To
Mr L Zita
Chairman:
Portfolio Committee for Environmental Affairs
Parliament.
on
behalf of the Habitat Council and the Cape Environmental Trust (CAPTRUST).
Date: 16 November 2007
We
wish to thank the Portfolio Committee for the opportunity to comment on the
Bill.
There
are many aspects of this Bill which are sound and are welcomed. For example, we
applaud that the Bill in effect gives recognition to cumulative effects:
S 48 [Factors to be taken into account by
licensing authorities] (b) the pollution…..whether alone or together with
existing operations or pollution, and the effect of that pollution on the
environment, including health, social conditions, economic conditions and
cultural heritage (my underlining).
Another
promising provision is S69 [Regulations by Minister] giving the Minister the
power to inter alia prescribe (bb) incentives and disincentives in respect of
waste management practices;
Here,
however, we shall concentrate on the aspects which we believe need to be
changed, and on aspects that need to be reworded or rewritten or be added to
the Bill. [Section references are given as
S. followed by the number].
1. Principles
We feel that it would add
clarity to, and be an aid to the interpretation of the Act if the Principles
guiding decision-making on waste issues were to be clearly stated at the
outset. We are aware that S 5 (2) [Application of the National Environmental
Management Act] states that this Act must be guided by NEMA principles as set
out in NEMA section 2, but feel that the Principles merit a section within the
Waste Act.
In the National
Environmental Management: Waste Management Bill published in the Government
Gazette of 12 January 2007, Chapter 1 was titled ‘Interpretation and
Fundamental Principles’. In the Bill before us, this has been renamed:
‘Interpretation and Principles’. However, in neither the January 2007 nor the
present version is there a section setting out the Principles. In the absence
of such a dedicated section, we need to ask whether Section 2 [Objects of Act]
is seen as filling this need? In its current form, it certainly does not.
1.1
Reversion to original term:
Precautionary Principle
In the initial 1998 wording
of NEMA, the ‘Precautionary Principle’ was included in the Principles.
Subsequently this was ‘paraphrased /watered down’ to read-
“that a risk-averse and cautious approach is
applied which takes into account the limits of current knowledge about the
consequences of decisions and actions”
and in S 1 (2)(viii)
“that
negative impacts on the environment and on people’s environmental rights be
anticipated and prevented, and when they cannot be altogether prevented, are
minimised and remedied”.
We ask that the
internationally recognised term ‘Precautionary Principle’ be once again and
unequivocally incorporated in this Bill as guiding principle.
Alternatively the Precautionary
Principle could be added to Section 2: Object
of the Act - we suggest as S 2
(e) “to achieve this by ensuring that decisions made with respect to waste are
in conformity with the Precautionary Principle”.
1.2 ‘Duty of Care’
‘Duty of Care’ is mentioned in S 74 (e) under matters that
the Minister may regulate, but we ask that it be given prominence by being
given mention as a Principle applying to the whole Bill.
1.3 Proposed paragraph to be added to S3
[General duty of state]
In fulfilling these
responsibilities, the State (and all decision-making or implementing
authorities to whom responsibilities may have been delegated) must apply the
Precautionary Principle as basis for decision-making, and be bound by the
principle of Duty of Care.
This might be
incorporated in Chapter 1, as a second paragraph under section 3: General Duty of the State.
1.4 “In conformity with NEMA principles”
to replace “guided by”
We are aware of and applaud the
linking in S 5(2) of the NEMA principles with this Act, but we urge that an
important wording change be made. It states here that “(T)he interpretation and
application of this act must be guided by the NEMA principles”. We ask
that the wording be changed to “must be in conformity with”, and not just
“guided by”.
2. The
concept of ‘recovery’
The definitions supplied in CHAPTER
1 [interpretation and principles] determine how a word or phrase
must be interpreted where it occurs in the Act.
2.1 Mention of
‘recovery’ in the Definitions section
The definition given for “recovery”
in Section 1 reads:
“recovery” means the controlled
extraction of a material or retrieval of energy from waste to produce a
product”.
Note that the definition section of
this Bill acknowledges ‘recovery’ as both “the controlled extraction of a
material” and “the recovery of energy from waste”.
In the January 2007 version of the
Bill the words ‘ of a material’ were not
included, so this present version is some slight improvement on the earlier
definition. However, it still does not draw a distinction between two very
different processes - the one positive, the other extremely negative.
We are deeply concerned by the
wording: ‘ retrieval of energy from
waste’.
In our comments submitted on 4 April
2007 we pointed out that Waste-to-Energy plants, despite the claims made by
parties trying to sell these technologies, are harmful to health.
The recovery or extraction of
materials to retrieve or salvage resources is positive and must be encouraged.
These two processes must be defined as separate technologies, with a clear
distinction between recovery as “the retrieval of energy from waste”, and the
extraction of a material from waste to retrieve or salvage resources.
I draw attention to the
various sections of the Act that mention recovery, starting with instances
where I assume ‘recovery’ is intended in its positive sense of “extraction of a
material”.
2.2
‘Recovery’ used in a positive sense?
We should like to assume that the
inclusion of the word ‘recovery’ in the Preamble
to the Bill, intends it to be understood in its positive sense of retrieved or
salvaged:
“Whereas sustainable development requires that
the generation of waste is avoided, and where it cannot be avoided, that it is
reduced, re-used, recycled or recovered and only as a last resort
treated and safely disposed of”
There is however no clarity on this
point.
In Chapter 1 [General duty of
State], Section 3, we also assume that the word ‘recovered’ is used in its
positive sense.
“In fulfilling the rights contained
in section 24 of the Constitution, the state, through the organs of state
responsible for implementing this Act, must put in place uniform measures that
seek to reduce the amount of waste that is generated and, where waste is
generated, to ensure that waste is re-used, recycled, and recovered in
an environmentally sound manner before being safely treated and disposed of”..
In Chapter 8 [General Matters] Part
1, S 69(1)(l)(ii) ‘recovery’ is, we believe, used in a positive sense: The
Minister may make Regulations regarding-
S 69(1)(l)(ii) “The reduction, re-use, recycling and recovery
of packaging”
Where recovery is mentioned in the
Memorandum on the Objects of the National Environmental Management: Waste Bill,
2007, which is attached at the end of the Act we also assume that the intention
is for it to be understood as ‘retrieval’ or ‘salvaging’.
Such retrieval or recovery is a
wholesome and important feature of good waste management, whilst ‘burn
technologies’ are NOT environmentally sound, whatever the sellers of this these
technologies claim. Dioxins and furans are released and excessive amounts of
electricity are required.
We wish to point out that S 18(3)(d)
enjoins the Minister to consider relevant scientific information with respect
to extended producer responsibility. There is abundant scientific reference to
the harmful effects of burn technologies. As already mentioned, the burning of
solid waste results in the release of dioxins and furans. Dioxins and furans
are PERSISTENT ORGANIC POLLUTANTS forbidden under the Stockholm Convention,
which
DEAT cannot plead ignorance of the
very real dangers to health which all forms of incineration hold. To do so
would be tantamount to reneging on their Duty of Care. Furthermore, DEAT is
unable to monitor and control these emissions. We therefore urgently request
that the Bill must forbid energy recovery from waste and the incineration of
waste. These are destructive processes which, if full cost accounting is done,
are not financially viable. All the ‘burn technologies’ result in the release
of dioxins and furans into the atmosphere; and they encourage the destruction
of valuable waste resources, that should be retrieved. In addition,
incineration and other burn technologies are excessively energy consuming –
which must disqualify the technology, since this country is facing an energy
crisis. These technologies can never pass the “best available technology”
criterion.
We must therefore demand that the
definition of ‘recovery’ be changed to
make it possible to distinguish clearly in what sense the word is being
used. ‘Recovery’, in the positive sense
in which we would want it to be used, might be defined as follows:
Recovery, for the
purposes of this Bill, refers to the controlled recovery of a material as a
resource; the retrieval / salvaging of material from waste for re-use as a
resource.
The process of the
retrieval of energy from waste needs to
be unambiguously defined, possibly by simply defining it under the term
“retrieval of energy from waste”. It is essential to make this distinction so
that there may be clarity.
With the many references
in the Bill to the duty of the State not to jeopardise the health and
well-being of its citizens, the State cannot support the extraction of energy
from waste, and much less can it support incineration.
2.3
The word ‘recovery’ used
in other definitions
To illustrate how far-reaching the
confusion between these two technologies is, I have made a painstaking list of
the occurrences of the unclearly defined term ‘recovery’.
In S 1 the definition given of ‘waste’ twice refers to ‘recovery’. I
quote-
“Waste” means any substance, whether
or not that substance can be reduced, re-used, recycled or recovered-
(a) that is surplus,
unwanted, rejected, discarded, abandoned or disposed of;
(b) where the generator has
no further use of for the purposes of production, reprocessing or consumption;
(c) that must be treated or
disposed of; or
(d) that is identified as a
waste by the Minister,
but-
(i) a
by-product is not considered a waste; and
(ii) any
portion of waste, once re-used, recycled and recovered, ceases to be a
waste.
In the definition for ‘waste management activity’, we find in
(e) “the reduction, re-use, recycling and recovery of waste”.
The definition of ‘waste treatment facility’ is given as ‘any
site that is used to accumulate waste for the purpose of storage, recovery,
treatment, reprocessing, recycling or sorting of that waste”.
[For some inexplicable reason
‘producer responsibility measures’, given in S 1(gg) (iii) of the previous
draft of the Bill, is now no longer included in the definitions. In the earlier
version of the Bill, ‘producer responsibility measures’ was indeed defined as
subsection (gg) “ actions that extend a
person’s financial or physical responsibility for a product to the
post-consumer stage of the product and include- …..
(iii) financial contributions to any
fund that has been established to promote the minimisation, recovery,
re-use or recycling of waste”
This was clearly also referring to
recovery as a salvaging action.]
2.4 References to ‘recovery’ throughout the rest
of the Bill
The term “recovery” is included
wherever the concepts of reduce, re-use, and recycle occur. Examples are cited
below, with their section references-
§
S2 [Object of the Act]
S2 (a) to protect health, well-being
and the environment by providing reasonable measures for:
(iii) “reducing, re-using, recycling and recovering
waste.”
(iii) recovery…..
§
S 7 [National norms and standards]
S 7(2) reads:
“ The Minister may…..set
national norms and standards for
(a) the minimisation,
re-use, recycling and recovery of waste
§
S 8 [Provincial norms and standards]
S 8 (3) The norms and standards
contemplated in subsection (2) must among other things facilitate and advance
(c ) “minimisation,
re-use, recycling and recovery of waste
…”
§
S 9 (3)(b) determines
that a municipality may set
“local standards for the
management of solid waste …..including requirements in respect of the avoidance
and minimisation of the generation of waste and the re-use recycling and recovery
of solid waste.”
§
Part 3 of Chapter 4: WASTE MANAGEMENT MEASURES has it in its
heading “Reduction, re-use, recycling
and recovery of waste”.
§
S 51 [Contents of waste management licence]
S51 (1) “A
waste management licence must specify-
The amount and type of waste that may be
generated, handled, processed, stored, reduced, re-used, recycled, recovered
or disposed of”
(2)
A license may (a)
specify-
(a)
conditions in respect of the reduction, re-use, recycling
and recovery of waste
§
Chapter 6 [Waste Information] S 60 (1) [re establishment of
a national waste information service by the Minister]
……that must include-
(a)
“data on the quantity and type of classification of waste
generated, stored, transported, treated, transformed, reduced, re-used,
recycled, recovered and disposed of;”
§
S61 [Objectives of national waste system]
(c )
provide information to organs of state
and the public –
(v)
on the status of the generation, collection, reduction, re-use,
recycling, and recovery transportation, treatment and disposal of waste;
and
(vi)
the impact of waste on health and the environment.
§
S 69 [Regulations by Minister]
The Minister may make regulations
regarding …..
(o)
the utilization of waste by way of recovery, re-use
and recycling. [Note: recovery listed first.] (Can we assume that recovery here
is used in the sense of retrieval?)
3. Missing definitions
3.1 Incineration is not defined in the Bill, although
reference is made to it in Schedule 1, Category B, where incineration is listed
as an activity that requires a full Environmental Impact Assessment (EIA). We
propose that the definition of incineration, as it occurs in the Marine
Conservation Bill, be adapted for use here.
Incineration
…..means the deliberate combustion of any material….for the purpose of
disposing of it by thermal destruction…..
We urgently request that
the Bill explicitly reject incineration and thermal destruction as a means of
waste management, (with cremation excepted from the ban).
3.2 We believe
that “separation at source” should be defined.
With respect to municipal domestic
solid waste we propose that this should be defined as separation into three
categories: biodegradable, non-biodegradable, and toxic (see 4.1 below).
[Note: biodegradable –or ‘wet’ –
waste must go to composting yards or worm farms; non-biodegradable waste must
be transported to sorting stations for re-use / recycling, and the small
amounts of toxic waste must be detoxified as far as possible and what cannot be
salvaged, taken to landfill sites.]
3.3 Definition of ‘landfill site’ should be
given.
The term ‘waste disposal facility’
is too encompassing, since it apparently includes landfills, sites where for
example, hospital wastes can be autoclaved or microwaved.
We believe that a distinction
must be made here.
4. Discretionary nature of the consultative
processes and public participation provided
The Minister and his delegated
representatives are being given too wide and vaguely defined discretionary
powers with respect to licensing, and the granting of exemptions. We believe
that there is a need for a Waste Commission at national and at provincial
level, and Waste Committees at local level on which members of civil society
can serve.
We note with appreciation that, for
the identification of Priority wastes
[S14], the Minister must engage
in a consultative process, and public participation, in accordance
with Sections 72 and 73.
It is a matter of concern, however,
that S 72 (i), which makes provision for consultation, qualifies this by adding
“…. consultative process as may be appropriate in the circumstances”.
This makes this provision discretionary.
Likewise, S73 (3) determines that “the
Minister or MEC, as the case may be, may, in appropriate circumstances, allow
any interested person or community to present oral representations or
objections”
Then, too, in S 52 [Transfer of
waste management license], S 52 a) reads
“If the environment or the rights or
interests of other parties are likely to be adversely affected, the Minister or
MEC must before deciding the application for transfer, request the applicant to
conduct a consultation process that may be appropriate in the
circumstances….”
How are ‘appropriate circumstances’ to be decided? This
appears to be completely discretionary.
5.
Other waste management issues
5.1
Separation of municipal solid waste at source
Separation of waste at source,
(along with the establishment of composting yards for ‘wet’ (biodegradable)
waste and sorting stations for ‘dry’ (non- biodegradable) waste, and
landfilling after detoxifying of toxic waste), should be written into the Act
as Objective, or better still, as POLICY.
Not only will it prevent the loss of
resources that should be retrieved, but a significant number of sustainable
jobs will also be created. Such sorting stations should be strategically
placed, taking into account distances for delivery of the ‘dry waste’ to the
sorting station, and proximity of communities that could be employed there. In
a country faced, as we are, with increasing impact of global warming and global
dimming, turning biodegradable waste into compost and returning it to the land
is a moral imperative, since it can help stave off the effect of increasing
drought conditions that loom.
The Act delegates the responsibility
for the collection of waste to municipalities. For separation at source to be
effective and successful, we believe that municipalities must collect the
separate categories of separated waste and delivery to these facilities (either
on separate days, or by means of ‘separated’ trucks, or a truck and trailer).
Even of they choose to outsource the collecting to private initiative, the
overall responsibility remains with the municipalities, and they must ensure
efficiency.
5.2 No new landfills for mixed municipal
solid waste
Existing landfills should no longer
receive mixed municipal waste. The only landfills that should still be
tolerated are landfills for toxic waste, but such wastes should first be
screened and treated to detoxify them as far as possible. Such sites for toxic
waste should not be in close proximity of communities.
6. other concerns
The Bill designates virtually every
aspect of waste management to future regulation.
A study of Section 69 [Regulations
by Minister] reveals an unsorted bunch of topics, some of which belong in the
Bill as PRINCIPLES, e.g. S 69 (f) [“duty of care”] and S 69 (k) [“life cycle
assessment”].
We ask that it be written into the
Act [possibly as S 69(6)], that before Regulations are published, the Minister
must engage in a proper consultative process with the public, as set out in S
72 and S 73.
6.2
Appeals
6.2.1
Regulations that the Minister MAY make include S 69(1)(z)
regulating “the procedure for the institution of appeals against decisions of
officials in the performance of their functions in terms of this Act.”
6.2.2
S 70 likewise empowers the MEC, with the concurrence of the
Minister, to make certain regulations. This includes S 69(1)(z)(quoted above).
We find it highly problematic that an MEC is authorised to make regulations
regarding the appeal procedure for his/her particular province. We believe that
the Appeal procedure must be set out in the Act and be uniformly binding
throughout the country, with no provincial deviations.
6.2.3 We reject the fact that
provision for the appeal procedures should be relegated to Regulation. This
basic right should be part of the Act itself. We ask that the Act either
explicitly spell out the procedures for appeal, or that is state unequivocally
that the Appeal procedure as in section 43 of NEMA applies to appeals on
matters flowing from the Waste Management Act.
6.2.4 S 78 [Appeals] merely
deals with joint consideration of an appeal, and the Minister or MEC’s power to
indicate the process that must be followed to give effect to a decision.
6.2.5 In S 49 [which deals with
decisions of licensing authorities on waste management licence applications, S
49(4) determines that after the licensing authority has reached a decision, it
must notify the applicant. S 49(4)(c ) determines that this must be done-
in a manner determined by
the licensing authority, instruct the applicant to notify any persons who have
objected t6o the application of the decision and the reasons for the decision.
Please note that there
is no mention of the objector’s having the right to appeal the decision to
approve the application.
6.2.6 The Memorandum on the Objects
of the National Environmental Management: Waste Bill 2007 (p.45) under 1.6
lists what the Bill specifically provides for.
Please note that no mention is made here with respect to appeals.
6.3 Variation of waste
management licenses
S54 (formerly S 59)
[Variation of waste management licences]
In our reading of the Bill, the
holder of a license may request a variation [S 54 (3)], but no provision is
made for a third party or parties to request that a licence be varied or the
conditions made stricter. The Bill should provide for the situation where civil
society may feel the need to request that additional conditions or stricter
conditions be attached to a licence. The act should make provision for this.
6.4 The
classification / categorisation of wastes is inadequate.
The Bill must distinguish more
adequately between categories of waste. S 4(1) makes reference to radio-active
waste, relegating it to control under other legislation. Electronic and nuclear
wastes get no mention.
Medical waste also needs to be
distinguished and defined, and a distinction made between what can be dealt
with by a process of autoclaving or micro-waving, and infected waste or body
parts (said to be about 3 % of the waste stream), which can be dealt with
chemically.
6.5 Standards
Chapter 2, Part 2 [National, Provincial and local standards]
At the national level,
regulation of standards is done by the Minister [S 7 (2)]. Our concern is that
in many instances, such as in the case of DIOXIN being formed and heavy metals being
present in bottom ash, not even the Air Quality Act makes provision for the
setting of standards regarding the levels of toxic substances that may be
released into the environment. We ask that the Minister set such norms and
standards, as an additional point (e), after S 7(2)(d).
6.6 Importation
of waste
[S 74 (k) and (l) of the Bill as
published on 12 January 2007 dealt with “the prohibition or restriction of the
import and sale of any product or classes of products in such circumstances as
may be prescribed “ and with “procedures for the importation and exportation of
waste”
That seemed to place the matter
totally at the discretion of the Minister, which we saw as being problematic.
The current version of the Bill seems to have dropped this issue.
We believe that a caveat should be
included in the Act with respect to, for example, the importation of
potentially hazardous waste materials, such as the importation of used tyres,
and also of obsolete computers. The Basel Convention and Polokwane Declaration
should be honoured.
7. Conclusion
We appeal to the
Portfolio Committee to help our country to achieve waste management legislation
that will not be open to exploitation, and not lead to health risks and
environmental degradation that can with good legislation be avoided.
Compiled
by M-L Roux
Executive
Officer: Habitat Council and Secretary: CAPTRUST
Contact
details: