DRAFT

[image] NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE MANAGEMENT BILL

SUBMISSION BY BUSINESS UNITY SOUTH AFRICA (BUSA)

DECEMBER 2013

INTRODUCTION

BUSA welcomes the opportunity to make submissions on the above bill. A number of the amendments, which are intended to facilitate more effective and efficient implementation of the current acts, are welcomed. There are however some areas that need a more detailed consideration.

GENERAL

The amendments go some way to alleviate the concerns raised by Business in engagements with the Department on implementation of the Act. However, the following key elements of the Amendment Bill require further consideration.

Definitions
Waste Management Agency
Transitional Arrangements

Definitions

The intention to amend the definitions that have presented implementation challenges is welcomed. However, Business believes that further refinement is necessary to ensure that the intention can be given practical effect. Where a full understanding of the intention exists, proposals for improvement have been made in Table 1.

Waste Management Agency

BUSA notes with concern the intention of the Department to create a mechanism for the Department to establish a Waste Management Agency to manage waste on their behalf. The provisions in this regard generally appear to ignore the specific provisions in the Act dealing with Industry Waste Management Plans to which the new provisions refer.

As currently drafted this section cannot be supported for several reasons including:

The Act makes provision for the DEA to regulate the management of waste streams by others, not to manage waste streams itself and hence it seems to fall outside the mandate of the Department (the DEA should set policy and regulate; not manage wastes)
The establishment of a waste management agency, without private sector input, gives no recognition of the capability of the private sector to manage wastes. There are several successful waste recycling initiatives in operation in South Africa
Further, a viable business plan is, as a minimum, should be required before a Waste Management Agency can be established.
Discussion with the Department has revealed that the intention with this entity is to manage funds raised through industry waste management plans i.e. through levies which is not supported except in special circumstances)
- Business does not support the blanket imposition of levies on value chains except in exceptional circumstances

BUSA has some severe reservations in the usefulness of the Waste Management Agency concept.

The need for the establishment of a WMA has in BUSA’s view not been adequately established in the Explanatory Memorandum. BUSA believes that the apparent rationale for the establishment of a WMA could more properly be addressed using existing regulatory or institutional mechanisms BUSA does not support the creation of additional mechanisms with financial burdens when existing regulatory and institutional mechanisms not having been explored to their full potential.

Section 28 (1) of the Act empowers the Minister to require a specific category of persons or an industry that generates waste to prepare and submit an industry waste management plan to the Minister for approval.

It is clear from this provision that the intention of the Act is not to require all waste generators to prepare an industry waste management plan.

The interpretation that the intention is only to require the preparation and submission of an industry waste management plan under specific circumstances is further supported by the considerations that must be taken into account by the Minister in terms of section 28(4), when exercising this power.

Section 28(5) requires consultation with affected generators before the exercise of this power. It is also understood that the discretionary power in section 28(6) to require an “independent person” to prepare the plan would from part of the consultation contemplated in subsection (5).

Section 29 gives the Minister the power to require an organ of state to prepare an industry waste management plan, but it is clear that this is only in circumstances where the waste generators for some reason do not have the capacity to so or have failed to do so.

The final text of these sections was the subject of intense engagement between business and the department and ultimately the Portfolio Committee at the time. It is therefore not considered appropriate to use an amendment to the Bill which does not deal specifically with these sections to in effect amend the more flexible approach contained in these provisions to one where all wastes are subject to the intervention of an organ of state in the preparation of the plans at the cost of the industry and without consideration of the issues contained in these sections of the Act.

Section 30 of the Act prescribes the issues that may be covered in an industry waste management plan. These issues include the extent of a financial contribution that may be made to support consumer based waste reduction programs. The costs that may be imposed on waste generators is thus very specific on contrast to the general approach contemplated in the amendment bill.

Given that the current proposed amendments appear not to be in line with the intentions of the Act, it is proposed that the current proposals be amended along the following lines:

The powers of the Minister to consider the plans in terms of sections 32 and 33 of the Act, should be delegated to the entity, but only after the Minister has complied with the provisions of section 28, if persons directed to prepare the plan fail to do so, the new entity should be the organ of state that prepares it in terms of section 29.

If the plan includes financial contributions as contemplated in section 30 of the Act then the entity may be charged with disbursing the funds for the implementation of the plan.

While BUSA remains unconvinced of the necessity for this agency, it is understood that the Department is committed to its establishment. Some proposals for amendments that would bring the proposal in closer alignment with the Act are presented.

Transitional arrangements

During a meeting that was held on the 14th of August 2013, it was indicated by the Department that it is their intention to provide for transitional arrangements with respect to any waste related authorisation issued in terms of ECA. This would then provide for, in addition to Section 20 ECA permits in terms whereof transitional arrangements are already provided for, authorisations and amendments to existing authorisations issued in terms of the ECA EIA Regulations.

All the authorisations issued in terms of the ECA EIA Regulations and which were still in force when the NEMA EIA Regulations took effect should have been regarded as environmental authorisation issued in terms of the NEMA EIA Regulations. The transitional arrangements now provide for situation(s) that are no longer relevant.

No provision is being made for authorisations that were issued in terms of NEMA EIA Regulations for both "waste related'' RODs as well as RODs that provided for both "waste-related'' and "non-waste related'' activities. In this regard it is also important to take cognisance of the new EIA Regulations (published under Government Notice R543 in Government Gazette 33306 of 18 June 2010) that were published subsequent to the NEMA EIA Regulations which also provided for transitional arrangements, which will be problematic for activities where a ROD was issued for both "waste related' and "non-waste related' activities, since the " non-waste related' part of the ROD will now be regulated in terms of the subsequent EIA regime,

The proposed transitional arrangements only provides for the fact that a holder of an authorisation under ECA may request a variation of the authorisation in terms of NEM: WA. It is unclear as to why the Department elected to only make provision for variation applications and no further administrative actions in terms of NEM: WA, for example the transfer of an authorization. It is furthermore unclear whether the rest of NEM: WA will be applicable to these authorisations or whether the rest of NEM: WA will only be applicable once the Minister has given notice in terms of the Government Gazette to apply for a waste management licence. It is not clear how the department intends to align the proposed transitional arrangements with the transitional arrangements as per Government Gazette 32368, Government Notice 718 dated the 3rd of July 2009.

It is therefore recommended that the proposed amendments to deal with transitional arrangements be reviewed to ensure that the issues referred to above are addressed. In order to ensure alignment with other environmental legislation, it is proposed that due consideration be given to the transitional provisions of other environmental legislation such as those supporting the EIA Regulations published in terms of NEMA.

A detailed background to transitional arrangements is attached as Annexure 1.

Part 8 of the Act (Contaminated land)

In addition to the specific amendments covered by the Bill, BUSA would also like to take the opportunity to express concern on the intended entry into effect of Part 8 of the Act dealing with contaminated land.

In general implementation of Part 8 is likely to present significant challenges unless the following issues are addressed.

The lack of certainty about the implementation of Part 8 is already causing legal advisers to property transactions to provide very conservative advice to ensure that liability for contaminated land is not transferred to buyers unwittingly. In the absence of the regulations which essentially provide a methodology to determine whether land is contaminated or not and the existence of the contaminated land register, property transactions are becoming increasingly risky. Attempts to limit liability in the absence of a certain legal regime constitute yet another unnecessary regulatory burden. It is submitted that burden could easily be eliminated if progress on establishing the contaminated land register and clarifying its relationship to the legal property transfer process, which exists in terms of other legislation were made. .

The banking sector has already strengthened the due diligence being exercised in terms of land held for securitisation purposes. The financial sector can therefore assist the Department in trying to ensure that going forward contaminated land is not included within securitisation deals and that where land is contaminated, it is transferred with known implications between parties.

Business would also like to highlight the practical implications that are linked to the above. In BUSA’s view there are two critical outstanding matters within Part 8 of the Act, despite business having made recommendations to the Department some two years in this regard. We recognize that the Department is unable to address either of these issues within the draft Amendment Bill, but ask that the Department please address these as priority matters. These are:

The creation of a contaminated land register (section 41): business still finds itself in the invidious position that known contaminated sites are not recorded within a publically accessible register. This continues to create market and lender uncertainty. Some two years ago a workshop was facilitated by The Banking Association in collaboration with the Law Society South Africa to assist the Department in setting up an electronic register within Deeds Offices. The creation of a publically accessible electronic register does not seem to have progressed.

Further, consultations seemed to indicate that there is also no obvious solution for ensuring that if land was on a register it would equally be removed once the pollution/contamination had been remediated and that any such register needs to be aligned to the information recorded in a title deed. Failing this the register would be inaccurate as the description of land differs from being described as being tied back to “farms” and others to “Erfs” and Erf portions. Further, a physical address can be misleading, especially as many of the municipalities are now using Google maps. This makes it extremely difficult for the financial sector to establish what land is contaminated, has been remediated or what remediation requirements have been placed on land owners.

Potential lender liability: the National Waste Management Strategy states that:

“Financial institutions that accept land as security against loans are expected to exercise due diligence in terms of their potential liability for any contamination of that land”. On 10 March 2011 the banking sector made a preliminary application for exemption from sections 35 to 41 of Chapter 4 of the Act in terms of the provisions outlined in Part 3 sections 74(1) and (2), as well as making recommendations to the Department on a methodology which it could pursue which would ensure a responsible financial sector. Despite a number of engagements with the Department, this matter has yet to be clarified. This continues to cause market and lender uncertainty.

While it is recognised that the coming into effect of Part 8 does not form part of the amendment to the Act, BUSA would appreciate the Committee’s support in ensuring that all the essential prerequisites for implementation of Part 8 are in place before it happens.

DETAILED COMMENTS

Detailed comments are presented in Table 1 below.

CONCLUSIONS

In general BUSA welcomes the purpose of the amendments except those in relation to the proposed waste management agency. There are, however, a number of areas where BUSA would like to see improvements to the proposed text.

In light of the fact that this Bill was published for comment simultaneously with its tabling in parliament, the opportunity to engage with the Department in detail on concerns with the approach to the extent that would have been preferred, has not been possible. BUSA is committed to working with the Committee to support amendments that will have the intended practical effect.

Table 1: Detailed comments on Waste Management

NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE AMENDMENT BILL

BILL	Comments	Proposal
Amendment of section 1 of Act 59 of 2008
1. Section 1 of the National Environmental Management: Waste Act, 2008, (Act No. 59 of 2008), (hereinafter referred to as the “principal Act”), is hereby amended by—
(a) the substitution for the definition of "by-product" of the following definition:
" 'by-product' means a substance that is produced as part of a manufacturing or extraction process that is primarily intended to produce another substance [or product and that has the characteristics of an equivalent virgin product or material] which the generator intends to exploit or market on terms which are advantageous to the generator in a subsequent process, without any further processing ;”;	This is a great improvement to the definition currently in the Act. However the definition appears overly complex. Complexity leads to interpretation challenges and should be avoided. BUSA believes that the revised definition of waste eliminates the necessity for by-product to be defined.	It is proposed that definition of “by-product” be deleted. OR The definition should be simplified as follows: " 'by-product' means a substance that is produced as part of a manufacturing or extraction process that is primarily intended to produce another substance [or product and that has the characteristics of an equivalent virgin product or material] which the generator intends to exploit or market on terms which are advantageous to the generator in a subsequent process, without any further processing ;”;
(b) the substitution for the definition of "Department" of the following definition:
" 'Department' means the Department [of Environmental Affairs and Tourism] responsible for environmental affairs ;";	Supported	No revision to Bill necessary.
(c) the substitution for the definition of "Minister" of the following definition:
" 'Minister' means the Minister [of Environmental Affairs and Tourism] responsible for environmental affairs ;";
(d) the substitution for the definition of "recovery" of the following definition:
" 'recovery' means the controlled extraction [of a material] or retrieval of [energy] any substance or material from waste to produce a product;";	The apparent exclusion of energy recovery from waste is not understood. The consequence of this amendment would be that the recovery of energy from waste would not require a license.	The question of why this definition has been changed was raised and an explanation is awaited from the department in order to make a proposal
(e) the substitution for the definition of "re-use" of the following definition:
" 're-use' means to utilise articles from the waste stream [again] for a similar or different purpose without changing the form or properties of the articles;";	Supported. “again” is redundant	Revision to the Bill not necessary
(f) the substitution for the definition of "waste" of the following definition:
" 'waste' means any substance, whether or not that substance can be reduced, re-used, recycled or recovered─	Status quo supported	Revision to the Bill not necessary
(a) that is surplus, unwanted, rejected, discarded, abandoned or disposed of;	A substance that is surplus as being classified as a waste remains problematic. There are a number of scenarios where a production site could store raw material that is surplus to requirements at a particular time but could be used in the future either by the original purchaser or by someone else. This is clearly not waste and, in any event, as noted above, concerns regarding the impact of storage is regulated by other legislation. In any event, environmental regulation should support the re-use of products, particularly in so far as it reduces the resource burden.	Delete “surplus”
(b) which the generator has no further use of for the purposes of production;
(c) that must be treated or disposed of; or	Status quo supported	No revision to the Bill necessary
(d) that is defined as a waste by the Minister by notice in the Gazette ,
and includes waste generated by the mining, medical or other sector, but—
A by product is not considered waste;		Delete
(ii) any portion of waste, once re-used, recycled or recovered, ceases to be waste;"; and	Supported.	No revision to the Bill necessary
(g) the insertion after the definition of "waste treatment facility" of the following definition:
" 'the Agency' means the Waste Management Agency that may be established by the Minister in terms of section 34B; ".	See comment below on 34A
Amendment of section 4 of Act 59 of 2008
2. Section 4 of the principal Act is hereby amended by the deletion in subsection (1) of paragraph (d) .	The disposal of animal carcasses is regulated by the Animal Health Act,   2002 (Act No. 7 of 2002). It is not clear why this is being regulated under this Act.	Deleting (d) will result in requiring the disposal of animal carcasses to be regulated under NEM: WA. This can only be achieved with supporting regulation or standard since applying for a waste management license every time a carcass needs to be disposed of would be impractical?
Amendment of section 11 of Act 59 of 2008
3. Section 11 of the principal Act is hereby amended by—
(a) the substitution for subsection (1) of the following subsection:
"(1) The [Department and the] provincial departments responsible for waste management must prepare integrated waste management plans.";	Supported subject to ensuring consistency and uniformity across all tiers in waste management plans.	No revision to the Bill necessary
(b) the deletion of subsection (3);	Supported	No revision to the Bill necessary
(c) the substitution in subsection 4 (a) for subparagraphs (i) and (ii) of the following subparagraphs:
"(i) submit its integrated waste management plan to the MEC for [approval] endorsement ; and	Although the reason for this amendment is not understood as both “approval” and “endorsement” require application of mind, the amendment can be accepted. See also (5) below	No revision to the Bill necessary
(ii) include the [approved] endorsed integrated waste management plan in its integrated development plan contemplated in Chapter 5 of the Municipal Systems Act.";	Same comment as for (i)	No revision to the Bill necessary
(d) the substitution for subsection (5) of the following subsection:
"(5) The [Department and the] provincial departments contemplated in subsection (1) must submit their integrated waste management plans to the Minister for [approval] endorsement .";	Same comment as above, although the supporting memorandum suggests these should be submitted to Minister for “noting” not endorsement, which is a significantly different concept from endorsement and approval.	Intention to be clarified and reviewed accordingly
(e) the substitution in subsection (7) for paragraph (a) of the following paragraph:	Supported	No revision to the Bill necessary
" (a) Before finalising an integrated waste management plan, [the Department and] every provincial department contemplated in subsection (1) must follow a consultative process in accordance with sections 72 and 73."; and
(f) the deletion in subsection (7) of paragraph (b) .	Supported	No revision to the Bill necessary
Amendment of section 12 of Act 59 of 2008	Supported	No revision to the Bill necessary
4. Section 12 of the principal Act is hereby amended by—
(a) by the substitution in subsection (1) for paragraphs (b), (c), (d), (f) and (h) of the following paragraphs:
" (b) within the domain of the [Department,] provincial department or municipality, set out how that [Department,] provincial department or municipality intends—;	Supported	No revision to the Bill necessary
(c) within the domain of the [Department or] provincial department, set out how the [Department or] provincial department intends to identify the measures that are required and that are to be implemented to support municipalities to give effect to the objects of this Act;	Supported	No revision to the Bill necessary
(d) set out the priorities and objectives of the [Department,] provincial department or municipality in respect of waste management;	Supported	No revision to the Bill necessary
(f) set out the approach of the [Department,] provincial department or municipality to the planning of any new facilities for disposal and decommissioning of existing waste disposal facilities;	Supported	No revision to the Bill necessary
(h) describe how the [Department,] provincial department or municipality intends to give effect to its integrated waste management plan; and”; and	Supported	No revision to the Bill necessary
(b) the substitution for subsection (2) of the following subsection:	Supported	No revision to the Bill necessary
"(2) In the preparation of an integrated waste management plan the [Department and] provincial departments must give proper effect to the requirements contained in Chapter 5 of the Municipal Systems Act, insofar as such plan affects a municipality.".	Supported	No revision to the Bill necessary
Amendment of section 13 of Act 59 of 2008
5. Section 13 of the principal Act is hereby amended by—
(a) the substitution in subsection (1) for paragraph (a) of the following paragraph:
"(a) a provincial department, be submitted to the MEC for approval and to the Minister for [approval; and] noting ;";	Supported	No revision to the Bill necessary
(b) the deletion in subsection (1) of paragraph (b) ; and
(c) the substitution for subsection (2) of the following subsection:	Supported
"(2) The annual performance report that the [Department or] provincial department must submit in terms of subsection (1) must contain information on the implementation of its integrated waste management plan, including information on─".	Supported	No revision to the Bill necessary
Amendment of section 28 of Act 59 of 2008
6. Section 28 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:
"(2) The MEC , with the concurrence of the Minister may, in respect of any activity within the province concerned that results in the generation of waste, by written notice require a person, or by notice in the Gazette require a category of persons or an industry, that generates waste to prepare and submit an industry waste management plan to the MEC for approval.".	Supported. However, the current provision that allows an MEC to require an industry plan in a province regardless of whether the activity is undertaken in more than one province is not acceptable. This amendment should go further in that an MEC should not be able to require a plan for activities that are not unique to that province. Concurrence of the Minister is an essential amendment to prevent provincial departments from requiring firms in one province from complying with a plan that can only be applicable in one province, thus resulting in potential competition issues where the same product is made in another province and is not subject to this requirement.	"(2) The MEC , with the concurrence of the Minister may, in respect of any activity, which is only carried out within the province concerned that results in the generation of waste, by written notice require a person, or by notice in the Gazette require a category of persons or an industry, that generates waste to prepare and submit an industry waste management plan to the MEC for approval."
	The concurrence of the Minister should also be gazetted	Insert (3) The concurrence of the Minister should be gazetted nationally to ensure wide dissemination of the intention.
Amendment of section 29 of Act 59 of 2008
7. Section 29 of the principal Act is hereby amended by—
(a) the substitution for subsection (1) of the following subsection:
"(1) The Minister or MEC with the concurrence of the Minister may, by notice in writing, require an industry waste management plan to be prepared by an organ of state, excluding a municipality and a provincial department responsible for waste management, within a stipulated timeframe.";	It is assumed that this is a provincial notice. Such notices must be gazetted nationally.	Review accordingly
(b) the deletion of subsection (2); and	Supported	No revision to the Bill necessary
(c) the substitution for subsections (3), (5) and (6) of the following subsections:
"(3) When exercising a power under subsection (1) [or (2)] , the Minister or MEC must consider whether─.
(5) An [y] organ of state [or provincial department] contemplated in subsection (1) [and (2), respectively] , may, by written notice, require any person to provide such information as may be necessary to prepare the industry waste management plan.	Supported	No revision to the Bill necessary
(6) An organ of state [or provincial department] contemplated in subsection (1) [and (2), respectively] , must follow a consultative process in accordance with section 72 and 73, unless that plan is being prepared as a result of a person who was required to prepare that plan failing to do so, in which case section 31(2) applies.".	Supported	No revision to the Bill necessary
Amendment of section 30 of Act 59 of 2008
8. Section 30 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
"(1) The Minister, in a notice contemplated in section 28(1) or 29(1), or the MEC , with the concurrence of the Minister , in a notice contemplated in section 28(2) or 29 [(2)] (1) , must specify the information that must be included in the industry waste management plan.".	Supported	No revision to the Bill necessary
Amendment of section 32 of Act 59 of 2008
9. Section 32 of the principal Act is hereby amended by—
(a) the substitution for subsection (1) of the following subsection:
"(1) The Minister, acting in terms of section 28(1) or 29(1), or the MEC acting in terms of section 28(2) or 29 [(2)] (1) , may on receipt of an industry waste management plan─"; and	Consequential amendment
(b) the substitution in subsection for paragraph (d) of the following paragraph:
Insertion of sections 34A, 34B, 34C, 34D, 34E, 34F, 34G, 34H, 34I, 34J and 34K in Act 59 of 2008 11. The following sections are hereby inserted in the principal Act after section 34:
"Establishment of Waste Management Agency
34A. (1) The Waste Management Agency is hereby established. (2) The Agency is a public entity for the purposes of the Public Finance Management Act, 1999 (Act No. 1 of 1999), and must comply with the provisions of that Act.	The establishment of a new agency such as proposed here is not supported without a clear understanding of its role relative to the functions of the department and without a clear business case.	34A. (1) The Minister may, with the concurrence of the Minister responsible for finance and the Minister responsible for public service and administration, by notice in the Gazette, establish an entity with an accounting officer independent of the DG but reporting to the Minister
		(2) Before establishing the entity referred to in (1) above, the Minister shall prepare a business case and consult with potentially affected generators
Objects of Agency 34B. The objects of the Agency are to— (a) function as the implementing agent for the Department in respect of matters relating to this Act; and	This section makes provision for the agency to essentially take over any function of the Department. This is not supported.
(b) facilitate the preparation of industry waste management plans for those activities that generate waste	This objective is duplicated as a function in section 34C(a)

		(2) The objects of the entity are to: Support implementation of Industry Waste Management Plans required in terms of the Act
.		(b) Support diversion of waste from landfill disposal
		(c) Manage the disbursement of funds raised through levies imposed in terms of Industry Waste Management Plans, prepared in terms of section of the Act

Functions of Agency 34C. (1) The Agency must—		Functions of Agency 34C. (1) The Agency must—
(a) facilitate the development of industry waste management plans;	It is not clear what is intended here. Section of the Act requires specific categories of waste generators to prepare an industry waste management plan if required to do so in terms of section 28 of the Act	(a) facilitate the development of prepare industry waste management plans, in cases where a waste generator fails to submit an industry waste management plan as contemplated in section 29 of the Act;
(b) promote best practices in the re-use and recycling of waste;	Significant capacity is required to identify best practices and evaluate them in a South African context, which would be required before such practices can be promoted. This level of activity does not appear to be aligned with the statement in the Explanatory Memorandum that there is no financial implication.	Delete
	In addition, BUSA believes that the proposed approach fails to take into account the ongoing innovation initiatives, which are an integral part of maintaining viable businesses
(c) manage and coordinate the implementation of industry waste management plans;	It is not at all clear what is intended here. It appears as if the agency will oversee the implementation of industry waste management plans by industry. This is not supported. Business has for decades successfully implemented recycling initiatives without any intervention from the state. The approach also appears not to be aligned with section of the Act, which requires the waste generators to implement the plans	Review the implementation reports submitted by the person responsible for the implementation of the industry waste management plan
(d) manage the disbursements industry waste management plans;	It is assumed that the intention here is to manage the disbursements of funds raised through levies imposed in terms of an industry waste management plan	(d) manage the disbursements of funds raised through the imposition of levies in terms of industry waste management plans, in consultation with the persons responsible for implementing the plan;

(e) perform any other functions that the Minister may assign or delegate to the Agency in relation to the implementation of this Act.	This broad mandate is not supported as not basis is provided for the inclusion of such a wide mandate, particularly when it is understood that the intention with this entity is to manage the funds raised through financial arrangements established in terms of an industry waste management plan.	Delete
(2) The Agency may—	BUSA is not convinced that an independent agency with a Board is the only institutional mechanism that can meet the needs of the department.
(a) open and operate its own bank accounts;
(b) invest any of its money, subject to section 34D;
(c) borrow money, subject to section 66 of the Public Finance Management Act, 1999 (Act No. 1 of 1999); and
(d) charge fees as prescribed by the Minister.	It is not at all clear what “fees” are contemplated here. The preparation of an industry waste management is in itself a costly exercise, which will be undertaken by the industry and BUSA sees no reason for the entity to charge fees. The only cost recovery mechanism contemplated in the Act is where an organ of state prepares the plan when the person required to so, fail to do so in terms of Section 29.	Review accordingly
Funding 34D. The funds of the Agency consist of—
(a) income derived by it from the performance of its duties and the exercise of its powers;	This provision essentially relates to the charging of fees on the one hand. On the other hand it is not clear what powers are being referred to as there should only be reference to functions	Review accordingly
(b) money appropriated by Parliament;
(c) voluntary contributions, donations and bequests;
(d) money borrowed in terms of section 34C(2)(c); and
(e) income derived from investments referred to in section 34C(2)(b).
		Financial contributions contemplated in section 30(2)(i) of the Act
Board of Agency 34E. (1) The Agency must act through its Board. (2) The Board must consist of— (a) not less than five, but not more than seven members appointed in terms of subsections (3) and (4); (b) the Director-General or an official of the Department designated by the Director-General; and (c) the Chief Executive Officer, as an ex off ıcio member. (3) The Minister must appoint members of the Board after— (a) publishing a notice in the Gazette and two national newspapers circulating in the Republic, calling upon members of the public to nominate persons contemplated in subsection (1)(a); and (b) compiling a shortlist of candidates together with their curriculum vitae. (4) Nominations made pursuant to a notice in terms of subsection (3)(a)must be supported by— (a) the personal details of the nominee; (b) the nominee’s qualifications or experience; and	BUSA does not support the establishment of a board.	Delete
(4) Nominations made pursuant to a notice in terms of subsection (3)(a) must be supported by—	As above	Delete
(a) the personal details of the nominee;
(b) the nominee’s qualifications or experience; and
(c) any other information that may be prescribed.
(5) If the shortlist compiled in terms of subsection (3)(b) does not contain suitable persons, the Minister must call for further nominations in the manner set out in subsection (3)(a).	As above	Delete
(6) The Board must consist of— (a) persons who are citizens of the Republic or have the right of permanent residence in the Republic and have distinguished themselves in the field of the waste management sector or possess the relevant qualifications, experience or skills in relation to waste management; and	As above	Delete
(b) at least one member who has a legal qualification and one member with financial expertise.
(7) The Minister must appoint one of the members of the Board as chairperson and another member of the Board as the deputy chairperson.	As above	Delete
(8) Members of the Board contemplated in subsection (2)(a) are appointed for a period of three years and are eligible for re-appointment for another final term of three years.	As above	Delete
(9) In the absence of a Board all the functions of the Board are vested in the Minister.	As above	Delete
(10) In accordance with section 49(2)(a) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), the Board is the accounting authority of the Agency.	As above	Delete
Disqualification, removal from office and filling of vacancies
34F. (1) A person may not be appointed as, or continue to be, a member of the Board if he or she—	As above	Delete
(a) is an unrehabilitated insolvent;
(b) has been declared by a court to be mentally ill;
(c) has been convicted of an offence in the Republic or elsewhere and was sentenced to imprisonment without the option of a fine, other than an offence committed prior to 27 April 1994, associated with a political objective for which amnesty was granted by the Truth and Reconciliation Commission;
(d) is a member of Parliament, a provincial legislature or any municipal council;
(e) is not a citizen of, or does not have the right of permanent residence in, the Republic; or
(f) has, as a result of improper conduct, been removed from a position of trust by a court of law.
(2) The Minister may remove a member of the Board from office—	As above	Delete
(a) on the grounds of misconduct, incapacity or incompetence;
(b) if the member is absent from three consecutive meetings of the Board without leave from the Board;
(c) if the member becomes disqualified as contemplated in subsection (1); or
(d) for any other sound and compelling reason.
(3) A decision to remove a member of the Board from office in terms of subsection (2) must be based on the recommendation of an independent panel appointed by the Minister.	As above	Delete
(4) The Minister may dissolve the Board on reasonable grounds.	As above	Delete
(5) If a member of the Board dies, resigns by written notice to the Minister or is removed from office, the Minister may, having followed the procedure contemplated in section 34E(3), appoint a person in that vacancy for the remaining part of the term of office.	As above	Delete
Functions and meetings of Board 34G. (1) The Board must perform any function imposed upon it in accordance with a policy direction issued by the Minister and in terms of this Act.	As above	Delete
(2) The Board must—	As above. This should be the Minister’s responsibility	The Minister must
(a) oversee the functions of the Agency;
(b) give effect to the strategy of the Agency in the performance of its functions; and	There is no reference to a strategy in the provisions. It is sufficient to clearly define the functions in the business plan	(b) give effect to the strategy of the Agency in the performance of its functions; and
(c) notify the Minister immediately of any matter that may prevent or materially affect the achievement of the objects of the Agency.	Only relevant where there is an independent agency with a board	Delete
(3) The Board may determine its own procedure, but any decision of the Board must be taken by resolution of the majority of the members present at any meeting of the Board and, in the event of an equality of votes, the person presiding has a casting vote in addition to his or her deliberate vote.	Only relevant where there is an independent agency with a board	Delete
Remuneration of Board members 34H. A member of the Board, other than the Chief Executive Officer and an official designated by the Director-General in terms of section 34E(2)(b), must be paid such remuneration and allowances out of the funds of the Agency as may be determined by the Minister, in consultation with the Minister of Finance.	As above	Delete
Chief Executive Officer of Agency 34I. (1) The Board must, with the approval of the Minister, appoint a suitably qualified and skilled person as the Chief Executive Officer of the Agency.	BUSA supports the concept of a separate accounting officer to be appointed for the entity	Chief Accounting Officer of Entity 34I. (1) The Minister must appoint a suitably qualified and skilled person as the Chief Accounting Officer of the entity.
(2) The appointment of the Chief Executive Officer must be made after following a transparent and competitive selection process.	These provisions are typical for the Public Services commission. Does not need to be repeated here.	Delete
(3) The Chief Executive Officer must be appointed for a term not exceeding five years and must be subject to such conditions relating to remuneration and allowances as the Board may determine.	As above	Delete
(4) The Chief Executive Officer must enter into a performance agreement with the Board within three months of taking up the post as Chief Executive Officer.	As above	Delete
(5) The Chief Executive Officer must be responsible for the administration and the general management and control of the day-to-day functioning of the Agency, subject to the directions and instructions of the Board.	In the light of the absence of a board the provisions below need to be amended as shown	The Chief Accounting Officer must be responsible for the administration and the general management and control of the day-to-day functioning of the entity
(6) The Chief Executive Officer must be responsible and accountable to the Board for all money received by the Agency and the utilisation of that money.	As above	Delete
(7) The Chief Executive Officer must report to the Board on matters that may adversely affect the functioning of the Agency.	As above	Delete
(8) If the Chief Executive Officer is— (a) absent for a period of more than two months; (b) unable to carry out his or her duties; or (c) there is a vacancy in the office of the Chief Executive Officer, the Board may, with the concurrence of the Minister, appoint any person who meets the requirements contemplated in subsection (1) to act as Chief Executive Officer, until the Chief Executive Officer is able to resume those duties or until the vacant position of Chief Executive Officer is filled.	As above	Delete
(9) If the Chief Executive Officer is absent for a period of less than two months the Board may, with the concurrence of the Minister, appoint any person to act as Chief Executive Officer.	As above	Delete
(10) The acting Chief Executive Officer has all the powers and may perform all the duties of the Chief Executive Officer.	As above	Delete
(11) The Chief Executive Officer may not serve for more than two consecutive terms.	As above	Delete
Employees of Agency 34J. (1) Subject to subsection (2), the Chief Executive Officer— (a) must, on such conditions as he or she may determine, appoint such number of employees or receive on secondment such number of persons as are necessary to enable the Agency to perform its functions;	Any entity would be staffed by the Department
(b) is responsible for the administrative control of the Agency and for the discipline of the employees and persons contemplated in paragraph (a); and
(c) must ensure compliance with applicable labour legislation.
(2) The Board must approve—	In the absence of a Board, these provisions are automatically covered by the Public Service Commission
(a) the general terms and conditions of employment of the employees contemplated in subsection (1);
(b) a human resource policy; and
(c) the structures for remuneration, allowances, pensions, subsidies and other benefits for employees contemplated in subsection (1) in accordance with a system approved by the Minister, with the concurrence of the Minister of Finance.
Minister’s supervisory powers 34K. (1) The Minister—	In the absence of a Board these provisions may not be necessary, but in so far as they are, they should be gazette at the same time as the establishment notice	Review accordingly
(a) must monitor the performance by the Agency of its functions;
(b) may prescribe norms and standards for the performance by the Agency of its functions; or
(c) may issue directives to the Agency on policy, planning, strategy and procedural issues to ensure its effective and efficient functioning.
(2) The Agency must perform its functions subject to any norms and standards prescribed or directives issued by the Minister in terms of subsection (1)(b) or (c).’’.
Insertion of section 69A in Act 59 of 2008 12. The following section is hereby inserted in the principal Act after section 69:
‘‘Regulations for Agency 69A. The Minister must, after consultation with the Board, make regulations regarding—
(a) any matter required or permitted by this Act to be prescribed;
(b) the setting of fees;
(c) the circumstances and manner in which fees may be charged by the Agency for services, the method of reporting to the Minister on Board meetings and the frequency of those reports;
(d) interim measures for the continued management and functioning of the Agency in the event that the Minister dissolves the Board in terms of section 34F(4) of this Act; or	In the absence
(e) any ancillary or incidental administrative or procedural matter in relation to the Agency that is necessary to prescribe for the proper implementation or administration of this Act.’’.

d) reject the plan with reasons if it does not comply with the requirements of a notice in terms of section 28(1) or (2) or 29(1) [or (2)] , as the case may be, or if a consultation process in accordance with section 31 was not followed.".
11. The following sections are hereby inserted in the principal Act after section 34:
Repeal of section 78 of Act 59 of 2008
12. Section 78 of the principal Act is hereby repealed.	It is assumed that appeals will be done in terms of NEMA, which renders this section redundant	No revision to the Bill necessary
Insertion of section 80A in Act 59 of 2008
13. The following section is hereby inserted in the principal Act after section 80:
" Transitional provisions in respect of authorisations issued in terms of Environment Conservation Act
80A. (1) An authorisation issued under the Environment Conservation Act and that has not lapsed when the National Environmental Management: Waste Amendment Act, 2013 comes into operation, remains valid.
(2) The holder of an authorisation issued under the Environment Conservation Act may, at any time after the coming into operation of the National Environmental Management: Waste Amendment Act, 2013, request a variation of the authorisation by submitting a written request to the relevant licensing authority.
(3) The written request contemplated in subsection (2) must be considered by the licensing authority in accordance with section 54 of this Act. ".

ANNEXURE 1

NATIONAL ENVIRONMENTAL MANAGEMENT: WASTE AMENDMENT BILL, 2013 (GAZETTE 366, DATED 18 JULY 2013) - "WASTE BILL": TRANSITIONAL ARRANGEMENTS

The abovementioned publication as well as the meeting held with DEA on the 14^th August 2013 refers.

In terms of the above-mentioned publication, no provision is made for public comments but it was indicated by the department during the aforementioned meeting that it is the intention of the department to publish the Waste Bill in future for public comments. It was furthermore indicated by the department that BUSA is welcome to provide the department with comments in the meantime with regard to issues that may have some significant impacts on the Waste Bill:

Provision is made in terms of the Waste Bill for the following transitional arrangements in addition to sections 80-82 as contained in the National Environmental Management: Waste Act, 59 of 2008 ("NEM:WA"):

"Transitional provisions in respect of authorisations issued in terms of Environment Conservation Act

80A (1) An authorisation issued under the Environment Conservation Act and that has not lapsed when the National Environmental Management: Waste Amendment Act, 2013 comes into operation, remains valid.

(2) The holder of an authorisation issued under the Environment Conservation Act may, at any time after the coming into operation of the National Environmental Management: Waste Amendment Act, 2013, requests a variation of the authorisation by submitting a written request to the relevant licensing authority.

(3) The written request contemplated in subsection (2) must be considered by the licensing authority in accordance with section 54 of this Act"

The purpose of the aforementioned transitional arrangements in addition to sections 80-82 is unclear and BUSA would like some clarity in this regard. In order to be able to understand BUSA’s concerns regarding the aforementioned transitional arrangements, it is important to first provide the department with a summary of the background of the waste legislation:

Background

The NEM: WA took effect on the 1st of July 2009. In order to provide for a consolidated waste management regime, NEMWA repealed all previous legislation regulating waste management in South Africa to a large extent and also amended some relevant legislation. When the previous legislation regulating waste management was repealed and/or amended, the department only provided for transitional arrangements with regard to Section 20 disposal site permits issued in terms of the Environment Conservation Act, 73 of 1989 ("ECA"). NEM: WA did not make provision for transitional arrangements pertaining to the following situations:

"Waste related’ Record of Decisions ("RODs") issued in terms of the National Environmental Management Act, 107 of 1998 ("NEMA").

“ Waste related' activities combined with "non-waste related' activities in
RODs in terms of NEMA.

To be able to understand the aforementioned problem scenarios, it is important to take cognisance of the following history pertaining to waste management in South Africa:

1989

ECA was promulgated and took effect on the 9^th of June 1989. Initially, ECA only regulated the disposal of waste by means of the Section 20 ECA Disposal Site Permits as part of the waste management regime.

1997

During 1997, the then Department of Environmental Affairs and Tourism ("DEAT") identified under section 21 of ECA certain activities which may have had a substantial detrimental effect on the environment and published regulations regarding the aforementioned activities identified in terms of section 21 of ECA. The aforementioned identification list and regulations were published in the Government Gazette No 18261, dated 5 September 1997 under Notices 1182 and 1183 respectively. In short, these publications will be referred to as the “EGA EIA Regulations". In terms of the ECA EIA Regulations, one had to obtain an authorisation from the relevant competent authority before commencement of the listed activity. The ECA EIA Regulations were incorporated by means of a phased approach of which the earliest effective date was 5 September 1997. The ECA EIA Regulations regulated both "waste related’ and "non- waste related’ activities. With regard to "waste related' activities, the ECA EIA Regulations regulated mainly the disposal of waste. Therefore, the implications of the ECA EIA Regulations were that one had to proceed with an EIA authorisation process before a Section 20 ECA disposal site permit could be issued.

The aforementioned ECA EIA Regulations were subsequently amended by the following notices:

Gazette Number 18362, Notice Number 1355 dated the 17th of October 1997;

Gazette Number 18783, Notice Number 448 dated the 27th of March 1998; and

Gazette Number 23401, Notice Number 670 dated the 1Oth of May 2002.

In terms of the last amendment, waste management was extended to include the following activities in addition to the management of disposal sites as defined in terms of ECA:

"8. The disposal of waste as defined in section 20 of the Act, excluding domestic waste, but including the establishment, expansion, upgrading or closure facilities for all waste, ashes and building rubble".

Transitional provisions were also provided for in terms of the above mentioned amendment notices to exclude activities that were commenced with before the date of commencement fixed in respect of that particular activity as indicated in the ECA EIA Regulations and only provided for "new" activities, commenced with after the effective date of the ECA EIA Regulations. As a result, all activities that commenced before the ECA EIA Regulations took effect were excluded from regulation by the ECA EIA Regulations.

During 2006, DEAT identified under sections 24 and 240 of NEMA certain activities which may not have commenced without an environmental authorisation from the competent authority and published regulations regarding the management of the aforementioned activities. The aforementioned identification list and regulations were published in the Government Gazette No 28753, dated the 21st of April 2006 under Government Notices 385,386 and 387 respectively. In short, these publications will be referred to as the "NEMA EIA Regulations". In terms of the NEMA EIA Regulations, one had to obtain an authorisation from the relevant competent authority before commencement of the listed activity. The NEMA EIA Regulations took effect on the 3rd of July 2006. The NEMA EIA Regulations regulated both "waste-related" and "non-waste related’ activities. In the instances where the NEMA EIA Regulations regulated " waste-related" activities, the regulations regulated more than only disposal of waste and extended the regulation of waste to other activities such as the recycling, re-use, handling and temporary storage of waste.

As a result of the aforementioned, one could have had a situation where some activities triggered both "waste related’ and "non- waste related’ activities in terms of the NEMA EIA Regulations.

The NEMA EIA Regulations replaced the ECA EIA Regulations and transitional provisions were provided for in terms of the NEMA EIA Regulations for activities that already commenced in terms of the ECA EIA Regulations regime. In terms of the NEMA EIA Regulations, any authorisation issued in terms of the EGA EIA Regulations and which were still in force when the NEMA EIA Regulations took effect should have been regarded as to be an environmental authorisation issued in terms of the NEMA EIA Regulations.

As a result, all authorisations issued in terms of the ECA EIA Regulations were now regarded as authorisations issued in terms of NEMA EIA Regulations. Since both the ECA EIA Regulations as well as the NEMA EIA Regulations regulated both "waste related" and "non waste related" activities, the transitional arrangements as provided for didn't pose any challenges.

As mentioned previously, the NEM: WA took effect on the 1 51 of July 2009. The purpose of the NEM: WA is to provide for a consolidated waste management regime and to regulate all the waste related matters in terms of one piece of legislation and as a result, NEM: WA now regulates all waste management related aspects. In order to provide for a transition between the regulations of waste related issues in terms of ECA I NEMA to the NEM: WA, the following is important:

ECA was repealed to a large extent when NEM: WA took effect;

Listed activities in terms of NEM:WA in terms thereof one needs to obtain an authorisation were identified and published in Government Gazette 32368, Government Notice 718 dated the 3rd of July 2009. This list also took effect the 3rd of July 2009. This list provides for transitional arrangements with regard to lawful activities, i.e. "persons who lawfully conduct waste management activities listed in this Notice on the date of it coming into effect may continue with those activities until such time that the Minister by notice in the Gazette calls upon those persons to apply for waste management licences in terms of NEM: WA" ;

Simultaneously with the aforementioned notice, a delisting notice was published in terms of NEMA in Government Gazette 32369, Government Notice 719 dated the 3'd of July 2009 which also took effect on the 3rd of July 2009. In terms of this notice, all the waste related activities in terms of NEMA were delisted in order to make provision for the regulation of waste related activities in terms of NEM: WA alone;

NEM: WA provides for transitional arrangements in terms of sections 80-82 only relating to Section 20 ECA disposal site permits. Without going into too much detail, the following important transitional arrangements can be highlighted:

A person operating a waste disposal facility that was established before the coming into effect of ECA and that is operational on the date of the coming into effect of this NEM: WA Act may continue to operate the facility until such time as the Minister, by notice in the Gazette, calls upon that person to apply for a waste management licence;

Despite the repeal of section 20 of the ECA by NEM: WA, a permit issued in terms of that section remains valid subject to certain conditions;

During the period for which a permit issued in terms of section 20 of the ECA continues to be valid, the provisions of NEM: WA will apply in respect of the holder of such a permit, as if that person were the holder of a waste management licence issued in terms of NEM: WA.

From the above it is therefore clear that no provisions for transitional arrangements in terms of NEM: WA is made with regard to the following activities:

Authorizations issued in terms of the NEMA EIA Regulations. In this regard it is important to distinguish between authorisations that only pertain to "waste related' activities and authorisations that pertain to both " waste related' and " non-waste related" activities;

Since all authorisations issued in terms of the ECA EIA Regulations were regarded as authorisations issued in terms of the NEMA EIA Regulations (as discussed above), no additional transitional arrangements are necessary for these activities in terms of NEM:WA.

PROBLEM STATEMENT

The following problems have been identified as a result of the lack of transitional arrangements provided for in terms of NEM: WA:

Although the listed activities in terms of NEM: WA provides for the fact that a person who lawfully conducts a waste management activity listed in terms of NEM: WA may continue with the activity until such time that the Minister by notice in the Gazette gives notice to apply for a waste management licence in terms of NEM: WA, no provision is made for the status of that activities. Therefore, although the activities are regarded as being lawful, there are no provisions as to the status of previous authorisations;

Most authorisations issued in terms of the previous legislation (ECA / NEMA) were issued by the provincial government. In terms of NEM: WA, all hazardous waste is now being regulated by national government. Without the necessary transitional arrangements, regulation of these authorisations is becoming increasingly problematic between the different government departments;

The decision-making body doesn't have the authorisation in terms of NEM: WA to deal with the waste related aspects authorised in terms of NEMA;

As mentioned previously, the additional transitional provisions proposed by the Waste Amendment Bill includes the following:

An authorisation issued under ECA and that had not lapsed when the National Environmental Management: Waste Amendment Act, 2013 comes into operation, remains valid;

The holder of an authorisation issued under the Environment Conservation Act may, at any time after the coming into operation of the National Environmental Management: Waste Amendment Act, 2013, requests a variation of the authorisation by submitting a written request to the relevant licensing authority.