Section 21 NEM:AQA Minimum Emissions Standards - For Public Comment: dated December 2014

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1 Cape Town Office 3 rd Floor Greenmarket Place 54 Shortmarket Street Cape Town 8001 South Africa PO Box 5227 Cape Town 8000 South Africa Tel: (021) Fax: (021) Website PBO No NPO No Your Ref: Our Ref: 30 th January 2015 Department of Environmental Affairs Air Quality P O Box 313 Pretoria tnmdluli@environment.gov.za Att: Dr Thuli Mdl Dear Dr Mdluli RE: SUBMISSION ON SASOL APPLICATIONS FOR ADDITIONAL POSTPONEMENT OF COMPLIANCE WITH TIME FRAMES FOR MINIMUM EMISSION STANDARDS (MES) UNDER SECTION 21 OF THE NATIONAL ENVIRONMENTAL MANAGEMENT AIR QUALITY ACT (AQA) We make this submission on behalf of the South Durban Community Environmental Alliance, the Tableview Residents Association, groundwork, Vaal Environmental Justice Alliance, the Greater Middleburg Residents Association, the Habitat Foundation, and Captrust. Our clients are interested and affected parties in regard to the several applications for postponement brought by Sasol companies in respect of the time frames for compliance with minimum emission standards (MES) published in terms of section 21 of the National Environmental Management Air Quality Act 39 of 2004 (AQA). Our submissions were prepared with technical assistance from Professor Eugene Cairncross, chemical engineer and Dr M Chernaik. We submit our clients objections to and comments on the applications for additional postponement of compliance with the timeframes for the MES brought by (i) (ii) Sasol Chemical Industries (Pty) Limited operating through its Sasolburg Operations, formerly Sasol Infrachem, a division of Sasol Chemical Industries (Pty) Limited by Sasol Infrachem; 1 (hereinafter referred to as the Infrachem application ) Sasol Chemical Industries (Pty) Limited, operating as Secunda Synfuels Operations, formerly Sasol Synfuels (Pty) Limited; Sasol Oil (Pty) Limited; Sasol Chemical Industries (Pty) 1 Final Motivation for the Additional Postponement of Compliance Timeframes in terms of Regulation 11 of the Section 21 NEM:AQA Minimum Emissions Standards - For Public Comment: dated December 2014 National Office: Cape Town: Durban: Grahamstown: Johannesburg: : Constitutional Litigation Unit: J Love (National Director), K Reinecke (Director: Finance), EJ Broster S Magardie (Director), A Andrews, S Kahanovitz, WR Kerfoot, C May, M Mudarikwa, HJ Smith FB Mahomed (Acting Director), A Turpin S Sephton (Director), C McConnachie N Fakir (Director), T Mbhense, C van der Linde, J Brickhill (Head of CLU), M Bishop, G Bizos SC, T Ngcukaitobi, S Nindi, A Singh, M Wheeldon, W Wicomb

2 2 Limited, operating as Secunda Chemicals Operations, formerly Sasol Solvents, a division of Sasol Chemical Industries (Pty) Limited; Sasol Chemical Industries (Pty) Limited, operating as Sasol Group Services, formerly Sasol Group Services, a division of Sasol Chemical Industries (Pty) Limited. 2 (hereinafter referred to as the Synfuels application ) All these companies will be referred to hereafter as Sasol. This submission consists of two documents: (i) (ii) Comments on final applications for additional postponement submitted by SRK consulting on behalf of the abovementioned Sasol companies. ANNEXURE A: Detailed responses to the comments and responses report provided by SRK Consulting for the Infrachem and Synfuels draft applications for additional postponements. This annexure is divided into two tables, the first addressing the comments and responses table for the Infrachem application and the second addressing the Synfuels application. Since many of the issues recorded in the comments and responses table for Infrachem are also included in the comments and responses table for Synfuels these issues will not be repeated but must be read as having been made in respect of the latter document. Similarly the issues raised in the submission below are addressed where they appear in the documents relating to Infrachem. However the same arguments are made in several places in the application for Synfuels and must be read as applying to those plants as well. Summary of areas of concern with the final application for additional postponement. 1. The applications fail to comply with statutory requirements for postponements of time frames for compliance with the minimum emission standards 2. The applications fail to address requirements of the air impact assessment regulations ie they fail to properly assess cumulative impacts and impacts on health as required in the regulatory scheme for such postponement applications. 3. There is failure to justify why the application of minimum emission standards in many instances is described as not feasible. 1. Failure to comply with statutory requirements for postponements 1.1 The National Framework established under AQA constitutes. 3 AQA is the empowering legislation in terms of which the Regulations Prescribing the Format of the Atmospheric Impact Report 4 (AIR regulations) were promulgated. The AIR regulations are thus subordinate legislation to the AQA and 2 Id 3 The Framework is published in terms of section 7 of the AQA for achieving the objects of the AQA. The AQA s definition of this Act includes the Framework (s1). The Framework binds all organs of state in all spheres of government (s7(3)); and an organ of state must give effect to the Framework when exercising a power or performing a duty in terms of AQA or any other legislation regulating air quality management (s 7(4)). Compliance with the Framework is therefore required in order for the relevant decision-maker to evaluate Sasol s applications. 4 GNR 747 of 11 October 2013

3 3 Framework and the postponement application must comply with the empowering legislation, in addition to complying with the AIR regulations. Failure to comply with the Framework is fatal to an application of this nature. The applications do not comply with the Framework requirements for postponements. 1.2 The Framework states in section that postponements of compliance with the MES are conditional on ambient air quality standards in the area being in compliance, and will remain in compliance even if the postponement is granted. The airshed in which the industrial plants for which the Sasol seeks the postponement are non compliant with National Ambient Air Standards (NAAQS) and are located in priority areas (Vaal Triangle and Highveld priority areas). PM is noncompliance in both Sasolberg and Secunda and SO2 is non-compliant in Sasolberg. There are no safe thresholds for PM. Sasol in fact states that Particulate matter is a significant and specific concern in the VTAPA. The WHO states: [s]mall particulate pollution have health impacts even at very low concentrations indeed no threshold has been identified below which no damage to health is observed The alternative emission limits proposed by Sasol will not result in these airsheds being compliant with all NAAQS. 1.4 The final postponement application has not addressed this issue, and incorrectly states the law. 6 The applications should not be granted on this ground alone. 2. Failure to address cumulative impacts and health impacts 2.1 Legal requirements For ease of reference, we repeat the summary as of legal requirements relating to the assessment of cumulative impacts as set out in paragraph 33 of the LRC submission of 25 th November 2014: Compliance of the AIRs with the Regulations prescribing the format of the Atmospheric Impact Report (11 October 2013): Section 5.1 (Analysis of Emissions' Impact on Human Health), states: In order to assess the atmospheric impact of the facility on human health a dispersion modelling exercise must be undertaken. Any dispersion modelling study undertaken as part of an Atmospheric Impact Report must be done in accordance with the National Air Quality Modelling Guidelines specified for regulatory purposes - developed in terms of section 53 of AQA. The impact assessment should take the emissions of the facility under consideration as well as prevailing ambient air concentrations into account during this assessment. A compliance assessment must be undertaken using the national ambient air quality standards, specifically in residential areas and other areas where human exposure could occur. Section 5.2 Analysis of Emissions' Impact on the Environment of the regulations states: In order to assess the atmospheric impact of the facility on the environment a dispersion modelling exercise may be undertaken at the discretion of an Air Quality Officer. Any dispersion modelling study undertaken as part of an Atmospheric Impact Report must be done in accordance with the national air quality modelling guidelines specified for regulatory purposes. The impact assessment should take the emissions of the facility under consideration into account as well as prevailing ambient air concentrations during this assessment. Compliance with the requirements of the Regulations for Air Dispersion Modelling 7 The correct way to analyze the impact of emissions on human health is to sum the background concentrations of air pollutants and the predicted concentrations of air pollutants attributable to emissions from the stationary source (e.g. the Natref refinery) and assess the health impact of the combined pollutant concentrations (that is whether the combined pollutant concentrations 5 See application for additional postponement by Natref See Parag SRK Consulting: Final Comment and Response Report: Secunda Operation, page 8 7 GNR 533 of 11 July 2014

4 4 result in air pollutant levels that exceed AAQS or is otherwise unhealthy). This is the procedure specifically required by the July 2014 National Air Quality Modeling Guidelines: Step 11: Determine Background Air Quality All levels of assessments must consider the background concentrations of air contaminants. The intent is to compare the ambient air quality to the cumulative impact of new emissions and existing baseline conditions. A process to quantify the background concentrations is provided in Chapter Ambient Background Concentrations The background concentration is the portion of the ambient concentration due to sources, both natural and 'anthropogenic, other than the source(s) being evaluated Estimating Background Concentrations in Multi-Source Areas The National Framework calls for air quality assessment not only in terms of the individual facility contribution, but in terms of its additive contribution to baseline ambient air quality i.e. cumulative effects must be considered (DEAT 2007). As such, all sources expected to cause a significant concentration gradient in the vicinity of the source or sources under consideration should be explicitly modelled. 6.2: NAAQS Analyses for New or Modified Sources Compliance with NAAQS should be defined such that all significant local and regional contributions to the background concentrations are accounted for. For each averaging time, the sum of the (model) predicted concentration (Cp) and the background concentration (CB) applicable must be compared to the NAAQS. The background concentrations CB, should be the sum of contributions from non-modelled local sources and regional background. If the sum of background and predicted concentrations are (CB +Cp) is more than the NAAQS, the applicant must review the design of the facility (including pollution control equipment) to ensure compliance with NAAQS. Compliance assessments should provide room for future permits to new emissions sources, while maintaining overall compliance with NAAQS. For the different facility locations and averaging times, the comparisons with NAAQS should be based on recommendations in Table The presentation of the cumulative impacts of emissions from Sasol and Natref, as presented in Appendix L of the Sasol Infrachem v. 2.0 AIR is inadequate. (this replies to Sasol s response on p. 55 of the Comment and Response Report for Infrachem) While it is true that Annexure 5 of the Comment and Response Report (Further information on the combined impact of the Natref Refinery and Sasol Infrachem to supplement Appendix L of the Natref and Sasol Infrachem AIRs), finally corrects the defect of the applicant not assessing the cumulative impact of granting postponements to both the Natref Refinery and Sasol Infrachem, the one-page commentary provided in the Annexure is inadequate. The commentary retains the mistaken focus on whether combined emissions from only the Natref Refinery and Sasol Infrachem create air quality conditions that exceed national ambient air quality standards. In her Answering Affidavit to Sasol s and Natref s judicial review petition seeking to overturn industrial air pollutant emission standards, the Chief Director of Air Quality Management of the Department of Environmental Affairs aptly states (at paragraph 49.12) I respectfully submit that there is a fundamental misconception on the part of the Applicants. They regard the ambient air quality standards as their license to pollute up to the levels thereof The required focus is whether combined emissions from the Natref Refinery and Sasol Infrachem take up a substantial increment of the ambient air quality standards (because there are, of course, other polluters in the air shed) and whether air quality would be substantially better if the Natref Refinery and Sasol Infrachem complied on schedule with industrial air pollutant emission standards. Although not noted in the one-page commentary provided in the Annexure, the answers to both questions are clear in the figures provided. For example, Figure 3 shows that

5 5 combined emissions from only the Natref Refinery and Sasol Infrachem under the existing scenario create hourly SO 2 levels that are 25-50% of the relevant ambient air quality for SO 2 over a few dozen square kilometers of Sasolburg that includes densely populated areas; the area impacted shrinks dramatically (right-hand side of Figure 3) if the Natref Refinery and Sasol Infrachem comply on schedule with industrial air pollutant emission standards. This issue gains added importance when one considers that the South African hourly ambient air quality standard for SO μg/m 3 is nearly twice that deemed safe by the United States Environmental Protection Agency (75 ppb = μg/m 3 ). 2.3 Sasol is not complying with the Regulations and internationally-accepted best practice by not including background concentrations of air pollutants (from sources other than Sasol and Natref) when predicting the air quality impacts of its emissions (this replies to Sasol s response on p. 64 of the Comment and Response Report for Infrachem, and is also relevant to the Synfuels application) Our concern about the Atmospheric Impact Reports provided in support of the postponement applications is that they did not sum the background concentrations of air pollutants and the predicted concentrations of air pollutants attributable to emissions from the stationary source (e.g. the Natref Refinery, Sasol Infrachem and Sasol Synfuels) and assess the health impact of the combined pollutant concentrations (that is whether the combined pollutant concentrations result in air pollutant levels that exceed AAQS or is otherwise unhealthy). In the applicant s Comment and Response Report, a lengthy discussion is provided about the manner in which the applicant attempted to discern the background concentration of air pollutants, as discussed in section of each Atmospheric Impact Report. That is all well and fine. However, regardless of how the applicants went about discerning the background concentration of air pollutants, our concern remains the same: the Atmospheric Impact Reports still do not assess the health impact of the combined pollutant concentrations, that is whether emissions from background sources combined with the applicants pollutant emissions result in air pollutant levels that exceed AAQS or is otherwise unhealthy. 2.4 Sasol has not provided a human health impact assessment of its proposed postponement application. Determining whether ambient air would comply with AAQS for some criteria pollutants is not the same as assessing the human health impact of its proposed postponement applications (this replies to Sasol s response on p. 64 of the Comment and Response Report for Infrachem, and is also relevant to the Synfuels application). Even if the applicants Atmospheric Impact Reports complied with the AIR regulations, they still do not provide a baseline health assessment of communities that will be affected by the granting of the postponement, which is a statutory rather than a regulatory requirement. Providing predictions of how ambient air quality would differ under various scenarios is not a meaningful exercise without baseline information about the people who breathe the air: where they reside, their population density, their demographics, and underlying health status (and, hence, vulnerability to elevated levels of pollutants in ambient air). For example, very small changes in levels of SO 2 and fine particulate matter (PM 10) of only a few micrograms per cubic meter can have significant and quantifiable impacts on human health in an area that is densely populated with children and the elderly. Without a baseline health assessment, predictions of how ambient air quality would differ under various scenarios cannot answer the fundamental question of how changes in emissions would impact human health. 3. The failure to justify why the application of the standards is not feasible and other concerns of a technical nature in the application 3.1 The continued misuse of the term of art fit for purpose in Sasol s presentation of data in the AIR (this replies to Sasol s response on p. 58 of the Comment and Response Report for Infrachem, and is also relevant to the Synfuels application).

6 The applicants do not disagree that the term fit for purpose refers only to the choice of which air pollutant dispersion model to use and has nothing to do with how to present the significance of the modeling output (predicted ambient air quality) and whether air quality would comply with NAAQS or otherwise be healthy. The manner in which the applicant is presenting the significance of the modeling output may be the applicants favored way of presenting the data, but it most clearly does not fall under the concept of fit for purpose. 3.2 Comments on Annexure 6: Information pertaining to upset conditions (this replies to Sasol s response on p. 59 of the Comment and Response Report for Infrachem) Annexure 6 of the Comment and Response Report (Sasol Sasolburg Shutdown and Upset Conditions Additional Information) finally provides information about the frequency of shutdowns and upsets at Sasol Infrachem (but not the Natref Refinery). It is alarming that shutdowns/startups with elevated emission levels occur so frequently at Sasol Infrachem. For example, the data shows that incinerators at Sasol Infrachem suffer from an average of 3 shutdowns/startups per month, and (in the most recent financial year) boilers at Sasol Infrachem suffer from an average of 11 shutdowns/startups per month. However, the legal requirement is for the applicant not only to provide information about the frequency of shutdowns/startups, but to set out the point source maximum emission rates (under start-up, shut-down, upset and maintenance conditions), with specific reference to the emissions profile expected for s.21 pollutants, and providing an estimated raw gas emission rate for each of these operating conditions. Annexure 6 of the Comment and Response Report fails to do so. 3.3 Sasol s choice of 135 μg/m 3 as a screening level/standard for H2S is inadequate for the protection of public health and inconsistent with internationally-recognized heath-based standards for exposure to H2S (this replies to Sasol s response on p. 59 of the Comment and Response Report for Infrachem, and is also relevant to the Synfuels application) Since H2s does not comply with health protective standards in Secunda, any request for postponements of H2S limits should be rejected. The combination of PM and H2S not being within compliance creates particularly unhealthy environment. All other applications should also not be granted In response hereto in the Comment and Response Report, Sasol responds by stating: Since no NAAQS is published for H 2S, Sasol appointed independent toxicologist, Infotox, to conduct a literature review on available international guidelines, as a means of assess the impact of H 2S on human health. A standard of 135 ug/m 3 over a 4 hour averaging period was recommended as a health screening level It is disputed that this recommendation flows from this report as it is nowhere evident from it. As far as can be ascertained the INFOTOX report (Annexure C) does not recommended a screening level although they list and summarise a 1992 publication. Table 5-26 of the Synfuels AIR reflects a screening level for H2S of 135ug/m3 (4-h average), referencing the 1992 publication, not the INFOTOX report.. Actual ambient air quality guidelines developed by a health agencies or environmental regulators are far more stringent that the screening level the applicant has chosen to use, such as the California 1-hour standard of 42 μg/m 3 cited in the Technical Compilation Document to Inform the State of Air Report (DEAT, 2006a) and the 30- minute World Health Organization Ambient Air Quality Guideline Value of 7 μg/m The concluding Section 8 of the INFOTOX report contains the following statements: In terms of health effects, INFOTOX is of the opinion that the WHO 24-hour guideline concentration (150 μg/m3) is not adequately protective of exposed communities. Averaging of concentrations over 24 hours has the potential to mask high short-term excursions that may occur over one or more hours.

7 7 The WHO guideline appears insufficiently protective, considering reports of eye and throat irritation, difficulties in breathing, headache and nausea associated with exposures in the range of 125 to 135 μg/m3 over a period of 4 to 5 hours The specialist study thus does not recommend a health-protective standard. If anything, the literature cited in the specialist report supports the view that adverse health effects occur at far lower exposure levels than the screening level used in the AIR. Further submissions of an expert nature regarding health protective standards will be provided if allowed by the decision maker. It is not clear whether the health screening level of 135 ug/m 3 over a 4 hour averaging period is based on an ambient air quality guideline developed by a health agency or environmental regulator anywhere in the world. 3.4 Sasol fails to address the technical arguments concerning feasibility of compliance with the minimum emission standards raised in the expert submission of Professor Cairncross As stated in the previous paragraphs Sasol justifies its application relating to emission limits for H2S by referring to the expert report of a toxicologist. However the cumulative impact of pollution of H2S up to these levels in the context of high levels of other pollutants and exceedences of PM NAAQS in the airshed of Secunda is simply unacceptable, if the protection of health is to be ensured, as the constitution and NEMAQA require. We also dispute that the limits suggested by this toxicology report are indeed protective of health even when H2S is considered in isolation from other air pollutants. According to the Department of Environmental Affairs State of the Air Report 2005, hourly average value of 42µg/m 3 are regarded as high levels. As was stated in our submission 9 Sasol s H 2S emissions from its Synfuels plant result in maximum measured hourly average H 2S concentrations of 697µg/m 3, 570µg/m 3 and 697µg/m 3 at the Bosjesspruit, Secunda Club and the Langverwacht monitoring stations respectively, for the period 2010 to The highest 99 th percentile values for this period (2010 to 2012) measured at each of these stations are 105µg/m 3, 51 µg/m 3 and 75µg/m 3 at the Bosjesspruit, Secunda Club and the Langverwacht monitoring stations respectively. 11 That is, 1% or approximately 88 hourly values per year, would exceed the 99 th percentile values at each of these monitoring stations. It should be emphasized that the maximum hourly average concentrations do not represent the highest measured values 50% of the measured values would be above the hourly average. These concentrations are thus well above the hourly average value of 42µg/m 3 considered to be high by the Department of Environment Affairs Air Report of A significant reduction in H 2S emission rates, of the order of 50% or more, would be required to satisfy a maximum hourly average concentration of 42µg/m 3. We will make expert submissions in this regard if further information is required Sasol has failed to make out a case that the imposition of the minimum emission standards is indeed infeasible. It adopts an elastic definition of infeasible to suit its own constraints and uses terminology such as exceptionally difficult when responding to the expert report by Professor Cairncross which analyses, and rejects, claims of infeasibility relating to emission limits on the toxic substance H2S and other pollutants, which Sasol currently emits in large volumes from its Secunda plant. The applications simply do not do justice to the submissions made by Professor 8 LRC submission 25 th November pages Id page 21 paragraph Atmospheric Impact Report: Sasol Secunda Facility. Report Number: 13STL01SC. Report Version: 2.0. Date: September Tables 5-6 to Ibid. 12

8 8 Cairncross and your attention is kindly drawn to his submissions, on pages 4-19 of the LRC submission of 25 th November Conclusion Based on the above submissions the application by Sasol for a postponement of compliance with time frames for implementation of the minimum emission standards established in terms of GNR 893 of 22 November 2013 should be rejected, as it is non compliant with the letter and spirit of the statutary scheme for protection of air quality and if accepted would undermine the objectives of the NEMAQA, which are to protect public health. Yours faithfully LEGAL RESOURCES CENTRE Per: Angela Andrews ANNEXURE A RESPONSES TO FINAL COMMENT AND RESPONSES REPORT: SASOL INFRACHEM. LRC Submission Sasol s response LRC response 1. P 9 Exemptions should not be granted for compliance with the MES for Sasol and Natref, as there is no legal The comment is not contained in the LRC submission of 27 th November It was made in response to an application for exemption in a submission by the LRC submission dated 6 th June basis for exemptions. The As there is no longer an application for Minister will be acting ultra vires should exemptions be exemption the comment is irrelevant in the application for additional postponements. granted. The application is wasteful of government s limited resources. It should be noted however that Sasol itself has informed its shareholders that it is not possible to apply for exemptions: See The 2011 Sustainable Development Report (p57) states (relevant sections underlined): Minimising our atmospheric emission. We are committed to reducing our atmospheric emissions to ensure that we minimise any potential health impacts to employees and society, and, as a minimum, comply with regulatory requirements.. Minimum point source emission standards were published on 31 March 2010 and new facilities are required to comply with them with immediate effect. Existing plants are given five years from the date of publication to comply with existing plant standards and ten years to comply with the more strict new plant standards.

9 9 2.P9 There is no legal basis for the polluter to set alternative limits. This will lead to individual limits that differ from facility to facility, based on criteria that are not uniform. This would bring the system of setting standards into disrepute. 3.Sasol and Natref argue that emissions abatement must target emissions that result in non-compliance with the NAAQSs, where the costs of the abatement are justified and achieve material improvements in prevailing ambient air quality. In other words, these companies seek to circumvent enacted legislation by substituting their own scheme where emissions will only be abated when the following three factors are satisfied: 1) Where emissions cause non-compliance with the NAAQSs; 2) When the costs of the The alternative emission limits and alternative special arrangements proposed by Sasol have been informed by independent specialist air quality studies on the basis that these limits do not affect ambient air quality beyond the NAAQS. These standards are either the same as, or stricter than the current limits contained in the applicable atmospheric emission licences. Where the current licences contain no emission limit for particular pollutants, these alternative emission limits make provision for regulating those criteria in order to ensure alignment with the MES. Their intended purpose is to define the limits with which Sasol will comply for the duration of the postponement period. If no alternative emission limits were proposed, it would be tantamount to Sasol seeking a blanket exemption from complying with any standards. Sasol and Natref are committed to compliance with their obligations under the law. Exercising their rights to apply for postponements and exemptions is not a circumvention of the law it is compliance therewith. Sasol and Natref s commitment to the objectives of AQA and other environmental legislation is demonstrated by the proposed alternative emissions limits with which they must comply if their exemptions are granted. Refer to section 5.3 of the exemption motivation reports for this explanation. There are no exemption provisions but opportunities exist to award extensions of compliance time frames. LRC Response: There is no provision in NEMAQA allowing for the setting of alternative emission limits should a postponement be granted in terms of regulation 11 of GNR 893 of 2010, and such action would be ultra vires the Act and unlawful. LRC Response: The comment is not contained in the LRC submission of 27 th November It was made in response to an application for exemption in a submission by the LRC submission dated 6 th June As there is no longer an application for exemption the comment is irrelevant in the application for additional postponements.

10 10 abatement are justified and 3) When the abatement results in material improvements to ambient air quality. Each of these three requirements, however, is fallacious. An analogy would be a driver who is driving over the speed limit, is caught by the police, and then proceeds to claim the traffic laws are invalid and substitutes his or her own three-pronged method for determining whether he or she was driving unsafely. 4. P 10 It is disputed that Sasol and Natref have complied with all the other requirements set out in regulations prescribing the format of atmospheric impact reports, which were published on 11 October 2013 To respond to the analogy, these applications are being made in advance of the speed limit coming into effect, in order to prevent an exceedance of the speed limit. Rather than removing all speed limits, Sasol and Natref are suggesting speed limits which are grounded in sound principle in respect of their operations. Sasol has taken this concern into account in updating Section 4 of the AIR and its associated appendices. LRC Response: See parag , of the above submission and paragraphs 28, 29 and of the LRC submission dated 25 th November The applicants are required to compile an air pollution impact assessment in accordance with the regulations prescribing the format of an Atmospheric Impact Report (as contemplated in Section 30 of the AQA), by a person registered as a professional engineer or as a professional natural scientist in the appropriate category. 13 The atmospheric impact report (AIR) submits insufficient information for a postponement to be considered and is not compliant with the regulatory scheme: a. It fails to assess the cumulative impacts of emissions from the SASOL plants and the prevailing ambient air quality as required in the Regulations Prescribing the Format of the Atmospheric Impact Report 14 See parag above for detailed analysis of deficiencies in the cumulative impact assessment. b. It fails to comply with the requirements of the Regulations for Air Dispersion Modelling 15 ( see paragraphs of this submission) c. It fails to provide a baseline health assessment of communities which will be affected by the granting of the postponement. Without knowing of the health status of vulnerable populations the report is of little use to the decision maker, 13 PARAGRAPH 11 of the List of Activities published under section GNR 747 of 11 October GNR 533 of 11 July 2014

11 11 5. P 11 When interpreting the rights contained in the Constitution including the environmental right, regard must be had to international law and regard may be had to domestic law (clause 39 of the Constitution interpretation). Hence regulatory approaches using best available technology (BAT) and emissions controls at source in jurisdictions such as the EU are relevant considerations when assessing the role and functioning of our air quality legislation and how it is supposed to be interpreted in order to promote and achieve compliance with the constitutional right to environment. The minimization of emissions at source, based on available technology, is an internationally recognized additional step required in order to progressively improve air quality and is also the regulatory intention for the AQA. The Constitution, the National Framework and NEMA principles, amongst other things, advocate a holistic and balanced approach to standard setting and technology approaches. These are all considerations to be balanced and taken into account by the NAQO in reaching her decision. We would point out that BAT is not a self-standing standard but is intended to inform the Best Practicable Environmental Option principle. BAT must be assessed within the South African context who, as a result, cannot carry out the regulatory duties set out under AQA. ( see parag 2.4 of this submission.) LRC Response: SASOL does not dispute the legal imperative of NEMA and section 24 of the Constitution to minimise emissions 6. P13 Sasol s approach violates NEMA principles as follows: approach, which takes into account the limits of current knowledge about consequences and decisions and actions, be applied environment must be Sasol s approach is consistent with the NEMA principles. The NEMA principles, amongst other things, are considerations to be balanced and taken into account by decision makers on Sasol s applications. The National Framework and AIR Regulations require that LRC Response: The National Framework states that applications for postponement of compliance may be made if ambient air quality standards in the area are in compliance and will remain so if the postponement is granted. (Framework paragraph ). As this does not apply to Sasolberg and Secunda the applications should not be granted.

12 12 minimized and prevented where possible must be applied, which states that the polluter must pay for the cost of remedying pollution, environmental degradation and health effects The goal of NEMA is to minimize pollution the NAAQS cannot be viewed as ceiling limits 7. P 13 The applications made by Sasol and Natref cannot comply with the requirements for postponement of compliance time frames as set out in the National Framework for Air Quality Management (Framework) and should not be granted as the applications are made in air sheds where there is noncompliance with one or more ambient air standards. The framework does not limit the requirement only to the ambient air standard for which the postponement is sought and hence noncompliance with any ambient air standard requires the application to be rejected. Since PM does not comply with National Ambient Air Quality Standards (NAAQSs) in Secunda and Sasolburg and since SO2 and NO2 convert to PM, every request for postponement for a limit on a criteria pollutant (i.e. PM, SO2, NOX) in these towns should be rejected. Hazardous air pollutants which are also particulates should not be allowed postponements for compliance with MES, in light of the non-compliance with PM NAAQSs in both Sasolburg and Secunda applications for postponements take cognisance of the NAAQS. This interpretation of the National Framework is incorrect. In accordance with Regulation 12 of the MES, Sasol is required to prepare an AIR to demonstrate the ambient impacts of its applications. The AIRs have been made available to stakeholders. These will enable the National Air Quality Officer (NAQO) to make a determination on whether postponements are justifiable. Where any pollutants are in exceedance of the NAAQS, the important question for the NAQO to consider is whether an emitter conducting a listed activity, by complying with the point source standards, is able to meaningfully improve ambient air quality. Where this is determined not to be the case, it indicates that other mechanisms to improve ambient air quality are more likely to have a significant impact on improving the outcomes. LRC Response: Sasol s interpretation is incorrect. The Framework states very clearly in paragraph (emphasis added): Given the potential economic implications of emission standards, and mindful that emission standard setting in South Africa was not based on comprehensive sector-based [Cost Benefit Analysis] (at least not for the initial group of Listed Activities as the intention was to ensure that there is no regulatory vacuum when the APPA was repealed), provision has been made for specific industries to apply for possible extensions to compliance time frames, provided ambient air quality standards in the area are in compliance and will remain in compliance even if the postponement of the compliance date according to Section 21 of the Act, and for such application to be positively considered, the following conditions must be met: -An air pollution impact assessment being completed (in accordance with the regulations prescribing the format for Atmospheric Impact Reports, as contemplated in Section 30 of the AQA and specified by the National Air Quality Officer) by a person registered as a professional engineer or a professional natural scientist in the appropriate category; -Demonstration that the industry's air emissions are and will not cause any adverse impacts on the surrounding environment; -The application must be submitted to the Air Quality Officer at least 1 year before the specified compliance date The Framework is binding legislation as the AQA definition of this Act includes the Framework published in terms of section 7 of the AQA. 16 The Framework binds all organs of state in all spheres of government who must give effect to it when exercising a power or performing a duty in terms of AQA. 17 Secondly the application is not compliant with the regulations for atmospheric emission reports. See 16 S1 17 S7(4)

13 13 8.P 14 The applications has not been submitted to the appropriate Air Quality Officer at least 1 year before the specified compliance date. Sasol confirmed its intention to submit its postponement and exemption applications with both the Minister and National Air Quality Officer and by advertisement prior to the 1 year deadline. paragraph 2.1 to 2.3 of the above submission.. The application of the provisions of the Framework is mandatory not discretionary. LRC Response: An intention to submit a postponement application is not equivalent to a postponement application, and hence the argument by SASOL fails. 9.P 14 SO2 and NOx converts to PM, since PM is not in compliance, postponements and exemptions should not be granted for SO2 and NOx. It is noted that the conversion of SO2 emissions from a refinery is not a trivial matter. SO2 emissions are much more than PM emissions from a refinery, as shown in AIRs. So, even if a relatively small fraction of SO2 emissions from the refinery converts to ultrafine particulate matter, then the refinery s SO2 emissions can indirectly contribute as much to ambient levels of PM than PM emissions do directly Please refer to Section 5 of the AIRs for Secunda, Sasolburg and Natref, where results for ambient particulate matter impacts from the facilities expressly include an estimation of the conversion of SO2 and NOx to particulates. LRC Response: This is a non response to the fact that SO2 and NOx emissions from SASOL contribute, through becoming particulate secondary pollutants, to the non compliance with NAAQS for PM in the airsheds for Sasolberg and Secunda. This fact provides a compelling reason for the refusal of any postponements of emission limits in these airsheds for SO2 and Nox

14 14 10 P 15 Re LRC mandates LRC Mandates have been confirmed for submission of 15 th November P15 The framework is a component of AQA and is also legislation 12. P The Framework states in section that postponements of compliance with the MES are conditional on ambient air quality standards in the area being in compliance, and will remain in compliance even if the This is a matter of legal interpretation. Sasol response: This has been addressed in the documents supporting the application. In accordance with Regulation 12 of the MES, Sasol is required to prepare an AIR to demonstrate the ambient impacts of its applications. LRC Response: There is no ambiguity in the NEMAQA. The Framework is binding legislation as the AQA definition of this Act includes the Framework published in terms of section 7 of the AQA. 18 The Framework binds all organs of state in all spheres of government who must give effect to it when exercising a power or performing a duty in terms of AQA. 19 The application of the provisions of section of the Framework is therefore not a matter of discretion. LRC Response: See paragraph 7 above. The NAQO has no discretion in applying the provisions of section of the Framework. 18 S1 19 S7(4)

15 15 postponement is granted. The airshed in which Sasol s plant for which the postponement is sought is in an airshed that is not compliant with NAAQS. The final postponement application has not addressed this issue, and incorrectly states the law 13. P 16 The postponement application does not comply with Section of the Framework, in that it cannot demonstrate that the facility s current and proposed air emissions are and will not cause any adverse impacts on the surrounding environmental, which includes health of adjacent communities 14. P 17 Sasol seeks to substitute its own scheme for the legislation on the issue of postponements. It makes the following statement regarding compliance with the AQA which is without a legal authority which should be ignored as an irrelevant consideration: 15.P 18 The applicants are required to compile an air pollution impact assessment in accordance with the regulations prescribing the format of an Atmospheric Impact Report, and the Regulations Regarding Air Dispersion Modelling, and they fail to comply with these requirements The AIRs as well as Sasol s motivation reports have been made available to stakeholders. These will enable the National Air Quality Officer (NAQO) to make a determination based on all relevant considerations on whether postponements are justifiable. As indicated in Appendix B of the AIR, Sasol has complied with the requirements of the AIR regulations. The analysis of the impact on human health is presented in Section 5.1 of the AIR. The analysis of the impact on the environment is presented in Section 5.2 of the AIR. where the pollutants are in exceedance of the NAAQS, the important question for the NAQO to consider is whether an emitter conducting a listed activity by complying with point source standards is able to meaningfully improve ambient air quality. Where this is determined not to be the case, it indicates that other mechanisms to improve air quality are more likely to have a significant impact on improving outcomes. Sasol provides no authority for this proposition. A comparison between the AIR approach and the regulations is included as Appendix B of the AIR. LRC Response: Sasol s compliance with the requirements of the AIR regulations is disputed. See paragraphs 2.1 to 2.3 of this submission.. LRC Response: Sasol is suggesting that the NAQO has a discretion to grant a postponement where there is not compliance with NAAQS. This assertion is inconsistent with the mandatory requirements of section of the Framework, and hence incorrect. LRC Response: See paragraph 2.1, 2.2 and 2.3 of the above submission. The one-page commentary provided in the Annexure L is inadequate. The commentary retains the mistaken focus on whether combined emissions from only the Natref Refinery and Sasol Infrachem create air quality conditions that exceed national ambient air quality standards. In her Answering Affidavit to Sasol s and Natref s judicial review petition seeking to overturn industrial air pollutant emission standards, the

16 16 Chief Director of Air Quality Management of the Department of Environmental Affairs aptly states (at paragraph 49.12) I respectfully submit that there is a fundamental misconception on the part of the Applicants. They regard the ambient air quality standards as their license to pollute up to the levels thereof. 16. P19 The application fails to consider the cumulative impacts of the Sasol and Natref postponement applications and to critically evaluate the cumulative impacts of their current emissions. For example the comments and responses report states that the cumulative impact of Sasol Infrachem and Natref has been included as Annexure 3 in the respective AIRs. In the case of Annexure 3 to the Infrachem report, while demonstrating a significant cumulative impact does not analyse the significance of these figures anywhere in the AIR report, and the possible impacts of such cumulative pollution levels on health. These findings will be discussed in more detail in paragraph below. The failure to make any comments on such a significant if not central issue in any decision involving air quality management can only lead to an Appendix L addresses this matter comprehensively. Further information on the cumulative pollution level is included at the end of the Comment and Response Report. The Appendix has now been included as Appendix L of the Natref AIR, and the same further information on the cumulative pollution level included at the end of the Comment and Response Report applies. Since the cumulative scenario analyses the same plants and pollutants, the report is identical to that of Sasol Infrachem. See paragraph 2.1, 2.2 and 2.3 of the above submission adverse inference and conclusion that the report is deficient, one sided and not a basis for reasonable or rational decision making. For Natref this Annexure was not included 17. P 19 The declaration of the Vaal Triangle as a Priority Area Noted LRC Response:.

17 17 and the ensuing efforts around the Vaal Triangle Airshed Priority Area ( VTAPA ) demonstrate that the government recognizes and accepts that pollution is a serious threat in that area. 18. P 19 The applications are made in air sheds where there is noncompliance with one or more ambient air standards. The Framework does not limit the requirement only to the ambient air standard for which the postponement is sought and hence noncompliance with any ambient air standard requires the application to be rejected. Since PM does not comply with National Ambient Air Quality 19. P 20 Other considerations from the Framework indicate that when considering an application for postponement of compliance time frames for an industry it is important for the decision maker to bear in mind the factors that the competent authority is required to take into consideration in listing an activity in the first place. These are set out in paragraph of the Framework where it states: the identification and prioritisation of activities to be added or removed from the listed activities shall be based on but not limited to the factors outlined in of the 2013 Framework. These include proximity to sensitive receptors eg residential areas and schools, and emitters of concern based on volumes of This is a matter for interpretation. Its motivation report is aligned with its view in this regard as detailed in the Motivation reports in Section 6.4. (both Secunda reports; Sasol Infrachem additional postponement; both Natref reports), Section 5.5 (Sasol Infrachem initial postponement) and Section 5 (Sasol Nitro). The question of secondary pollutants is addressed further below and in the Atmospheric Impact Reports for Natref, Sasol Infrachem and the Secunda operations in section Sasol response: Whilst there is no reference in the postponement requirements of the NAQF to the quoted paragraph (which deals with listing and not postponing activities), nevertheless the information referred to in paragraph of the NAQF has been included in the AIR. Information on modelled concentrations at sensitive receptors is provided in Section 5 of the AIR in the form of bar graphs. The methodology used to identify sensitive receptors is detailed in Section Sensitive receptors were selected based on the following factors: to assess impact on communities the entire residential area is seen as a sensitive receptor as it contains various sensitive LRC Response: See paragraph 7 above LRC Response