PCWEA Public Hearings

1. PCWEA Public Hearings Listed Activities and Associated Minimum Emission Standards (S21 of the NEM:AQA 39 of 2004)

2. Outline • Background – general air quality management • Guiding Principles • The National Framework • Development of the Listed Activities[2007] • The SABS Process[2008-9] • Section 56 and 57 of the AQA [2009] • S21 Amendments [2010-2012]

3. Background • One of the most effective regulatory tools for controlling industrial emissions to the atmosphere is the classic ‘command and control’ tool wherein certain activities are identified that may only operate if they are correctly permitted to do so by the regulatory authority. • This form of regulation was the basis for regulatory control of industrial emissions in terms of the APPA(Act No. 45 of 1965) and has been, repeated, with some significant modifications, in the National Environmental Management: Air Quality Act.

4. Background • Not all industries emit pollution into the atmosphere and not all industries that have atmospheric emissions could be regarded as having significant negative impacts on air quality. As such, it makes no practical or administrative sense to regulate every industry. • However, there are certain industries that have a significant, or potentially significant, impact on air quality and these industries must be regulated if the nation’s ambient air quality standards are to be met and/or bettered, as well as to minimize the impact of hazardous substances (e.g. carcinogens)

5. Background • Section 21 of the AQA requires the Minister to publish a list of activities which result in atmospheric emissions and which she reasonably believes have or may have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage. • Once identified, these activities are known as Listed Activities and any activity that has been identified as a “Listed Activity” requires an Atmospheric Emission License (AEL) or provisional AEL in order to operate. The AQA “Listed Activities are akin to the APPA “Scheduled Processes”.

6. Background • Furthermore, Section 21 of the AQA also requires the establishment of minimum emission standards for specified pollutants or mixtures of substances emitted by the identified activities. • In this regard, the permissible amount, volume, emission rate or concentration of the pollutant or mixture of pollutants must be specified as well as the manner in which measurements of such emissions must be carried out.

7. Development of Listed Activities • In February 2007, the “AQA Implementation: Listed Activities and Minimum Emission Standards Project” was initiated. The project, implemented by the department with assistance from specialist consultants, was a project that – • continuously engaged with all stakeholders around the identification of listed activities and their associated minimum emission standards; • reviewed current national and international work related to the identification of activities and their related minimum emission standards; and • based on this work, prepared an initial draft AQA S.21 schedule.

8. The SABS Process • In order to fulfil the requirements of the National Framework, the initial draft AQA S.21 schedule (output of AQA Implementation: Listed Activities and Minimum Emission Standards Project) was accepted as a baseline document for the work of the technical committee on air quality, SABS TC 146, within the South African Bureau of Standards. • The SABS technical committee process was initiated on 25 February 2008 and consultations, discussions, debates and negotiations continued for 15 months, with the last meeting taking place on 25 May 2009.

9. The SABS Process • The committee was comprised of affected industrial sector groups, civil organizations, academia and government officials, with all members afforded opportunity to make representations on any area of standard. • In May 2009, upon request by the committee, the regulator took over the process in order to meet the requirements of the Act (i.e. the standards were finalized in terms of the provisions of the Act). • Prior to section 56 &57 process, the department also outsourced the service of an independent facilitator to try to address outstanding issues identified by the committee.

10. Section 56 & 57 Process • The draft, highly detailed, S.21 Notice was circulated to all affected Cabinet Ministers and MECs under a cover letter from the Minister; • The draft, highly detailed, S.21 Notice was published in the Gazette for public comment on 24 July 2009, Government Gazette No.32434, for a 30 day public comment period (extended to 60 days on request by various stakeholders); and this Minister’s intention was also advertised in the Sunday Times. • Detailed discussions with sectors including NGOs conducted prior to finalization of the Notice. • The Final S.21 Notice was published on 31 March 2010, Government Gazette No.33064 and this marked the repeal of APPA.

11. Guiding Principles • The 1st generation minimum emission standards where developed under guidance of the following principles: • Regulatory continuity • Investment certainty • Acknowledging the potential limitations of the 1st generation standards • Avoidance of delays in the APPA-AQA transition • Attempting to reach broad consensus.

12. Generic Principles Raised in the 2009 Participation Process • Grandfathering not supported • Dealing with polarity • Criteria Pollutants vs. other pollutants • Compliance time frames • Uniformity between sectors • Cost-Benefit Analyses • Regulatory impact assessment

13. Amendments Process OBJECTIVE • Regulatory Gap (APPA Scheduled Processes to AQA Listed Activities) • Typographical and grammatical errors • Consistent application of regulatory principles (Bubble approach in the petrochemical sector) • Revision of categories that have been identified to be ambiguous in implementation or activities that have been been included unintentionally (e.g. filling stations). • Could not use the SABS Process because the original S.21 Notice was finalized outside the SABS process - and this was communicated to all stakeholders

14. Amendments Process cont… • Comparative analysis exercise was conducted between APPA Scheduled Processes and AQA Listed Activities to avoid a regulatory vacuum • Section 56 of the AQA – Minister must follow a consultative process • Consultation was conducted with sectors (Including NGOs and CBOs) to present identified gaps, and to allow sectors to make input in their identified areas of concerns. • Finalize the draft amendments and presentation to a multi-stakeholder workshop. • 57 of the AQA – Minister must give notice of the proposed exercise of the relevant power (participation process), comments to be received within 30 days.

15. Table of Consultations Held

16. Table of Consultations Held

17. Table of Consultations Held

18. Table of Consultations Held

19. Major Issues Raised in the 2012 Participation Process Compliance Timeframes: • The compliance timeframes for new plants will be corrected back to the original S.21 provision as it was not the Department’s intention to change this. • Business contends that, substantial changes made in the amendments are unreasonable for the transition to new plant standards as defined in the 2010 Notice. As such, business proposes that text should be amended to provide sufficient flexibility to deal with such changes or, alternatively, date of compliance should be moved from 2010 to the date of publication of amendments.

20. Major Issues Raised cont… • In contrast to business’ concerns, the civil organizations highlighted concerns regarding apparent relaxation of emission requirements and extension of compliance timeframes which don’t take into account prevailing pollution burden in the country as well as the importance of harmonization with ambient air quality standards. • There were activities that where previously regulated under APPA, but due to descriptions in the original S.21 Notice they had been unintentionally omitted, the department has made provision for extended compliance timeframes for such activities, thereby giving them equal timeframe [5yrs & 10 yrs] as was given to the 2010 activities. This provision only applies to activities that are substantially affected by amendments.

21. Major Issues Raised cont… Leniency of requirements: • Civil organizations have raised concerns on the apparent relaxation of the standards specifically for Petrochemical Sector category, which has substantially been amended due to the move from bubble approach to source specific standards in line with the overall approach of the Notice. • This concern has also been raised informally by government officials, highlighting that if implemented as it is, the Notice may have negative impacts on the successes made in areas such as South-Durban (SD Multipoint Plan).

22. Major Issues Raised cont… • It is important to note that there is an increase in number of licensing authorities and some find it difficult to implement and monitor compliance to the bubble approach so the Department has to ensure ease of implementation. Further, the move from a bubble approach to emission standards is required by S.21 of the Act. • However, it is not the intention to reverse the successes of the multipoint plan thus the department is closely looking on the impacts of this change on emission reductions realized, current challenges which the refineries have highlighted and most importantly, impacts on the receiving environment.

23. Major Issues Raised cont… Implications of adoption of APPA descriptions for industry: • Alignment of descriptions of S.21 Notice and APPA Scheduled Processes have assisted the department in capturing activities that were previously regulated under APPA but omitted from the current Notice unintentionally. Industry, however, has raised concerns that there are activities that are unintentionally included in the Notice, and that some requirements are more stringent to newly introduced activities.

24. Major Issues Raised cont… • On this matter, the department understands that although it intends regulating all APPA processes, there are those that might be insignificant contributors, thus have introduced thresholds to exclude those activities, where possible. The Notice has also been published for public comment to allow for further activities to be refined based on the discussion with all stakeholders.

25. The Department has set this target: compliance to national ambient air quality standards by 2020: • If most of the of the comments/proposals made by industry were to be implemented, it would be impossible to meet this target. • Most of the proposals do not take into account that these standards are minimum standards and they are lenient (as compared to international standards because the Department has to apply the principles of sustainable development – balance economic development against environmental and human health protection) and that if implemented alone, cannot even meet the current ambient air quality standards. • Delaying this process further will also make it impossible to meet the target.

26. Way Forward • Analysis of comments and responses to continue • Technical Workshop with all stakeholders – 21 May 2013 • Finalization of Amended S.21 Notice • Ministerial process • Final promulgation