Appeal in terms of section 35(3) of the environment conservation act 73 of 1989



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APPEAL IN TERMS OF SECTION 35(3) OF THE ENVIRONMENT CONSERVATION ACT 73 OF 1989



TO:

THE HONOURABLE MEMBER OF THE EXECUTIVE COUNCIL,

Prof. LBG Ndabandaba

MEC Agriculture and Environmental Affairs

KwaZulu-Natal
KZN DAEA Ref: EIA/4356
Ex parte:

SOUTH DURBAN COMMUNITY


ENVIRONMENTAL ALLIANCE Appellant
_­­­­_________________________________________________________________

APPELLANT’S NOTICE OF APPEAL


__________________________________________________________________
Against the Kwa-Zulu Natal Department of Agriculture and Environmental Affairs’ authorization to Mondi Paper, Merebank to construct a 90 ton multi-fuel boiler (MFB), to rebuild Paper Machine No 1 (PM1) and to the installation of flue gas desulphurisation (FGD) on existing coal fired boilers.


KINDLY TAKE NOTICE THAT SDCEA hereby appeals against the decision of the Kwa-Zulu Natal Department of Agriculture and Environmental Affairs giving Mondi (a division of the Anglo American Plc), authorization to construct a 90 ton multi-fuel boiler (MFB), to rebuild Paper Machine No 1 (PM1) and to the installation of flue gas desulphurisation (FGD) on existing coal fired boilers at the Mondi Paper Mill in Merebank, Durban, on the facts and grounds set out herein below.
1.

INTRODUCTION

This appeal is brought by the South Durban Community Environmental Alliance (SDCEA), an alliance of voluntary community organizations based in the South Durban. The SDCEA voices the consensus view of its organisational members however it also seeks to canvas public opinion by holding public meetings, conducting surveys and generally inviting community feedback to their offices. The SDCEA will from time to time request and then receive a public mandate in open public meetings attended by the broader community. Such a mandate will direct SDCEA to act or otherwise establish a position on matters affecting the environmental rights of residents in the South Durban. This appeal has arisen in consequence of such a mandate and is the second such appeal lodged by SDCEA regarding the proposed construction of a MFB at the Mondi site.



Residents are opposed to this development, as can be seen by the signatures on the petition in Appendix 1 (over 5400 signatures)

The earlier proposal has been significantly expanded and modified so as to now contain elements that introduce significant new concerns relating to the project which have either not been adequately addressed in the assessment phase or alternatively simply ignored in the formal evaluation of the proposal itself.


2.

The application identified by Mondi (the Applicant) is for approval for the following activities: the rebuilding of paper machine No 1 (PM1); the construction of a multi-fuel boiler (MFB) and the installation of flue gas desulphurisation equipment on existing coal-fired boilers. In the draft and final Environmental Impact Report (EIR) a further requirement was introduced namely that additional land is now required and that Mondi therefore proposes entering into a long term lease agreement with eThekwini Metro Municipality over the municipal owned ‘Eastlands’. This requirement for land was not presented in the earlier (70 ton MFB) EIA and is insufficiently highlighted or simply ignored as a project activity in both the Position paper and the Background Information Document (BID) to the current (90 ton MFB) proposal. Similarly the requirement to store significant quantities of diesel on the leased land was not formally identified in any of the initial promotional material made available to the public nor does it appear in the detailed proposal as set out in the executive summary to the Final EIR.


3.

It will be shown in this Appeal that:




  • The DAEA has selectively assessed the environmental impacts posed by the combined Mondi development so as to artificially present a picture of little or low impact. It is submitted that the DAEA in authorising this polluting activity have failed to take into account section 2(4)(c) of NEMA, which stipulates that ‘Environmental justice must be pursued so that adverse impacts shall not be distributed in such a manner as to unfairly discriminate against any person, particularly vulnerable and disadvantaged persons’.

  • Whereas the surrounding community suffered under the effects of past apartheid planning practices that sought to place poor and black communities cheek by jowl with heavy industry, that the erosion of the open space buffer zone represented by Eastland’s in effect perpetuates the planning practice and amounts to environmental racism

  • This ROD will lead to a unfair distribution of environmental impacts on a community that has long suffered the impacts of expropriation, industrialisation and subsequent pollution

  • This activity is contrary to the right to equality contained in Section 9 of the Bill of Rights and Section 12(2) the right to bodily and psychological integrity. The development will see a marked rise in emitted mercury and oxides of nitrogen well beyond international (EC) limits with no assurance that desk top studies in any way reflect reality

  • The Applicant’s assertion that air emissions are the primary concern masks the fact that other very serious environmental and social impacts will result from the project ranging from noise, increased heavy road transport, loss of visual amenities and psychological disturbance resulting from the industrial footprint

  • No Environmental Impact Assessment for the change of land use on the Eastlands site has been done notwithstanding that an EIA is a legal pre-requisite in terms of Environmental Conservation Act 73 of 1989 (ECA) and Regulations promulgated hereunder (GN 1182 and 1183). The failure by DAEA to order such an EIA amounts to a procedural non-compliance.

  • The positive ROD will lead to the job losses in the community as well as elsewhere in the country. The economic assessment is flawed in this regard and the DAEA in turn granting a positive ROD fail to meet the requirements of NEMA section 2(2) and Section 2(3). (See Appendix 2).

  • There was recognition of the communities’ incapacity to understand and interpret technical reports and that in connection therewith it was agreed that a peer review of the EIA would be commissioned. Although this offer was accepted by community and agreed to by Mondi, the applicant proceeded to the Record of Decision (ROD) stage. The decision to proceed to ROD is considered an act of bad faith, contrary to the existing agreement, and contrary to the principles of NEMA concerning capacity building and empowerment. Depending on the facts the decision to proceed to ROD could amount to an unfair administrative action on the part of DAEA.

  • That contrary to DEAT’s stated policy on the phasing out of dirty fuel use, Mondi’s coal consumption will increase from 169000 tons p.a. to 232000 tons per annum (37% increase). Carbon dioxide emissions will also increase contrary to the undertakings implicit in South Africa’s signing of the Kyoto protocol.

  • It is noted with concern that eThekwini Environmental Health Services, who are entrusted with safeguarding the health and well being of the local community have not approved the project and have raised several concerns (appendix 8 Final EIR) that belie the position that the project is environmentally sound.

  • The assessment of the air pollution in the receiving environment notes that dioxin formation will occur but does not describe the conditions under which it will be formed. The accuracy of the calculation will therefore hinge on the estimated input of potential dioxin precursor material and there is doubt as to whether the samples utilised for testing are representative of the actual feed material to be used in the boiler.

  • Mondi currently does not use the maximum natural gas available to them notwithstanding their close proximity to the Sasol gas pipeline network. Efforts by community to obtain information allowing independent review of costs have been denied. Consequently the SO2 figures for the plant before conversion to the proposed boiler appear artificially higher than the SO2 emission levels after conversion.

  • Eastlands contains an area of D’Moss which currently provides a habitat for bird and animal life. The D’Moss system provides refuges for wildlife, conservation value for threatened species (and habitat), aesthetic appreciation for residents and corridors for movement for fauna and flora. The proposal seeks to surround the wetland with industrial applications thereby precluding any corridor potential. The resultant dislocated environment will make survival prospects slim for identified species. The record of decision makes no reference to this and does not require the relocation of the site nor of the mammal and reptile species found on it notwithstanding the certain impoundment that will occur once construction commences. This omission highlights the grave omission by DAEA to have instructed the applicant and/or eThekwini Metro to perform an EIA for the change of land use.

  • The public participation process failed and led to the withdrawal by the SDCEA from the EIA. It is SDCEA’s contention that this failure is directly attributable to the actions of the applicant. SDCEA contends that they were placed in an untenable position pursuant to the without prejudice negotiations with applicant on the 70ton MFB, that the applicant Mondi acted in bad faith, that DAEA were aware of these negotiations, and that the refusal by DAEA to provide for extensions on time to consider the ramifications of the new 90ton MFB amounts to an unfair and hostile action.

  • The Eastlands site is severely contaminated (Baseline Environmental Review Eastlands Ecoserv 1999), yet workers are expected to work on this site without prior remediation having taken place. This appears to be a highly irregular, dangerous and potentially illegal practice.

4.

LEGISLATIVE FRAMEWORK



Constitutional Right

Section 9 of the South African Constitution, Act 108 of 1996, and (the Constitution) provides that everyone is equal before the law. To promote equality legislative and other measures designed to protect and advance persons or categories of persons, disadvantaged by unfair discrimination must be taken.

Section 12 states that everyone has a right to bodily and psychological integrity.

Section 24 provides that everyone has the right to an environment that is not harmful to their health or well being, and to have the environment protected (for the benefit of present and future generations) through reasonable legislative and other measures that: prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Section 32 of the Constitution provides that everyone has the right of access to any information held by the state or by another person and that is required for the exercise or protection of any rights.

Section 33 states that: everyone has the right to administrative action that is lawful, reasonable and procedurally fair; and everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.




Environmental Impact Assessment

The legislative regime governing the conduct of EIAs comprises of the Environmental Conservation Act 73 of 1989 (ECA) and Regulations promulgated hereunder (GN 1182 and 1183). In addition, a Guideline Document to the EIA Regulations was published by the Department of Environmental Affairs and Tourism in April 1998. These guidelines are an indication of government policy, and should be followed by government departments making reasonable administrative decisions regarding the conducting of EIAs. It is submitted that failure to follow these guidelines is an indication of unreasonableness.




Environmental Management Principles

In addition, the principles set out in section 2 of the National Environmental Management Act 107 of 1998 (NEMA) are applicable. These principles apply throughout the Republic and to the actions of all organs of state that may significantly affect the environment. They apply alongside all other appropriate and relevant considerations, including the State’s responsibility to respect, promote and fulfil the social and economic rights in Chapter 2 of the Constitution and in particular the basic needs of persons disadvantaged by unfair discrimination. The principles serve as guidelines by reference to which any organ of state must exercise any function when taking any decision in terms of NEMA or any statutory provision concerning the protection of the environment. The principles also guide the interpretation, and administration of NEMA, and any other law concerned with the protection or management of the environment. In particular, section 2 of NEMA requires that:

  • Environmental management must place the place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably (section 2(2));

  • development must be socially, environmentally and economically sustainable (Section 2(3));

Section 2(4) stipulates that that sustainable development requires the consideration of all relevant factors, and proceeds to list these factors and other relevant principles.

5

Air pollution

The SDCEA has in its previous submissions and applications made known the fact that it views the MFB as an incinerator. The MFB will consume sludge, bark, sawdust, ash and coal along with demineralised water and condensate. Present in the waste stream will be an assortment of chemicals that when combusted in the incineration process will generate significant potential for carcinogenic chemical formation and release, most notably dioxin and furans. In addition a wide range of dangerous airborne chemicals and heavy metals will be emitted from the stack onto the surrounding community. These range from arsenic, cadmium, chromium, mercury, manganese, chloride, nickel, and many others (Appendix 8 Specialist Air Study Table 5-3, see also Appendix G Certificate of Analysis). The presence of all these metals including aluminium and zinc are confirmed in the DWAF Mondi Merebank Waste Classification (see attached Annexure A (i), A (ii) and A (iii) of DWAF advisory to Mondi ref 16/2/7/U602/B33Y1, 8 December 1998). It can be noted that DWAF classified Mondi Paper (Merebank) ash waste as H:H. This waste contained a range of heavy metals as well as organic components with DWAF raising the prospect of phenols being present in ash (DWAF letter ref 16/2/7/U602/B33/Y1).


It is clear that the relative toxicity of the inputs required by the MFB will clearly determine the toxicity of the MFB’s emissions. In particular the quality and grade of the coal and the extent to which the RPM is contaminated by potentially hazardous chemicals. It is noted that a significant component of the RPM is to be sourced from Mondi Kraft (Richards Bay) yet it is not revealed in the EIA whether any samples of Mondi Kraft wastes were analysed for toxicity potentials. The ROD does not specify any minimum standard with respect to fuel to be used in the boiler notwithstanding the express importance of doing so.

The EIR does not assess the PM1 project for emission potential despite its very obvious potentials to generate additional impacts. Consequently overall emissions from the project are understated. SDCEA has exhausted its resources in securing technical inputs on the 70ton MFB and as a result is now unable to assess or understand the technical implications of the 90ton MFB and PM1 upgrade. This is debilitating to effective participation and disempowering. The comments made hereinafter are therefore uninformed by specialist opinion as was anticipated in the promised peer review. (See comment below).



Mercury

Of particular concern are the extremely high levels of mercury recorded in the waste stream, present in the coal used and predicted in terms of the desk top assessment. The emission of mercury from the MFB alone is predicted to be between 0.63mg/Nm3 (minimum RPM) and 0.54mg/Nm3 (maximum RPM) compared to the EC limit value of 0.05mg/Nm3(See Appendix 8 Specialist Air Study Table 5-5). Actual emissions could prove to be a lot worse in practice. This amounts to massive condoned exceedences of the DEAT and EC limit (by a factor of 12). The ROD inexplicably fails to address the issue of Mercury emissions notwithstanding the fact that it is highlighted under the recommendations and elsewhere (Appendix 8 at 7-3 and sub Appendix B of the same report at B-21). The explanation as to how the laboratory analysis erred in the calculation is weak and unacceptable. It is noted that the initial report (Appendix 8 sub appendix H) is dated 5/3/2004 and the allegedly ‘revised’ report (under Appendix 18) carries the same date. It is curious then that the explanatory email was only generated on 4 May 2004 (i.e. after close of comments and submissions) and two months after all corrected data had been communicated to the technical experts. SDCEA wishes to place on record its intense concern at the sloppy explanation regarding the analysis. SDCEA requests independent third party analysis of verifiable samples of the all possible coal types to be used in the MFB. These tests should be immediately and the EIR reviewed on the basis of these results. It is noted that the coal used in 70 ton MFB originated from the Savmore colliery whereas the present samples are marked as Somkele.

Dioxin

The assessment of the air pollution in the receiving environment notes that dioxin formation will occur but does not describe the conditions under which it will be formed. Notably dioxin formation requires the presence of heat, chlorine and organic compounds. The accuracy of the calculation will therefore hinge on the estimated input of potential dioxin precursor material. Chlorine is present in the coal (160mg/kg Sub Appendix H to Appendix 8) in the applicant’s ash, recycled water, sludge and sawdust. The levels reported in the applicant’s wastewater are not insignificant (see Appendix 10(a) Specialist desktop groundwater study) where chloride levels from the PM1 vary between 100 and 147ppm. The samples tested do not carry any identifying mark of geographical origin. Of concern is the fact that a large component of the waste destined for incineration will be originating from Mondi Kraft - Richards Bay and not from Merebank. The toxicity profile of these inputs could be vastly different to that found at Mondi Merebank and should therefore have been independently assessed.
The actual methodology and results for dioxin formation are vague and not understandable to SDCEA. Perplexing is the identical results obtained for dioxin formation no matter what fuel supply option are assessed. This does not seem possible given the varying chlorine levels evidenced in the water and waste analysis described elsewhere in the report (see Appendix 8 table 5-3 and 5-5 note dioxin formation and emission unchanged in all scenarios). SDCEA questions whether in fact any analysis was performed with respect to calculation of dioxin and whether the actual waste stream has been properly identified.
Of very serious concern is that dioxin’s must be adequately and regularly monitored. The management protocol for dioxin is alarming. The ROD simply refers to eThekwini Municipality (and not the applicant) as being the responsible implementing party and refers to a fax letter dated 27/5/2004 as evidence of DAEA discharge of this function (10.2.3). Unfortunately an examination of this letter inspires no confidence at all that dioxins will be managed let alone monitored. The only reference in the eThekwini Municipality letter is that there must be included “regular monitoring of dioxin and furan emissions from the multi-fuel boiler.” No instruction as to how often, in what manner by which laboratory (none in South Africa), by whom; nor is there information as to how it is to be measured (what standard, correlation with ambient levels, establishing ambient levels etc). As such this is a gross irregularity and contrary to the principles of NEMA.
Legal consequences:

Since a proper analysis of possible dioxin formation was not included in the purported impact assessment the decision to authorize fails to comply with NEMA sections 24(7) (b) and (e) in that it is based on an incomplete consideration of material facts pertinent to the protection of public health. The authorisation is therefore materially defective, and stands to be set aside as unlawful



SO2 and NOx

The previous comparison under the 70 ton MFB application of the monitored sulphur dioxide and nitrogen oxide values against health based guideline values demonstrated that monitored ambient concentrations of both these pollutants exceed these guideline values by a significant margin. The 90ton MFB does not establish a significantly better result


Since the use of gas results in essentially zero SO2 emissions, and NOx emissions about 70% lower compared with coal fired combustion plants, the average ‘before’ figures could have been significantly lower if the gas fired boiler had been used to the maximum. If the comparison were to be made on the basis that the current configuration of boilers were operated to maximize gas firing, the ‘before’ figures for both SO2 and NOx would be lower than the actual average values, and could well be equal to or less than the ‘after’ figure. This would nullify even the claim of a marginal decrease in these two pollutants as a result of the project.
The ROD makes a finding that the use of gas is ‘currently considered economical’ (ROD 8.2). The EIR at 170 pages (excluding figures and voluminous appendices) devotes exactly two (2) paragraphs (see pages 117 and 118) to the appraisal of the gas alternative. Essentially the gas alternative is dismissed in one sentence that “the (gas) price is set to compete with HFO and not coal, thereby rendering the price prohibitive from an economic perspective.” (EIR 118). No calculations are however supplied to support this contention. DAEA does not question this either. The coal used by the MFB expressed as a percentage of the total tonnage amounts to approximately 20% thus the alternative of replacing one fifth of the fuel with gas would be substantially less than were the entire fuel source to be replaced with gas. The EIR process has not evaluated this position.
It is submitted that DAEA have therefore erred in not thoroughly applying their minds to the alternative of using existing gas fired boilers to the maximum and to substitute gas for coal on the MFB. Had the DAEA properly applied its mind to this issue it should, as a minimum, have required an economic feasibility appraisal of the use of gas. That the DAEA did not do so is indicative of the shortcomings of this EIR. The DAEA has granted the ROD in the absence of independently verified information as to applicant’s position relating to the use of gas - the consequence of which will be manifested in the form of additional pollution for the impacted community.
The air emission report contained in the 90ton MFB EIR makes much use of predicted ground level concentrations and the ROD places much stock in these same modelled results (see ROD 8.4.1). The EIR also plainly states that it selectively ignores the impact of PM1 (and assumedly any other devices at the plant) that could add to an understanding of the true emission profile. The statement that the ‘predicted ground level concentrations for proposed operating conditions are all below the respective guidelines for all averaging periods’ (Appendix 8 at 6-3) needs to be balanced with the statement that this is based on an analysis of the Mondi Boilers in isolation from the other sources of these pollutants in South Durban. This analysis of the Mondi Boilers in isolation from other sources, and using this analysis to conclude that ground level concentrations would decrease is erroneous or at best meaningless because the reality is that the Mondi plant is located in the midst of other sources of these pollutants. This position is borne out by the statement that for cumulative impacts “the ambient air concentrations of all industrial emissions in the modelling domain are predicted to exceed the respective SO2 guidelines. (Appendix 8: 6.1.2.2) It can be noted here that it is still unclear whether the author of this statement has now elected to add the contribution of PM1 and other potential Mondi sources including heavy vehicle transport to this assessment (?)
A similar position is presented for NOx in that predicted (modelled) oxides of nitrogen (NOx) concentrations are stated as being below DEAT guideline values (although historically it can be shown that modelled values significantly under-predict ambient concentrations by a large factor. The position for cumulative maximum NOx for the highest hourly averaging period under operating conditions exceeds both South African and current EU limits by 16% and up to 30% under alternative A (when the MFB produces low steam whilst consuming all the RPM feed). DAEA are unmoved by this. The ROD (8.4.1.1) simply offsets this gross (modelled) contravention with the statement that “… (NOx concentrations) are expected to be below the proposed limits for the annual averaging period.” DAEA now shows itself to be arbitrarily selecting which level of exceedences it is concerned with whereas any exceedences should be a concern. In terms of obligation to ensure that adverse impacts are not distributed so as to

PM

For particulate matter (PM), the EIR provides modelled rather than measured values as such the conclusion (in absence of actual data) that the PM will decrease by factors of around 80% is quite remarkable.

CO2

The increase in coal combustion will result in a corresponding increase in CO2 emissions. According to information received from Mondi it generates around 30,000tons a month CO2 directly from the Merebank operation. (Mondi fax received 7/7/2004). Mondi’s coal consumption is projected to increase by 37% therefore CO2 emissions may be expected to rise to 41100tons/month or 493200tons p.a. The specialist air emission report does not review the situation with respect to CO2 notwithstanding the fact that it is a leading greenhouse gas. There is no indication in the ROD that DAEA consider this a problem and therefore no instruction is made to assess the impacts or attempt made to minimise them. The huge increase in coal transport to Mondi also carries with it other complications arising from the necessary increase in rail transport such as the emissions of coal fines during transport and mechanical noise impacts associated with increased rail movement. The EIR and so the ROD does not appear to assess this increased risk... For example the noise report (EIR Appendix 12) omits mention of increased rail traffic and the air pollution report only references the activity of the current throughput at the coal tippler.
South Africa is a signatory to the Kyoto Protocol which accession carries with it the assumption that fossil fuel use will be reduced. The broad objectives of the FCCC and the Kyoto Protocol are to achieve stabilized greenhouse gas concentrations in the atmosphere and to ultimately achieve a reduction in the levels of greenhouse gases emitted, including CO2. In this context, is alarming that Mondi proposes an activity that will result in an increase in CO2 emission from 1043 tons per day to 1370 tons per day. It is submitted that this clearly has direct implications for national policy regarding climate change, and also has direct implications for South Africa’s international environmental commitments and relations.
6

Eastlands


Neither the applicant, its consultants nor the DAEA has meaningfully appraised the impact of the loss of Eastlands as an area of conservation value or as an existing buffer zone to heavy industry. This omission stems from the simple fact that the change of land use to industrial must have been accompanied by an EIA. The EIA is a legal pre-requisite in terms of Environmental Conservation Act 73 of 1989 (ECA) and Regulations promulgated hereunder (GN 1182 and 1183) – change to industrial use being an identified activity. The failure by DAEA to order such an EIA amounts to a procedural non-compliance.

It is noted that requirement for Eastlands was not contained in the previous 70ton MFB application, nor did it appear in the BID. Indeed nowhere can it be said to have been specifically highlighted as an integral component of the 90ton MFB. The same can be said for the requirement to store 9000 litres of fuel on Eastlands – this aspect however being described as the third leading activity in the DAEA description (ROD 1.1.3) yet one is hard pressed to locate the reference to it in the EIA documentation.



Buffer Zone

The Strategic environmental assessment for South Durban (CSIR) is replete with references to how poor historical spatial planning resulted in a ‘cheek by jowl’ arrangement of community being forced to exist alongside heavy industry. This relationship is identified as a prime cause of conflict and disharmony. It is SDCEA’s contention that the removal of the open space represented at Eastlands is to replicate past planning policies. This will only provide benefits to Mondi/Anglo America and will be to the detriment of the local community and natural environment.

Buffer zones were identified in the Ministerial policy issued in terms of Section2 of ECA, subsequently repealed by NEMA but only to the extent that the provisions of those sections were in conflict with NEMA. Consequently it follows that the Ministerial policy with respect to buffer zones is consistent with NEMA and remains valid (S51 NEMA). The Ministerial policy provided in respect to urban environments that:

“Urban development and management must as far as possible be guided in such a manner that all the inhabitants can live a healthy, safe and dignified life in an aesthetically and culturally acceptable environment. This would include the following:



  • A holistic environmental approach will form an integral part of all facets of urban planning and development. This includes the built environment and natural environmental elements taking into account the socio-economic factors. Consultation with all interested and affected parties is a fundamental element of the policy

  • A compact and functionally more efficient city structure will be pursued with a continued emphasis on orderly spatial development to make maximum use of available land. Buffer zones should be established between residential and industrial areas.”

  • All development will be planned and managed in such a way that all forms of pollution where possible will be eliminated

  • Environmental expertise and the involvement of local communities will be promoted in order to ensure acceptable standards and living conditions

(GN 15428 Notice 51 of 1994).
The grant of the ROD with respect to Eastlands without EIA in respect of change of land use is defective in that (a) it will become an unavoidable new source of pollution in terms of noise, light, air, water (b) aesthetics (visual industrial intrusion) will be compromised (c) wetlands and fauna and fauna will be compromised and (d) the natural buffer zone will be decreased by 28600m.2 The specialist land use planning report recommends that:

“The option to develop Eastland’s for industrial purposes may be compatible with the adjacent Mondi site but again does not create an adequate transition between Mondi and the surrounding residential areas…The option to develop Eastlands for industrial development with associated activity, noise, air and visual impacts is not a feasible option” (Appendix 15 land use planning study 4.1.3.3).


The specialist report explored alternative land uses including use as a buffer, housing and industrial development and concluded that “the development as a buffer was the preferred option between housing and industrial proposals...” (Appendix 15 4.1.4.3)

Destruction of D’Moss

Eastlands contains an area of D’Moss which currently provides a habitat for bird and animal life. The D’Moss system provides refuges for wildlife, conservation value for threatened species (and habitat), aesthetic appreciation for residents and corridors for movement for fauna and flora. The proposal seeks to completely surround the wetland with industrial applications and thereby cut off any corridor potential. There will also be considerable site hardening as well as interference with the hydraulic flow in this area. The former will lead to significant alteration of water run off whereas the latter could see interference with the groundwater. Species noted on site consist in water monitors, barbell and grey mongoose with the statement that “the range of life on the site is perhaps surprising” (Ecoserv op cit). Their survival in the post industrialisation phase in a dislocated environment is likely to be poor. The ROD at 8.4.8 makes no reference to the natural environment in its assessment with the only mitigation suggested being screening of the industrial process. The DAEA has clearly has not paid attention to this aspect or to alternatives such as relocation of site and species and this therefore constitutes a flaw.
The ROD can be said to entirely skirt the issue of D’Moss conservation and in effect authorises its destruction.

Drainage

The process of industrialising Eastlands will involve ‘dewatering’ of the site given the high water table. It was proposed in the original 70 ton MFB to simply pump this water into the storm water system and presumably the same rationale applies in the present application. However the Ecoserv Eastland’s report notes the toxic profile of the ground waters on site and states with respect to a sample collected in the north eastern corner of the site that “a pulp like material was encountered, (that) showed particularly high levels of heavy metal contamination” A sample collected to the southeast noted “mineral oil contamination of the ground waters.”(Ecoserv Baseline Environmental Review: Eastlands July 1999 at 10). – To simply pump this polluted water into storm water and so into the nearby Umlaas River would appear ecologically irresponsible and damaging. Clarification is therefore required on what exactly is proposed with respect to this site as the document is vague on this point.
7

Socio-economic impacts


The EIR shows itself to be unnaturally pre-occupied with the economic impacts during the construction phase when the real issue lies with the impact during the operational phase. The bottom line however is that this R300million investment generates just 17 jobs locally (not classified in terms of type) with 4 elsewhere in KZN and 2 somewhere in South Africa. (EIR final 105). The real cost in terms of job losses is however not similarly highlighted and as such amounts to a deliberate and disingenuous attempt to mislead the participants to this process.
It is noted that job losses at Serina will lead to ‘massive job losses’ (see EIR Social Assessment) yet no consultation appears to have taken place with Serina workers (according to NUM communications to SDCEA) whereas the ROD (8.4.7.2) appears to contradict this view.
Secondly on 10 March 2004 Mondi has issued a brief to its staff putting them on notice that due to the change in business direction including the PM1 rebuild that changes are necessary – with retrenchments necessary. At this time within Mondi 100 employees have already been identified for retrenchment (mainly management/white collar level).
This is in stark contrast to the ROD position at 8.4.7.2 that ‘no retrenchments will result in areas of the mill.’ This is hardly a holistic appraisal of the project impact that clearly extends well beyond the Mill activities. Further the Mondi brief to employees also contains the ominous warning that with ‘operational structures at Merebank, Richards Bay mill and Silvacel’ are to be reviewed making nonsense of the DAEA’s position.
This means that the real cost in terms of lost jobs and knock on multiplier effects to the local economy have not been assessed. Instead inordinate amount of attention is directed to how the national economy gains from additional tax and excise revenues – little comfort to the 100’s (including Serina) who face grim futures.
Another glaring omission lies in the loss of Revenue to eThekwini Metro in the form of loss of purchases of bulk electricity and water. This should have been offset against whatever marginal increase in rates results from the project.
In sum the economic assessment exhibits bias and is generally unsound. DAEA in accepting this position
The positive ROD will lead to the job losses in the community as well as elsewhere in the country. The economic assessment is flawed in this regard and the DAEA in turn granting a positive ROD fail to meet the requirements of NEMA section 2(2) and Section 2(3).
8

Public participation

The public participation process failed and led to the withdrawal by the SDCEA from the EIA. The SDCEA had previously committed enormous resources (both financial and intellectual capital) to the original 70 ton MFB project and had gone so far as to embark on negotiations (without prejudice) with Mondi on certain issues pertaining to environmental improvements regarding the 70 ton MFB. application (DAEA were advised of this). The essence of the agreement was that Mondi had offered to withdraw the 90ton application if SDCEA were to agree to withdraw its appeal of the 70ton MFB. For this reason SDCEA did not seriously entertain the 90ton MFB proposal. Negotiations however broke down when it became clear that Mondi was intentionally withholding information pertaining to supply and pricing of gas and that job losses would be associated with the project. There was thus no reasonable prospect of agreement occurring. Mondi was therefore perceived by the community to have been acting in bad faith and SDCEA was duly instructed in a public meeting (29/3/2004) to terminate negotiations on the 70ton MFB. In the interim the EIA process for the 90ton MFB had reached an advanced stage but now included significant new components not previously considered by specialists employed to assist SDCEA. These were the requirement for Eastlands (not highlighted in any of the documentation), the ‘upgrade’ of PM1, the requirement to store 900olitres of diesel and the desulphurisation equipment. To date SDCEA has not had access to the scientific and technical expertise required in order to evaluate the new proposal thus rendering meaningful comment impossible. SDCEA still believes that the ongoing refusal by the applicant (Mondi) and its consultant to provide information repeatedly requested since October 2003, and necessary for informed decision making represented an insurmountable obstacle designed to derail the process and frustrate the community participation.


9

Peer Review


There was recognition of the communities incapacity to understand and interpret technical reports and that in connection therewith it was agreed that a peer review of the EIA would be commissioned (SRK letter to SDCEA 19/3/2004).
This offer was accepted by the Merebank Ratepayers Association (MRA) and specialists were appointed to review the EIA (email SRK to SDCEA 14/6/2004). SDCEA advised SRK (email 15/6/2004) that information generated by this component of the process should be forwarded to their office. This has not as yet occurred. The Record of Decision (ROD) was however issued on 7 June 2004 prior to completion of the agreed peer review. The peer review was to have provided community with some measure of independent assessment and comfort as to the credibility of the EIA process thus far.
It also suggests that Mondi and/or SRK had no intention that the peer review should form part of the EIA process although they had intimated as much to the relevant community structures. Further, it is not clear from the available correspondence whether DAEA was aware that a peer review had been offered or that it had been accepted by the MRA at the time that the ROD was granted. Depending on the facts the decision to proceed to ROD could amount to an unfair administrative action.

10

Noise impacts



The noise predictions contained in the specialist report indicates that the 60dBA isopleths will extend into the community area following the development during both day and night time operations. This amounts to a 5dBA increase over ambient in the area. This area is already severely affected by noise from the applicant and the nearby Airport. The DAEA instead of expressing concern at the fact that an already marginalized and severely impacted community must experience even more noise pollution instead dismisses the concern with ‘the existing noise climate is expected to change very little after the proposed upgrade is completed’ (ROD 8.4.5). This attitude can only be described as callous and potentially discriminatory. At a minimum it conveys a sense that the community impact and interest is irrelevant. Perhaps the DAEA ought to be reminded that the maximum desirable noise levels in a residential area are 55dbA (day) and 45dBA (night-time) in terms of SANS 10103 that will shortly become part of the Air Quality Bill/Act. An average night-time level of at least 60dBA is therefore more than cause for concern.
The ROD does not attach any particular significance to the noise pollution and consequently abdicates responsibility to eThekwini Health who in turn simply state that ‘an overall noise reduction strategy with objectives and time frames’ to be submitted by the applicant – no detail on how much and in what manner. As such the direction it carries no weight whatsoever. Rail movements will increase by almost 100% following the project from 95 rail trucks/year to 179 rail trucks. This has not been assessed. Similarly the 21% increase in (heavy) vehicles using noisy air brakes has also been inadequately addressed.
11

Light pollution


Light pollution will increase with the expansion into the Eastland’s buffer and is not identified in the EIR or by DAEA. Light pollution from 24 hour operations can be a significant source of irritation to residential areas. The ROD should as a minimum have directed that illumination not be directed towards community areas. The failure to assess this aspect despite it being surfaced in the original Ecoserv assessment is indicative of the overall failure of the DAEA to properly appraise and consider the implications of the development.
12

Waste


The proposed combustion of sludge containing heavy metals will result in an increase (from zero) in the emissions of the following particulate pollutants (amongst others): As, Cr, Cr6+, Mn and Hg.” However the solid waste arising out of the proposed plant would not have the same (or substantially similar) chemical composition, physical characteristics, stability, leachability and /or toxicity as the ‘before’ waste materials. These factors may reveal that although the solid waste volume has decreased, the environmental toxicity may have increased. An evaluation of these characteristics for the ‘before’ and ‘after’ solid waste streams is required in order to assess the relative environmental impacts of these two waste streams.
13

Legal consequences



Legal consequences of a decision permitting the applicant to construct the proposed boiler in these circumstances



  1. The authorisation reflects a failure by the applicant and the DAEA to properly appraise and consider the extent of existing air quality degradation in the receiving environment, and its relationship to emissions from the Mondi plant. This results in the authorisation failing to comply with NEMA s24 (7) (b) in that cumulative impacts of the proposed activity cannot be assessed.




  1. The decision is based on erroneous assumptions and incomplete information and analysis. It is also based on the patently incorrect representation that the proposed project would have “no negative effect on the environment.” The basis of the authorisation is therefore challenged, and the authorisation stands to be set aside as null and void.

3. The authorisation reflects a failure by the DAEA to take reasonable steps which it is required to do in terms of Section 24 of the Constitution to prevent pollution, in order to guarantee the health and well being of residents and also the rights of children to be protected from abuse and degradation (Section 28(1) (d))





  1. The authorisation in effect perpetuates the status quo of significantly degraded air quality which has health damaging consequences for disadvantaged persons and vulnerable groups i.e. children. The air quality currently violates accepted health based standards, and the authorisation thus perpetuates this state of unlawfulness and constitutional violation. Apart from this the authorisation results in a violation of NEMA principle 2(4)(c) which requires that ”environmental justice should be pursued so that adverse environmental impacts shall not be distributed in such a manner as to unfairly discriminate against any person particularly vulnerable and disadvantaged persons” The authorisation also violates principle 2(4)(g) in that the interests and needs of all interested parties (and particularly children) are not taken into account in the decision.




  1. The authorisation constitutes a failure by the DAEA to ensure compliance by the applicant of the NEMA duty of care which requires in terms of Section 28(1) that “every person who causes, significant pollution …must take reasonable steps to prevent such pollution from occurring, or insofar as such harm to the environment is authorized by law….to minimize and rectify such pollution….”




  1. Once having been permitted it may be well nigh impossible for authorities then to attempt to curtail the emissions from the proposed boiler so as to ensure that emissions from Mondi and Biotrace remain within the relevant guidelines in the future. It is a particular concern that although Biotrace is the owner of the MFB that it might not be legally bound by the ROD – indeed it is not mentioned by name at all. There is no stipulation as to fuel grade quality nor that would a future ‘upgrade’ (presumably without EIA) not significantly alter the current input parameters to the MFB. Other users of heavily polluting fossil fuels in the area may also object to being required to use “cleaner” fuels, which may be more expensive. The authorisation in effect results in the unlawful fettering of the authorities powers to ensure compliance with SO2 guidelines in the future.



The failure to consider alternatives





  1. The absence of a proper consideration of alternatives represents a significant omission on the part of the DAEA. The use of gas essentially produces zero SO2 emissions, a 70% reduction in NOx emissions, and significantly lowers CO2 emissions by comparison with the use of coal, for the same output of steam or energy. The proposed configuration of the new plant involves an increase in the use of coal, and an 83% reduction (based on 350 000 GJ/year reducing to 60 000 GJ/year) in the use of gas. The existing gas fired boiler would be used as a standby boiler only. Thus, although the proposed MFB boiler emits significantly less SO2 compared with the existing coal fired boilers per unit of energy produced, (due to the use of lime injection and essentially sulphur-free wood chips etc.) the full potential reduction of SO2 emissions will not be realized because the use of gas, with its environmental advantages, will simultaneously be minimised.




  1. In dismissing the alternative of the use of gas, the EIR states that the price of gas as supplied by Sasol is prohibitively expensive. A full disclosure of all relevant costs (variable and fixed costs of steam production, and the relative impact of steam costs on overall production costs.) is required for a proper evaluation of the alternative of using gas.


Legal consequences of the failure to consider alternatives

Such failure is a violation of NEMA section 24(7) (a) and the EIA regulations to the Environment Conservation Act (GN R1183), Regulations 6, 7 and 9. This renders the authorisation unlawful and therefore null and void.

14

PROCEDURAL NON-COMPLIANCE & ADMINISTRATIVE INJUSTICE



EIA Regulations with respect to Eastlands are Applicable
Section 21 (1) of the Environmental Conservation Act 73 of 1989 (ECA) stipulates that the Minister may by notice in the Gazette identify those activities which in his opinion may have a substantial detrimental effect on the environment, whether in general or in respect of certain areas.

The activities identified as activities which may have a substantial detrimental effect on the environment are set out in schedule 1 of GN R1182 (as amended), and include Scheduled processes listed in the Second Schedule to the Atmospheric Pollution Prevention Act, 1965 (Act No. 45 of 1965) (Regulation 9).

As a consequence, Section 22(1) of the ECA is applicable, which stipulates that no person shall undertake an activity identified in terms of section 21(1) except by virtue of a written authorization by a competent authority.



Failure to Refer Application to National Minister

Regulation 4(3)(a) stipulates that, subject to Regulation 3A, the provincial authority must refer the application to the Minister (Environmental Affairs and Tourism, national), where any activity concerned has direct implications for national environmental policy or international environmental commitments or relations.


It is submitted that the Applicants would have been aware that Minister Valli Moosa has been engaged in the development of a Multi Point Plan for the SDIB. Part of this plan seeks to reduce the use of heavy fuel oils and coal in the SDIB. The Application in terms of Section 22 of the ECA indicates that the proposed Biotrace MulitFuel Fluidized Bed Boiler will result in an increase in coal consumption from 169000 tons p.a. to 232000 tons. Clearly this increase has direct implications for the Multi Point Plan, and it is submitted that the application should have been referred to the national Minister, Environmental Affairs and Tourism. The DAEA’s failure to do so is a contravention of this regulation.
In addition, South Africa (one of the 20 top contributors towards global greenhouse gas emissions worldwide) has ratified the United Nations Framework convention on Climate Change (FCCC) and has acceded to the Kyoto Protocol. The broad objectives of the FCCC and the Kyoto Protocol are to achieve stabilize greenhouse gas concentrations in the atmosphere and to ultimately achieve a reduction in the levels of greenhouse gases emitted, including CO2. In this context, is alarming that Mondi proposes an activity that will result in an increase in CO2 emission from 1043 tons per day to 1370 tons per day. It is submitted that this clearly has direct implications for national policy regarding climate change, and also has direct implications for South Africa’s international environmental commitments and relations. It is submitted that the application should therefore have been referred to the national Minister, Environmental Affairs and Tourism. The DAEA’s failure to do so is a contravention of this regulation.

In addition, an increase of CO2 by 37% would have a significant negative impact on the environment. CO2 is a greenhouse gas. In the context of global concerns over climate change, Allen’s decision that the environment would benefit beggars belief.


In the circumstances, it is submitted that in prematurely concluding that the development would benefit the environment, Allen failed to apply her mind to actual negative environmental and human health impacts. Her decision was as a consequence unlawful, and renders the subsequent EIA incomplete and unlawful.
It is submitted that the DAEA’s authorization violates the community members’ right to an environment that is not adverse to their health and well being, is procedurally and substantively unfair, and must be set aside.

15

Failure to promote public participation

Section 2(4)(f) of NEMA stipulates that the participation of all interested and affected parties must in environmental government must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.
It is respectfully submitted that the provisions made for public comment on the Scoping Report and on the other studies falls short of the requirements of sections 2(f) and 24(7) (d) of NEMA. The DAEA is fully aware of the adverse conditions that SDCEA members operate under in the South Durban, and that SDCEA is an under-resourced community alliance whose members participate in numerous EIA processes in the SDIB. The alliance exists to protect and safeguard the environmental rights of community members in the heavily polluted area, including the rights of children at neighbouring schools who suffer directly from health impacts associated with the pollutants emitted by Mondi, and in particular high levels of SO2 that aggravate asthma. Examples of DAEA attitude are exhibited in the refusal to grant SDCEA an extension of time to comment on the draft EIR notwithstanding the fact that the comment period fell over the Christmas/New Year period and that they had indicated that they were involved in negotiations with the applicant on the 70ton MFB. This led to significant disillusionment with the process. It can also be noted that the Final EIR comment period ran from 5th –23rd April which amounts to 19 days and not 19. The extended period however included the Easter weekend, Election Day and the Easter school holidays thereby reducing the real time available to comment. SDCEA is a voluntary organisation with limited man hours available and was also involved (as DAEA is aware) with simultaneously submitting comments on the following EIA’s :Engen Clean fuels, Sapref Lion project, Engen bitumen, eThekwini waste water transfer, Cataler to name a few.
In the context of under-resourced community groupings trying to participate equitably and meaningfully in environmental decision-making to protect community rights to an environment that is not adverse to their health and well being, and bearing in mind that the capital cost of the proposed MulitFuel Fluidised Bed Boiler is R300 million, it is submitted that the Applicant’s decision to proceed to ROD without waiting for the peer review was unreasonable and had the effect of precluding effective public participation.

In the context of the time frame of the entire EIA process, the request for peer review submitted by the MRA was not unreasonable and indeed had been agreed to by applicant. It is submitted that the interests of promoting the equitable and effective participation of a community groupings in environmental decision making regarding a development that has the potential to impact seriously on the health of community members and schoolchildren clearly outweighs any financial interest the Applicant may have in obtaining a quick decision. The MEC’s attention is respectfully drawn to section 2(2) of NEMA, which stipulates that environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.

Submitted by the South Durban Community Environmental Alliance (SDCEA)

___________________ Witness:

SDCEA Chairperson

__________________________



Karen Read

SDCEA Project Officer


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