Environmental Affairs on Eskom application for Air Quality Standards for power stations

Department of Environmental Affairs receives Eskom application for Air Quality Standards for sixteen power stations

The Department of Environmental Affairs (DEA) would like to confirm that Eskom has submitted postponement applications for sixteen of its power stations. The applications reached the DEA on 27 February 2014.

The Department of Environmental Affairs on 4 December 2013, announced that communication had been made to Eskom regarding the legal provisions which could be used with regard to its failure to comply to Minimum Emission Standards.

The department is committed to ensuring that the Constitutional rights of South Africans to an environment that is not harmful to health and well-being are always taken into consideration, while ensuring that economic growth is not hampered.

In essence, although Section 59 of the National Environmental Management: Air Quality Act (AQA) provides for any person to apply for exemptions to provisions of the Act, it is clear that no exemptions may be granted from a provision of section 22 (Atmospheric Emission License), among others.

However, the Section 21 Notice of the AQA presents an opportunity for any operator (including Eskom) to submit an application for the postponement of the compliance time frames to the National Air Quality Officer at the National Department of Environmental Affairs. The postponement of the compliance timeframes may be granted for a period of 5 years per postponement. Eskom had been advised to explore this regulatory opportunity to address this matter.

It must be noted that the Department of Environmental Affairs has put in place legislative tools to protect the right of all in South Africa to clean air. The National Environmental Management: Air Quality Act 39 of 2004 (NEMAQA) and its National Framework, Notices and Regulations are such tools.

In particular, the objectives of the NEMAQA are to protect the environment by providing reasonable measures for: (a) the protection and enhancement of the quality of air in the Republic; (b) the prevention of air pollution and ecological degradation; and (c) securing ecologically sustainable development while promoting justifiable economic and social development; and generally to give effect to Section 24(b) of the Constitution of the Republic of South Africa (1996) 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 people.

The NEMAQA, through Government Notice No. 893 (Government Gazette No: 37054) of 2013, published in terms of Section 21 of the Act, prescribes Minimum Emission Standards for various industrial activities which result in atmospheric emissions that have or may have a significant detrimental effect on the environment including health, socio-economic conditions, ecological condition or cultural heritage.

It is important to note that the development of the Section 21 Notice constituted elaborate public consultation and participation processes in terms of Section 56 and 57 of the NEMAQA. All affected stakeholders (industries, non-governmental organizations, etc) were part of these processes and they made contributions regarding limits that are achievable with the view of upholding the constitutional right of all people in the country to an environment that is not harmful to health and well-being.

The Section 21 Notice of the AQA published makes provision for facilities that conduct listed activities to submit an application for the postponement of the compliance time frames to the National Air Quality Officer at the National Department of Environmental Affairs. The postponement of the compliance timeframes may be granted for a period of 5 years per postponement.

The table below shows the power stations for which applications for postponement of compliance timeframes have been lodged:

The standard operating procedure for the processing of these applications can be viewed here. 

The department must consider all applications lodged according to the legal framework. This does not mean that all applications will receive positive responses. All decisions made will be in line with the department’s constitutional mandate to give effect to Section 24 (b) 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 people.

However, it is important to note that air quality problems in South Africa are not limited to industrial emissions. There are other significant sources of pollution, for example, domestic coal combustion, mechanically generated dust and motor vehicles.

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