COMPLAINT CONCERNING VIOLATION OF CONSTITUTIONAL RIGHT by fny14825

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									COMPLAINT CONCERNING VIOLATION OF CONSTITUTIONAL RIGHT TO
ENVIRONMENT WITH PARTICULAR REFERENCE TO FAILURE TO
REGULATE BY CHIEF AIR POLLUTION CONTROL OFFICER




EXECUTIVE SUMMARY



1.   Communities in the South Durban area and in the Milnerton area of Cape Town have
     for decades complained of the ill effects on their health caused principally by air
     pollution emissions from oil refineries as well as other large industries in the area. In
     Durban the legacy of apartheid has ensured that black communities still bear the brunt
     of the ill health effects of large components of South Africa‟s heavy industry. In this
     area poverty and overcrowded living conditions are coupled with constant exposure to
     high concentrations of a cocktail of toxic and unhealthy air pollutants. International
     and local studies have correlated these conditions with ill health, especially of the
     young, aged and asthma sufferers.


2.   Despite the advent of the constitutional right to an environment which is not
     detrimental to health and well being and the constitutional obligation on the state to
     take reasonable measures to ensure compliance with this right, these communities have
     seen little change in their environmental circumstances since 1994. Despite numerous
     approaches to senior levels of national government, no meaningful regulatory
     interventions have been made to date which would address the problem in a satisfactory
     way. The task of assessing and taking measures to improve air quality falls under the
     Department of Environmental Affairs and Tourism Chief Air pollution Control Officer,
     under the Atmospheric Pollution Prevention Act. This official has failed to take
     reasonable steps to assess and reduce the principle constituents of air pollution in the
     area., through controls on industries scheduled under this act.


3.   Communities have in their own way attempted to find solutions to their problems.
     They have obtained technical and legal help and engaged with industries in the area in
     an attempt to get them to reduce their pollution voluntarily. They have engaged in local
     forums in order to set standards and monitor pollution levels in partnerships with
     industry and local government. However successful this has been in certain instances,
     this approach can never fully address the problem. These approaches rely on
     voluntarism, and without compulsion of law can only extend to the degree that suits
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     industry. The problem also involves many actors, and communities do not have the
     resources to secure the co-operation of each of these plus monitoring of compliance
     with agreements. Furthermore, in the light of the State‟s constitutional obligation to
     protect the health of its citizens, it is untenable that poor and previously disadvantaged
     communities should be left to regulate their environment themselves.


4.   This submission sets out the history of engagement between communities and the Chief
     Air Pollution Control Officer and various other officials of the Department of
     Environmental Affairs and Tourism. It requests the intervention of the Minister in
     order to take the necessary steps to embark on a program of action which will result in
     the removal of unhealthy levels of air pollution in the Durban and Milnerton Areas.
     Communities in Durban represented by the South Durban Community Environmental
     Alliance and in Milnerton represented by the Tableview Residents Association request
     meeting with the Minister in order to attempt to address these problems.




HISTORY OF COMPLAINT




     1.In South Durban Communities have complained for the last 50 years about effects on their health
     caused by oil refining in the area. As far back as 1954, Dr Goldberg wrote:


      “Yet there must be few, if any, of us on the Bluff who have not had the unpleasant
     experience of inhaling the evil, vile, and filthy fumes which pour unabated from the
     Stanvac Oil Refinery Company. Has this cloud of dense, heavy nauseating fog which
     settles so charmingly on our homes and gardens and affect our health.


     Without doubt, without fear of contradiction, the health of the population is and will
     suffer as long as this menace continues. Apart from the mere unpleasantness the smell
     had brought with it, a train of symptoms which are both disturbing and demoralising.
     As a doctor I was first tempted to regard the complaints of my patients in respect to the
     odour as „mass oil refinery hysteria‟, but I was soon shocked to know that the
     complaints were very real and that the residents health would suffer to a marked degree.


     Amongst the most common complaints are headache, running nose, sore throat, watery
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eyes, biliousness, sleeplessness, vomiting, tightness in the chest, cough, asthma, hay
fever, rhinitis, migraine, bronchitis and many other diseases falling into the „sensitivity
allergic group‟.”


2.The complaint was brought to the attention of President Mandela in 1995 when communities protested
outside the Engen Refinery during a meeting between the then President and refinery management (25
March 1995).       Residents from the communities Austerville, Wentworth, Merebank, Bluff and
surrounding areas had been protesting about the air pollution in the South Durban area for years. In a
medical study at the time Dr Barry Kistanasamy had found that children in a Merebank school have more
than 3 times the rate of respiratory ailments as compared with a sample outside the polluted area. High
level of sulphur dioxide and volatile organic compounds are emitted by two refineries and other
industries.   At an indaba at the Durban City Hall on 4 May 1995 the then Deputy Minister of
Environmental Affairs & Tourism stated that the Ministry “has initiated a major project to develop a
national holistic policy of integrated pollution control for South Africa management by a committee
representing various government departments”.


3.At a meeting between the Deputy Minister of Environmental Affairs & Tourism of 27 February 1996,
the Deputy Minister indicated that the department intended appointing an independent team to evaluate
not only the Engen Refinery but all refineries in South Africa in order to determine whether the current
standards of emissions were reasonable.         Thereafter it was the department‟s intention to obtain
agreement on new standards in view of the fact that communities adjacent to refineries were demanding
further reductions in emissions. As this process was expected to take some time it was agreed that in the
interim the refineries would be evaluated for purposes of ascertaining whether reductions could be
achieved in the short term without significant changes in the configuration of refineries and without
considerable capital expense. Requirements for such change would be reflected in refinery permits. The
next meeting was convened for 19 March 1996.


4.Subsequent to the undertaking by the Ministry to review standards regulations and control and
management of effluent emissions from refineries and similar installations, there have been numerous
meetings between the South Durban communities and local authorities, industry and officials of the
Department of Environmental Affairs & Tourism with a view to hastening the reduction of emissions of
pollution from these large installations. This local initiative took the step of setting ambient air standards
for certain pollutants, which are more stringent than the South African national guidelines. They also set
about monitoring pollution levels and documenting exceedences of these standards, the World Health
Organisation standards and the South African guidelines.




5.On 20 June 1996 a meeting of the oil industry and the Chief Air Pollution Control Officer was held
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where a submission by communities was made suggesting certain reductions of emissions in particular
sulphur dioxide emissions. These proposals were very much in line with undertaking which had already
been made in the case of the Caltex Oil refinery in Cape Town for environmental improvements. A
justification for these proposals was subsequently also sent to the department.


6.Despite the undertaking of the Deputy Minister of Environmental Affairs & Tourism to appoint an
independent team to evaluate refineries in order to determine whether the current standards of emissions
were reasonable, this did not take place. Instead the Chief Air Pollution Control Officer continued to
deal with the issue and set about drafting a new set of guidelines for pollution emissions from the oil
industry. These guidelines were rejected as inadequate by communities. To date they have failed to
make an appreciable or adequate improvement to air quality in these two areas.


7.The interaction between the Chief Air Pollution Control Officer and these communities thereafter can
be summarised as follows:
The Chief Air Pollution Control Officer rejected submissions by communities for more
stringent controls on in particular Sulphur Dioxide, the main emission. They were
advised that their proposals would depend on “the very latest available abatement
technology in order to meet the extremely high levels of control demanded in (their)
proposal irrespective of the financial implications or whether it is indeed essential for
the protection of the public and the environment”. The Chief Air Pollution Control
Officer was advised that this was an incorrect reading of the communities‟ proposal.
Various questions were then asked of the Chief Air Pollution Control Officer in order to
determine whether he had considered :
         7.1.what modern technology was available to prevent the pollution;
         7.2.what studies had been done regarding the toxic emissions that were released from refineries;
         7.3.what the costs would be of pollution technology;
         7.4.what studies had been done regarding the air quality and the effect of the pollution on health;
         7.5.what steps had been taken against transgressors of air quality standards.


8.The Chief Air Pollution Control Officer was unable to respond to this letter “due to severe manpower
shortage”. All indications are that to date none of these studies have been done.


9.Subsequent to this correspondence a set of guidelines was adopted by the Chief Air Pollution Control
Officer. These guidelines do not contribute in any meaningful way to improvement in air quality in the
vicinity of the Engen, Sapref and Caltex oil refineries.


10.The guidelines for air pollution control still do not give emission limits for sulphur dioxide but merely
say “emission must in all cases be limited to a level that would ensure that ambient concentrations do not
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    exceed the guideline limits”. The emissions of volatile organic compounds which are often the most
    toxic are not subject to any rigorous control but merely subject to vague statements such as “spills and
    leaks shall be avoided at all times” and “a programme to abate fugitive emissions shall be carried on an
    ongoing basis”. This approach has resulted in a virtual continuation of the status quo.


ACTION TAKEN BY COMMUNITY


    11. In the light of our these communities continued dissatisfaction with the air quality in their
    neighbourhood and the effect on their health, protect action was undertaken in Durban .
    12.The Engen Oil Refinery in 1998 finally agreed to a refinery improvement plan which is far more
    stringent than the regulation by government. In August 1998 the communities of South Durban who had
    formed an alliance named the South Durban Community                Environmental Alliance approached
    government together with the Engen management in order to ask the Chief Air Pollution Control Officer
    to change the permit to reflect the more stringent controls imposed by the agreement between them. The
    Chief Air Pollution Control Officer took more than 10 months to alter the permit.
    13.In Cape Town the Caltex Oil Refinery undertook an 80% reduction in sulphur dioxide emissions in
    1995 but in 1997 declined to implement this undertaking. Communities at a subsequent meeting
    complained to the Chief Air Pollution Control Officer that Caltex continued to pollute the atmosphere in
    the vicinity of the refinery to an unacceptable level and called on government to compel Caltex to comply
    with its undertakings to reduce sulphur emissions to the level of 8 tons per day as undertaken by the
    refinery in 1995. The Chief Air Pollution Control Officer has declined to assist these communities, or to
    evaluate in any meaningful way the extent of the problem..


    14.In regard to the Sapref Refinery in Durban, Sapref emits a large quantity of sulphur dioxide into the
    atmosphere and by its own admission 2 to 3 times the amount that it would be permitted to emit in a
    European country, and about 10 times the amount that it would emit from a Scandinavian refinery.


    15.The Sapref Refinery has linked the reduction of sulphur dioxide emissions at the refinery to a massive
    expansion of the refinery. Communities in South Durban are opposed to the increase of petro-chemical
    industries in the South Durban area given the history of pollution and disease in the area. To date, apart
    from the revised guidelines issued by the Chief Air Pollution Control Officer which in the view of South
    Durban communities make little difference to the air quality surrounding Sapref, the Chief Air Pollution
    Control Officer has made little or no attempt to improve the standard of emissions from Sapref.


    16.Other polluters : The oil refineries of Durban and Cape Town are not the only polluters which cause
    distress and ill health to our clients. There are a number of scheduled industries in the vicinity of the
    Engen and Sapref refineries in Durban which fall under the control of the Chief Air Pollution Control
    Officer. In Cape Town the Kynoch factory causes high levels of visible pollution on a daily basis. Little
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      or no abatement of this pollution has taken place in the last 5 years due to the inaction of the Chief Air
      Pollution Control Officer.




ISSUES RELATING TO SPECIFIC AREAS

South Durban


      17.South Durban is a highly industrialised area which is also inhabited by a large number of low income
      communities. The Department of Trade & Industry has indentified South Durban as an area of industrial
      development which is of considerable importance to the economy of South Africa in general. The major
      obstacle to development in South Durban is the current level of air pollution.        The South Durban
      Strategic Environmental Assessment1 has concluded that “SO2 is the pollutant which poses a high health
      risk in South Durban. Current maximum ambient air concentrations exceed the regulatory standards
      over one hour, 24 hour and annual averaging periods. These concentrations extend over the whole study
      area”. This conclusion vindicates the views of residents in the area expressed over many years that S02
      concentrations are very high and the current pollution levels affect their health.


      18.Studies completed by Dr Eugene Cairncross the expert advisor to the South Durban Community
      Environmental Alliance indicates that sulphur dioxide emissions should be reduced by at least 75% in
      order to comply with health based World Health Organisation guideline value 2. These values are looked
      at in the absence of other pollutants in South Durban a cocktail of toxic and dangerous air pollutants
      contributes to the effect of sulphur dioxide on human health. Environmental justice demands that poor
      working class areas, which suffer the major pollution burden in South Durban have the right to demand
      environmental standards at least equal to that of middle class and rich neighbourhoods3.


      19.The Sapref and Engen oil refineries are responsible for about 70% of the total SO2 emissions. The
      remaining 30% of SO2 emissions are contributed by other industrial sources most of which are scheduled
      industries under the control of the Department of Environmental Affairs & Tourism.


      20.To date only the Engen Oil Refinery has undertaken a progressive reduction programme in SO2

               1
                The South Durban Strategic Environmental Assessment is a study commissioned by the
               Durban Metropolitan Council in order to assess the environmental issues and constraints
               surrounding development options for the area
               2
                See Paper entitled “South Durban Strategic Environmental Assessment - Proposals for
               reducing sulphur dioxide emissions” By Dr E Cairncross
               3
                National Environmental Management Act - Principle 2 (4) (c)
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     emissions which is the result of a private agreement between Engen and adjacent communities.
     Government played almost no role in forcing Engen to improve its emissions standards. The Engen Oil
     Refinery improvement plan is a result of many years of protest action by the South Durban communities.
     These communities are forced to resort to protest action due to the continued assault on the health by
     local industry. Plans to expand industry in the South Durban area will inevitably be frustrated by
     disputes over air quality.


     21.At a recent meeting between South Durban residents, local authority officials and the Department of
     Environmental Affairs & Tourism an SO2 emission reduction strategy was discussed.           However the
     Department of Environmental Affairs & Tourism indicated that it “did not have the capacity” to ensure
     the reduction in SO2 emissions from all scheduled industries in the area.     The local authority did not
     have the power nor the inclination to do so either. Although proposals were put on the table for the
     replacement of coal and fuel burning appliances with fuel gas, a clean energy source, these proposals can
     go no further without the active assistance of the Department of Environmental Affairs & Tourism which
     is the only government body capable of setting standards for sulphur dioxide emissions. More stringent
     controls on sulphur dioxide emissions would force these industries to consider the question of the
     provision of fuel gas seriously.   Furthermore it is only the Department of Environmental Affairs &
     Tourism which can regulate emissions from mobile sources such as diesel based emissions effectively.


Cape Town :


     22.In the last 5 years community organisations has negotiated with the Caltex Oil Refinery for a
     reduction in SO2 emissions as well as the emission of numerous other chemicals released by the refinery.
     The residents raised their concerns regarding the pollution levels from the Caltex Oil Refinery and the
     Kynoch factory next to it with the Chief Air Pollution Control Officer on a number of occasions.


     23.While Caltex has reduced its emissions to some extent it has refused to comply with earlier
     undertakings to reduce sulphur dioxide emissions to 8 tons per day.      Emissions of particulate matter
     from Kynoch continue unabated.


     24.Residents continue to complain regarding degraded air quality. Sulphur dioxide levels in the area
     have not improved appreciably over the past 5 years despite reductions in emissions by Caltex. The
     local authority is furthermore not measuring the emissions of particulates and can therefore not
     demonstrate the particulate level in the air caused by Kynoch.


     25.The communities which reside in the vicinity of Caltex have received little or no support from the
     Chief Air Pollution Control Officer over the years and have contributed significant time and resources to
     attempting to improve their environmental health. Were it not for their own initiative, the air quality in
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       the area would no doubt have been significantly worse. These communities are dissatisfied with the
       apathetic role played by government despite the fact that the constitutional right to an environment which
       is not detrimental to health and wellbeing is enshrined constitutionally. Communities still continue to
       complain about ill health effects from living in these areas.


Request

The Minister is requested to convene a meeting between residents of South Durban and Table
View in order to address the following concerns:


       26. The need for an independent review of refinery emission standards to be conducted by the
       Department of Environmental Affairs & Tourism in line with the undertaking of the Deputy Minister of
       1996.


       27.The convening of a meeting between industry and the Department of Environmental Affairs &
       Tourism with a view to developing a strategy for reduction of sulphur dioxide by means of employing
       possible other energy sources, for example natural gas


       28.The Chief Air Pollution Control Officer has based his guidelines on the South African ambient air
       guidelines which are no guarantee of protection of “any section of the public against the emission of
       poisonous or noxious gases as required by the Atmospheric Pollution Prevention Act. “ The ambient air
       guidelines are in fact far less stringent than the current World Health Organisation standards. The
       Minister is called upon to take steps to promulgate a set of ambient air standards which will be more
       protective of health.


       29.The air pollution abatement technology prescribed in the past and up to the present in South Africa for
       oil refineries and other industries has not succeeded in preventing exceedences of the South African air
       quality standards in the past. The ongoing exceedences in the South Durban area are a violation of our
       clients right to health and well being and an obstacle to future industrial development in this important
       economic zone. The Minister is called upon to enact source emission limits for all industries and for
       defined pollutants which will prevent deterioration of air quality, and subsequent ill health effects.


       30.The Department of Environmental Affairs & Tourism does not monitor emissions of “all poisonous or
       noxious gases” which it should be doing in order to comply with its obligations in terms of the
       Atmospheric Pollution Prevention Act. The result is that too few controls are imposed on these
       scheduled industries and our clients continue to suffer ill health effects. Adequate assessment of
       emission quantities from sources, monitoring or air quality and modelling of pollution movements and
       concentrations must be embarked upon as a matter of urgency in areas of significantly deteriorated air
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       quality.


We look forward to your response.


Legal Resources Centre
For: South Durban Community Environmental Alliance and Table view Residents Association
54 Shortmarket St
Cape Town
16 September 1999


per Ms A Andrews




                                                                                   A:\MEMO.1

								
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