The Department of Environmental Affairs clears the air on the atmospheric emission license for Kriel Power Station
04 December 2013
The Department of Environmental Affairs has learnt with concern media reports about Eskom’s plans to reduce its generating capacity to comply with the requirements of the Minimum Emission Standards of the Air Quality Act. The Department would like to clear the air on this matter since there are misrepresentations of the real issues and to offer proper context.
As part of implementing the Atmospheric Emission Licensing System, the Mpumalanga Department of Economic Development, Environment and Tourism, amongst others, issued to Kriel Power Station an Atmospheric Emission License in terms of Chapter 5 of the National Environmental Management: Air Quality Act, 2004 (Act No. 39 of 2004). The Mpumalanga Provincial Department was the duly designated Atmospheric Emission Licensing Authority (AELA) on behalf of the Nkangala District Municipality from 1 April 2010 until 30 June 2013. This arrangement was in terms of Section 36 of the National Environmental Management: Air Quality Act (Act No. 39 of 2004).
The Act, through Government Notice No. 248 of 2010, published in terms of Section 21 of the Act, prescribes Minimum Emission Standards for various industrial activities emitting offensive substances to the atmosphere. It is important to note that the development of the Section 21 Notice constituted an elaborate consultation and participation processes in terms of Section 56 and 57 of the AQA. All affected stakeholders (including Eskom) 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.
Section 61 of the National Environmental Management: Air Quality Act No. 39 of 2004 – (AQA) details the transitional arrangements in respect of registration certificates issued in terms of the Atmospheric Pollution Prevention Act No. 45 of 1965 (APPA). This section required all holders of valid APPA registration certificates to convert these to atmospheric emission licenses within the time frames specified therein. With this, Eskom had to make an application for conversion from APPA registration certificates to AQA atmospheric emission licenses by 31 March 2013. This conversion process is being handled by the Atmospheric Emission Licensing Authorities specified in Section 36 of the AQA and these are Provincial Departments in some cases and the Metropolitan and District Municipalities.
However, Eskom has raised issues regarding failure to operate in compliance with their Atmospheric Emission Licenses for Duvha, Kriel and Matla power stations with the Department of Environmental Affairs and Ministry. In light of this, deliberations have been held between the Director Generals of the Departments of Environmental Affairs, Public Enterprises, Water, and Energy as well as Eskom to address the expressed compliance failures by Eskom.
To this end, a communication has been made to Eskom regarding the legal provisions which can be used in this regard. 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 published on 31 March 2010 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 has been advised to explore this regulatory opportunity to address this matter.
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.
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Note to Journalists
Not all industries emit pollution into the atmosphere and not all industries that do have atmospheric emissions could be regarded as having significant negative impacts on air quality. As such, it makes no practical or administrative sense to regulate every industry. However, there are certain industries that have a significant, or potentially significant, impact on air quality and these industries must be regulated if the nation’s ambient air quality standards are to be met and/or bettered.
To this end, Section 21 of the AQA requires the Minister to publish a list of activities which result in atmospheric emissions and which she reasonably believes have or may have a significant detrimental effect on the environment, including health, social conditions, economic conditions, ecological conditions or cultural heritage.
Once identified, these activities are known as Listed Activities and any activity that has been identified as a “Listed Activity” requires an Atmospheric Emission License (AEL) or provisional AEL in order to operate.
Section 21 of the AQA also requires the establishment of minimum emission standards for specified pollutants or mixtures of substances emitted by the identified activities. In this regard, the permissible amount, volume, emission rate or concentration of the pollutant or mixture of pollutants must be specified as well as the manner in which measurements of such emissions must be carried out.
The National Framework for Air Quality Management (NF) describes the standard-setting process for air quality and air quality management related standards. In this regard, the NF notes that the standards setting process is more than just the identification of the defined standard of a specific pollutant and that a number of factors beyond the exposure-response relationship need to be taken into account. These factors include understanding the current concentration of pollutants and exposure levels of the population, the specific mixture of air pollutants, and the specific social, economic and cultural conditions encountered within a country.
In deriving standards the following factors must be considered:
- The health, safety and environmental protection objectives;
- Analytical methodology;
- Technical feasibility;
- Monitoring capability; and
- Socio-economic consequences.
An extensive consultation process was followed in setting these emission standards over a 5 year period. This process:
- continuously engaged with all stakeholders around the identification of listed activities and their associated minimum emission standards; and
- reviewed current national and international work related to the identification of activities and their related minimum emission standards
Eskom participated directly in this process, and standards seek to balance the economic, social and environmental imperatives.