While the National Environmental Management: Waste Act, No 59 of 2008 brings with it abundant opportunities and regulatory tools, it also introduces severe criminal liability for directors and companies. However, the stringency of and capacity for its enforcement remain to be seen.
Owing to the delayed finalisation of supporting regulations and standards by the Department of Environmental Affairs (DEA), the implementation and enforcement of the Waste Act, which came into effect on July 1, 2009, are not yet in full swing. Once in operation, the new law is set to make radical changes to waste management in South Africa.
Banking Association of South Africa sustainability forum chair Pierre Venter, who has represented the banking industry standpoint on this legislation, says the impact of the Act and its legislative subsets can be expected to have far-reaching ramifications for industry. It is, therefore, essential that comprehensive, balanced and manageable norms, standards and regulations are promulgated that have taken into consideration the viewpoints expressed by the private sector.
He says the envisaged norms, standards and regulations will create certainty for industry and dictate the responsibilities and accountabilities of different stakeholders at a more granular level. This will allow it to create and implement standardised prudent waste management strategies, thus, avoiding unneces- sary costs or failure to implement adequate precautionary measures. Should contamination occur, he says, the cost of remediation will invariably be far higher than if adequate safeguards are implemented to prevent this from happening before starting an activity.
Deloitte sustainability and climate change senior manager Peter Oldacre says this framework Act is aimed at reforming the law regulating waste management and is a culmination of policies and legislative steps over a number of years. The Act brings the ability to enforce the regulation to the fore and organisations should be preparing to assess and review the risks posed by the way in which they have previously treated their waste, he adds.
Warburton Attorneys associate Alistair Young says there was a limited definition of waste in the Environment Conservation Act 73 of 1989 (ECA), whereas the Waste Act provides definitions for different categories of waste, including ‘waste’, ‘general waste’ (with several subcategories of defined waste) and ‘hazardous waste’. Venter says the National Environmental Management Act (Nema), 1998, set in place the framework for broader environmental legislation, resulting in a number of supporting pieces of legislation being promulgated over the past few years, all interlinked to holistically tackle environmental issues.
Further, the Waste Act has introduced some entirely new concepts, such as priority wastes, extended producer responsibility and contaminated land, says Young. It would seem that the true extent and far-reaching nature of these provisions will only be fully realised when supporting regulations are promulgated.
The identification of the listed waste manage- ment activities for which a waste licence is required is a significant change in the Act, says Webber Wentzel environmental law practice group partner Marius Diemont.
Provisions not yet promulgated include Section 28 (7)(a) on voluntary industry waste management plans, Section 35-41 on contaminated land and Section 46 on the appointment of persons to manage licence applications.
Institute of Waste Management of Southern Africa central branch chairperson Dr Suzan Oelofse says the new Waste Act requires industries and municipalities to prepare integrated waste management plans. Waste information must be reported on a central waste management system and disposal to landfill is no longer the preferred option for waste disposal.
The Act’s waste classification regulations, the Standards for Assessment of Waste for Landfill Disposal and the Standard for Disposal of Waste to Landfill have been published for public comment. Essentially, once these regulations are promulgated, industries will have to classify their waste in accordance with the classification system provided and adhere to the requirements for the assessment of the environmental risk associated with the disposal of waste to landfill, as well as the general duties for waste generators, transporters and managers, says DEA spokesperson Albi Modise.
The standards will provide the technical methodology for assessing the level of risk posed by waste, waste acceptance criteria, landfill classification and containment barrier design, and timeframes for acceptance of certain waste for land filling. Comment was due on the draft Municipal Waste Sector Plan at the end of May and Modise says the DEA has analysed input and is currently reviewing the document.
Oldacre says one of the significant changes is that the first National Waste Management Strategy, 1999, lacked an enforceable regulatory system for waste management, whereas the new Waste Act provides a legal basis for many of the waste policies developed over the years. This should result in higher prosecution rates for offenders.
The Waste Act requires the establishment of a new national waste management strategy (NWMS) to achieve its objectives and tackle waste management challenges in South Africa within two years from its enactment. Modise says the final draft is being submitted for approval through Cabinet processes. The NWMS will set priorities, goals and objectives for the implementation of the Waste Act and will, besides other things, emphasise waste reduction, reuse, recycling and recovery; the provision of waste services and proper management of waste; and encourage the diversion of waste from disposal. It will also place more emphasis on the establishment of the recycling economy and job creation in the waste sector, he explains.
The final NWMS is expected to be approved by Cabinet by October 2011 and is expected to be a significant step towards a more inte- grated approach to waste management in South Africa, says Diemont. It sets out different roles and responsibilities for different stakeholders in all spheres of government, industry and the public in an effort to tackle waste management challenges and provide for the collective and coordinated management of waste.
Oelofse also expects the NWMS to ban certain waste streams from disposal to landfill over time, which will imply that alter- native treatment and disposal options will be required with associated cost implications.
One negative is that the Waste Act does not regulate all types of waste, says Diemont. Excluded from the Waste Act is mining waste (in the form of residue deposits and residue stockpiles), which is regulated by the Mineral and Petroleum Resources and Development Act 28 of 2002, and radioactive waste. Radioactive waste is regulated by the Hazardous Substances Act, 1973, National Nuclear Regulator Act, 1999 and the Nuclear Energy Act, 1999.
All other activities are managed through a waste licensing system linked to a list of waste management activities. Legislation governing waste management and disposal is, therefore, still fragmented, he says.
Problematic Waste Streams
Of growing concern is electronic waste (ewaste), which Oelofse says is the fastest- growing waste stream in South Africa and a threat, if processed improperly, owing to the toxicity of some of the substances it contains. On its website, local nonprofit organisation the E-waste Alliance explains this waste stream is the result of the ever-increasing need for new, smaller and faster technology.
Diemont says, currently, there is no specific legislation dedicated to the regulation of disposal, recycling or handling of ewaste in South Africa; however, it can be accommodated within the definition of ‘waste’ in terms of the Waste Act. The draft NWMS refers to ewaste, stating that the DEA will “develop standards for the storage, treatment and disposal of electronic waste as part of the process to develop norms and standards in terms of section 7(1) (c) of the Waste Act.”
The European Union, on the other hand, has a directive on waste from electrical and electronic equipment, or WEEE, which provides for the creation of collection schemes and promotes recycling/reuse.
Hazardous waste is also neglected in the Act. Although it defines the term ‘hazardous waste,’ little, if any, detail can be obtained from the Act itself as to how different types of hazardous waste will be classified, says Young. To date, the minimum requirements for the handling, classification and disposal of hazardous waste has served as one of the guidelines in this regard.
However, it is likely that the latter will be replaced through the drafting of hazardous waste classification system regulations, in terms of Section 69 of the Waste Act, as well as the setting of national norms and standards for the classification of waste, he adds.
The DEA is in the process of finalising regulations for the management of hazardous and toxic waste, says Oelofse. However, currently, not every province in the country has hazardous waste management plans.
Chemical and Allied Industries Association executive director Dr Laurraine Lotter says the chemicals industry is complying well and has been working with government on the development of the regulations required to give practical effect to the management of hazardous waste.
Compliance and Enforcement
Modise says industries have generally welcomed the new legislation and have shown their willingness to work with government on improving the approaches and systems in a bid to comply. Self-regulation provided for by the Act has also been welcomed. Compliance with the Waste Act coincided with its date of commencement and there is no compliance window period, aside from provisions not yet in effect.
Oldacre says the uptake of the new legislation by industry has been slow, as prosecution is not yet a strength of the system. However, there is a move afoot for large commercial organisations, that may unwittingly be at risk, to gain an understanding of the legislation, to respond to it and to grow the market view of themselves as responsible corporate citizens and to avoid punitive penalties. He believes, over time, compliance will increase as the new Act is taken up and noncompliance risks become more stringent.
Venter agrees, saying once the regulations are promulgated, there will be considerable implementation frameworks/infrastructure required by both the private and public sectors to effectively implement the legis- lation.
Young says most reaction to the Act has centred around the possible implications of the contaminated land provisions, as a result of the potentially far-reaching effects for landowners, even in instances when the landowner was not the cause of the contamination. Whether there are sufficient supporting administrative structures to fully implement and monitor the entirely new concepts, including the contaminated land provisions when these come into effect, as well as the new and more complex definitions of waste, remains to be seen, he says.
The lack of resources and enforcement of environmental legislation, combined with the reality that relatively few environmental crimes are successfully prosecuted, has meant that companies have tended to disregard environmental legislation, says Diemont.
He says, although the recent legislative amendments have improved the toolkits of the Environmental Management Inspectors (EMIs), or the Green Scorpions, the implementation of the Waste Act has so far failed to effectively establish a framework within which government departments can achieve integrated waste management. Compliance and enforcement are managed by the EMIs appointed in terms of Nema.
EMIs have wide investigative powers and are empowered to fulfil their specific mandates using all the powers of a member of the South African Police Service who is not a commissioned officer, permitting them to conduct an inspection where there is reasonable suspicion of a criminal offence. Diemont says, because the Waste Act provides for many offences and imposes significant penalties, there is a strong emphasis on criminal sanction for the committing of environmental crimes. For this reason, the EMIs tend to focus on extracting fines after damage has been inflicted on the environment, rather than on monitoring ongoing compliance.
The final NWMS is expected to provide for the appointment of 800 EMIs, in all three spheres of government, who will be dedicated to deal specifically with Waste Act contraventions.
As such, is it possible that the enforcement of and compliance with new waste legislation will ever be comparable to and as stringent as that of the Competition Amendment Act No 1 of 2009? Unlikely. Young says the latter has dedicated administrative bodies (the Competition Commission and the Competition Tribunal), tasked with the enforcement of the Act’s provisions and granted wide powers of discretion to determine penalties for any breach of the provisions.
Unfortunately, the Waste Act does not provide for similar administrative entities and its enforcement will remain with the DEA, which is also responsible for overseeing the enforcement of most other environmental legislation in the country, while the prosecution of offenders will remain with the National Prosecuting Authority. It is therefore unlikely that there will be the same levels of stringent enforcement of the Waste Act, says Young.
However, Diemont says there are striking similarities in the approach taken in the enforcement of and compliance with the two Acts, such as the introduction of criminal liability for directors and the extraction of large fines. Increasingly, government is adopting an approach of forcing legislative compliance by using the threat of criminal sanction, he says.
Looming Threats to Companies
The list of potential offences for waste generators is extensive and the penalties are substantial, says Oelofse. Flouters of the Waste Act and related legislation, including directors, could face prosecution in the form of a monetary fine and/or imprisonment as well as the requirement of remediating the contaminated environment, says Venter.
For example, starting, undertaking or conducting a listed waste management activity without the required licence or failure to conduct a site assessment is subject to a maximum fine of R10-million and/or imprisonment for a period of up to ten years. A number of offences are similarly punishable.
Oldacre says a significant issue is that of unpermitted municipal landfill sites or dumps where there is contamination owing to historic waste management practices. In these cases, funding for remediation is a concern. A penalty may be imposed on a holder of waste who has not taken all reasonable measures within his or her power to ensure that waste is treated and disposed of in an environ- mentally sound manner.
The holder of waste will also be guilty of an offence for failing to take all reasonable measures to prevent any employee or any person under his or her supervision from contravening the Waste Act, adds Diemont.
He says, although not yet in force, the Waste Act provides for far-reaching provisions for contaminated land, which will have retrospective effect. In terms of these provisions, the DEA is empowered to identify land on which high-risk activities have taken place or which is believed to be contaminated as ‘investigation areas’. The owner or person who has undertaken or is undertaking the high-risk activity is then required to conduct a site assessment and compile a site assessment report. The DEA is further empowered to issue a remediation order, restricting the landowner from transferring the land without its permission.
The Act also introduces the concept of ‘extended producer liability’, where producers of identified products or classes of products will become responsible for the products they produce. Producers may be required to comply with waste-reduction programmes, carry out a life-cycle assessment of their product and may be subject to labelling, composition and packaging requirements, all of which could be onerous and costly to implement.
Further, the ‘polluter pays’ principle, which applies to the entire supply chain, is not yet adequately enforced, says Oelofse. Young says the creation of incentives to encourage the implementation of the Waste Act concepts of reuse, recycle and recover throughout the supply chain could possibly reduce the amount of waste being disposed of lawfully or unlawfully, where such waste has the potential to pollute the environment and cause harm to human health.
Section 38(4) of the Waste Act provides that, unless otherwise directed, a remediation order or an order to take measures must be complied with at the cost of the person to whom the order is issued. However, the Waste Act does not explain what will happen in a situation where the person to whom the order is issued is unable to comply with it, says Oldacre. Modise says the section in question is not yet in effect and the DEA is looking into this as well as other administrative matters required for the implementation of Part 8.
Penalties may be enforced in addition to any other penalty imposed or award made in terms of Nema. Further, a person who is convicted of an offence in terms of the Waste Act and who persists after the conviction in the act or is guilty of omission will be committing a continuing offence and may be liable to a fine not exceeding R1 000 and/or to imprisonment for a period not exceeding 20 days for each day such a person persists in that act or is guilty of omission, adds Diemont.
Meanwhile, Banking Association member banks will be including social and environ- mental risk in their assessment of loan applications, says Venter.
Oelofse says the new emphasis on reuse and recycling provides a host of opportunities for business, especially small entrepreneurs. Possibilities exist at the level of collection, sorting, processing and even technology innovation.
Oldacre suggests a profitable sector can be established through the recovery of metals from ewaste and cost saving opportunities in reduction, reuse, recycling and recovery of products throughout the value chain for industry. This new sector allows businesses to view their own service providers and their supply chain as an opportunity and to build procurement practices that benefit their empowerment processes.
Opportunities have also been provided through the need for more research and investigation into disposal methods, recycling and clean technologies, as well as corporate awareness and general public education, says Diemont.
Waste generators are advised to keep track of all the new developments under the new Waste Act and other requirements that may follow, says Oelofse. Young says all operations and industries should determine if the Act’s content (in particular the licensing requirements) is applicable to any of their day-to-day activities and, if so, to plan for and implement the necessary steps to align its operations, as well as seek further legal advice.
Diemont says many company directors are unaware of the fact that their businesses do not hold the required permits or licences and suggests conducting an audit to ensure compliance with environmental legislation. He says businesses are obligated, in terms of the Act, to avoid waste generation and, where it cannot be avoided, to reduce the toxicity and amount of waste generated. In the light of the general duty regarding waste management and disposal, and the potential sanctions faced by those who fail to take the requisite reasonable measures, businesses should re-evaluate their waste management practices.
The State of Waste
Like a curate’s egg, waste management in South Africa is partly good and partly bad, says Diemont. In the past, waste was mis- managed in the country and, owing to the diverse nature of waste streams, the promul-gation of the Waste Act has allowed the DEA to begin to “make sense” of waste flows so that it can make intelligent decisions around waste management, says Modise. He says the management of waste in the country is therefore improving, albeit slowly.
The DEA has commissioned a waste information baseline study, which seeks to determine the baseline for different waste categories and will provide a better view of the state of waste in the country, once completed before the end of 2012.
Waste management in South Africa is in a state of flux and, while the introduction of the Waste Act was an absolute necessity, it will take time for it to be fully implemented and to remedy the shortcomings of the ECA’s section 20, says Young.