1. These comments have been prepared by the Standing Committee on Environmental Affairs of the Associated Law Societies of South Africa ("the committee"). They relate to the National Environmental Management: Air Quality Bill ("the Bill"). For ease of reference, these comments deal with provisions of the Bill in the order in which they appear in the Bill.

2. A preliminary issue raised by the Committee is a constitutional one. The Constitution of the Republic of South Africa Act 108 of 1996 provides that c(air pollution" is matter of local government legislative and executive competence (section 156 read with Schedule 4 Part B). However, the Bill accords powers regarding air pollution management to all spheres of government. Clearly, insofar as this is an issue in respect of which national norms and standards are required, there is no breach, per se, of the Constitutional imperative, in the establishment of a national law allowing the minister to establish norms and standards. However, there may be other aspects of the Bill which are unconstitutional. One such example is the issue of priority areas, discussed in paragraph 8, below.

3 One of the committee's primary concerns about this piece of legislation is its failure adequately to ensure that a suitable framework for air quality management in South Africa will be established. This is as a result of a number of shortcomings in the Act.

4. The first of these is that the obligation upon the Minister ("i.e., the Minister must") relating to air quality norms and standards requires that he or she must establish a national framework setting national norms and standards for achieving the objects of the Act (section 7(1)). It does not state when this need be done.' Furthermore, in order not to distort ambient air quality and emission measurements the Minister must be required to establish the manner in which these measurements are conducted, reported and measured. The provision should be made mandatory (section 12).

5. Provisions relating to provincial and local norms and standards (sections 10 and 11 respectively) are empowering. Accordingly, although there are many more powers available to authorized officials in the Bill than in the law currently regulating air pollution management in South Africa, i.e. the Atmospheric Pollution Prevention Act (45 of 1965) ("APPA"), there is nothing which obliges any of these officials to use these powers, either within a specific period, or at all.

6. Also relevant to standards is the fact that the Bill does not cater for a situation where a proactive MEC sets standards less stringent than those subsequently imposed by the Minister. There is no mechanism in the Bill requiring the MEC to adjust the provincial standards, and accordingly it would be necessary for a concerned party to approach a court having competence to have the provincial standards set aside, probably on the basis of the Constitution.²

7. Notwithstanding that, the Act provides for a licensing regime (Chapter 5) which commences operation as soon as the Act comes into force. Although the licensing provisions contemplate that licenses will be issued subject to the requirements of national environmental policies, principles, and ambient air quality or emission standards (section 37(2)), there is nothing which prioritizes and ensures that these framework tools will be in place. This is in sharp contrast to the National Water Act (36 of 1998) ('"NWA"), which requires a number of framework standards and water quality management tools to be in place before licenses may be issued.³ Although it is acknowledged that this approach, required by the NWA, has created some difficulties in implementation, it must surely be a more coherent approach to the management of a vital resource.

8. The committee finds it surprising that a municipality may not declare an area to be a priority area (section 18). It is entirely conceivable that a local authority would wish to designate an area within its jurisdiction as a priority area. This is particularly so given that the local authority is the entity primarily responsible for the administration of licenses. There may be areas within its jurisdiction (such as the Durban South Area) where, in addition to controls permitted by the Bill in respect of licensing, the municipality wishes to regulate the whole of an area by means of a priority air quality management plan and applicable regulations.

9. Similarly, it is surprising that local authorities may not prescribe measures in respect of dust (section 29), noise (section 31) and offensive odours (section 32).

10. Insofar as a license granter must take into account certain mandatory requirements, not all of those, which are relevant, have been specified. For example, it is not necessary for a license granter to take into account the fact that a licensed activity may be taking place in a priority area or may be a controlled emitter (section 36).

11. Another curious provision of the licensing requirement is that the license may stipulate action taken or to be taken to prevent any recurrence of a failure or to mitigate the effects of a failure (section 40(2)(b)(iv)). However, it is difficult to imagine how someone could foresee, in advance of a failure, what appropriate steps must be specified in order to prevent a recurrence of the failure.

12. Furthermore, and related to this issue, there is no power in the Bill, as currently drafted, to issue a notice to a person calling on him or her to rectify any environmental damage, degradation or pollution, such is contained in section 28(4) of NEMA. As NEMA is currently drafted, that power is not available to a municipality. However, the municipality is the agency responsible for implementing the licensing provisions.

13. The Bill makes provision for emission control officers (section 45). It appears that the intention behind this provision was to create a body of enforcement officers situated within the structures of license holders' operations (either as a full time employee or as a consultant). However, emission control officers have no obligation to report noncompliance with license conditions. Given that they will be paid by the licenseholder, they may find themselves in an awkward situation where non-compliance occurs. If it is clearly understood by the emission control officer and his or her employer/client that there is a statutory duty to report non-compliance, that tension will be removed.

14. The committee is extremely concerned about the transitional provisions, particularly insofar as capacity is concerned. There is an obligation on the National Air Quality Officer ("CNAQO") to issue written confirmation to holders of registration certificates issued under the APPA of the change in status of their atmospheric emission authorizations within 90 days of the commencement of the Act (section 58(2)). The Bill does not provide for the consequences of his or her failure to do so Given that some of our clients have waited four years for the issuing of a registration certificate by CAPCO under the APPA, we are not confident that CAPCO's equivalent under the Bill, the NAQO, will he able to comply with that requirement.

15. Furthermore, the process required of holders of registration certificates thereafter is to make an application for an atmospheric emission license within one year of the commencement of the Act. Significantly, a holder of a provisional atmospheric emission license (which flows from a registration certificate) is entitled to an atmospheric emission license, where that holder is in full compliance with the provisions of the provisional emission license (section 58(5)). The creation of entitlement, without a public participation component, means that it may be possible for a polluter who is operating with old technology or unrealistic conditions of a registration certificate, to be allowed to perpetuate the polluting activity. (The Committee acknowledges that the Bill gives a right of review to licensing officials in this situation, but feels that a public participation requirement is also necessary).

16. The public participation process aspects of the Act are of concern. The consultation process which the Minister is obliged to follow is specified in section 53. The public participation process is set out in section 54. Firstly, the Minister or MEC is required to invite members of the public to submit comments regarding the proposed exercise of a particular power within 30 days of publication of a notice in the Gazette (section 54(2)(a)). There is no provision in the Act for extending this power and accordingly he or she may not do so, even on good cause shown. Furthermore, there is no requirement that interested and affected parties be consulted in relation to an application by a license holder to transfer a license (section 41), to vary a license (section 43(3)) or to be exempt from the provisions of a license. (section 56). It may be required, but it is not mandatory. It is highly likely that an interested and affected party would wish to comment on these processes. It is true that, at common law, interested and affected parties will have a right to be heard prior to a decision being made regarding transfers, variations or exemptions when their rights may be affected by the decision provided that that this right to be heard is not specifically excluded from the provisions of the Act. However, the committee believes that it would be preferable to include this public participation requirement in the sections referred to above.

17. The committee does not believe it is appropriate to grant exemptions standards, as is currently provided for in section 56 of the Bill. It is the committee's view that standards exist to provide baseline requirements, below which no one should be allowed to fall.

18. One of the advantages or improvements of the Bill is that licenses and their conditions may be changed (section 43). However, circumstances in which they ought not to be should be imposed, failing which the provision may be abused by unscrupulous emitters.

19. Another advantage is the processing fee required by the Bill. This is a welcome implementation of the 'polluter pays' principle. However, there is no provision in the Act for the processing fee to be paid into a fund separate from any other revenue stream. Accordingly, although the polluter will pay for the right to pollute, it does not follow that the proceeds of that payment will be used in the most appropriate way from an environmental perspective.

20. The provisions relating to incentives are welcomed, but at this stage they clearly not thought through.