The purpose of the National Environmental Management Waste Act, 2008 (“NEMWA”) is to reform the law regulating waste management in order to protect health and the environment. To achieve this NEMWA provides for institutional arrangements and planning matters; it also establishes a national waste information system and provides for the licensing and control of waste management activities. Notwithstanding these various waste management mechanisms, waste disposal remains the principal way of dealing with waste in South Africa. An estimated 1,200 landfill sites currently in operation bear testament to this fact1. The reason for this in many cases is largely attributable to the implementation challenges and inadequacies identified in the NEMWA making it difficult to establish an integrated approach to waste management.
Some of the challenges evident in NEMWA include the lack of clear definitions of ‘waste’, ‘re-use’ and ‘recovery’ making it problematic to confirm which materials/substances and activities related thereto trigger the need for a waste management licence. In addition the procedures set out for the approval of integrated waste management plans are cumbersome. The National Waste Management: Amendment Bill (“Bill”) which was approved by parliament on 28 February 2014 seeks to address these challenges by amending the definitions for ‘waste’, ‘recovery’ and ‘re-use’ to provide more clarity and certainty. The proposed definition of waste is as follows:
‘‘(a) any substance, material or object, that is unwanted, rejected, abandoned, discarded or disposed of, or that is intended or required to be discarded or disposed of, by the holder of that substance, material or object, whether or not such substance, material or object can be re-used, recycled or recovered and includes all wastes as defined in Schedule 3 to this Act;
or (b) any other substance, material or object that is not included in Schedule 3 that may be defined as a waste by the Minister by notice in the Gazette, but any waste or portion of waste, referred to in paragraphs (a) and (b), ceases to be a waste—
(i) once an application for its re-use, recycling or recovery has been approved or, after such approval, once it is, or has been re-used, recycled or recovered;
(ii) where approval is not required, once a waste is, or has been re-used, recycled or recovered;
(iii) where the Minister has, in terms of section 74, exempted any waste or a portion of waste generated by a particular process from the definition of waste; or
(iv) where the Minister has, in the prescribed manner, excluded any waste stream or a portion of a waste stream from the definition of waste.’’
The Bill introduces schedule 3 which provides a comprehensive list of what constitutes waste. The list, which is divided into hazardous and general waste categories, is meant to give certainty as to what constitutes waste. This object is however defeated by the broad open ended definitions in the schedule. It should be noted that the definitions of ‘building and demolition waste’ ‘business waste’ ‘general waste’ ‘hazardous waste’ ‘inert waste’ ‘residue deposits’ and ‘residue stockpiles’ are now contained in schedule 3. The definition of “by-products” has been removed. The inclusion of ‘residue deposits’ and ‘residue stockpiles’ as hazardous waste in schedule 3 is peculiar since section 4(1)(b) of NEMWA specifically excludes the same from its ambit. In the absence of an amendment to section 4(1) (b) this is confusing and does not accord with the streamlining of environmental management of mining related activities as agreed to by the Department of Environmental Affairs and the Department of Mineral Resources.
The new definition of waste makes provision for an end of waste status which will allow the Minister to create new opportunities to regulate and promote the recycling economy2. This provides a similar approach to the end of waste criteria developed over the last decade and now implemented by European stakeholders.
The bill will introduce waste management charges to provide for the funding of various initiatives in waste management. Such initiatives include the creation and monitoring of the impacts of incentives and disincentives for the minimisation, re-use, recycling and recovery of waste. It is suspected that these charges are akin to the water use charges in section 56 of the National Water Act, 1998. However, it is not clear at this stage how these charges will be implemented and against whom.
The amendments provide for the establishment of a Waste Management Bureau. This Bureau will provide for an institutional mechanism for the implementation of the objectives of NEMWA. The Bureau is expected to facilitate the implementation of waste management plans and to promote the minimisation, reuse, recovery and recycling of waste. It is also to support the municipalities in the development of integrated waste management plans.
Section 78 of the NEMWA, which deals with appeals against decisions made in terms of it, is repealed by the Bill. All appeals in terms of NEMWA or any other specific environmental Acts will now be lodged in terms of section 43 of the National Environmental Management Act, 107 of 2008 (“NEMA”) and will be considered and processed in accordance with the national appeal regulations developed in terms of section 43 of NEMA. This will create certainty and consistency in relation to internal appeals related to environmentally related authorisations.
The Bill will now be presented to the National Council of Provinces for approval.