to health and well being and requires reasonable measures in pollution control to achieve these objectives.
2.2 	White Paper on Environmental Management Policy for South Africa (May 1998) sets out the policy framework for the Bill:

Goal2  “Sustainable Resource Use and Impact Management” refers to the following supporting objectives.

“Integrated pollution and waste management
•	to prevent, reduce and manage pollution of any part of the environment due to all forms of human activity and particular from radioactive, toxic and other hazardous substances
•	to set targets to minimize waste generation and pollution at source and promote a hierarchy of waste management practices, namely reduction of waste at source, re-use and recycling with safe disposal as the last resort
•	to set up information systems on chemical hazards and toxic releases and ensure the introduction of a system to track the transportation of hazardous materials 
•	to promote cleaner production and establish mechanisms to ensure continuous improvements in best practice in all areas of environmental management.”

The national legislature has the power to legislate on matters listed in schedule 5 to the constitution where it is necessary to 
•	maintain or establish national or minimum standards; and
•	prevent unreasonable action by a province, or action that prejudices the interests of another province or interests of the country as a whole.

The matter of air pollution is quintessentially an issue which requires the setting of such national minimum standards and prevention of unreasonable action by provinces. The Bill fails to set clear goals and minimum overarching standards, consistent with policy directives contained in the White Papers on Environmental Management and on Integrated Pollution Control and Waste Management.  If passed into law as it stands it will constitute an abdication of Parliaments legislative responsibility.

3	Lack of a clear and achievable regulatory goal
The Bill does not have a clear and achievable regulatory goal.  This is required in order for it to be successfully implemented. Instead it is characterised by vague objectives and extremely wide discretionary powers conferred on the executive.
While in terms of the constitution the State is bound to protect health, health is not mentioned as the objective of this bill, but rather the improvement of air quality to an undeterminable degree. Even the heading of the bill is neutral as to its intentions, namely to manage air quality, rather than protect and improve the health of its citizens.
The Bill is therefore too vague to protect rights and health and its outcome is uncertain and entirely based on the prerogative of the Minister and Provincial and local authorities.

At local and provincial levels regulators who exercise the discretions permitted in the Bill  are likely to come under significant adverse political  pressures from polluters if they intend imposing standards which will cut into profits. This has  already been experienced! To make implementation more likely to succeed  more of the Bill needs to be made mandatory by parliament.  This is also implied in terms of the First Strategic Goal of the White Paper on Integrated Pollution Control and Waste Management.

3.1	The Bill undermines the separation of powers by removing the regulatory role of parliament.  

The Bill is a blank cheque from Parliament to the Minister to regulate air quality entirely as he sees fit with almost no constraints.   Discretion is extremely wide to the point that the Bill may never be implemented. For example the word “may” appears in the Bill over 50 times!  The Minister must draw up a framework for setting norms and standards, but its contents depends on his/ her discretion and there are no time constraints.  The Municipalities must draw up air quality management plans but the content requirements are vague and ambiguous.

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The Bill also weakens the powers of officials to regulate by requiring cumbersome and inappropriate consultation and justification when this is not necessary or is covered by the Promotion of Administrative Justice Act anyway. The said requirements  also needlessly expose administrative action to legal challenge by polluters. In the case of exemptions, where consultation, disclosure of information, justification and public participation are probably needed most, (the Bill is after all aimed at reducing pollution) sections 49 and 50 do not apply, for no apparent reason.  This creates unevenness in levels of consultation and the exercise of discretion.

Detail is deferred to regulation

The bill is drafted in a framework form leaving much of its detail to later regulation by the Minister and MEC’s.
This leaves much of its implementation open to attack for non compliance with administrative law. An act of parliament is by contrast only open to being challenged on the bases of being unconstitutional.
This may well hamper its implementation.  Pollution abatement can be expensive and polluters may therefore be keen to delay the implementation of this act if possible through litigation.
The core requirements of an air quality management system which will protect  health, including the setting of mandatory standards,  within specified time frames must be included in this Bill in order to ensure that it is implemented.  Detailed implementation can then be left to regulation.

4.	Key features of  a clean air act. 
Parliament  must ensure that the Bill has the following minimum features before it can discharge its constitutional duty to  protect the environment.
The Bill should require:
4.1	A clear  and  achievable overarching goal
4.2	mandatory ambient air quality standards for a comprehensive range of health damaging air pollutants within
•	A specified time
•	Based on criteria which will ensure the protection of health 
•	In order for mandatory ambient air  standards to be enforceable there has to be provision made for air quality management plans at provincial or local level that demonstrate how these standards will be achieved within a specified amount of time as set out in the Bill. Mechanisms for dealing with failure must also be set out eg the NAPQO (National Air Quality Officer) takes over certain functions.
In order to foster compliance with such ambient air standards the Bill should require the following within a specified time:
4.3	Mandatory emission standards for new and existing large sources, and vehicles based on a specified standard which fosters the protection of health
4.4	Mandatory  fuel specifications for vehicles, home fuels and industrial sources based on a specified standard, which fosters the protection of heath
4.5	Information about air pollutant emissions ie a pollution release and transfer inventory
4.3	Mandatory measuring and monitoring of emissions and ambient air quality in order to support the objectives contained in the Bill
4.4	Compliance and enforcement provisions. Citizen enforcement is an important way to increase resources for enforcement in a poorly capacitated state such as ours and should be included.
	
5.	The Bill has none of these features. 
It has the discretion to impose these features by administrative action or regulation only.  The public has no entitlement to enforce its constitutional  rights by compelling performance. It is therefore not clear whether or when there will be implementation of its objectives.
The state, itself often a significant contributor to air pollution is exempted from its provisions.

6.	The bill incorrectly focuses on regulating ambient air as the central tool for improving air quality.
Setting standards for ambient air quality is an important part of air quality management.  But  air quality standards, without mandatory plans for achieving compliance, in enforcement terms become meaningless, since it is not clear who the transgressors are.

Even if such plans are mandatory the achievement of improved air quality through this approach as the main strategy is expensive and resource intensive especially for a developing country.  It requires emission and ambient air data collection in all areas with air pollution, over an extended period of time. A system based solely or mainly on ambient air monitoring data is open to challenge – in any one city or region, only a few (expensive) monitoring stations may be available, and the question of the representivity of the monitoring data gathered at a few stations for all areas of the city/ region is always subject to challenge. Furthermore, measured ambient data are greatly influenced by meteorological conditions, thus data have to be gathered over an extended period of time – years – in order to obtain a definitive assessment of air quality in the area.

Compliance with ambient air standards is also not a guarantee of protection of health especially in areas where a large number of air pollutants (which have a cumulative impact) are present.  More recent studies in many cases are showing that health effects may occur below levels currently regarded as protective of health and that for some if not most air pollutants such as PM2,5, lead and ozone there is no safe threshold.  (WHO, ))
 
In terms of the Bill priority areas require consultation and justification, which places a consultation and research burden on the state which will turn out to be expensive and time consuming not to mention being capable of being challenged by polluters.  Once declared the NAQO has  6 months to draw up a plan to comply with the standards. Without ambient and emissions data readily available it will be impossible to draw up a plan that will be effective.  
Collecting this data can be expensive and technically challenging.  Unless  support for this provision is mandated and the information readily available the provision will be unworkable.
This is discussed in more detail in the paragraphs below.

The achievement of overall compliance with ambient air quality standards must be fostered by the setting of mandatory emission standards as an urgent priority. In areas such as South Durban the setting of emission standards based on affordable modern technology would in all likelihood remove the problem of exceedences of health guidelines for pollutants such as SO2, NOx and  PM.  This would reduce the administrative burden of declaring the area to be a priority area as sketched above. This burden on the NAOQ could end up being considerable if one considers how many of areas in the country have exceedences and would probably qualify as priority areas. Has the NAQO’s financial and technical capacity been increased to meet this challenge?

In the case of municipalities the presentation of air quality management plans are mandatory.  But they are not as yet linked to achieving ambient air standards and very little guidance is given in the Bill as to what they should contain.  They await the passing of regulations.
The Bill uses vague terminology and drafting by having provisions  like “management plans must give effect to best practice in air quality management” instead of spelling our exactly what is expected of  municipal government in managing air quality.  What will happen if they fail to do so? Very little according to the Bill.
The resources required of municipal and provincial government to manage air quality  can be substantial not to mention the technical skills.  By pushing air quality management to the most financially weak and poorly capacitated sectors, such as municipalities, it is doomed to fail.
In the interim, before the Minister has drafted the requisite regulations, it is rather vague and unclear what the  extent of reporting required by Municipalities is. This mandatory reporting requirement is likely to be treated as another unnecessary administrative burden with no clear purpose by these spheres of government who often regard air pollution as a low priority.

6.1	The Bill contains no guidance and/or criteria for regulatory agencies to establish ambient air quality standards.

If parliament were simply to include numerical ambient air quality standards as part of the bill, then such standards would not be vulnerable to legal challenges claiming that the regulatory agencies abused their discretion.   For example, the Philippine Congress included a complete set of numerical ambient air quality standards when it enacted the Philippine Clean Air Act of 1999.  See Section 12 of that Act: http://www.elaw.org/assets/pdf/philippines.caa.pdf   Section 12 of the Philippine Clean Air Act provides further that regulatory agencies may add numerical ambient air quality standards for additional pollutants and/or review the value and amend the value of the standards contained in the Act.

If parliament will not include these standards in the bill, then it should, at least, provide adequate guidance and/or criteria to the regulatory agencies for them to do so.

What follows are some examples of such guidance in legislation from other countries.

In the U.S.: “"National primary ambient air quality standards, prescribed under subsection (a) of this section shall be ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health."  Clean Air Act section 109(b)(1); 42 U.S.C. section 7409(b)(1).

In the Philippines: “The Department, in coordination with other concerned agencies, shall review and/or revise and publish annually a list of hazardous air pollutants with corresponding ambient guideline values and/or standard necessary to protect public health and safety, and general welfare. ... The basis in setting up the ambient air quality guideline values and standards shall reflect, among others, the latest scientific knowledge including information on: a) Variable factors, including atmospheric conditions, which of themselves or in combination with other factors may alter the effects on public health or welfare of such air pollutant; b) The other types of air pollutants which may interact with such pollutant to produce an adverse effect on public health or welfare; and c) The kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air, in varying quantities.  The Department shall base such ambient air quality standards on World Health Organization (WHO) standards, but shall not be limited to nor be less stringent than such standards.”  Philippine Clean Air Act of 1999, Section 12.
The practice of setting standards for air quality through the SABS in terms of the Standards Act is unacceptable for the following reasons:
•	The Standards Act is not specifically aimed at the protection of air quality and health
It deals with quality  control of commodities
•	No guidance is given in the act for air pollution control aspects of commodities

6.2	The draft bill lacks adequate guidance and/or criteria for regulatory agencies to develop emission limits for provisional and final licenses as required by s36(1)(f) of the draft bill.
S32(b) of the draft bill contains vague and lenient guidance and/or criteria (e.g “practical measures”).  This will likely cause the following problems:
1) the adoption by regulatory agency of too lax emission limits; and 2) emitters filing lawsuits to challenge emission limits they consider too stringent.

To correct this problem, the new air quality bill should include better guidance and/or criteria for regulatory agencies to develop emission limits for licenses.   To do this, parliament might want to consider amending S32 of the bill so that it specifically includes such guidance and/or criteria.
Some examples of such guidance and/or criteria are:

1) U.S. Clean Air Act section 111(a)(1), in which emission limits for
criteria pollutants must reflect: “the degree of emission limitation
achievable through the application of the best system of emission reduction which  (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been   adequately demonstrated.”

2) U.S. Clean Air Act 112(d)(2), in which emission limits for hazardous air pollutants must reflect: “the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable) that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new or existing sources in the category or subcategory to which such emission standard applies, through application of measures, processes, methods, systems or techniques
including, but not limited to, measures which: (A) reduce the volume of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications, (B) enclose systems or processes to eliminate emissions, (C) collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emissions point, (D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) as provided in subsection (h) of this section, or (E) are a combination of the above.”

3) Government of Ireland Environmental Protection Agency Act of 1992,
Section 5, which requires that emission limits of industrial licenses be based on the “best available technology not entailing excessive cost.” http://www.irishstatutebook.ie/ZZA7Y1992S5.html   For a more complete explanation of how the Government of Ireland applies this standard to emitters, see: http://www.epa.ie/licences/batneec.htm

6.2.1	Amendment of licenses
A further concern : Paragraphs (a), (b) and (c) of S38 of the draft bill would allow regulatory agencies to amend licenses when it is “necessary or desirable to prevent deterioration of ambient air quality,” “necessary or desirable for the purposes of achieving ambient air quality standards,” or “necessary or desirable to accommodate demands brought about by impacts on socio-economic circumstances and it is in the public interest to meet those demands.”  That is acceptable.  However, paragraph (d) of S38 would allow, it seems, regulatory agencies to amend licenses “at the written request of the license holder” – for any cause and on any basis whatsoever.   This is less acceptable in a system which is attempting to create a rational basis for decision making.

7.	Most of South Africa’s air pollution can be significantly improved by the introduction of emission standards on large (“scheduled”) sources and vehicle emission controls.

The focus of the Bill is around regulating ambient air quality. As has been stated above this is a roundabout way of addressing a problem which is resource and skill intensive and may end up being unworkable.  Huge inroads into the problem of air pollution can be very effectively tackled in the beginning stages by imposing mandatory emission standards on all large and mobile sources. Pollution from domestic coal use can be significantly reduced by the introduction of  mandatory fuel specifications which reduce emissions on combustion.
The Bill fails to set these as objectives or priorities, which are included as objectives  in the White Paper as set out in paragraph 2 above

Internationally emission standards have developed around the development of technology. 
Emission standards for all new and existing large sources must be mandated by parliament,  as well as for mobile sources (vehicles) . The basis for these standards must also be made clear by parliament.  There should be mandatory time limits for the setting of these standards.  Proper emission standards on new  sources would have the additional benefit of reducing the number and extent of environmental impact assessments, reducing the cost and burden on the state that these processes have created.

7.1	New Sources
For new sources technology standards like “BATNEEC”( best available technology not entailing excessive cost ) and similar formulations have been used successfully in the UK, and USA.  Our APPA had a standard for permitting of scheduled industries called “BPM” ie best  practicable means.  This provision will be repealed by the Bill leaving a regulatory vacuum. The factors setout in s 36 are less detailed and prescriptive than the APPA best practicable means test and modern regulatory strategies for dealing with this issue. There appears to be no good reason for the repeal of this provision.
 It is essential that our existing definition be reassessed and updated in order to comply with reasonable international regulatory trends, and the NEMA best  practicable environmental option.

7.2	Existing sources
These are probably the bulk of the pollution challenge posed by industry in South Africa if not in general in places like South Durban. Unless objectives and a strategy for achieving these objectives are included in the Bill, emission levels from existing sources will remain for many years, inhibiting or preventing new development because, in areas of poor air quality, any additional emissions (even if the Best Available Technology is used) would place an unacceptable additional burden on the receiving populace and environment. The only long term sustainable solution to poor air quality is to reduce emissions from existing sources, thus allowing for new developments without unacceptable health threatening impacts. 
New concepts like “Best Available Retrofitted Technology” (BART) need to be included as standards in our law  with clear regulatory guidelines in the Bill to address issues such as cost and time frames for implementation. BART should also include the form of energy used by an emission source in the definition. Our current guidelines in terms of APPA need to be retained as an interim measure, and reviewed and upgraded (within a defined timeframe) against concepts such as BAT and BART, with the emphasis on the largest emitters first.

The Bill can allow for explanatory notes and guidelines to explain what BATNEEC, BART etc mean in regard to a specific industry. These standards must be capable of being upgraded as technology improves. Minimum emission standards can be set for certain technologies, and in other cases guidelines can be developed in order to flesh out what is meant by the terms. In Europe 11 years has been allowed for the retrofitting of all existing large emission sources.

8.	Linking emission standards and priority areas
The imposition of proper modern emission standards may well remove much of the need for the declaration  of  priority areas.  However slow implementation of these standards may result in the need for the declaration of these areas.

8.1	Pollution information
It is worthwhile having a provision for priority areas as long as the NAQO knows where they are.  At this stage it is not clear whether all our large cities and polluted areas collect or model information that will give an indication of whether one or many health damaging pollutants ambient air levels are being exceeded.
The bill should mandate the collection of air quality data in municipalities of population greater than a certain size, or according to other criteria eg the combustion of more than a specified amount of coal or other pollution generating fuels.  Without these provisions in the Bill there will probably be very little air quality monitoring in areas outside of the large metropolitan areas for a very long time.

8.2	Which areas should collect data?
The Bill should also make  provision for monitoring to be made mandatory by the Minister based in other areas,  based on the existence of pollution generating activities (large populations or significant industrial activity) in these areas, or on prima facie evidence that the air quality in that area exceeds the guidelines.  The public should be entitled to apply for this.

8.3	Information on emission levels
The NAQO will have to do a source apportionment and reduction plan for at least the stationary sources in order to bring pollution levels in priority areas within attainment of air quality standards. He/she may have to suggest other more long term strategies for other sources such as home energy use, dusty roads, diesel users etc.  For large sources he will need accurate information on emission levels and rates.
Therefore in general the Bill should also mandate the accurate reporting of emissions by licenced sources (using a nationally standardised format) as well as reporting by municipalities on other information such as traffic densities and fuel consumption by industries and in the home to enable the NAQO to have the information immediately available so that he can draw up the plans within 6 months.

8.4	The content of plans.
The basic contents and requirements for what the priority plans should address should be set out in the Bill in order for the NAQO not to be legally challenged for going beyond his powers.  And of course in order to make the plans effective regulatory tools.  The Bill has no detail on this which may lead to disappointing results

8.5	Delisting
Priorty areas need plans need to enable compliance by a wide margin in order to enable development in the area without causing pollution levels to immediately reach exceedences again.  The Bill allows for the immediate delisting of  priority areas on attainment of ambient standards.  As has already been alluded to, assessing whether or not an area has attained the ambient air quality standards would have to account for the influence of meteorology – data gathered over a 1-year period, for example, would not be sufficient to declare compliance with the standards. Delisting should depend on several years’ data (the period to be specified) demonstrating compliance with the standards in order to ensure that the standards of air quality do not deteriorate in the short term.

As stated above the requirements for declaring priority areas are too onerous and need to be simplified and streamlined to achieve what is reasonable ie at least the attainment of compliance with standards for air pollution which are protective of health.

9.	Problems with the classification of Pollution sources
9.1	Listing and regulating of sources

Listed and controlled activities can be regulated differently in different provinces and according to different standards.  This may lead to injustices such as weaker standards in  less regulated provinces, ie environmental dumping.
Also since air pollution does not respect provincial boundaries, this approach may lead to conflict across provincial boundaries.

The Bill makes it significantly more difficult for a new pollution source to be declared a “listed activity” than the scheduling under the APPA.  This is unacceptable in a Bill which aims to improve air quality!

Additional new requirements over and above what is provided for by the APPA for listing:
a)	The test for whether a new pollution source is to be listed is is that it has to be “likely to have a significant detrimental effect on the environment”. The APPA did not require this but merely allowed the Minister to gazette processes on a schedule to the APPA to which the best practicable means test was then applied before certificates were issued.

The new test is too strict to be practical and will create a loophole for polluters who wish to evade the provisions of the Bill. They may deny that they are likely to have a significant detrimental effect on the environment and the Minister will then have to  bear the cost and inconvenience of having to prove it.  It is often very hard to prove causation in air pollution cases, because of the existence of many causal agents. The matter of classification could end up being litigated and this situation may also create uncertainty and unnecessary costs for government. Implementation of future listings could be hampered.
 Also a number of small polluters who have a relatively low impact can add up to a significant detrimental effect on the environment and health, but will not be listed. There needs to be a way to cover these cases

b)	S 20 requires extensive consultation disclosure and justification in order to “enable the ‘public to submit meaningful representations and objections”. The public also presumably includes the polluter.   Apart from this provision being unnecessarily vague, this was not required in terms of the APPA. Consultation and justification took place in the eia process, where it is more appropriate, once and activity had been placed on the schedule.  

This provision like the previous one discussed in (a) may lead to costly delays and litigation around its interpretation especially if the applicant wishes to avoid being listed. 
For example polluters may argue that they have been given insufficient information in order to respond “meaningfully” to a proposal to require them to be licenced, (unless they are expressly excluded from being regarded as part of the “public”). The State will incur unnecessary costs in trying to fulfil these requirements. This may be even more onerous at poorly capacitated provincal levels. Sections 49 and 50 are in any event redundant.  The Promotion of Administrative Justice Act  no 3 of 2000 in section 3 and 5 provide for fair administrative action in circumstances such as licensing and do not have to be restated in the Bill.  The Constitution and NEMA provide for co operative governance rendering S49 of the Bill redundant.

c)	The activity can continue to take place while the cumbersome listing process lumbers on, and this may lead to irreparable damage to the environment and health.  APPA by contrast allowed for listing with the minimum of formalities (APPA s1(2))

d)	After listing the licensing authority under APPA would be required apply the best practicable means to prevent the escape of noxious or offensive gasses which were quite extensively defined by the act. Criteria for the exercise of this discretion were provided in the Act. 

This test has inexplicably been removed from the Bill and what is in its place are far weaker provisions requiring the regulatory authorities to consider “any practical measures to prevent abate or control pollution”.  This is an unacceptable move backwards in pollution control.  

Moreover pollution control devices/abatement do not have to be applied, only considered.  The APPA by contrast required that the regulator  had “to be satisfied that the best practicable means be adopted or if he/she was not so satisfied, the applicant (would  be required)  to take the necessary steps  within a specified period for preventing or reducing to a minimum the escape onto the atmosphere of noxious or offensive gasses”

The Bill is thus in fact more cumbersome and difficult to implement than the APPA which itself was regarded as archaic!

9.2	Controlled emitters

The basis of the distinction between s 20 and s22 emitters is unclear and should be spelt out unambiguously.  At this stage it appears that the distinction is based on the extent of the impact of the emitter. S20 emitters replace the scheduled industries under APPA and therefore automatically require an environmental impact assessment.  It is not clear what level of assessment is required for controlled emitters.

The problem arises, that a number of (eg controlled) emitters which individually have a small impact, may cumulatively have a significant impact, which also needs an impact assessment.

In order to be classified as a controlled emitters a source needs  to be “likely to present a threat to health or the environment”.  However it does not automatically then require an environmental impact assessment as was the case with scheduled industries in terms of the APPA  (which the listed activities in terms of s 20 appear to have replaced).   There needs to be clarification as to which controlled emitters require impact assessments, to prevent polluters from trying to get their plants downgraded from listed emitters to controlled emitters to avoid eias.

Moreover the provisions of s22(2)(b) seem to be vague and inappropriate.  What does 
‘any sound scientific information” actually mean in practice?

The law should specify the duration of a final atmospheric emission license and the periods at which the license may be reviewed.

10.	Pollution trading and transfers
Once listed activities are given licenses they can apply for permission to be able to transfer their permits in terms of section 37.  They can presumably therefore sell the right to pollute.  
Concerns as to this provision are as follows
10.1	the basis for the exercise of discretion is not given and the provision may well lead to inconsistencies nationally as well as undesirable pressure being placed on regulators to grant these rights.  Corruption is a distinct possibility as polluters try to turn their pollution into an asset.
10.2	the conferring of tradable discharge permits should only take place as a mechanism to effect compliance with ambient air standards that protect health by a wide margin. This is how these permits have developed internationally as a pollution control strategy. If polluters gain the right to transfer discharge permits in a context where there is non attainment of air quality standards the extent of air  pollution may be perpetuated and it may be very costly for the state at a later stage to try to bring down pollution levels

10.3	the issue of tradable discharge permits should also only be considered in circumstances where there is certainty as to emissions measurement and ambient air  levels, and adequate regulatory tools are in place to ensure the proper functioning of these administrative aspects of the Bill. This is not yet the case in South Africa. Also adequate ambient air standards need to be enacted before polluters are allowed to transfer their pollution rights, since these provide the context for assessing pollution levels.

10.4	Allowing for transfer of permits (tradable) outside of the area in which the polluter is situated my result in increases in pollution in other areas. This issue needs to be addressed if one is trying to bring overall pollution levels down as opposed to just moving them around.

10.5	the above concerns are not simply resolved by the assertion that before transfer of licenses eia’s will in any event be required.  

11.	Guidelines for scheduled industries under APPA
There is also some uncertainty as to the fate of the guidelines in terms of APPA for scheduled industries. They do not appear to fall neatly under the definition of a “guideline relating to the performance of functions by licensing authorities under s32(g)”. This provision perhaps needs clarification.

12.	PRTR, Right to Information to protect environmental rights
The Bill does not force the government to collect information about air pollution and emissions from polluters. It leaves this up to the discretion of the Minister who has to draft an air quality plan.  The only information which must be collected is emissions from licensed polluters.

At present, the public is effectively excluded from obtaining sufficient data on emissions from industrial and other sources, and has considerable difficulty in accessing air quality data (if these exist). In the absence of this information, the public cannot in fact exercise their environmental rights provided for under the Constitution and NEMA.

The modern approach to collating information on environmental discharges is the Pollutant Release and Transfer Register (PRTR), a publicly accessible database of information on all significant pollution emission sources. The PRTR is a cost effect method of gathering, collating and making available information on pollutant releases. This Bill should enable government to collect the necessary data in a nationally standardised format, by making provision for the compulsory acquisition of this data. This is required in terms of Goal 6 of the White Paper on Integrated Pollution Control and Waste Management.

Experience internationally has shown that this type of mandatory disclosure also encourages polluters to reduce their emissions voluntarily.

If it is not provided in another law, the public should be granted  access to all of the documents created under this law -- including  license applications, licenses, priority area management plans, and the annual report on the implementation of the air quality plan.

Public participation should be included in more sections.  For example, section 18 requires preparation of an air quality management plan for priority areas.  The public should be given an opportunity to comment on a draft plan rather that confining participation to before the designation of these areas.

13.	Enforcement 
There is concern as to how  the drawing up of area air quality management plans will be enforced.
There should be citizen enforcement provisions.
There should be provision for a separate Inspectorate within the department, to separate the licencing from the enforcement system?

14.Terminology

Some of the important sections of the Bill use language which is outdated, unscientific or vague and difficult to interpret. 
 
For example:
a)	“Air pollution” is defined in terms of archaic and unscientific terminology using words such as “smoke, soot, dust, cinders, solid particles of any kind” instead of the current terminology which is “particulate matter” specifying the size of the  particle concerned such as PM 10, PM2,5 ect.

b)	Is steam air pollution?

c)	The Bill removes from the definition a large number of substances, without any apparent justification and replaces them with the words “fumes, aerosols, odourous, substances and radioactive substances”. In this context these are vague terms and bear no explicit relation to health effects.

15	Concerns about the repeal of the APPA

Legal Resources Centre 
Per

Angela Andrews
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Cape Town

021 481 3000
angel@lrc.org.za

30.05.03