Waste Management Bill [B39-2007],& Integrated Coastal Management Bill [B40-2007]: Department of Environmental Affairs Briefings

Meeting report

National Environmental Management: Waste Management Bill (B39-2007): Briefing by the Department of Environmental Affairs and Tourism (DEAT)
Ms Nolwazi Cobbinah, Chief Director: Pollution and Waste Management, DEAT, briefed the Committee on the National Management Waste Bill.. She noted that there had been a review of environmental legislation in South Africa starting in 1996, in response to the need to give effect to the environmental rights embedded in Section 24 of the Constitution. The National Environmental Management Act (NEMA) had been promulgated to act as the overarching frame work legislation dealing with environmental management. This Bill should be regarded as subsidiary to NEMA. A White Paper had been released in 2000 relating to an integrated approach to waste management. This set ground rules as to what was now spelt out in the Bill. A National Waste Management strategy and waste management action plans were formulated in line with principles of NEMA.

She stated that prior to formulation of the Bill there were certain problems that the Department had identified as needing to be addressed. These related to the institutional frame work of waste management, a poor information system on waste management, the need to minimise waste, the need for a holistic and integrated approach to waste management planning  and for mechanisms for cleaning of waste. She said that there was a need to regulate licensing of waste activities as well as hold producers of waste responsible for it. This Bill therefore sought to address all these issues in detail.

After the drafting of the Bill, various workshops were held in August 2006 by provinces and government Departments to brief people on the waste management issues contained in the draft Bill. She stated that the first draft Bill was completed in September, in consultation with the various municipalities, since waste management was a function of the municipalities. A series of workshops were conducted that involved the industry as well as non-governmental organizations (NGOs) and the second draft was completed in October 2006. It was presented to Cabinet in November, and in December 2006 it was gazetted, calling for public comments. Public participation workshops were conducted in all provinces, except in Western Cape and Gauteng, which needed additional bilateral workshops. Shareholder groupings that were consulted included the Southern African Waste Management group, industry and NGOs. She stated that the other bilateral consultations were carried out by the Department of Water and Forestry (DWAF), the DEAT, National Treasury (NT), local government and provinces. In total 69 submissions were received. 

Ms Cobbinah noted that the major challenge in South Africa was that it was generally a ‘throw away society’ and that there had not been any focused dealings with waste in the past. The Bill would attempt to deal with this very challenge to encourage everyone to be responsible for his or her waste.

She said that South Africa had waste disposal sites, and about 580 out the 1327 were not permitted sites. There was an increase within the waste generation indicators and the Department was faced with a challenge of not having proper treatment capacity to deal with this problem. Previously the definition of waste had ignored a number of very important factors and there was now no way of addressing those earlier dire environmental consequences of poor waste management. Up until now there had not been a control mechanism to track waste sites from their inception to their finalisation. South Africa was not yet on track with evolutionary global regulatory regimes and many countries had adopted a new approach towards waste management, termed a ‘waste hierarchy’. She stated that ideally this approach related to not generating waste at all. She said that there was a need to have a strong waste management vision to address the waste management issues.

Challenges by poor waste management in the past included unattended disposal sites, poorly managed hazardous waste, illegal dumping, which had depleted municipalities’ human and financial resources, and exposure of vulnerable groups (such as children) to waste sites. She submitted that the Bill in general sought to deal with all this by providing institutional arrangements for waste management, outlining roles and responsibilities of spheres of Government, providing a strategic planning framework and facilitating the way forward for waste management. This would include matters of licensing of waste management activities, provision for compliance and monitoring of waste management, and other administrative issues.

Ms Cobbinah then introduced the Committee to the structure and subject matter of the Bill.

Chapter 1 dealt with Interpretation, principles, definitions, the objects of Bill and its application, and waste issues that were not dealt with in other pieces of legislation.

Chapter 2 dealt with the national waste management strategy, which was the master plan of implementation. In particular she noted that local and provincial authorities should comply with national Environmental Standards and avoid conflicts . Provinces were to support municipalities in their quest for waste management.

Chapter 3 dealt with institutional and planning matters. The Bill dealt with the appointment of Waste Management Officers (WMOs) who would be appointed by DEAT, Provincial Departments of Environment and municipalities, for the purposes of holding every sphere of Government accountable, and waste management issues and complaints. Integrated Waste Management Plans (IWMPs) must be set and could be linked to provincial of municipality plans. WMOs would set guidelines. The IWMP must be approved by the MEC of the province. This differed from the previous position, and reflected what had been discussed in consultations.

Chapter 3 further dealt with the following issues:
i) Declaration of an area as a waste stream if its priority wastes were toxic and problematic and how to deal with these areas.
ii) Waste management in a responsible way by DEAT
ii) Waste generated, and management of such waste in a responsible way
iii) The waste hierarchy, stipulating that waste should be reused and recycled
iv).Measures taken to handle such waste activities
v) Storage, collection and transportation of waste
vi) Treatment and disposal of waste, dealings with illegal dumping (which was a huge problem to municipalities) and it was noted that the municipality would have to deal with this
vii)Industry waste management plan. The Minister may require industries to deal with their waste that was generated, or the MEC may require such management plans to be prepared by the provincial departments and be financed by the department.
ix) The need for local government to hold the responsible people accountable for contamination of the land, which was a departure from the previous position where there was no such accountability
x) Recognition of waste sites

Licensing of waste activities was a crucial part of the framework Bill. Previously the Department of Water Affairs and Forestry (DWAF) had had some responsibility for licensing, but this Bill was transferring licensing of waste activities to DEAT. Chapter 5 provided for licensing by DEAT as the licensing authority, because of hazardous waste causing greater environmental risks. She submitted that for general waste management the provinces would have licensing powers as far as their own province was concerned. The Minister and the MEC of the province could enter into an agreement to allow the provinces to grant licenses for certain hazardous waste activities.

Chapter 6 provided for waste information, made provision for a national waste information system, and how information could be provided and accessed .She said that the various consultations established a strong need for a provincial waste information system, which would be aligned with the national waste system.

Chapter 7 dealt with compliance and enforcement. She pointed out that this was different from other legislation and waste impact reports must be drafted. There were various requirements to be followed in preparing reports that must be given to the Minister of EAT.

She stated that there was a general provision in Chapter 8 that dealt with the general matters relating to regulation, such as the consultation process.

Chapter 9 dealt with the general provisions around delegation by the Minister and the MEC to their officers. This part of the Bill dealt with repealing of sections, amendments and transitional provisions in respect of other legislation.

She stated that during consultation certain issues had been raised by the provinces. These included concerns around the apparently conflicting norms and standards between three spheres of governments. Thus clause 9 had addressed these issues. The integrated waste management plan should not be limited to the environmental  waste management plans but linked to other provincial plans as well as municipality plans. The IWMP could now be approved by the MEC  (the previous draft had provided for “local government” to approve the IWMP). If the province wanted to authorize licensing there must be agreements between the province and Minister.

Discussion
The Chairperson noted that there should have been more time allocated to dealing with the Bill since it was technical in nature.
 
A Member asked Ms Cobbinah what the impact of the provincial bilateral consultations of the Western Cape and Gauteng related to.

Ms Cobbinah said that these provinces had requested that additional bilateral consultations be held and this was in response to a specific request.

He also asked for clarification of the abbreviation IWMP.

Mr L Van Rooyen (ANC, Free State) asked Ms Cobbinah where the money was going to come from to cater for the financial implications, and questioned whether this would be included in the budgets of provinces. He also asked how the funds would go to the municipalities. He also questioned whether the estimates would be sufficient to cater for all implications of the waste management strategy.

Mr van Rooyen asked Ms Cobbinah for the names of the municipalities and provinces that attended the developmental process workshops in 2000,

Mr van Rooyen requested Ms Cobbinah to give the breakdown of the 1327 waste disposal sites in the various provinces, to find out how many were in his province. He also wanted to have a list of the  850 unauthorised disposal sites.

Ms Cobbinah said that she could supply the names of municipalities that had attended the consultations and the breakdown of the disposal sites.

Mr van Rooyen asked Ms Cobbinah about the implications for support of municipal waste management strategy. He noted that support usually had financial implications.

Mr van Rooyen also asked about the wording used in respect of the Integrated Waste Management Plan (IMWP ) which said: “it may be implemented in provincial plans”. He suggested that the word “must” should be used to give a peremptory meaning. If “may” was used then the province could make an option to do or not to do something.

Ms Cobbinah responded that the use of  ‘may’ and ‘must ‘in the waste management strategy was important in that the department was trying to deal with the activities that were worded as peremptory by the end of the financial year. She said that the reason why some of the requests that were to be performed had to be connoted as” may” by the Bill was to avoid being too prescriptive to  provinces and municipalities and to avoid trying to interfere with parliamentary affairs. She stated that there were limits on what the Department could compel the provinces and municipalities to do, and caution had to be taken not to interfere with the constitutional mandates of various spheres of government.

Mr Abader added that because of financial implications the aims of the Bill had to be dealt with in an integrated way. During the consultation process these issues had been addressed and it was agreed that “may” be used where it was to make sure that the Department was not too prescriptive and that it did not impose financial implications on the provinces and municipalities.

Mr van Rooyen questioned Ms Cobbinah as to the rationale of the time frame and why the Minister must within two years form the waste management strategy. He asked why this should not be less than six months, or more than five years.

Ms Cobbinah stated that the two years for drafting the national management strategy was considered to be sufficient time to build on what had been done, and that the strategy would essentially form the backbone of the Bill. The Department made provision for such a time frame and considered that any further delays would create difficulties in implementing the bill.

Mr van Rooyen was concerned about the use of “may” and “must” throughout the Bill. He further commented that the presentation on the content of the Bill had been weak. 

Mr A Watson (DA, Mpumulanga) requested that in future the pages of presentations be numbered. He noted that after the first redraft there had been a lot of interactions until presentation of the Bill to local government in March 2007. He wanted to know when the Bill had been drafted and when it had been presented to Parliament and the Portfolio Committee. His main concern was what happened between October 2006 and March 2007. He would also like to have seen the A version of the Bill.

Mr Watson also asked Ms Cobbinah on whether the unauthorised waste sites were included in the 1327 waste sites in the country, or were in addition to the total.

Mr Watson asked on terminology used on page 20 in relation to the IWMP. He wondered if this would be linked to Integrated Development Plans (IDPs). He noted that the Environmental Management Plan (EMP) mentioned on page 28 had no linkage to the IWMP.

The Chairperson commented that it had been a useful briefing, but said that nothing had been said about the changes to the Bill. The aims and objectives of the Bill were clearly mapped out but the provinces wanted to know what the amendments had been, and all the facts, since the Bill was stated “as amended”. He questioned Ms Cobbinah about the format, and noted that explanatory notes to the Bill were not favourable; he would like to see exactly what was done.

Mr van Rooyen responded that this had been the Bill passed in the National Assembly, but that there had been amendments to the original drafts submitted to parliament.

Ms Cobbinah stated that this Bill, as now presented to the NCOP, was the Bill as passed by the National Assembly (NA), which had made some amendments to the original version. This was the reason why it was called the B version of the Bill. The NCOP must now work from that version, although it could compare this to the A version.

Mr van Rooyen reiterated that he would like to see the A version. The Bill was long and technical, and he would like to see what amendments had been made by the NA. The time allocated to this was insufficient, but this was not the fault of the Department.

Mr R Tau (ANC, Northern Cape) agreed, and said that it would be necessary to compare the wording of the A and B versions of the Bill.

The Chairperson said that the Department should have known that it was necessary to bring the relevant documentation for the briefing.

Members discussed further whether or not the meeting should proceed. Mr Watson made the point that it was not necessary to go into every amendment. He though that it would be impossible to do justice to the Bill within 2 days as it was a complex one with 84 clauses. Mr Tau noted that the NA should have provided both the A and B versions to this Committee. The Chairperson noted these points.

Ms M Oliphant (ANC, Kwazulu Natal) asked if the Department could accompany delegates to their respective provinces to assist them with the briefing. She suggested that the meeting proceed in the meantime.

Mr Watson agreed that the meeting should proceed. However, he stated that in view of the length and nature of the Bill the briefings that the delegates would have to give would be difficult.

Ms H Matlanyane, (ANC, Limpopo) noted that this Committee should not feel obliged to finalise the Bill immediately. She agreed that the departmental officials should come to the provinces for the briefings. She however felt also that the A version had to be made available.

Ms Matlanyane asked about the roles of the State and Minister in reviewing the waste management strategy. Both provinces and municipalities had to come up with a strategy, but she questioned why the Minister alone had to review the strategy and why there was no involvement of other stakeholders.

Ms Cobbinah responded that the Minister had powers of review because of the fact that DEAT had to formulate the integrated waste management strategy.

Ms Matlanyane said that there was no need, in relation to what was set out on page 11, for include non compliance aspects in relation to subsection (6). She further asked if, in relation to point 3 of the presentation on Chapter 3, if  municipalities  had powers to authorise carrying out of waste management plans, because the Bill had stated that authorisation would depend on the Minister.

Ms Cobbinah said that waste management was within the stated functions of municipalities as provided for in the municipal legislation.

In relation to clause 6 she asked about the consultation with the MEC of Environmental Affairs, noting that in some provinces there were clusters, and asking what approach would be taken.

Ms Cobbinah stated that Minister would not require public participation for any non-substantive matters, such as grammatical issues, but that public participation would be needed for substantive matters. When the Bill referred to the Minister, without any other qualification, this would mean the Minister of Environmental Affairs. Otherwise, if there were other authorities, it would refer to them by name, such as the Minister of Water Affairs and Forestry, or the MEC responsible for environmental affairs.

Ms Matlanyane queried what the "reasonable grounds" in clause 41 referred to and what would be the basis of such grounds. 

Ms Cobbinah responded that the reasonable grounds were qualified, and related to a threat to environment, and the need to improve waste reduction, reuse and recycling waste to reduce environmental and health impacts. She stated that the Minister had to declare a priority waste stream if the waste became toxic and hazardous

Ms Matlanyane asked what the population profile was related to, in clause 12, and what relevance this had to waste. She asked if "waste" was to include human waste.

Ms Cobbinah said it was necessary to look at the  population profile so that the municipality could assess the provision of services and facilities needed.

Ms B Dlulane (ANC, Eastern Cape) questioned how the Bill would deal with the issue of illegal dumping and how the Environmental impact Assessment related to this. She enquired whether all the EIAs were addressed in this Bill or if this was in other legislation.

Mr Watson asked about the legislation relating to air pollution, saying that this Bill was seeking to curb different types of pollution and what the possible implications would be.

Mr Tau asked for the number of illegal dumping sites.

Mr Ishaam Abader, DDG: Corporate Affairs, DEAT, responded that NEMA was a framework piece of legislation and that the other specific environmental pieces of legislation would deal with separate issues – such as air quality and waste. EIAs would not always be a stumbling block. Dumping was authorised, provided that it was far from residential development areas and was done in a safe way. 

Ms Cobbinah replied that illegal dumping was a prohibited activity and that there were various penalties provided for by municipal by laws, which needed to be strengthened by municipalities

She stated in response that the 580 non- permitted waste sites were included in the 1327 waste sites and that she could show the provincial breakdown of these figures

Ms Cobbinah said that provinces had been doing a lot of work to assist in waste management. She stated that  DEAT had trained officers for licensing training in Pretoria for three days  and was doing competence building. The provinces, in relation to waste management, had some discretion. The waste information system by provinces was already  in the current structures of the waste management framework. She said there were three provinces that for the past two years already had a waste information system, and that this year DEAT had been working with two more.

Mr Watson questioned whether the power of a municipality to perform clearance and disposal of waste was linked to a sanction if the municipality did not provide the community with proper waste services. He gave an example of the national road on the south side of a township where every inlet of the township had waste dumping. He asked how the municipality would be accountable for waste services.

Ms Cobbinah responded that the Department should avoid being prescriptive on municipalities to provide waste management because this would  fetter the activities of municipalities.
 
Mr J le Roux (DA, Eastern Cape) asked about the millennium goals and whether the definition of waste in the bill included pesticides and poisoning by farmers. He also asked if it included mining waste, and waste pesticides.

Ms Cobbinah stated that millennium development goals were tied in to the Bill’s intention to move away from non-sustainable ways of dealing with waste.

Ms Cobbinah said that obsolete pesticides were covered under hazardous waste, which was defined as any waste that contained organic or inorganic compounds, and chemical components that had a detrimental impact on health and the environment. She stated that DEAT had a programme, termed the South African Compound Programme, which was funded by the World Bank. She submitted that the number and extent of pesticides found in Limpopo alone equated what DEAT had expected would be found in the whole country. Those waste pesticides would be taken  to Mozambique and shipped back to Europe. The Department formulated a sustainable strategy for industry to manage waste streams.

Mr Abader added that clause 4of the Bill regulated certain radio-active waste as set out in the Hazardous Substances Act, and explosives and mining waste.

Mr le Roux asked how the Bill was going to benefit South Africans.

Ms Cobbinah said that the benefits of the bill to the ordinary person were that the Bill made sure that people had waste collection services.

She stated that the whole approach of “waste hierarchy” was in line with the intended goal that people should not generate waste. Whatever could be recycled or reused should be used in this way, before it eventually might end up on the landfill.

Ms Dlulane asked for clarification of some grammar, particularly referring to “in consultation” or “after consultation”.

Ms Cobbinah responded that if matters were substantive, then there should be consultation. However, if there were non substantive provisions or mere errors that needed to be fixed up, such as a grammatical error, a miscalculation or a clerical mistake, then no consultation would be necessary.

The Chairperson noted the absence of the Gauteng delegation at the Waste Management Bill briefing and acknowledged that delegates were now present for the briefing on the Integrated Coastal Management Bill.

Integrated Coastal Management Bill: Department of Environmental Affairs and Tourism (DEAT) briefing
Ms Radia Razack, Director: Legal Services, DEAT, stated that the Department had an A and B version of Bill. The aim of this Bill was to cater for the coastline in South Africa, which was of social and economic significance. So far there had been no legislation dealing with the coastal areas in a focused manner. In 2000 the White Paper on Coastal Management was endorsed. The Bill sought to put into place an action plan for development of coastal management, and the equitable access to coastline areas.

Ms Razack noted that there were many extensive consultations preceding the Bill. It was gazetted in December 2006, calling for submissions, and there had been announcements by the Minister on the subject of erosion, information sessions, and a coastal roadshow to educate and inform on matters relating to the Bill. In addition there were a number of issues presented in radio shows in  Zulu, English, Xhosa and Afrikaans. Thirty information-sharing sessions had been held. Academics had expressed themselves in favour of the integrated approach taken in the drafting of the Bill. 350 comments were received from the 100 stakeholder groupings, businesses, industry, environmental groups, the legal profession, property owners, the general public, research institutions, and National and Provincial government.

To put the Bill into context, Ms Razack said that the coastal areas provided 35% of the country’s gross domestic product and 65% of people lived on the coast lines worldwide. She stated that the Bill dealt with managing the coast through social equity protection that was best for the economic use of the coast, and took an integrated management approach through the three spheres of government, on the basis that the coast was part of the country’s social heritage.

She said that the critical elements prior to this Bill were that there were no comprehensive planning strategies that took into account the natural processes of rising seas, erosion of the coastlines, wind blown sands (in Western Cape) and similar natural scientific phenomena which, if ignored, would lead to catastrophic results.  Pictographic examples of some of the natural coastal processes impacts were given in the presentation.

The Bill required that planning and EIAs take such coastal processes into account. She noted that the Bill provided for demarcation of the coast to create certain areas and zones warranting greater protection, and adjustment of zone boundaries. It would not affect existing private property boundaries, but could regulate what could be done on certain land. It would also look at set-back lines and control management of the coastal areas via impact assessment

She stated that the main problematic issues around denial of access to coastal access related to exclusive developments by those who had a servitude to the coastal areas, who would sometimes erect barriers to access. In order to resolve this, the Bill provided for strips of land which did offer access points (clause 6), municipal demarcation (clauses 20 and 29), signposting and management of the areas by municipalities (clauses 9 and 18) and in certain cases even for expropriation when there was an unreasonable denial of access, subject to the Constitution and Expropriation act.

The Bill also addressed pollution effluent from industries pumped out into the sea in liquid form. When waste entered the water it would be covered by the marine legislation. Dumping by vessels on the high seas were covered and there were now demarcations also in relation to the Waste Management Bill. The Bill sought to protect aquaculture and other waste that was not healthy to society in general. The Bill also sought to place controls on sea outflow pipes, assessment of outfall, sewage, and fish factories, which would also require assistance by the municipal laws.

The Bill also provided for cooperative efforts with DWAF, since dumping in a river estuary was similar to dumping at sea, and here the mandates of the two departments would overlap.

Ms Razack then went on to detail some of the challenges. She said that in the past the planning and decision making had been fragmented, with no consolidated approach but rather a sectoral planning that ended at the high water mark. The Bill now sought to redress this problem. The Bill proposed that integrated committees must be set up within 12 months of the Bill being passed. Chapter 5 contained reference to an integrated planning and decision making institutional framework. Chapter 5 also provided for wide representivity, for coastal management programmes, and for accountability by provincial and local government.
 
The Portfolio committees had made some changes in relation to the mining mandates of departments, and she noted that a balance had to be struck if mining was proposed in highly sensitive coastal management areas. The Minister of Environmental Affairs could prohibit certain actions. The Bill would also confront challenges in the clearing of land, draining of wet lands, abstraction of water affecting estuaries, and developmental activities along the coast that were not properly managed.

The Bill provided definitions of the coastal zone, protection of the sea and beach and admiralty reserves that formed coastal public property. The coastal protection zone was also defined in terms of area.
The Bill provided that no property expropriation was allowed other than under the Expropriation Act, so all existing rights would be respected. She stated that developments in Western Cape generally showed a good divide between the shore and developments

Discussion
Mr Watson again said that the Committee Members had received little knowledge on the Bill and again requested that the Department assist during the presentations to provinces.

Mr Tau said that there was a need to have an overall understanding of the Bill before starting to analyse it, and he suggested that a clause by clause assessment might be useful.

Ms Dlulane asked for clarity on the issue of pipes going into the sea, and how it had been that people, and particularly children, had access to those pipes.

Dr Neil Malan, Deputy Director, DEAT said that pipe lines were managed by the Department of Water Affairs and Forestry in line with the National Water Act. The Department had jurisdiction over the estuaries. There was legislation dealing with illegal structures and any illegal pipelines would be closed.

Mr M Mzizi (IFP, Gauteng) stated that there were so many pieces of legislation on environmental issues, but felt that he would be able to brief the provinces if given sufficient documentation

Ms Dlulane asked what SWP meant.

Ms Oliphant asked about the coastal management programme set out in relation to section 44, which stated that the Minister, within four years, must compile an Integrated Management Programme for the coast. She asked if the Minister would act in conjunction with the municipality.

Dr Malan stated that the Extended Public Works Programme in Kwazulu Natal must, within four years, be developed .The White Paper aimed at educating and informing the provinces on the integrated coastal management strategy. He said the coast was divided into 13 regions, but the integrated Bill would not use the existing policies and legislation but develop something completely new. All spheres of government had been represented at the workshops.

Ms Dlulane asked about the Minister’s review of the Integrated Management Programme of provinces in which the Minister had no part, and about the MEC reviewing the municipality. She asked why the parties who developed the strategies did not have the power of review.

Dr Malan responded that the Minister and MEC had reviewing powers so that the policies would all be brought in line with the national policy. The Bill sought an integrated approach.

Mr Tau asked what the rationale was for the disparity in the measurements and definitions of coastal areas and rural land.

Dr Malan explained that the differences related to the sensitivity of areas. In an area with sand dunes, the measurements might be greater than an area where there were no such dunes.

Dr Malan said that there had been consultation also with people in the inland areas.

Mr Mzizi asked whether all issues raised in the written submissions had been taken into account in relation to the Bill.

Dr Malan responded that the comments had to be responded to on the DEAT website. All parties agreed to inform the general public and stakeholders.

Ms Oliphant asked if the R850 million had been budgeted in anticipation that the legislation was passed this year. She further questioned what the full financial implications were.

Dr Malan said that the provincial draft management programme funding would come from the United Kingdom .The Bill provided that the Minister may appoint a national coastal committee.

Mr Tau asked whether the Department would be able to financially support the municipalities in implementation of the strategy.

Dr Malan said that there were bound to be financial implications. He noted that soil erosion in Kwazulu Natal cost billions, so it was expensive. Provincial and local government was aware of the budgetary implications of the White Paper.

Ms Razack said that there was need to make sure that there was an integrated approach. It was provided, in the Bill, that the Minister must consult with the MEC on the integrated approach and publish it.

Mr Watson noted that areas such as harbours were excluded from this Bill.

The meeting was adjourned.