1. The Legal Resources Centre lodged an administrative Appeal against the authorization on behalf of SDCEA on 11 October 2002. The merits of the opposing the authorization were set out in detail in this appeal. It was argued in the appeal that a proper interpretation of the data put up in the EIA showed that unacceptably high levels of pollutants emitted from the Mondi site would be perpetuated. The projected emissions were to exceed WHO health-based ambient air quality standards, as well as DEAT’s 1998 SO2 guidelines. This indicates that the level of SO2 emitted from Mondi after installation of the new combuster would violate the constitutional rights of SDB residents to an environment that was not harmful to their health. Barton also ignores that the proposal will see Mondi’s emissions of CO2, a greenhouse gas linked to global climate change, increase by 50%. Dr Cairncross, who provided expert technical assistance to the LRC in drafting the Appeal, questioned the legitimacy of the claim that SO2 would be reduced by the introduction of the combuster, and has written that Biotrace’s claim that the proposed combuster will benefit the environment is ‘flatly contradicted by a careful examination of the data.’

2. The authorization was granted on 11 September 2002 after an incomplete and irregular EIA had been conducted. For example, the EIA had not adequately identified, investigated and assessed feasible alternatives which could have significantly reduced the air pollution impacts from the Mondi site (Des refers to some of these alternatives, which also include maximising the use of an existing gas boiler, as well as installing scrubbers on Mondi’s existing coal-fired boilers… in combination these alternatives could reduce pollutants emitted from the Mondi site by up to 80%!). In addition, Biotrace failed to appoint an independent consultant as required by the EIA regulations, and instead only appointed a public participation consultant on a limited brief. On the merits, therefore, the authorization was a very poor decision by the DAEA.

3. Mondi and Biotrace argued in replies to SDCEA’s appeal that a full EIA was not required because the DAEA had decided upon oral application at a meeting on 29 August 2001 that a full EIA was not required. After the legality of this ‘decision’ was challenged in SDCEA’s appeal, Biotrace applied in writing on 27 November 2002 for the agreement to be confirmed in writing. On 06 February 2003, almost 4 months after SDCEA had lodged its appeal, the DAEA granted a written exemption under section 28A of the Environment Conservation Act purporting to confirm the earlier oral decision. This exemption is regarded by SDCEA as an irregular and unlawful attempt to ex post facto cure a fatal defect in the EIA. SDCEA instructed the LRC to take this purported exemption on Judicial Review in order to level the playing fields in the EIA appeal.

4. When the MEC for Agriculture and Environmental Affairs (KZN)refused to furnish an undertaking that he would not make a decision on appeal until the Review had been adjudicated upon, SDCEA was forced to seek an interim order interdicting the MEC from making his decision pending the outcome of the review.

5. On 06 May 2003 Advocate Angus Stewart successfully argued the opposed application for the interim relief on behalf of SDCEA. In granting the interim relief sought, Judge Combrinck agreed that the review went to the very heart of the appeal and that it would accordingly serve the interests of certainty if the review was heard before the appeal to the Minister was determined.

However, the SDCEA recently took the matter to court, arguing that the provincial authorities had not followed the correct procedure.

6. As set out above, the decision on exemption was taken on judicial Review. It is misleading to state that ‘the matter’ was taken to court. The ‘matter’ was appealed on its merits and due to gross irregularities in the EIA process. When the DAEA tried ex post facto to cure a fatal defect in the EIA by issuing an exemption, the decision on exemption was taken to court.

A court interdict was granted last week, stopping the minister from giving his decision until the judicial review is finalised at the end of June.

7. Please note Judge Combrinck’s comment set out in numbered paragraph 5 above.

Sarah Allan, the provincial manager of environmental impact management, said Biotrace had notified the department of its new proposal and that initial discussions had been held. "Mondi Paper and Biotrace have decided to proceed with a new EIA application for a larger boiler that will have better environmental benefits and lead to even greater SO2 reductions," Barton said.

8. SDCEA welcomes the new EIA application by Mondi and Biotrace, and look forward to participating constructively in a fair and legally compliant EIA. SDCEA hopes that this proposal will reduce pollutants emitted from the Mondi site to acceptable health levels, and will continue to act as a watchdog for the community to ensure that it does.

But the SDCEA maintained that SO2 emissions would still exceed World Health Organisation and national environmental affairs and tourism guidelines. "Levels are still unacceptably high, keeping Mondi's position as the third highest SO2 emitter in South Durban," said Desmond d'Sa, the organisation's chairman. "They have not explored feasible alternatives, such as the use of gas instead of coal, nor have they considered the use of natural gas as a supplementary fuel."

7. Please note that these comments are out of context, and relate to the previous EIA application that has been appealed against. Neither SDCEA nor the LRC have seen any application or documentation relating to a fresh application yet.

Barton said it was highly likely that the legal wrangle could tie up the project for many months. "The SDCEA's arguments have nothing to do with the merits of the boiler application and are tactics aimed at frustrating responsible development by companies in the South Durban area," he said. "An EIA process which reasonably should be expected to take one year now looks to being delayed for a further two years." "Over that period, Mondi Paper could have used the new boiler to slash its SO2 emissions by some 850 000 tons and the amount of solid waste it transports to city landfill sites by 300 000 tons."

8. SDCEA rejects Barton’s claim that its tactics are to frustrate responsible development. The proposed combuster appealed against poses a significant threat to the health of the residents of South Durban. Biotrace and Mondi are the architects of their own frustration by proposing a development that will perpetuate the unacceptably high levels of pollution emitted from the Mondi site, despite the availability of feasible alternatives.

9. SDCEA also rejects that its opposition to the proposed combuster has nothing to do with the merits. SDCEA’s appeal deals extensively with the merits (referred to briefly in numbered paragraphs 1 & 2 above). The Judicial Review sought to review the decisions on exemption. Barton’s statement is thus misleading – he clearly does not understand the purpose and nature of a Judicial Review, which tests the lawfulness of administrative decisions made by the government officials.

d'Sa said the SDCEA approved of clean technology but that combusting coal and waste simply transferred solid waste into air pollution, adding to the toxic cocktail of SO2, arsenic and particulates already present in South Durban.

Barton appealed to "all reasonable" members of the Durban community to support the fresh application to introduce world-class technology to Mondi's Merebank facility.

10. SDCEA appeals to Barton and Mondi to live up to their corporate responsibility and duty of care towards the SDB residents and the environment by proposing a development in a form that will reduce air pollutants emitted from the Mondi site to acceptable health levels.

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