Ozone Phase-out Regulations

On 15 January 1990, South Africa acceded to both the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer, which collectively delimit the international legal regime for the control of Ozone Depleting Substances (“ODSs”). [1] On 8 May 2014, the Regulations Regarding the Phasing-out and Management of Ozone-depleting Substances (GG 37621 R 351 of 8 May 2014), regarding the phasing-out and management of ozone-depleting substances were promulgated (the “ODS Regulations”).

The ODS Regulations were effective immediately and prohibit the production, import, export, use and marketing of ODSs and products containing them, unless there are for purposes necessary for the “critical use” of society.

Regulation 3 (1) provides;

A person is prohibited from producing, importing, exporting, using or placing on the market any of the following ozone-depleting substances including equipment or products containing such substances, unless it is for critical use- chlorofluorocarbons; bromochlorofluorocarbons; halons; carbon tetrachloride; trichloroethane; hydrobromofluorocarbons; and, bromochloromethane.

“Critical use” is defined in the ODS Regulations as those uses “necessary for the health and safety or critical functioning of society and there are no available economically feasible alternative substitutes that are acceptable”. The definition implies that “critical use” is a conceptual moving target and that as technological advances are made and alternatives become available, industry will no longer be able to justify the production, import, export, use and marketing of certain ODSs on the basis of this notion. A person granted approval for critical use of ODSs must report on the quantities used, the nature of the use and those ODSs that are still in stock.

Specific provisions:

  • The provisions of the abovementioned Regulation 3 do not apply retrospectively to the use, export, production of products containing ODSs manufactured or imported before the Regulations came into effect.
  • Regulation 3 applies to halons reclaimed from existing fire protection systems before the ODS Regulations came into force. If halon recovery from existing fire protection systems is intended to occur after 8 May 2014, then approval must be sought from the Director-General.
  • Methyl Bromide cannot be imported or placed on the market for use after 1 January 2015. [2] South Africa does not produce Methyl Bromide, and the restriction placed on the import of it is concerning.
  • The ODS Regulations provide for a phase-out schedule for use of Hydrochlorofluorocarbons (“HCFCs”) and equipment charged with HCFCs. These ODSs are to be phased out over a period of twenty-six years however the use of HCFC (either in pure-form or as a blended component in a new refrigeration systems or air conditioning units) is prohibited as of 1 January 2015. The importing of HCFCs was prohibited from 1 July 2014.

In keeping with the approach taken in the Montreal Protocol, the ODS Regulations do not regulate Hydrofluorocarbons (“HFCs”). HFCs are both an ODS and a greenhouse gas. Emissions reductions of HFCs are covered by the Kyoto Protocol and the United Nations Framework Convention on Climate Change, which delimit the climate change legal regime. Consequently, and with a view to avoiding regime-overlap HFCs are carved out of the ODS legal regime. Please refer to our recent ENSight that describes recently released draft regulations seeking to regulate greenhouse gasses in terms of pollution prevention plans required pursuant to section 29(1) of the National Environmental Management: Air Quality Act No. 39 of 2004 (“NEMAQA”). [Drafting note: Ashleigh please include link to previous article here]

Air Dispersion Modelling Regulations

Regulations Regarding Air Dispersion Modelling were promulgated in terms of NEMAQA on 11 July 2014 (GG 37804 R 533 11 July 2014). The very detailed Code of Practice for Air Dispersion Modelling (Annexure “A” to the regulation) applies in the follows instances:

  • in the development of an air quality management plan, as contemplated in Chapter 3 of the Act;
  • in the development of a priority area air quality management plan, as contemplated in Section 19 of the Act;
  • in the development of an atmospheric impact report, as contemplated in Section 30 of the Act; and
  • in the development of a specialist air quality impact assessment study, as contemplated in Section 37(2)(b) of the Act.

These Regulations have been widely utilised in their draft form, to date, and they are important for environmental assessment practitioners, air quality modellers and individuals responsible for air quality/environmental issues within companies.