Government Notice No R.3014 of 3 August 2007





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 Breede River Winelands Municipality [BRWM] for permission to establish a single new landfill site in the area. The issue is currently to the best of my knowledge still with the Western Cape DEADP awaiting a record of decision [ROD].


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 UK definition of BPEO [best practicable environmental option]. They are:


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.