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The Portfolios Committee’s Public Hearings and the Department’s initial set of proposed amendments to the NEM: Air Quali

The Portfolios Committee’s Public Hearings and the Department’s initial set of proposed amendments to the NEM: Air Quality Bill. Explicitly linking the Bill to the Constitutional Environmental Right.

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The Portfolios Committee’s Public Hearings and the Department’s initial set of proposed amendments to the NEM: Air Quali

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  1. The Portfolios Committee’s Public Hearings and the Department’s initial set of proposed amendments to the NEM: Air Quality Bill

  2. Explicitly linking the Bill to the Constitutional Environmental Right • During the portfolio committee hearings much concern was voiced about the perceived lack of a direct linkage between the Bill and s.24 of the Constitution. Despite the departmental response that this was the intention of the Bill and that the linkage was implied as well as being inherent to all new environmental legislation, this did not appear to give the required comfort. • See proposed long title, preamble and s.2.

  3. Setting time frames • Numerous concerns were raised from various quarters around the absence of specific time frames in the Bill. Of these, time frames in relation to the publication of the National Framework and licensing turn-around times appeared to be of most concern. • See proposed s.7(1), s.37(3) & (4)

  4. Reducing the burden of proof on the state • Various commentators raised their concerns that certain terms used in the Bill create an inordinate burden on the state to ‘prove’ possible health and environmental impacts. They further pointed out that such phrases (e.g. “is likely to...”) are contrary to the precautionary principle contained in NEMA. • See proposed s.9(1)(a), 10(1)(a), 11(1)(a), 18(1)(a), 21(1)(a), 23(1) and 27(a).

  5. Ambient versus Emission Standards • There was much debate both within the public hearings and the press on the issue of ambient versus emission standards. In this regard, two areas appeared to be of specific concern, namely: (i) the perceived ambient or emission standard concern; and (ii) the discretion around the setting of emission standards for listed activities. • See proposed s.9(1)(b) & (c).

  6. May or Must • Related to ambient/emission standards, were concerns about certain discretionary provisions where mandatory action was seen to be more appropriate. • In this regard, the department again reviewed all the discretionary provisions against the following tests: • (i) that in-action in respect of discretionary provisions should not undermine the efficient, effective and immediate implementation of the Bill; and • (ii) that mandatory action should not create an inordinate administrative burden in cases where the action was not fundamental to the efficient, effective and immediate implementation of the Bill. • See proposed s.12, 19(6), 21(1) and 21(3)(a)

  7. What is limited • Concern that the text did not cover the full range of technical emission control components. • See proposed s.21.(3)(a)(i), 24.(1) and 40.(1)(g).

  8. To build or not to build • Concerns were raised that as the EIA process already effectively holds up construction, a further delay is not seen as being reasonable. • See proposed s.22 and 38(1).

  9. International obligations • 23.(2) Before publishing a notice in terms of subsection (1) or any amendment to the notice, the Minister or MEC must — • …(c) take into account the Republic’s obligations in terms of any applicable international agreements; and • (d) consider…

  10. Noise and 5B • 31. The Minister may prescribe essentialnational standards— • (a) for the control of noise, either in general or by specified machinery or activities or in specified places or areas; or • (b) for determining— • (i) a definition of noise; and • (ii) the maximum levels of noise.

  11. Cleaner Production • 36. When considering an application for an atmospheric emission licence, the licensing authority must take into account all relevant matters, including— • …(b) the best practicable environmental option available— • (i) to prevent, control, abate or mitigate that pollution; and • (ii) to protect health and the environment from harm as a result of that pollution; • 45.(2) An emission control officer must have requisite air quality management competence in respect of the listed activity in question, and must — • (a) work towards the development and introduction of cleaner production technologies and practises; • (b) must forthwith after knowledge of instances of non-compliance with an atmospheric emission license, report such instances to the licensing authority through the most effective means reasonably available and…

  12. Access to emission information • 40. (1) An atmospheric emission licence must specify— • …(i) point source emission measurement and reporting requirements; • (j) on-site ambient air quality measurement and reporting requirements;

  13. The right to know • 41. (4) (a) An applicant must take appropriate steps to bring the application for the transfer of an atmospheric emission licence to the attention of interested persons and the public. • (b) Such steps must include the publication of a notice in at least two newspapers circulating in the area in which the listed activity applied for is carried out — • (i) describing the reasons for the transfer of an atmospheric emission licence; • (ii) giving particulars of the listed activity, including the place where it is carried out; • (iii) stating a reasonable period within which written representations on or objections to the application may be submitted, and the address or place where representations or objections must be submitted; and • (iv) containing such other particulars as the licensing authority may require.

  14. Unreasonable reviews • 42.(2) The licensing authority must inform the licence holder and the relevant provincial air quality officer, in writing, of any proposed review and the reason for such review.

  15. Fit and proper person or company • 46. In order to determine whether a person is a fit and proper person for the purposes of an application in terms of this Chapter, a licensing authority must take into account all relevant facts, including whether— • (a) that person has contravened or failed to comply with this Act, the Atmospheric Pollution Prevention Act or any other legislation applicable to air quality; • (b) that person has held an atmospheric emission licence or other authority that has been suspended or revoked; • that person [is or was]has a director or senior manager who is or was a director or manager of a company or firm to whom paragraph (a) or (b) applies; and • (c) the management of the listed activity which is the subject of the application will or will not be in the hands of a technically competent person.

  16. Exemptions • S.56(b) No exemption from a provision of section 22 or 25 may be granted in terms of paragraph (a).

  17. APPA license transition • See completely revised s.58

  18. Guidelines or standards • 60. Until ambient air quality standards have been established in terms of section 9, 10 or 11, the ambient air quality standards contained in Schedule 2 apply.

  19. Thank You For Your Attention

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