Public participation process on matters arising from applications for: suspension and postponement of compliance with minimum emission standards (MES) and; issuance of provisional atmospheric emission licences (PAEL)

Introduction and background

Section 24 of the Constitution of the Republic of South Africa, 1996 provides for the right to an environment that is not harmful to the health or well-being of people and to have the environment protected for the benefit of the present and future generations. To give effect to these rights in the context of air quality, the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004) (NEMAQA) was promulgated to provide reasonable measures for the protection and enhancement of the quality of air in the Republic of South Africa; the prevention of air pollution and ecological degradation; and securing ecological sustainable development while promoting justifiable economic and social development.

Section 21 of the NEMAQA requires the minister responsible for the environment (the minister) to publish a list of activities which result in atmospheric emissions and which the minister reasonably believes have or may have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage. Once identified, these activities are known as listed activities and companies require an atmospheric emission license (AEL) to conduct them. Section 21 further requires the establishment of minimum emission standards (MES) for specified pollutants or mixture of substances resulting from the listed activities.

Companies that could not meet the prescribed MES within the legislated timeframes could apply for the postponement of the compliance timeframes to the national air quality officer (NAQO). During 2019, the NAQO received the last applications for postponements and suspensions to comply with the new plant standards and applications for provisional atmospheric emissions licences (PAELs). The NAQO granted some of the applications for postponement and suspension with the MES and some of the applications for PAELs and refused others. These decisions lead to a number of appeals, namely those seeking to appeal the NAQO’s decisions to grant the applications, and those seeking to appeal. Consequently, the minister must consider various and conflicting grounds of appeal within the context of section 24 of the Constitution and the socio-economic conditions in the country.

The purpose of the consultative process

Due to the complex nature of the issues arising from these matters, the minister is of the view that a comprehensive consultative process is required to address the issues emanating from the various applications for suspension and/or postponement of compliance from the timeframes of the MES and/or for the issuance of PAELs. The minister, acting in terms the National Environmental Management Act, 1998 (Act No. 107 of 1998) (NEMA), invoked section 3A of NEMA to establish a National Environmental Consultative and Advisory Forum (NECA Forum). The purpose of the NECA Forum is to conduct an extensive consultative process with all interested and affected parties (I&APs), to assess and present relevant research and analysis for review and interrogation and to develop a comprehensive report to the minister on the outcome of the forum. The report will provide the Minister with practical solutions to resolve the issues arising in respect of the non-compliance with the MES, including the related appeals, and applications for the issuance of PAELs.

The public participation process will entail public meetings and I&APs will also have an opportunity to submit written comments and representations. A period, from 15 October 2022 to 31 January 2023, is provided for all I&APs to review and submit comments regarding this process, the applications for postponement/suspension, including the related appeals and the applications for the issuance of PAELs.  All written comments and representations must be submitted by 31 January 2023.

Schedule of events

All I&APs are invited to public meetings as per the schedule below. 

Enquiries

Should I&APs require assistance in accessing the documentation or to obtain further information and/or to submit comments and written presentations, please contact:
Dr Vincent Gololo
Tel 012 399 9203
E-mail: vgololo@dffe.gov.za.