The Committee discussed incinerators and whether they should be banned or not. NGOs also made inputs on the dangers of incinerators and the Committee was provided with information supporting their banning. The Department on the other hand was concerned about the banning of incinerators as the impact on the economy would be huge. Placing a moratorium on new incinerators for a fixed period was also discussed. A middle ground was somewhat found in that it was agreed that they would be strictly regulated if they were allowed where no other options for recycling were possible.
WESSA commended the Integrated Coastal Management Bill for being progressive and very comprehensive. A few minor amendments to the Bill were suggested but overall they were satisfied. The Committee sought clarity on a few points concerning the establishment of the National Management Committee and whether it would actually manage to function. A lot of emphasis was placed on the amount of harm up-market developments caused to the environment plus they excluded public access to coastlines.
Lexshell and Transnet both highlighted how the Bill would aversely affect their contractual obligations to each other. Lexshell owned the Victoria and Alfred Waterfront development in Cape Town. They had bought it from Transnet with the contractual obligation that Transnet complete the reclamation of land from the sea for the remaining anticipated development of the V&A Waterfront. There was no provision made in clause 11(2) for existing contractual obligations. The problem was that Lexshell would not be able to acquire the reclaimed land. They requested that an exception be made in order for that agreement to be fulfilled. The Committee felt that since there were legal implications, more time should be set aside for the law advisors to clarify this issue and report back to the Committee.
Waste Bill: discussion on incineration
The delegation form the Department of Environmental Affairs and Tourism (DEAT) comprised: Ms Joanne Yawitch: Deputy Director General, Mr Obed Baloyi: Director Waste Policy and Information Management, Ms Linda Garlipp: Acting Chief Director, Ms Jenny Hall: Legal Drafter and Ms Nolwazi Cobbinah: Chief Director Waste. Mr Herman Smuts represented the State Law Advisers.
The Chair suggested that the Committee engage in a general discussion on incineration before commencing with the deliberations on the Bill.
Mr G Morgan (DA) referred to current permits for incinerators and asked whether air quality was measured. If indeed it was measured, he asked whether it was only dust or also dioxins that were measured.
Ms Yawitch replied that emittors need an air quality permit. She said that emission standards were being set. The current legislation was outdated and emission standards were problematic. A consultative process with industry was taking place in order to have more acceptable emission limits.
Ms J Chalmers (ANC) asked if cement kilns had stringent requirements as incinerators did.
The Chair noted that certain non-government organisations (NGOs) had called for the banning of incinerators. He stated that NGOs would also be given the opportunity to address the Committee.
Ms Yawitch gave the Committee a breakdown on the number of incinerators. The figures were broken down in terms of provincial, private and commercial etc. She added that industrial incinerators serviced both the mining and steel industry. The information on incinerators in the mining industry however sat with the Department of Minerals and Energy.
Mr D Maluleke (ANC) referred to the banning of incinerators and asked what was being suggested in its place.
Mr A Mokoena (ANC) suggested that perhaps a 5-10 year moratorium be imposed over the building of new incinerators. It would send a signal that no further pollution by incinerators would be tolerated.
Ms Yawitch responded that the issue of a moratorium would have to be discussed with the Minister. The implications for industry would be great. The issue should perhaps be about permitting incinerators but regulating them more strictly. She said that a moratorium would affect the economy greatly. Economic growth would be affected by a moratorium. For example the construction industry which was booming required new incinerators to be built.
Mr Zita said that the issue was about regulating incinerators.
In reply to Mr Morgan asking if the waste inputs going into incinerators could also be regulated, Ms Yawitch said that inputs could be regulated.
Ms Chalmers asked if the Department had the capacity to police or oversee whether regulations were fulfilling what they were intended to. Could the Department give guarantees on whether the regulations would fulfil what they were supposed to do?
Ms Yawitch replied that the DEAT had capacity. In 2007 it had closed down two non-compliant incinerators and a criminal case launched by DEAT was ongoing. Action had also been taken against companies who had not fulfilled requirements. She explained that the Department had taken a strategic approach to enforcement. It was currently doing inspections in the steel industry and in the future would be doing the same in the cement and pulp industry.
Mr Mokoena said that Parliament had passed legislation to give more teeth to the Green Scorpions. The Green Scorpions would thus be required to do the groundwork of enforcement. He felt that a moratorium would not be frustrating economic development. The moratorium would allow for a time period within which to get things in order. Hence there would be sustainable development.
Ms Yawitch pointed out that Gauteng had stricter permits for incinerators. Many non-compliant incinerators had been closed down and bigger, cleaner ones had been built.
Mr Bobby Peek, Director of the NGO Groundwork, said that he had a list of countries and states that had banned the use of incinerators. He added that data on the risk of incinerators was also available. Mr Peek felt that some of the Department’s statements were incorrect. He explained that incinerators or flares as they were known should only be used in emergencies. The fact of the matter was that flares were burning all the time. It meant that places were not functioning properly. Mr Peek said that the Department needed to intervene and measure flaring. The US Environmental Protection Agency (EPA) had noted that incinerators had the highest emissions of sulphur dioxide. It was also felt that the permit requirements for cement kilns were not correct. He said that he was still waiting on the Department to furnish him with information on the requirements. Alternatives to incinerators did exist. The UN was considering a variety of options that were non-burn. Mr Peek did however commend the work that the DEAT had done on incinerators in Gauteng. Incinerators were functioning beyond capacity as waste had been brought in from other provinces. He stressed that a moratorium on the building of new incinerators would not hijack economic development. It would provide for a breather period within which to sort out things. Alternatives to incinerators were well documented as was shown by examples in Cairo, India and the Philippines. Mr Peek said that he would welcome the opportunity to be able to bring speakers to address the Committee on alternatives to incinerators.
Ms Yawitch said that any generated waste had a negative effect and landfills were not the best option either. Landfills often affected the soil, water levels etc. Besides landfill capacity was fast running out. The bottom line was that SA was a country in need of economic growth and development. DEAT was thus trying to manage the negative effects of dealing with waste. Ms Yawitch noted that there were ethical, social and developmental dilemmas. It was difficult to outlaw something without knowing the effects of the action. The consequences of legislating a moratorium needed to be considered.
Mr Mokoena said that the moratorium would allow the Department to sort through those that comply and those who did not. If there were no moratorium, the gates would be open for new incinerators to be built. The moratorium clause was needed.
Mr Morgan referred to the documents handed out by Groundwork and said that the ban on incinerators was not necessarily nationwide, neither was it on all types of incinerators. Bans often covered only certain areas.
Mr Peek agreed that landfill sites were a mess and not the best alternative to incinerators. Incinerators on the other hand were also not the solution. The idea should be to let landfill sites operate better. This should be the area of focus. He referred to the banning of incinerators and said there were many permutations on how this had been used. Durban had in 1997 made plans to build an incinerator to deal with its municipal waste, but that plan had been stopped and Durban had to work on alternatives.
The Chair said that incinerators should only be used as a last resort where there were no other alternatives to incineration.
Mr L Greyling (ID) said that both land-filling and incineration were not the best options. Alternatives needed to be considered and incentives created. The issue of incineration was about compliance and enforcement. Another issue was what was going to be done if cement kilns operated above acceptable levels. Were shutdowns the next logical step?
Ms Chalmers referred to a waste management site that she had visited in Canberra Australia and said that companies hardly ever needed to be taken to court there . The government preferred to consult with companies. Penalties for non-compliance were huge but incentives were rather used in order to get companies to comply. She asked whether incentives in SA were good enough and whether penalties were severe enough.
Ms Marie-Lou Roux (Habitat Council) stated that the separation of waste at the source should take place. She referred to recycling where toxic components should be separately stored. The same principle applied to health care waste. In actual fact very little waste needed to be incinerated. Incinerators in any event used huge amounts of energy. Ms Roux explained that when incinerators cooled off harmful dioxins were released. SA lacked the capacity to test for dioxins. Samples needed to be sent to Germany in order for them to be tested. She emphasized the need for things to be done differently.
Mr Peek stated that power outages would be ever increasing over the next eight years. When power outages took place, flares shoot out black soot. Incinerators should be stable. Consequently when power outages occur emissions were huge. As far as medical waste was concerned there was a movement towards using alternatives other than mercury in medical products.
Mr Musa Chamame from Groundwork said that if incinerators were accepted, what was the point of the Polokwane Declaration. He suggested that recycling be the way forward as far as waste management was concerned. It could create jobs and solve the current problems at landfills.
The Chair asked if incinerators could be regulated.
Mr Peek replied that he had asked the Minister to regulate at present how much waste SA had. Once this was done regulation could follow. In the last decade no studies had been done and requests for it to be done had not been forthcoming. He said that it could be dangerous to regulate incineration without having all the information at hand. Mr Peek said that 40% of Sweden’s incinerated waste did not have to be incinerated. A winning formula for recycling was currently working in Cairo, Egypt.
Ms Yawitch reminded all that a Bill was on the table to deal with the issue of waste. The hierarchy was in the legislation. She agreed that if things could be disposed of by means other than burning all the better. She noted that a policy was needed at national level on cement kilns and what was to be burnt in them. She proposed that a demonstration of need should be included in the licensing provisions of incineration. She conceded that SA was sitting with a dysfunctional waste management system. There was need for regulation and hence the urgency for legislation.
Ms Yawitch agreed that a ban on incinerators would not be widespread but would be area specific. Power outages did cause problems but incinerators should start generating their own power. Co-generation was an option to be considered. She supported the idea that incinerators should be tightly regulated. DEAT would be doing a comprehensive inspection of cement plants in 2009. topping the incineration of medical waste at present could be problematic, as medical waste was piling up and posed health risks. Landfill capacity was also lacking and hence the need for a tighter legislative regime.
Ms Yawitch showed the Committee some examples of biodegradable products that could be used as alternatives to polystyrene. It was however more expensive. She emphasized that there was a need to find a way to make the law enabling.
Ms Roux felt that there should not be incineration of municipal solid waste. The Bill should reflect this.
Mr Morgan said that the Bill would be difficult to implement.
Ms Yawitch noted that the DEAT had considered the implementation of the Bill. She explained that the licensing provisions and the ‘musts’ in the Bill would be implemented from day one. The regulations would be implemented in a phased-in approach. Implementation of regulations was expected to take 3-5 years.
The Chair pointed out that it was necessary to look at incineration operations from source. DEAT in addition should look at existing incinerators and require them to be retrofitted in order for them to become compliant. New incinerators should meet the technological platform that was now required. The major point was that incinerators should only be used as a last resort. Clarity on geographical prescription was needed. He felt that the Bill would be acceptable to the Committee if the aforementioned issues could be included in the Bill.
Ms Yawitch agreed that the Bill would reflect what the Chair had said.
Mr Peek felt that a moratorium would kick off the process in the right direction.
Mr Maluleke asked for how long should the moratorium be in place.
Mr Mokoena said that five years would be long enough.
Mr Zita asked what applications for incinerators were currently pending.
Ms Yawitch replied that in Gauteng there were two applications for medical waste. In the steel/ferro-alloy industry there had been pre-application discussions. The cement/brick industry had made many applications. Mittal Steel was in the process of a cleanup and applications were expected. Highveld Steel had also made an application. However, she did not have too much detail at hand.
Mr Morgan said that if a moratorium on the building of new incinerators was to be considered, an economic impact study should first be completed and a report on the findings of the study should be sent to the Committee.
The Chair said that if incinerators were to be used, they should only to be used as a last resort. The facts were that not all waste was recyclable. He was aware of the environmental and health concerns attached to using incinerators. Incinerators would not be promoted but rather tolerated. The industry would be strictly regulated and would be held accountable. The Chair felt that perhaps the incineration industry should have a fund to compensate persons who have suffered as a result of the emissions produced by incinerators.
Mr Morgan stated that as incinerators were to be tolerated, definitions in the Bill needed to be changed. NGOs had made a good point about the health risks of incinerators. There should be incentives to induce best practices.
Ms M Ntuli (ANC) agreed that incinerators should be used as a last resort.
Mr Zita said that a balance needed to be found between the benefits of incinerators to the development of the economy and the risks attached to using them. He suggested that perhaps those applications that were already in the system should be allowed to continue. Real alternatives to incineration need to be brought to the table. The Chair was not convinced that there was no need for incinerators at all. He was of the view that regulations needed strengthening and the process should be allowed to unfold.
Mr Maluleke agreed with the Chair.
Mr Mokoena said that a moratorium did not mean that the Bill would not go ahead. The Bill would go ahead as usual. The moratorium would only prevent the building of new incinerators for a period of five years.
Mr Peek reiterated that incinerators emit dangerous dioxins. The situation was critical hence the worldwide resistance to incinerators.
Ms Yawitch said that incinerators would only be used where there were no other alternatives. The conditions attached to using incinerators would be much stricter. She was concerned that a moratorium would lead to a situation where the Department would be flooded with applications before the moratorium provision in the Bill took effect. She reiterated that the banning of industrial incinerators would have a huge impact upon the economy. Tightening up on the regulations on incinerators was the best option. She felt that a moratorium would cause problems down the line. Incinerators should be allowed only as a last resort.
The Chair said that the dominant view seemed to be the tightening up on incinerator regulations. He noted however that the debate would be ongoing. He summarized the issues as follows: separation of inputs at source; retrofitting of old incinerators; licences to new entries with new technology; regulation of incinerators to be tighter; incinerators not to be situated near populated areas and lastly the starting of a compensation fund paid for by the polluters. The Chair noted that not much had been said about salvaging.
Ms Yawitch said that licences would set out the minimum requirements. Salvaging was prohibited in the Bill. Certain municipalities allowed salvaging in order to create jobs. The issue was whether salvaging should be included in the licensing provisions or whether it should have its own provisions and whether to make allowances for it to be allowed.
The Chair noted that the fact was that salvaging was taking place. It should however be done in an acceptable manner.
In answer to Mr Greyling suggesting that provision for landfill recovery sites should be made in the licensing provisions, Ms Yawitch said that this was possible.
The Committee was unable to deal with the proposed amendments to the Bill due to time constraints.
Integrated Coastal Management Bill: public hearings
Wildlife and Environmental Society of South Africa (WESSA) submission
Mr Andy Gubb said that WESSA supported integration. The three pillars of sustainable development (social, environmental and economic) were addressed. He congratulated the Department for a well drafted Bill. However certain areas had been neglected or overlooked. He was doubtful if the Bill would be able tackle problems in its present form. The legislation should articulate that the Minister was competent when dealing with coastal mining.
The alterations that he suggested were of a minor nature:
Clause 13 did not deal with citizens being allowed access to private property that has been fenced off which are adjacent to coastal public property.
Clause 15 dealt with erosion and accretion and WESSA hoped that the clause would help to deter building close or along the seashore.
In Clause 18, the Bill presupposes that the municipalities own coastal land but in actual fact they do not. The Bill should where necessary appropriate land and cede land for the sole purpose of it becoming coastal public property. The reason for this was that many individuals are dependant on the land for subsistence and survival.
In Clause 25 WESSA felt that coastal set-back lines should be dealt with separately form coastal protection zones.
In Clause 26 WESSA was of the view that “may“ should be taken out and replaced with “must”.
In Clause 33(3) stringent rehabilitation plans should be in place regarding estuaries.
In Clause 35, dealing with the establishment of a National Coastal Committee, WESSA was of the view that the Minister “must” rather than “may” give notice to establish a National Coastal Committee. In addition WESSA strongly suggested that the notion of a committee be replaced with that of a Council.
WESSA was pleased that throughout the Bill there was emphasis on public participation such as Clause 53. However a large section of the population was excluded from the process as there was no provision for oral participation which weakened it to a perfunctory role.
Clause 58 was ambiguous in its entirety. WESSA suggested that (v) be changed to say “any person producing and discharging…..”
Mr Gubb commended the Bill on behalf of WESSA as it was comprehensive and detailed. It represents strong commitment and should be regarded as an urgent priority.
Mr A Mokoena (ANC) asked for clarity on whether WESSA was for or against a National Management Committee. He stated that since the Bill was a product of the Department it should be called a Council not a Committee so that it had teeth.
Mr Gubb replied that WESSA was in favour of such a structure, however the use of the word “may” meant a greater possibility of the structure not getting off the ground as it might be perceived to be an optional entity as opposed to being a necessary one. Committee was preferred over Council since it sounded as though it carried more responsibility.
The Chair was concerned about what Mr Gubb meant when he insisted that there should be no mining in sensitive coastal areas. He indicated that on their trip to the Amazon they had seen oil mining in the forest which was a protected area.
Mr Gubb agreed that there was a need for mining and when necessary, it ought to take place. However coastal mining was a unique issue which caused a lot of damage to the environment.
Mr G Morgan (DA) asked what challenges coastal zones faced.
Ms J Chalmers (ANC) inquired about mining on the Wild Coast.
The Chair wanted to know what percentage of South African shoreline could be described as public property. Secondly he asked who actually regulated or was in charge of the river mouths in the former homelands.
The response to these questions was that coastal developments were very up market and did not take into consideration the local communities. Many municipalities thought in the short term and sold beautiful land to satisfy their coffers in the short term but the results were timeless. The result was that communities were denied access while the land was being used as a golf estate or something of that nature.
The mining dunes of the Wild Coast could not be restored, which was a situation that was not in the best interest of the communities in those areas.
Adv Radia Razack, Legal Services: Marine and Coastal Management (MCM), DEAT, responded to the Chair’s question by stating that 100% of the shore was public property, what the Bill proposed was that it be governed differently.
Mr D Maluleke (ANC) enquired about the lot of previously disadvantaged communities and how they were affected by the Bill.
The Chair added to this question, saying that 90% of the beautiful spots in the country were owed by white people. He wanted to find out how everyone could also enjoy these locations as opposed to a small elite group. He asked whether the presenters dislike for up market development was environmentally motivated or ethically based. He asked what the result would be for certain areas which relied on this up-market development in order to survive. Finally he asked how prevalent the culture of private beaches was in South Africa.
In Mr Gubb’s view, up market developments were wasteful and catered only for a small percentage of the community. A lot of the land was already in private ownership and expropriation might be the solution.
The Chair sought clarity on whether some of the land should be exclusively set aside specifically for previously disadvantaged people groups in order to bring about an integrated coastline.
Mr Gubb replied that the main problem with up-market developments was that they drove up the market price of agricultural land and were generally a hazard to the environment. In addition to this the occupancy of the land was pegged at 11% and usually the property was used as a second or third home. The previous homeland coastlines could be developed but it has to be done sensitively.
Adv Jeremy Gauntlett SC gave a brief outline of Lexshell’s contractual history with Transnet and how the Bill would affect that relationship. Lexshell owned and operated the Victoria and Alfred Waterfront development in Cape Town. They had bought it from Transnet with the contractual obligation that Transnet complete the reclamation of land from the sea for the remaining anticipated development of the V&A Waterfront. They were of the view that there was no provision made in clause 11(2) for existing contractual obligations. The problem was that Lexshell would not be able to acquire the reclaimed land. The company would like the already acquired rights to remain intact and to draw a line that whatever was agreed to remained intact.
It was submitted that the Waterfront employed over 800 people, 26 million people visited it each year with over R2.5 billion being generated. He stated that Lexshell was a 75% foreign investor / 25% South African Black Economic Empowerment company.
There was no proposed exception in the Bill equivalent to s13(b) of the Sea Shore Act or one that takes into account a contractual obligation of an accrued and vested right. In his view an exception was very necessary. If the Bill was passed into law with no amendment, it would amount to an unconstitutional deprivation of property and unlawful expropriation according to s25(1) and (2) of the Constitution.
Advocate Radia Razack, Legal Services (MCM) said that she was stunned with the drastic request for a special exemption for Lexshell in a law of general application. Her other concern was that if the Waterfront’s request was granted would it not open up a floodgate of similar requests. Finally she stated that Transnet did not have the authority to grant an Environmental Impact Assessment (EIA).
Ms Chalmers (ANC) asked if the land in question was state land that was sold to a private developer.
Mr Greyling (ID) asked if there were any other areas that Transnet owned that might cause a similar problem elsewhere in South Africa.
Mr Morgan (DA) wanted a definition of reclaimed land and as an aside said that he had no idea what an EIA had to do with anything.
Adv Gauntlett replied that Lexshell was coming in with a narrow mandate, to ensure that their contractual rights were not submerged or erased by the Bill if it actually did become legislation. He went on to state that it was a rare request but such had been tolerated in the instance of the OR Tambo Airport. He highlighted the fact that the issue in question was a contractual one which concerned the state acting through it entity Transnet. The Waterfront used to be an old smelly port and it was a policy decision to develop the area. He stated that he would not speak on behalf of other areas or other parties that might be affected but their main concern was what was agreed upon in the contract, and the reclamation of the land near or adjacent to the Waterfront.
There were three main propositions to consider: the state had lawfully given (sold) the land and wanted legislation to undo that action. If the action were undone, what would the consequences be? Finally the narrowness of what had been requested in terms of transitional arrangements.
Mr Mokoena (ANC) asked if public interest and good could override the decisions made.
Mr Maluleke (ANC) asked how large the property in question was and whether it had been purchased and paid for in full.
The response to this was that the development right had been purchased in full.
The Chair asked if Lexshell had interacted with the Department prior to meeting with the Committee.
Lexshell responded by stating that they were not at loggerheads with the Committee but merely approached them as the Bill was being presented before them.
The Chair held that the issue had to be discussed in more detail due to the legal implication. He however stated that the laws that were made should be of general application.
Dr Petra Bouwer, Chief Specialist: Regulatory Analysis, endorsed Lexshell’s proposal. Their aim was to complete and fulfill the contractual agreement. Transnet’s submission provided two options that dealt with transitional arrangements related to the V&A Waterfront.
Mr Maluleke (ANC) asked what motivated Transnet to sell the property as opposed to opting for a long-tern lease.
Ms Chalmers suggested that there be an oversight visit.
Mr Mokoena asked what damage would be caused if there was only a law of general application that did not specifically favour Transnet of Lexshell.
The Chair stated that the Committee had to await the view of the Department on the submission.
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