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NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE ACT NO. 59 of 2008

WASTE Act, 2008 (Act No. 59 of 2008)

PURPOSE:

To reform the law regulating waste management in order to protect health and the environment by providing reasonable measures for the prevention of pollution and ecological degradation and for securing ecologically sustainable development;
To provide for institutional arrangements and planning matters;
To provide for national norms and standards for regulating the management of waste by all spheres of government;
To provide for specific waste management measures;
To provide for the licensing and control of waste management activities; to provide for the remediation of contaminated land;
To provide for the national waste information system;
To provide for compliance and enforcement;

and to provide for matters connected therewith
Waste management activities in respect of which a waste management licence is required in accordance with section 20 [b] of NEMA WASTE Act, 2008 (Act No. 59 of 2008)


For other relevant environmental legislation: Department of Environmental Affairs - Policy and Legislation section. www.environment.gov.za

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Waste related legislation in South Africa includes the following:
(available from www.acts.co.za)
The South African Constitution (Act 108 of 1996)
Hazardous Substances Act (Act 5 of 1973)
Health Act (Act 63 of 1977)
Environment Conservation Act (Act 73 of 1989)
Occupational Health and Safety Act (Act 85 of 1993)
National Water Act (Act 36 of 1998)
The National Environmental Management Act (Act 107 of 1998)
Municipal Structures Act (Act 117 of 1998)
Municipal Systems Act (Act 32 of 2000)
Mineral and Petroleum Resources Development Act (Act 28 of 2002)
Air Quality Act (Act 39 of 2004)
National Environmental Management: Waste Act, 2008 (Act 59 of 2008) - see above

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NATIONAL WASTE MANAGEMENT STRATEGY (NWMS)

The National Waste Management Strategy (NWMS) is a statutory requirement of the recently promulgated National Environmental Management: Waste Act. The new strategy will build on the previous Waste Management Strategy published in 1999, as well as the extensive inputs from stakeholders made during the process of developing the Waste Act.

Four phases are envisaged for the strategy, with an inception phase producing a framework for the strategy, followed by a phase of baseline research, then formulation of the first draft, followed by consultation and finalisation of the strategy.

The National Waste Management Strategy homepage www.wastepolicy.co.za/nwms provides an overview of the development process as well as an opportunity for members of the public, businesses, consumer groups, NGO's and other civil organisations to provide feedback and input into the National Waste Management Strategy (NWMS) as it is developed.

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PROVINCIAL LEGISLATION

Contact your provincial government for:

Waste Minimisation Strategy and plans
Integrated Waste Management plans
Eastern Cape Department of Agriculture & Rural Development
www.agr.ecprov.gov.za
Free State Department of Economic Development, Tourism & Environmental Affairs
www.freestatetourism.gov.za
Gauteng Department of Agriculture & Rural Development
www.gdard.gpg.gov.za
Kwazulu Natal Department of Agriculture, Environmental Affairs & Rural Development
http://agriculture.kzntl.gov.za
Limpopo Department of Economic Development, Environment & Tourism
www.ledet.gov.za
Mpumalanga Department of Economic Development, Environment & Tourism
www.mpumalanga.gov.za/dedp
North West Department of Agriculture, Conservation, Environment & Rural Development
www.nwpg.gov.za/Agriculture

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For other waste related legislation, policies, regulations, see www.sawic.org.za waste policy and regulations.

The Waste Management Act

WASTE MANAGEMENT ACT
The Waste Management Act was finally Gazetted on 10 March 2009. Its aim is to give effect to the White Paper on Integrated Pollution and Waste Management and the National Waste Management Strategy (NWMS). Having said that, it is generally speaking vague and broad. It should also be kept in mind that in terms of Schedule 5B of the Constitution, local authorities have the function (which includes the power to promulgate and enforce by-laws) over, inter alia, the following areas:

Cleansing
Refuse removal, refuse dumps and solid waste disposal
As such, there could be differences in terms of by-laws, control, enforcement, awareness etc between local authorities, where more stringent measures than the national or provincial are introduced, this could be in the form of specific Regulations or other legislative requirements.

Purpose:
To reform the law regulating waste management in order to protect the health and the environment by providing reasonable measures for the prevention of pollution and ecological degradation and for securing ecologically sustainable development ; to provide for institutional arrangements and planning matters ;national norms and standards for regulating the management of waste by all spheres of government; to provide for specific waste management measures; to provide for the licensing and control of waste management activities; to provide for the remediation of contaminated land; to provide for the national waste information system; to provide for compliance and enforcement; and to provide for matters connected therewith.

Objectives:

To ensure sound environmental management of waste.
To provide for utilisation of environmentally-sound methods that maximise the utilisation of valuable resources and encourage resource conservation and recovery;
To reduce risk to human health and prevent the degradation of the environment through usage of mechanisms that promote the following:
Pollution prevention and cleaner production
Volume reduction at source
Recycling, recovery and reuse
Set guidelines and targets for waste avoidance and volume reduction through source reduction and waste minimisation measures, including composting, recycling, re-use, recovery, green charcoal process, and others, before collection, treatment and disposal in appropriate and environmentally sound waste management facilities in accordance with this act;
To ensure the proper segregation, collection, transportation, storage, treatment and disposal of waste through the formulation and adoption of the best environmental practice in ecological waste management;
To promote national research and development programs for improved waste management and resource conservation techniques, more effective institutional arrangement and indigenous and improved methods of cleaner production, waste reduction, reuse, collection, treatment, separation and recovery;
To encourage greater private sector participation in waste management;
To encourage cooperation and self-regulation among waste generators through the application of market-based instruments;
To institutionalise public participation in the development and implementation of national, provincial and local integrated, comprehensive, and ecological waste management programs; and
To strengthen the integration of ecological waste management and resource conservation and recovery topics into the academic curricula of formal and non-formal education in order to promote environmental awareness and action among the citizenry.
To control the export, import, transit, reuse, recovery, treatment and disposal of waste to ensure that all operations relating to export, import, transit, reuse, recovery, treatment and disposal will be undertaken in an environmentally sound manner.
The Act will be administered by DEAT.

Contents:
Chapter 1: Interpretation and Principles
Chapter 2: National Waste Management Strategy, Norms and Standards

Chapter 3: Waste Management Measures
Chapter 4: Licencing of Waste Management Activities
Chapter 5: Waste Information
Chapter 6: Compliance and Enforcement
Chapter 7: Offences and Penalties
Chapter 8: General Matters
Chapter 9: Miscellaneous


Chapter 1: Definition of ‘waste' includes any substance, whether solid, liquid or gaseous, which is -

discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration to the environment,
a surplus substance or which is discarded, rejected, unwanted or abandoned,
reused, recycled, reprocessed, recovered or purified by a separate operation from that which produced the substance or which may be or is intended to be re-used, recycled, reprocessed, recovered or purified, or
identified as waste by prescribed by regulation;
Definition of ‘recycling' a process which "involves the separation of waste from a waste stream for further use and the processing of that separated material as a product or raw material"

Under the Environmental Conservation Act (ECA), even recycled material still falls within the definition of "waste". The Act has remedied this defect by excluding raw materials from the definition of waste BUT the reduction, re-use, recycling and recovery of waste are activities that are regulated by the Act. Only once a portion of waste has been re-used, recycled or recovered does it cease to be waste and fall outside the ambit of the Act.

Chapter 2: Establishes standards required at a national, provisional and local level.
The Minister must, by notice in the Gazette, establish national standards for:-

the classification of waste;
waste treatment and disposal;
the provision of waste management services;
waste avoidance, waste minimisation, recovery, re-use and recycling;
the remediation of contaminated land; and
The Minister may, by notice in the Gazette, establish national standards for:-

the categorisation of waste;
producer responsibility;
the regionalisation of waste management services; and
the collection and verification of waste management data.
The MEC, by notice in the Gazette may establish provincial standards for-

the provision of waste management services;
the regionalisation of waste management services within the province;
waste avoidance, waste minimisation, recovery, re-use and recycling, with the exception of standards that may have national implications; and
waste disposal.
If national standards have been passed in terms of section 8, the MEC may not alter the national standard, except to make the requirements more stringent.


Local standards
A municipality in terms of a by-law:-

must establish service standards and levels of service for the collection of waste;
may identify requirements in respect of the separation, compacting and storage of waste;
may identify requirements for the management of waste, including requirements in respect of the avoidance of the generation of waste and the recovery, reuse and recycling of waste;
the requirements in respect of the directing of waste to specific treatment and disposal facilities.


If national or provincial standards have been passed in terms of section 8 or 9, the municipality may not alter the national standard or provincial, except to make the requirements more stringent.

General duty in respect of waste management


1. Any holder of waste must take all reasonable measures to -

a)avoid the generation of waste and where such generation cannot be avoided, to minimise the toxicity and amounts of waste that are generated;

b)re-use, recycle or recover waste;

c)where waste must be disposed of, to ensure that the waste is treated and disposed of in an environmentally sound manner;

d)manage the waste in such a manner that it does not endanger health or the environment or cause a nuisance through noise, odour or visual impacts;

e)within that person's power, prevent any other person from contravening a provision of this Act in respect of the waste; and

f)take reasonable measures to prevent the waste from being used for an unauthorised purpose.

2. Subsection (l)(e) and (f) does not apply to the owner or occupier of premises for domestic waste which is produced on the property where such waste is collected by a municipality or municipal service provider.

Any person who sells a product that may be used by the public and which will result in the generation of hazardous waste must take reasonable steps to inform the public of the impacts of that waste on human health and the
environment.

The measures contemplated in this section may include measures to -

investigate, assess and evaluate the impact of the waste in question on health and the environment;
cease, modify or control any act or process causing the pollution,
environmental degradation or harm to health;
comply with any prescribed standard or management practise;
eliminate any source of pollution or environmental degradation; and
remedy the effects of the pollution or environmental degradation.
Chapter 3: Storage and transportation of waste

Duties of any person who stores waste

the containers in which any waste is stored are intact and not corroded or in any other way rendered unfit for the safe storage of waste;
measures are taken to prevent accidental spillage or leaking;
the waste cannot be blown away;
nuisances such as odour, visual impacts and breeding of vectors do not arise; and
pollution of the environment and harm to health are prevented.
Duties of persons transporting waste
The Minister or MEC may, by notice in the Gazette, require any person or category of persons who transports waste for gain:-

to register with the waste management officer in the department or province where the transportation takes place and to furnish such information as is specified or that the waste management officer may require;
take all reasonable steps to prevent any spillage of waste or littering from a vehicle used to transport waste;
where waste is transported for the purposes of disposal, a person transporting the waste must ensure that the facility or place to which the waste is transported is authorised to accept such waste prior to offloading the waste from the vehicle;
where hazardous waste is transported for purposes other than disposal, a person transporting the waste must ensure that the facility or place to which the waste is transported is authorised to accept such waste prior to offloading the waste from the vehicle and must obtain written notification that the waste has been accepted;
a person who is in control of a vehicle, or in a position to control the use of a vehicle which is used to transport waste for the purpose of depositing waste is deemed to knowingly cause such waste to be deposited.
Chapter 3: Recovery, re-use and recycling of waste

Provide for the recovery, re-use or recycling of products or components of a product manufactured or imported by that person;
A product may be required to include a determined percentage of recycled material in a product that is produced, imported or manufactured by that person or category of persons;
No person may establish, provide or operate any waste handling, treatment or disposal facility or close any such facility which was not permitted when this Act came into effect
Every person who undertakes a recovery, re-use or recycling activity must, before undertaking that activity, ensure that the recovery, re-use or recycling of the waste -
uses less natural resources than disposal; and
to the extent possible, is less harmful to the environment than disposal;
Chapter 3: Industry waste management plans

The Minister or MEC may, by notice in the Gazette, require any person, category of persons, industry or organ of state that produces waste other than during the course of normal government administration, to prepare and
submit an industry waste management plan to the Minister or MEC for approval.

Contents of industry waste management plans
The Minister or MEC must specify the information that must be included in an industry waste management plan that must be prepared in terms of section 34 or 3 1. The information may include -

measures to prevent pollution or ecological degradation;
targets for waste reduction through waste minimisation, recovery, reuse and recycling;
measures or programmes to minimise the consumption of natural resources and the final disposal of waste;
measures or actions to be taken to manage waste;
the phasing out of the use of specified substances;
opportunities for the reduction of waste generation through changes to packaging, product design or production processes;
mechanisms for informing the public of the impact of the waste generating products or packaging on the environment;
the extent of any financial contribution to be made to support consumer-based waste reduction programmes;
the period that is required for implementation of the plan;
the identification of laws that may have a bearing on the implementation of the plan;
methods for monitoring and reporting; and
any other matter that may be necessary to give effect to the objects of this Act.
Consultation
Adequate consultation must take place with all stakeholders and records of such consultation must be submitted with the waste management plan.

Chapter 3: Contaminated Land

The Waste Act defines ‘contaminated' to mean:-"the presence in or under any land, site, buildings or structures of a substance or micro-organism above the concentration that is normally present in or under that land, which substance or micro-organism directly or indirectly affects or may affect the quality of soil or the environment adversely."

The Minister/MEC after consultation with the Minister of Water Affairs and Forestry may identify investigation areas where

High risk activities are taking place/have taken place on land that are likely to result in land contamination; or
The land is believed to be contaminated.
A site assessment may be required to be conducted by:

The owner of the land;
The person who undertook the high risk activities
An independent person
A site assessment report must be compiled which must include the following information in cases where the land is found to be contaminated:

Whether substances in or on the land are toxic, persistent or are present in large quantities or high concentrations;
Acceptable exposure for human and environmental receptors in that environment have been exceeded; and
The area should be remediated

Upon receipt of a site assessment report, the Minister/MEC may decide that:
The area requires urgent remediation;
The area requires remediation within a specified period;
Measures are required to address the monitoring and management of the risk in that area;
The area is not contaminated
Where an area requires remediation, the Minister or MEC must declare it a remediation site.

Measures must be conducted, at own cost, by the person against whom the order is made.

No one may transfer contaminated land without:
informing the transferee that the land is contaminated; and
notifying the Minister or MEC, where the land is a remediation site
The Minister is required to notify the Registrar of Deeds of any land that is declared a remediation site.

The Minister must keep a national contaminated land register of investigation areas that includes information on:

Owners and users of investigation areas
The location of the areas
Whether the land is contaminated
Status of any remediation activities
Whether restrictions of use have been imposed
Chapter 5: Licencing of Waste Management Activities

The Minister or the MEC are the relevant licensing authorities
The licensing authority is required, where possible, to co-ordinate its process with the processes in Chapter 5 of NEMA or other legislation administered by other organs of state and to:
Issue an integrated licence jointly; or
Issue the licence as part of a consolidated authorisation
A holder of a waste management licence may be required to appoint a waste management control officer. This will depend upon the size and nature of the waste management activity. These officers' responsibilities include developing and introducing clean production technologies and practices to ensure waste minimization.
Chapter 6: Establishment of national waste information system

The Minister must establish a waste information system for the recording, collection, management and analysis of data and information which must include -

data on the quantity, type and characteristics of waste generated, reused, recycled, recovered, stored, transported, treated, transformed and disposed of;
a register of -
waste management activities that have been licensed;
people to whom licences have been granted; and
the locations where licensed waste management activities may be conducted;
information on compliance with this Act;
information on the impacts of waste management activities on the environment; and
any other matter that is necessary for the purposes of administering an effective and integrated waste management system.
The national waste information system may be implemented incrementally.

Chapter 7: Compliance and Enforcement

A person convicted of certain offences, for example a failure to conduct a site assessment or to comply with a condition of a waste management licence, is liable to either:-

A fine not exceeding R10 million; or
Imprisonment for a period not exceeding 10 years; or
Both; and
In addition to any penalty imposed in terms of NEMA
Other offences carry penalties ranging from R5 000 000 to R1000 and imprisonment from 5 years to 20 days.



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