Committee Workshop: Environment, Forestry and Fisheries legislation & policy day 2

Forestry, Fisheries and the Environment

19 August 2020
Chairperson: Mr F Xasa (ANC)
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Meeting Summary

The Committee was briefed in a virtual workshop by the Department of the Environment, Forestry and Fisheries on the National Environmental Management: Air Quality Act, the Chemicals Management Policy Instruments and National Environmental Management: Waste Act, and the National Environmental Management: Integrated Coastal Management Act.

On the National Environmental Management: Air Quality Act (39) of 2004, the Committee asked questions relating to the national ambient air quality standards, air quality monitoring stations, air quality management plans, and air quality compliance and enforcement. The Committee heard that the national ambient air standards were informed by the World Health Organisation guidelines, and monitoring stations were not reporting live to the South African Air Quality Information Systems due to capacity constraints. Also, companies such as Eskom and SASOL were not being held liable for emissions because they were protected by atmospheric emission licenses.

On the Chemicals Management Policy Instruments and National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008), the Committee asked questions about the extended producer responsibility, industrial waste management plans and waste landfill sites. It was told that regulations on extended producer responsibility were out for public comment.

On the National Environmental Management: Integrated Coastal Management Act 24 of 2008, the Committee asked questions relating to the St Lucia estuary management plan, the refurbishment of houses on high water marks, and the successful implementation of the Act. The Committee was told that the Department was struggling to implement certain aspects of the Act due to capacity constraints and a lack of political will by municipalities.

Meeting report

National Environmental Management: Air Quality Act (39) of 2004

Dr Thuli Khumalo, Director: National Air Quality Office, took the Committee through the National Environmental Management: Air Quality Act (39) of 2004. The presentation dealt briefly with the national ambient air quality standards, the development of air quality management plans (AQMPs), industrial emission limits, model air quality municipal by-laws, atmospheric emission standards and monitoring stations for pollutants in South Africa. The presentation also dealt with the appointment of air quality officers.

Chemicals Management Policy Instruments & National Environmental Management: Waste Act, 2008 (Act No. 59) of 2008

Mr Kgauta Mokoena, Chief Director: Chemicals and Waste Policy, Monitoring and Evaluation, presented on the Chemicals Management Policy Instruments & National Environmental Management: Waste Act, 2008 (Act No. 59) of 2008. The presentation touched on the national waste management strategy, norms and standards, integrated waste management plans (IWMPs), extended producer responsibility, licensing of waste management activities, and compliance and enforcement.

Briefing: NEMA - Integrated Coastal Management Act, 24 of 2008

Adv Radia Razack, Director: Legal Services, DEFF, briefed the Committee on the implementation of the Integrated Coastal Management Act. The Committee heard that there were implementation challenges in respect of special management areas, coastal management lines, pollution management, estuary management, coastal development protection and integration and co-ordination.

Discussion

The National Environmental Management: Air Quality Act (39) of 2004

Mr N Singh (IFP) said it was important to know what informed the national ambient air quality standards. Also, it was important to know how the Department was dealing with those companies responsible for high carbon emissions in South Africa -- for example, Eskom and Sasol. Finally, the Department should submit a report on the capabilities and responsibilities of municipalities as far as co-governance was concerned.

Dr Khumalo replied that the Department used the World Health Organisation (WHO) guidelines to formulate the national ambient air quality standards.

Eskom and Sasol were protected by the atmospheric emission licences which allowed them to emit a certain amount of carbon in the atmosphere. The companies could be fined only when they exceeded the permissible amounts. For example, there was non-compliance in the case of the Kendall power station, and the Department was dealing with the matter. The Department was flexible in its approach, because most of the power stations had been built many years ago and did not meet the current emission standards.

Mr Mark Jardine, Deputy Director: Compliance and Enforcement, DEFF, explained that the Department collaborated with licensing authorities on compliance and enforcement. The Chief Director of Enforcement would provide further details on compliance and enforcement in his presentation to the Committee on the Q and A session on day 3. Also, the Department would publish a report on this, as it did every year.                                                                               

On the capabilities and responsibilities of the municipalities, the Air Quality Act was clear on the responsibilities of municipalities when it came to air quality management. In fact, the Constitution largely placed the responsibilities for air quality management on municipalities. The Department could not report on the capabilities of the municipalities, but could acknowledge that they were challenges to be dealt with.

Mr N Paulsen (EFF) questioned the effectiveness of the “Green Scorpions,” and asked the Department to explain its success rate of bringing perpetrators to book.

Ms H Winkler (DA) wanted to know the operational status of all the air quality monitoring stations in South Africa. A look at the quality of the data on the South African Air Quality Information System (SAAQIS) website showed that the monitoring stations were often offline and were not assessing the parameters as per the air quality assessment standards. This demanded corrective action by the Department.

The Department should update the Committee on the status of:

  1. the minimum emission standards exemption applications;
  2. the national ambient air quality standards in the three priority areas and,
  3. Eskom’s non-compliance for problematic and faulty power stations.

Also, the Committee was interested to know whether there had been an improvement in the regulatory fulfilment during the lockdown period, as well as whether the Green Scorpions were environmental monitoring inspectors (EMIs) allocated to air quality offices to ensure compliance in areas where there had been excessive air pollution.

On the status of monitoring stations in South Africa, Dr Khumalo replied that not all stations were monitoring for all the pollutants. This had to do with the fact that air quality problems had to be approached differently. For example, ozone pollution was not monitored at the source due to the fact that it was a secondary pollutant.

On monitoring stations not reporting live, he confirmed this to be true, and identified stations in EThekwini as the culprits. This was due to the fact that the stations did not have loggers, and the Department was moving quickly to address the problem.

Dr Khumalo clarified that the Department was dealing with postponement applications, and not exemption applications. The postponement applications were transitional measures that it implemented to deal with those industries that were built in the 1950s and were facing difficulties in complying with the current emission standards. Eskom had not submitted all the required documents in relation to these applications, and had written a letter for condonation to the Minister.

Ms A Weber (DA) said that monitoring was done by district municipalities. In Mpumalanga, some of the district municipalities were quite a distance apart, and it was essential for the Department to increase the number of monitoring stations. The Department had stated that managing air quality ambient was becoming difficult due to the upcoming mines. Does it have measures in place to ensure compliance by the Ministry of Energy? The monitoring of Kendal Power Station was a problem.

On the stations in Mpumalanga province, Dr Khumalo confirmed that there were some that were far from municipalities. This had to do with the fact that monitoring stations had to be correctly spaced apart in order to ensure accurate results. This at times resulted in monitoring stations being far from municipalities.

On the issue of collaborating with the mining sector to combat air pollution, she said that engagements with the Department of Energy were ongoing. There were no results to show for this engagement yet.

On the Kendall power station, she explained that the monitoring of ambient air was not limited to one particular source. Be that as it may, Kendall power station was required to do its own monitoring and report to the relevant licensing authorities.

Ms T Mchunu (ANC) asked where the Department was going wrong in its management of air quality at the municipal level, considering the fact that there were regulations and laws to assist the municipalities on this mandate. The Department should explain whether clean air associations -- for example, the Richards Bay Clean Air Association -- were held accountable for non-compliance. There was a chance that these entities could escape the arm of the law.

Dr Khumalo replied that the provisioned regulations were not a guarantee that all problems would be solved. There were challenges that came along with the implementation process.

There were laws permitting the creation of clean air associations. However, it was not the associations that owned operating licences, but individual industries belonging to these associations. In this vein, the industries could be hold accountable for non-compliance.

Ms C Labuschagne (DA, Western Cape) asked how the Department determined which industries and pollutants would have caused emission exceedances.

Dr Khumalo replied that it was difficult to pick out pollutants and place them at a particular industry in those cases where pollution went above the designated limits. The Department’s action plan depended on the time of the year. In winter, it understood that pollutants could get trapped due to high saturation in the air. In cases of veld fires, it was easy to explain exceedances.

Mr J Lorimer (DA) asked how many municipalities outside the metros had AQMPs in their development plans and whether this was at a local municipality level or district level. The Department had to inform the Committee how often it empowered air quality officers responsible for compliance and enforcement.

Dr Khumalo responded that the air quality officials were empowered by legislation but there were challenges. On the number of municipalities with air quality management plans in their development plans, she said that most municipalities had AQMPs. These were reviewed at certain intervals.

Dr Vincent Gololo informed the Committee that all provinces, with the exception Mpumalanga and Kwazulu-Natal, had AQMPs. At the district level, 33 out of 44 districts had AQMPS. At a metro level, out of eight metros only Mangaung did not have an AQMP. At the municipal level, 37 out of 228 municipalities had AQMPs.

Ms S Mbatha (ANC) wanted to know how many AQMPs had been approved by the Minister. The Department had mentioned that Particulate Matter (PM10) was a national problem, but had not informed the Committee of its corrective measures. The municipalities required support in their monitoring role, and there was a need to know if the Department was offering this support. The Department had to close all the regulatory gaps. In West Park, Pretoria, there was a lot of pollution. Was the Department aware of this?

Dr Khumalo replied that the Minister did not approve all the AQMPs because of the governance structure. For example, the AQMP of a municipality was first approved by the municipal council, and was then integrated into the Integrated Development Plan for implementation.

The Department provided the municipalities with air quality management manuals to assist with the modelling requirements and terms of references. It also attended municipal meetings on air quality management.

Regarding the pollution in West Park, Pretoria, the Department would follow up on the municipality in that area.

Dr Khumalo said there were challenges with the monitoring networks, and the Department’s work in transferring monitoring capacity from the national to the municipal level had been affected by the lockdown. Nonetheless, it was working on ways to mitigate the time lost.

Chemicals Management Policy Instruments & National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008)

Ms Winkler asked the Department to update the Committee on the progress made regarding the drafting of legislation dealing with the extended producer responsibility. There was an urgent need to regulate the industry, especially considering the fact that companies, including Clover, were now using coloured bottles. This meant the bottles were no longer recyclable and made the Department’s job to reduce plastic difficult.

The government had recently published a Gazette on the gradual phasing out of single use plastics. The Department had to explain to the Committee the exclusion of straws, cutlery and plastic microbeads from the Gazette. In addition, it had to explain its failure to set strict timelines for the phasing out of single use plastic, especially considering the fact that there had been a delay in the publication of the Gazette.

The Department had to update the Committee on the status of waste management plans, and also provide a list of all the provincial offices responsible for waste management.

On extended producer responsibility, Mr Mokoena replied that there were proposed regulations that were out for public comment. The closing date for the comments was 26 August. Subsequent to that date, the regulations were going to be reviewed, based on the comments. There were also notices for three waste areas -- paper and packaging, lighting and electronics -- that were out for public comment.

Mr Mokoena agreed that Clover’s rebranding strategy defeated the purpose of recycling. The Department was working with the Department of Trade, Industry and Competition to deal with issues similarly situated to the colouring of bottles.

Ms Mbatha requested clarity on the regulation of the manufacturing, import and export of asbestos. There were many houses still using asbestos -- how did the existing regulation address this problem?

The Department should inform the Committee of the number of industrial waste management plans it had in place in the different spheres of governance.

The presentation had mentioned that there was a Gazette that had been circulated for input. In future, the Department had to submit Gazettes for scrutiny by the Committee.

The waste landfill sites were becoming problematic. How was the Department assisting municipalities to correct this?

Waste pickers did trash sorting in open areas, and subsequently polluted the areas. What was the Department doing to monitor the activities of waste pickers?

There was still too much pollution in respect of plastic and tyres. While it was commendable that the Department had engaged the Council for Scientific and Industrial Research (CSIR) to deal with the problem of tyres, the Committee still needed to know what the Department was doing to deal with the issue of plastic.

On industrial waste management plans, Mr Mokoena replied that the Department had waste management plans for four waste areas -- paper and packaging, electronic waste, lighting and tyres. The processes in the different waste areas were invoked under different sections of the Act.

The Department was strategising how best it could assist municipalities on problematic waste landfill sites. From time to time, it helped municipalities with the development of by-laws. The problem with landfill sites had to do with management, and the Department was working on improving capacity at different municipalities.

Regarding plastic and tyres, the Department had included plastic in the extended producer responsibility (EPR) for paper and packaging. Regarding waste tyres, the Department was dealing with this under the industry waste management plan for tyres. This plan encouraged the collection and recycling of tyres.

Mr Obed Baloyi, Chief Director: Chemicals Management, DEFF, referred to the manufacturing, import and export of asbestos, and replied that the current regulation had been effective in stopping business in these areas. However, there were buildings that still used asbestos. It was important to emphasise that the asbestos was not harmful unless it was moved or disturbed. In that vein, homeowners were encouraged to employ the services of professional asbestos handlers in cases where they needed to change their roofing.

Mr Singh asked if the state was doing enough to implement aspects of the Act -- for example, the appointment of waste management officers.

Mr Mokoena replied that monitoring of the implementation of the legislation was taking place in order to ensure that the Department was meeting its objectives. The monitoring process was also reflected in the national waste management strategy.

The Department had to inform the Committee of the number of companies that were being held liable for acid mine drainage (AMD), and to what extent they were being held liable.

Mr Mokoena replied that in certain cases it was difficult to identify the polluters and hold them liable, as they would already have left the polluted areas. In cases where the polluters were known, the Department had measures in place to deal with them.

The Finance Minister had announced an increase in the plastic bag levy by 25 cents. How effective had this increase been in ensuring a reduction of plastic? Was the Department not pandering to industries that manufactured plastic by not putting in place stringent regulatory measures?

The Department had to update the Committee on its progress regarding the reduction of waste tyres.

The Department had to follow the example of other countries that had specialised courts for environmental issues in place. These courts were known as “green courts.” Did the Department have a plan to create green courts?

Mr Mokoena requested permission to deal with the matter in the next presentation, dealing with compliance and enforcement. The Chairperson agreed on behalf of the Members.

The President had made an announcement on environmental cleaning in the municipalities. Was the Department contributing to this agenda?

Ms Labuschagne asked what authority the Department had on local governance in situations where the by-laws in this sphere of governance were not consistent with the relevant legislation. The Department had issued a tender for a service provider to review the by-laws in the metros, specifically those affecting the chemical waste economy. Provided the service provider concluded that the by-laws were not consistent with the relevant current legislation, what was going to be the Department’s action plan?

Mr Mokoena replied that there was a working group made up of Department officers and municipal officials. The group was responsible for identifying and resolving all inter-governmental challenges.

NEMA - Integrated Coastal Management Act, 24 of 2008

Ms Winkler asked for the contact details of the officials making up the provincial coastal management committees in KZN and the Eastern Cape. She asked whether the committees performed the role of oversight in case of illegal fishing activities in these areas.

The pollution of water streams flowing into the ocean stemmed from a lack of maintenance of waste treatment facilities. Municipalities often complained that this was due to a lack of resources. The Department had indicated in its presentation that it intervened to ensure compliance by the municipalities. While its intervention was commendable, this only constituted enforcement and not restorative intervention. What was the Department’s long-term plan to restore clean water streams? Water contamination was chasing away tourists, and posed health risks to the public.

What was the management plan for the St Lucia estuary? The Umfolozi River had been re-routed straight into the estuary and was dumping truckloads of salts. This had a negative impact on important activities in this area -- for example, tourism and biodiversity.

Adv Razack replied that the Department was going provide the Committees with the requested contact details.

The provincial committees did not perform the role of oversight on fishing transgressions. This was the responsibility of the fisheries branch. The fishery control officers within the fisheries branch had the duty to enforce the Marine Living Resources Act.

The Department’s long-term solution on waste treatment was securing funding, the lack of which was the cause of water contamination. To secure the funding, the Department would have to build a case with the National Treasury about the importance of the receiving environments -- for example, estuaries. However, there were legal issues that the Department had to overcome to ensure that at a systematic level, it was able to support the municipalities to improve their responses and capacity.

She said the Department had participated in meetings to do with the St Lucia estuary. However, the CEO of the iSimangaliso Wetland Authority was in a better position to provide further details on the matter.

Mr Singh said the presentation had focused more on the challenges related to the implementation of the Integrated Coastal Management Act. It was important for the Department to engage the Minister on the implementation of this “fantastic” legislation. In the medium term, the Department had to submit a report to the Committee on what was required from the different spheres of government to implement the Act.

The Department had to identify and explain to the Committee the section of the Act dealing with “private beaches.” In the southern coast, people were prohibited from doing activities in areas that were in front of beach houses. It was alleged that these areas were considered “private beaches.”

There were people with residences on the high water mark. The Department had noted in its presentation that it was difficult to deal with these people. It was in a situation it had previously been with people in the Klerksdorp area. Ironically, it had allowed these people to refurbish their houses after they had been destroyed by a tsunami.

Mr Singh asked if the Department and all the other relevant spheres of government had the human and financial capital necessary to fulfil their environmental obligations, or if there was need to capacitate.

Adv Razack replied that the presentation had highlighted certain aspects of the implementation process that the Department was struggling with, namely the capacity constraints and a lack of political will by the municipalities. This did not suggest a complete failure to implement the Act. There were some success stories.

On the issue of people blocking access to certain areas of the beach, she told the Committee that this was illegal and the culprits involved must be reported to the relevant enforcement officials to face punishment. The Department was going to make the punishment exemplary in order to avoid similar offences.

On the refurbishment of houses on the high water mark, she explained that there was a gap in the environmental laws. People were allowed to refurbish destroyed houses on high water marks so long they adhered to the already existing footprint. This blocked the Department from stopping refurbishment.

Ms Mbatha said that the municipality’s new developmental town plan required engineers to attach their signatures on a flight line. The Committee was interested to know if this requirement was also reflected in the Department’s town development plan. This was important when one looked at the destruction of houses in the coastal areas.

When viewed in the context of oil and chemical pollution, how did the Extended Producer Responsibility work?

Did the Department consider zinc tanks as a form of pollution?

The impact of pollution on aquatic life was concerning. The Department had to explain to the Committee what it was doing about this.

On the municipalities’ new town development plans, the Department had the tools to get involved in this. As soon as the Department got provinces to put their vehicles for management lines in order, it was going to put these on the municipal maps. The municipalities would then have justifiable grounds to refuse any development in terms of their legislation. The Department required provinces to get online and do their coastal management lines (CMLs). There was a pilot project on this in the Western Cape Province.

Adv Razack informed the Committee that the polluter pays principle existed within the framework of the Department of Transport. Under this framework, vessel owners were required to pay a pollution levy. Vessel owners were required to have protection and indemnity (P&I) insurance before entering South African waters. The insurance covered oil spills

On aquatic life and plastic, there was existing legislation dealing with this -- for example, the Threatened or Protected Species (TOPS) legislation. The Department was working on integrating its approach on plastic with that of the waste department in Pretoria. It also had the source-to-sea programme, which implemented a suite of river catchment and estuary conservation projects.

Ms Labuschagne requested an update on the status of the pilot study being conducted on the coastal management line. What was the timeframe set for the completion of this?

Did the Department consider resources within the ocean when looking at sustainable livelihood in the coastlines within the special management areas?

The presentation had praised the Department on environmental assessments on coastal development protection, which was ironic considering the fact that the Committee was faced with the task of reviewing the Coastal Development Protection Bill. Why had the Department failed to amend section 63 of the Bill in order to obtain authority on coastal development protection? Why did the Department have authority on the matter? Did it mean the municipalities responsible for coastal development were failing to do their jobs?

Ms Razack replied that the timeframe for completion of the pilot study being conducted on the coastal management line, was the end of 2020.

On special management areas, the Department did not deal with resources within the oceans. Special management areas were mandated for ocean land resources only. The fisheries branch was responsible for the management of resources within the oceans.

On environmental assessments on coastal development protection, a legislative amendment did not immediately grant the Department authority over coastal development and protection. There were other important issues surrounding the environmental authorisation process. Moreover, the Department was not geared to be responsible for 3 000km of coastline.

The meeting was adjourned.

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