SOUTH AFRICA: PUBLIC CONSULTATION UNDER WAY ON PROPOSED REGULATIONS FOR IMPLEMENTING AND ENFORCING PRIORITY AREA AIR QUALITY MANAGEMENT PLANS

By Khazi Mashamaite,Michael Vermaak Monday, August 22, 2022
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On 5 August 2022, the Minister of Forestry, Fisheries and Environment (Minister) published proposed new regulations for implementing and enforcing priority area Air Quality Management Plans (AQMPs) under the National Management: Air Quality Act 39 of 2004 (NEMAQA), for comments. Members of the public have 30 days to provide their comments, from date of publication.

This is an important development as it will affect all priority area AQMPs and will apply to all stakeholders identified in the AQMPs.

Background

The objects of NEMAQA include protecting the environment by providing reasonable measures to protect and enhance air quality in South Africa, and enhancing the quality of ambient air to secure an environment that is not harmful to the health or well-being of people.

As part of the regulatory scheme under NEMAQA, national ambient air quality standards have been published for sulphur dioxide, nitrogen dioxide, particulate matter (PM10 and PM2.5) ozone, benzene, lead and carbon monoxide. 

One of the mechanisms for achieving the objects of NEMAQA is that areas may be declared as ‘priority areas’ under section 18 of NEMAQA, such as where ambient air quality standards are being exceeded, to allow for specific air quality management actions to be taken to rectify the situation. Upon declaring an area as a priority area, a priority area AQMP must be prepared for the area, which an AQMP must be implemented by a committee representing the relevant role-players.

So far, the Vaal Triangle Airshed Priority Area, the Highveld Priority Area and the Waterberg Bojanala Priority Area have been declared priority areas under section 18 of NEMAQA.

Further, section 20 of NEMAQA empowers the Minister or MEC to prescribe regulations necessary for implementing and enforcing approved priority area AQMPs, and AQMP Implementation Regulations have been promulgated for the Vaal Triangle Airshed Priority Area.

The state of air quality in the Highveld Priority Area and the Minister’s failure to prescribe regulations in terms of regulation 20 of NEMAQA relating to the Highveld Priority Area AQMP was the subject of a recent judgment of the North Gauteng High Court.

This was in the matter of Trustees for the time being of Groundwork Trust and Another v Minister of Environmental Affairs and Others (39724/2019) [2022] ZAGPPHC 208 (18 March 2022). As part of the order made in terms of that judgment, ‘The Minister is directed, within 12 months of this order, to prepare, initiate and prescribe regulations in terms of section 20 of the Air Quality Act to implement and enforce the Highveld Plan’.

On 11 April 2022, the Minister released a media statement indicating that she is seeking leave to appeal the judgment. The appeal pertains to aspects regarding the interpretation of section 20 of the NEMAQA, that is, the Court’s finding that the Minister is not merely vested with a discretion to prescribe regulations, but is under a duty to do so.

In Government Notice R2353 of 5 August 2022, the Minister published the proposed new regulations for implementing and enforcing all priority area AQMPs (Proposed Regulations), not only in respect of the Highveld Priority Area.

Why the Proposed Regulations will apply to all priority area AQMPs

 It is notable that the reason stated for the Proposed Regulations is that, Despite concerted attempts to implement various emission control measures and tools in the areas declared as priority areas, including specific air quality management interventions, to bring these areas into compliance with the National Ambient Air Quality Standards, emissions of certain pollutants continue to result in persistent non-compliance with these standards.

The anticipated outcome of the Proposed Regulations is stated as being ‘… improved implementation of, and compliance with, Priority Area Air Quality Management Plans, resulting in ambient air that complies with National Ambient Air Quality Standards with the concomitant reduction in negative public health impacts’. 

The Proposed Regulations will repeal the existing AQMP Implementation Regulations promulgated for the Vaal Triangle Airshed Priority Area.

Some of the key provisions of the Proposed Regulations are briefly discussed below.

Regime for implementation and enforcement

The Proposed Regulations aim to provide a regime for implementing and enforcing existing and future approved priority area AQMPs. They will be applicable to all key ‘stakeholders’ identified to be significant contributors to poor air quality in the relevant priority area AQMPs. In terms of the Proposed Regulations, these will include the following identified stakeholders (along with certain government departments, organs of state and relevant national, provincial and local spheres of government):

  • any person conducting a listed activity under NEMAQA (an atmospheric emission licence is required to conduct a listed activity);
  • any person operating a so-called controlled emitter (including small-scale char and small-scale charcoal plants, temporary asphalt plants and small boilers, all as defined and set out in the relevant NEMAQA regulations); and
  • any holder of a right related to a prospecting operation, exploration operation, mining operation and production operation under the Mineral and Petroleum Resources Development Act 28 of 2002.

Key implications for these identified stakeholders that fall within the scope of the proposed regulations will be as follows:

  • within timeframes specified in the priority area AQMPs, they will be required to submit ‘emission reduction interventions and management plans’ to the relevant licensing authority or air quality officer for approval (an ‘emission reduction and management plan’ is defined as a plan ‘to be prepared and submitted by the identified stakeholders that aims to minimise, prevent and manage emissions’);
  • these identified stakeholder emission reduction interventions and management plans will have to be reviewed from time to time, in line with the review of the priority area AQMPs, and revised plans submitted for approval;
  • the emission reduction interventions and management plans must then be incorporated into the identified stakeholder’s atmospheric emission licence in accordance with section 46(1) of NEMAQA, which allows for an atmospheric emission licence to be varied by a licensing authority in various circumstances, for example, ‘if it is necessary or desirable to prevent deterioration of ambient air quality’ and ‘if it is necessary or desirable for the purposes of achieving ambient air quality standards’. Thus, a failure to implement the emission reduction interventions and management plans could in future be a contravention of both the atmospheric emission licence conditions and the Proposed Regulations;
  • the identified stakeholders will be required to implement their approved emission reduction interventions and management plans within the timeframes specified in the priority area AQMPs and submit annual progress reports to the National Air Quality Officer on the implementation of their emission reduction interventions and management plans; and
  • the identified stakeholders ‘must, to the extent possible provide adequate financial support funding and necessary resources for the implementation of the priority air quality management plan’. It is not clear from the Proposed Regulations what will constitute ‘adequate financial support funding and necessary resources’ or what the financial implications of implementing the priority area AQMP could be to identified stakeholders, nor is it clear what leeway will be allowed to identified stakeholders through the inclusion of the term ‘to the extent possible’.  

Stakeholders identified in existing priority area AQMPs who have not yet developed and submitted their emission reduction interventions and management plans, will be required to do so in line with the Proposed Regulations, within six months of the Proposed Regulations coming into operation. 

The Proposed Regulations further stipulate that the control of dust in priority areas must be managed in line with the National Dust Control Regulations, published under NEMAQA in 2013.

Offences and penalties

The following offences would apply to identified stakeholders under the Proposed Regulations:

  • providing incorrect or misleading information in emission reduction interventions and management plans;
  • failing to timeously submit or implement emission reduction interventions and management plans within the specified timeframes in terms of the Proposed Regulations;
  • failing to submit an annual progress report to the National Air Quality Officer for approval within specified timeframes in terms of the Proposed Regulations; and
  • failing to review emission reduction interventions and management plans in line with the review of the priority area AQMP.

A person found guilty of any of the above offences would be liable on first conviction to a fine not exceeding ZAR 5 million or imprisonment not exceeding five years, with second or subsequent convictions attracting fines of up to ZAR 10 million or imprisonment not exceeding 10 years, or both such fines and imprisonment.

A failure to comply with a condition or requirement of an atmospheric emission licence, among other offences under NEMAQA, is also a National Environmental Management Act 107 of 1998 Schedule 3 offence, which could attract potential director and employee personal criminal liability.

For more information, please access the Proposed Regulations here.