Tag Archive | national environmental management act

Environmental legislation updates

Changes to environmental legislation….

dea logosent to clients 10 Oct….. The Department of Environmental Affairs (DEA) has published for comment a whole series of amendments to the cluster of laws generally referred to as the NEMA laws, or South Africa’s national environmental legislation.

The changes affect mining and quarrying, the industrial and manufacturing sectors and relationships of the many sectors with local authorities on licensing.

The draft Bill refers to the overarching National Environmental Management Act; the National Environmental Management: Protected Areas Act; National Environmental Management: Biodiversity Act; the National Environmental Management: Air Quality Act; the National Environmental Management: Integrated Coastal Management Act and the National Environmental Management: Waste Act.

Piggy bank for closures

In the case of National Environmental Management Act a number of changes are proposed, perhaps the most notable being ” to provide clarity to the definition of “financial provision” that an applicant or holder of an environmental authorisation relating to mining activities must set aside financial provision for progressive mitigation, mine closure and the management of post closure environmental impacts”.

NEMA generally provides that if environmental harm is authorised by law, such as a permit issued under any environmental law, the relevant operator is obliged to minimise and rectify such harm. Where a person fails to take reasonable measures to minimise or rectify effects of environmental pollution or degradation, the relevant authority may itself take such measures, and recover costs from the responsible operator. Failed mining operations apparently have presented government with little option but to use taxpayer’s money.

With the recent amendment to provide for liability for historical pollution any operator occupying land may also be liable in future for remediation costs under the NEMA: Waste Act equally and this is notwithstanding that the activity is authorised by permit. All five laws are designed to intertwine, the Management Act amendments say.

Mineral Resources only

Other changes under the National Environmental Management Act provide clarity that “the Minister responsible for mineral resources is also responsible for listed or specified activities that is or Is directly related to prospecting, exploration, extraction or primary processing of a mineral or petroleum resource.” Various other changes are proposed which should be read by parties affected.

The changes under the NEM: Protected Areas Act are relatively minor providing for the chief financial officer of the SANParks to be on the board; various new offences in marine protected areas and to clarify certain offences andenvironmental2 procedures.

Again under the NEM: Biodiversity Act changes are proposed on board representation to include technical experts; steps, actions or methods to be undertaken to either control or eradicate listed invasive species and, importantly, to ensure that MECs in the provinces “must follow a consultation process when exercising legal powers” under the Act.

Air quality ; Who licences what

Under the NEM: Air Quality Act the issue of who does what is clarified for municipalities on listed unlawful activities and the proposals provide clarity on the issue of a provincial department responsible for environmental affairs is the licensing authority where a listed activity falls within the boundaries of more than one metropolitan municipality or more than one district municipality and to deal with appeal processes.
Other articles in this category or as background
NEMA: Waste Bill passed – ParlyReportSA
Environmental pace hots up – ParlyReportSATougher rules ahead with new evironmental Bill – ParlyReportCoastal environment bill proposals clearer – ParlyReport

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Eskom warns on costs of new air quality rules

Air quality worries add to cost….

smokeWhilst confirming that it supported full compliance with Section 21 of the National Environmental Management: Air Quality Act listed activities insofar as emissions were concerned, Eskom told the portfolio committee on water and environmental affairs that compliance with the amended Act was also going to mean additional capital costs to Eskom of between R25m to R28m on each of its power plants.

Certain stakeholders in the energy industry were given the opportunity over two days to make submissions on listed activities which result in atmospheric emissions, the development of a such a list having been ongoing since 2010.  Present at the hearings insofar as industry was concerned were the South African Petroleum Industry Association (SAPIA), Eskom and Chamber of Mines and others. Notable in its absence was Sasol.

A lot more than just smoke

Eskom in their presentation, also went on to say that additional water requirements needed to reduce nitrogen oxides and sulphur dioxides at all its plants in terms of the proposed Section 21 list would require between 3-6 million m3 of water per annum, with 400,000 tons of sorbent required.    Only a certain portion of these costs had been taken into account when submitting to NERSA on the multi-year price determination for new electricity tariffs for the next five years, they said.

Eskom spokesperson, Dr Kristy Langerman, said that they would like to see the list of emissions amended and drew attention to the facteskom logo that Eskom did not emit ash or nitrogen oxide emissions and that there was only one area that was non-compliant as far as sulphur dioxides were concerned and that was Kriel town in Mpumalanga.

Eskom provided the committee with an emissions road map relative to all its plant for the period 1982 to 2020. They pointed out that as at 2013, where Medupi appeared on the plant schedule, funding constraints were now applicable. They called for the ability to offset projects and for a 48-hour start-up period in the minimum emissions standards for a cold start after long outages.

In calling for amended timeframes for implementation of capital projects to meet the new requirements, Adv.de Lange, chairperson, told Eskom’s Tony Stott that for this they would need to have a plan with DEA “in a matter of days”; this debated and agreed. He said the country had made commitments on the international climate response stage and, whether the committee or Eskom agreed or not with such agreements, all parties had to participate in SA reaching the targets.  Heavy fines for those not doing so would be the order of the day, he said.

Not happy with point source

sapia logoAnton Moldam, for SAPIA called for a more holistic approach to emissions control that was being proposed. Having been deeply involved since 2007 with government in the development of emissions control, their concern was the “disconnect” between general ambient and “point source” standards, by which whole communities were intended to be protected rather than what came out of stacks and only affected immediate areas, if at all.

It was not good making enormous investments in capital equipment if they do not improve general air quality in public “airsheds”, SAPIA said, and they called for specific site parameters to be drawn up, as is done in other countries.

“New refineries can be designed to meet new specifications”, Moldam said but SAPIA could not support the expectation that existing plant everywhere can be somehow retrofitted to meet new refinery standards. “This is not technically feasible in many cases”, he said.  “The expectation that ageing plants should be upgraded to meet standards of new plant has to be dropped”.

“Bubble” the best

He said that the petroleum industry had for years worked on the “bubble approach” for emission standards where emissions from plant in general was calculated. However, the new regulatory process of emission controls per individual plant stack was impractical for a refinery to consider, since what went through that stack came from dozens of sources.

The decision of the department of DEA to drop the “bubble” approach did not reflect the fact that refineries were highly integrated processes and this was not a manageable process without enormous cost.

SAPIA called for a complete re-think on the DEA proposals on emissions as listed and called, like Eskom, for a “grandfathering” clause whereby DEA allow for the age of the plant and its eventual shutdown be taken into account when regulating that re-capitalisation takes place to meet new standards.

Dr Thuli Mduli, national air quality officer and a chief director of DEA, in introducing the proposed listed emissions in terms of the section 21 list, said that it was a DEA viewpoint that grandfathering was not supported and a consistent approach was needed across the entire spectrum of industries, which was why the “bubble” system of monitoring had been discontinued and a “source specific” approach applied.

Compliance timeframes, she said, for new plants would be corrected back to the original section 21 provisions but in the light of business proposals that it was unreasonable for new plant standards to be defined by such moves, this might be reconsidered. She noted, however, that civil organisations had already condemned DEA for its apparent relaxation but she also noted the committee’s call that further discussion should take place with stakeholders, despite limited time to do this.

When push becomes shove

Lloyd Nelson for Chamber of Mines said that a number of unintended consequences had arisen in terms of existing legislation and they were uncomfortable with “technology forcing” in what was already a difficult financial environment for the mining sector, particularly the platinum sector which was most affected by the proposed lists of controlled emissions. They appealed for “re-categorisation” of certain metallurgical operations.

Nelson said whilst the mining industry very much supported the principles of the proposals, they regretted the constant “moving of the goal posts”, since the original 2010 proposals, which their members had adhered to, had been changed and many mines were angry with the present uncertain investment climate with constant changes and flux.

In making various recommendations, including that the compliance timeframes be relaxed, Chamber of Mines appeared surprised that the petroleum industry had separately negotiated a specific period of three years beyond that applied to industry generally on compliance.

Also not happy with fixed point source

They also pointed to the fact that international regulations permits relaxation of “point source” emissions, providing ambient air conditions continued to meet requirements, and said that attainment of some the limits either by 2020 or before, was not possible or, in some cases, because of purely unrealistic or unsustainable cost.

Also voicing opinion was the cement industry who expressed concern on the cost of monitoring and the chemical industry who complained, as did Eskom and others, that basic errors in the wording of the 2010 Section 21 notice had prevented upgrades and had therefore already caused delays prejudicing planning, thus meaning the extent of re-engineering was now not possible in the timeframes allowed.

secunda emissions graphGroundwork Africa drew a picture of failing governance of air quality control in South Africa, stating that in Secunda, 90% of data showed that that air quality in the area was well in excess of that allowed by international standards. Dr. Eugene Cairncross of the Coalition for Environmental Justice said it had been an error of DEA to allow exclusion of petroleum industry flare emissions since flares were known to give off heavy pollution for at least fifteen minutes on start up and sometimes for a whole day.

In conclusion, chair Adv. de Lange, said once again as he had continued to say  throughout the meetings, that hede lange would resist any attempts by applications to allow DEA to extend timeframes “because industry is known for putting such issues off time and time again and that he was not going to allow South Africa to be polluted by old factories and plant”.

However, he finally admitted that DEA should consider that where it was known that a plant was to be “mothballed”, account of this should be taken into consideration, particularly when an industry member showed that it was patently obvious that to retrofit plant eventually due for closure was both wasteful and uneconomical.

“Industry had better get these requests in fast and make a plan, he said, because the fines are going to be heavy, heavy enough to make everybody think twice”.

The following articles are archived on this subject:

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