Priority Area designation

At a global scale, South Africa still enjoys a fair status in terms of air quality as compared to major global polluters.  However, as a fast developing country attracting a pool of industrial activities, local trendscould be severe and worsening with time.  Scientific studies such as the Nedlac study on airborne measurement of pollution in South Africa (2006) have confirmed that locally there are areas that suffer extremely poor air quality.  People living in these areas therefore do not enjoy their Constitutional rights to an environment which is not harmful to their health and wellbeing. 

Given this situation, among others, a legislative mechanism was devised, developed and included in the Air Quality Act that provided the following key strategic elements for air quality management:

• Focussing limited resources– the specialist or dedicated air quality management related human, financial and technological resource base in South Africa is currently very limited. As such, there is a risk that these resources could be stretched beyond their capacity to ensure efficient and effective air quality improvements if they are required to simultaneously address all the air quality problems currently experienced in South Africa. The Priority Area approach as described by the Act allows for the focussing of limited resources into dealing with recognised hot-spots and, in so doing, build the necessary capacity to deal with other problem areas in a pragmatic, step-wise, fashion.
• Formalising intergovernmental cooperation – although pollution control and environmental management in general are functions listed in Schedule 4A of the Constitution (i.e. functions of concurrent governance), air pollution is specifically listed in Schedule 4B (i.e. a local government function). Although this situation could complicate governance in respect of air quality management as air pollution does not recognise municipal or provincial boundaries, the Priority Area approach described by the Act allows for the management of air quality in problem areas that cross municipal boundaries to be coordinated by province and for problem area that cross provincial boundaries to be coordinated by the department.
• Air-shed management – although certain areas in which air pollutants are emitted may not themselves be regarded as problem area, emissions from these areas may contribute to air pollution in recognised hot-spots. As such, there is a need to consider the so-called air-shed in any plans to deal with hot-spots. The Priority Area approach described by the Act allows for these air-sheds to be carefully defined so that “up-wind” interventions can be made to improve air quality in recognised hot-spots.

The HPA Declaration

The Highveld Priority Area (HPA) was declared by the Minister on 23 November 2007 under the National Environmental Management: Air Quality Act (AQA). The declaration necessitated the development of an Air Quality Management Plan (AQMP) for the area, with the Department of Environmental Affairs and Tourism (DEAT) as the lead agent.

Declaration Criteria

In terms of Section 18(1) of the National Environmental Management: Air Quality Act (Act No. 39 of 2005) (hereinafter “the AQA”), the Minister may, by notice in the Gazette, declare an area as a priority area if the Minister reasonably believe that – (a) ambient air quality standards are being, or may be, exceeded in the area, or any other situation exists which is causing, or may cause, a significant negative impact on air quality in the area; and (b) the area requires specific air quality management action to rectify the situation.

In terms of Section 18(2) of the AQA, the Minister may declare an area as a priority area if - (a) the negative impact on air quality in the area - (i) affects the national interest; or (ii) is contributing, or is likely to contribute, to air pollution in another country; (b) the area extends beyond provincial boundaries; or (c) the area falls within a province and the province requests you to declare the area as a priority area.

Notwithstanding the above, before the Minister may declare an area as a priority area, in terms of Section 18(4), the Minister must follow a consultative process as provided for in Sections 56 and 57 of the AQA. In this regard, in terms of Section 56(1), the Minister must follow an appropriate consultative process. In terms of Section 56(2), such a process must include: (a) consultations with all Cabinet members whose areas of responsibility will be affected by the declaration of a Priority Area; (b) consultations with the MECs responsible for air quality in each province that will be affected by the declaration of a Priority Area; and (c) allow public participation in the process in accordance with Section 57.

With regard to the latter, Section 57(1) requires the Minister to give notice of the proposed declaration of a Priority Area - (a) in the Gazette; and (b) in at least one newspaper distributed nationally or, in at least one newspaper distributed in the Priority Area. In accordance with Section 57(2), the notice described above must - (a) invite members of the public to submit written representations on or objections to the declaration of a Priority Area to you within 30 days of publication of the notice in the Gazette; and (b) contain sufficient information to enable members of the public to submit meaningful representations or objections.

In respect of Section 57(3), the Minister may in appropriate circumstances allow any interested person or community to present oral representations or objections to you, or a person designated by you.  In terms of Section 57(4), the Minister must give due consideration to all representations or objections received or presented before declaring an area a priority area.

Action Triggered by a Priority Area Declaration

Once the Minister has declared a priority area as described above (3.1), in terms of Section 19(1), the national air quality officer must - (a) consult the air quality officers of the affected provinces and municipalities and, thereafter, prepare a priority area air quality management plan for the area; and (b) this plan must be submitted to the Minister within six months of the declaration of the area, or such longer period as the Minister may specify.

In terms of Section 19(4), before approving a priority area air quality management plan the Minister must follow the consultative process as described above and may require the air quality officer to amend the plan within a period determined by you.

Once the Minister has approved the plan, in accordance with Section 19(5), the Minister must publish the approved plan in the Gazette within 90 days of approval and the approved plan takes effect from the date of its publication.

In terms of Section 19(6), a priority area air quality management plan must - (a) be aimed at co-ordinating air quality management in the area; (b) address issues related to air quality in the area; and (c)        provide for the implementation of the plan by a committee representing relevant role-players.

In terms of Section 20, the Minister may also prescribe regulations necessary for implementing and enforcing approved priority area air quality management plans, including - (a) funding arrangements; (b) measures to facilitate compliance with such plans; (c) penalties for any contravention of or any failure to comply with such plans; and regular review of such plans.

Finally, in terms of Section 18(5), the Minister may, by notice in the Gazette, withdraw the declaration of an area as a priority area if the area is in compliance with ambient air quality standards for a period of at least two years. In this regard, in terms of Section 19(7), a priority area air quality management plan lapses when the declaration of the area as a priority area is withdrawn.

A consortium led by uMoya-NILU and comprising of SE Solutions, as the project manager, Environmental Science Associates, as technical specialists, and Afrosearch, as public participation specialists have been appointed to develop the AQMP.

In order to contribute to the overall project objective, the project has the following three immediate objectives:

Immediate Objective A: The Participation Objective

The draft Highveld Priority Area Air Quality Management Plan is developed in accordance with the spirit and letter of the cooperative and participatory governance requirements and principles contained in Chapter 3 of the Constitution, the NEMA, Government Policy on Integrated Pollution and Waste Management (2000) and the AQA.

Immediate Objective B: The Planning Objective

The draft Highveld Priority Area Air Quality Management Plan submitted, for approval by the Minister on 1April 2010, represents a plan based on current, accurate and relevant information, informed by best practice in the field of air quality management and that provides a clear and practical plan to efficiently and effectively bring air quality in the area into sustainable compliance with national ambient air quality standards within agreed timeframes.

Immediate Objective C: The Capacity Development Objective

Affected government departments are capacitated on the process of developing the Highveld Air Quality Management Plan and also assisted in the initial implementation of the Plan for efficient and effective management of all future priority areas.

Dear family members, kindly note the draft HPA AQMP has been published in the Gazette for public comments.  A comprehensive report is available for download on the documents page. Please submit your comments by 21 June 2011 to uMoya-NILU Consulting (yegeshni@umoya-nilu.co.za ; fax: 0866135460)