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Daily Law Reports (as at 20 April 2007)/CHRONOLOGICAL LISTING OF CASES/2004/Serial No 0001 ? 0100/Hichange Investments (Pty) Ltd v Cape Products Company (Pty) Ltd t/a Pelts Products & Others 2004 JDR 0040 (E)
Hichange Investments (Pty) Ltd v Cape Products Company (Pty) Ltd t/a Pelts Products & Others 2004 JDR 0040 (E)
2004 JDR 0040 p1
Reportable
Citation / 2004 JDR 0040 (E)Case No / 1050/2001
Court / Eastern CapeDivision
Judge / Leach, J
Heard / September 27, 2001
Judgment / November 22, 2001
[zSMz] Summary
Environmental law ? Atmospheric pollution ? Atmospheric Pollution Prevention Act 45 of 1965 ? Effluent from tanning process ? Exposure guidelines exceeded ? Provisions of s 28 and common law remedies ? Whether relief should be granted ? Fundamental rights affected by pollution ? First respondent had breached s 28 (1) ? Fourth respondent (head of Provincial Environmental Department) ordered to direct first respondent under s 28(4) to investigate impact of gases from latter's tannery and report thereon. Hichange Investments (Pty) Ltd v Cape Produce Company (Pty) Ltd t/a Pelts Products Case No: 1050/2001 22-11-2001 ECD Leach J 44 pages Serial No: 0040/2004 CD 9/2004
[zJDz] Judgment
Leach, J:
The applicant company is the owner of certain immovable property in Markman township, Port Elizabeth which it has let to Southern Star (PE) (Pty) Ltd ('Southern Star"), a company which forms part of the so-called "Southern Star Group" in which the applicant also has an interest. Southern Star's principal business is the delivery of new motor vehicles manufactured by the Delta Motor Corporation, such vehicles being driven to its premises where they are formed up into convoys for delivery to various destinations. Due to changes in Delta's method of distribution, Southern
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Star will need to keep these vehicles at the appellant's premises for longer periods than has been the case in the past and to properly protect them from the elements. In order to facilitate this, a redevelopment program costing in excess of R12 million is required at the applicant's premises. I should further mention that Southern Star's other activities at the site include a service centre to service its own fleet of vehicles and an engineering works to build truck bodies for industry, including its own requirements.
The first respondent is a close business neighbour of the applicant in the Markman township, its premises and those of the applicant being separated merely by a railway line and the railway reserve immediately adjacent thereto. Trading under the name of Pelts Products, the first respondent carries on business as a semi- processing tannery, converting cured raw hides and skins into mineral-tanned bovine (cattle) leather and pickled ovine (sheep) pelts which it then supplies to tanneries having finishing facilities. This tanning process produces a number of chemical waste products, in particular the malodorous hydrogen sulphide ("H 2 S "), and is therefore a "sulphide process" as envisaged by the second schedule to the Atmospheric Pollution Prevention Act No.45 of 1965 ("APPA").
The applicant alleges that noxious gases created by the tannery are discharged into the atmosphere, causing not only a foul and offensive odour but the rapid and uncontrollable corrosion of metal structures and equipment on its property, and that such gases are also prejudicial to the health and well-being of those present on its premises and other inhabitants of Port Elizabeth. The applicant claims that the second respondent (the Director General: Environment Affairs and Tourism), the
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third respondent (the Chief Air Pollution Control Officer appointed in terms of s. 6 of APPA), the fourth respondent (the head of the Department of Economic Affairs and Tourism, Eastern Cape) and the fifth respondent (the interim municipal manager of the Mandela Metropolitan Municipality within which the properties of the applicant and first respondent are situated) have failed, neglected or refused to take such reasonable steps as are required to bring this pollution to an end, notwithstanding its attempts to persuade them to do so.
The applicant and the fifth respondent settled their differences at the doors of the court, resulting in the proceedings against the fifth respondent being withdrawn. Furthermore, at the commencement of argument leading counsel for the applicant, Mr Eksteen, informed me that no case had been made out against the second respondent against whom no order would be sought. I am therefore called upon to decide whether the applicant is entitled to relief against the three remaining respondents.
I should also mention that on 10 October 2001, the day before the hearing before me commenced, the applicant filed a supplementary affidavit. On the first day of the hearing, proceedings were delayed for some time while the first respondent prepared an affidavit in response thereto, which was handed in when proceedings eventually got under way. At that stage Mr Swanepoel, counsel for the second and third respondents, stated that he had not had the opportunity of considering this latest affidavit and wished to reserve his rights in regard thereto. This led to the matter again standing down for a while and, when the Court eventually reconvened, I was informed from the bar that the parties had agreed that both the applicant's
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supplementary affidavit filed on 10 October and the first respondent's reply thereto filed that morning, should be regarded as not having been filed at all! I have therefore had no regard to those affidavits. I have also not had regard to an affidavit of Mr Couldridge, Annexure "REP3", filed by the applicant in reply, as it has not been signed and Mr Eksteen, quite correctly, placed no store on it.
I turn now to the facts. The effluent caused by the first respondent's tanning process lies at the heart of the dispute between the parties. Salt-cured skins and hides delivered to the first respondent's tannery are initially treated in rotating wooden drums containing a high pH sulphide and lime based liquor in order to remove the hair and fat from the skin. The hides and skins then pass through a "splitting" stage, resulting in two identical but thinner pieces, before they are pickled in a low pH liquor of salt and acid. After this, the ovine skins are sold as "pickled pelts" while the bovine hides are tanned with chromium sulphate before being sold as "wet blues". The overall processing operation produces various emissions and forms of waste, and gives rise to various odours caused by gaseous emissions including ammonia and H 2 S.
Up until 1996, the first respondent disposed of the effluent from its tannery through the municipal sewage system although its manager, one Howard, who deposed to its opposing affidavit, alleged that the effluent was treated by way of aeration ponds before being so discharged. In any event, in 1996 the first respondent expanded its aeration system by creating two effluent treatment ponds which are illustrated in the photographs attached to the founding affidavit. It is the applicant's case that the odour and pollution emanating from these ponds is a cause for real complaint. Although the first respondent denies this to be the case, the third respondent
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confirms that from 1996 the odour from these pounds "became a real problem" (I shall revert to this issue in due course). Southern Star certainly complained of corrosion and odour problems attributable to H 2 S at the applicant's premises and, in a report from the CSIR dated November 1998 (a copy of which is attached to the applicant's founding papers as PIE3) it is recorded that a previous CSIR report of November 1997 had identified sulphide gas as the cause of the corrosion which had commenced in 1996.
In any event, the CSIR conducted a two-day survey to ascertain whether there could be potential health problems and to identify the source. This resulted in a finding (a) that the main contributing source of H 2 S omissions was the pond on the first respondents premises which is situated merely some 25 metres from the applicant's premises, the H 2 S level there being measured up to six parts per million (b) that both nuisance and public health exposure guidelines were being exceeded, and (c) that occupational health exposure limits were being approached and, possibly, exceeded during normal operations. The amounts of H 2 S detected downwind from the effluent ponds exceeded by more than three hundred times the Department of Environmental Affairs and Tourism nuisance guideline of 0,003 parts per million and by up to thirty times the public exposure guideline of 0,2 parts per million. Further tests by the CSIR also demonstrated considerable corrosion on the applicant's premises occasioned by H 2 S. Bearing in mind the evidence that H 2 S smells like rotten eggs, it is therefore not surprising that the applicant complained about the offensive odour coming from the first respondent's premises and the corrosion which was being caused.
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In October 1998, the third respondent, Mr S.M. Lloyd, who had been appointed the chief air pollution officer in terms of APPA, was approached by an organization calling itself "The Pollution Monitoring Committee of Port Elizabeth", which invited him to a meeting and furnished him with a legal opinion to the effect that the odours emanating from the first respondent's premises could be dealt with on the basis that the tannery's activities fell under "process 8" of APPA. He was ultimately persuaded that the first respondent's activities indeed fell under the ambit of process 8 and, consequently, he advised the first respondent to apply for registration under the provisions of that APPA and then entered into negotiations with the first respondent to attempt to address the problem as a matter of priority.
In terms of s. 9 of APPA, no person may carryon a scheduled process within a controlled area without holding a registration certificate. Section 10 thereof further provides as follows:
"10. Application for and issue of registration certificates and provisional registration certificates
(1) An application for a registration certificate or a provisional registration certificate under section nine shall be lodged with the chief officer in the prescribed form and shall be accompanied by such information as may be prescribed.
(2) The chief officer shall after consideration of any such application-
(a) in the case of an application under sub-paragraph (ii) of paragraph (a) of subsection (1) of the said section-
(i) if he is satisfied that the best practicable means are being adopted for preventing or reducing to a minimum the escape into the atmosphere of noxious or offensive gases produced or likely to be produced by the scheduled process in question, grant the application and issue to the applicant a registration certificate in the form prescribed; or
(ii) if he is not so satisfied, by notice in writing require the applicant to take the necessary steps within a period specified in the notice for preventing or reducing to a minimum the escape into the atmosphere of noxious or offensive gases produced or likely to be produced by the said scheduled process.
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(b) in the case of an application under paragraph (b) or (c) of the said sub-section, and subject to the provisions of subsection (4)-
(i) if he is satisfied in regard to the matters referred to in sub-paragraph (i) of paragraph (a) of the sub-section, grant the application and issue to the applicant a provisional registration certificate in the form prescribed; or
(ii) if he is not so satisfied, by notice in writing, advise the applicant to take the necessary steps of the nature contemplated in sub-paragraph (ii) of paragraph (a), within a period specified in the notice, in order that he may be so satisfied.
(3) An applicant who has complied with the requirements of any notice under subparagraph (ii) of paragraph (a) or sub-paragraph (ii) of paragraph (b) of sub-section (2), within the period specified in that notice or within such further period as the chief officer may allow, shall, subject to the provisions of sub-section (4), be entitled to the issue to him of a registration certificate or a provisional registration certificate, as the case may be.
(4) No provisional registration certificate shall be issued under this section, unless the chief officer is satisfied that the scheduled process in question may reasonably be permitted to be carried on in the locality affected, having regard to the nature of that process, the character of the locality in question, the purposes for which other premises in such locality are used and any other considerations which in his opinion have a bearing on the matter, and that the carrying on of that process in or on the premises in question would not be in conflict with any town-planning scheme in operation or in course of preparation in respect of such locality.
(5) In the case of an application under paragraph (b) of sub-section (1) of section nine the chief officer shall consult the local authority, if any, in whose area of jurisdiction the proposed scheduled process will be in operation and any local authority in whose area of jurisdiction there are residents who may in the opinion of the chief officer be affected by the carrying on of the scheduled process to which the application relates, and shall record and consider the opinion and recommendation of such local authority or authorities."
As I understand things, there are two important control variables in an effluent disposal system such as that with which we are here dealing, namely, the mixed liquor suspended solids ("MLSS") ? also referred to as the biomass ? and the dissolved oxygen ("DO") level. Oxygen gas has a limited solubility in water and the MLSS needs to be aerated and mixed on a continuous basis as, unless sufficient mixing and aeration of the MLSS occurs, the biomass becomes starved of oxygen, settles and forms a sludge which, when mixed again, causes the release of H 2 S gas. This problem is particularly pertinent in the tanning industry as tannery effluents tend to be high in dissolved mineral pollutants while high organic loads demand high
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oxygen levels in the receiving water bodies. Consequently, anaerobic conditions tend to lead to sulphide gas generation and corrosion. The treatment of tannery effluent, where low pH chrome liquors mix with high pH lime-sulphide liquors, also tends to allow dissolved sulphide to be released to the atmosphere as H 2 S gas. This problem is typically overcome by the addition of large quantities of lime to the mixed liquor in order to increase the pH, thereby keeping the sulphide in solution. Unfortunately this is only a short-term solution as down-stream mixing with other waste waters leads to a drop in the pH and the resultant release of H 2 S gas in sewers and at the sewage works. In order to avoid this, the mixed tannery liquor is typically dosed with a flocculent to precipitate solids out of the liquid phase but this, in turn, produces a sludge which is organically unstable and tends to putrefy rapidly, giving rise to mal-odours and fly problems.
In the light of the provisions of s.10(2) of APPA, the third respondent instructed the first respondent to appoint an approved and experienced consultant to do a full assessment of its operations and to draw up an abatement program to be implemented as soon as practically possible. The consultant appointed by the first respondent for this purpose was one Barnard of the environmental division of the Leather Industries Research Institute (LIRI), whose report became available in March I April 1999. In order to combat the problems described above, Barnard proposed a segregation of the various process liquors with those containing sulphide, on the one hand, and chrome, on the other, being separated both from the general effluent and from each other, and the various effluents thereafter being treated in different ways. He also recommended an activated sludge process in order to remove the bulk of the organic matter from the waste water. This proposed
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regime involved considerable modification to the process the first respondent was then using to deal with its effluent, and the third respondent afforded the first respondent until the latter half of 1999 to implement it.
As its activities had since been registered as a schedule 8 process under APPA, the first respondent called upon the third respondent to issue a certificate in respect thereof and, on 1 November 1999, he issued the first respondent with a provisional registration certificate which, inter alia, contained the following conditions:
"4. APPLIANCES AND MEASURES TO PREVENT AIR POLLUTION
1) All sulphide containing liquors and effluent from hide soaks will be segregated at source and passed through an approved fact, grease and oil removal system into a collection pit from where it will be treated in one of the two batch sulphide oxidation dams with sufficient aeration capacity, before being discharge into the activated sludge treatment system.
2) The pH in the sulphide oxidation dams will be maintained above 10.5 at all times and will be monitored by routine measurements and recording of the readings.
3) The sulphide content in the liquor leaving the sulphide oxidation dams will be monitored routinely and recorded and will not exceed 10mg/litre expressed as Na2S.
4) The Total COD content in the liquor leaving the sulphide oxidation dams will be monitored routinely and recorded.
5) The activated sludge treatment basin will have sufficient aeration capacity to maintain the entire liquor volume in an aerobic condition at all time . This will be confirmed by routine monitoring and recording of Mix Liquor Suspended Solids (MLSS) content (Imhoff Cone Settling Rate) in the basin and the Dissolved Oxygen (DO) and Total COD, and sulphide content in the liquor leaving the basin. The MLSS content should be maintained between 4 000 and 10 000 mg/L, the DO content above 0.2 mg/L, the Total COD below 5 000 mg/L and the sulphide content below 5mg/L expressed as Na2S.