Foundries cannot get Atmospheric Emissions Licence without admitting that they broke the law and face either closure or a heavy fine.
“In terms of the Bill of Rights included in the Constitution of South Africa, the citizens of South Africa have the right to have the environment protected and to live in an environment that is not harmful to human health or well-being.”
The result of this is The National Environmental Management: Air Quality Act, the 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 that must be held by anyone who carries out a process listed under the Act (a listed activity).
There are a number of amendments listed for this Act, too numerous to list.
One of the legal instruments developed to ensure that this right is given effect to, is the Environmental Impact Assessment (EIA) regulations promulgated in terms of the Environment Conservation Act in 1997 that is in the hands of the Department of Environmental Affairs.
And then there is the National Environmental Management Act of 2004, the Waste Act and many others.
In light of these Acts, the Department of Environmental Affairs (DEA) has established the South African Air Quality Information System (SAAQIS), which is hosted by the South African Weather Service (SAWS) and in-line with regulatory requirements, the National Air Quality Officer has established an internet-based National Atmospheric Emission Inventory System (NAEIS).
On 12 June 2015 in Government Gazette 38863 Notice Number 551 the Minister of Environmental Affairs amended the list of activities which result in atmospheric emissions, and which require a license published under GN 893 of 22 November 2013 in terms of section 21(1)(b) of the National Environmental Management: Air Quality Act 39 of 2004 (NEM: AQA).
Then there is the Atmospheric Emissions Licence (AEL).
You get where I am going? There is a ‘mine field’ of Acts to follow, and licences to apply for, before you can even start operating, especially if you are in the field of polluting, which many foundries are, by the very nature of the industry. We all understand that we must protect our environment and offenders should be prosecuted if they do not comply. But there is a limit.
On the upside, a whole industry has been created to deal with the environment, creating employment opportunities and, of course, the ambiguous expensive consultants.
Atmospheric Emissions Licence
In accordance to the National Environmental Management Act of 2004, all Foundry Operators were required to apply for their AEL’s with the local authority or municipality by 31st March 2014. Failure to do so would mean that the Foundry is operating illegally and the result could lead to extreme penalties, even closure of the business.
Air pollution affects everyone and normally occurs when there is a change in the composition of the ambient air. This can be caused by smoke, dust, gases, fumes, aerosols and odorous substances.
The scope of this licence includes such things as stack emission sampling and, of course, air quality monitoring.
Dutifully most foundry concerns applied for the licence. But here comes the curve ball.
Applications for rectification of unlawful commencement or continuation of listed activities under NEMA and the Waste Act
Since its first incorporation into NEMA, s.24G has been a thorn in the flesh of a wide group of different stakeholders, from authorities to civil society organisations to innocent and aggrieved violators of NEMA.
It provided the Minister or MEC with the power, on application by a party who has committed an offence under s.24F of NEMA (i.e. commenced listed activity without an environmental authorisation), to direct that party to prepare what is essentially an environmental impact report (including public participation) and an environmental management plan (EMP). On receipt of such a report and EMP, the Minister or MEC could either grant an after-the-fact environmental authorisation subject to conditions, or direct the applicant to rehabilitate the harm caused.
In May 2011, based on inputs from the Centre for Environmental Rights (CER), stakeholders and members of its expert panel, the CER made a submission to the Department of Environmental Affairs (DEA) that proposed a revised s.24G.
In September 2011, the CER made a submission to the DEA on the National Environmental Management Laws Amendment Bill, 2011, published for comment on 26 August 2011. The Amendment Bill included amendments proposed to s.24G.
Following public comment, the Draft Bill was submitted to the Parliament of the Republic of South Africa in February 2012. On 10 February 2012, the Bill was referred to the Portfolio Committee on Water and Environmental Affairs (PCWEA) and the Select Committee on Land and Environmental Affairs in terms of Joint Rule 159 for processing.
On 4 May 2012, the National Environmental Management Laws Amendment Bill [B13-2012] (2012 Bill) was introduced in Parliament. The PCWEA invited interested stakeholders to submit written comments on the 2012 Bill by 18 July 2012 (although comments were invited on 19 March 2012, this was before the latest version of the draft Bill was available for comment).
Among other things, the 2012 Bill proposed an increase of the s.24G administrative fine from R1 million to R5 million.
Even more damming was the threat of: ‘A person guilty of an offence in terms of regulation section 49A (1) (a) read with section 24F of NEMA of these Regulations is liable in the case of a first conviction to a fine not exceeding R5 million or to imprisonment of a period not exceeding five years, and in the case of a second or subsequent conviction to a fine not exceeding R10 million or imprisonment for a period not exceeding 10 years and in respect of both instances to both such fine and such imprisonment.’
In other words…
An application for an Atmospheric Emissions Licence suddenly, or was more than likely construed, triggered an investigation into whether the company had an s.24G clearance or environmental authorisation. I say construed because the foundry owners I spoke to were unaware that they had to have an s.24G.
The dreaded notice then arrives: Mr Lourens Badenhorst (Environmental Management Inspector, Gauteng Province Agriculture and Rural Development) has issued a Notice of Intention to Issue a Compliance Notice in respect of the unlawful construction/commenced activities at XYZ address … in terms of this ACT and that Act. Activities according to GNR 387, GNR 984, GNRetc, etc. were commenced on XYZ date and were at all relevant times pursuant to s24G of Nema as activities that require prior environmental authorisation (EA) or licences.
Continuing: The Directive I am issuing regarding your application and instruct you to do is… – then there are a number of environmental impact studies and actions that are listed according to each company’s application and business activities.
You are also instructed to appoint an environmental assessment practitioner (more money to fork out) who has to provide a comprehensive environmental impact report, without influence from the owners. This report must include public participation, scientific study reports and the report must be submitted within four months of receiving the directive.
A huge amount of administrative instructions are directed as well. In my opinion most companies in South Africa don’t have the staff or time to affect these requirements or reports as stipulated.
While this is happening you are not allowed to expand your business in terms of where there could be further environmental impact or air quality pollution or environmental degradation. Additionally, you would have to cease all activities relating to the ones just mentioned if you are not meeting the minimum requirements as stipulated per the act. In terms of a foundry operation you would more than likely have to close the business.
Furthermore, at any time during this period of four months, our trusty Grade 1 environmental management inspector Mr Lourens Badenhorst or a duly authorised person can arrive at your company unannounced to see if you are complying. If not, criminal proceedings could be implemented – that is a first conviction to a fine not exceeding R5 million or to imprisonment of a period not exceeding five years.
While compiling this story a report was published that Ekurhuleni’s Member of the Mayoral Committee on Environmental Resource Management Ndosi Shongwe called on “industries producing carbon emissions to adhere to strict environment laws in order to assist the municipality achieve clean air.” Shongwe said the 2014 findings by the National Air Quality indicated that Ekurhuleni was the city with the “worst air pollution”.
I might just mention here that most of the foundries targeted for the offence under s.24F of NEMA fall within Ekurhuleni.
At the same time, Trade and Industry Minister Rob Davies was launching the latest Industrial Policy Action Plan – Ipap 2016 (the eighth iteration of the plan) – at one of the larger foundries within the Ekurhuleni area. Amongst others, Davies said key focal areas would be public procurement, a strong focus on spill-over and labour-intensive sectors such as the automotive, rail and light manufacturing and engineering in the metals sectors, leveraging the devaluation of the rand, growing exports, gas-based industrialisation and minimising red tape to make South African manufactured products more globally competitive, and to create opportunities for the expansion and further development of South Africa’s domestic manufacturing capabilities, as well as growing exports by involving all the key stakeholders and economic partners.
The government has also designated a significant number of products for local procurement.
The policy aims to build on its successes since it was introduced in 2007. In the original plan areas such as capital/transport equipment, the metals industries and the automotive and components areas were designated as high priority for “The design and implementation of an Industrial Upgrading Programme to deepen manufacturing capabilities,” to stimulate local manufacturing through reducing import leakage by supplying into government’s SOE procurement programme and local manufacturers coming into the supply chain.
Through this plan government set out a broad approach to industrialisation in the context of the Accelerated and Shared Growth Initiative for South Africa (ASGI-SA) and its targets of halving unemployment and poverty by 2014 through accelerated growth of at least six per cent from 2010. Remember this was in 2007 and the plan was very ambitious as we reflect on it now.
Minimising red tape
One of the key statements in IPAP 2016 is to “To open up space for much more streamlined and business-friendly governance processes”, in other words minimising red tape.
Ipap 2016 also renews efforts to overcome lingering structural obstacles to development and industrialisation, focusing on:
• Working to stabilise electricity supply constraints, while creating an enabling environment for own- and co-generation and fuel cell technology development;
• Continuing efforts to secure port and rail network reforms in order to overcome inefficiencies and associated high costs and robustly support exports; and
• Concerted intra-governmental efforts to address deep-seated and serious skills deficits and mismatches that impact on the capacity of the economy to grow faster and diversify more effectively.
Now, I ask myself, why on the one hand Trade and Industry Minister Rob Davies can deliver a government policy that will help manufacturing and industry go a long way to alleviating many social problems such as unemployment and skills development within this country, while his colleagues in other departments are putting up all sorts of obstacles to destroy manufacturing and industry in this country? It is just my opinion – you tell me!