Submission to the Portfolio Committee: Environmental Affairs and Tourism on the National Environmental Management: Air Quality Bill (B52B -2003)

by M-L Roux, Executive Officer: Habitat Council

30 January 2004

We appreciate the opportunity to make a submission to the Portfolio Committee on the present draft Bill, and would welcome the opportunity to appear before the committee at one of the public hearings.

We particularly welcome the fact that the Bill provides for public participation and a consultative process (see Section 53 and 54 and elsewhere) prior to the exercise of powers provided by the Bill. We would however have liked more time for preparing this submission, to have been able to set out our concerns more adequately. The main concerns are:

1.Failure of Act to make provision for Appeals against decisions

A crucial omission in our view is the failure of the Bill to make explicit provision for a process of appeal against the decision(s) of a licensing authority.

We request that the provision under S 37 (Decisions of licensing authority) which deals with the granting or refusal of a license to operate a potentially air polluting activity should be expanded. We suggest that a subsection (d) be added to 537 (3) to include the provision that both the applicant and objectors may appeal a decision on a licensing application.

Chapter 8, S50 (Regulations by Minister) (p 20) refers to regulations which the Minister may make regarding appeals, namely

S50 The Minister may make regulations that are not in conflict with this Act regarding -

(1) appeals against decisions by officials in the performance of their function in terms of the regulations

We are not sure whether the above Subsection is to be read as providing a procedure for appeals, but it is not does not explicitly provide such a procedure.

We therefore urgently request that, until such time as the Minister may make appropriate appeal regulations in terms of this Act, that the Act shall explicitly direct that the appeal procedure provided in terms of the Environmental Conservation Act (Act 73 Of] 998) and Regulation 11 of Government Notice R 1183 be made applicable to decisions taken with respect to applications for a license in terms of this Act. This will ensure that appeals against the record of decision (the 'written reasons" referred to in S37(3)(a) and (c)) may be lodged with the Minister of

Environmental Affairs and Tourism within 30 days of the decision being made public.


We applaud the fact that the Bill unequivocally supports the application of the Precautionary Principle, and the repeated assurances in the Bill that the Republic's international agreements will receive consideration.

"(2) Before publishing a notice.... the Minister or MEC must (our underlining) apply the Precautionary Principle contained in section 2(4) (a) (vii) of the National Environmental Management Act"

However, we are uneasy about the choice of wording with respect to the honouring of the Republic's international agreement (see S23 (2)(c), which stipulates that

'the Minister or MEC must

(c) consider (our underlining)

(iii) the Republic '5 obligations in terms of any applicable international agreements"

Our Comment: The word "consider" certainly implies that he should "apply his mind", but it allows for the international agreement being rejected or disregarded.

We think here particularly of our country's ratifying the Stockholm (POPs) Convention, a convention which lists dioxins among the 12 most dangerous substances. On the strength of the Precautionary Principle we believe that incineration and pyrolysis should not be considered as acceptable technologies. We fear that this Subsection may means by which the provisions of the Stockholm Convention may be evaded.


Another concern is that the list of guidelines giving the ambient concentrations not to be exceeded for a number of substances, omits two of the most harmful substances, namely dioxin (formed by incineration and by pyrolysis) and mercury (prevalent in the emissions of medical incinerators). (Dioxins are formed in other processes as well, such as veld fires, but incineration is accepted as the principle source of dioxins).

As member of the Global Alliance for Incinerator Alternatives, the Habitat Council has a particular concern about technologies such as incineration and pyrolysis that lead to the emission of dioxins and furans into the atmosphere (and also in the bottom ash produced by burn stacks).

The Habitat Council actually does not favour the setting of "minimum acceptable standards" for the release of dioxins, since these bio-accumulate, increasing throughout a lifespan. In addition, dioxin and furan emissions are also extremely expensive and difficult to monitor on an ongoing basis. It is our conviction that their ambient concentration should be nil parts per million. We therefore believe that no licenses and registration certificates for the installation of new incinerators should be granted. Incinerator and pyrolysis plants should be declared "Controlled ernitters" in terms of Part 3, S23 of the Bill. And dioxin should be declared "a priority air pollutant" in terms of S26 (Pollution prevention plans). With respect to existing incinerators, the provisions of the POPs convention should be followed, namely progressive minimization (as can be achieved through review of the existing license - see 542) and eventual shutdown of the incinerator.

We trust that the Schedule 1 Guidelines will speedily be replaced with enforceable emission standards.


4.1 Implications for State

Point 4 of the Memorandum acknowledges the additional responsibilities which the enactment and implementation of the Bill will lay upon the provincial and municipal spheres of government. We wish to urge that national government will, for such provinces and municipalities as lack sufficient means, where necessary adequately subsidize (as to manpower and expertise) these two lower levels of government so that they can effectively fulfil the tasks entrusted to them. If a situation is allowed to develop where there are areas in which the provisions of this Act are not adequately implemented, the constitutional rights of such citizens to an environment that is not harmful to their health and well-being will be severely compromised.

4.2 Financial implications to communities of erecting and operating incinerators. The financial implications of allowing incinerators to be built, must be faced. Modern incinerators with sophisticated air pollution control equipment are extremely expensive. This kind of investment discourages a community from investing in recycling and other waste disposal alternatives, essentially locking in the community to incineration while it pays back the massive investment involved in building the incinerator.

In support of our position on dioxins and furans, we attach hereto an addendum on Dioxin and the Stockholm Convention, as well as some short points on waste management, since in our view waste management and air pollution problems are so closely interwoven that they can barely be dealt with separately.


Dioxins, the Stockholm Convention on Persistent Organic Pollutants (POPs) and Waste


The Stockholm Convention, the international treaty concluded and signed in 2001 by 127 nations including South Africa with the objective of protecting human health and the environment from the effects of persistent organic pollutants (POPs), identifies dioxins and furans as two of the initial twelve substances being targeted for continuing minimization and ultimate elimination by the global community. The Convention furthermore identifies waste incinerators as principal sources of these dioxins and furans.

Governments targeted these 12 pollutants (eight of them pesticides, two - hexachlorobezine and PCBs - are industrial chemicals, and two - namely dioxins and furans - are produced only as unintentional byproducts) because they are extremely dangerous to human health. In fact, the EPA describes dioxin as "one of the most, if not the most, potent reproductive/developmental toxicant known". Dioxins are classified as persistent organic pollutants (POPs) ("persistent", since once they are manufactured, they resist being broken down).

The Convention does not explicitly ban incineration, but it places serious obstacles in the path of any incineration project. The Convention states in Annexure C that "waste incinerators, including co-incinerators of municipal, hazardous or medical waste or of sewerage sludge; and cement kilns firing hazardous waste" are among the technologies that have the potential for comparatively high formation and release of such unintentional POPs. In fact incinerators are sources of four of the 12 listed pollutants, namely: dioxins, furans, PCBs and hexachorobenzine. As such, incinerators as a class are clearly subject to the restrictions of the Stockholm Convention". (pp77-78, Waste Incineration: A Dying Techno/ogy 2003).

Internationally, there has been a move away from incineration. This is true in America, India, Greece, Germany, France, Japan, Turkey, the Netherlands, Costa Rica and the Philippines. However, one of the consequences of this is that incinerator companies are now aggressively touting their technologies in Eastern Europe and the Southern hemisphere as incinerator markets shrink in the global North. Numerous scientific studies conducted over the years, worldwide, have shown that incinerators can emit over 100 chemical pollutants, some of which are human carcinogens, endocrine disrupters and immune system disrupters. Medical waste incinerators produce more pollutants and more toxic pollutants than do municipal waste incinerators. Incinerators do not make waste disappear - they reduce it to bottom ash and to atmospheric emissions, both of which are potentially hazardous.

Dioxins, once formed, resist being broken down. They remain in the environment for a long period of time and build up the food chain. While dioxins may enter the human body through breathing polluted air, the primary way they are ingested is through eating the meat and dairy products from animals which have been exposed to dioxins. Airborne dioxins settle on grass, which is digested by cows, sheep and other animals, which in turn are digested by humans. At each successive level of the food chain, the dioxins bio-accumulate.

More and more information is becoming known about the dangers of dioxins. Its toxicity is frightening. Dioxin was the toxic component of Agent Orange, which left such a legacy of human suffering in Vietnam. They are carcinogenic, they depress the immune system and disrupt the reproductive and hormonal Systems. Dioxins have been linked to immune system depression, birth defects, an increase in glucose intolerance leading to diabetes, cancer mortality in workers and community residents, a decline in the sex ratios of boys to girls, decreased size of male genitals, spontaneous abortions and a decline in male sperm count.

· One gram of dioxin (approximately the size of a Smartie) is enough to contaminate one million people..

· There are no "safe' levels of dioxins. Exposure to any amount of dioxin, no matter how small is dangerous.


The drawbacks of incinerators are well known. They extremely expensive to construct and operate. Disposing of the ash residue from incinerators is also expensive as it needs to be treated as a hazardous substance. All ash residue from incinerators should be disposed of in an ash monofill. Under no circumstances should "recycling" or so-called "beneficial uses" of this potentially hazardous ash residue be allowed (i.e., for use in construction materials, road building, or fertilizers).

The Stockholm Convention gives preference to the use of non combustion-based approaches to the management of waste, including the disposal of stockpiles of hazardous waste by alternative methods. Allowing the construction of hazardous and other waste incinerators is therefore contrary to the spirit and intent of the Stockholm Convention.

We need to move away from incineration as a polluting technology, to alternative clean production technologies and to promote reducing, reuse and recycling of waste. Such practices will not harm our communities and the environment and contribute to sustainable development in our country.


The best possible alternatives to incineration are waste reduction, and separation of waste at source. This applies to medical waste as much as to household and other solid waste. For medical waste, autoclaving and micro-waving are technologies which have been proven effective.

In the case of the destruction of armaments, the US Congress in 1996 initiated an Assembled Chemical Weapons Assessment program. Four of the six technologies investigated passed testing: neutralization and biological treatment; neutralization and supercritical water oxidation; neutralization, supercritical water oxidation and gas phase chemical reduction; and electrochemical reduction. The two technologies which did not pass muster were Startech's plasma arc and Teledyne Commadore's Solvated Electron Technology. (Plasma Arc technology has been touted around South Africa as an acceptable method - which it is NOT). It is important to note that the Environmental Protection Agency has found that the four successful technologies listed above may be used for the safer treatment of a wide range of hazardous wastes such as PCBs, pesticides and other contaminated materials, treating these in a contained controlled manner. However, as a general principle it must be stated that end-of-pipe solutions are not adequate substitutes for waste prevention and toxics minimization.

Municipal solid wastes likewise need to be separated at source into organic and inorganic categories (so-called 'wet' and 'dry' categories), the 'wet' component to be composted, the'dry' to undergo reduction, reuse and recycling. (Manufacturers need to be encouraged to stop producing substances which cannot be recycled, reused or composted.)

It has been found that these methods of dealing with the non-toxic section of household waste can recover between 45% to 75% of the original volume, thus reducing the pressure on landfills. Some of the cost incurred by recycling can be recovered by selling the re-usable materials. (eg Amandla Waste Creations in Johannesburg). Furthermore, separating and recycling waste provide opportunities for employment of local people, and money so spent remains in the community.

The same principles are reflected in the National Waste Management Strategy (NWMS) Strategic Options Discussion Document (3 August 1998).


We are proud and grateful that our government has ratified the Stockholm treaty. We must now put our faith into its honouring the spirit of the this important treaty, and safeguarding its citizens' health and welfare.


I wish to acknowledge help from Mr Llewellyn Leonard, Waste Projects Co-ordinator of groundWork, Pietermarizburg, in the compilation of this submission.

Marie-Lou Roux, Habitat Council (Tel: 021 465 3972)