1. BASIC CONCEPTS - ELA | Environmental Law … · 2015-09-07 · 1 Basic concepts 2 Air quality ... NEW & EXISTING ACTIVITIES •Section 21, 22 & 61 AQA ... NEM:AQA: S21 listed activities

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Alignment with Air Quality

Legislation

Janice Tooley

Outline

1 Basic concepts

2 Air quality licensing requirements

3 Licensing Authorities

4 Integrated Licensing

5 Mining and Air Quality Management

6 NEM:AQA and NEMA

7 AQM in the One Environmental System?

8 Discussion

1. BASIC CONCEPTS

Section 24 Constitution: Environmental right

Everyone has the right to-

(a) an environment that is not harmful to their health or well-being; &

(b) have the environment protected, for the benefit of present and future

generations, through reasonable legislative and other measures that-

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources

while promoting justifiable economic and social development

Constitution: Schedule 4

CONCURRENT NATIONAL & PROVINCIAL LEGISLATIVE COMPETENCE

PART A: Environment Health services Pollution control

PART B: LOCAL GOVERNMENT

Air pollution

NATIONAL ENVIRONMENTAL MANAGEMENT: AIR QUALITY ACT 39 OF 2004 (“NEM:AQA”)

Preamble

WHEREAS:

• quality of ambient air in many areas of RSA not conducive to a healthy environment for the people living in those areas let alone promoting their social and economic advancement;

• burden of health impacts associated with polluted

ambient air falls most heavily on the poor;

Objects of NEM:AQA

• generally to give effect to section 24(b) of Constitution in order to enhance the quality of ambient air for the sake of securing an environment that is not harmful to the health and well-being of burden of health impacts associated with polluted ambient air falls most heavily on the poor;

Definition of ambient air quality

“ambient air” excludes air regulated by the Occupational Health and Safety Act, 1993

Ambient pollutants:

1. Sulphur Dioxide (SO2) 5. Benzene (C6H6)

2. Nitrogen Dioxide (NO2) 6. Lead (Pb)

3. Particulate Matter (PM10) 7. Carbon Monoxide (CO)

4. Ozone (O3) 8. Particulate Matter (PM2.5)

AIR QUALITY MANAGEMENT MEASURES

Measures

1.

Priority areas

2.

Listed activities

(AEL)

3.

Controlled emitters

4. Controlled

fuels

5.

Other measures (e.g. PP Plans)

6.

Dust

7.

Noise

8.

Offensive odours

NEM:AQA & NEMA RELATIONSHIP

• Application of NEMA ITO NEM:AQA provisions

• Direct NEMA application

• NEM:AQA = SEMA (Specific Environmental Management Act)

NEMA

Air Quality

AQA

NEW & EXISTING ACTIVITIES

• Section 21, 22 & 61 AQA – 1 April 2010

• New plant?

• Definition in GN 893

• When commission (commence) / conduct?

• Legally authorised / apply for EA under NEMA?


• Existing plant?


• Legally authorised APPA Registration Certificate?

• Provisional /full ?

• If provisional, apply & obtain provisional AEL by 1 April 2012

• If full, apply by 1 April 2013 & obtain AEL by 1 April 2014

2. LICENSING OF AIR QUALITY

“RELATED” ACTIVITIES

LICENSING TYPES

AQA S21 activities - Atmospheric Emission Licence (AEL) [AQA S22A – for activities conducted W/O AEL / APPA RC – AEL]

NEMA S24(2) listed activities - Environmental Authorisation (EA)

[NEMA S24G – for activities commenced W/O EA - EA ]

+

LICENSING TYPES

AQA S21 activities - Atmospheric Emission Licence (AEL)

[AQA S22A – for activities commenced W/O AEL / APPA RC – AEL]

NEM:WA S19 activities – Waste Management Licence (WML)

[NEMA S24G – for activities commenced W/O WML - WML ]

+

NEMAQA S21 Listed Activities (69)

1. Combustion Installations

2. Petroleum Industry, the production of gaseous and liquid fuels as well as petrochemicals from crude oil, coal, gas or biomass

3. Carbonization and Coal Gasification

4. Metallurgical Industry

5. Mineral Processing, Storage and Handling (excluded if located at mine)

6. Organic Chemicals Industry

7. Inorganic Chemicals Industry

8. Thermal Treatment of Hazardous and General Waste

9. Pulp and Paper Manufacturing Activities, including By-Products Recovery

10. Animal Matter Processing

NEMAQA S21 Listed Activities

Application process:

• NEMAQA Section 37

• Specialist air quality impact assessment study (Code of Practice for Air Dispersion Modelling)

AND

• NEMAQA Section 38

• 2014 EIA Regulations (2006 / 2010)

Appeal process: if licensing authority:

• National Minister / MEC: 2014 National Appeal Regulations (2010 EIA Regulations)

• Municipality: Municipal Systems Act

NEMA S24(2) Listed Activities

GN 983 Listing Notice 1: Activity No. 34

GN 984: Listing Notice 2: Activity No. 6


Application process: 2014 EIA Regulations (2006 / 2010)

Appeal process: 2014 National Appeal Regulations (2010 EIA Regulations)


The expansion or changes to existing facilities for any process or activity where such expansion or changes will result in the need for a permit or licence or an amended permit or licence in terms of national or provincial legislation governing the release of emissions or pollution,

excluding-

(i) where the facility, process or activity = listed WM activities; or

(ii) expansion of or changes to existing facilities for treatment of effluent, wastewater or sewage where capacity increased by less than 15 000 m3 /day.


The development of facilities or infrastructure for any process or activity which requires a permit or licence in terms of national or provincial legislation governing the generation or release of emissions, pollution or effluent, excluding:

(i) activities which are identified and included in Listing Notice 1 of 2014;

(ii) Activities included in the list of waste management activities published ITO NEMWA; or

(iii) development of facilities or infrastructure for treatment of effluent, wastewater or sewage with daily throughput capacity of 2000 m3 or less


Commencing of an activity, which requires an AEL in terms of S21 of AQA,

excluding -

(i) activities which identified & included in Listing Notice 1 of 2014;

(ii) activities included in the list of waste management activities in terms of NEMWA; or

(iii) the development of facilities or infrastructure for treatment of effluent, wastewater or sewage with daily throughput capacity of 2000 m3 or less

NEM:WA S19 waste management activities

GN 921: listed waste management activities

• Category A

• Category B

• (Category C)

Application process: 2014 EIA Regulations (2006 / 2010)

Appeal process: 2014 National Appeal Regulations (2010 EIA Regulations)

GN 921: Category A listed WM activities

• Treatment of waste

(6) general waste using any form of treatment - facility with process capacity in excess of 10 T but < 100 T

(7) hazardous waste using any form of treatment – process capacity > 500kg but < 1 T day-1 excl. treatment of effluent, wastewater or sewage

• Construction, expansion or decommissioning of facilities & associated structures & infrastructure

(12) construction of facility for Category A waste management activity

(13) expansion of Category A or B waste management activity listed

(14) decommissioning of Category A or B for waste management activity facility

GN 921: Category B listed WM activities

Category B:

• Treatment of waste

(4) treatment of hazardous waste > 1T day-1 (monthly average)

(6) treatment of general waste > 100 T day-1 (monthly average)

• Construction of facilities and associated structures and infrastructure

(10) construction of a facility for a Category B waste management activity

“treatment” means any method, technique or process that is designed to- (a) change the physical, biological or chemical character or composition of a waste; or (b) remove, separate, concentrate or recover a hazardous or toxic component of a waste; or (c) destroy or reduce the toxicity of a waste, in order to minimise the impact of the waste on the environment prior to further use or disposal;

3. LICENSING AUTHORITIES

Licence type Non-mining activity Mining

AEL (new)

NEMAQA S36

National DEA (unless agreed otherwise) DEA

AEL (transfer, variation,

review, renewal)

District / Metro Municipality Provincial environmental authorities National DEA

DEA

S22A AEL National DEA (unless agreed otherwise)

DEA

EA / S24G EA Provincial environmental authorities National DEA

DMR

WML / S24G WML Provincial environmental authorities National DEA

DMR

4. INTEGRATED LICENSING

Integrated Licensing

• NEMAQA S36(6):

Minister = licensing authority for AEL, & competent authority for EA / WML may issue integrated authorisation for listed activities under AQA & NEMA / NEMWA

• NEMA S24C(2)

• NEMWA S43(1)

5. MINING & AIR QUALITY

MANAGEMENT

When is an activity a mining activity?

1. What is a mine?

2. What is mining?

- NEM:AQA MHSA

- NEMA MPRDA

- NEM:WA (MPRDA)

NEM:AQA: S21 listed activities (GN 893)

1. Combustion Installations

2. Petroleum Industry, the production of gaseous and liquid fuels as well as petrochemicals from crude oil, coal, gas or biomass

3. Carbonization and Coal Gasification

4. Metallurgical Industry

5. Mineral Processing, Storage and Handling

6. Organic Chemicals Industry

7. Inorganic Chemicals Industry

8. Thermal Treatment of Hazardous and General Waste

9. Pulp and Paper Manufacturing Activities, including By-Products Recovery

10. Animal Matter Processing

Mine Health and Safety Act 29 of 1996

“mine” (noun) (i) any borehole, or excavation, in any tailings or in the earth, made

searching for or winning a mineral, whether it is being worked or not; or

(ii) any other place where a mineral deposit is being exploited, incl. mining area and all buildings, structures, machinery, mine dumps, access roads or objects situated on or in that area that are used or intended to be used in connection with searching, winning, exploiting or processing of a mineral, or for health and safety purposes; or

(iii) a works;

Mine Health and Safety Act 29 of 1996

“processing” means the recovering, extracting, concentrating, refining, calcining, classifying, crushing, milling, screening, washing, reduction, smelting or gasification of any mineral, and “process” has a similar meaning; “works” means any place, excluding a mine, where any person carries out -

(a) transmitting and distributing to another consumer any form of power from a mine to the terminal point of bulk supply or to the power supply meter on consumer’s premises;

(b) training at any central rescue station; or (c) the making, repairing, re-opening or closing of any subterranean

tunnel; or (d) any operations necessary or in connection with any of the operations

listed in this paragraph

NEMA: S 1 definitions

“mine” has the meaning assigned to it in section 1 of the Mineral and Petroleum Resources Development Act, 2002;

MPRDA: S1 definitions

“mine” (noun)

(i) any excavation in earth and any borehole, whether being worked or not, made for searching for or winning a mineral;

(ii) any other place where mineral resource extracted, incl. mining area and all buildings, structures, machinery, residue stockpiles, access roads or objects situated on such area and which are used or intended to be used in connection with such searching, winning or extraction or processing of such mineral resource; and

“mine” (verb) mining of any mineral, in or under the earth, water or any residue deposit, whether by underground or open working or otherwise and includes any operation or activity incidental thereto, in, on or under the relevant mining area;


“processing” in relation to any mineral, means the winning, extracting, concentrating, refining, calcining, classifying, crushing, screening, washing, reduction, smelting or gasification thereof; “mineral” means any substance, whether in solid, liquid or gaseous form, occurring naturally in or on the earth or in or under water and which was formed by or subjected to a geological process, and includes sand, stone, rock, gravel, clay, soil and any mineral occurring in residue stockpiles or in residue deposits, but excludes - (a) water, except if taken from land or sea for extraction of any mineral from water; (b) petroleum; or (c) peat;


“beneficiation”, in relation to any mineral resource, means the following-

(a) primary stage, which includes any process of the winning, recovering, extracting, concentrating, refining, calcining, classifying, crushing, screening, washing, reduction, smelting or gasification thereof; = definition of processing

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - (b) secondary stage, which includes any action of converting a concentrate or mineral

resource into an intermediate product; (c) tertiary stage, which includes any action of further converting that product into a

refined product suitable for purchase by minerals-based industries and enterprises; and

(d) final stage, which is the action of producing properly processed, cut, polished or manufactured products or articles from minerals accepted in the industry and trade as fully and finally processed or manufactured and value added products or articles;


“mining area” - (a) in relation to mining right or mining permit = area on which the extraction of any

mineral has been authorised and for which right or permit is granted; (b) in relation to any environmental, health, social and labour matter and any residual,

latent or other impact thereto, including- (i) any land or surface adjacent or non-adjacent to the area but upon which related

or incidental operations undertaken; (ii) any surface of land on which such road, railway line, powerline, pipe line,

cableway or conveyor belt is located, under the control of the holder of mining right or mining permit and which such holder is entitled to use in connection with the operations performed or to be performed under such right or permit;

(iii) all buildings, structures, machinery, residue stockpiles, or objects situated on or in the area as contemplated in subsections (ii)(a) and (ii)(b).

NEMWA: S 1 definitions

“residue stockpiles” & “residue deposits” has the meaning assigned to it in section 1 of the Mineral and Petroleum Resources Development Act, 2002;

Other mining terminology used in NEMWA but not defined: • prospecting • exploration • mineral • petroleum resource • extraction • primary processing

Mining and AQA

• Particulate matter (PM10 & PM2.5 - health) vs dust

(nuisance) • Dust control (residue deposits & stockpiles) • Priority areas (dust) • Notification of pre-closure rehabilitation (within

5 years prior to closure) • MPRD Regulations - remnant provisions • Priority areas

6. NEM:AQA & NEMA

RELATIONSHIP

AQA & NEMA

• NEMA through NEM:AQA:

• e.g. S1 Definitions environment & pollution; NEMA S2

principles

• NEMA: direct application

• e.g. S28: duty of care; S 30: control of incidents

• NEM:AQA = SEMA (Specific Environmental Management Act)

• e.g. 24L EA alignment; S31A-Q: Enforcement, EMIs,

compliance notices

7. AIR QUALITY MANAGEMENT &

ONE ENVIRONMENTAL SYSTEM

One Environmental System Agreement

Ministers: Environmental Affairs + Mineral Resources + Water

“One Environmental System” includes mining:

• all environmental aspects regulated under NEMA

• Minister of EA sets regulatory framework

• Minister of MR implements regulatory provisions - mining

• Minister of MR = competent authority (issues EAs) - mining

• Minister of EA = appeal authority - all

• Agreement on timeframes (300 days)

One Environmental System Agreement

• Duplication, lack of integration streamline licensing and

regulation

BUT ....

• S156 of Constitution: municipalities have executive authority & right to administer local government matters in Schedule 4 and 5

• Air pollution = local government matter (Schedule 4)

• Constitutional for DEA to issue AELs?

8. DISCUSSION

CONTACT DETAILS

Thank You

Janice Tooley (Partner)

Environmental and Clean Energy Law Department

Shepstone & Wylie Attorneys

Tel: (031) 575 7212 Cell: 082 450 5671 [email protected]

24 Richefond Circle, Ridgeside Office Park

Umhlanga Rocks, KwaZulu-Natal

www.wylie.co.za

1. BASIC CONCEPTS - ELA | Environmental Law … · 2015-09-07 · 1 Basic concepts 2 Air quality ... NEW & EXISTING ACTIVITIES •Section 21, 22 & 61 AQA ... NEM:AQA: S21 listed activities

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