5.1
The National Environmental Management: Waste Act of 2008 was promulgated after an extensive consultation process around the Waste Bill. In an important sense, the Waste Act is a direct achievement of the 1999 NWMS, and represents the distillation of important lessons learned in its implementation. More directly, the provisions of the Act are in many respects the result of legislative priorities established by the 1999 NWMS.
5.2
Prompted in part by the fragmentation, duplication and lack of co-ordination in waste legislation, the White Paper on Integrated Pollution and Waste Management of 2000 initiated the review of waste legislation that culminated in the publishing of the draft National Environmental Management: Waste Bill on 12 January 2007.
5.3
The publishing of the draft Waste Bill marked the start of a 90-day period of public comment on the Waste Bill, to guide its finalisation. During this period, in addition to public meetings in each province, DEAT held workshops with the following stakeholder groupings:
In addition, a two-day conference was convened to involve local government in the finalisation of the Waste Bill. Representatives from over one hundred metropolitan, district and local municipalities participated in deliberations.
5.1.1
The objects of the Act are:
5.1.2
The Waste Act stipulates that its objects should be read in conjunction with the environmental principles established in NEMA.
5.2.1
Chapter 2 Part 1 of the Waste Act requires a national waste management strategy to be established within two years of the Act coming into effect to achieve the Act’s objectives and give effect to the Republic’s obligations in terms of relevant international agreements.
5.2.2
The Waste Act places the NWMS firmly within the context of co-operative governance, providing for the NWMS to identify the responsibilities of the different spheres of government and organs of state in terms of its implementation. Furthermore, state organs are required to align their waste management activities with the national waste management strategy.
5.2.3
To provide a suitably differentiated approach to waste management and the provision of waste services, the NWMS may differentiate between classes and categories of waste, and geographical areas. The Waste Act explicitly provides for the inclusion of targets in the NWMS, and a phased approach to its implementation.
5.2.4
The Waste Act further stipulates a requirement for a consultation process before the finalisation of the NWMS, similar to the process undertaken for the Act itself.
5.3.1
Chapter 2 Part 2 of the Waste Act requires the Minister to establish national norms and standards in relation to waste management. These will be of particular relevance to the NWMS since they will represent minimum standards in relation to the provision of waste management services and the storage, treatment and disposal of waste that the NWMS will need to meet.
5.3.2
The Waste Act envisages that norms and standards may be differentiated according to geographical areas and different types of waste. With respect to service delivery, the Act provides for equitable differentiation of services based upon both the type of service, and the type of user.
5.3.3
The Act explicitly provides for the development of norms and standards within the context of the waste hierarchy, including the separation of waste at the point of generation, and the setting of standards for extended producer responsibility.
5.4.1
Chapter 3 of the Waste Act provides for the designation of a national waste management officer within DEAT with responsibility for co-ordinating waste management within government, as well as provincial waste management officers and municipal waste management officers within each municipality authorized to provide waste management services.
5.4.2
The NWMS will need to define the manner in which waste officers fulfil their responsibilities. One such responsibility is likely to be development and implementation of the integrated waste management plans contemplated by this chapter of the Waste Act.
5.5.1
The Waste Act requires the provinces and municipalities to develop integrated waste management strategies that are co-ordinated and aligned with the relevant integrated development plans and other plans and programmes of provincial and national government, as well as relevant legislation, such as the Municipal Systems Act.
5.5.2
Provincial and municipal waste management plans will play an important role in implementing the NWMS. The plans must include a situational analysis of waste management challenges that takes into account:
5.5.3
The Waste Act further stipulates the content of waste management plans:
5.5.(4)
The Waste Act requires annual reporting on implementation of waste management plans. The prescriptions in terms of the content of provincial and municipal waste management plans include many of the features that will be required in the NWMS, with which these plans must be aligned, but which, in another sense, give effect to the NWMS.
5.6.1
An important feature of the Waste Act is that it provides specific waste management measures that can be incorporated into the NWMS. These measures grant regulatory powers to the Minister, to be exercised within the context of co-operative government principles established in the Constitution and relevant legislation.
5.6.2
The NWMS will provide the context for the implementation of the waste measures provided in the Waste Act. In addition to regulatory controls, the NWMS needs to encompass both negotiated and voluntary applications of waste management measures.
5.6.3
The Waste Act explicitly provides for the negotiated application of waste management measures in the form of industrial waste management plans. Currently, domestic and commercial recycling takes place almost entirely on a voluntary basis. The success of recycling initiatives in terms of waste minimizations is dependent on public awareness, ease of access to recycling services and facilities, and the presence or absence of incentives.
5.6.1.1
Waste that poses a particular threat to human health and the integrity of the environment can be declared a priority waste by the Minister. The 1999 NWMS uses the DWAF second edition classification, and a new edition is in the process of being developed.
5.6.1.2
Declaration of a waste as priority waste indicates that specific waste management measures are required for that waste in terms of reduction, recycling, re-use, and recovery. These measures may include a requirement for companies or persons generating a priority waste to submit an industry waste management plan that must be approved by the Minister.
5.6.1.3
Categorisation of a priority waste restricts economic activities that might generate such a waste, so declaration of priority wastes needs to involve consultation with the Department of Trade and Industry.
5.6.2.1
The general duties in respect of waste management that apply by default to all holders of waste reflect the hierarchy of priorities in terms of waste management:
5.6.2.2
In general, the provisions of the NWMS should as far as is practical and wherever possible reflect this hierarchy.
5.6.2.3
Specific general duties apply to manufactures and/or retailers of products that may generate hazardous waste in relation to informing the public of the impact on health and the environment.
5.6.3.1
Reduction, re-use and recycling is only a viable option when it uses less natural resources and is less harmful to the environment than disposal. The Waste Act grants the Minister the power to:
5.6.3.2
Extended Producer Responsibility is explicitly contemplated by the Waste Act as a mechanism for ensuring reduction, re-use, recycling, and recovery and the Minister is granted the powers to determine products to which Extended Producer Responsibility applies, and to specify the Extended Producer Responsibility measure that will apply.
5.6.4.1
The Waste Act provides for the Minister to publish a list of waste management activities that negatively affect health and/or the environment. Waste disposal techniques such as incineration are an example of this. Listed waste management activities may be entirely prescribed, or may require licensing.
5.6.4.2
Chapter 5 of the Act establishes a detailed regulatory framework for the administration of licensing requirements that will need to be incorporated into the NWMS.
5.6.5.1
The Waste Act specifies general principles for the storage and transport of waste to prevent pollution of the environment and harm to health. The measures in this section include specific requirements in relation to waste collection services that need to inform the NWMS:
5.6.6.1
This section of the Act clearly establishes all disposal of waste as a regulated activity, including littering. It makes owners of private property to which the public has access responsible for providing receptacles for litter, and for disposing of litter in an authorised manner.
5.6.7.1
The Waste Act provides for industry waste management plans at a national level for industries that cross provincial boundaries, as well as at a provincial level for industry specific to a particular province. The Act takes care to prevent unnecessary duplication by specifying that any requirement for a national plan supersedes and replaces provincial requirements.
5.6.8.1
This measure gives effect to the “polluter pays” principle. The Minister is required to identify and investigate land that is suspected of contamination. Once an investigation area has been declared the Minister may initiate a site assessment and direct the owner of the land, or the person responsible for the suspected contamination to conduct a site assessment to determine past, current, or future impact on the environment and health.
5.6.8.2
If a site assessment confirms land as contaminated, the Act grants the Minister the power to order remediation of the land, specify the time frame over which remediation must take place, identify who will be responsible for the remediation, and what measures must be taken. The Act obligates the Minister to maintain a contaminated land registry that includes investigation areas.
5.6.8.3
This registry of contaminated lands forms part of the Waste Information Management System described in Chapter 6 of the Act.
5.6.9.1
Waste management officers are given authority to establish programmes for public recognition of achievements in relation to waste management, including programmes that include a public awareness component.
5.6.9.2
For the NWMS to be effective, it needs to take root at a local level. Community-based organisations, consumer organisations, civic organisations, and non-governmental organisations have an important role to play in the local implementation of the NWMS.