Legislative issues concerning the establishment and operation of static and temporary asphalt plants

An asphalt plant is a regulated activity under the National Environmental Management Act, 1989 Environmental Impact Assessment Regulations (EIA). The operation of an asphalt plant triggers an activity/ies listed in the regulations and therefore requires environmental authorisation.

The operation of an asphalt plant also requires an atmospheric emission license (AEL), as an asphalt plant is listed as a regulated activity under Section 21 of the National Environmental Management: Air Quality Act, 2004 (NEM:AQA).

Current air quality legislation exempts the operation of a temporary asphalt plant from requiring an AEL. And, in the majority of cases, temporary asphalt plants do not trigger any activity from the EIA regulations and, if so, do not require environmental authorisation.

Temporary Asphalt Plants

Temporary asphalt plants are exempted from applying for an AEL as long as they comply with the following legislation:

(1) National Environmental Management: Air Quality Act, 2004 Section 23 –Controlled Emitters – Notice 201

Conditions as per the definition for temporary asphalt plants “means an asphalt plant that is used for the sole purpose of supplying asphalt for a specific road paving contract not exceeding a period of 24 months.”

The exemption from applying for an AEL was to enable temporary asphalt plants to provide asphalt in emergency and highly prioritised project situations.

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(2) National Environmental Management Act, 2004 Regulations, 2014 (as amended) Listings 1, 2 and 3

Should the temporary asphalt plant comply with the conditions set for temporary asphalt plants, as per NEM:AQA, 2004, and not trigger any activity as per the listed activities from the 2014 regulations of the NEMA (as amended), no application for environmental authorisation is necessary.

However, when the temporary asphalt plant exceeds the thresholds as set in NEM:AQA, 2004 for temporary asphalt plants, including the 24 months operational period – and the production of asphalt for a specific roads contract – the temporary asphalt plant loses its temporary status, as it triggers an activity from the NEMA regulations. Environmental authorisation and an AEL becomes an immediate requirement.

Should no environmental authorisation and AEL have been obtained on date 24 months and one day and/or it is found that the temporary asphalt plant provides asphalt for more than the one specific roads contract since the initiation of the temporary asphalt plant, the asphalt plant becomes an illegal activity.

The legislature does not recognise a temporary asphalt plant as an existing plant due to the provisions of exemption made in the NEM:AQA for temporary plants.

How can you legally obtain environmental authorisation when you realise that the temporary asphalt plant might become a more permanent plant?

Environmental authorisation for an asphalt plant can only be obtained by conducting the Scoping/EIA process as required by NEMA, 2004 EIA Regulations Listing 2. Your temporary plant turning permanent will also require an AEL. Applications for environmental authorisation and an AEL can be applied for simultaneously.

Timeframe: The process can be completed within 10 – 12 months should everything run smoothly. The application process must commence at least 12 months prior to the 24 month expiry date.

Multiple contracts: You cannot supply multiple contracts from a temporary plant. Many operators are ignoring this condition and are therefore operating illegally.

(3) National Environmental Management Waste Act, 2004

Waste asphalt is regarded as a hazardous waste and the storage of recyclable asphalt (RA) requires a waste licence. Should you intend to store RA on your temporary plant site, you should register your RA storage facility with Sabita. The latter has an MOU with the authorities pertaining the storage of RA.

Permanent Asphalt Plants

NEMA, 2006 regulations (as amended)

Environmental authorisation needs to be applied for through the Scoping/EIA process, taking approximately 10 to 12 months. An application for an AEL needs to be lodged simultaneously, as the two processes run in parallel.

The following activities, as listed in the NEMA Regulations of 2014 (as amended) are usually associated with static asphalt plants:

Activity 14 of R327 (Listing 1): The development and related operation of facilities or infrastructure, for the storage, or for the storage and handling of a dangerous good, where such storage occurs in containers with a combined capacity of 80 m3 or more but not exceeding 500 m3.

Activity 5 of R325 (Listing 2): The development and related operation of facilities or infrastructure for the processing of a petroleum resource, including the beneficiation or refining of gas, oil or petroleum products with an installed capacity of 50 m3 or more per day – activities which are included in the list of waste management activities published in terms of section 19 of the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008), in which case the National Environmental Management: Waste Act, 2008 applies.

Activity 6 of R325 (Listing 2): The development of facilities or infrastructure for any process or activity which requires a permit or licence or an amended permit or licence in terms of national or provincial legislation governing the generation or release of emissions, pollution, or effluent, excluding:

(i) activities which are identified and included in Listing Notice 1 of 2014

(ii) activities which are included in the list of waste management activities published in terms of section 19 of the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008), in which case the National Environmental Management: Waste Act, 2008 applies

(iii) the development of facilities or infrastructure for the treatment of effluent, polluted water, wastewater, or sewage where such facilities have a daily throughput capacity of 2 000 m3 or less, or

(iv) where the development is directly related to aquaculture facilities or infrastructure where the wastewater discharge capacity will not exceed 50 m3 per day.

(4) National Environmental Management: Air Quality Act, 2004 (NEM:AQA, 2004)

All permanent (static) asphalt plants require an AEL in terms of NEM:AQA, 2004 Section 21 Subcategory 5.10 Macadam Preparation Process. The AEL will only be issued once an environmental authorisation for the operation has been issued.

Land Use

The right to use land for the operation of an asphalt plant is not an environmental issue. Should you intend to erect and operate an asphalt plant you should obtain permission from the local authority to do so.

The local municipal by-laws should be consulted and permission obtained from:

- Town Planning - Land Use

- Environmental Health

- Fire and Rescue

On 21 April 2023, the Department of Forestry, Fisheries and Environment published a proposed amendment to Government Notice N201 – Declaring Asphalt Plants as Controlled Emitters for public comment. The amendment includes the removal of the “specific road contract” limitation for a temporary plant.

Industry feedback

The Sabita Environmental Focal Group surveyed the effected Sabita members to understand their views on the proposed amendments on the industry. The results of the survey clearly indicated that most of the Sabita members do not support the amendment. Sabita responded to the Department that it does not support the proposed amendments in the current form as it opens the system up to massive abuse and generates a significant environmental threat. Furthermore, Sabita highlighted that:

• The definition of an existing or new temporary asphalt plant is ambiguous as it refers to a “temporary asphalt plant” that was built before or after then notice date. This throws up challenges, including: i. Is a plant built before the notice date, but held in storage in a warehouse and therefore not operational, viewed as new or existing? ii. Is a permanent plant moved to a new location then viewed as a temporary plant?

• What differentiates a permanent plant from a temporary plant? Is it proposed to be only the length of time positioned in a specific spot? Further challenges would then include: i. If a plant is moved every 24 months, is it then continually defined as a temporary plant? ii. If a company were to establish a plant in a particular city to supply asphalt and then move the plant to a different spot in the city after 24 months, and then back to the original spot after the next 24 month cycle, it can effectively use a temporary plant setup to establish a permanent plant indefinitely on a temporary basis. From a business point of view this would be economically preferable based on the legislative and overhead requirements of a permanent plant.

Sabita also pointed out that the emission standards listed in the 2014 gazette No 201 requires reporting on a “daily average” where permanent AELs use an hourly average. A dirty plant spewing out dust and noxious gasses 800% above the allowable limits will be complaint if it only runs for three hours of a 24-hour day if using a “daily average” reporting method. This is not the case with an hourly average reporting method. Sabita recommends that the “hourly average” reporting method for reporting on emissions of temporary plants be replaced by daily reporting.

Sabita will keep its members updated on this critical issue regarding the new amendment and in particular the definition of temporary asphalt plants.

(Source: Asphalt News, Volume 37, Issue 1, June 2023)