The coming into force of the National Environmental Management: Air Quality Act, 2004 (the AQA) in September 2005 set the scene for the profound reshaping of air quality management in South Africa. Companies are advised to ensure that existing and planned facilities will be compliant with proposed new air quality norms and standards. This may require making provision for capital expenditure where new technologies or processes have to be introduced reach compliance.
On 24 July 2009, the Minister published a notice containing a list of activities that are believed to have or may have a significant detrimental effect on the environment. The notice also includes their associated minimum emission standards and the manner in which measurements of such emissions must be carried out. Once the notice becomes operational, it will establish uniform nationwide standards for air pollution emitted by new as well as existing plants and processes.
The notice distinguishes between existing and new plants, with reference to the time when an application was lodged for environmental authorisation. Existing plants or processes will include those that were legally authorised to operate before the publication of the notice. It will also include plants for which applications for environmental authorisation were made, in terms of the National Environmental Management Act, more than twelve months before the notice was published. New plants and processes are those for which applications were made within the twelve months preceding the publication of the notice.
The emission standards applicable to new plants are lower than those for exiting plants. In most cases, emission standards are half (or even less) of those set for existing plants.
The notice provides for compliance timeframes. The timeframes do not however seem to be cast in stone since an application may be made for their postponement. Such an application must be accompanied by an atmospheric impact report, detailed justification and reasons for the application, as well as proof that the application has been advertised in a local newspaper.
Operators of listed activities in existing plants must comply with the minimum emissions standards set for existing plants within five years from the date of publication (presumably the date on which it will come into force). Compliance with the latter standards by existing plants will not be enough, since they are further required to comply with the much lower standards set for new plants, within eight years from the date of publication of the notice. A new plant must comply with the standards from the starting date.
The minimum emissions standards further stipulate special and/or transitional arrangements applicable to specific listed activities. The most notable requirement is that a fugitive emission management plan must be included in atmospheric emission licence for many of these listed activities.
Operators of plants and processes that may be covered by the proposed listed activities should investigate the extent to which these minimum emission standards will impact on the future compliance of their plants and processes with the law. The minimum emission standards must also be observed during the planning of new plants and processes to ensure that the correct technologies are utilised in order to comply with the proposed standards when they become enforceable.
Director, Environmental Law