ENVIRONMENTAL, HEALTH AND SAFETY AND FOODSTUFFS LEGAL UPDATE REPORT

(SOUTH AFRICA)

JUNE 2020

 

Dear Clients,

Below please find a summary of selected relevant environmental, health and safety and foodstuffs legal developments that took place during June 2020.

 

NATIONAL LEGISLATION

1) Biodiversity Act

  • Rhinoceros Horn – Notice prohibiting the carrying out of certain Restricted Activities

This notice covers horns from black and white rhinoceros and sets out various restricted activities, such as powdering horns, forming or creating slivers etc.

  • Rhinoceros Horn – Regulations relating to Trade in Rhinoceros Horn

These Regulations were promulgated.

  • Alien and Invasive Species List; List of Critically Endangered Vulnerable and Protected Species – Amendments

Amendments to the two lists were published, but these will only come into force on a date to be determined by the Minister.

 

2) Occupational Health and Safety Act

  • Ergonomics Regulations – Exemption

Regulation 6 requires an employer to perform an ergonomics risk assessment which must be repeated every two years. In terms of Regulation 8 an employee must be placed under medical surveillance if the risk assessment indicates the need for this, or an occupational health practitioner recommends this.

The Department of Employment and Labour has now granted an exemption until 30 June 2021 for employers to perform the assessment and to place employees under medical surveillance.

In our opinion this should not, however, mean that employers should delay the risk assessment until then. Section 8(1) of the Occupational Health and Safety Act requires an employer to provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of employees.

Section 8(2)(d) of the Act calls for the employer to perform a risk assessment, and this should have identified ergonomics issues.

It is, however, important to stress that the risk assessment in terms of the Ergonomics Regulations is generally more detailed than the one usually conducted by the employer. Regulation 6(1)(a) requires that the risk assessment be performed by a competent person. This is somebody according to Regulation 1 who (in a very convoluted manner):

 (a)       has in respect of the work or task to be performed the required knowledge, training and experience in ergonomics and, where applicable, qualifications specific to ergonomics: provided that where appropriate qualifications and training are registered in terms of the provisions of the National Qualifications Framework Act, 2008 (Act No. 67 of 2008), those qualifications and that training must be regarded as the required qualifications and training; and

(b)        is familiar with the Act and the applicable regulations made under the Act.

The reason for the exemption until 30 June 2021 probably is (in our opinion) the absence of a sufficiently enough number of qualified, trained or registered competent persons.

Be that as it may, this is simply a delayed responsibility and therefore, if possible, the ergonomics risk assessment should be done now, and not only in 2021. This would also be in line with section 8(2)(d) of the Act.

  • Registration of First Aid Training Service Providers

The requirement for training service providers to be registered with the Quality Assurance Body that has been delegated the quality assurance responsibilities for First Aid unit standards by the Quality Council for Trades and Occupations (QCTO) was once more extended, this time to 31 March 2021. Thus registration is necessary for them to be approved by the Department of Employment and Labour. The current notice replaces the previous one from October 2018 which had a deadline of 31 March 2020.

 

3) Foodstuffs, Cosmetics and Disinfectants Act

  • Regulations – Preservatives and Antioxidants – Amendment

The Regulations were amended in Annexure A by inserting an additional requirement:

All bread – sorbic acid – 1000 (as quantity permitted in Mg/kg or mg/L).

 

4) National Nuclear Regulator Act

  • Draft Regulations on the Long Term Operation of Nuclear Installations

Draft Regulations were published for public comment.

 

5) Carbon Tax Act 

  • Regulations on the Allowance in respect of Trade Exposure in respect of Carbon tax Liability under section 10 of the Carbon Tax Act

These Regulations set out how the allowance which may be set off against carbon tax liability in respect of trade exposure is calculated. Regulations 3 and 4 contain specific formulae which can be used. Annexure A sets out various types of industries or products and the percentage trade exposure allowance (up to 10%). The Regulations are deemed to have taken effect on 1 June 2020.

  • Regulations on the Greenhouse Gas Emissions Intensity Benchmark prescribed for the purpose of section 11 of the Carbon Tax Act for the Performance Allowance, 2020

Tax payers have to determine the emissions intensity benchmark for the purposes of determining the sector or subsector benchmark according to Annexure A of the Regulations. Where more than one benchmark applies in respect of an activity the formula in Regulation 3 applies.

A tax payer further has to determine the measured and verified emissions intensity for the purposes of symbol “B” in the formula set out in section 11(1) of the Carbon Tax Act for various industrial sectors or subsectors as listed in Regulation 4.

The Regulations are deemed to have taken effect on 1 June 2019.

  • Renewable Energy Premium in respect of any tax period ending on 31 December 2019 for the purposes of Symbol ‘B’ in s 6(2) of the Carbon Tax Act, 2020

This Notice sets out different values per kilowatt hour (in Rand) for Symbol “B” of the formula set out in section 6 of the Act. This is in respect of the tax period ending on 31 December 2019.

 

6) Integrated Coastal Management Act

  • Draft amendment – National Estuarine Management Protocol

Draft amendments were published for public comment.

 

7) Waste Act

Please note, the following four are only DRAFT LAWS published for public comment and not yet actual laws. Comments can be submitted to the Director General: Department of Environment, Forestry and Fisheries before 26 July 2020. Should you require copies of the draft laws please feel free to contact us.

To set the background to the proposed changes it is important to explain what section 18 of the Waste Act allows the Minister to do, namely:

  • identify a product or class of products in respect of which extended producer responsibility applies;
  • specify the extended producer responsibility measures that must be taken in respect of that product or class of products; and
  • identify the person or category of persons who must implement the extended producer responsibilities measures.
  • DRAFT Regulations regarding Extended Producer Responsibility

The purpose of the draft Regulations is to:

  • provide a framework for the development, implementation, monitoring and evaluation of extended producer responsibility (EPR) schemes by producers, importers and brand owners in terms of section 18 of the Waste Act
  • ensure the effectiveness and efficient management of the identified waste streams
  • encourage and enable the implementation of chemicals and waste economy and circular economy initiatives.

The draft Regulations would be applicable to products identified by the Minister in terms of section 18 and its related waste streams. The products and waste streams must be published by the Minister (as was done in draft form for the three sectors listed below).

The draft Regulations require all existing producers of products identified by the Minister to register with the Department within 6 months of the publication of a notice in the Gazette. New producers of products identified by the Minister would need to register within 3 months of being established.

Reg 5 in much detail sets out numerous EPR measures which producers must implement. Examples are:

  • establishing and implementing an EPR scheme or joining another scheme
  • being fully accountable for the performance of the scheme
  • financing the scheme
  • developing and maintaining a system to collect the EPR fees
  • conducting internal and external environmental and performance audits
  • having an independent annual financial audit
  • develop and manage a data collection system and register of members
  • collating and submitting aggregated data to the SA Waste Information System (SAWIS)
  • conducting life cycle assessment (LCA) of products in accordance with the relevant SABS standards or ISO standards (14040 and 14044)
  • through the LCA factor in changes in the design, composition or production processes
  • establish new infrastructure to promote the effective implementation of the EPR scheme
  • promote small businesses
  • develop a BBBEE transformation charter within the waste sector of identified products
  • implement transformation within all levels of the value chain including transformation targets with BBBEE charter timeframes;
  • develop and establish secondary markets for recyclable materials
  • implement environmental labels and declaration for the identified products in accordance with SANS 14021, 14024 and 14024 [sic – there is a typing error in the Gazette notice as 14024 is repeated – it is unsure what the third and correct standard number should be]

Reg 6 states that EPR schemes must, as a minimum, include requirements for:

  • cleaner production measures
  • waste reduction
  • reuse
  • waste recycling
  • recovery
  • waste treatment
  • waste disposal
  • implementation and reporting of various listed instruments to complement the scheme
  • comply with the requirements for programmes planned to contribute to government priorities.

Other matters governed by the draft Regulations are: financial arrangements for an EPR scheme; monitoring, reporting and evaluation; performance reviews of schemes (by the Department).

Existing products responsibility organisations must register with the Department within six months of the Regulations coming into force, while newly formed organisations must do so within three months of their establishment. Such organisations must be an autonomous body, be registered as non-profit company and have a board of directors.

  • DRAFT EPR Scheme for the Electrical and Electronic Equipment Sector

This draft scheme covers the products and the resulting waste which arises from the use by a consumer or an end user of electrical and electronic equipment (except for lighting and related components – which fall under a separate draft notice – see below).

The following products or classes of products are identified in the draft notice:

(a) temperature exchange equipment;

(b) screens, monitors, and equipment containing screens;

(c) large equipment (any external dimension more than 100 cm);

(d) medium equipment (any external dimension between 50 and 100 cm);

(e) Small equipment (no external dimension more than 50 cm);

(f) batteries;

(g) large household appliances;

(h) small household appliances;

(i) office, information and communication equipment;

(j) entertainment and consumer electronics and toys, leisure, sports and recreational
equipment and automatic issuing machines;

(k) electrical and electronic tools;

(l) security and heath care equipment;

(m) computer and electronic products;

(n) audio and video equipment;

(o) communications equipment;

(p) leisure and lifestyle equipment; and

(q) monitoring equipment.

Producers of these will be responsible for developing an EPR scheme. This must be submitted to the Minister within six months, alternatively a product responsibility organisation must be established which must prepare and submit a scheme.

Producers only starting after the Notice came into force must submit their scheme within six months of commencement, or subscribe to an existing scheme within three months.

Collection rate and recycling quantity targets for five years are contained in paragraph 7 of the draft Notice.

  • DRAFT EPR Scheme for Paper, Packaging and some Single Use Products

“Packaging” is defined in the draft Notice as any material, container or wrapping, used for the containment, transport, handling, protection, promotion, marketing or sale of any product or substance, which may be primary packaging, containing the actual product or secondary packaging, typically containing products already packaged in primary packaging but excludes─

(a) shipping containers used solely for the transportation of any consumer commodity in bulk to manufacturers, packers, or processors, or to wholesale or retail distributors thereof;

(b) packaging made of timber and textile; and

(c) plastic pallets and industrial bulk containers with a capacity exceeding 1000 litres.

“Paper” is defined as any substance made from wood pulp, rags, straw, or other fibrous material used for writing, printing, or as a wrapping material.

“Producer” is defined as any person or category of persons or a brand owner who is engaged in the commercial manufacture, conversion, refurbishment or import of new and/or used products paper, packaging and some single use products which are intended for distribution.

A “brand owner” is defined as a person, category of persons or company who sells any commodity under a registered brand label.

The following products or classes of products are identified:

  • Paper and packaging material (various types)
  • Plastic packaging (various types)
  • Biodegradable and compostable packaging (approved compostable raw materials complying to relevant SABS and/or ISO standards)
  • Single use plastic products (various types)
  • Single use compostable plastic products (various types)
  • Single use biodegradable plastic products (various types)
  • Glass packaging
  • Metal packaging (various types).

EPR measures to be implemented are:

  • collection of products in the post-consumer stage
  • reuse
  • recycling
  • energy recovery
  • disposal of products in the post-consumer stage.

Producers will be responsible for developing and implementing an EPR scheme.

Targets for each identified waste stream are set out in a table for a period of five years from the date of the implementation of the Notice.

  • DRAFT EPR Scheme for the Lighting Sector

The Notice applies to the products and the resulting waste which arises from the use by a
consumer or an end user of lighting equipment.

“Lighting equipment” is defined as “electrical or electronic equipment used for producing artificial light or illumination”, and also includes any peripherals of the lighting bodies such luminaires, switch components, ballasts, fixtures, modules.

EPR measures to be implemented are:

  • collection of products in the post-consumer stage
  • reuse
  • recycling
  • energy recovery
  • disposal of products in the post-consumer stage.

The following products or classes of products are identified:

(a) Lighting products: Different types of Lighting includes but is not limited to:

(i) Gas Discharge Lighting;

(aa) low pressure discharge lighting: fluorescent (compact, linear and non-linear and nonfluorescent (low pressure sodium, low pressure mercury vapour);

(bb) high intensity discharge lighting: high pressure sodium, low pressure sodium, metal halide, high pressure mercury vapour, xenon; and

(cc) lighting for special purposes;

(ii) Retrofit (O) LED lighting (with standardized sockets suitable to replace Lighting);

(iii) LED Light Sources – LED lighting and luminaires;

(iv) Other Light Emitting Devices;

(v) Luminaires and Lighting Equipment Fixtures/Modules/Associated electrical components;

(vi) Laser, Pixel and UGVC lighting;

(vii) Off grid solar powered lighting; and

(viii) Incandescent (filament) light bulbs and halogen.

[Please note: no paragraph (b) etc was published in the Gazette, so presumably the above notice is the full list of products.

Producers of these will be responsible for developing an EPR scheme. This must be submitted to the Minister within six months, alternatively a product responsibility organisation must be established which must prepare and submit a scheme.

Producers only starting after the Notice came into force must submit their scheme within six months of commencement, or subscribe to an existing scheme within three months.

Targets for each identified waste stream are set out in a table for a period of five years from the date of the implementation of the Notice.

  • General comment

The Department had previously (December 2017) issued notices to the three above sectors to prepare and submit Industry Waste Management Plans (in terms of section 28 of the Waste Act).  This notice was withdrawn by the Minister in December 2019 as it was felt that none of the Plans had complied with the Department’s requirements. The Department is therefore now following the section 18 route (extended producer responsibility) to force these sectors to manage their resulting waste streams.

While certain requirements which Plans should address and attempt to achieve were set out in the December 2017 notice industries were still given a fair amount of latitude and self-regulation. This is probably also the reason why the notice was withdrawn as it must have been felt by the Department that the industry sectors did not comply.

In contrast, the draft EPR Regulations and draft EPR Scheme notices are much stricter and provide the Minister with the power to lay down requirements which the identified sectors must comply with. This also includes the setting of waste reduction and collection targets by the Minister, as opposed to by the industries themselves.

It would not surprise us if significant opposition is  raised to the above draft laws and that the participation process is dragged out.

 

PROVINCIAL LEGISLATION

 

8)    Kwazulu-Natal

The Coastal Management Programme in terms of the Integrated Coastal Management Act was adopted by the province.

No other relevant provincial legislation was published during this month.

 

MUNICIPAL LEGISLATION

 9)    Buffalo City Metropolitan Municipality

The By-law regarding Installation of Electronic Communication Facilities was promulgated.

 

10)  Bojanala Platinum District Municipality

The municipality adopted its Environmental Management Framework. At the same time the frameworks for the Rustenburg and Madibeng local municipalities were repealed.

 

11)  City of uMhlathuze

The following new by-laws were promulgated:

  • Municipal Outdoor Advertising Signs By-laws

These by-laws repeal the Advertising Signs By-laws from 2002.

  • Water Services By-laws

These by-laws are confusing and have several errors in them. In section 144 is states that they are called the Water Services By-laws, 2010. There are, however, already 2010 Water Services By-laws and which were published on 11 February 2011. It is therefore unsure what the status of the 2020 and 2010 by-laws actually are.

  • Public Transport By-law

 

12)  Bergrivier Local Municipality

The By-law relating to the Control of Boats and Boating on the Berg River Estuary was published for public comment.

 

 

If you have any questions please feel free to contact us.

Kind regards

 MARK DITTKE

 

To download or print this newsletter click on this link: Monthly Newsletter June 2020