5.1.1 The role of the state

5.1.1(1)
The state is comprised of three spheres of government, namely national, provincial and local government, and organs of state, including parastatals and agencies, the executive and the legislature.  The three distinct roles of the state are:

• Policy making functions that encompass the establishment of norms, standards and targets, the system of planning for service expansion and improvement, as well as coordination and policy development activities.
• Regulation, which includes the preparation of regulations, listing and licensing of waste management activities, compliance and enforcement, and declaration of priority wastes.
• Waste service delivery, including the collection, transport and disposal of domestic waste, which is a municipal function.

5.1.1(2)
As a principle of good governance, there should be separation of the regulatory role, particularly in terms compliance monitoring and enforcement, from the policy-making and service-provision roles. This is particularly important in instances where a department is responsible both for the delivery of waste management services and the overall regulation of the waste management sector.

5.1.1(3)
The application of norms and standards, and the regulation of waste management activities, needs to be applied across both public and private sector providers equitably. Without clear role separation, it will not be possible to ensure unfettered and meaningful regulation of waste management activities.

5.1.2 Vertical division of responsibilities

5.1.2(1)
Informed by the Constitutional assignment of powers and functions to the different spheres of government, the Waste Act assigns clear responsibilities to each sphere of government in relation to waste management activities.

5.1.2(2)
Local government is responsible for the provision of waste management services, which includes waste removal, waste storage and waste disposal services, as per Schedule 5b of the Constitution. Municipalities are obliged to designate a waste management officer from their administration to co-ordinate matters pertaining to waste management. They must also submit an integrated waste management (IWMP) plan to the MEC for approval.  The IWMP needs to be integrated into municipal integrated development plans (IDP), and the municipal annual performance report must include information on the implementation of the IWMP.

5.1.2(3)
At their discretion, municipalities may set local waste service standards for waste separation, compacting of waste, management and disposal of solid waste, amongst others. Local standards must be aligned with any provincial and national norms and standards where these exist. In particular, where municipal by-laws on waste disposal exist, these must be aligned with Chapter 4 Part 6 of the Waste Act as described in Section 3.9 of the strategy. Municipalities may also require transporters of waste to register on a list of waste transporters.

5.1.2(4)
Provincial government is obliged to promote and ensure the implementation of the NWMS and national norms and standards. Similarly to local government, it must designate a provincial waste management officer responsible for co-ordinating matters pertaining to waste management in the province. It must also prepare an IWMP and prepare an annual performance report on its implementation, both of which must be submitted to the Minister for approval. The provincial government is also deemed the primary licensing authority for waste activities for which the Minister is not deemed the licensing authority. Provinces have a number of discretionary powers, some of which may only be exercised in consultation with the Minister. These powers include:

• The setting of provincial norms and standards.
• Declaring a priority waste.
• Listing waste management activities.
• Registering waste transporters.
• Requesting the preparation of industry waste management plans.
• Identification of contaminated land.
• Establishing a provincial waste information system.

5.1.2(5)
To provide a nationally harmonised regulatory environment for waste management, the provinces should only exercise these discretionary powers where clear and compelling reasons exist to do so, and should do so in consultation with DEA.

5.1.2(6)
National government and in particular DEA is ultimately responsible for ensuring that the Waste Act is implemented and that the various provisions are harnessed in the most appropriate and effective way. The Waste Act specifies various mandatory and discretionary provisions that DEA is required to address.

5.1.2(7)
In terms of mandatory provisions, DEA is responsible for:

• Establishing the National Waste Management Strategy.
• Setting national norms and standards.
• Establishing and maintaining a National Contaminated Land Register.
• Establishing and maintaining a National Waste Information System.
• Preparing and implementing a National Integrated Waste Management Plan.

5.1.2(8)
The Minister is the licensing authority with respect to hazardous waste, international obligations, activities performed by a provincial environmental authority or statutory body other than a municipality, or an activity that takes place in more than one authority or transverses international boundaries. The Minister must designate a waste management officer from the DEA administration to co-ordinate matters pertaining to waste management.

5.1.2(9)
DEA has numerous discretionary responsibilities that it may invoke if required. These include:

• Developing national norms and standards for waste minimisation, re-use, recycling and waste recovery.
• Setting standards for waste tariffs.
• Declaring priority wastes.
• Identifying products for the application of extended producer responsibility.
• The listing of waste management activities.
• Requesting the preparation of industry waste management plans.
• Registration of transporters of waste.
• Identifying land that may be contaminated for investigation.

5.1.2(10)
The above summaries provide an overview of the main responsibilities directly provided for in the Waste Act.  It is evident that the allocated roles and responsibilities need to be seen as elements within an integrated system, with a cascading of roles according to the level at which they are most logically performed.

5.1.3 Concomitant responsibilities

5.1.3(1)
There are several areas of concomitant or shared responsibility between the different spheres of government. The mandatory and discretionary responsibilities are set out in the following tables:

 5.1.3(2)
 

5.1.3(3)
The exercising of these concomitant powers will be addressed within the cooperative governance mechanisms described in Sections 5.2 and 5.8.

5.1.4 Horizontal assignment of responsibilities

5.1.4(1)
In considering the horizontal assignment of roles, it is important to understand how the provisions of the Waste Act interface with and build on the regulatory provisions of other pieces of related legislation. This policy harmonisation exercise also needs to draw on the Inter-governmental Relations Framework.

5.1.4(2)
Department of Trade and Industry: the dti has a crucial role to play in relation to the overall system of industry regulation, and the utilisation of various mechanisms and capacities within the dti for implementing the Waste Act. The implementation of the system of norms and standards will require the support of the Technical Infrastructure under the dti, as described in Section 3.2. This system will be used to determine standards for products in relation to packaging and recycling as well as the provision of waste services, and ensure their measurement and certification. In order to achieve this, the waste management sector will need to be identified as a lead sector by the dti.

5.1.4(3)
Other issues that require the involvement of the dti include the declaration of priority wastes and implementation of EPR schemes; the implications of the Consumer Protection Act for waste management; the promotion of recycling schemes and the implications of competition policy for the provision and sub-contracting of waste services by municipalities.

5.1.4(4)
National Treasury: The National Treasury has a crucial role to play in managing the overall system of taxation, and in implementing taxation measures that support the goals and objectives of the NWMS. National Treasury must also be consulted where the economic implications of measures with respect to a priority waste are potentially significant. National Treasury plays an important role in determining budget allocations for waste management functions at national level, and in addressing the fiscal mechanisms required for implementation of waste services and accessing of grants.

5.1.4(5)
South African Revenue Services: In terms of the prohibition and restrictions on the import, export and selling of priority wastes, it is important that declarations of priority wastes are aligned with the product codes maintained by SARS in the Schedules to the Customs and Excise Acts.

5.1.4(6)
Department of Co-operative Governance and Traditional Affairs: National and provincial government must provide support to municipalities with respect to their executive responsibilities, including delivery of services.  This support needs to be co-ordinated with the Department of Co-operative Governance and Traditional Affairs.  The Department also has an important role to play in ensuring that the Municipal Infrastructure Grant can be accessed for the development and upgrading of municipal landfill sites, many of which are not compliant or unlicensed. The Department must provide guidance and oversight to municipalities and the provinces with respect to the incorporation of Integrated Waste Management Plans into Integrated Development Plans.

5.1.4(7)
Department of Water Affairs:  There are three important areas that require the input and co-operation from the Department of Water Affairs, as they form concurrent mandates, namely:

• Integrated waste disposal licenses that include water use licenses.
• Contaminated land and its remediation.
• The management and disposal of sewage sludge emanating from wastewater treatment facilities.

5.1.4(8)
Other government departments that have important role to play in implementing the NWMS include:

• The Department of International Relations, which must lead South Africa’s engagement in multilateral forums that address sustainable development and waste management issues.
• The Department of Mineral Resources plays a key role in regulating waste management in the mining sector, which includes addressing waste management issues in relation to residue deposits and stockpiles which fall outside the ambit of the Waste Act, and the remediation of land contaminated by mining activities.
• The Department of Health has an important role to play in addressing health care risk waste and in advising DEA and provincial departments on the appropriate standards and measures to be applied to the sector.

5.1.5 The role of industry

5.1.5(1)
With respect to industry, the NWMS envisages an important role for industry within a co-regulatory approach to achieving the objectives of the Act. The primary instrument for achieving this vision is the Industry Waste Management Plan. Private sector representative bodies have an important role to play in ensuring that the provisions of the Act are understood, implemented, and complied with by business and industry. The uptake of cleaner technology practices will also be a necessary step in the process of achieving waste minimisation.

5.1.5(2)
Private service providers play key roles in all stages of waste management, including in waste service delivery. An expansion of waste services to unserviced communities will require municipalities to explore alternative service delivery mechanisms, including public private partnerships, and the private sector is encouraged to actively engage in making universal service provision a reality. The private sector should also respond creatively to new technologies in the fields of waste to energy conversion and hazardous waste disposal, and establish capacity in these areas as technologies become commercially viable.

5.1.6 The role of civil society

5.1.6(1)
NGOs, non-profit organisations, community based organisations, cooperatives and trade unions play important roles in all phases of the waste hierarchy, including in recycling initiatives and delivery of waste management services. A number of the interventions proposed in this strategy will aim to reinforce the work of non-profit organisations within their sectors. Civil society formations are encouraged to continue to engage with the regulatory authorities in the various public participation processes that are embarked upon in the development and implementation of the provisions of the Act. Furthermore, the role of citizen oversight, particularly in relation to the delivery of waste services, should be factored into the design of the provision of these services. As discussed in S5.6, education, advocacy and awareness-raising initiatives are required to ensure that civil society fulfils this role effectively.

5.2.1 Relationship between WMOs and EMIs

5.2.1(1)
The Environmental Management Inspectorate (EMI), which is described in greater detail in Section 5.4, is responsible for compliance and enforcement of the provisions of the Waste Act. As part of their regulatory function, the WMOs have an important role to play in supporting the EMIs with compliance monitoring, which will require a close working relationship between the WMOs and the Environmental Management Inspectorate (EMI). The greater the co-operation between the WMO and the EMI, the more effective the execution of the compliance monitoring function will be.

5.2.1(2)
Currently the EMI operates primarily on the basis of reactive and strategic compliance monitoring, with proactive monitoring of secondary importance.  In terms of the reactive monitoring, the EMIs will inform the WMOs of reactive monitoring initiatives to assist the WMOs in identifying areas of non-compliance and as a means of developing longer term support interventions, which will include brokering relationships with affected parties and finding consensual ways of addressing non-compliance.

5.2.1(2)
Cooperation with the WMOs will free up resources in the EMI to support more proactive compliance monitoring. The WMOs will also provide guidance to the EMI to assist it in identifying priorities for strategic monitoring of activities that present a significant threat to health and the environment. A further area of co-operation is in the preparation of Waste Impact reports, provided for in terms of Section 66 of the Waste Act. Under certain circumstances, both can request a waste impact report and it is recommended that this be done in consultation and co-operation with each other.
 

5.4.1 Environmental Management Inspectorate

5.4.1(1)
The primary arrangements for compliance monitoring and enforcement of environmental legislation such as the Waste Act are provided by an amendment to the National Environmental Management Act, 107 of 1998 (NEMA), which came into effect on 1 May 2005. Chapter 7 of NEMA provides for Environmental Management Inspectors (EMIs) to be designated by the Minister and MECs.

5.4.1(2)
Since EMIs are situated at all three levels of government, the Department has drawn up a guideline to assist in the determination of the compliance monitoring and enforcement roles and responsibilities as set out in the Act. The Environmental Management Inspectorate is not a single enforcement unit and the national inspectorate has no power over provincial and local inspectors. Consequently a code of conduct harmonising their actions and approaches to compliance monitoring and enforcement has been prepared by DEA.

5.4.1(3)
There are several key principles that have been used to inform the allocation of responsibilities.  A primary principle is that an institution cannot police itself.  Other principles include:

• Where the Minister, in terms of the Act, exercises powers to issue orders and conditions, to require information and plans or to make requests, then the national department will undertake the compliance and enforcement activities.
• Where the MEC, in terms of the Act, exercises powers to issue orders and set conditions, to request information and plans, then the provincial department will undertake the compliance and enforcement activities.
• In circumstances where the Act regulates or controls issues that are typically covered by local by-laws and that fall within the competence of local government (e.g. public nuisance/cleansing), these issues will be dealt with by local government.
• Where there are international implications (e.g. transboundary movement of waste) or where a matter traverses provincial/national boundaries, then the national department will be responsible for compliance and enforcement activities.

5.4.1(4)
In relation to compliance and enforcement activities relating to licensing of waste management activities (section 43), the following is the general principle:

• The national department has jurisdiction with respect to hazardous waste facilities.
• The provincial departments have jurisdiction with respect to general waste facilities.

5.4.1(5)
However, where a province has been given the authority to license hazardous waste management facilities, then the provincial authority will assume compliance monitoring and enforcement responsibilities associated with such a licensing function.

5.4.1(6)
The following identifies the roles of the EMIs at each sphere of government:

1. Local EMIs will work in conjunction with provincial and national EMIs to execute compliance activities in respect to waste management licenses (reacting to complaints and conducting routine inspections). In accordance with the principal that an institution cannot police itself, local EMIs are not expected to monitor the municipalities’ compliance.
2. Provincial EMIs will monitor compliance with licenses for which the MEC is the licensing authority.  This will include monitoring compliance by municipalities. It may delegate monitoring activities to EMIs in municipality in which an illegal activity is taking place by a non-municipal entity and monitor compliance with the implementation of the IWMP.
3. National EMIs will monitor compliance with licenses for which the Minister is the licensing authority. This will include monitoring compliance by the province with the provisions of the Act. It may also delegate monitoring activities to EMIs in a province in which an illegal activity is taking place and monitor compliance with the implementation of the provincial IWMP.

5.4(7)
A Memorandum of Understanding will be developed between DEA and Provinces, and between Provinces and the respective municipalities to enable a co-operative working relationship and to facilitate the delegation of compliance monitoring activities from one sphere to another.

5.4.2 Compliance monitoring

5.4.2(1)
The monitoring of compliance with the provisions of the Waste Act, authorisations issued in terms of the Act and other environmental legislation forms the foundation of the system of compliance and enforcement. While EMIs are the primary agents responsible for compliance, the gathering of intelligence relating to non-compliance is the responsibility of all agencies involved in implementation of the Waste Act. The Act does provide specific reporting tools to facilitate monitoring of compliance.

5.4.2(2)
Compliance monitoring will be undertaken on both a reactive and proactive basis. Proactive compliance inspections, also known as strategic compliance and enforcement inspections, involve the prioritization of sites for inspection and physical inspections involving multi-disciplinary task teams. These will be informed by routine inspections and information derived from the reporting mechanisms described above. Reactive compliance inspections and investigations are triggered by reporting of a contravention of the Act.

5.4.2(3)
Information for compliance monitoring will come from the following reporting mechanisms:

1. Annual Performance Reports from each sphere of government, documenting the extent of the implementation of the IWMPs in each financial year. These reports must spell out the level of compliance with the plan and measures taken to secure compliance with waste management standards, and waste management monitoring activities. Furthermore, provinces must report on the extent to which municipalities have complied with the provincial IWMP and the reasons for non-compliance.
2. Reports on implementation of Industry Waste Management Plans as provided by section 30(2)(k) of the Waste Act. The Act provides for the appointment of an independent assessor to verify the achievement of an IndWMP on an annual basis.
3. Reports on compliance with the conditions of waste management licenses in terms of section 51(1)(k) of the Waste Act, including annual compliance reports prepared by independent SANAS-accredited assessors.
4. Annual compliance reports prepared by independent SANAS-accredited assessors on adherence to the norms and standards for activities listed in terms of section 19(3) of the Waste Act, that have been defined as acceptable use and which do not require a license.
5. Information from SAWIS, including information on any failure to fulfil SAWIS reporting requirements to SAWIS.
6. A national waste hotline will be established and promoted. It will be accessible by telephone, via the Internet and by email, and will be available to the general public to report possible illegal and environmentally damaging waste activities. The hotline will be managed by the EMI, and will supplement and reinforce reporting mechanisms available to the public at municipal level and provincial level. Where appropriate, the hotline will take into account the “whistleblower” provisions in NEMA described in Section 3.9 of the NWMS.

5.4.2(4)
Furthermore, waste management officers are empowered to appoint waste management control officers to ensure compliance with licensing terms and conditions and reporting non-compliance. The Act specifies that the “nature and size” of the waste management activity should determine whether a waste management control officer is required. In terms of the nature of the activity, it is in the public’s interest that waste management activities that involve hazardous waste on any significant scale be carefully monitored, and this would relate to most, if not all, licences issued in terms of Category B listed activities and to all facilities that deal with priority wastes.

5.4.3 Addressing non-compliance

5.4.3(1)
When a possible contravention is identified, a waste impact report may be requested. Waste impact reports are a discretionary reporting instrument provided for by section 66 of the Act. Either an EMI or a WMO may request a waste impact report where there is a suspected contravention of the Act, license conditions, or exemption conditions that are likely to be detrimental to health or the environment. The findings of the waste impact report may trigger an enforcement procedure to correct the illegal activity. An enforcement procedure may also be triggered by the findings of the compliance monitoring activities described above, without a waste impact report.

5.4.3(2)
In the event that a contravention is suspected, the enforcement procedure is initiated by the compilation of an audit, which is based on the conditions of the license, NEMA section 28 (duty of care) and NEMA section 30. A waste impact report may fulfil the function of this audit. The procedure followed once a problem has been confirmed by the waste impact report differs for organs of state and the private sector.

5.4.3(3)
In the case of the private sector, once the audit report has been compiled and submitted to the offending party, the latter has 30 days in which to respond verbally. Thereafter an enforcement strategy is prepared, which may either follow a criminal route, or require the preparation of a pre-directive followed by a directive.  If the directive is not complied with, the matter becomes a criminal one.

5.4.3(4)
In the absence of aggravating factors such as clear evidence of bad faith on the part of the offending party, the preferred route is always to achieve compliance rather than pursue prosecution.

5.4.3(5)
Directives take the form of a compliance notice that is issued by the relevant EMI, which has to be done in writing in accordance with a prescribed procedure. NEMA Chapter 7 makes it a criminal offence to fail to comply with a compliance notice.

5.4.3(6)
If a person fails to comply with a compliance notice issued by an EMI, the Minister or relevant MEC may revoke or change that person’s license, take the necessary remedial steps and recover the costs from the offender, and refer the matter to the National Prosecuting Authority for prosecution.

5.4.3(7)
In addition, NEMA Chapter 7 provides that all offences under NEMA or any specific environmental management act are now Schedule 1 offences under the Criminal Procedure Act, 55 of 1977.

5.4.3(8)
The court convicting a person of an offence in terms of NEMA or the Waste Act can withdraw any license or authorisation under NEMA or the Waste Act if the rights under that license have been abused. The courts can also disqualify that person from obtaining a license or other authorisation for up to five years, and notify all other licensing authorities of this disqualification.

5.4.3(9)
With respect to non-compliance by organs of state, the Constitutional provisions for cooperative governance require that every reasonable effort must be made to settle a dispute and all remedies to be applied before a matter is taken to court for resolution. The Constitution also governs the ability of a sphere of government to interfere in the affairs of another sphere of government. A Standard Operating Procedure has been developed consisting of an eleven step process that will eventually culminate in prosecution if the offending practice is not averted. The procedure also allows for the development of an action plan to address the illegal practice.

5.5.1 The Basel Convention

5.5.1(1)
As stated in Section 1.4, while South Africa has given effect to the provisions of the Basel Convention, there is currently no legal framework for implementing the Convention. DEA is however, developing MOUs with the International Trade Administration Commission (ITAC) and the South African Revenue Service (SARS) which effectively address the provisions of the Basel Convention.

5.5.1(2)
DEA is considering accession to the amendments to the Basel Convention which provide for absolute bans on the import and export of hazardous wastes. DEA is also currently developing a policy on imports and exports which will go some way to address this.

5.5.1(3)
Together with the chemical conventions, the import and export control aspects of the convention are being addressed jointly by DEA and the dti through the issuing of permits via ITAC and the use of SARS tariff codes.

5.5.2 The Montreal Protocol

5.5.2(1)
Although this convention does not deal specifically with waste management, the Waste Act will be used to declare chemicals controlled under the convention as priority wastes for ease of control.  A National Implementation Plan has been under development for some time and DEA will expedite the finalisation and publication of this plan.  DEA will also prepare a phase out plan for substances controlled under this protocol.

5.5.3 The Rotterdam Convention

5.5.3(1)
Although this convention explicitly excludes waste, implementation of the convention may lead to the banning of listed chemicals, some of which may be included in stockpiles of obsolete pesticides that have been identified as a major waste management challenge.  The provisions of the Act for regulation in relation to the import and export of priority wastes clearly provide a potential mechanism for the implementation of the Rotterdam Act, as do the provisions for extended producer responsibility.

5.5.3(2)
DEA has prepared an internal action plan for the implementation of this Convention, which will be reviewed, updated in the light of the mechanisms set out in the Waste Act, and published for public comment.

5.5.4 The Stockholm Convention

5.5.4(1)
Although this convention does not deal specifically with waste management, it is likely that some of the chemicals controlled under this convention will be declared as priority wastes in order to assist with their control and phase out. A National Implementation Plan has been under development for some time and DEA with review and finalise this in the light of the recently promulgated Waste Act.

5.5.5 Various conventions dealing with dumping of waste at sea

5.5.5(1)
Despite decades of regulation at the IMO and elsewhere, and the prohibition of the discharge and dumping of nearly all shipping waste streams, such wastes routinely find their way into the sea with little evidence that these discharges are diminishing. As indicated in Section 1.4, the disincentive to use the Port Reception Facilities (PRF) can be removed by incorporating the cost of PRF use into the general harbour dues which all ships pay. Such an approach is generally known as a “no-special-fee” system, and is already in place in other seas. Accordingly the Department of Transport, in conjunction with DEA, will investigate and implement a “no-special-fee” system in all South African ports, and actively promote this as a standard international requirement.

5.5.6 Strategic Approach to International Management of Chemicals

5.5.6(1)
At the first review of the SAICM there was a strong focus on Extended Producer Responsibility issues, particularly with respect to nano-technology, chemicals in products, lead in paint, and hazardous chemicals arising from e-Waste. South Africa is often on the receiving end of sales or “donations” of electronic goods nearing the end of their productive life-cycle, which is tantamount to the import of e-Waste. This represents a dual challenge, both in terms of regulation of imports, and developing local processing capacity for e-Waste. The SAICM is considering the possibility of amending the Basel Convention to take cognisance of the situation with respect to the export of used electronic products to developing countries that do not have the technical capacity to safely process the e-Waste that inevitably results.

5.5.7 Coordination mechanisms

5.5.7(1)
DEA and the dti have established the Interdepartmental Committee for the Sound Management of Chemicals to coordinate the implementation of national legislation and action plans for chemicals management that are aligned with international agreements and instruments. This committee integrates previously separate structures for coordination of activities relating to the Rotterdam Convention (the Chemical Review Committee) and the Stockholm Convention (POCROC).

5.5.7(2)
The committee is comprised of the representatives from all affected government departments, including the SABS, ITAC, South African National Defence Force (SANDF), and South African Police Service (SAPS). The committee also convenes a multi-stakeholder forum that includes representatives from provincial and local government, labour, business, civil society, and academic and research institutions.

5.5.7(3)
The work programme for the Interdepartmental Committee includes formulation of recommendations on whether to accede to international agreements, and advice on programmes of action with respect to agreements to which South Africa has already acceded, including proposals regarding the drafting of the necessary regulations.

5.5.8 Import and export control

5.5.8(1)
The systems for controlling the import and export of chemicals and hazardous waste have now been integrated with the provisions of the International Trade Administration Act (Act 71 of 2003) which makes provision for control, through a permit system, of the import and export of goods specified by regulation. The system falls under a directorate in the dti - ITAC, the primary function of which is the administration of the provisions of the International Trade Administration Act.

5.5.8(2)
The control of imports is done in terms of regulations issued by the Minister of Trade and Industry, who can either ban the import of goods of a specified class or kind, or require that they must adhere to the conditions stated in a permit issued by the Commission. DEA is required to identify the relevant tariff codes and associated restrictions required for chemicals and other products, which are submitted to the dti and promulgated by the Minister of Trade of Industry in terms of regulations issued under the International Trade Administration Act. The tariff codes are in turn utilised by the Customs and Excise division of SARS, which automatically acts in terms of the prohibitions or restrictions associated with a particular tariff code.

5.5.8(3)
In order to assist both DEA and the dti with the administration of this system, it is important that the relevant Multilateral Export Agreement (MEA) Convention secretariats assist member countries with identifying the relevant tariff codes, which are used internationally. This alignment of mechanisms for import and export control with the MEAs is one of the central mechanisms to give effect to our international obligations.

5.7.1 Common challenges across all spheres of government

5.7.1(1)
Integrated Waste Management Planning: The Act has established an integrated waste management planning system, which requires the preparation and implementation of integrated waste management plans at all three spheres of government. Capacity will be required in all three spheres to ensure that this interlocking system of integrated waste management planning is effective, and in particular at local level, since this is where the concrete plans and targets for waste service provision will be set.

5.7.1(2)
Monitoring capacity and enforcement: Capacity amongst EMIs is required both in numbers and areas of specialisation. It is estimated that approximately 800 additional EMIs are required to fulfil the compliance monitoring and enforcement of the Waste Act.  Two-thirds of these EMIs will be located at local government level, averaging out to two EMIs per municipality.  These EMIs will also need to receive specialised training in the Waste Act. Whilst it would be ideal if they only focused on the Waste Act, in practice they will likely fulfil broader environmental compliance monitoring functions.  The required modules will be developed and offered at accredited institutions that have a Memorandum of Understanding with DEA.

5.7.2 National government

The main capacity challenges for the Department of Environmental Affairs are in the following areas:

5.7.2(1)
Norms and standards: Capacity is required to develop both discretionary and mandatory norms and standards.  Specialist capacity will be built within the Department to develop and process standards, as these are a critical element of achieving the objectives of the Act. A dedicated unit including technical experts such as process and chemical engineers and legal drafters will be established.

5.7.2(2)
Licensing: The Department requires capacity to process licenses for activities where the Minister is the licensing authority. The most critical function to be performed is the environmental impact assessments, and review of the work conducted by external experts. The full assessment procedure specified for Category B license applications is a technically demanding process that already requires the appointment of an independent Environmental Assessment Practitioner (EAP). Currently, an effort is underway to set standards for EAPs and a Certification Board for Environmental Assessment Practitioners in South Africa has been established. The Board’s certification criteria include both academic qualifications and professional experience and take into account ethics and values.

5.7.2(3)
Contaminated Land and Remediation: This is one of the most significant new areas of regulation in terms of the Waste Act. It requires that a register of contaminated lands be established, with accompanying provisions to remediate, and it is retroactive in that it applies to land that was contaminated prior to the promulgation of the Act, or which experiences contamination now as a result of activities that took place prior to the Act’s promulgation. A new division is required with technical capacity to administer the system as described in Section 2.7 of the strategy.

5.7.2(4)
Waste management measures in relation to industry: The Act provides several waste management measures directed at industry, which includes norms and standards, industry waste management plans, Extended Producer Responsibility, and declaration of priority wastes. Capacity is required at national level to develop a sound understanding of industry waste management, and develop working relations with industry players, as this is critical to achieving the consensual, co-regulatory approach to waste management activities.

5.7.2(5)
Information management: The Department is the custodian of waste and waste management information, and a dedicated capacity for ensuring that appropriate information is collected, analysed and disseminated to support decision-making is required.

5.7.3 Provincial capacity

5.7.3(1)
The two biggest challenges for provincial environmental authorities are the licensing of waste management activities that are not the responsibility of the National Department and its involvement in integrated waste management planning.

5.7.3(2)
Provinces have a number of concomitant and discretionary powers and thus the provincial challenges will be largely influenced by which of these they choose to exercise. This will be done in conjunction with the national department and appropriate capacity initiatives will be developed through the intergovernmental coordination structures described in Section 5.8.

5.7.4 Municipal capacity

5.7.4(1)
Municipal capacity for the sustainable provision of waste management services and proactive planning and management of landfill disposal is the single greatest capacity challenge. The following areas will require specific attention as part of a country wide capacity building programme for local government around waste management:

• Planning capacity to prepare Integrated Waste Management Plans and to coherently plan for appropriate levels of service, the extension of services, and the planning and management of landfills.
• Engineering and contracts management capacity for the actual delivery of waste services, either through internal mechanisms or through contracting private waste service providers.
• Engineering and planning capacity to promote waste separation, collect recycled materials, and establish and operate MRFs.
• Financial management and administrative capacity to undertake full cost accounting, ring fence waste service budgets, establish and implement cost reflective and volumetric tariffs, and implement the free basic services policy through targeting subsidies to the indigent.
• Financial planning and infrastructure modelling capacity to undertake capital expenditure planning for waste services.
• Engineering and project management capacity to ensure proper landfill management, permitting of landfills, and preparation of proposals for MIG funding.
• Compliance monitoring and enforcement capacity to deal with situations of illegal dumping and non-compliance with Waste Act provisions.
• Communications and stakeholder management capacity to effectively communicate with communities regarding the importance of proper waste management practices.

5.7.4(2)
A nationally coordinated local government capacity building programme for waste management will aim to address the above challenges. The programme will be developed jointly between DEA, provinces and SALGA, and will be aligned with the overall strategic framework for local government capacity building that is being driven by COGTA. The programme will consist of various elements, including national policy guidance on systems and procedures, training and information programmes for officials and councillors, expert advice and placement for limited periods, and capacity building grants to support local initiatives. The programme will be finalised during 2010, and will be implemented at scale from the beginning of 2011.

5.8.1 Existing mechanisms to facilitate co-operative governance

5.8.1(1)
The existing intergovernmental systems for coordinating environmental management provide the basis for cooperative governance in relation to waste management. These structures consist of the following:

• MINMEC: Environment is a standing intergovernmental body consisting of the Minister of Environmental Affairs, members of the provincial Executive Councils (MECs) responsible for environmental management functions and SALGA. MINMEC meets quarterly.
• MINTEC: Environment is a standing intergovernmental body that provides technical input into the MINMEC. The MINTEC consists of the Director-General of the DEA, the heads of the provincial departments responsible for environmental management functions, and SALGA. MINTEC also meets quarterly.
• Committee for Environmental Co-ordination was established in terms of Section 7 of the NEMA.  The object of the Committee is to promote the integration of environmental functions of the relevant organs of state, and in particular to promote the achievement of the purpose and objectives of environmental implementation plans and environmental management plans.  This will be the appropriate forum to align the activities of DEA with other government departments, and integrate the IWMP into their strategic plans.
   

5.8.2 Compliance monitoring and enforcement

5.8.2(1)
MINTEC Working Group 4 deals with compliance and enforcement issues, and it is working on clarifying the respective roles and responsibilities between national, provincial and local levels. This working group will review and provide guidance regarding the respective roles of the EMIs and the WMOs.

5.8.2(2)
EMIs also coordinate their activities closely with the South African Police Services (SAPS), who play a crucial role in enforcing environmental legislation. EMIs work closely with police officials in the investigation of environmental crimes. In terms of NEMA, all police officers also have the powers of an EMI.

5.8.2(3)
Coordination with the National Prosecuting Authority is extremely important for the prosecution of environmental crimes. EMIs are not empowered to prosecute cases in court, and the results of their investigations are handed over to prosecutors of the NPA to prosecute. The Department of Environmental Affairs and the NPA will collaborate to ensure the successful prosecution of environmental crimes.

5.8.3 Establishment of new co-ordinating structures

5.8.3(1)
An important principle in the formulation of co-ordinating structures is to leverage on existing structures as far as possible and to minimise the establishment of new structures.  However, with respect to the relationship between the DEA and the Departments of Trade and Industry and Finance, a number of issues have been raised in the NWMS where coordination is required. A dedicated co-ordinating committee will be established to address the application of the South African Technical Infrastructure; the declaration of priority wastes and EPR schemes; the implications of the Consumer Protection Act; recycling schemes and the implications for competition policy; and incentives for cleaner production. The committee will also evaluate proposals for the promotion of reduction, re-use, recycling or recovery of waste, as well as their economic impact, in order to guide their further implementation.

5.8.3(2)
With respect to land remediation, coordination is particularly important as this is a concurrent mandate. There is an existing Government Task Team comprising the Departments of Mineral Resources, Environmental Affairs and Water Affairs focusing on mine closures that addresses remediation in relation to mining activities. The mandate of this committee will be broadened to address remediation in its entirety. DEA will convene and provide the secretariat for this committee.

5.8.4 Co-ordination of the WMOs

5.8.4(1)
The Act provides for the appointment of Waste Management Officers whose broad role will be the co-ordination of waste management activities. The diagram below represents the co-ordination mechanism for the WMOs. The creation of three structures is envisaged at local, provincial and national levels.

Figure 13: Coordination mechanisms for WMOs

5.8.4(2)
The role of WMOs is primarily regulatory, hence the requirement for a national waste forum independent of the existing MINTEC Working Group: II: Pollution and Waste, which is responsible for waste management policy. In the interests of effective co-ordination of the regulatory and policy-making roles in relation to waste management, the chairperson of the National Waste Forum will report to Working Group II.

5.8.5 Specific areas for co-operative governance

5.8.5.1    Waste management licensing
5.8.5.1(1)
Section 44 of the Waste Act requires that a waste management license may only be issued with the required approvals from other organs of state that are legally mandated to consent to that activity. Furthermore, the Act makes provision for integrated licensing by means of, an integrated environmental authorization as contemplated in NEMA section 24L.

5.8.5.1(2)
When issuing a waste management license, DEA submits the license to the Department of Water Affairs (DWA) for a Record of Decision.  DWA may request a water use license as per the provisions of the National Water Act. In the interests of integrated licensing, DWA in consultation with DEA may determine waste management activities for which a Record of Decision will suffice i.e. no separate water use license is required.

5.8.5.1(3)
In the event that a contravention of a waste management license has resulted in the contamination of the water resource, the Minister may issue a remediation order or measures to monitor and manage the risk in terms of the National Water Act. This power must be exercised in consultation with the relevant MEC.

5.8.5.1(4)
To achieve integrated licenses incorporating air quality, waste and water use licensing, licensing requirements must be harmonized through intra-departmental co-ordination with respect to air quality and waste management, and interdepartmental co-ordination with the Department of Water Affairs. Integrated licenses will reduce the administrative burden associated with licensing requirements.

5.8.5.2    Integrated Waste Management Plans
5.8.5.2(1)
The inclusion of IWMPs in Integrated Developed Plans (IDPs) is required to ensure the mainstreaming of waste management in local government. A co-operative relationship is envisaged between the MEC for local government and the MEC for environment to ensure that municipalities are supported and monitored in the development and implementation of integrated waste management plans. In developing guidelines for these plans, DEA will consult with the Department of Co-operative Governance and Traditional Affairs.

5.8.5.3    Declaration of priority waste
5.8.5.3(1)
Where the declaration of a priority waste is likely to have a significant impact on the national economy, the Minister of Trade and Industry and the Minister of Finance must be consulted.

5.8.5.4    Waste minimization and Extended Producer Responsibility
5.8.5.4(1)
There is a co-operative relationship envisaged by the Act between DEA and the dti with respect to waste minimization activities and extended producer responsibility as provided by sections 17 and 18. In terms of section 17, the Minister of Environmental Affairs must consult with the Minister of Trade and Industry before requiring the reduction, re-use, recycling and recovery of products or requiring the inclusion of a determined percentage of recycled material in a product. The same consultation is required for the declaration of measures to achieve EPR as contemplated in section 18.

5.8.5.5    Land remediation
5.8.5.5(1)
With respect to land remediation, the Minister or the MEC may only act in terms of the various provisions of the Act, having consulted with any other organ of state concerned, and in the case of the MEC having consulted with the Minister.
5.8.5.6    Regulations
5.8.5.6(1)
The Act provides for the development of a regulations regarding various aspects of the Act, which need to be developed in consultation with the relevant Ministers – these Ministers include variously the Ministers of Trade and Industry, Finance, Co-operative Governance and Traditional Affairs and Water Affairs.
 

5.10.1 Reporting on the implementation of the Integrated Waste Management Plans (IWMPs)

5.10.1(1)
Section 13 of the Waste Act requires annual performance reporting on the implementation of integrated waste management plans. Annual performance reports on the implementation of the IWMPs must include information on:

• The extent in which the plan has been implemented during the period.
• The waste management initiatives that have been undertaken during the reporting period
• The delivery of waste management services and measures taken to secure the efficient delivery of waste management services, if applicable.
• The level of compliance with the plan and any applicable waste management standards.
• The measures taken to secure compliance with waste management standards.
• The waste management monitoring activities.
• The actual budget expended on implementing the plan.
• The measures that have been taken to make any necessary amendments to the plan.
• In the case of a province, the extent to which municipalities comply with the plan and in the event of any non-compliance with the plan, the reasons for such non-compliance.
• Any other requirements as may be prescribed by the Minister.

5.10.1(2)
National and provincial departments responsible for environmental affairs are required to submit annual performance reports of their integrated waste management plans for approval to the relevant MEC’s and the Minister by 31 May each year.

5.10.1(3)
The annual performance report prepared in terms of section 46 of the Municipal Systems Act must contain information on the implementation of the municipal IWMP. Local authorities are obliged to establish performance management systems that are commensurate with their resources and in line with their priorities, targets and indicators contained in their IDP. Municipalities are required to table their annual reports in terms of the Municipal Systems Act, 2000. The municipality must adopt its annual report within 14 days of tabling and submit a copy of the report to the MEC and Minister of Cooperative Governance and Traditional Affairs and the MEC and Minister of Water and Environmental Affairs.

5.10.1(4)
Each province is responsible for the consolidation of the integrated waste management performance reports of all the municipalities in the specific province and must send the consolidated report to the national department for review and publication in the national department’s annual report. 

5.10.1(5)
Specific reporting information required by Chapter 3 of the Act is described in the table below.

5.10.2 Targets and indicators

5.10.2(1)
Monitoring and reporting on the implementation of the waste management strategy requires each municipality, provincial department and DEA to compile a set of targets and indicators for each stage of implementation of the waste hierarchy.

5.10.2(2)
In order to establish a uniform platform for monitoring and reporting on progress with the achievement of the NWMS, a minimum set of targets and indicators for each stage of implementation of the waste hierarchy is set out in this document. Targets should be set during the planning phase, linked to specific indicators. The targets and indicators must be reported on in the annual performance reports.

5.10.2(3)
Indicators provide information on progress towards achieving targets and must be specific, measurable, achievable, and time bound. The indicator must be specified upfront for each target to enable comparative monitoring over time and allow for the process of data collection to be in place.  The first year of monitoring will provide a baseline and each year’s performance could become the following year’s baseline.

5.10.2(4)
In order to measure progress with implementing the NWMS, targets and indicators have been set for each of the objectives for the NWMS defined in section 2.1 above. The primary focus of these indicators and targets is on measuring progress with the achievement of the waste hierarchy, as well as the broader social and economic objectives which the strategy aims to achieve.

5.10.2(5)
Indicators and targets for the achievement of the goals and objectives of the NWMS are set out in Table 14 and 15 below. The targets have been set for the year 2015, i.e. five years from the date of publication of the NWMS, which is the period in which the next review of the NWMS must take place.

 5.10.2(6)

5.10.2(7)
The above indicators and targets will be used as the basis for reviewing progress with implementation of the NWMS, and a comprehensive review of progress against each indicator will be undertaken at end of the five year period.

5.10.2(8)
On an annual basis DEA will collate and publish information on a prioritised list of indicators, which reflect progress in the priority areas as set out in the annual business plan of DEA.

Waste services indicators and targets
5.10.2(9)
At local government level the primary focus on the reporting system should be on solid waste management, and a specific set of indicators and targets are required in order to monitor the sustainable provision of waste management services. A minimum set of targets for use by municipalities in provision of waste services is set out below. The actual setting of relevant targets will be the responsibility of each municipality.

• The number of households receiving a waste management service (% over time).
• Budget allocations to ensure financial support (% increase in budget over time).
• Equipment and infrastructure provision.
• Number of staff trained or capacitated to improve service.
• Percentage of community being aware of the waste management services.
• Reduction of waste to landfill.
• Improvement of cost recovery measures.

Reporting on Industry Waste Management Plans
5.10.2(10)
Industry waste management plans that have been submitted for approval, whether obligatory or voluntary, by a category of persons or an industry, must be monitored by the relevant national or provincial department responsible for environmental affairs. The monitoring and reporting system for IndWMPs must be set out in the plan, and should include an annual review of the achievement of targets set out in the IndWMP. The report should reflect the priorities and the performance targets set by the industry for the following financial year; and include measures that were or are to be taken to improve performance.

5.10.2(11)
Reports by industry on performance in terms of IndWMPs will be consolidated by the national and provincial departments, and will be published as a consolidated report for public information purposes.