National Environmental Management: Waste Amendment Bill [B32-2013]: public hearings

Water and Sanitation

28 January 2014
Chairperson: Mr J De Lange (ANC)
Share this page:

Meeting Summary

The Chairperson summarised that this Committee still had a number of legislative amendments to deal with, but the Parliamentary programme was still uncertain, as the date for elections had not been announced. The Committee’s work would continue, and even if the final amendments could not be finalised by this Parliament, the Department of Environmental Affairs (DEA) should have an almost-finished product to present to the next Parliament. At the outset, DEA was asked to explain the latest changes that it had made, in line with suggestions made by commentators and this Committee. Three areas of change were presented. DEA firstly presented amendments to the definitions of “by-product”  “waste”, “recovery” and “re-use” of waste. Secondly, it was proposed that the MECs must act in concurrence with the Minister when requesting certain persons to compile or approve the Integrated Waste Management Plans (IWMPs). They could, however, deal with provincial and not national waste issues. The third change related to more clarity on the role ad function of the Waste Management Agency (the Agency) and it was now noted that it would not have a board and was essentially being set up to function as implementing agent of the DEA, to carry out the exclusive work where specialist waste expertise was required.

Most of the subsequent comments focused on the problems perceived with definitions, and after hearing the suggestions from all parties, the Chairperson asked the DEA to meet with each of the presenters to discuss their proposals, in order to come up with a fully revised definition for “waste” as a starting point. SALGA was concerned that the current definition of by-products would allow the industry to exploit hazardous waste streams, but felt it should not be excluded, because it covered secondary products. SALGA felt that the clauses around establishment of the Agency were not clear, although it believed the Agency would be of benefit if it delivered on its mandate. It welcomed the changes around the MEC powers. SALGA asked that it be stated that one objective was to focus on the development, review and implementation of municipal Integrated Waste Management Plans, and the Agency should be able to facilitate municipalities with waste management issues. The Chairperson asked if SALGA would be happy if the definition of “by product” were deleted but the definition of waste, recovery and re-use amended, which SALGA confirmed. Members asked what role SALGA had in implementing amendments, where municipalities may be dysfunctional, and asked what steps it had taken to help them already with waste plans. On hearing that SALGA tended to offer workshops only, the Committee suggested that should move to monitoring municipalities’ compliance directly and that government had to create capacity to deal particularly with waste and sanitation.

Business Unity South Africa (BUSA) said that it had initially been opposed to the creation of the Agency but appreciated and was able to give cautious support to it now that it had been clarified by DEA. It was concerned with the definition of waste, and suggested that a change was also needed to the definition of “general waste”, a revised definition for “recovery” and “energy”, and “stores” and “stockpiles”. The Chairperson and presenter engaged in serious discussion on some of the issues. BUSA asked that the Committee must ensure that the definitions were clear and unambiguous. BUSA had some difficulty with the provision that allowed the MEC to require an industry plan in one province, regardless of whether the activity was undertaken in more than one province, as this might give rise to competition issues. The Chairperson agreed on this point and said that the Committee would try to ensure that no opportunities for corruption were created. In relation to the Agency and its clarified role, BUSA still felt that the Act did not deal with levies, and this wording had been replaced by reference to incentives, but there seemed to be contradictions. Again, the Committee agreed that this would need to be reconsidered. Further points were made about the need to align provisions of section 28, 34B, C and D. DEA was urged to go carefully through all technical issues to ensure that there were not deviations from the original intention.

Transnet said it thought the major problems in the definition of “waste” were around the exclusions and proposed new wording, which DEA was requested to discuss further with Transnet.

The Council for Scientific and Industrial Research noted that the legislation was currently perceived as the biggest constraint to growth of the waste industry, which had the potential to create many jobs, whilst implementation and compliance were other challenges. The Chairperson countered that although growth of the industry was important, it was even more important to have strong regulation and to protect society. Commenting of definitions of by-product and waste, CSIR suggested that if there was a market for a material, it should not be categorised as waste. It was confusing to determine at what point waste was no longer waste, so references to “recycled” should be deleted. The Chairperson clarified for CSIR what the role and purpose of the Agency would be, and answered the suggestion to change its name by saying that the name was not as important as making its functions quite clear. CSIR finally noted that changes to section 4(d) would mean that animal carcasses would have to be regulated under the waste legislation, instead of the Animal Health Act, and there was a need to avoid conflict.

The Association of Cementitious Material Producers (ACMP) also cited problems with the definition of waste referring to stockpiles, treatment, recycling and recovery. The Chairperson cut short the debate by reminding the presenters that the whole definition must be re-worked. Clarity was sought by Members on the definitions of hazardous waste, and more attention must be focused on what was envisaged by “recovery” and “controlled extraction”. Implementation challenges were raised, although when this presenter also spoke to marketability of a product, the Chairperson responded that this was not the main issue. ACMP finally proposed that DEA must establish sound co-operative governance and implementation systems to ensure the different regulatory functions were aligned, test the definitions for any unintended consequences, and amend the principal Act to allow for end-of-waste protocols, to support future beneficiation, particularly for stockpiles. Members agreed with the need to ensure full alignment between the Bill and principal Act and other legislation, and urged DEA to ensure that it had sufficient capacity.
 

Meeting report

Chairperson’s opening remarks
The Chairperson welcomed presenters and Members and said that, given the “best kept secret” around the election date, probably some time in May, the Parliamentary programme was uncertain and he was not sure whether the work done now would be processed through this Parliament, but the work should continue, so that if it did not, at least the Department of Environmental Affairs (DEA) would have a ready version to present to the next Parliament. The challenge would be that the Committee would change and the same Members may not be working on the Bill, so a new process would be required. He outlined in what order the pending legislation may be processed, and how budgets may be handled.

National Environmental Management: Waste Amendment Bill: public hearings
The Chairperson said that a few issues had already been raised with the DEA and it would be proposing some changes to the Bill, following submissions to the Department by the public and this Committee. He asked that these be presented.

Mr Mark Gordon, Deputy Director General, Department of Environmental Affairs, outlined that the changes fell into three broad categories, one relating to definitions and their context, the second dealing with MECs’ powers and the third with the Waste Management Agency (WMA or the Agency).

Dealing with the definitions, he said that past experiences clearly showed the need for complete clarity and removal of any ambiguities around the definition of waste. It was therefore proposed that the definitions for “by-product” should be deleted and the definitions of “waste” amended in order to provide legal clarity on “waste”, “recovery” and “re-use” of waste.

It was suggested that “recovery” would be defined as the “controlled extraction or retrieval of any substance, material or object from waste to produce a product. The word “re-use” would mean to utilise articles from the waste stream for a similar or different purpose without changing the form or properties of the articles.

“Waste” was defined as any substance, material or object, which the holder of waste or generator thereof discarded stored, stockpiled or was required to discard, or that must be treated or disposed of; or that was defined as a waste by the Minister by notice in the Gazette. It would include waste generated by the mining, medical or other sector.

The second amendment clarified the spheres of Government required to compile an Integrated Waste Management plan. It was proposed that the MECs must act in concurrence with the Minister when requesting certain persons to compile or approve the Integrated Waste Management Plans (IWMPs). It had been observed that some of these IWMPs were large sectors that ran across borders of national significance.

He noted, in regard to the WMA, that the Agency was being set up by the Bill to carry out exclusive work relating to specialist expertise required to:
- Facilitate minimisation, re-use and recycling of waste.
- Facilitate the preparation of Industry Waste Management Plans for those activities that generated waste,
- Monitor the implementation of industry plans and the impact of incentives provided,
- Develop norms or standards for the minimisation, re-use and the recycling of waste
- Function as the implementing agent for the DEA in respect of matters delegated to the Agency

The Chairperson reminded the Committee that comments had previously been raised on the clause dealing with the MECs, to the DEA. In this context, “waste” was restricted to waste generated in that province, in which the MECs were empowered to act. In the case of national waste, only the national Department would be empowered to deal with it, concurrently with the Minister. This must be clearly spelt out.

He noted that the problems that the Committee had had concerning the Waste Management Agency and Board were perhaps not fully appreciated, but it was true that specialised knowledge was needed for the success of the work, and the Agency was the way that the DEA could bring in that expertise. The Bill created an Agency within the DEA and civil service structures, but the power to create certain categories of jobs with different salary scales rested with the Minister of Finance.

South African Local Government Association (SALGA) submission
Mr Lesetja Dikgale, Councillor representing SALGA, said that SALGA believed that the issue of by-products and their treatment in the Bill would create an opportunity for the industry to exploit certain waste streams that were hazardous to the community. SALGA was generally pleased with how the clauses dealing with the Integrated Management Plans had been structured, because MECs would in future endorse, but not approve them.

SALGA was concerned that the clauses dealing with establishment of the Waste Management Agency were not clear on how exactly the local municipalities were involved. It seemed that a hands-on approach would be taken on the industry but local government was excluded.
 
Mr Balanganani Nengovhela, Technical Capacity Building: Local Government, SALGA, submitted that the definition of by-product should not be excluded, because a “by-product” was not considered a waste by the Bill. A by-product could be any secondary product derived from a manufacturing process or chemical reaction (such as the coal by-products produced at coal-fired power stations, or industrial boiler ash which contained mostly hazardous substances that could cause harm to the environment and human well-being).

SALGA believed that the WMA would be of great benefit to the Waste Management sector in local government if it delivered on its mandate and functions.

SALGA suggested some further additions. It would like one of the objectives to be stated as putting more focus on the development, review and implementation of municipal Integrated Waste Management Plans as many municipalities were struggling in this area of work. It furthermore proposed that the WMA should have additional functions to:
- Facilitate partnerships between municipalities and industry (for instance for waste separation at source, and alternative ways of managing waste). This was a very important issue to achieving national waste management strategy targets and goals.
- Assist in uplifting the profile of waste management issues across all spheres of government and to the public, promoting community awareness of the need for an environment free of litter or waste. 
- Support municipalities to establish appropriate institutional arrangements and delivery mechanisms for the provision of Waste Management Services, a point not addressed by many municipalities.  

SALGA summarised that these proposals should assist in the delivery of municipal Waste Management Services (WMS).

Discussion
The Chairperson asked for SALGA’s reaction should the definition of by-product be deleted and then the definition of waste, recovery and re-use amended. He said that the DEA was of the opinion that all the definitions, including that of by-product, were extremely confusing.

Mr Nengovhela replied that SALGA was comfortable with the suggestion to delete the current definition for by-product because it raised several problems, especially with regard to the powers of the Minister. If waste was referred to as a by-product, this would reduce the way in which industries could use the waste produced. He added that the amendments made on the Integrated Management Plans were appreciated. The Committee could be assured of unflinching support of SALGA with regard to that amendment, as it was in line with the constitutional integrity of municipalities to govern their own affairs.

The Chairperson wanted clarification on the statement on the duty of the MECs towards the Local Government. He confirmed that originally their duty was to approve Integrated Management Plans, but now an endorsement only would be needed, so their role had shifted to one of oversight.

Ms M Wenger (DA) inquired what role SALGA had in the past and would play in the future, in implementing the amendments, considering the number of dysfunctional municipalities. What role had they played in the past with regards to municipalities?

Mr Dikgale responded that the Constitution had clearly stated that SALGA had an advocacy and advisory role for local government. SALGA would not intervene or implement on behalf of municipalities, merely give guidance to them. Most of the resolutions taken at the meetings clearly defined the role of the municipalities in relation to the environment. Advice would be given, but it was the municipalities’ prerogative whether to take the advice or not.

The Chairperson requested that the resolutions mentioned be sent to him by Mr Dikgale. He asked if SALGA was struggling to execute the Integrated Waste Plans. He reminded the Committee that Provinces and local governments were in charge of the Integrated Waste Plans and the Agency was in charge of the waste streams. He asked if SALGA was suggesting that the Agency should also assist municipalities.

Mr Dikgale said it was, because municipalities did not have the required expertise because of their low budgets.

The Chairperson probed further on what specific steps had been taken by SALGA to ameliorate the issues surrounding the weak municipalities, especially in regard to waste plans.

Mr Dikgale said one of the ways in which SALGA helped weak municipalities was that their staff members would attend SALGA workshops where tools of engagement were provided.

The Chairperson asked if SALGA had any institutional capacity to assist the municipalities.

Mr Dikgale responded that SALGA had such capacity, but reiterated that SALGA did not intervene directly, merely acted indirectly through workshops. It may bring in experts, including from departments, to engage with the municipalities on how best to implement resolutions.

The Chairperson enquired whether SALGA monitored the municipalities’ compliance.

Mr Dikgale answered that monitoring of the municipalities was done by sending out questionnaires to assess the implementation of the resolutions taken, on either national or provincial issues, and resolutions taken in workshops. These questionnaires were assessed to ascertain whether there had been improvements.

Mr Nengovhela added that the Department should be commended for assisting with the municipalities.

The Chairperson wanted to know how the Department helped SALGA.

Mr Nengovhela replied that there was a partnership between the Department and SALGA whereby both parties would go together to assist the municipalities.

Ms J Manganye (ANC) suggested that SALGA should improve on its monitoring system. The impression was created that SALGA would “babysit” the municipalities, but obviously that had not been the case. She pointed out that people could attend workshops but if there was not enough monitoring and follow-up thereafter, the aim of the workshops would not be achieved. A stronger actual monitoring capacity should be put in place.

The Chairperson agreed, and said this Committee could fully support SALGA if it could increase its capacity and actual monitoring of municipalities.

Ms B Ferguson (COPE) sought to understand how SALGA monitored the service providers that should assist the municipalities, especially if there was no solid evidence of the work carried out.

Mr Dikgale informed the Committee that all the comments made by the Committee were noted and that SALGA would definitely ensure that the issues raised would be addressed.

The Chairperson asked the DEA to comment on SALGA’s suggestion that the capacity should be created within the Agency to assist with the Integrated Waste Plans.     

Mr Gordon replied that the Department was already carrying out such duties for a number of municipalities. Therefore, this issue may be looked into for the Agency.

The Chairperson commented on the clause “subject to the availability of finance” and said that the Agency would have to gradually create the capacity to assist the municipalities. This allowed the Agency to first and foremost carry out the duties for which it was primarily established and then, as things progressed, to deal with the Integrated Waste Plans.

Ms Lize McCourt, Chief Operations Officer, DEA, said that the proposition could be explored but it was important not to overlook the links between the Integrated Waste Plans and the planning regimes. There was a need to strengthen the monitoring of the implementation of the Integrated Development Plans, of which IWMPs formed a part.

The Chairperson understood the links but reminded the Committee that one of the weakest areas of the country was around issues of waste and sanitation, and the problem was that local government was largely to deal with these. Somehow, therefore, government had to create capacity to assist the municipalities He was mindful that the main function of the Agency was waste streams, but since there was a need for a specialist in government to properly monitor and oversee, it could be useful to use the expertise in the Agency also to help local government with IWMP. Having said that, however, he accepted that this may not be an immediate intervention, and it would be subject to the availability of finances. He said that he was not asking the Agency to take over the planning, but to raise capacity that could assist in dealing with the issues.

Ms Wenger said that waste was generated at every municipal level, and in the absence of having capacity, at that level, to deal with it, this Bill would not serve its intended purpose. She said that an  unscrupulous industrialist could well decide to set up a plant in an area where the listed functions were failing, for that industry would the probably be able to do whatever it wished, without fear of proper monitoring ad implementation around waste.

The Chairperson proposed that an amendment be drafted that would incorporate all issues raised. He thanked SALGA for its work and encouraged it again to ensure that proper monitoring structures should be put in place.  

Business Unity South Africa (BUSA) submission
Dr Laurainne Lotter, Adviser, BUSA discussed the three main areas just presented by the DEA and said that BUSA had thought that the definition of waste presented significant challenges to the implementation of the Bill. It had felt that the need for establishing an Agency was not clearly articulated, and had been opposed to the provisions, but now, having heard DEA, BUSA would be able to give qualified support to the Agency.

BUSA wanted the Committee to consider an additional definition change Since the Bill required that waste be classified, a classification process was then applied to determine whether waste was hazardous or not. However, there seemed to be difficulty in reaching a consensus, as competent authorities said that if it was a non-hazardous waste it must be treated as general waste. BUSA believed that this issue could be clarified by an amendment to the definition of “general waste”. BUSA proposed that the definition of “general waste” thus must be stated to include non-hazardous waste.

She reminded the Committee that the original version of the Bill had included “energy” in the definition for “recovery”, but BUSA believed that the retrieval of energy, or any substance, material or object from waste may not necessarily produce a product. Therefore BUSA proposed that “recovery” be defined as “ the controlled extraction or retrieval of energy, or any substance, material or object from waste”.

The Chairperson interjected to ask why “energy” could not fall under any substance, material or object. 
 
Dr Lotter reiterated that energy could not be categorised as such. Based on the experience on the implementation of this Act in the past, any definitions must be precise and clearly stated. Either energy was stated to be included or not, and this could not be inferred.

She went on to state that in the definition of waste, the use of the terms “stores” and “stockpiles” could result in an interpretation that a material that was never waste would become waste. She proposed that any reference to stores and stockpiles be removed. In addition, the intention of “is required to discard” was not clear. The inclusion of intent to dispose may be more appropriate here, and ”treatment” was not necessarily always linked to disposal  
  
The Chairperson asked for clarification why she was asking for this phrase to be removed. In his opinion, waste would have to be stored anyway.

Dr Lotter insisted that it was acceptable if the material was waste, but this was not necessarily the case if it was any material stored or stockpiled with the intention to discard. Materials would not become waste by being stored, and the intention was surely that it apply to waste that was stored.

There was a fairly heated argument between the Chairperson and Dr Lotter to try to reach consensus.

Dr Lotter finally asked that the Committee should kindly look at the language again, to ensure that some terms did not cause confusion, or present another meaning altogether, as this would clearly be problematic for implementation. She said she understood the stance of the DEA, to define clearly what waste was, but not what it was not. However, BUSA would still like clarification that by-product was not waste.

The Chairperson vehemently disagreed that the definition of by-product may not be retained. If waste was explicitly defined, then by-product would not be necessary. He and Dr Lotter debated this point further without reaching consensus.

Dr Lotter then proceeded to comment on the Provincial Industry Waste Management Plans, and said that BUSA had difficulty with the provision that allowed the MEC to require an industry plan in a province, regardless of whether the activity was undertaken in more than one province. Requiring firms in one province to comply with a plan that could only be applicable in that one province could cause competition issues where the same product was also made in other provinces.
 
The Chairperson replied that the Committee would try to ensure that there was no opportunity created for corruption. If a specific province had a specific waste, then it would be allowed, concurrently with the Minister, so that a waste stream plan could be embarked upon. This would be clearly spelt out in the legislation so that there was no confusion. He agreed that there would be huge problems if one plan was adhered to at the national level, then a number of new plans were introduced at the provincial level in a number of different provinces.

Dr Lotter added that BUSA had been confused as to what the exact functions of the WMA would be. The original version of the bill talked about the application of levies, fees and monies allocated by Parliament. The proposal now presented by the DEA spoke to the monetary implementation of industry waste plans and the impact of incentives provided. Incentives were totally different from a levy, and the Act did not deal with incentives in this context. These issues were contradictory to the objectives of the Agency as BUSA saw it.

The Chairperson agreed that the issue raised would be considered. He said that initially there were issues with the levy, where one citizen raised levies against another citizen, which was contrary to the Constitution, and thus not ideal. Another practical problem was that the Constitution stated that if a levy was raised, the legislation would be classified as a money bill, which could only be proposed by National Treasury. DEA must work on different wording that would not pose a constitutional problem.

Dr Lotter said that the understanding of the BUSA was that the Agency’s powers would assist it to operate after the Minister had made a decision that an IWMP was required, as set out in sections 28 and 30 of the Act. However, the amendment as drafted currently did not refer to this. The establishment of the Agency was the key objective of the Department, but it could not be supported in current form. Its objects and functions needed to be reviewed to ensure alignment with the Act and to make maximum use of existing entities. References to IWMPs must also be in line with the Act. For instance, the Agency would only play a role once section 28 of the Bill had been complied with.

Dr Lotter further pointed out that section 34B spoke of management and disbursement of funds from levies, but section 34C talked about fees, and asked what fees were referred to. She added that section 34B and 34C were not aligned. Section 34D referred to income from performance of duties and exercise of powers, but enquired what the powers were, and the relationship with the income and fees referred to in section 34C.

The Chairperson responded that the point was noted.

Ms Lotter said BUSA appreciated the removal of references to the Board of the Agency. It understood the need for a separate entity to deal with the issue of the waste streams. It recognised the attempts to manage levies in a better way, but cautioned that the provisions on the Agency must be aligned with the Act, and there should be provision for consultation with those potential affected on the business plan, which must also be a pre-requisite for operation.  

In summary, BUSA welcomed the attempt by Government to address the challenges presented by the current definitions and was committed to working with the Department and the Committee to provide more detailed input on proposals for further amendment, if this would be helpful.
 
Discussion
The Chairperson said to DEA that the definition of “waste” was not clear. It was currently defined as “any substance, material or object…, and that could mean everything or anything that existed. The use of words “which the holder of waste or generator thereof” meant that currently waste was not defined in relation to the substance, but by how it was kept. It was necessary to firstly define “waste” properly before moving on to anything relating to discards. He suggested that DEA must go back to the drawing board to produce a more acceptable definition of waste. Since there was not time, at this meeting, to address all the issues in relation to the Agency, he suggested that Mr Gordon and Dr Lotter arrange to meet urgently to clarify the points. He said that DEA would have to carefully go through all the technical issues to see whether there were deviations or incongruence from the original functions

Transnet submission
Ms Christelle van der Merwe, General Manager: Legal, Risk, Quality and Sustainability, Transnet Capital Projects, noted that Transnet’s main concern was to remove ambiguity from the definition of “waste”.  

Transnet also thought that another challenge was whether the exclusions as set out in clauses 1(h) and (d)(i) and (ii) would apply to only to matters defined in that clause. The clause currently referred to waste generated by the mining, medical or other sector, but it was noted that a by-product was not considered waste, and a portion of waste, once re-used, recycled or recovered, would cease to be regarded as waste.  She heard the earlier comments, and said that if “by-product” was removed, then section 1(d)(i) would already be deleted from the definition. She was unclear whether paragraph (ii) was still part of the definition.

The Chairperson said that the (ii) was still retained.

Ms van der Merwe said the way the legislation was currently written implied that the definition only related to (d), and not the holistic definition. Transnet therefore proposed that the clause be re-written, and that the exclusions apply to the holistic definition of waste. She recommended that the following wording be considered:
”(d) that is defined as a waste by the Minister by notice in the Gazette; and (e) Includes waste generated by the mining, medical or other sector.”
           
The Chairperson suggested that Mr Gordon should meet with Transnet to discuss the intricacies around the definition of waste. He appreciated the time and effort put into this submission.

Council for Scientific and Industrial Research (CSIR) submission
Dr Suzan Oelofse, Research Group Leader: Waste for Development, CSIR, commenced her presentation with the results of research carried out. The data analysed showed that legislation was regarded as one of the biggest constraints to growth in the waste sector. The main concerns with the legislation related to the interpretation and there was confusion on the part of the stakeholders in the implementation and compliance to the law.

CSIR wanted to comment on four issues in the Bill, which were:
- the definition of by-product
- the definition of waste
- the establishment of the Waste Management Agency
- the amendment to section 4.

She said that CSIR would not have a problem if the definition of by-product was deleted. The definition of “waste” must be simple and easy for people to understand. The issue of definition had always been intense, and her own research showed that even Europe was still battling with definitions around waste. Her proposition was that as long as there was a market for a material, it should not be categorised as waste. The inclusion of recyclable materials in the definition of waste would limit the growth in the industry, because people would have to comply with all the waste regulations.

The Chairperson interrupted by stating that the growth of the industry was important but it should not be allowed to supercede the protection of society. If the definition of waste was left for the industrialists to interpret, they would take advantage of it.

Dr Oelofse said that the National Waste Management Strategy targeted the waste sector for growth in terms of job creation.

The Chairperson replied that he was not opposing the growth of the industry, but it must never be traded for the safety of the society. The definition would have to be worked up, so that the core was clear, whilst some other issues would be left to the Minister’s prerogative. He proposed that CSIR should submit its proposed definition on waste for the Committee to consider.

Dr Oelofse appreciated the confidence that the Chairperson had displayed in the CSIR. She read out suggestions that were incorporated into her presentation, as follows:

” waste means any substance, whether or not that substance can be reduced, re-used, recycled or recovered. She suggested that:
-subsection (a) be deleted, that had referred to surplus, unwanted, rejected or abandoned or discarded substances.
- (b) would be amended by adding the phrase “and for  which no current market exists”. The clause would continue with
(c) would read” that must be treated or disposed of”
(d) would read “and includes waste generated by the mining, medical or other sector, but—
A by product is not considered waste; or
any portion of waste, once re-used, or recovered, ceases to be waste"

She noted that paragraph (ii) presently posed a problem. As an example, the plastics industry extracted plastics for recycling purposes and treated the plastics, cleaned it up and then passed it on to the recycling company. In that whole process, the plastics did not change. It was therefore confusing to determine at what point the waste was no longer a waste. It was suggested that if “recycled” was deleted this may help the issue.

Dr Oelofse said that there was a perception that there was not sufficient consultation around the Waste Management Agency before its establishment was set out in the Bill. There were a lot of grey areas and uncertainty as to the purpose, functions, the powers of the Agency would be.

The Chairperson volunteered to explain again the purpose of the Waste Management Agency. Government created many agencies to fill government functions, who were headed by boards of directors, who must make decisions on the Agency. The problem was that these individuals were not accountable to anyone and there was a risk that they might have ulterior motives and pose problems for the Agency. Therefore, an implementation agency was created in the Department that would bring in expertise or specialised capacity into the waste sector, that would regulate the funding account through the Auditor General, and that would have the capacity to form vehicles for the different streams and for monitoring purposes. This Agency would differ from others because there was no board of directors.

Dr Oelofse suggested maybe if the Agency was categorised under another name, it may change the perceptions about it.

The Chairperson replied that the re-naming of the Agency would not matter, but its functionality and the wording around its purpose that must be reconsidered.

Lastly, Dr Oelofse proposed that if the section 4(d) was deleted, this would lead to the need for disposal of animal carcasses to be regulated under the Waste Management Act, and this in turn would require supporting regulations or standards, since animal carcasses were currently regulated under the Animal Health Act. There might be some conflict if they were regulated under the Waste legislation.

The Chairperson suggested that CSIR should also meet with Mr Gordon to sort out the technicalities around the definition of waste and the animal carcasses.

Association of Cementitious Material Producers (ACMP)
Dr Dhiraj Rama, Executive Director, ACMP appreciated some of the amendments made, especially on the revised definitions just outlined. The key concern of ACMP, however, related to providing certainty to the industry with regard to implementation.

He noted that the definition of “waste” referred to “stockpiles”, “treated or disposed of” and “once reused, recycled or recovered, ceases to be waste”. ACMP had a problem with the reference to “stockpiles” because the storage of waste was a listed activity and inclusion of stockpiles may cause confusion and render some non- waste materials being classified as waste. He cited an example of the overburden or screenings material which was often sought after as low-grade aggregate for road construction and fill. These materials were only subject to excavation, and at most mechanical processing, and therefore posed minimal risk to the environment. This approach undermined the principles of NEMA, in that the ability to optimally exploit non-renewable resources was compromised through the legislative sterilisation of minerals unless authorised by a waste permit.

He amplified that "treatment" meant any method, technique or process that was designed to
(a) change the physical, biological or chemical character or composition of a waste; or
(b) remove, separate, concentrate or recover a hazardous or toxic component of a waste; or
(c) destroy or reduce the toxicity of a waste.

The waste definition currently said that “any portion of waste, once re-used, recycled and recovered, ceases to be waste”. For materials to be re-used and/or recycled they needed to be “recovered”, so such materials would already cease to be waste before being re-used or recycled. ACMP had understood that any waste material destined to cement kilns would not require a waste permit if the material complied with “controlled extraction”.

The Chairperson interrupted him and asked that ACMP not dwell on the current definition, since it had already been decided that a revised definition would be made available soon. However, the argument about the stockpiles was not the issue. It was waste that was being defined, not the rules or regulations for stockpile and stocks. The question therefore was whether waste should be defined by the way it was stored or by the substance itself.

Dr Rama nodded in agreement, and added that maybe a simple definition of waste as meaning any
substance or object which the holder discards or intends or is required to discard may be considered. 

The Chairperson agreed that the definition he gave was the most obvious one, but there were bigger issues with waste. There would be huge problems if something being discarded was not regulated, to say also what must be done with waste that was not discarded.

Dr Rama said the issue of by-product must be sorted out. He believed that if waste was properly defined, “by-product” may be deleted. Additionally, if some of the by-product definition was inserted into the waste definition, it may bring some clarification. For example, some people viewed EIAs as a waste, while others said it was not.

The Chairperson asked Dr Rama to clarify the issue of hazardous or non-hazardous waste.

Dr Rama replied that waste would be categorised either as general waste or hazardous waste, but these must be managed and discarded differently.

He said that furthermore, the definition of recovery and reuse must also be revisited. “Recovery” was presently the controlled extraction or retrieval of energy, any substance, material or object from waste to produce a product. This raised the question of what “controlled” meant – would this cover taking something with a spade, or whether only air quality abatement equipment would be considered. The revised definition was silent about the status of a recovered substance which was not a “waste”, and did not specify whether the recovered substance was material, or a final product. He reiterated the need for clarity on when recovered material ceased to be a waste.

He went on to point out that 're-use' meant to utilise articles from the waste stream for a similar or different purpose without changing the form or properties of the articles. ACMP suggested that this had been covered by the definition of “recovered”. The difference between recovered material and reused or recycled material must be clarified in the context of the waste definition.

Dr Rama then moved on to implementation issues. There was a general perception that ground granulated blast-furnace slag was waste, but he said that it was not, and never had been waste even in terms of the old definition. Fly ash was also an intermediate product from the site of the electric producer and was used to produce green cement. The Silica Fume was also very marketable.

The Chairperson interjected to say that the issue was not really with the marketability of a product and this should not be included in the definition. He cited the example that there was a market around the world for drugs and gun smuggling, but that did not make it correct. The market could not be used as a criterion to decide whether a product was waste or not.

He noted that issues around the Integrated Waste Plan and the Waste Management Agency had been clarified, but alignment was crucial. He said that that the Minister could sign, but if there was no capacity in the DEA to drive these processes, industries would do whatever they wanted. That was why special capacity was being created to oversee, make things quicker and create more jobs. In his opinion, all the waste streams should have been running by now, enabling the creation of more jobs, recycling, and the oversight of the industries.

Dr Rama said that the hard work of the DEA was appreciated. However, he wanted to cite the example of Gauteng, which had guidelines for the development of Industrial Waste Management Plans for the local government, and had done capacity building for all municipalities in Gauteng. However, for many years, there was nothing done by the local authorities. He asked how the Agency would be aligned to improve on the process.

He concluded that, taken together, the work to amend the Act was commendable and the current effort to improve systems across all spheres of government was encouraging. However, ACMP wanted to proposed that:
- DEA must establish sound co-operative governance and implementation systems to ensure the different regulatory functions were aligned
- The different definitions should be tested to ascertain any possible unintended consequences, particularly in the context of stockpiles and residues,
- the principal Act be amended to allow for end of waste status protocol so as to support future beneficiation and other strategies for those stockpiles and residues currently defined as waste.

The Chairperson concluded that Mr Gordon should also meet with Dr Rama with regard to the definitions. The right wording must be introduced by the DEA. The conclusion of the Bill now depended squarely on DEA’s efforts.

The meeting was adjourned.
 

Share this page: