Overview of air quality regulatory developments

December 1st, 2017
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By Alecia Pienaar

Even though climate change has been on the agenda since 1993 when South Africa (SA) first became a signatory to the United Nations Framework Convention on Climate Change, it is the ratification of the Paris Agreement in November 2016 that has introduced a spur of developments to the air quality regulatory regime. The movement interlinks with the mitigation component of SA’s Intended Nationally Determined Contribution, which commits to a peak, plateau and decline of greenhouse gas emissions trajectory range, that will vary between 398 and 614 Mt CO2 by 2025 and 2030.

An overview of the key developments are provided below:

National Greenhouse Gas Emission Reporting Regulations

The National Greenhouse Gas Emission Reporting Regulations, published April 2017 in terms of the National Environmental Management: Air Quality Act 39 of 2004 (the Act), introduced the first attempt at a national reporting system for the transparent reporting of greenhouse gas emissions.

The duty to report greenhouse gas emissions applies broadly to all entities controlling or conducting Intergovernmental Panel on Climate Change emission activities above specified thresholds. Emitters are required to register their facilities and report on emission of the following six greenhouse gases –

  • carbon dioxide;
  • methane;
  • nitrous oxide;
  • sulphur hexafluoride;
  • fluorocarbons (perfluorocarbons); and
  • hydrofluorocarbons (collectively regulated greenhouse gases).

This aligns with SA’s mitigation Intended Nationally Determined Contribution, which commits to increased disaggregation over time through domestic, economy-wide mandatory greenhouse gas reporting on six greenhouse gases, with a material focus on carbon dioxide, methane and nitrous oxide.

The regulations are also integral to SA’s anticipated carbon tax regime. As provided in the 2015 draft Carbon Tax Bill, any person who conducts an activity listed in Annex 1 to the Greenhouse Gas Emission Reporting Regulations will be liable to pay carbon tax on the associated emissions.

Priority air pollutants declared

The Minister of Environmental Affairs recently declared the regulated greenhouse gases as priority air pollutants (Final Declaration) under the Act, requiring persons who conduct ‘production processes’ to prepare and submit pollution prevention plans (PPPs) for approval if so directed by the minister. ‘Production processes’ include those processes listed in Annex A to the Final Declaration (listed processes), which involve the emission of declared greenhouse gases in excess of 0,1 megatonnes annually (emission threshold) (reported as carbon dioxide equivalents under the Greenhouse Gas Emission Reporting Regulations).

A draft priority air pollutants declaration was first published in January 2016 (Draft Declaration), and proposed a broader scope of application than the Final Declaration. In addition to persons conducting listed processes above the emission threshold, the Draft Declaration also required persons undertaking a listed process as a primary activity, regardless of whether the emission threshold is exceeded, to prepare and submit PPPs. This category of persons has, however, been removed from the Final Declaration.

As indicated, the Final Declaration also provides that a PPP need only be submitted for approval by the minister where so directed. It is, however, understood that the Final Declaration, as well as the regulations on PPPs (discussed below), constitutes such a directive, as its introductory section requires persons falling within the category specified in the schedule, to compile and submit PPPs. There is, however, some confusion as the Final Declaration does not contain a schedule. It is assumed that this is an erroneous reference and the term ‘schedule’ must be understood as referring to the listed activities in Annex A to the Final Declaration.

Pollution prevention plan regulations published

The National Pollution Prevention Plans Regulations (PPP regulations) were published under the Act, together with the Final Declaration and prescribe the procedural and substantive requirements for PPPs.

Companies engaging in listed processes must submit their first PPPs to the minister by 21 December 2017 (Initial PPP), which plans must set out, inter alia

  • a description of the listed processes undertaken;
  • details of the greenhouse gases generated from the listed processes;
  • activities reported on in terms of the Greenhouse Gas Emission Reporting Regulations;
  • total greenhouse gas emissions from listed processes for what appears to be the full calendar year preceding the submission of the PPP;
  • details of the methodology used to monitor annual greenhouse gas emissions and evaluate progress towards meeting greenhouse gas emission reductions; and
  • a description of mitigation measures that will be implemented.

Initial PPPs must cover the period from 21 July 2017 to 31 December 2020 and, once approved, will be valid for a period of five years. All subsequent PPPs will each apply for five calendar years.

Implementation of the PPPs for the preceding calendar year must be monitored, evaluated and reported on annually to the minister by 31 March of each year. These annual progress reports must include –

  • details on mitigation measures implemented;
  • details of any deviations from an approved PPPs and remedial action undertaken to manage deviations; and
  • management of risks and limitations.

To assist in the preparation of PPPs and annual progress reports, the Department of Environmental Affairs has circulated the ‘Guidelines for the Developments of Pollution Prevention Plans in respect of Greenhouse Gases’ for comment.

The PPP Regulations differ from the initial draft PPP regulations (draft PPP regulations) gazetted in 2016 as it narrows its scope to listed activities exceeding the emission threshold. Affected parties are now also given two additional months to prepare the first draft of their PPPs as the draft PPP regulations required submission within three, as opposed to five months.

Failure to submit PPPs or annual progress reports when due is an offence for which a fine up to R 5 million and/or imprisonment up to five years may be imposed.

Proposed regulations to phase-out the use of persistent organic pollutants (draft POP regulations)

Draft regulations proposing the phasing-out of the use, production, distribution, sale, import and export of certain identified persistent organic pollutants (listed POPs) have been published. This follows from SA ratification of the Stockholm Convention on Persistent Organic Pollutants in 2004.

Persistent Organic Pollutants (POPs) generally comprise of organic chemical substances that are deemed ‘persistent’ given their resistance to degradation and are being phased-out to prevent, mitigate and minimise their impacts on human health and the environment.

Persistent Organic Pollutants are prevalent in agricultural and certain industrial chemicals. Phasing-out of POPs is important from an air quality perspective given their ability to cause long-range transboundary air pollution.

The draft POP regulations propose varying timeframes for phasing out of the listed POPs. Certain POPs will have to be phased out as early as 31 December 2019. Once the regulations take effect, any user, producer, seller, distributor, importer or exporter of listed POPs will be required to notify the Department of Environmental Affairs of its POP-related activities. In addition hereto, producers, importers and exporters will be required to submit phase-out plans for approval by the Department of Environmental Affairs within 12 months from the date on which the regulations take effect.

To assist the Department of Environmental Affairs to monitor progress on the implementation of phasing out plans, quantities of listed chemicals used, produced, imported or exported will have to be reported on annually.

Failure to comply with the draft POP regulations is an offence for which a fine and/or imprisonment of up to R 10 million and/or ten years may be imposed.

Climate change considerations infiltrate environmental impact assessment scheme

  • Thabametsi judgment

Greenhouse gas emission considerations are playing a more prominent role in the environmental impact assessment process following the High Court’s decision in Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others [2017] 2 All SA 519 (GP) earlier this year.

The case dealt with the grant of an environmental authorisation by the Chief Director of the Department of Environmental Affairs to Thabametsi Power Company (Pty) Ltd for the establishment of a 1 200 megawatt coal-fired power station near Lephalale in Limpopo Province. Earthlife Africa unsuccessfully challenged the Chief Director’s decision on an appeal to the minister. It then proceeded to take the decision on review before the High Court, arguing, among other things, that the environmental authorisation could not have been granted without consideration of all relevant factors, which, because of government’s obligations under national and international law, includes a climate change impact assessment.

Earthlife Africa succeeded in its argument and the court, in ordering that the appeal be remitted back to the minister, remarked that a climate change impact assessment ‘is necessary and relevant to ensuring that the proposed coal-fired power station fits South Africa’s peak, plateau and decline trajectory as outlined in the NOC, and its commitment to build cleaner and more efficient than existing power stations’.

  • Climate change to revisit the High Court

The far-reaching impact of the Thabametsi judgment is already evident as the Trustees of the Groundwork Trust recently launched two separate applications in the Pretoria High Court for review of the decision by the Department of Environmental Affairs authorities to grant environmental authorisations to Kuyasa Mining (Pty) Ltd and ACWA Power Khanyisa Thermal Power Station RF (Pty) Ltd respectively, authorising their proposed 600-watt coal-fired power stations.

Although there are particular nuances to each case, at the heart of the applications is the Groundwork Trusts’ argument that, in light of the Thabametsi judgment, the environmental authorisations should not have been granted absent if climate change impact assessments have been done. The climate change impact assessments are of particular importance as –

– both power stations are located in water stressed regions;

– the power stations fall within the highly polluted Highveld Priority Area; and

– SA’s international commitments ‘[a]t minimum … require rigorous climate change impact assessments to be conducted before granting [an] environmental authorisation for any new coal-fired power station’.

At the time of writing this article, it was not yet clear whether any of the respondents intend on opposing the applications.

The proliferation of applications of this nature should urge developers to first seek advice on the inclusion of a climate change impact assessment into the environmental impact assessment process.

Climate Change Bill possibly in the pipeline

The Department of Environmental Affairs’ will encourage the implementation of a Climate Change Response Framework (framework) to align with international obligations and may see the introduction of a Climate Change Bill. A proposed outline for the framework is currently in circulation, marking a definitive move towards the integration of climate change considerations into legal process.

A draft concept document published by the Department of Environmental Affairs in 2016 suggests that the framework is underpinned by directives entrenched in the Paris Agreement and the National Climate Change Response White Paper. As such, the framework is built on the objective to:

  • set a national emission reduction trajectory range and goals;
  • provide a regulatory framework for the national emission reduction and national adaptation cycle, including mandatory planning and reporting;
  • provide for incentives to support SA’s national emission reduction efforts;
  • set national adaptation goals;
  • provide for alignment of national sectorial legislation, as well as relevant provincial and local legislation with climate change response objectives; and
  • establish a national information system.

It is unclear whether the framework will ultimately be published as a stand-alone Bill or as an extension of the Act.

It is also uncertain how the transition from the existing framework under the Act will work, but it has been proposed that transitional provisions ought to provide for migration of the Greenhouse Gas Emission Reporting Regulations, Final Declaration and PPP Regulations from the Act to the Bill.

Conclusion

It is clear that there is a commitment to move towards a formally regulated climate change framework. Although progressive, the environmental law regime, and in particular the air quality sector, is already defined by a continuous proliferation of legislation. From the above, it does not appear that this will be ending soon. This will likely create numerous lacunas and ambiguities that industries will have to navigate across as they seek to bring their operations into compliance.

Alecia Pienaar LLB (NWU) LLM (UCT) is a candidate attorney at Cliffe Dekker Hofmeyr in Johannesburg.

This article was first published in De Rebus in 2017 (Dec) DR 38.

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