These draft Regulations have been published for comment in terms of the National Environmental Management: Air Quality Act No. 39 of 2004 ("NEMAQA"). The purpose of the draft Regulations is to regulate the reporting of data and information from identified point, non-point and mobile sources of atmospheric emissions to an internet-based National Atmospheric Emissions Inventory System ("NAEIS") with a view to the compilation of atmospheric emission inventories, including the national greenhouse gas inventory.
The draft Regulations have implications for the transparency of emissions reporting and are also linked to the developing legal regime applicable to the proposed carbon tax.
The following definitions in the draft Regulations are important:
- "emission inventory" means "an accounting of the amount of pollutants discharged into the atmosphere and it contains the total emissions for one or more specific greenhouse gases and air pollutants originating from all sources in a certain geographical area and within a specified time span" - (please note the reference to greenhouse gas); and,
- "National Atmospheric Emission Inventory System" or "NAEIS" means "the internet-based emissions reporting system which is a component of the South African Air Quality Information System".
Obligations include that:
- Certain persons (listed below) must report annually into NAEIS in respect of the air pollutants that they generate, in a prescribed format.
- The relevant authority must be notified of changes to ownership of emitting facilities or where such facilities are transferred.
- The accuracy of reporting must be verifiable.
Non-compliance with these (and other) obligations is an offence with the following penalties being applicable (5 years/R 10 million – 10 years/R 10 million).
The draft Regulations provide for the making public of the information provided to the NAEIS provided such publication is subject to the protections afforded by the Promotion of Access to Information Act (PAIA).
The following persons will be required to report in terms of these Regulations:
A. Listed activities:
- Any person/entity who/that undertakes a NEMAQA air quality-related listed activity.
B. Controlled emitters:
- Any person/entity who/that undertakes a NEMAQA listed activity and uses an appliance or conducts an activity that has been declared a controlled emitter. To date small boilers, asphalt and temporary asphalt plants have been declared as controlled emitters.
- Any relevant air quality officer receiving emission reports in terms of section 23 of NEMAQA (a section 23 notice declares a controlled emitter)
- Any person/entity who/that holds a mining right or permit in terms of the MPRDA.
D. Facilities with criteria pollutants:
- Any person/entity that operates facilities which generate criteria pollutants and who do not report under A or B, in accordance with the applicable municipal by-law. Criteria pollutants are those for which national ambient standards are prescribed in Schedule A to NEMAQA.
Implications of the draft Regulations
Considering that the NEAIS will be internet-based and accessible to the public, the draft Regulations have implications for transparency around industrial emissions. Various civil society organisations are currently very vocal about air quality and the related health issues, and NEAIS will be a further means for such entities to access information relating to the emissions of specific industries.
There is no emissions threshold for the application of the draft Regulations, i.e., if promulgated they would apply to all emitters. This is different from the draft National Prevention Plan Regulations (GG 37421 of 14 March 2014), which provide that entities emitting in excess of 0.1 mtCO2e of six, named greenhouse gasses will be required to devise pollution prevention plans in respect of such greenhouse gasses. The nascent carbon tax legal regime anticipates that entities emitting in excess of 0.1 mtCO2e will be liable for the carbon tax. However there is currently no comprehensive, formal reporting detailing industrial emissions, greenhouse or otherwise, in South Africa. The annual reporting under the Carbon Disclosure Project (www.cdp.net) is voluntary and limited to listed companies. While the Department of Environmental Affairs is also developing the National Greenhouse Gas Inventory which was published for a sixty day comment period on 6 June (see: www.saaqis.org.za and GG 37701 of 6 June 2014), it is interesting to note that the NAEIS will also contain information on greenhouse gas emissions (refer to the abovementioned definition of NEAIS).
It is submitted, therefore, that the mechanism set out in the draft Regulations will be used to determine which entities emit in excess of 0.1 mtCO2e for the purposes of such industries devising pollution prevention plans and for the purposes of determining which entities will be liable for the carbon tax. There are various reasons for this submission, including the conceptual linkage between the air quality management legal regime and the proposed carbon tax, particularly the need for various nascent institutional and administrative processes within the former to be operationalized to serve the needs of the latter.
Members of the public are invited to submit to the Minister, within 30 days of publication of the draft Regulations, written representations on or objections to the draft Regulations to the following addresses;
By post: The Director-General: Department of Environmental Affairs
Attention: Adv Avnantodi Munyal
Private Bag X447
By hand: 2nd Floor (Reception), North Tower, Fedsure Forum Building, 315 Pretorius, Street, Pretoria.
By email: firstname.lastname@example.org
By fax: 012 320 0488.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.