16 June 2010

Air Quality

Until recently, air quality was largely managed by the Atmospheric Pollution Prevention Act, 45 of 1965 (APPA) and regulations made under that Act which were adopted by some, but not, all Municipalities. APPA was primarily concerned with point source pollution but also provided mechanisms for controlling some vehicle emissions. APPA prohibited anyone from conducting an activity contained on a schedule to that Act (a scheduled process) without a registration certificate. APPA stipulated that air pollution had to be controlled using the test of "best practicable means" which is a flexible standard and doesn't impose maximum emission limits. As a result, registration certificates typically stipulated conditions under which the scheduled activity could occur, but they were (particularly in older registration certificates) quite vague, and did not impose pollution limits or precise methods for measuring or mitigating pollution. APPA has now been repealed.

The National Environmental Management: Air Quality Act, 39 of 2004 (AQA) is the new law aimed at managing air quality in South Africa. It is concerned with regulating both point source emissions and ambient air quality. One of the tools it provides for controlling air pollution is the atmospheric emission licence (a licence) which must be held by anyone who carries out a process listed under the Act (a listed activity). It has come into force in stages; the sections dealing with licensing became effective on 1 April 2010. AQA provides that registration certificates issued under APPA will remain valid under AQA for specified periods, depending on various circumstances, and are now regarded as licences issued under AQA.

Before the sections that regulate licensing under AQA came into force, the Department of Environment Affairs (DEA) undertook a review of registration certificates currently held. It also sent proposed amended registration certificates to entities carrying out scheduled processes. This review was apparently intended to align the registration certificates issued under APPA with the licensing provisions of AQA. This is inherently potentially problematic in that the powers under those two Acts are in some cases quite different.

In March of this year following the review process, many holders of registration certificates received new registration certificates issued under APPA. Importantly, many of the new registration certificates imposed conditions that exceed the powers granted under APPA (but are available under AQA). Furthermore, and most critical for industry, some of these conditions either simply cannot be met by the holders of the entitlement or will require enormous capital outlays in order to achieve compliance.

From 1 April 2010, Municipalities will be the authorities charged with the issuing of licences. Many Municipalities do not have the technical capacity to do this. This is particularly so in smaller, rural and relatively newly established Municipalities where some industries that conduct listed and scheduled activities are situated. This will, obviously, have implications for the licensing process and the speed with which it occurs.

It is speculated that the reason for DEA's undertaking the registration certificate review process and issuing many new registration certificates immediately prior to the coming into force of the AQA licensing provisions was to try to establish a platform from which under-capacitated Municipalities could work without a backlog of applications or a legacy of outdated registration certificates. However, this has not really been achieved.

Licence holders will simply not be able to comply with some of the conditions in newly issued registration certificates (now called licences) because they are very onerous or impossible to meet. One available legal option will be to appeal against those conditions; however, there are time limits within which appeals must be lodged. If these time periods have passed, licence holders will have to apply to Municipalities for amendments to the licences. In addition, assuming that these businesses continue to operate (which is most likely), they will be operating unlawfully. Both the amendment applications that will probably be made and the number of unlawfully operating facilities will create difficulties for the licence holders and the Municipalities in which those operations are situated. Where conditions imposed exceeded powers available under APPA, there will be good grounds for appeal or amendment. However the need to take these steps will not assist the Municipalities or the licence holders.

Another bid to manage air quality is a growing number of Atmospheric Pollution Control Bylaws passed by Municipalities, in some instances with requirements that potentially overlap those of AQA. These may create further controls over listed activities. One such example is the (as yet unpromulgated) Air Quality Management Bylaw recently approved by the City of Cape Town. Such bylaws often target sources of air pollution that are not the key focus of AQA, such as vehicle emissions, yet they also target and seek to regulate point source emissions that are controlled by AQA. This situation also has the potential to complicate the control of air pollution in South Africa.

Terry Winstanley, Director, Environmental Law

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