Air Quality Compliance Under SA’s New GNU

Video Transcription (from YouTube)

As an operator of an Air Quality Listed Activity or Controlled Emitter, are you wondering whether the new DA leadership of the DFFE will be more lenient, or stricter, in enforcing the Minimum Emissions Standards (MES) at your facility? Are you wondering what will happen when the postponements come to an end in March 2025? And have you thought of applying for alternative emissions limits under section 12A?

We have been wondering!

So we watched many hours of the Presidential Climate Commission (PCC) meetings. We read South Africa’s Low Emissions Development Strategy (SA-LEDS) and Climate Change Act. We reviewed the DFFE’s 100 days in office. We engaged the eThekwini municipality on their progressive emissions bylaw which proposes stricter limits than the national MES for smaller appliances and which could open the floodgates for all municipalities to set their own emissions limits on any appliances. Most importantly, we engaged the DFFE, putting our questions to them and discussing recent trends in air quality compliance. In today’s short video, we want to share what we learned with you.

In a rather unscripted fashion, Dr Dion George, the new Minister of the DFFE describes his approach to the MES in this short clip:

“The fact is that our air is not clean enough. I have constitutional obligations which I take very seriously.

Nobody wants filthy air, obviously.

If we could all wave a magic wand we would, but we can not, so yes there are exemptions to emissions and I will have to exercise my mind, in a reasonably close time frame. My view very simply is: you can not forever give exemptions, because then nothing will ever get done.

So, what needs to happen is that there needs to be pressure, but the pressure needs to be ‘enough’.

What does ‘enough’ mean?

It means that there needs to be pressure for movement, but not pressure to break anything, because then nothing will happen. So that’s the fine balance that needs to be found. But I can assure you of my 100% commitment.

We want clean air.”

Dr Dion George’s approach is very reasonable, but stronger than we have seen under previous administrations. That said, Dr George’s resolute stance seems to be undermined by a growing wave of Section 12A applications. Section 12A allows companies to motivate for alternative emissions limits to indefinitely extend non-compliance with the new emissions limits (not the existing limits).

To understand 12A, let’s take a look at the legislation itself. In 2010, on the back of the National Environmental Management Air Quality Act of 2004, a list of activities which result in atmospheric emissions was produced. Many of you will be familiar with this list, and this specific version of the legislation, Government Notice 893 of 2013, which stood for a long time as the most current version. Clause 11 of this legislation said that an application may be made to the National Air Quality Officer (NAQO) for the postponement of the compliance timeframes in paragraphs 9 and 10 above, for existing plant. I want to draw your attention to the fact that it is only existing plant.

If we go to the definitions at the start of the legislation, we will see that existing plant is defined “as any plant or process that was legally authorised to operate before the 1st of April, 2010.” So, if the factory or the particular process was already running prior to April 2010, then there is the possibility, or there existed the possibility, to apply for a postponement of the minimum emission standards.

Let’s see what points 9 and 10 say. Firstly, they reinforce that it is only existing plants that may apply. They say “existing plant must comply with the minimum emission standards for existing plant by 2015”. “Existing plants must comply with the minimum emission standards for new plant by 2020.” This original version of the legislation basically said that you could make a postponement of either the existing or the new emissions limits. Then in 2018, the legislation was revised. The first important thing to note was point 11D, which said “no postponement of compliance timeframes, or a suspension of compliance timeframes, shall be granted for compliance with the minimum emission standard for existing plants”. In other words, in order to apply for a postponement, you need to be an existing plant. You need to have been in operation prior to April 2010. But you couldn’t apply for a postponement of the existing limits, only the new limits.

And one will remember if one is familiar with the listed activities legislation (and if one goes to any of the listed activities, for example, the very first one here: 1.1) there are a set of new activities’ limits and a set of existing limits for each pollutant: particulate matter (PM), sulphur dioxide (SO₂), oxides of nitrogen (NOx). So basically in 2018, clause 11D stipulated that no facility could apply for a postponement of the old existing limits, which makes a lot of sense. However, regarding the new stricter limits, a postponement could be applied for if you were an older existing plant.

Then a few additional clauses: 11A, B and C were added. 11A said that a postponement had to be once off, that it could not exceed a period of five years, and would not be applicable beyond the 31st of March unless your plant was due to be decommissioned before the 31st of March 2030 – in which case then the postponement could last all the way until 2030. But clause 11C went on to say that if you are going to decommission your plant and carry on operating all the way till 2030, you must at the very least be compliant with the minimum emission standards for existing plant.

Clause 12A was then fleshed out as follows: “An existing plant may actually submit an application regarding a new plant standard to the National Air Quality Officer for consideration if the plant is in compliance with other emission standards but cannot comply with a particular pollutant or pollutants.” In other words, if you are compliant with just one of the emissions limits for one pollutant then you qualify. “An application must demonstrate a previous reduction in emissions of the said pollutant or pollutants, measures, and direct investments implemented towards compliance.” Then the National Air Quality Officer may grant an alternative emissions limit.

But there are a couple of provisos. Firstly, the ambient air quality in the area needs to be of sufficient quality or an Atmospheric Impact Report (AIR) needs to show that there wouldn’t be a material increased health risk due to this alternative emissions limit.

So what does all this mean for you? It means that:

• if your listed activity was legally authorized to operate before 01st April 2010,
• if you are compliant with the new emissions limit for at least one pollutant,
• if you can show that you have somewhat reduced the emissions of the other pollutants that remain non-compliant, and
• if ambient monitoring reveals that air quality in your area is compliant with the national ambient air quality limits (NAAQS) for those pollutants, or an AIR reveals that there is no significant increased health risk,

then you may apply for an alternative emissions limit. And we have seen companies that meet these requirements applying to the DFFE for alternative emissions limits. But please do discuss this with Yellow Tree first should you feel that it is a route that you wish to pursue.

There is the risk that if challenged in court, by say the Centre for Environmental Rights, clause 12A could be ruled against, and that would establish case precedent and pave the way for alternative limits to be revoked for other atmospheric emissions license (AEL) holders. In our conversation with the DFFE it became clear that clause 12A was not intended to stand alone, but to somehow tie into existing postponements. Nonetheless, at the moment it does stand alone, and it is being used by companies to apply for 12A alternative limits.

But, it is important to share with you that some 12A applications have been declined by the National Air Quality Officer. Basically, the DFFE recommends that if a 12A application is to be given a good chance of being granted, companies should commit to a clear end-date, rather than exploiting the open-ended nature of the clause and asking for an indefinite postponement.

Now, on the topic of postponements, the Environmental Management Inspectorate [EMI] (aka Green Scorpions) will be focusing on air quality in 2025, clamping down on emissions exceedances arising from the lapsing of postponements in March 2025. It was actually the EMI that led to the prosecution and subsequent fining of Sappi last year for sulphur dioxide (SO₂) exceedances as a listed activity. The final fine was R 8 million, but some conversations that we have had indicate that the original fine that was sought may have been as high R 100 million. Regardless, it is evident that air quality is in the spotlight.

And the focus on Air Quality is evident even at a municipal level, with cities aware of their mandate to reduce air borne pollutants. The eThekwini municipality, for example, is non-compliant with the NAAQS limit for PM_2.5. PM_2.5 consists of tiny particles that penetrate deep into the lungs and enter straight into the bloodstream, causing respiratory issues, heart disease, cognitive decline, and increased risks of cancer, especially in vulnerable groups like children and the elderly.

Recently eThekwini issued their Controlled Fuels Policy for public comment. This policy requires all operators of fuel burning appliances (FBAs) in the municipality to calculate and report their energy conversion efficiency. FBA’s larger than 0.5 MW must measure carbon monoxide (CO) and oxygen (O₂) daily, conduct tune-ups every two years, and report to the municipality. The bylaw imposes various emissions limits for SO₂ and PM for FBA’s falling into one of two categories, those between 1 and 3 MW; and those > 3MW, both of which are very low thresholds meaning most appliances are caught in the net. There is a NOx limit proposed for those appliances with a combined Net Heat Input exceeding 30 MW. Appliances larger than 3MW must perform stack emissions sampling in the second year of policy implementation, which we can assist with.

So in summary, what does 2025 hold for South African industry by way of air quality compliance?

1. The postponements will fall away in March next year,
2. The EMI will begin policing industry more strictly seeking opportunities to fine for non-compliance with the new MES,
3. Section 12A applications are possible provided that one meets the criteria and holds them with an open hand knowing that if contested in court, they may not hold up,
4. Municipalities are likely to consider imposing their own emissions limits in the years ahead, and stipulating daily CO and O₂ measurements.
5. And finally of the 6 or so pillars that the new DA-led DFFE is focusing on, climate change is the first and foremost. The MES pertain to acute pollutants like PM, SO₂, NOx, and Poly Aromatic Hydrocarbons (PAHs) whereas the focus of climate change is GHGs such as carbon dioxide, methane, N₂O, SF₆. These are separate groups of pollutants regulated by separate legislation, but, there is an obvious correlation between the two groups, and most emitters of GHGs also emit acute pollutants and are therefore listed activities with atmospheric emissions licenses. So, like it or not, the DFFE’s focus on climate change will spill over to the MES over the next five years.

We are here to help, and our team at Yellow Tree would love to support you with your atmospheric emissions licenses (AELs), air dispersion modelling (ADM), stack sampling, GHG submissions, carbon tax or decarbonisation studies.