Challenges in ensuring compliance from key polluting industries, legal actions against department & Paris Agreement: DEFF briefing; with the Minister

Meeting report

Ms Barbara Creecy, Minister of the Department of Environmental Affairs, Forestry and Fisheries gave an introductory briefing to the Committee. She expressed her appreciation that the NCOP is showing a keen interest on the matter of air quality management. She stressed that air quality is not a domain of national government only. National government is only responsible for the development of applicable policies and regulations. Monitoring and enforcement of the same happens at provincial and local level and this is where the NCOP is strategically placed to exercise its oversight role, i.e. to hold provincial and local government authorities to account. A particular area of interest to the NCOP should involve assessment of the capacity of both provincial and local governments in discharging their roles with regards to monitoring and enforcement of air quality legislation. 

Secondly the Minister addressed various litigations that were lodged against the Department in the High Veld Priority Area. The essence of the litigations is to compel the Department to develop regulations that will govern air quality controls and management. The Department is not opposed to the enacting the regulations as required by the litigants and therefore the Department is in the process of engaging the litigants to find an amicable settlement.

Ms C Labuschagne (DA; Western Cape) requested that the Department should brief the Committee once the regulations are drafted.

The Minister responded that as it is a standard practice, Parliament will get a briefing on the regulations and around the outcomes of the negotiations for settlement of litigations brought against the Department.  

Members appreciated the introductory briefing by the Minister. They further advised that the main presentation of the Department should elaborate more on other pending litigations the Department is in the process of settling. 

Status of Air Quality in South Africa

Ms Tsakani Ngomane, Deputy Director General: Climate Change, Air Quality and Sustainable Development, outlined that the presentation will focus on legislative frameworks applicable to air quality management, provide a report on the current state of air in South Africa based on the scientific work and the output data coming out of the testing stations across the country. Furthermore, it will provide detailed information on the work being done on areas that were declared as the hotspots for Air Quality Management. Lastly, the presentation will report on the national climate change policy response, focusing on policy positions that are emanating from the Paris Agreements. It will also elaborate more about the long-term trajectory that the development has developed to reduce greenhouse emission as the country’s contribution toward meeting the obligation of Paris agreements. 

Dr Thuli Khumalo, Chief Director: Air Quality, outlined various constitutional provisions and legislative framework on which the Departmental mandate is derived. She quoted Section 24 of the Constitution and the National Environmental Management Air Quality Act (NEMAQA) as way of giving a background to the departmental mandate. The provisions of the NEMAQA afford the right to the Minister to declare the priority areas where it is reasonable proven that there has been non-compliance with the set benchmark air quality standards.  Similar rights are also afforded to the provincial MECs to discharge within their jurisdiction. 

Dr Khumalo further outlined various dispensations under which the management of air quality was administered in South Africa and how management of the same improved overtime based on the prevailing legislative frameworks in each of the dispensations. 

She characterised the period preceding the introduction of NEMAQA as the period that has been fraught with short comings since the prevailing legislative at the time, the Air Pollution Prevention Act (APPA) solely focused on management air pollution and how the neglecting the ambiance air quality in its administration. Even the permits that were given to industries through the provisions of the Act did not have any reporting requirements. This resulted in the development of air quality hotspots. APPA was source focused and neglected the accumulative impact when the same sources were operating in the same jurisdiction. Its air pollution prevention tools were also inadequate and it did not have clear and transparent set of regulations. Members of the public did not know what is being regulated and how regulations are being undertaken.  

APPA experienced more legal challenges after 199 resulting in the introduction of NEMAQA to effect legislative reforms in the space. NEMAQA lead to the development of effective tools and management control for air quality. These include various standards for ambience air quality and various enforcement mechanism, regimes with binding penalties for any transgression. 

In keeping the new wave of legislative reforms, the Department adopted a continuous improvement approach to air quality management. Hence in the year 2010, the Department published the generation Section 21 Listed Activities and their Associated Minimum Emission Standards. The same was amended in 2013, 2015, and 2018. The aforementioned approach afforded enough time to the industry in order to enable a smooth transition to the new standards. It is envisaged that the plants that existed before the enactment of the Act should work towards compliance with the existing air quality standards, however new plants should be designed to accommodate the new standards that will be effective in 2020. As from 1 April 2020 all plants will have expected to comply with the new standards. 

She mentioned that the Minimum Emission Standards (MES) were also established for emission sources that have potentially significant impact on air quality. MES targets large scale corporations. The achievements that resulted from the implementation MES were listed as follows:

-A benchmark has been established for all new facilities

-An improved management of emissions through clear monitoring and reporting requirements, improved enforceability of conditions and subsequent fines in cases of non-compliance.

-Establishment of transparent processes of applicable emission limits for respective facilities

-Establishment of legislative the requirement for the monitoring of ambient air quality and assessment of compliance with ambient air quality standards

-Determination and reporting of the state of ambient air quality in the area and creation of an awareness among the members of the public about the state of air quality in the areas.

Presentation on Air Quality Management in Air Quality Priority Areas and challenges associated with this activity

Dr Khumalo reported that the Minister declared a number of areas as priority areas as empowered by the Air Quality Act. The areas that were declared are including the Vaal Triangle Airshed Priority Area, Highveld Priority Area and Waterberg-Bojanala Priority Area. As the result Air Quality Management Plan. Cabinet approved the coordinated approach for all government departments to work together in the areas the priority areas. Both the Minister and the MECs have responsibilities in terms of setting out policies for monitoring of the air quality in the priority areas. Provinces have an added responsibility, that of providing the necessary support to the municipalities while they are also require to monitor the local sphere of government as it discharges its allotment of responsibilities in the aforementioned areas. The Act requires that all three spheres of government must appoint a designated air quality officer.

In addition to the above, appropriate structures were established to determine the desired state of air quality in a priority area and set-out an improvement plan to achieve it. Therefore, a Multi-Stakeholder Reference Group and Implementation Task Teams for each priority area was established. The composition of the aforementioned reference group and task teams included all relevant national departments, affected provincial departments, district and local municipalities, civil society, industries and academia.

Joint projects were also undertaken in the priority areas and these included education and awareness programmes such as health studies, fun-run to highlight air quality challenges and tyre management.  Dr Khumalo further listed some of the achievement, achieved through the collaborative approach in the priority areas and they include following:

-Appointment of Air Quality Officers in the municipalities

-Development of Air Quality Management Plans

-Increased number of compliance and enforcement inspections

-Various compliance and enforcement activities are regularly undertaken

She further gave a report on the state air in South Africa focusing in all provinces and also gave an account of the ambient air quality monitoring. Industries are also monitoring and have agreed to share their monitoring data. Furthermore, she listed some primary challenges with ambient monitoring stations. The latter included power failures, vandalism, lack of capacity among the municipalities and insufficient budgets. The Department has undertaken a number of interventions to address the aforementioned challenges. All the stationed are managed with the help of South Africa Weather Service.

 Mr. Grant Waters, Director: Environmental Impact and Pollution, gave an input with regards to compliance and the enforcement. He reported that the Department has established an implementation protocol in order to capacitate the relevant officials in the municipalities. In total there are 405 local authority Environmental Management Inspectors (EMIs) in 72 municipalities. The Province of Gauteng, KwaZulu-Natal and Western have majority of EMIs. The municipalities are reporting less incidence inspection and enforcement while the bulk of work is being done by the Department. The enforcement programme is targeting large sectors with high impact on pollution. Municipalities are capacitated to initiate small enforcement projects targeting the small sectors.  A number of projects have been planned for the priority areas in this financial year

Paris Agreement and National Climate Change Response Policy

Following Mr. Walters’s input, DDG Ngomane gave an overview of South Africa's response to the country’s climate change obligations as informed by the Paris Agreement. Paris Agreement is an international legally-binding international framework to mitigate against climate change while devising measures to enable adaptation to devastating its impact. 

Each of the countries that have signed the agreement must develop a Nationally Determined Contributions and report appropriately on its implementation every five years. A National Climate Change Response Policy was also developed and a National Adoption Strategy will be finalised soon. 

South Africa has developed a long-term trajectory to reduce greenhouse gas emissions. The trajectory envisages scenario where the emissions will peak between year 2020 and 2025, plateau between 2025 and 2035 before it is expected to decline from 2035 to 2050. She further outlined the mitigation policy instruments such as the Climate Change Bill, Carbon Budgets for companies and Carbon Tax Act.

M. Ishaam Abader, Acting Director General: Department of Environment, Forestry and Fisheries further elaborated more on the briefing made by the Minister on litigation cases lodged against the Department. He stated that there are five litigation cases against the Department. The cases were lodged by civil society organisations and sectors of organised business. The civil society cases are advocating for air quality regulations to be introduced. The sawmilling industry is challenging the applicability of certain aspects the air quality standards to their sector. The other three private sector corporates are challenging the Departmental environmental authorisation processes, specifically whether air quality impact assessment can be included as part of the environment authorisation. The Department has received legal opinion to settle all of the matters and the litigating parties has agreed to partake to the settlement negotiation process.

Discussion

Ms C Labuschagne (DA, Western Cape) asked about the commitment of Cabinet, mainly national departments and the commitment of the industries in respect of the targets to reduce greenhouse emissions. She further enquired whether Carbon Tax is going to lead to change behaviour, given the fact that the greatest emitter is the public energy generator. Are there no other models either than the carbon tax, since industry will factor in the carbon tax cost by increasing the prices of goods and services? She warned that this will ultimately affect the poor the most.

Is there no possibility of exempting the local sphere of government from the obligation of NEMAQA due to capacity and budgetary constraints at this level? Can the country explore the establishment of a hybrid model where the metros and richer municipalities carries the aforementioned responsibilities and assist the poorer municipalities? Another scenario that could be explore is a situation where less capacitated areas could cluster in order to share responsibility. Lastly, can the private sector also share in barring the cost of managing emission, for an example by purchasing some of the equipment or assume some the staff training cost?

Mr C Smit (DA; Limpopo) asserted that there is a theory arguing that the planting of trees can be employed as one of the climate change mitigation measures, since it said that they could be used to capture greenhouse emissions. If this is true, is it not possible for the Department to use the air quality enforcement measures to compel industries to plant trees in accordance to the one they are uprooting. The second question is about the exclusion of Polokwane and Greater Tubatse in the Winterberg Priority Area, given mining and other development coming to those areas.

Ms L Bebee (ANC; KwaZulu-Natal) enquired about the challenges experienced by the Department in enforcing industry compliance. What interventions does the Department implement to address capacity challenges?  

Mr A Nyambi (ANC; Mpumalanga) asked whether the Department is undertaking capacity building programme to capacitate local government. Otherwise the whole programme for the management air quality is a futile exercise. Does the Department monitor the depletion of the ozone layer, given the adverse climatic condition that we have just experienced as the country? What is the status of parties that have signed the Paris Agreement or who have pulled out? Looking at the county’s long-term trajectory, what are the mitigating factors that are indicating that we might achieve the set targets?

Mr Arnolds (EFF; Western Cape) asserted that the meeting is dealing with constitutional imperative and enquired what is being done about the companies that pollutes and leave the country. He reported that there are existing mining dumps in the country. What is being done to address the aforementioned situation?  

Ms M Mokause (EFF; Northern Cape) appreciated the presentation by the officials and reported that during her constituency work in the Northern Cape in areas such as Daniel’s Kuil, she received complaints from communities about the diseases that are caused by air pollution. However, it seems as if province and municipalities are failing to discharge their responsibilities in respect of air quality. There are no programmes to educate the general public about their rights in respect of air quality. Does the Department wait for complaints or are there proactive measures to enforce compliance? What is being done to the provinces that are not declared priority areas by the Minister?

Ms W Ngwenya (ANC; Gauteng) wanted to know whether the Climate Bill has been introduced? If not, when will it be introduced?

The Minister responded that the current structure of economy in South Africa is dependent on coal produced energy, 30% of foreign exchange is from the export of coal. The graph that was shown in the presentation with regards to the long-term trajectory to reduce greenhouse emissions is an indication that government is committed to the reduction emission, this a complex matter and there is no easy way out. The Department will be guided by the new energy mix which will consist of more Independent Power Producers. It is important to give effect to what is known as just transition. How do we ensure energy security to avoid stalling the economy? How do we engage in research and development into green economy and how we will craft a process to transition the people that are currently employed in polluting sectors to the new green sectors of the economy? Just transition is everyone’s business. The Department is undertaking a research to study the impact of climate change on vulnerable sector of the economy. The study is already showing that Agriculture is highly at risk especially small farmers. Transport is another sector that will be impacted because of new non-polluting models. And, biodiversity in general will also be affected.

It is important to understand that we are dealing with a complex problem that is affecting every sphere of life. The priority is mitigation and the development of adaptation strategies. Everyone must be concerned about the denialism on issue of climate science by others. The Climate Bill is still in NEDLAC and it will go back to Cabinet and to Parliament. The Bill seeks to introduce innovative measures for reduction of emissions. Carbon tax was introduced before the bill. We must look into how to create a synergy between the carbon budget and carbon tax. Other mitigation measures are how can we could get rid of carbon in the atmosphere, the declaration of protected areas is helping in this, reforestation too is contributing. There is a lot of experimentation going on in the world around carbon capture, one cannot say at the stage that they are successful reducing climate change.

The Department and National Treasury are debating the appropriate use for the revenue that is generated through carbon tax. National Treasury see themselves as being entitled to the revenue since they are solely providing the budget for the Department and the matter is still being debated.

MPs as they are responsible for the drafting of legislation should consider the idea of establishment of a hybrid model to managed air quality. We also need to establish an independent monitoring mechanism that could independently asses the capacity of state monitoring mechanisms and this could also help to detect those stations that are not working.

We understand the lack of capacity to comply with the requirements of air quality legislation among the small sectors of the economy. We are party to the Montreal treaty and as such the Department has developed a strategy to provide assistance the informal sector. The strategy seeks to help them to also comply. A project has been initiated to assist refrigeration and air-conditioning sector

On abandoned mines, the Minister said existing relevant legislation requires mines to proactively set aside a budget for rehabilitation and they must submit a report annually for cleaning up as their continuing with the operation. This have been included as a condition for mining licence applications. The Green Scorpions who are responsible for proactive inspections and the public can also approach them. They issue compliance notices to those involve in polluting.

Mr Abader responded that the Waterberg-Bojanala Priority Area was declared as a proactive measure on the part of the Department. Tubatse is an emerging problem that was not there when the other priorities were declared.  

The Chairperson thanked the Minister and staff. The Committee is empowered to engage communities and the mining area around compliance issues.