Recent developments relating to emissions standards

On 27 March 2020, the Minister of Environment, Forestry and Fisheries, Barbara  Creecy, published further amendments to the Listed Activities under the National Environmental Management: Air Quality Act, 2004 (Amended NEMAQA Listed Activities), the effect of which is to amend the minimum emission standards of Solid Fuel Combustion Installations triggered under Category 1.1.

Existing solid fuel combustion installations used primarily for steam raising or electricity generation, with design capacities equal to or greater than 50 MW heat input per unit, are now required to comply with the new plant emission limit of 1000 mg/Nm3 for sulphur dioxide (SO2) (an increase from the previous 500 mg/Nm3). The compliance timeframe for existing plants to comply with the same minimum emission standards as new plants remains 1 April 2020, unless where specified or subject to the postponement or suspension provisions.

"Existing plant" means any plant or process that was legally authorised to operate before 1 April 2010, or one for which an application for an Environmental Authorisation (EA) was made prior to 1 April 2010. A new plant, in turn, refers to a plant or process for which an application for an EA was made on or after 1 April 2010. Strict compliance timeframes are prescribed, requiring that, among other things, existing plants must comply with minimum emission standards for new plants by 1 April 2020 (today).

What about pending postponement or suspension applications?

According to the Amended NEMAQA Listed Activities, an existing plant to be decommissioned by 31 March 2030 may apply to the National Air Quality Officer before 31 March 2019 for a once-off suspension of timeframes for compliance with the minimum emission standards required for new plants.  Applications have been made by various power generation facilities to defer compliance with the emission limits stipulated in the NEMAWA Listed Activities. The compliance date for those who did not apply for suspension or postponement remains 1 April 2020. But what does this mean for those with pending suspension or postponement applications?  Must they comply with minimum emission standards for new plants on 1 April 2020?

The Amended NEMAQA Listed Activities provides clarity on this issue. It stipulates that an existing plant that has been granted a once-off suspension of the compliance timeframes must comply with minimum emission standards for existing plant from the date of granting of the application and during the period of suspension until decommissioning. That means the new plant limits will not be applicable to those facilities that have successfully obtained a postponement.

Transitional arrangements have not been provided for those facilities with pending applications and therefore, in terms of the law, the limit requirements at 1 April 2020 will be applicable.  The amendment to the new plant emission limit of 1000 mg/Nm3 for sulphur dioxide (SO2) is a relaxation of the previous limits. It will undoubtedly be welcomed by industry (although we understand that this limit will still not be achieved by the majority of Eskom's aged infrastructure) and scorned by environmental activists.