Protecting Human Health

6 March 2018 5:14pm
Optimising existing measures to protect human health

Air pollution and its impact on human health is receiving increasing attention.  Articles on the number of deaths and illnesses attributable to air pollution in the world’s most polluted cities are frequently published.

While there are many contributors to air pollution, the extent of the contributions made by these different sources is not always adequately investigated or defined.  Without identifying these sources and their respective contributions, management and mitigation of the attendant risks is likely to be inadequate.

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The World Health Organization (WHO) regards air pollution as “the world’s largest single environmental health risk”[1] with 2015 annual figures attributing 4.3 million premature deaths to indoor air pollution and 3.7 million premature deaths to outdoor air pollution.    The most concerning public health pollutants include particulate matter (PM), carbon monoxide (CO), ozone (O3), nitrogen dioxide (NO2) and sulfur dioxide (SO2).[2]

In line with the Constitutional right to an environment not harmful to health or wellbeing, South Africa has a suite of air quality environmental regulation with the National Environmental Management: Air Quality Act, 2004 (“AQA”) at the core.

Published under AQA, point source emissions standards impose emission limits on regulated industrial activities and ambient air quality standards (“NAAQS”) contemplate the levels designed to protect health and the environment including the total emissions from all contributors, including both industrial and non-industrial. Informed by WHO Guidelines, the NAAQS set ambient limits for the most concerning public health pollutants (PM10 and 2.5, NO2, SO2, O3, CO and also lead (Pb) and benzene (CH6)).  Equally, and depending on the regulated activity, point source emission limits are prescribed for these pollutants.  The definition of ambient air in AQA expressly excludes “air regulated by” the Occupational Health and Safety Act, 1993 (“OHSA”).

OHSA, on the other hand, aims to “provide for the health and safety of persons at work” and “the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work”. Thus, employers are obliged to “conduct … undertaking(s) in such a manner as to ensure, as far as reasonably practicable, that persons other than those in (their) employment, who may be directly affected by (their) activities are not … exposed to hazards to their health or safety”.

Employers must assess hazardous chemical substances to which employees may be exposed, the effects these may have on employees, where these substances may be found, their route of intake, the extent of possible exposure and applicable control measures. Ultimately what is hazardous is determined by what will result in a hazard to health and occupational exposure limits (“OELs”) are set for these substances.  Apart from PM, all the other WHO (and therefore NAAQS) concerning health pollutants have prescribed OELs.

There are multiple other correlations between occupational health and community health which could support a holistic occupational and community health risk management programme.  Where emissions extend beyond the “factory fence”, although the source of the health threat to employees and community members will be the same, employee exposure and risk does not equate to beyond the factory fence exposure.  Although it provides some indication, and apart from the inevitable dispersion and dilution of emissions between the source and beyond the fence, understanding health risks by assessing employee exposure may not adequately consider risks peculiar to vulnerable members of the population such as children or the elderly or the potential for the development of secondary pollutants.

The process for the identification, risk assessment and determination of mitigation and control measures is similar for both environmental and community health.[3] While OHSA requires employers to establish hazards, take measures to eliminate or mitigate them and implement precautionary measures, a similar approach informs atmospheric impact assessments required by AQA.  Its Regulations require an assessment of the various atmospheric emissions from point and fugitive emission sources followed by an analysis of the impact of those emissions on, amongst other things, human health.  Practically speaking, that impact is generally assessed by comparing the predicted ambient concentrations of these emissions against the NAAQS.  These results then inform mitigation measures and/or license conditions.

The 2014 National Environmental Health Policy appears to contemplate a shift from relying on environmental legislation solely to manage environmental matters.  It states that “emerging legislation implies a shift towards comprehensive, integrated, preventive approaches of the environment for health, e.g. air quality management as opposed to pollution control.  This shift suggests intervention by the environmental health sector at the early planning stage of development, and continuous environmental surveillance and evaluation across disciplines”.  It recognises that AQA, amongst others, provides a “framework for action in the environmental health sector, which also encapsulates modern approaches to management of the environment for population health and well-being”.

Although there is currently no express regulatory requirement between AQA and OHSA to conduct a holistic interpretation of the information arising from the processes prescribed by them, since “the identification of environmental health hazards has often come from observations of adverse health outcomes among workers”,[4] holistically considering and using information from both disciplines provides an excellent opportunity to assess industrial contributions to air pollution and therefore more proactively manage both employee and community health risk.  Arguably, such an approach must represent a comprehensive, integrated, preventive approach to the management for population health and wellbeing as contemplated by the National Environmental Health Policy.

As is the case with most environmental law in South Africa, air quality regulation continues to be rapidly changing and evolving.  Given the justifiably significant worldwide attention on human health and exposure to air pollution, further developments in this space must be inevitable whether they are in the form of precedent setting cases or changes to regulation.  In order to ensure you comply with your obligations as a responsible operator, it is not only critical to understand your current regulatory obligations but also to keep abreast of these developments.  The LexisNexis Library is well suited to help you understand your existing obligations and Lexis Assure will keep you on top of regulatory changes as and when they happen.

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Justine Sweet is an admitted attorney with over 15 years’ experience in environmental law.  She is a contributing author to LexisNexis content solutions.

The regulatory environment for Occupational Health and Safety can be a challenging one to navigate. Lexis Assure is there to assist. Part of Lexis Nexis South Africa’s portfolio of legal research and digital products, Lexis Assure provides daily email alerts, analysis and compliance calendars which assist the user in keeping track of regulatory changes relevant to their business. This online solution allows users immediate access to new developments in legislation, follows risk ratings and provides information on the penalties for non-compliance, laying out all the necessary information as and when it is required. It also integrates with LexisNexis Practical Guidance to deliver a robust collection of case law commentaries, precedents and checklists. With a professional team of experts and its comprehensive database of subject matter, Lexis Assure takes the pressure off seeking and interpreting information and helps ensure 100 percent compliance.

For more information, visit http://www.lexisnexis.co.za/lexisassure/

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