Presentation by Andy Birkinshaw and Caroline Ntaopane on behalf of:

12 August 2004

By groundWork, South Durban Community Environmental Alliance, Sasolburg

Air Quality Monitoring Committee, Boipatong Environmental Working Group,

Table View Residents Association, Steel Valley Crisis Committee, African

Genesis Heritage Environmental Club, Highveld East Community

Environmental Monitoring Association, Vuka Environment Dot.

Comments on: PROPOSED AMENDMENTS TO THE NATIONAL

ENVIRONMENTAL MANAGEMENT: AIR QUALITY BILL ~B 62B-

2003] - Revision 3 of 1 August 2004

The enactment of the National Environmental Management: Air Quality Bill is a milestone in the fight for clean air in South Africa. The proposed amendments to the Bill is a result of the above civil society organisations1 requesting the Portfolio Committee on Environment and Tourism in February 2004, to hold back the Bill and request the Department of Environmental Affairs and Tourism (DEAT) to amend the Bill. The Bill was found to be wanting in a variety of key aspects. For more information on this, please see attachment one: Minimum Improvements Required to Attain Accountability from Air Quality Bill - July 2004. The aspects have been highlighted in various community representations to parliament, including the Portfolio Committee Hearings in February 2004. This was based upon community organising with groundWork over the last five years, and is captured in the 'National Report on Community-based Air Pollution Monitoring Air pollution in Selected Industrial Areas 2000 - 2002". See groundWork website

This Bill is a welcome departure from the old Air Pollution Prevention Act of 1965. There are positives strides made in these amendments to accommodate certain of the civil society's concerns, however there some issues lacking which we call upon the Portfolio Committee to recognise and make suggestions on improvements.

Our statements below are based upon the present amendments:

Good

This has been changed in places and where the Minister may have implemented certain issues, he now must. This is still however missing in section 18(1)(a) where it would be most critical in deciding upon priority areas.

· Time frames, which were lacking in the Bill has now been included in the amendments - this is positive. The transferral system from old to new licenses could be shorter rather than four years. The time frame of two years for the development of the National Framework is positive.

· Emission standards may be developed in section 9.(1)(c). While we would have preferred a stronger statement on this, it is clearer than the "or" as is indicated in the Bill. It is however recognised as required (must) in section 21.(3)(a), which is positive.

· Health has been clarified by referring to the Bill of Rights in the Constitution. This is positive.

Concerns

· Cumulative impacts have not been considered as decisive as we would have preferred, but have been considered in section 9, 21 and 36. The wording used in "mixture of substances". We would request that the portfolio committee consider wording to the effect of cumulative impact to be included in these sections, either on its own, or in conjunction "mixture of substances". Still no clarity on exemptions. We strongly recommend that exemptions are not included in the Bill. However if it is, it must be considered only after due process and public participation

Issues that the Portfolio Committee need to note in their deliberations

· It is recommended that the Portfolio Committee calls that the Minister in section 18(1)(a) must declare an area a priority area if there is evidence deeming it so, rather than may.

· Clarity on information systems in section 8 has not been delivered nor the request for the auditing of information that will be supplied by industry.

· It is not understood why Section 22 (a) has been amended by removing the phrase: "or commence with the construction of infrastructure for the conducting of such a listed activity". Surely, if a specified 60 days is stipulated in section 37(3) is suggested by DEAT and accepted by the Portfolio Committee this gives clear timeframes which business could plan around. It would be acceptable to remove the above statement if no timeframe for licensing was given.

· In terms of liability, the amendments take us a step back from the Bill. By removing section 46(c): "that person is or was a director or manager of a company or firm to whom paragraph (a) or (b) applies." There has been various deaths and injuries due to incidents at plants what were caused though poor management. It is important to recognise liability and apportion it to senior management whose financial decisions often lead to cuts in health and safety expenditure, and reduction in staff.

· There is no mention of fines if this Bill is transgressed.

· The Minister must subscribe standards for noise.

· Finally the Department needs to take caution of how the transition in the issues of licensing takes place during this period. groundWork is concerned that industries might push for licence applications. In a CAIA newsletter in December 2002 it is stated: "Companies which do not have a valid registration certificate or do not comply with the certificate, will have to apply immediately in terms of the new system which is likely to have much more onerous conditions. In order to take advantage of the transitional period, it is imperative that your current situation is regularized." It is of concern to groundWork in reading the above statement that the transition period might be abused.

Attachment one

Minimum Improvements Required to Attain Accountability from Air Quality Bill - July

2004

Since the early nineties it has been recognised by government, industry and civil society that South Africa's Air Pollution Prevention Act of 1965 was outdated and resulted in a state of lawlessness, which is being abused by industry and allowed by government.

Finally, we have an Air Quality Bill, which will be going before parliament in August 2004. This Bill was rejected by civil society at the Environmental Port Folio Committee meeting in February 2004. The Port Folio Committee requested the Department of Environmental Affairs and Tourism (DEAT) to consult stakeholders and once again apply their minds, and make necessary amendments to the Bill to ensure accountability. This to ensure that future development potential in South Africa is not lost due to dirty outdated polluting industry continually being allowed to operate in South Africa.

Below are the minimum improvements required to ensure that the Bill is workable:

1. Objects of the statute must guarantee the protection of health and the minimisation of pollution

2. Mandatory emission standards within a specified time for new and old plants based on technology, i.e. best available technology for new plants and best available technology not entailing excessive cost for old plants

3. Pollution release and transfer inventory, i.e. mandatory public disclosure by

polluters of their air pollutant and emissions legal responsibility for the accuracy of the information

4. Cumulative impacts must be considered when activities are listed or licensed in terms of sections 21 and 36.

5. Mandatory testing of air quality and declaration of priority areas where ambient air quality standards are being or are likely to be exceeded.

6. A mandatory program of auditing of pollutant emission data submitted by facilities.

7. Enforceable provisions in air quality management plans, which are protective of health, as opposed to vague provisions.

8. Guidance in the exercise of discretion to protect health and minimise or prevent pollution.

9. Provisions must be made for people who have suffered injury or death due to air pollution, to hold the polluter liable for such damages.

groundWork

Ardiel Soeker (082 940 8669)

Sasolburg Air Quality Monitoring Committee

Caroline Ntaopane (072 246 0081)

South Durban Community Environmental Alliance

Desmond D'Sa (083 982 6939)

Boipatong Environmental Working Group

Matshediso Dlamini Tsotetsi (083 5602 3025)

Table View Residents Association

Andy Birkenshaw (083 703 0183)

Steel Valley Crisis Committee

Samson Mokoene (084 291 8510)

African Genesis Heritage Environmental Club

Setjele Mofokeng (084 722 4762)

Highveld East Community Environmental Monitoring Association

Alex Percent (017 620 6300)

Vuka Environment Dot Com

Edmund Skosana (082 357 7870)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4