Joint MRA & NRO response to research papers

The Metal Recyclers Association ("MRA") attended the National Waste Management Strategy Workshop and thanks government for the initiative.
The MRA together with the National Recyclers Organisation (collectively referred to as industry associations”) look forward to further co-operation in this regard. To this end, the industry associations would like to register the following comments in order to remain an interested and affected party in ongoing deliberations regarding the National Environmental Management: Waste Act, 2008 (Act No. 59 of 2008) ("the Waste Act"). The industry associations move from the premise that it is generally misunderstood and trust that they will be given an opportunity to correct the perceptions that exist. The definition of waste in the Waste Act is predicated not on its potential impact on the environment and human health but on a myopic view of the existence of that substance at a particular juncture in the lifecycle of that substance. The truth of this statement becomes clear when applying it to the lifecycle of scrap metal (i.e. ferrous and non-ferrous metal).
For the purpose of this submission, we accept firstly that scrap metal is a substance and secondly, that it can be reduced, re-used, recycled and recovered. That is indeed what the scrap metal industry does. The scrap metal industry recovers, treats and recycles substances for the purpose of re-use. The definitions, however, of "recovery", "recycle", "re-use" and "treatment" are all internally predicated on the subject of these activities being waste. The ability of a substance to be reduced, re-used, recycled, treated and recovered does in itself not qualify a substance as a waste. The definition of waste in the Waste Act continues to state that whether or not a substance can be the subject of any of the aforementioned activities, that when it becomes "surplus, unwanted, rejected, discarded, abandoned or disposed of", then that substance becomes a waste.
Paragraph (a) of the definition of waste therefore takes a view of a substance at a particular juncture in its lifecycle and which moment in time will define the status of that substance in perpetuity. In other words, on the preponderance of probability, that substance will remain in disuse. This is clearly not the fate of scrap metal.
The definition of waste in the Waste Act further qualifies a substance as a waste when the "generator" of that substance has "no further use of [sic] for the purposes of production". The term "generator" is not defined in the Act. The ordinary dictionary meaning of a "generator" is a "person or thing that generates". The verb "generate" means "to produce or bring into being; create". Paragraph (b) of the definition of waste is a "catch-all" provision which bears no rational connection between the purpose of the Waste Act and the means of the fulfilment of that purpose. In any event, paragraph (b) of the definition of waste must be distinguished from paragraph (a), lest paragraph (b) is found redundant. Paragraph (a) looks at a point in time of the life of a substance, whether in the hands of a generator, intermediary, end user or any other third party which may have handled the substance during its lifecycle and for whom that substance serves no further use. Paragraph (b), however, focuses on the creator of that substance and the process by means of which that substance was created. It therefore focuses on a point in time when the substance was both created and, in that state of creation, no longer employed by its creator for the purpose of his/her production process. It is submitted that the test for "further use" should be an objective one. This test would further distinguish paragraph (b) from paragraph (a). If that substance can objectively be re-used in the production process, whether or not in the same form, then the mischief does not lie with the substance itself, but with the efficiency of the generator's production process.
For the purpose of illustration, we refer to two sources of scrap metal, namely "primary producer arisings" and "manufacturing industry arisings". In respect of the former, production processes generate metal materials when producing primary metal products. This internally generated metal material is mostly re-used internally by the industry itself. Primary producer arisings come largely from places like steel mills. In respect of the latter, the production of finished metal goods from primary metal products typically generates metal materials through off-cuts from the manufacturing process. These metal materials take the form of trimmings, cuttings, shavings, rod-ends or stampings. All of these metal materials, however, can objectively be used in both the primary producer and manufacturing industry processes. We commend the legislator's foresight by excluding "by-products" from the definition of waste because it serves to mitigate against the potential irrational implications of having included part (b) in the definition of waste. A "by-product" has been defined as a "substance that is produced as part of a process that is primarily intended to produce another substance or product and that has the characteristics of an equivalent virgin product or material". This definition of a by-product does not differentiate between a generator or any third party, but focuses on the potential of a substance to be of further value or use. Therefore, although a substance may no longer serve its generator in the generator's further production process, it may still objectively be of use, firstly, to the generator in a production process other than the one during which that substance was created; or secondly, to an entirely different party (third party) for whatever other purpose. Accordingly, in respect of paragraph (b), if the scrap metal industry can objectively prove, and it believes it can, that scrap metal could by means of a more efficient production process still be of further use in that production process; or that scrap metal is alternatively a by-product, then scrap metal is not a waste.
In respect of part (c) of the definition of waste, we submit with reference to the definitions of "treatment" and "disposal", that our industry indeed exists because scrap metal does not have to be disposed of and we further submit that scrap metal is not processed in order to minimise the impact of scrap metal on the environment, but in order to add further value to it.
In summary, cogent arguments exist why scrap metal is, purely on the bases of legal interpretation, not waste. In time however, we will produce the necessary technical arguments in support of our contention that scrap metal should be excised from the definition of waste (should government, at this point in time, view scrap as waste)."