In terms of section 29 of the National Environmental Management: Air Quality Act 39 of 2004 ("NEMAQA"), which provides for pollution prevention plans: "(1) the Minister of Environmental Affairs (the "Minister") may by notice in the Gazette:
(a) declare any substance contributing to air pollution as a priority air pollutant; and
(b) require persons falling within a category specified in the notice to prepare, submit to the Minister or MEC1 for approval, and implement pollution prevention plans in respect of a substance declared as a priority air pollutant in terms of paragraph (a).
(2) The Minister or MEC may, by written notice to a person conducting a listed activity which involves the emission of a substance declared as a priority air pollutant, require that person to prepare, submit to the Minister or MEC for approval and implement a pollution prevention plan, whether or not that person falls within a category specified in terms of subsection (1)(b).
(3) Pollution prevention plans must comply with such requirements as may be prescribed by the Minister or MEC."
On 14 March 2014, the Minister gave notice in the Government Gazette of her intention to declare a basket of six greenhouse gases as priority air pollutants and to require any person falling within the specified category to prepare and submit for approval, a pollution prevention plan under section 29(1), read with section 57(1) of NEMAQA ("Proposed Declaration of Greenhouse Gases as Priority Air Pollutants"). The Proposed Declaration of Greenhouse Gases as Priority Air Pollutants lists the substances listed below as priority air pollutants. These substances are also listed in Annex A to the Kyoto Protocol to the United Nations Framework Convention on Climate Change as greenhouse gasses requiring reduction as part of the global response to climate change. Kyoto also lists Nitrogen Trifluouride which is not included in the NEMAQA list. The following substances are proposed to be declared Priority Air Pollutants:
- Carbon Dioxide (CO2);
- Methane (CH4);
- Nitrous Oxide (N2O);
- Hydroflurocarbons (HFCs);
- Perfluorocarbons (PFCs); and
- Sulphur hexafluoride (SF6).
The Minister has also given notice in the Government Gazette of her intention to publish the national pollution prevention plans regulations, under section 29(3), 53(o), and (p) read with section 57(1) (a) of NEMAQA ("Draft Pollution Prevention Plans Regulations"). In terms of the said regulations, a pollution prevention plan must include the following information:
"(a) Full details of the person;
(b) Full contact details;
(c) Full description of the activity;
(d) Details of the current methods used by the person to monitor and measure greenhouse gas emissions and any plan to improve such monitoring and measurement in the future; and
(e) Measures on how and over what period the person will reduce the greenhouse gas emissions."
Pollution prevention plans are one of the mechanisms for enhanced air quality management included in NEMAQA. In terms of section 29 of NEMAQA, read with the Draft Pollution Prevention Plans Regulations, pollution prevention plans must be submitted to the Minister or the MEC for approval by 31 March 2015 and every five years thereafter. Furthermore, the Draft Pollution Prevention Plans Regulations prescribe that a progress report towards the implementation of the pollution prevention plan be submitted to the Department by 31 March each year for the preceding calendar year. Upon the receipt of the pollution prevention plan or progress report on the approved pollution prevention plan, the Department must, within 60 days after acknowledgement of receipt of the pollution prevention plan or progress report on the approved pollution prevention plan, either accept the pollution prevention plan or progress report of the pollution prevention plan.
The Draft Pollution Prevention Plans Regulations are currently set to come into effect on 31 March 2015, which is also the deadline for the submission of the initial set of pollution prevention plans. The failure to submit a pollution prevention plan is an offence which is punishable by a fine or imprisonment, and in certain instances, by both.
These draft regulations, combined, are also the next step in the process of building the legal regime that will underpin the carbon tax. Both Treasury and the Department of Environmental Affairs have clearly indicated that the declaration of greenhouse gasses as priority air pollutants combined with the obligation to devise and implement a pollution prevention plan will be the legal mechanism used to require monitoring and reporting of emissions for the purposes of the carbon tax.
The draft regulations provide for a thirty day comment period which will close on 14 April 2014. To view the draft regulations [click here]. Clients are invited to contact the authors in the event that there are any queries in relation to the draft regulations or the process for submitting comments in respect thereof.
1 NEMAQA defines "MEC" as "the member of the Executive Council of a province who is responsible for air quality management in the province."
2 NEMAQA defines "Department" as "the Department of Environmental Affairs and Tourism.
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