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