Polluters let off the hook

| Nicole Löser
A child draws water in Liphalale, Mpumalanga. Photo by Mujahid Safodien.

South Africans shouldn’t hold their breath as polluters are let off the hook. Decisions of the Department of Environmental Affairs (DEA) on Tuesday 24 February 2015 marked a disappointing setback in the battle for improved air quality in South Africa.

Polluting industries were granted postponements from compliance with minimum emission standards promulgated under the National Environmental Management: Air Quality Act (NEMAQA). It seems that the interests of development have once again trumped the constitutionally-enshrined health and well-being of South Africans.

The minimum emission standards, which are set to come into effect on 1 April 2015, set limits for the emission by industries of various harmful pollutants, such as particulate matter (PM), sulphur dioxide (S02) and oxides of nitrogen (NOx) until 1 April 2020, when stricter standards will apply.

The DEA’s National Air Quality Officer granted the majority of the applications submitted by various industrial polluters – including the energy and petrochemicals sectors – to postpone their obligations to comply with the minimum emission standards. Among some of the corporations granted reprieve are Eskom, in respect of 16 of its power stations, as well as Sasol, Engen and Natref.

While many of the postponements were in respect of the upcoming 2015-2020 standards, a large number of postponements were also granted for the standards that only apply from 1 April 2020.

As it is impossible to draw any definitive conclusions on the status of our air quality – let alone any other relevant considerations – 5 years from now, such decisions are arguably both premature and reckless.

According to the DEA, these postponements will allow industry the opportunity to upgrade their facilities to bring themselves into compliance with the stricter standards in the future. It must be mentioned that the MES were negotiated in a multi-stakeholder process over a period of almost five years, and industry has had certainty of these standards for at least five years. One cannot help but wonder why industries have failed to take the necessary steps to curb their emissions, and why such laxity has now been condoned by the DEA.

Based on the media briefing given by the DEA of 24 February 2014, at which these decisions were hastily announced, the DEA appears to favour an approach of moving gradually with industry to achieve long-term compliance in the future.

This approach may be well and good for securing stable development and growth for South Africa’s economy, but it has harrowing implications for people who live close to these polluting facilities. For residents of areas such as the Highveld and the Vaal Triangle – industrial areas notorious for poor air quality, and which have been declared air quality priority areas under NEMAQA – this laissez-faire approach to compliance means at least a further five years of poor health, illness and death as a result of the ongoing industrial pollution. Residents of these priority areas, including children and the elderly, who are most vulnerable to health impacts, are forced to share their air with Eskom’s coal-fired power stations and other industrial facilities.

A report released by environmental justice advocacy group groundWork in 2014, indicated that air pollution from coal-fired power stations is currently responsible for 51% of hospital admissions and 54% of deaths from air pollution-related cardiovascular diseases.

An expert report released in 2014 calculated that granting Eskom’s applications for postponement would result in about 20,000 premature deaths, over the remaining life of the power plants, including approximately 1,600 deaths of young children and a projected loss of 280,000 IQ points due to mercury exposure. The economic cost associated with the premature deaths, and the neurotoxic effects of mercury exposure, was estimated at R230 billion.

Although the law does allow for the granting of postponements for compliance with the minimum emission standards, the reality is that many of these postponements should not have been granted, in light not only of these devastating health impacts, but also of the already serious and prevailing air quality problems in many parts of South Africa.

The Framework for Air Quality Management makes provision for the granting of postponements for compliance with emission standards “provided ambient air quality standards in the area are in compliance”. In areas such as the Highveld and the Vaal Triangle, where many of the facilities which have been granted postponements are located, the ambient air is far from compliant.

Nomcebo Makhubelo, coordinator of the Highveld Environmental Justice Network has said that “the decision taken … is a clear disregard for the people of the already heavily polluted areas of the Highveld and Vaal … We have been opposed to these applications because they meant that industries, in particular Eskom, are ultimately seeking permission to continue destroying the health and lives of ordinary people in the Highveld.”

What these decisions demonstrate is a reluctance to hold industry to its legal obligations and a general failure to take a stand against our country’s worst polluters. It is no secret that the energy and refineries sectors are significant contributors to South Africa’s air pollution. This has the effect of promoting the attitude of complacency.

According to Samson Mokoena, coordinator of the Vaal Environmental Justice Alliance: “Lethabo power station is one of the biggest polluters in the Vaal Triangle, and these postponements mean that that status will remain. Not only has Eskom been granted postponements, but so has the largest emitter of carbon dioxide in the country, Sasol. The people of the Vaal will continue to suffer from dirty air.”

Civil society groups are in the process of considering steps to take, which could include possible applications for review of the unsatisfactory postponement decisions.

It remains to be seen how the DEA will deal with those facilities which have failed to apply for postponements and which fail to meet the minimum emission standards when they come into effect in April this year. Failure to comply with the standards could lead to criminal prosecution and result in penalties in the form of fines, prison sentences and/or the revocation of air emission licences. We challenge the DEA to rise to the occasion and, in doing so, demonstrate their commitment to the constitutional rights of South Africans to breathe air that does not harm their health.

Nicole Löser, attorney at the Centre for Environmental Rights, working in the Pollution and Climate Change Programme. The opinions expressed in this article are solely those of the author. No inference should be made on whether these reflect the editorial position of GroundUp.

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