NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL

1. NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL A paradigm shift from limited, source-based emission control to ambient air quality management

2. The need for new air quality management legislation • Everyone has a right to air quality that is not harmful to health and well-being – APPA is not effective in protecting this right. • Everyone has the right to have air quality protected through legislative and other measures – APPA’s “best practicable means” approach does not prevent pollution effectively. • The burden of health impacts associated with polluted air falls most heavily on the poor – APPA does not effectively take land-use into account.

3. The need for new air quality management legislation (Cont.) • Sustainable development requires the integration of social, economic and environmental factors in the planning, implementation and evaluation of decisions to ensure that development serves present and future generations – APPA does not provide for this integrated planning. • Air pollution carries a high social, economic and environmental cost that is seldom borne by the polluter – APPA is difficult to enforce and penalties for non-compliance are low. • Many South Africans live and work in areas where the air is harmful to their health and well-being – APPA has allowed the development of air pollution ‘hotspots’.

4. The need for new air quality management legislation (Cont.) • Economic growth in certain areas of the country with high growth potential is being hampered by the poor quality of air in these areas – APPA has allowed the development of air pollution ‘hotspots’. • Atmospheric emissions of ozone depleting substances, greenhouse gases and other modern pollutants have a deleterious effect on the environment both locally and globally – APPA is old and does not recognise these problems. • Contaminated air cannot be remedied and, thus, pollution minimisation is the only sustainable means by which air quality can be improved – APPA provides little incentive for a move to cleaner production.

5. The need for new air quality management legislation (Cont.) • Ambient air quality standards define public air that is not harmful to health and well-being – APPA sets no standards. • Everyone has a right to: • participate in air quality management; • Access air quality related information; and • Fair administration – APPA is non-participatory, non-transparent and open to unfair administrative practices. • In Summary, APPA is outdated and not constitutional.

6. The new approach to air quality management – guidance and constraints • The Constitution • ‘Environment’ falls within the functional area listed in Part A of Schedule 4 to the Constitution – a functional area of cooperative national and provincial governance; • ‘Air pollution’ falls within the functional area listed in Part B of Schedule 4 to the Constitution – a functional area of exclusive local governance. • The Integrated Pollution and Waste Management Policy (IP&WM, 2000) • Government’s IP&WM policy provides a clear framework on how air quality must be managed. The Bill is fully informed by this policy and, thus, the new Bill will provide government with the powers and means to implement this policy.

7. Chapter 1 – Interpretation and fundamental principles • Definitions. • Objectives – • to protect the environment by providing reasonable measures for— • (i) the protection and enhancement of the quality of air in the Republic; • (ii) the prevention of air pollution and ecological degradation; and • (iii) securing ecologically sustainable development while promoting justifiable economic and social development; and • (b) generally to give effect to section 24 (b) of the Constitution in order to enhance the quality of ambient air for the sake of securing an environment that is not harmful to the health and well-being of people. • General duties of the State. • Application. • NEMA. • Conflicts with other legislation.

8. Chapter 2 – National Framework and national, provincial and local standards • Air quality standards provide the 'backbone' of the Bill as, in the case of ambient air quality standards, these standards define air quality that is not harmful to health and well-being. • Not only is environmental management through standard setting international best practice, it is also required by the IP&WM policy and is fully compatible to a media-based approach. • So far, the Water Act provides water quality objectives, this Bill provides for air quality standards, and perhaps a future ‘soil contamination and remediation Bill’ will provide soil quality standards – the quality of all environmental media will be defined for effective management.

9. Chapter 2 – National Framework and national, provincial and local standards (Cont.) • Standards will ensure that – • Phrases like “significant pollution” (NEMA s.28) or “serious damage” (ECA s.31A) will no longer be subjective and open to interpretation; • What constitutes air that is not harmful to health and well-being (Bill of Rights s.24) will be defined; • The goals, objectives, targets and/or milestones for all air quality management plans and EMCAs will be clearly defined; • The efficacy of all plans, strategies, regulations and other air quality related interventions can be measured against a defined yardstick; • ‘Undesirable’ processes can be identified and outlawed if necessary; • Cleaner production will be encouraged; and • The ‘state of the environment’ with respect to air can be easily measured and reported.

10. Chapter 2 – National Framework and national, provincial and local standards (Cont.) • Part 1: National Framework • Provides for the establishment of national norms and standards for, among others: emission controls; monitoring; planning; information management; compliance strategies; etc. • In effect, the national framework will provide the ‘road map’ and ‘implementation manual’ for the rollout of the Bill in ensuring effective air quality management. • Part 2: National, provincial and local standards • Provides for the prioritization of pollutants and the setting of ambient and emission standards for these pollutants at national and provincial levels and for emission standards at the local level.

11. Chapter 2 – National Framework and national, provincial and local standards (Cont.) • Part 3: General • Provides for the establishment of norms and standards in respect of the measurement of actual ambient and emission conditions for comparison against standards.

12. Chapter 3 – Institutional and planning matters • Provides for the establishment of a national multi-stakeholder forum on air quality management – the National Air Quality Advisory Committee. • Provides the governance ‘focal points’ in all spheres of government – the national, provincial and municipal air quality officers. • Provides for the inclusion of air quality management plans as components of existing planning regimes at national, provincial and local levels. • Details the contents of these plans as well as progress reporting.

13. Chapter 4 – Air Quality Management Measures • This section of the Bill provides government with the ‘tools’ to ensure progressive compliance with ambient air quality standards. • Part 1: Priority Areas • This tool takes into account current capacity constraints by allowing limited resources to concentrate on unacceptable pollution ‘hotspots’. • This tool also provides for the ‘cutting-edge’ air quality management approach known as ‘air-shed’ management.

14. Chapter 4 – Air Quality Management Measures (Cont.) • Part 2: Listing of activities resulting in atmospheric emissions. • As with APPA, this tool provides for ‘command and control’ management of identified polluting industries through a licensing regime – the atmospheric emission license. • Furthermore, the licensing decision making process is directly linked to the environmental impact assessment process. • There is also provision for the setting of minimum emission standards for identified polluting industries.

15. Chapter 4 – Air Quality Management Measures (Cont.) • Part 3: Controlled Emitters • This tool provides for the control of ‘classes’ of polluting appliances that would be impractical to control through a licensing regimes (e.g. motor vehicles). • Once identified, all controlled emitters must conform to specified emission standards.

16. Chapter 4 – Air Quality Management Measures (Cont.) • Part 4: Other Measures • This section provides for the drafting and implementation of pollution prevention plans in respect of identified priority pollutants by the polluter. • Provision is made for the submission of atmospheric impact reports by specific polluters. • It also provides for recognition programmes that acknowledge best industrial practice.

17. Chapter 4 – Air Quality Management Measures (Cont.) • Part 5: Measures in respect of dust, noise and offensive odours • Provides for prescriptive dust control measures. • Early warning for mines that are about to close. • Norms and standards in respect of noise. • The control of offensive odours.

18. Chapter 5 – Licensing of listed activities • The licensing authority (designated through Schedule 4B of the Constitution) • Metros and district municipalities are the licensing authorities unless – • They have delegated this function to province in terms of s.238 of the Constitution; • Province has intervened in terms of s.139 of the Constitution; or • A municipality is the licence applicant. • This chapter provides detailed direction for licence applications, licensing decisions, contents of licences, transfers, reviews, variations and renewals.

19. Chapter 5 – Licensing of listed activities (Cont.) • Provision is also made for ‘processing’ fees with a view to cost recovery. • Licenses may be very detailed and account for the ‘polluter-pays’ principle in respect of monitoring. • Compliance is encouraged through non-compliance penalties. • Industry ‘focal points’ may be identified – the emission control officer. • ‘Fly by night’ operators are controlled through a fit and proper person review.

20. Chapter 6 – International air quality management • This section provides the Minister with the means to be a ‘good neighbour’.

21. Chapter 7 – Offences and penalties • This section provides the ‘teeth’ of the Bill by providing for offences and penalties that can serve as a deterrent, encouraging compliance. • Furthermore, the penalties will ensure that the ‘punishment fits the crime’ by ensuring that a judge considers: • The severity of the offence in terms of health, well-being, safety and the environment; • The monetary or other benefits derived through the commission of the offence; and • The polluter’s overall contribution to ambient pollution.

22. Chapter 8 – General matters • Part 1: Regulations • This section details what regulations may be made by the Minister and MECs as well as how these regulations are to be made. • Part 2: Consultative process • Sections under this part detail both the intergovernmental and civil society consultative processes that must be adhered to when: • Making regulations; • Developing the national framework; • Setting standards; • Declaring priority areas; • Listing activities; and • Declaring controlled emitters.

23. Chapter 8 – General matters (Cont.) • Part 3: Delegations and exemptions • Sections under this part provide for delegations and exemptions from the application of the provisions of the Bill.

24. Chapter 9 – Miscellaneous • The Bill repeals APPA. • Notwithstanding the repeal of APPA, the Bill provides for a number of transitional arrangements, including: • The rollover of APPA Registration Certificates as provisional atmospheric emission licences; • The rollover of APPA’s scheduled processes as interim listed activities; and • The use of APPA’s ambient air quality guidelines as transitional ambient air quality standards.

25. Thank you for your attention