Managing your waste to achieve legal compliance

Waste in South Africa is currently governed by means of a number of pieces of legislation. This can make understanding your responsibility as a generator, disposer, or transporter of waste challenging.

By Garyn Rapson & Lerato Molefi*

aste management

Wis complex and is embedded in various pieces of environmental legislation, including the National Environmental Management Act (No. 107 of 1998; NEMA), the National Environmental Management: Waste Act (No. 59 of 2008; the ‘Waste Act’), and the National Water Act (No. 36 of 1998; NWA).

Waste is defined in the law as any substance, material or object that is (or is intended to be) unwanted, rejected, abandoned, discarded or disposed of by the holder, whether it can be reused, recycled or recovered, and includes all wastes as defined in the Waste Act.

However, waste ceases to be waste in these cases: • once an application for its reuse, recycling or recovery has been approved or, after such approval, once it is, or has been, reused, recycled or recovered • where approval is not required, once a waste is, or has been, reused, recycled or recovered • where the Minister of Forestry, Fisheries and the Environment (‘the Minister’) has exempted any waste, or a portion of waste generated by a particular process from the definition of waste • where the Minister has excluded any waste stream or a portion of a waste stream from the definition of waste. A key legal principle of waste management is the ‘cradle to grave’ principle, the effect of which is that the generator of waste bears responsibility for the environmental, health and safety consequences of its waste throughout its life cycle – i.e. from generation to disposal.

It is worthy to note that the Waste Act defines a ‘holder of waste’ as any person who imports, generates, stores, accumulates, transports, processes, treats, exports, or disposes of waste.

Therefore, companies that generate waste and temporarily store it, as well as companies contracted to transport, treat and/or dispose of such waste, i.e. waste management contractors, are classified as ‘holders of waste’ in terms of the Waste Act.

Understanding the definition of a holder of waste plays an important role in understanding how responsibility is divided between the generator of waste and the disposer/transporter of that waste, as well as compliance necessary for both parties.

To assist with legal compliance, we have produced the checklist table to the right.

*Garyn Rapson and Lerato Molefi are both environmental law experts at Webber Wentzel.

COMPLIANCE

The classification and assessment of waste is regulated by the Waste Act and, as such, compliance with the Waste Classification and Management Regulations GNR735 of GG 36784 of 23 August 2013 and the National Norms and Standard for Assessment of Waste for Landfill Disposal – GNR 635 of GG 36784 of 23 August 2013.

All waste must be classified under these laws.

WASTE MANAGEMENT LICENCES

Section 19 of the Waste Act provides that no person may commence, undertake or conduct a waste management activity without a waste management licence issued in respect of that activity. A list of waste management activities has been published in terms of Government Notice 718 of 3 July 2009 – these include Category A and Category B activities. Should a generator of waste and a company contracted to manage, treat and/or dispose of that waste trigger any of the listed waste management activities, the necessary waste management licences must be obtained by the respective parties. STORAGE OF WASTE In terms of section 21 of the Waste Act, a person storing waste must at least take steps to ensure that: • 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 • adequate 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 • pollution of the environment and harm to health are prevented. The person storing waste will also need to comply with the provisions of the National Norms and Standards for the Storage of Waste (GNR 926 of GG 37088 of 29 November 2013) and the Regulations Regarding National Norms and Standards for the Sorting, Shredding, Grinding, Crushing, Screening or Bailing of General Waste (GNR 1093 GG 41175 of 11 October 2017), if applicable. REMOVAL OF WASTE In terms of section 24 of the Waste Act, no person may collect waste for removal from premises unless such person is: • a municipality or municipal service provider • authorised by law to collect that waste, where authorisation is required • not prohibited from collecting that waste. Holders of waste must be appropriately authorised to collect and remove waste. Registration is typically required for these activities in terms of local by-laws. TRANSPORT OF WASTE Transporters of waste for gain may be required to register with the relevant waste management officer in the Department of Forestry, Fisheries and the Environment (DFFE), province or municipality as applicable and to furnish such information as may be required. Transporters must also take all reasonable steps to prevent any spillage of waste or littering from a vehicle used to transport waste. Transporters of waste must be authorised to transport waste. Registration is again typically required in terms of local by-laws. In addition, transporters of waste must comply with Chapter 8 of the National Road Traffic Act (No. 93 of 1996), which sets out very specific obligations on the transportation of dangerous goods. DISPOSAL OF WASTE Transporters of waste must, before offloading, ensure that the facility to which the waste is being transported is authorised to accept the waste. When hazardous waste is being transported, the transporter must ensure that the facility or place to which the waste is transported is authorised to accept such waste and must obtain written confirmation that the waste has been accepted. Section 26 goes on to provide that no person may dispose of waste, or knowingly or negligently cause or permit waste to be disposed of, in or on any land, waterbody or at any facility, unless the disposal of that waste is authorised by law. Regulation 15 of the Hazardous Chemical Substances Regulations (GNR 1179 of 25 August 1995), as published in terms of the Occupational Health and Safety Act (No. 85 of 1993), also provides that an employer shall as far as is reasonably practicable ensure that hazardous chemical substance wastes that can cause exposure are disposed of only on sites specifically designated for this purpose in terms of the Waste Act, in such a manner that it does not cause a hazard inside or outside the site concerned. It is crucial that holders of waste who have contracted the services of a transporter of waste ensure that such transporter is disposing of its waste on landfills that are appropriately authorised to accept the waste. This is a vital in terms of complying with the cradle-to-grave principle of environmental law. POLLUTION Section 26 of the Waste Act provides that no person may dispose of waste in a manner that is likely to cause pollution of the environment or harm to health and well-being. A key environmental principle commonly referred to as the ‘polluter pays’ principle is encapsulated in the NEMA, which says: “The costs of remedying pollution, environmental degradation and consequent adverse health effects and of preventing, controlling or minimising further pollution, environmental damage or adverse health effects must be paid for by those responsible for harming the environment.” This polluter-pays principle is incorporated in the NWA by section 19 and is fleshed out in section 28 of the NEMA, which places a duty of care on every person who causes, has caused, or may cause significant pollution or degradation of the environment to take responsible measures to prevent such pollution or degradation from occurring, continuing or recurring. The reference to a person generally refers to the owner of the land or premises, a person in control of land or premises, or a person who has a right to use the land or premises on which or in which an activity is performed or a situation exists that causes, has caused, or is likely to cause the pollution or degradation. Such persons will generally be held liable for the costs of remedying the pollution or degradation caused to the environment. WASTE INFORMATION Sections 60 to 64 of the Waste Act provide that the Minister must establish and incrementally implement a national waste information system for the recording, collection, management and analysis of data and information. Provincial waste information systems may also be established. Any person may be required, by notice in the Government Gazette or in writing, to provide within a reasonable time or on a regular basis, any data, information, documents, samples or materials that are reasonably required for the purposes of the waste information systems. The National Waste Information Regulations GNR 625 GG 35583 of 13 August 2012 came into force on 1 January 2013. The purpose of the regulations is to regulate the collection of data and information to fulfil the objectives of the national waste information system. Regulation 5 requires any person conducting an existing activity listed in Annexure 1 to apply to the DFFE to be registered on the South African Waste Information System (www.sawic.org.za) within 90 days of the promulgation of the regulations (i.e. by 1 April 2013) or within 30 days of commencing such an activity after the regulations come into force. Different activities must be registered individually. Once registered, quarterly reports must be submitted in terms of regulation 8 and appropriate records must be kept in terms of regulation 9 for five years.