1. PROPOSED AMENDMENTS TO THE S21 LISTED ACTIVITIES OF THE AIR QUALITY ACT (ACT 39 OF 2004) Submission to the Portfolio Committee on Water and Environmental Affairs, 7-8 May 2013 A Andrews

2. Participation in standard setting LRC: Participated in the multi stakeholder consultation process for the 2009 S21 Notice pertaining to emission standards for Listed Activities assisted by Prof Cairncross SDCEA: represents 16 community organisations in the South Durban Area CEJ: represents environmental ngo’s in Cape Town mainly from previously disadvantaged communities TVRA, Habitat Council, Captrust : ngo’s

3. LEGAL FRAMEWORK Preamble: NEM: AQA the quality of ambient air in many areas of the Republic is not conducive to a healthy environment for the people living in those areas … the burden of health impacts associated with polluted ambient air falls most heavily on the poor … air pollution carries a high social, economic and environmental cost that is seldom borne by the polluter minimisation of pollution through vigorous control, cleaner technologies and cleaner production practices is key to ensuring that air quality is improved is key to ensuring that air quality is improved … Objects of NEMAQA: to enhance ambient air to ensure and environment that is not harmful to health and well being The S21 Listed Activities regulation is an important step towards “minimisation of pollution through vigorous control ….”

4. NEM: AQA FRAMEWORK 5.4.3.1: Setting of emission standards: general Expert panel to develop standards under STANSA must be established for the development of standards. Representation from state departments provincial and municipal government, industry, business, civil society and the academia. Factors to be considered: The health, safety and environmental protection objectives; Analytical methodology; Technical feasibility; Monitoring capability; and Socio-economic consequences

5. S 21: Listed activities Activities identified by Minister/MEC to have potential significant detrimental effect on the environment, including –Health; –Social conditions; –Economic conditions; –Ecological conditions; –Cultural heritage

6. NEM: AQA FRAMEWORK (2) 5.4.3.2 – 4: Setting standards –Best practicable environmental option (BPEO): most benefit/least harm at a cost acceptable to society –Informed by best available technology (BAT) –BAT informed by international documentation –Practicable : cost benefit analysis in peer reviewed and international literature

7. Stakeholder negotiation history 2009 S21 emission standards – 2 years of multi stakeholder discussions –Approximately 300 emission standards considered –Disclosure of all submissions to stakeholders –Technical debate on emission limits and best available technology and international best practice –Process continued for new categories eg small boilers

8. Stakeholder negotiation history 2012 Proposed amendments to s21 notice –27 July 2012 : notice of consultation regarding typographical amendments only; –22 August : draft amendments circulated but no comment requested; –Bilateral discussions with stakeholders held but no multi stakeholder discussions; –23 November : new draft amendments published for comment.

9. Concerns re administrative fairness of amendment process Departure from NEM:AQA Framework consultation process/BPEO Lack of transparency in bilateral discussions Standards for major polluters eg oil industry significantly reduced Compliance time frames extended Unilateral change in consultation to the detriment of persons in receiving environment:- –No opportunity to challenge technical representations by industry stakeholders –Reduced or no access to information on representations –Reduced opportunity to influence decision making –Wasted costs

10. Recommendations (1) DEA to make typographical and other non-substantive amendments by correction notice ito s.4(b) AQA No other amendments to be made without following Framework process (s.5.4.3.1 and s. 5.4.3.5) –Technical committee established (representatives from government, the relevant industrial sector, business, civil society and scientists/academics) –Before amendments, committee to consider factors like health, safety, environmental protection, technical feasibility, monitoring capability, and socio-economic consequences

11. –BPEO to be pursued with “best” informed by use of BAT –Committee to continue to identify technology improvements and update BAT information to establish emission standards for additional industry types and pollutants –Committee to use this information to undertake a 5 year review of emission standards If DEA does not wish to follow Framework process, amendments should be held over for the 5 year review prescribed by Framework Proposed amendments to be withdrawn Recommendations (2)