In section 22 of the National Environmental Management Air Quality Act 39 of 2004 (“NEMAQA”), provision is made that no person may without a provisional Atmospheric Emissions Licence (“AEL”) or an AEL, conduct an activity listed in terms of that section. In 2010, the Minister of Environmental Affairs published the List of Activities Which Result in Atmospheric Emissions Which Have or May Have a Significant Detrimental Effect on the Environment, including Health, Social Conditions, Economic Conditions, Ecological Conditions or Cultural Heritage under Government Notice No. 248 (“GN 248”), Gazette No.33064, dated 31 March 2010. GN 248 contains minimum emission standards for each of the NEMAQA listed activities and provides for compliance timeframes for the achievement of such emissions standards for existing and new plant.1
On 22 November 2013, the Minister promulgated a revised set of NEMAQA listed activities in terms of GN 893, GG 37054. Regulations 8, 9 and 10 of GN 893 deal with compliance time frames and read as follows:
(8) New plant must comply with the new plant minimum emission standards as contained in Part 3 from 01 April 2010.
(9) Existing plant must comply with minimum emission standards for existing plant as contained in Part 3 by 01 April 2015, unless where specified.
(10) Existing plant must comply with minimum emission standards for new plant as contained in Part 3 by 01 April 2020, unless where specified.
Regulation 11 of GN 893 provides that:
(11) As contemplated in the National Framework for Air Quality Management in the Republic of South Africa, published in terms of Section 7 of this Act, an application may be made to the National Air Quality Officer for the postponement of the compliance time frames in paragraphs (9) and (10) for an existing plant.
The application for postponement of timeframes must include the following:
- An air pollution impact assessment compiled by a person registered as a professional engineer or as a professional natural scientist;
- A detailed justification and reasons for the application; and
- A concluded public participation process undertaken as specified in the National Environmental Management Act 107 of 1998 Environmental Impact Assessment Regulations dated 2010.
These legal provisions are the context for Eskom’s current application, in terms of Regulation 11, for postponement of certain of its minimum emissions standards obligations, and it is this application that has caused some dissention within the ranks of civil society. Among the qualms expressed by civil society is that NEMAQA provides, specifically, for the enactment of regulations that will contribute to achieving an environment that is not harmful to health or well-being (a direct echo of the environmental right enshrined in section 24 of the Republic of South Africa Constitution Act No. 108 0f 1996), and that postponing emitting industries’ compliance with minimum emissions standards will delay achieving this goal. Given the very sensitive nature of applications for the postponement of NEMAQA listed activities’ compliance timeframes, industries intending to make such applications are advised to seek informed environmental legal guidance in this regard so as to ensure that the requirements for such an application are fully met.
- “existing plant” - unless where specified, shall mean any plant or process that was legally authorized to operate before 01 April 2010 or any plant where an application for authorisation in terms of the National Environmental Management Act, 1998 (Act No. 107 of 1998), was made before 01 April 2010; and
- “new plant” unless where specified, shall mean any plant or process where the application for authorisation in terms of the National Environmental Management Act 1998, (Act No. 107 of 1998), was made on or after 01 April 2010.