Three draft versions of these final Regulations, which entered into force on 18 July 2018, were previously published in 2014, 2017 and 2018 for comment.
In contrast to the drafts the final Regulations do not contain a Schedule of certain listed waste streams to which the exclusion was potentially applicable. This is regarded as an improvement since now an exemption for virtually any waste stream or type can be applied for (subject, of course, to various requirements).
The purpose of these new Regulations is to-
(a) prescribe the manner in which a person or a category of persons may apply to the Minister for the exclusion of a waste stream or a portion of waste stream for beneficial use from the definition of waste;
(b) exclude permitted uses of a waste stream or a portion of waste stream from the definition of waste; and
(c) promote diversion of waste from landfill disposal to its beneficial use.
A waste generator or any group of persons who generate the same waste may apply to the Minister for the exclusion of a waste stream or a portion of such a waste stream for beneficial use from the definition of waste.
The application may be granted provided that the –
(a) application demonstrates that the waste is being or has been or will be used for a beneficial purpose either locally or internationally;
(b) applicant undertakes a risk assessment and submits a risk management plan demonstrating that the intended beneficial use of the excluded waste can be managed in such a way as to ensure that the intended beneficial use will not result in significant adverse impacts on the environment; and
(c) risk management plan responds to the risks identified in the risk assessment accompanies any delivery of the excluded waste to the user.
The risk assessment must include the following elements:
(a) provide information that is facility based;
(b) description and source of the waste;
(c) intended uses of the excluded waste;
(d) description of the methodology used to assess the hazardous characteristics of the waste that is to be excluded;
(e) identification of any potential risks relating to all the activities associated with the intended beneficial use of the excluded waste; and
(f) identification of mitigation measures that can be used to manage the risks identified in paragraph (e) above.
The risk management plan must include the following:
(a) a Safety Data Sheet which complies with the requirements of SANS 10234, where the waste material is classified as hazardous;
(b) permitted uses for which the waste material may be used; and
(c) a mechanism to record the amount of waste distributed to specific users for a permitted use; including the number of enterprises established or supported and the extent to which previously disadvantaged individuals have been supported.
The following transitional provisions apply:
- A person who was previously exempted by the authorities in terms of section 76(1)(a) of the Waste Act when these Regulations came into effect (ie. 18 July 2018) must continue to comply with the conditions of the exemption until its expiry, and thereafter conduct a risk assessment and develop a risk management plan within 90 days after the expiry of the exemption.
- A person who lawfully conducts a waste management activity with a valid waste management license when these Regulations came into effect must continue to comply with the conditions of the license until its expiry, and thereafter conduct a risk assessment and develop a risk management plan within 90 days after the expiry of the waste management licence.