CER submissions: Air Quality Amendment Bill, 2013

1. CER submissions: Air Quality Amendment Bill, 2013 Portfolio Committee on Water and Environmental Affairs Centre for Environmental Rights obo groundWork, SDCEA, VEJA, ELA and community groups 18 September 2013

2. Overview • Focus on s22A of Bill (ex post facto application for atmospheric emission licence (AEL)) • Duplication of s24G National Environmental Management Act, 1998 (NEMA) application • Proposed amendments to s22A – if not deleted • Recommendations on the way forward

3. Section 22A: Consequences of unlawful conducting an activity resulting in atmospheric emission • S22 of Air Quality Act, 2004 (AQA): activities listed ito s21 require an AEL • S51(1)(a): offence to conduct a listed activity without an AEL • S52(1): maximum fine of R5M and/or 5 years’ imprisonment (and double for a subsequent conviction) • S22A of Bill provides for an offender to apply to the licensing authority for an ex post facto AEL

4. Duplication of s24G NEMA • S24G NEMA: ex post facto application for environmental authorisation (EA) where offence committed of commencing an activity listed in the EIA Regulations, 2010 (listed activity) without EA • Activities requiring AELs are listed activities ito NEMA: • BA for construction of facilities or infrastructure for coal or ore storage that requires an AEL ito AQA (LN1, activity 2) • BA for expansion of or changes to existing facilities for any process or activity where expansion or changes will result in the need for a permit or licence ito legislation governing the release of emissions or pollution (LN1, activity 28)

5. S&EIR for construction of facilities or infrastructure for any process or activity which requires a permit or licence ito legislation governing the generation or release of emissions, pollution or effluent and which is not identified in LN1 or included in the Waste Act, 2008’s list of waste management activities (LN2, activity 5) • S&EIR for commencing activity which requires an AEL itoAQA, except where commencement requires BA ito LN1 (LN2, activity 26) • AEL applications therefore require EA • Commencing any of these activities without an AEL also means a violator has commenced without an EA – and s24G NEMA is already applicable • Effect of s22A: applicant who commences NEMA listed activity that requires an AEL without such AEL will have to make 2 applications:

6. One to the Minister or MEC ito s24G NEMA for commencing NEMA listed activity without EA • One to licensing authority (usually municipality) itos22A Bill for commencing AQA listed activity without AEL • Unnecessary duplication and risk of inconsistent and contrary decisions by different authorities on related applications • Preference for s22A to be deleted, with the fact of offender having contravened 2 statutes to be taken into account in determining an appropriate fine • Would also allay concerns re capacity constraints of municipalities to consider such technical applications, and re use of funds from s22A fines that would be paid to municipalities

7. Proposed amendments to s22A if not deleted • Throughout, reference is made to impacts on ambient air. Propose amendments to include references to “environment” and “human health” - more consistent with s21 • Some sections of s24G NEMA not repeated in S22A. Propose that they be equivalent • EG: essential that s22A indicates (as per s24G NEMA) that, if AEL granted ito application, it only takes effect from date it was issued – i.e. not retrospective • Although “may” is used before setting out the licensing authority’s powers upon receipt of a s22A application, it is not clear that processing the application is discretionary – i.e. that there are some offences so egregious that they cannot be considered for “rectification”

8. Maximum administrative fine is too low and should be imposed by an independent tribunal or an environmental authority • Section or regulations must, as per other jurisdictions, prescribe factors to be considered when determining appropriate fine, such as: • Extent of offender’s intention or negligence • Behaviour of offender • Offender’s ability to pay the fine • Severity of the offence ito impact or potential impact on health, well-being and environment • Monetary and/or other benefits that accrued to offender as a result of the offence

9. Insufficient clarity re criminal liability • Propose that “the payment of a fine in terms of subsection (4)” be included as one of the instances which will not derogate from the authority to investigate transgressions of criminal prosecution • Propose following rewording to clarify criminal liability: “(6) The submission of an application in terms of subsection (1) or the issuing of an atmospheric emission licence in terms of subsection 2(b) or the payment of a fine in terms of subsection (4)[shall in no way derogate from]: (a) shall in no way derogate from the environmental management inspector’s or the South African Police Services’ authority to investigate any transgression [from]in terms ofthis Act; and (b)  shall not indemnify the applicant from liability in terms of section 51(1)(a) for having contravened section 22[the National Prosecuting Authority’s legal authority to institute any criminal prosecution]”

10. To create a proper disincentive for illegal commencement, the proposed discretion for the licensing authority to “defer” the decision to issue an AEL while a criminal investigation is underway, must be an automatic, non-discretionary suspension of the s22A process • Decisions made in the criminal prosecution and s22A application affect each other and cannot run concurrently; if the offence justifies criminal prosecution, then this more serious enforcement process must take precedence • Will encourage speedy prosecution by authorities, and plea and settlement agreements with offenders who would like access to “rectification” • Therefore, propose that “may” in s22A(7) read “must”

11. Recommendations • Preference is for s22A to be deleted as it duplicates s24G NEMA and creates possibility of inconsistency and uncertainty • Fact of having contravened both AQA and NEMA to be taken into account when determining an appropriate fine alternatively: • Amend s22A to close loopholes and improve consistency with s24G NEMA

12. Contact details Centre for Environmental Rights 223 Lower Main Road, Observatory, Cape Town 021 447 1647 Melissa Fourie mfourie@cer.org.za Robyn Hugo rhugo@cer.org.za