NATIONAL ENVIRONMENTAL
MANAGEMENT: WASTE BILL
Government Notice No R.3014 of 3 August 2007
Comments
Dr E Schultz 15 November 2007
These comments are informed by my experience as an interested and
affected person [IAP] in respect of an application by the
1 General
a.
Legally ambiguous or
unquantified words such as mainly, reasonable, at
least, significant/insignificant, immediate and similar words should not be
used. “Mainly” and “reasonable” should be defined or removed and “at least”, “significant/insignificant”
and “immediate” should be replaced by quantitative values where applicable, and
where not applicable, removed.
b.
Phrases like “amongst
other things”, “within the … power [of]”, “as far as practicable in the
circumstances” should be removed; or spelled out/specified. There should be no
opt-out opportunities.
c.
The permissive word
“may” should not be used. If exceptions are warranted, the conditions for these
should be noted. The word “must” should be replaced by the mandatory
“shall”.
d.
In every instance where the
participation of interested persons and the general public is called for, this
should be noted with a reference to the relevant and expanded [see below] section
[73]. The same applies to offences and penalties [sections 67 and 68] and to
appeals [section 78].
e.
Only the general ambit
of the national waste management strategy: norms and standards [Chapter 2]
should be in the Bill. The details should be submitted to public review, debated,
promulgated and ready for publication in the Gazette before the Act comes into effect and not afterwards.
f.
Regulations as in
sections 69 – 71 under the Act should be similarly handled. There are several other
sections in the Bill that could also be relegated to Regulations under the Act and
similarly handled.
g.
There is a role outlined
in the bill for national, provincial and local municipal authorities but none
for the district and metropolitan authorities. In several instances the role of
the local municipal authority is also not mentioned. Are these oversights or
deliberate? If deliberate, why?
2 Definitions
a.
Definitions of waste
These should be legally
precise and unambiguous. Knowledge of the actual and potential hazards from
waste is continuously evolving; provision for new definitions should be made –
possibly in ad hoc regulations.
Some definitions of waste
types are wrong and/or already in need of updating. The definitions of the
types of waste should be grouped under waste types.
Examples of questionable or
ambiguous definitions of waste – in red:
‘‘general waste’’ means waste that
does not pose an immediate [how long or short is immediate?] hazard or threat to health
or to the environment, and includes—
(a) domestic waste; see comment below
(b) building and
demolition waste; see comment below
(c) business waste;
and see comment below
(d) inert waste; see comment below
‘‘building and demolition
waste’’ means waste produced during the construction, alteration, repair or
demolition of any structure, and includes rubble, earth, rock and wood is
displaced during that construction, alteration, repair or demolition;
What about the
asbestos and lead inter alia from altered and demolished buildings? Both are hazardous.
‘‘business waste’’ means waste that
emanates from premises that are used wholly or mainly
[a touch of pregnancy?] for commercial, retail, wholesale, entertainment
or government administration purposes;
What if
pesticides and medicines and other hazardous items are sold, and out-of-date or
damaged items are thrashed?
‘‘domestic waste’’ means waste,
excluding hazardous waste, that emanates from premises that are used wholly
or mainly for residential, educational, health care, sport or recreation purposes;
Medical waste
from all medical [co-called health care] facilities is usually hazaradous and
should not be included here but dealt with separately. Provision should also be
made for discarded electrical and electronic appliances and batteries from
residential and the other listed premises.
‘‘hazardous waste’’ means any waste
that contains organic or inorganic elements of compounds that may, owing to the
inherent physical, chemical or toxicological characteristics
of that waste, have a detrimental impact on
health and the environment;
Very vague and
fully inclusive as all waste can have detrimental impacts, and not only on
account of their inherent properties but because of changes in them –
“physical, chemical or biological transformation – after disposal”
‘‘inert waste’’ means waste
that—
(a) does not undergo
any significant physical, chemical or biological
transformation after disposal;
(b) does not burn,
react physically or chemically biodegrade or otherwise adversely affect any
other matter with which it may come into contact; and
(c) does not impact
negatively on the environment, because of its pollutant content and because the
toxicity of its leachate is insignificant;
Asbestos fits the
definition of an inert waste but is hazardous. No waste can realistically be
considered inert, even if it could be prevented from being contaminated or mixed
with other waste [which is impossible].
‘‘priority waste’’ means a waste
declared to be a priority waste in terms of
section 14.1 which states
that “[t]he Minister may, by notice in the Gazette, declare a waste to
be a priority waste if the Minister on reasonable
grounds believes that the waste poses a threat to health, well-being or
the environment because of the quantity or composition of the waste and —
a. that specific waste management measures are
required to address the threat; or
b. that the imposition of specific waste
management measures in respect of the waste may improve reduction, re-use,
recycling and recovery rates or reduce health and environmental impacts.
In reality all waste poses
threats in large quantities. Therefore all waste is priority waste. It is the
objective of the Bill to put in place measures to minimise if not eliminate all
waste and all its attendant risks and nuisances. This whole section should fall
away.
Other waste type such as
medical [not health care], electronic and electrical appliances; petro-chemical
from garages and farms; insecticides, pesticides and fertilizers; disused
irrigation piping, rubber tyres, and discarded parts of cars and similar
machines, inter alia need to be defined and categorised into hazardous,
organic and other and then specifically addressed in the Bill.
b.
Definition of “best
practicable environmental option”
The
definition in the bill reads: the most reasonable measure for providing the
greatest positive impact and least negative impact on health and the
environment;
The
definition in NEMA is preferred. It is:
“best practicable environmental option” means the option that provides the most benefit or causes the least
damage to the environment as a whole. at a cost acceptable to society, in the
long term as well as in the short term;
3 Application
of the Act
According to
section 4.1e the Act will not apply to “organic waste that emanates from
agricultural activities or forestry”. What act
or state department/division will regulate this waste? In the BRWM area farm
waste lands in rivers or is dumped on farm land or in the municipal compost facility.
Provision must be made for the management of this waste.
4 Other waste
sources that are not addressed in the bill
These include
domestic and other waste from farms and waste from abattoirs. In the BRWM area
many farmers have their own small dump sites and they may periodically burn the
accumulated waste. At the only permitted landfill in the area people collect for
use and sale meat dumped by the abattoir/s and butchers with the connivance of
the supervising contractor. Unused and unusable meat has also been used in the
municipal compost facility.
5.
Public participation
The provisions in section
73 for informed public participation in the bill are totally inadequate.
Provision is only made for the public to be informed that the
Minister intends to decide on an action [exercise a power] and does not promote
meaningful participation in any aspect of waste management.
The public is to be informed only by a notice “in at least one newspaper
distributed nationally or, if the exercise of power will only affect a specific
area, in at least one newspaper distributed in that area”. This is almost
useless especially in SA where a large proportion of the public is functionally
illiterate and where few people, who are not illiterate, read newspapers -
never mind local “rags” - preferring alternative sources of information.
It is therefore recommended
that in addition to the press the following communication techniques be
mandated in the Bill: radio, TV, internet, mailing of notices with utility and municipal
rate bills, notice boards on public buildings including schools and medical
institutions and at popular shopping venues and direct mailing to people and
organisations that have indicated an interest [IAP = interested and affected
persons/parties].
No provision is made for participation
in waste management. Submitting written representation and objections [impossible
anyway for the large functionally illiterate sector of the population] to the
Minister with the discretionary option of oral submissions, and within a very
short and unrealistic time constraint of 30 days of publication of a notice in
the Gazette, never mind a newspaper,
is not participation, but a travesty of a right enshrined in the constitution.
The onus of ensuring public
information and facilitating public participation should reside with a local,
metropolitan, district, provincial and/or national authority/authorities as
applicable.
The Bill should also
include penalties for failure to comply with the letter and intention of
the law in respect of informed public participation and provide all members of
the public accessible mechanisms - including those that are independent of
expensive lawyers - to appeal in respect of non-compliance at any stage
of every procedure associated with waste management and not only when the Minister
is about to exercise her/his power to make a decision.
The obligation imposed by
the Environment Conservation Act No. 73 of 1989 to reject an application for a
permit to establish a waste disposal facility in the absence of meaningful
public participation should be replicated in the new Bill
The critical area of
informed public participation should therefore be redrafted to make it possible
for the public to be informed on, and to be empowered to effectively
participate in, every aspect of waste management.
6.
Waste minimisation
The laudable objectives of
the Bill to ensure the health and well-being of people, animals and plants and
of the physical environment in the context of waste are best achieved as
proposed in the Bill through good waste management predicated on comprehensive
waste minimisation. It is therefore necessary that the issues pertaining to waste
minimisation should be addressed in detail in a dedicated chapter and not
scattered in 32 separate references throughout the Bill as at present.
Because
these objectives imply that the management of waste should cause no harm, co-operation
with other sectors of government, as well as industry, commerce, agriculture,
and civil society is imperative. This is predicated on joined-up local action
and should be referred to in the Bill.
It
is useful in this context to adopt the three key principles in the
1. Waste Hierarchy. This
places reduction at the top, as the most preferable option for managing waste.
This is followed by re-use, then recovery through [restoring], recycling, composting
and energy recovery, and lastly disposal.
2. The Proximity Principle.
This requires waste to be disposed of as close to the place of production as
possible. This avoids passing the environmental costs of waste management to
communities which are not responsible for its generation. It also reduces the
environmental costs of transporting waste.
3. Self sufficiency. Waste
should not be exported … for disposal, and waste planning authorities and the
waste management industry should aim, wherever practicable, for … self
sufficiency in managing waste.
Effective, informed,
empowered, committed public participation with legally mandated systems for
oversight over every aspect of waste management should be added as a fourth
principle.
The process of waste
minimisation should be detailed in the Bill to include:
·
reducing waste generation;
·
waste sorting at source or as close to
source as possible for example at a waste transit or recycling facility to
separate at the first level hazardous waste, organic waste and other waste and
at the second level glass, tins, paper, plastic, etc;
·
facilities for re-use by barter or sale;
recovery by repair;
·
recycling of extracted components;
·
safe sequestration of residual waste.
Detailed prescription for
the management and disposal of hazardous waste should be included in the Bill as
should sections on the composting of organic waste including that from
commercial and small-scale farms, bearing in mind the dangers inherent in
leachate and methane. The latter could be exploited for energy generation for
which legislative items should be provided in the Bill.
SMMEs could be involved in
many of the waste minimisation processes and the potential for job creation and
poverty alleviation should be somehow incorporated in the proposed legislation.
It is possible today that
effective waste minimisation could, if not eliminate all non-hazardous and
non-organic waste, at least very significantly reduce it and thereby obviate
the need for big disposal sites with their attendant unpleasant and noxious side-effects.
This should be taken into consideration when assessing the need, size and type of
new and existing waste disposal sites. Nevertheless the Bill should put in
place precise legislation for their location [site selection], licensing,
construction, administration and decommissioning. Because the residual waste is
likely to be not only small in mass but also inert and compacted, visual and
olfactory nuisance factors from disposal sites could no longer be a factor for
legislative consideration.
The development of an
integrated waste minimisation plan with comprehensive public participation
should precede any license applications.
7.
Separate waste management activities
In the section on definitions,
‘‘waste
management activity means any activity listed
in Schedule 1 or published by notice in the Gazette under section 19,
and includes —
a. importation and exportation of waste;
b. generation of waste, including the
undertaking of any activity or process that is likely to result in the
generation of waste;
c. accumulation and storage of waste;
d.
collection
and handling of waste;
e.
reduction,
re-use, recycling and recovery of waste;
f.
trading
in waste;
g.
transportation
of waste;
h.
transfer
of waste;
i.
treatment
of waste; and
j.
disposal
of waste;”
Issues relating to landfill sites [selection, construction,
commissioning, decommissioning and administration, etc] are not listed as an
activity. They should be and all activities should be considered individually and
not joiontly in the Bill.
8.
Extended producer responsibility
This is defined in the bill to mean “measures that extend a person’s
financial or physical responsibility for a product to the post-consumer stage
of the product, and includes inter alia:
a. financial arrangements for any fund that has been
established to promote the reduction, re-use, recycling and recovery of waste;
b. awareness programmes to inform the public of
the impacts of waste emanating from the product on health and the environment;
[and the vague and therefore legally unenforceable]
c. any other measures [sic] to reduce the
potential impact of the product on health and the environment;”
Insofar as this relates to
electrical and electronic equipment, the onus should not be on the consumer but
on the producer and should also be more extensive as in the EU directive proposed
in 2000 [current status not known] quoted below.
Waste from Electrical and Electronic Equipment (WEEE) Directive [Proposal for a
directive]
This Directive was proposed
in June 2000. It was discussed by the Council of the EU in December 2000, its
first reading is planned for late March 2001 and the vote is expected for May
2001.
Electrical and Electronic
Equipment (EEE) includes large and small domestic appliances, electrical
and electronic tools, toys, monitoring instruments, automatic dispensers as
well as IT, consumer, lighting and medical equipment.
The Commission has been
considering the following for this draft directive:
·
Separate collection of WEEE: this would allow
last owners to return WEEE from private households free of charge.
·
Treatment: producers of EEE would
need to set up systems to provide for the treatment of WEEE.
·
Recovery/re-use/recycling: producers
of EEE would be responsible for setting up recovery systems and achieving
targets for collecting end-of-life equipment for 2006. For large household
appliances, the recovery rate would be at least 80% by weight, and the re-use/
recycling rate 75%. For other appliances, the recovery rate would be at least
60% and the re-use/recycling rate 50%.
·
Phasing out (with some exceptions) by 1
January 2008 of the heavy metals lead, cadmium, mercury and hexavalent
chromium, and certain halogenated flame retardants - polybrominated
biphenyls (PBBs) and polybrominated diphenyl ether (PBDE).
9 Hazardous waste
There should be definitive
and specific directives on all aspects of the management of hazardous waste
including obligatory environment impact assessments [EIAs] on all amounts of
all such waste.
10.
False and misleading information and an inadequate data
base
Provision is made in the
bill for penalties for knowingly supplying false and misleading information in
applications and reports but no provision is made for addressing the impact of
such information.
Punitive and remedial
action should also be addressed in the bill to cater for a stale or out-of-date
data base or one from which important data are missing, or when data have not
been projected into the expected life-span of the waste management activity
and/or in the absence of an integrated waste management plan incorporating
existing and planned future waste minimisation programmes.
A case in point is the
false, misleading and totally inadequate information on which the BRWM authority
based its decision to apply for a permit for a site for a new single landfill.
No corrective measures were taken when this was pointed out to the BRWM mayor
and elected representatives, the consultants contracted on the issue, as well
as DEADP and DWAF.
Provisions should be
mandated to address these issues.
11.
Moratorium on pending applications
Transitional arrangements
for permit applications made in terms of the Environment Conservation Act that
have not yet been decided but which if implemented would not be in accordance
with the requirements of the Act when it comes into effect. A moratorium on
decisions should be included in the Bill and a revised application should be
made compulsory.
12.
Other issues arising from the bill
1.
Exemptions
Section 29.3 states that “[w]hen exercising a power … the Minister or MEC must consider whether —
a.
the diversity,
complexity and competitive nature of the industry concerned would make it
impractical for a category of persons other than an organ of state or
provincial department responsible for environmental affairs to prepare the
plan;
b.
the knowledge or
experience of the persons who are likely to be affected by the plan in the
areas of waste reduction, re-use, recycling and recovery is limited;
c.
the persons who are
likely to be affected by the plan comprise of small, medium or micro
enterprises;”
It is better to make everything apply to everybody – exceptions permit
loopholes, besides the injunctions on good waste management should be heeded by
everybody.
2.
Court challenges
Section
49.5 and 49.6 states that an application for a license which is rejected in
terms of subsection 49.1b or 49.1c may be resubmitted to the licensing
authority for reconsideration under specified conditions. Provision should also be made for a court challenge to the decision as
in the Environment Conservation Act. Realistic, affordable and feasible
opportunities for court challenges/appeals with state-supported legal assistance should be available for all rejections without discretion.
3.
Public access to information
Chapter
6 makes provision for public access to data only from the Minister. This is not
good enough; the public should have on-going, easy, direct and unrestricted
access to all data in public libraries, on the internet and on request from any
level of government, inter alia.
4.
Previous legislation
Section
80.4 confirms that “[a] person operating a waste disposal facility that was
established before the coming into effect of the Environment Conservation Act
and that is operational on the date of the coming into effect of this Act may
continue to operate the facility until such time as the Minister, by notice in
the Gazette, calls upon that person to apply for a waste management
licence” and
Section
81.2 confirms that “[t]he holder of a permit
issued in terms of section 20 of the Environment Conservation Act must apply
for a waste management licence in terms of this Act, when required to do so by
the licensing authority, in writing, and within the period stipulated by the
licensing authority.”
In
both these instances the time should be specified in the Bill; the time limit
should not be at the discretion of the licensing authority.
The same applies to the transitional
provisions in section 82 which states that “[a] person who conducts a waste
management activity listed in Schedule 1 on the date of coming into effect of
this Act, and who immediately before that date lawfully conducted that waste
management activity under Government Notice No. 91 of 1 February 2002, may
continue with the activity until such time that the Minister by notice in the Gazette
directs that person to apply for a waste management licence under this Act.
Dr E Schultz.