Management POLLUTION Inspectorate Frances Craigie

Transcription

1 COMPLIANCE MONITORING The AND Environmental ENFORCEMENT OF AIR Management POLLUTION Inspectorate LEGISLATION Frances Craigie Legislative Framework Challenges, Achievements Director: Enforcement and Lessons Learnt Department of Environmental Affairs and Tourism DWAF/DEAT Meeting 12 August 2008

2 Environmental Crime Brown vs Green crimes Waste, pollution, environmental impact assessment Based in statutory law extremely progressive / high penalties Atmospheric Pollution Prevention Act, 1965 Environment Conservation Act, 1989 National Environmental Management Act, 1998 NEM: Air Quality Act, 2004 NEM: Waste Act, 2008 Gauteng Healthcare Risk Waste Regulations Combination of crimes

3 Specialised skills / technical knowledge Technical and legal experts Understanding the legal processes and operational processes involved Understanding the composition and toxicity of the waste / effluent / emissions Harm caused to the environment significance? Overlapping mandates / legislation constitutional mandates Legal interpretations definitions / loopholes

4 Compliance Monitoring Focus: detection of non-compliance Inspections, review of documents, sampling etc Strategic Inspections: Comprehensive baseline assessments involving all three spheres of government + DWA Reactive monitoring i in relation to complaints Environmental Hotline SOP Referrals and Procedure for Responding to Reported Cases

5 Environmental Non-Compliance: Key enforcement tools - Overlap of administrative, criminal and civil mechanisms 1. Administrative Enforcement APPA Notices Section 28 NEMA directive Section 31A ECA directive Compliance notice (EMI Regulations) Section 24G rectification administration fine R1 million 2. Criminal Prosecution 3. Civil litigation: interdicts 4. Suspension and withdrawal of permits / authorisations 5. Criteria i for fit and proper persons

6 Air Pollution 1965: Atmospheric Pollution 1965: Atmospheric Pollution Prevention Act 2004: NEM: Air Quality Act

7 Atmospheric Pollution Prevention Act 45 of 1965 Parts III, IV and V are still operational Roleplayers: Chief Air Pollution Control Officer and inspectors (DEAT) delegated to some metros Atmospheric pollution by smoke, dust control, vehicle emissions, scheduled processes

8 Atmospheric Pollution Prevention Act 45 of 1965 Control of noxious or offensive gases: list of 72 industrial processes in Schedule 2 S 9(2): May not carry on scheduled process, or erect building/plant for scheduled process, or alter existing permitted building, without a registration certificate, or provisional registration certificate Doing so: criminal offence Contravening the terms of a registration certificate is not a criminal offence

9 Flagship project: Operation Ferro Steel, iron and ferro-alloy industry Significant harm from this sector also huge legacy issues Priority areas declared in relation to air pollution Growing sector substantial profits Significant number of non-compliances

10 Other sectors targeted for joint Refineries Cement industry Paper and Pulp projects Hazardous Waste

11 Difficulties with Enforcement Outdated legislation and permits low penalties and poorly drafted permits Lengthy process when non-compliance detected Control of emissions from stacks and not fugitive emissions i CAPCO not monitored and therefore dodgy decisions No norms and standards only guidelines (not enforceable) Old industries old, dirty technologies NB: APPA = SEMA and increased penalties ito recent amendment

12 ArcelorMittal Vereeniging APPA Notice

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15 Independent Foundries FACILITY CLOSED DOWN

16 APPA Enforcement: Independent Foundries Excessive emissions from various sources, extremely poor housekeeping, ineffective and inefficient baghouses, strong chemical smell emanating from the furnaces, dilapidated and outdated furnaces and a water course running very close to the foundry. Fugitive dust emissions from the foundry have the potential of causing soil, surface and groundwater contamination, due to the leaching of chemicals such as phenols and metals that are present in foundry sand and dust.

17 Blue Sphere - Plea bargain in June 2006 (EIA and APPA offence) - New criminal investigation

18 NEM: Air Quality Act 39 of 2004 Roleplayers: National, Provincial and Local Air Quality Officers EMIs compliance and enforcement Emission Control Officer must: work towards cleaner production; take reasonable steps to ensure compliance; and promptly report non-compliance to licensing authority. F1

19 Slide 18 F1 Check this Frances, 2009/08/19

20 NEM: Air Quality Act 39 of 2004 Air quality standards Priority areas stricter standards Listed activities atmospheric emission licences Controlled emitters Pollution prevention plans Submission of atmospheric impact reports Criteria for fit and proper persons Range of offences associated with failure to comply with standards; failure to obtain permissions; failure to comply with conditions

21 Proposed National C&E Role Section Provision S18 S20 S29 S30 Monitoring- conditions of atmospheric emission licences (AEL) (inside a nationally declared priority area??) Enforcement conducting activity without AEL (nationally declared priority area??) and contravention of conditions (including exceeding emission limits) C&E with Regulations promulgated by Minister for and enforcing approved priority air quality management plans Enforcement response for failure to submit, or implement a pollution prevention plan in response to a written notice by the Minister Enforcement response for failure to submit an atmospheric impact report requested by the national air quality officer

22 Proposed Provincial C&E Role Section S20 Provision Regulations promulgated by the MEC for implementing and enforcing approved priority air quality management plans S22 C&E in respect of conditions of an atmospheric emission licence (AEL) issued by the MEC S29 S30 Enforcement response for the failure to submit, or implement a pollution prevention plan in response to a written notice by the MEC Enforcement response for failure to submit an atmospheric impact report requested by the provincial air quality officer

23 Proposed Local C&E Role Section S22 S24 Provision Compliance monitoring with conditions of AEL issued by local authority Enforcement in respect of conducting an activity without an AEL or in contravention of the conditions of an AEL issued by the local authority C&E in respect of the manufacture, sale or use of any appliance or conducting an activity declared as a controlled emitter (compliance with standards) S28 S30 S32, 33 and 34 C&E in respect of the manufacture, sale or use of a controlled fuel (compliance with standards) Enforcement response for failure to submit an atmospheric impact report requested by the municipal air quality officer C&E in respect of the control of dust, noise and odour (where these constitute nuisances)

24 NEM: Air Quality Act 39 of 2004 Offensive odours: any smell which is considered ed to be malodorous ous or a nuisance to a reasonable person Minister or MEC may prescribe measures for control of offensive odours emanating from specified activities Occupier of premises must take all reasonable steps to prevent the emission of any offensive odour caused by an activity on premises Failing to do so is an offence

25 NEM: AQA OFFENSIVE ODOUR

26 the occupier of any premises must take all reasonable steps to prevent the emission of any offensive odour caused by any activity on such premises

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28 Fuel Spill

29 Crematoriums

30 NEM: Air Quality Act 39 of 2004 Other criminal offences (S51): Supplying false or misleading information in an application for an AEL (including for transfer, variation or renewal) Supplying false or misleading information to an air quality officer Contravening or failing to comply with a condition subject to which exemption to an AQA provision was granted under S59

31 NEM: Air Quality Act 39 of 2004 Penalties S 52: 1 st offence: R5 million or 5 years or both 2 nd and subsequent offences: R10 million or 10 years or both (Sept 2009 amendment) Jurisdication of magistrates t court Fine must be determined considering: Severity of offence potential or actual impact on health, well-being, safety and environment; Monetary or other benefits which accrued through commission i of offence; Extent of person s contribution to overall pollution load of area under normal working conditions.

32 Transitional period National and local C&E roles under APPA APPA R/C s issued by national Co-operative governance National to provide C&E support ultimately enable municipalities to take over the function Role of province municipalities require support / unable to undertake C&E function Strategic inspections roles Priority areas vs others

33 Questions