Environment law update September 2014

South African environment law is enforced mainly by the Environmental Management Inspectorate, or Green Scorpions.

This SA environment law update of September 2014 includes Waste Regulations Manifest fraud, air emissions reporting, EIAs, and legal notices.

Comment now on EIA Regulations

The Department of Environmental Affairs has prepared Regulations Pertaining to Environmental Impact Assessments, under sections 24(5) and 44 of the National Environmental Management Act, and has asked for public comment to NNkotsoe@environment.gov.za by 29 September 2014, or enquiries to Amanda Britz on 012 399 9283 or 012 399 9285.

The Department of Environmental Affairs has published the proposed Listing Notice 1 of 2014 under section 24(2), 24(5), 24D and 44, read with section 471(1) (b) of the National Environmental Management Act, and has asked comment to NNKotsoe@environment.gov.za by 29 September 2014. See also Legal Notices, below, where comment was called on air emissions legislation.

The Department of Environmental Affairs invites you to comment on the draft National Appeal Regulations for any decision subject to an appeal to the Minister or MEC in terms of the National Environmental Management Act, the Biodiversity Act, or the Waste Act. Address nmahlale@environment.gov.za by 21 September 2014.

Waste Regulations require a Manifest document

Many waste Safe Disposal certificates are fraudulently reproduced by some waste management contractors or transporters.

The fraudulent documents are given to waste generators as evidence that disposal had occurred at permitted sites, while the waste is dumped at sites not licensed to treat or receive hazardous waste.

The legal responsibility lies with waste generators, who remain liable even after it has been removed from the premises and disposed.

The recently promulgated Waste Regulations have made a manifest document a legal requirement. From 23 August 2014, every holder of waste classified as hazardous is required to keep a waste manifest document.

An associated safe disposal certificate would then be issued by the landfill site to provide assurance that the waste had been received and safely disposed at a permitted facility.

In the past these documents were issued to the transporter who delivered the waste to the disposal site, and not directly to the waste generator. This process is flawed and has enabled unscrupulous waste transporters to hoodwink waste generators by falsifying disposal certificates.

To comply with the requirements of the Waste Manifest System Information Requirements in the new Waste Classification and Management Regulations, details of the waste generator, waste transporter and waste disposal facility must be in the waste manifest document.

Generators must receive a copy of the waste manifest directly from the disposal facility, and not from the waste transporter. A safe disposal certificate, which should be linked to the manifest number, must be issued by the disposal facility.

Waste volumes and types that have been collected from the facility should be regularly reconciled to the safe disposal certificates from the landfill site, to ensure that there is not a risk of contravening environmental legislation.

Government Gazette 36784 of 23 AUGUST 2013: “(b) made available to the Department on request… Waste Manifest System (1) Every holder of waste that has been classified as hazardous in terms of Regulation 4(2), or a waste that is listed in item (2)(b) of Annexure 1 to these Regulations, must be in possession of a waste manifest document containing the relevant information in Annexure 2 to these Regulations (NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE ACT; WASTE CLASSIFICATION AND MANAGEMENT REGULATIONS).

Environment law; Legal notices

Air dispersion modelling regulations. The regulations are provided for by section 53(f) of the National Environmental Management: Air Quality Act and apply to the development of air quality management plans, priority area air quality management plans, atmospheric impact reports, as well as in specialist air quality impact assessment studies. Environmental Affairs R. 533.

Comment was called on Atmospheric Emissions Reporting Regulations under the National Environmental Management: Air Quality Act (NEM: AQA). These apply to activities listed in terms of Section 21(1) of the Act, and that have been declared a controlled emitter in terms of Section 23(1); facilities which generate criteria pollutants and not reporting as provided for in the previous provisions; any person holding a mining right or license in terms of the Mineral and Petroleum Resources Development Act; and other emission sources which may be identified by the Department.

Emissions reporting will be to the online National Atmospheric Emissions Information System, with the first annual report due by 31 March 2015. Environmental Affairs 572 Draft National Atmospheric Emission Reporting Regulations.

As provided for by the National Environmental Management: Air Quality Act, reporting of annual Greenhouse Gas and pollutant emissions data via the Department of Environmental Affairs’ (DEA) National Atmospheric Emissions Inventory System (NAEIS) becomes mandatory in January 2015.

All emissions would have to be reported, including;
• Emissions under licence
• Greenhouse Gas emissions
• Emissions for which there is no standard as yet, but where an emission limit has been set
• Certain production information
• Fugitive emissions.

There will no longer be separate reporting platforms per province. The NAEIS will be a single, national reporting platform. The DEA assured stakeholders that a draft policy on confidentiality and why certain data is required is being prepared. The Department will provide training to specific sectors.

Phase-out of polychlorinated biphenyls and polychlorinated biphenyl contaminated materials. The regulations are now in force under authority of section 44(1)(aA) and (aB) of the National Environmental Management Act.

The intention is to prescribe the requirements for the phase-out to ensure that impacts or potential impacts on health, wellbeing, safety and the environment are prevented or minimized and to set timeframes for the complete phase-out of their use and waste disposal.

Comment was called on Spatial Planning and Land Use Management Regulations. These draft regulations are provided for by section 54 (1) read with section 54 (2) (b) of the Spatial Planning and Land Use Management Act and are primarily intended to provide for conflict resolution among legislation, spatial plans frameworks and policies and different spheres of government in terms of land use and management. Water Affairs 566 And Rural Development and Land Reform 526 Spatial Planning and Land Use Management Act.

Environmental Affairs R. 598 National Environmental Management: Biodiversity Act. Alien and Invasive Species Regulations 2014.

Environmental Affairs 599 National Environmental Management: Biodiversity Act Alien and Invasive Species List 2014.

OECD guidelines

The Organisation for Economic Co-operation and Development (www.oecd.org) published a number of guidelines relevant to environmental impact management in 2014;

Guidance Document for Quantitative Method for Evaluating Antibacterial Activity of Porous and Non-Porous Antibacterial Treated Materials at
http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=ENV/JM/MONO(2014)18&doclanguage=en

Guidance Document on an Integrated Approach on Testing and Assessment (IATA) for Skin Corrosion and Irritation at
http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=ENV/JM/MONO(2014)19&doclanguage=en

Guidance Document for Single Laboratory Validation of Quantitative Analytical Methods – Guidance Used in Support of Pre-and-Post-Registration Data Requirements for Plant Protection and Biocidal Products at
http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=ENV/JM/MONO(2014)20&doclanguage=en

Myriophyllum Spicatum Toxicity Test: Results of an Inter-Laboratory Ring Test Using a Sediment-Free Test System – Ring Test Report at http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=ENV/JM/MONO(2014)21&doclanguage=en

Myriophyllum Toxicity Test: Results of Ring Test Using M. Aquaticum And M. Spicatum in a Sediment-Water System – Ring Test Report at http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=ENV/JM/MONO(2014)22&doclanguage=en

New Scoping Document on in vitro and ex vivo Assays for the Identification of Modulators of Thyroid Hormone Signalling at
http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=ENV/JM/MONO(2014)23&doclanguage=en

BHAS 42 Cell Transformation Assay Validation Study Report at
http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=ENV/JM/MONO(2014)22&doclanguage=en

Haz goods transport law

The transport of dangerous goods and hazardous chemical substances by road in South Africa is regulated by the Department of Transport and the requirements for such transportation are structured around the National Road Traffic Act, 93 of 1996, as amended), Road Traffic Regulations and the various South African National Standards (SANS Codes) incorporated into the Act and Regulations.

The legislation addresses issues like the classification of the actual goods being transported, packaging of such goods, requirements for dangerous goods vehicles, as well as the responsibilities of the consignor, operator, consignee, qualified person and driver, said CAIA.

The class (or type) and properties of the dangerous goods being transported by the vehicle will determine the scope of the legal requirements that need to be complied with.

Legislation pertaining to the transportation of dangerous goods on South African roads includes the visual display of the required dangerous goods placards and information applicable to the class of dangerous good transported, the good’s hazards as well as a number of other less visible, but very important requirements that contribute towards road safety.

Requirements for dangerous goods vehicles and drivers include:
• Drivers of vehicles above 3500 Gross Vehicle Mass must have a category D Professional Driving Permit.
• Specific documents must be carried by the driver in the cab of the vehicle. These include a Transport Emergency Card and a Dangerous Goods Declaration for the substances in the load.
• Agree on the route.
• Written operational agreements between parties listed in the Dangerous Goods Declaration to take care of the safe loading, transportation and off-loading of the dangerous goods.
• Notify emergency responders on the route that will be travelled that the vehicle will be using this route, as well as information on the nature of the good’s hazards.
• Inform emergency services and police of incidents and advising the relevant governmental department of injuries, fires, explosions or spillages, involving dangerous goods.
• Regular maintenance and inspections of vehicles.
• Calculate if multi-loads or mixed loads require compliance.
• Insurance cover must be adequate.

Hauliers of dangerous goods must remain within the mass limit that applies to a vehicle. Overloading of heavy vehicles creates huge problems of damaging road surfaces and placing a heavy burden on the country’s already deteriorating road network.

Insurance claims could be repudiated as a result of legal non-compliance; if the vehicle involved in an accident was not roadworthy; if the driver was under the influence of drugs or alcohol; if the drivers’ Professional Driving Permit was expired.

In a recent incident, a truck transporting pipes to a pipeline project close to the depot, had to suddenly apply brakes to avoid an animal straying on to the road. Due to the securing mechanisms on the trailer being insufficient for the weight and momentum of the load, no forward or backward restraints, and the flat-bed trailer not being fitted with a headboard, both the driver and co-driver were killed when the unsecured pipes entered the cab.

Waste Act amended without consultation

An amendment to the National Environmental Management: Waste Act was published in the Government Gazette on 2 June 2014, but was not subject to any public consultation, despite a significant change to the definition of Waste, which now includes reference to a schedule that divides waste into two categories; Hazardous Waste or General Waste.

All waste from the chemicals and some other industries is now classified as Hazardous Waste. Chemicals body CAIA tried via business body BUSA to delay the Bill, but parliament went ahead regardless.

Government has since committed itself to explore legal options to address the challenges presented by the implementation of the Schedule. BUSA has sent a letter to the environment department requesting immediate remedial action to be taken in the interim, so that the chemicals and other affected industries are not subject to the provisions.

Meanwhile the Department of Environmental Affairs (DEA) participates in an Industry Waste Management Forum, intended to be held quarterly, while meetings with CEOs and MDs are proposed twice a year.

Mark Gordon, DEA Deputy Director-General of Chemicals and Waste Management, said the purpose of the forum to be to fill any gaps with stakeholders and to be able to fully incorporate waste into South Africa’s economy.

The DEA advised that company-specific issues should continue to be dealt with through the normal channels and that the forum was to engage with industry on implementation and challenging issues. Stakeholders suggested that sub-groups be established as required to deal with specific issues, and that the reporting of the outcomes of these subgroup engagements should be to the forum.

These issues were on the forum agenda:
• National Environmental Management: Waste Amendment Bill and implementation guideline
• Implementation of Schedule 3 of the National Environmental Management: Waste Amendment Bill (including residues and stockpiles)
• Pricing strategy for the Waste Management Levy
• Industry Waste Management Plans
• Establishment of the Waste Management Bureau
• Transitional arrangements
• Waste Classification and Management Regulations
• Implementation of the Norms and Standards for Landfill Disposal
• Implementation of Part 8 of the National Environmental Management: Waste Act
• Exemption from sections of the Waste Act.

Waste Act Fee Regulations Guidance

The NEM Act Fee Regulations Guidance clarifies application fees for environmental authorisations, including applications for amendments of environmental authorisations in terms of the National Environmental Management Act; waste management licences; and transfer and renewal of waste management licences in terms of the NEMA Waste Act.

DEA Waste Classification Task Team

A special meeting of the DEA and Industry Waste Management Forum discussed the promulgation and coming into effect of the National Environmental Management: Waste Amendment Act that has “caused some confusion in industry regarding the classification of waste”.

There are also waste classification and management regulations, promulgated late in 2013. The agenda allowed discussion of timeframes for implementation, challenges with prohibitions, challenges with the classification system, and the link to Schedule 3 of the Amendment Act.

An implementation guideline would be provided, and urgent implementation issues could be raised with the Department directly. An amendment to the Amendment Act may be considered in the future.

• Sources; PMG. DEA. DWA. CAIA. RC.
• SA health and safety law updates are posted separately on Sheqafrica.com

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Sheqafrica.com is Africa's largest independent SHEQ Magazine, hosting over 2 000 articles and news items since 2007. Sheqafrica.com is owned by the Cygma Group, a global provider of risk management and compliance solutions. Sheqafrica.com is registered as a digital publication with the ISSN.
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